EXHIBIT 4.4
-----------
--------------------------------------------------------------------------------
ACCESS HEALTH, INC.
REGISTRATION RIGHTS AGREEMENT
November 18, 1996
--------------------------------------------------------------------------------
TABLE OF CONTENTS
PAGE
----
SECTION 1 - REGISTRATION RIGHTS............................ 1
1.1 Definitions......................................... 1
1.2 Restrictive Legend.................................. 2
1.3 Requested Registration.............................. 3
1.4 Piggyback Registration.............................. 4
1.5 Expenses of Registration............................ 5
1.6 Obligations of the Company.......................... 6
1.7 Furnish Information................................. 7
1.8 Delay of Registration............................... 7
1.9 Indemnification..................................... 7
1.10 "Market Stand-Off" Agreement....................... 10
1.11 Transfer of Registration Rights.................... 10
1.12 Termination of Rights.............................. 10
1.13 Rule 144 Reporting................................. 10
SECTION 2 - MISCELLANEOUS.................................. 11
2.1 Waivers and Amendments.............................. 11
2.2 Governing Law....................................... 11
2.3 Successors and Assigns.............................. 11
2.4 Entire Agreement.................................... 11
2.5 Notices............................................. 11
2.6 Severability........................................ 11
2.7 Titles and Subtitles................................ 11
2.8 Counterparts........................................ 00
-x-
XXXXXX HEALTH, INC.
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is entered into as of November 18,
1996, by and among ACCESS HEALTH, INC., a Delaware corporation (the "Company"),
and the persons named in Schedule A hereto (the "Stockholders").
RECITALS
WHEREAS, the Stockholders acquired shares of Common Stock of the Company
pursuant to an Agreement and Plan of Reorganization by and among the Company,
Access Acquisition Corp. ("Sub") and Informed Access, Inc. ("Informed Access")
dated September 3, 1996 (the "Merger Agreement") in connection with the merger
of Sub with and into Informed Access. Pursuant to Section 5.22 of the Merger
Agreement, the Company agreed to provide the Stockholders certain registration
rights as provided herein.
WHEREAS, as an inducement for Informed Access to enter into the Merger
Agreement, the Company desires to grant the registration rights to the
Stockholders as contained herein;
NOW, THEREFORE, in consideration of the mutual premises and covenants
hereinafter set forth, the Company and the Stockholders agree as follows:
SECTION 1
REGISTRATION RIGHTS
-------------------
1.1 Definitions. As used in this Agreement, the following terms shall
-----------
have the following meanings:
(a) "SEC" shall mean the Securities and Exchange Commission, or any
other Federal agency at the time administering the Securities Act.
(b) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any similar Federal statute and the rules and regulations
thereunder, all as the same shall be in effect at the time.
(c) "Expiration Date" shall mean the date the Company has published
(in accordance with applicable pooling of interest accounting rules) the
combined financial results of the Company and Informed Access for a period of at
least thirty (30) days of combined operations of the Company and Informed
Access.
(d) "Holder" shall mean any holder of outstanding Registrable
Securities which have not been sold to the public or anyone who holds
outstanding Registrable Securities to whom the registration rights conferred by
this Agreement have been transferred in compliance with Section 1.13 hereof.
(e) "Register," "registered" and "registration" shall refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement, and compliance with applicable
state securities laws of such states in which Holders notify the Company of
their intention to offer Registrable Securities.
(f) "Registrable Securities" shall mean all of the following to the
extent the same have not been sold to the public (i) any and all shares of
Common Stock of the Company issued pursuant to the Merger Agreement and held by
a Holder, (ii) stock issued in respect of stock referred to in (i) above in any
reorganization, or (iii) stock issued in respect of the stock referred to in (i)
and (ii) as a result of a stock split, stock dividend, recapitalization or
combination.
(g) "Registration Expenses" shall mean all expenses incurred in
connection with a registration hereunder, including, without limitation, all
registration and filing fees, printing expenses, fees and disbursements of
counsel and accountants for the Company, blue sky fees and expenses and the
expense of any special audits incident to or required by any such registration
(but excluding the compensation of regular employees of the Company, which shall
be paid in any event by the Company).
(h) "Securities Act" shall mean the Securities Act of 1933, as
amended, or any similar Federal statute and the rules and regulations
thereunder, all as the same shall be in effect at the time.
(i) "Selling Expenses" shall mean all underwriting discounts and
selling commissions applicable to the sale of Registrable Securities and all
fees and disbursements of counsel for the Holders.
1.2 Restrictive Legend.
------------------
(a) Each certificate representing Registrable Securities held by any
affiliate listed on Schedule 5.12 of the Merger Agreement shall be stamped or
otherwise imprinted with a legend as provided in the Affiliate Agreement as
defined in the Merger Agreement.
(b) The Company agrees to remove promptly stop transfer instructions
and the legend provided in Section 1.2(a) above when (i) such proposed sale,
transfer or other distribution is permitted pursuant to Rule 145(d) under the
Securities Act; (ii) counsel representing Holder, which counsel is reasonably
satisfactory to the Company, shall have advised the Company in a written opinion
letter satisfactory to the Company and Company's legal counsel, and upon which
the Company and its legal counsel may rely, that no registration under the
Securities Act would be required in connection with the proposed sale, transfer
or other disposition; (iii) a registration statement under the Securities Act
covering the Registrable Securities proposed to be sold, transferred or
otherwise disposed of, describing the manner and terms of the proposed sale,
transfer or other dispositions, and containing a current prospectus, shall have
been filed with the SEC and made effective under the Securities Act; (iv) an
authorized representative of the SEC shall have rendered written advice to
Holder (sought by Holder or counsel to Holder, with a copy thereof and all other
related communications delivered to the Company) to the effect that the SEC
would take no action, or that the staff of the SEC would not recommend that
-2-
the SEC take any action, with respect to the proposed disposition if
consummated; or (v) when the Holder of Registrable Securities is no longer
subject to the restrictions in Rule 145 under Rule 145(d)(2) or (3).
(c) Each Holder consents to the Company making a notation on its
records and giving instructions to any transfer agent of the Registrable
Securities in order to implement the restrictions on transfer established in
this Agreement.
1.3 Requested Registration.
----------------------
(a) At any time after the Expiration Date, in case the Company shall
receive a written request from a Holder or Holders that the Company effect any
registration with respect to Registrable Securities if the anticipated aggregate
offering price, net of underwriting discounts and commissions, would exceed
$10,000,000, the Company shall:
(i) promptly give written notice of the proposed registration
to all other Holders; and
(ii) as soon as practicable use its best efforts to register
(including, without limitation, the execution of an undertaking to file post-
effective amendments, appropriate qualifications under applicable blue sky or
other state Securities Laws, and appropriate compliance with federal government
requirements) the sale and distribution of the Registrable Securities as
specified in such request, together with all or such portion of the Registrable
Securities of any other Holder or Holders as are specified in a written request
given within ten (10) days after receipt of such written notice from the
Company; provided that the Company shall not be obligated to file a registration
statement pursuant to this section:
(A) within one hundred twenty (120) days after the
effectiveness of the registration statement relating to a registration effected
pursuant to this Section 1.3(a) or Section 1.4(a);
(B) in any particular state in which the Company would be
required to execute a general consent to service of process in effecting such
registration;
(C) in any registration having an aggregate sales price
(before deduction of underwriting discounts and commissions) of less than
$10,000,000; or
(D) after the Company has effected three such
registrations pursuant to this Section 1.3(a) and such registrations have been
declared or ordered effective; provided, however, that any registration request
which is subsequently withdrawn shall not be deemed to be a registration under
this subsection (D) if the Holders requesting such registration shall have
reimbursed the Company for all Registration Expenses related to such withdrawn
registration.
-3-
Subject to the foregoing clauses (A) through (D), the Company shall file a
registration statement covering the Registrable Securities so requested to be
registered as soon as is practicable after receipt of the request or requests of
the Holders; provided, however, that (i) if the Company shall furnish to such
Holders a certificate signed by the President of the Company stating that in the
good faith judgment of the Board of Directors it would be detrimental to the
Company and its stockholders for such registration statement to be filed within
such period, then the Company may defer the filing of such registration
statement for a period of not more than sixty (60) days, provided that the
Company may not exercise such sixty (60) day hold off more than once during any
one hundred and twenty (120) day period, or (ii) if at the time of such request
the Company determines it desires to register shares for the account of the
Company, then the Company can so notify the Holders who shall then have rights
to participate in such registration statement as provided in Section 1.4.
(b) The Holders agree to distribute the Registrable Securities covered
by their request by means of an underwriting, using an underwriter or
underwriters selected by the Holders and reasonably acceptable to the Company.
The right of any Holder to registration pursuant to Section 1.3 shall be
conditioned upon such Holder's participation in such underwriting and the
inclusion of such Holder's Registrable Securities in the underwriting to the
extent provided herein. The Company shall (together with all Holders
distributing their Registrable Securities through such underwriting) enter into
an under writing agreement in customary form with the underwriter or
underwriters selected for such underwriting. Notwithstanding any other provision
of this Section 1.3, if the managing underwriter advises the participating
Holders in writing that marketing factors so as to not materially adversely
impact the market price of the Company's Common Stock require a limitation of
the number of shares to be underwritten (an "Underwriter's Cutback"), the
Company shall so advise all participating Holders, and the number of shares of
Registrable Securities that may be included in the registration and underwriting
shall be allocated among all participating Holders thereof in proportion, as
nearly as practicable, to the respective amounts of Registrable Securities held
by such Holders. If any Holder disapproves of the terms of the underwriting, he
may elect to withdraw therefrom by written notice to the Company and the
managing underwriter. If, by the withdrawal of such Registrable Securities a
greater number of Registrable Securities held by other Holders may be included
in such registration (up to the limit imposed by the underwriters) the Company
shall offer to all Holders who have included Registrable Securities in the
registration the right to include additional Registrable Securities in the same
proportion used in determining the limitation as set forth above. Any
Registrable Securities which are excluded from the underwriting by reason of the
underwriter's marketing limitation or withdrawn from such underwriting shall be
withdrawn from such registration and shall remain subject to the lockup
agreement in Section 1.10.
1.4 Piggyback Registration.
----------------------
(a) If at any time or from time to time, the Company shall determine
to register any of its securities, for its own account or the account of any of
its stockholders, other than a registration relating solely to employee benefit
plans, a registration statement related to the offering of convertible debt
securities of the Company, a registration relating solely to a Securities Act
Rule 145 transaction, or a registration on any form (other than Form X-0, X-0 or
S-3, or their successor forms) which does not
-4-
include substantially the same information as would be required to be included
in a registration statement covering the sale of Registrable Securities, the
Company will:
(i) give to each Holder written notice thereof as soon as
practicable prior to filing the registration statement; and
(ii) include in such registration and in any underwriting
involved therein, all the Registrable Securities specified in a written request
or requests, made within ten (10) days after receipt of such written notice from
the Company, by any Holder or Holders, except as set forth in Subsection (b)
below.
(b) If the registration is for a registered public offering involving
an underwriting, the Company shall so advise the Holders as a part of the
written notice given pursuant to Subsection 1.4(a)(i). In such event the right
of any Holder to registration pursuant to Section 1.4 shall be conditioned upon
such Holder's participation in such underwriting and the inclusion of such
Holder's Registrable Securities in the underwriting to the extent provided
herein. All Holders proposing to distribute their securities through such
underwriting shall (together with the Company) enter into an underwriting
agreement in customary form with the underwriter or underwriters selected for
such underwriting by the Company. Notwithstanding any other provision of this
Section 1.4, if the managing underwriter determines that marketing factors so
as to not materially adversely impact the market price of the Company's Common
Stock require a limitation of the number of shares to be underwritten, the
managing underwriter may limit the number of Registrable Securities to be
included in the registration and underwriting on behalf of the Holders on a pro
rata basis to not less than thirty-five percent (35%) of total number of shares
to be included in the registration. In such event, the Company shall so advise
all Holders of Registrable Securities which would otherwise be registered and
underwritten pursuant hereto, and the number of shares of Registrable Securities
that may be included in the registration and underwriting shall be allocated
among the Holders in proportion, as nearly as practicable, to the respective
amounts of Registrable Securities held by each of the Holders seeking to
register shares under this Section 1.4. If any Holder disapproves of the terms
of any such underwriting, he may elect to withdraw therefrom by written notice
to the Company and the managing underwriter. If, by the with drawal of such
Registrable Securities a greater number of Registrable Securities held by other
Holders may be included in such registration (up to the limit imposed by the
underwriters) the Company shall offer to all Holders who have included
Registrable Securities in the registration the right to include additional
Registrable Securities in the same proportion used in determining the limitation
as set forth above. Any Registrable Securities excluded or withdrawn from such
underwriting shall be withdrawn from such registration and shall remain subject
to the lockup agreement in Section 1.10.
1.5 Expenses of Registration. All Registration Expenses and Selling
------------------------
Expenses incurred in connection with any registration, qualification or
compliance pursuant to Section 1.3 shall be borne by the Holders of the
securities so registered pro rata on the basis of the number of their shares so
registered, and such Holders shall be obligated prior to any such registration
to pay to the Company by check or wire transfer $100,000 as an advance of such
Registration Expenses and to pay the remainder of such expenses at closing of
the public offering. The Company shall return to the Holders any amount
-5-
of such advance which is not necessary to reimburse the Company for the
Registration Expenses. All Registration Expenses incurred in connection with any
registration, qualification or compliance pursuant to Section 1.4 shall be borne
by the Company and all Selling Expenses shall be borne by the Holders of the
securities so registered pro rata on the basis of the number of their shares so
registered.
1.6 Obligations of the Company. Whenever required to effect the
--------------------------
registration of any Registrable Securities under this Agreement, the Company
shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best efforts to cause such
registration statement to become effective, and keep such registration statement
effective until the distribution is completed, but not longer than ninety (90)
days after the effective date thereof (excluding any days in which the Company
requires the Holders to cease sales of shares as provided below); provided,
however, that the Company may by written notice require that the Holders
immediately cease sales of shares (for a period not to exceed sixty (60) days)
pursuant to such Registration Statement at any time that (i) the Company becomes
engaged in business activity or negotiation which is not disclosed in the
Registration Statement (or the prospectus included therein) which the Company
reasonably believes must be disclosed therein under applicable law and which the
Company desires to keep confidential for business purposes, (ii) the Company
determines that a particular disclosure so determined to be required to be
disclosed therein would be premature or would adversely affect the Company or
its business or prospects, or (iii) the registration statement can no longer be
used under the existing rules and regulations promulgated under the Securities
Act. The Company shall not be required to disclose to the Holders which of the
reasons specified in clauses (i), (ii) or (iii) above are the basis for
requiring a suspension of sales hereunder.
(b) Prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement.
(c) Furnish to the Holders such number of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as they may reasonably request in order
to facilitate the disposition of the Registrable Securities owned by them that
are included in such registration.
(d) Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or Blue Sky
laws of such jurisdictions as shall be reasonably requested by the Holders,
provided, however, that the Company shall not be required in connection
therewith or as a condition thereto to qualify to do business or to file a
general consent to service of process in any such states or jurisdictions.
(e) Enter into and perform its obligations under an underwriting
agreement, in usual and customary form, with the managing underwriter(s) of such
offering. Each Holder participating in such underwriting shall also enter into
and perform its obligations under such an agreement.
-6-
(f) Notify each Holder of Registrable Securities covered by 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
as a result of which the prospectus included 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 the light of the circumstances then
existing.
(g) Furnish, at the request of any Holder registering Registrable
Securities, on the date that such Registrable Securities are delivered to the
underwriters for sale, (i) an opinion, dated as of such date, of the counsel
representing the Company for the purposes of such registration, in form and
substance as is customarily given to underwriters in an underwritten public
offering addressed to the underwriters, and (ii) a "comfort" letter dated as of
such date, from the independent certified public accountants of the Company, in
form and substance as is customarily given by independent certified public
accountants to underwriters in an underwritten public offering addressed to the
underwriters.
1.7 Furnish Information. It shall be a condition precedent to the
-------------------
obligations of the Company to take any action pursuant to Sections 1.3 or 1.4
that the selling Holders shall furnish to the Company such information regarding
themselves, the Registrable Securities held by them, and the intended method of
disposition of such securities as shall be required to timely effect the
registration of Registrable Securities.
1.8 Delay of Registration. No Holder shall have any right to obtain or
---------------------
seek an injunction restraining or otherwise delaying any such registration as
the result of any controversy that might arise with respect to the
interpretation or implementation of this Agreement.
1.9 Indemnification. In the event any Registrable Securities are
---------------
included in a registration statement under Sections 1.3. or 1.4:
(a) By the Company. To the extent permitted by law, the Company will
indemnify and hold harmless each Holder, the partners, officers and directors of
each Holder, any underwriter (as defined in the Securities Act) for such Holder
and each person, if any, who controls such Holder or underwriter within the
meaning of the Securities Act or the Exchange Act against any losses, claims,
damages, or liabilities (joint or several) to which they may become subject
under the Securities Act, the Exchange Act or other federal or state law,
insofar as such losses, claims, damages, or liabilities (or actions in respect
thereof) arise out of or are based upon any of the following statements,
omissions or violations (collectively a "VIOLATION"):
(i) any untrue statement or alleged untrue statement of a
material fact contained in such registration statement, including any
preliminary prospectus or final prospectus contained therein or any
amendments or supplements thereto;
-7-
(ii) the omission or alleged omission to state therein a material
fact required to be stated therein, or necessary to make the statements
therein, in light of the circumstances in which made, not misleading, or
(iii) any violation or alleged violation by the Company of the
Securities Act, the Exchange Act, any federal or state securities law or
any rule or regulation promulgated under the Securities Act, the Exchange
Act or any federal or state securities law in connection with the offering
covered by such registration statement;
and the Company will reimburse each such Holder, partner, officer or director,
underwriter or controlling person for any legal or other expenses reasonably
incurred by them, as incurred, in connection with investigating or defending any
such loss, claim, damage, liability or action; provided however, that the
indemnity agreement contained in this subsection 1.9(a) 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 (which consent
shall not be unreasonably withheld), nor shall the Company be liable in any such
case for any such loss, claim, damage, liability or action to the extent that it
arises out of or is based upon a Violation which occurs in reliance upon and in
conformity with written information furnished expressly for use in connection
with such registration by such Holder, partner, officer, director, underwriter
or controlling person of such Holder.
(b) By Selling Holders. To the extent permitted by law, each selling
Holder will indemnify and hold harmless the Company, each of its directors, each
of its officers who have signed the registration statement, each person, if any,
who controls the Company within the meaning of the Securities Act, any
underwriter (as defined in the Securities Act) and any other Holder selling
securities under such registration statement or any of such other Holder's
partners, directors or officers or any person who controls such underwriter or
other Holder within the meaning of the Securities Act or the Exchange Act,
against any losses, claims, damages or liabilities (joint or several) to which
the Company or any such director, officer, controlling person, underwriter or
other such Holder, partner or director, officer or controlling person of such
underwriter or other Holder may become subject under the Securities Act, the
Exchange Act or other federal or state law, insofar as such losses, claims,
damages or liabilities (or actions in respect thereto) arise out of or are based
upon any Violation, in each case to the extent (and only to the extent) that
such Violation occurs in reliance upon and in conformity with written
information furnished by such Holder expressly for use in connection with such
registration; and each such Holder will reimburse any legal or other expenses
reasonably incurred by the Company or any such director, officer, controlling
person, underwriter or other Holder, partner, officer, director or controlling
person of such other Holder or underwriter in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the indemnity agreement contained in this subsection 1.9(b) shall not apply
to amounts paid in settlement of any such loss, claim, damage, liability or
action if such settlement is effected without the written consent of the Holder,
which consent shall not be unreasonably withheld; and provided further, that the
total amounts payable in indemnity by a Holder under this subsection 1.9(b) in
respect of any Violation shall not exceed the net proceeds received by such
Holder in the registered offering out of which such Violation arises.
-8-
(c) Notice. Promptly after receipt by an indemnified party under
Section 1.9 of notice of the commencement of any action (including, without
limitation, any governmental action), such indemnified party will, if a claim in
respect thereof is to be made against any indemnifying party under Section 1.9,
deliver to the indemnifying party a written notice of the commencement thereof
and the indemnifying party shall have the right to participate in, and, to the
extent the indemnifying party so desires, jointly with any other indemnifying
party similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party shall
have the right to retain its own counsel, with the fees and expenses to be paid
by the indemnifying party, if representation of such indemnified party by the
counsel retained by the indemnifying party would be inappropriate due to actual
or potential conflict of interests between such indemnified party and any other
party represented by such counsel in such proceeding, and provided further, that
the indemnifying party shall not be required to pay for more than one separate
counsel for all indemnified parties. The failure to deliver written notice to
the indemnifying party within a reasonable time of the commencement of any such
action, if materially prejudicial to its ability to defend such action, shall
relieve such indemnifying party of any liability to the indemnified party under
Section 1.9, but the omission so to deliver written notice to the indemnifying
party will not relieve it of any liability that it may have to any indemnified
party otherwise than under Section 1.9.
(d) Contribution. 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 exercising rights under this Agreement, or any controlling
person of any such Holder, makes a claim for indemnification pursuant to Section
1.9 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 Section 1.9 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 Section 1.9;
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 as is appropriate to reflect
the relative fault of the indemnifying party or parties on the one hand and 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 indemnifying party or
parties on the one hand or the indemnified party on the other and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission; provided, however, that, in any such
case, (A) no such Holder will be required to contribute any amount in excess of
the net proceeds received by such holder from all such Registrable Securities
offered and sold by such Holder 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.
-9-
(e) Survival. The obligations of the Company and Holders under
Section 1.9 shall survive the completion of any offering of Registrable
Securities in a registration statement.
1.10 "Market Stand-Off" Agreement. Each Holder who gives notice to the
---------------------------
Company of such Holder's desire to participate in any registration under Section
1.3 or 1.4 hereof hereby agrees that it shall not, to the extent requested by
the Company or the managing underwriter, sell or otherwise transfer or dispose
of any Registrable Securities or other shares of stock of the Company then owned
by such Holder (other than to donees, affiliates or partners of the Holder who
agree to be similarly bound) for the period from the filing of the registration
statement until up to ninety (90) days following the date of the final
prospectus in connection with the registration statement.
In order to enforce the foregoing covenant, the Company shall have the right to
place restrictive legends on the certificates representing the shares subject to
this Section 1.10 and to impose stop transfer instructions with respect to the
Registrable Securities of such Holders until the end of such period. The
provisions of this Section 1.10 shall be binding upon any transferee of any
Registrable Securities.
1.11 Transfer of Registration Rights. The rights to cause the Company to
-------------------------------
register securities granted Holders under Sections 1.3 and 1.4 may be assigned
to any constituent partner of a Holder, where such Holder is a partnership, or
to any parent or subsidiary corporation or any officer, director or principal
stockholder thereof, where such Holder is a corporation, provided that (i) such
transfer may otherwise be effected in accordance with the applicable securities
laws, and (ii) the Company is given written notice of such assignment prior to
such assignment.
1.12 Termination of Rights. The rights granted pursuant to this Agreement
---------------------
(a) shall terminate as to any Holder when the aggregate number of Registrable
Securities which such Holder holds (together with other Holders whose sales may
be aggregated) could all be sold in a public sale in compliance with Rule 144
under the Securities Act using the 1% volume limitation contained in Rule
144(e)(1)(i), and (b) shall not be exercisable by any Holder if at the time of
the request for or notice of registration under Section 1.3 and 1.4 such Holder
could sell (together with other Holders whose sales may be aggregated) in a
three (3) month period all Registrable Securities then held by such Holder in
compliance with Rule 144 using the Company's average weekly trading volume
calculation at such time.
1.13 Rule 144 Reporting. With a view to make available the benefits of
------------------
Rule 144 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;
(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 Securities Act and
the Exchange Act; and
(c) furnish to the Holder forthwith upon request a written statement
by the Company as to its compliance with the reporting requirements of Rule 144,
and provide a copy of the most recent
-10-
annual or quarterly report of the Company, and such other reports and documents
of the Company as a Holder may reasonably request in availing itself of Rule
144.
SECTION 2
MISCELLANEOUS
-------------
2.1 Waivers and Amendments. The rights and obligations of the Company and
----------------------
the rights and obligations of a Holder under this Agreement may be waived
(either generally or in a particular instance, either retroactively or
prospectively, and either for a specified period of time or indefinitely) or
amended, only with the written consent of such Holder.
2.2 Governing Law. This Agreement shall be governed by and construed
-------------
under the laws of the State of California as such laws are applied to contracts
made and to be fully performed entirely within that state between residents of
that state. All disputes arising out of this Agreement shall be subject to the
exclusive jurisdiction and venue of the California State courts of Sacramento
County, California, (or, if there is exclusive federal jurisdiction, the United
States District Court for the Northern District of California) and the parties
consent to the personal and exclusive jurisdiction and venue of these courts.
2.3 Successors and Assigns. Except as otherwise expressly provided
----------------------
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto.
2.4 Entire Agreement. This Agreement constitutes the full and entire
----------------
understanding and agreement between the parties with regard to the subjects
hereof and thereof.
2.5 Notices. All notices and other communications required or permitted
-------
hereunder shall be in writing and shall be mailed by first class, postage
prepaid, addressed (a) if to a Holder, at such Holder's address set forth in
Schedule A hereto, or at such other address as such Holder shall have furnished
to the Company in writing, or (b) if to the Company, at its principal executive
offices (Attention: Chief Financial Officer) or at such other address as the
Company shall have furnished to the Holders in writing. Notices shall be
effective upon mailing.
2.6 Severability. In case any provision of this Agreement shall be
------------
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions of this Agreement shall not in any way be affected or
impaired thereby.
2.7 Titles and Subtitles. The titles of the sections and subsections of
--------------------
this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
2.8 Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be an original, but all of which together
constitute one instrument.
-11-
The foregoing Registration Rights Agreement is hereby executed as of the
date first above written.
"COMPANY"
ACCESS HEALTH, INC.
a Delaware corporation
By: /s/ XXXXXX X. XXXXXXX
------------------------------------------
Xxxxxx X. Xxxxxxx
President and Chief Executive Officer
STOCKHOLDER
---------------------------------------------
(Print Name)
---------------------------------------------
(Signature of Holder or Authorized Signatory)
---------------------------------------------
(Print Name and Title of Authorized Signatory
if Applicable)
REGISTRATION RIGHTS AGREEMENT
-12-
SCHEDULE A
