EXHIBIT 10.11
FORM OF
REGISTRATION RIGHTS AGREEMENT
between
AMERICAN MEDICAL PROVIDERS, INC.
and
_________________________________
_______________________, 1997
FORM OF
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is entered into
as of , 1997, between AMERICAN MEDICAL PROVIDERS, INC., a Delaware corporation
(the "Company"), and ______________________ ("Doctor").
This Agreement is made pursuant to that certain Business Purchase
Agreement of even date herewith (the "Purchase Agreement") by and between the
Company and Doctor pursuant to which the Company agreed to purchase the
podiatric practice of the Doctor for cash and shares of the Company's Common
Stock, par value $.01 per share (the "Common Shares"). In order to induce Doctor
to enter into the Purchase Agreement, the Company has agreed, INTER ALIA, to
provide the registration rights set forth in this Agreement[, and the execution
and delivery of this Agreement is a condition precedent to consummation of the
transactions contemplated by the Purchase Agreement.]
The parties hereby agree as follows:
1. DEFINITIONS.
Capitalized terms used herein without definition shall have the
meaning set forth in the Note.
"COMMISSION" means the United States Securities and Exchange
Commission.
"HOLDER" means Doctor, so long as Doctor holds any Registrable
Securities, and any other holder of Registrable Securities to whom the
registration rights set forth in Section 2 hereof have been transferred pursuant
to Section 9 (c) hereof.
"PERSON" means an individual, a corporation, a limited liability
company, a partnership, an association, a trust or any other entity or
organization.
"REGISTRABLE SECURITIES" means (i) the Common Shares issued to
Doctor pursuant to the Purchase Agreement and (ii) any other securities that may
be issued or distributed in respect of such Common Shares by way of dividend,
split, exchange or other distribution, recapitalization or reclassification. For
the purposes of this Agreement, Registrable Securities will cease to be
Registrable Securities when (a) a registration statement covering such
Registrable Securities has been declared effective and they have been disposed
of pursuant to such effective registration statement, (b) they are distributed
pursuant to Rule 144 (or any similar provision then in force) under the
Securities Act or (c) they have been otherwise transferred and the Company has
delivered new certificates or other evidences of ownership for them not subject
to any stop transfer order or other restriction on transfer and not bearing a
legend restricting transfer.
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"SECURITIES ACT" means the United States Securities Act of 1933,
as amended.
2. REGISTRATION.
(a) REGISTRATION OF SIMILAR SECURITIES. If, at any time prior to the
second anniversary of this Agreement, the Company proposes to file a
registration statement under the Securities Act with respect to an offering of
Similar Securities (as defined herein), then the Company shall give notice by
telephone (and confirmed by written notice) (together, the "Registration
Notice") of such proposed filing to the Holder of Registrable Securities as
early as practicable, but in no event later than ten days before the anticipated
filing date, provided, however, that the Company shall have no obligation to
give the Registration Notice to the Holder with respect to the filing of any
registration statement in connection with the Company's initial public offering
and the Company shall have no obligation to include Registrable Securities in
such registration. Any Registration Notice shall state the estimated proposed
offering price, the estimated number of securities proposed to be registered and
whether the registration will be in connection with an underwritten offering
(and, if not, shall identify the alternative plan of distribution) and offer the
Holder the opportunity to include in such registration statement such amount of
Registrable Securities as the Holder may request by written notice delivered to
the Company prior to the anticipated filing date (any such request being
referred to as a "Registration Request"). If such registration is in connection
with an underwritten offering or in connection with a transaction pursuant to
which securities are being sold to a purchaser or purchasers with a view to the
redistribution thereof, such Registrable Securities may only be sold as part of
such underwriting or transaction. If the anticipated filing date is deferred by
more than fifteen business days, the Company shall promptly give written notice
of such new filing date to the Holder of Registrable Securities, which notice
shall offer such Holder the opportunity to request to include such greater or
lesser amount of Registrable Securities as previously requested, provided such
Holder makes such new request not later than forty-eight hours prior to the new
filing date. For purposes of this Section 2(a), "Similar Securities" shall mean
the Company's Common Shares.
(b) UNDERWRITTEN OFFERINGS. The Company shall use its best efforts
to cause the managing underwriters of a proposed underwritten offering pursuant
to Section 2(a) to permit the Holder of Registrable Securities requested to be
included in the registration for such offering to include such Registrable
Securities in such offering on the same terms and conditions as any Similar
Securities of the Company included therein. Upon request by the Company or the
managing underwriters made to the Holders of Registrable Securities, such Holder
shall enter into underwriting agreements with such underwriters providing for
the inclusion of such Registrable Securities in such offering on such terms and
conditions or, if the Holder shall refuse to enter into any such agreements, the
Company shall have the right to exclude from such registration all (but not less
than all) Registrable Securities of the Holder. Notwithstanding the foregoing,
if the managing underwriters of such offering advise the Company in writing that
in their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in an orderly manner in such
offering within a price range acceptable to the Company, the Company will
include in such registration (i) first, the securities originally intended to be
sold on
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behalf of the Company in the registration prior to the giving of the
Registration Notice, (ii) second, (i) the Registrable Securities and (ii) any
Common Shares held by any person (an "Owner") to whom such Common Shares were
issued in an acquisition of such Owner's podiatry practice pursuant to a
business purchase agreement between the Company and such Owner ("Owners' Common
Shares") to the extent such Registrable Securities or Owners' Common Shares have
been requested to be included in such registration, pro rata among the Holders
and Owners on the basis of the number of shares owned by each such Holder and
Owner and (iii) third, other securities requested to be included in such
registration.
(c) EFFECTIVENESS, ETC. The Company agrees to use its best efforts
to effect the registration and the sale of the Registrable Securities requested
to be registered pursuant to this Section 2 in accordance with the intended
method of disposition thereof as quickly as practical; except that the Company
may terminate such registration in its sole discretion and for any reason.
(d) AVAILABILITY OF RULE 144. Notwithstanding this Section 2, the
Company shall not be obligated to effect registration of any Registrable
Securities if such Registrable Securities to be included in such registration
can be sold pursuant to Rule 144 under the Securities Act.
3. HOLDBACK AGREEMENT.
To the extent not inconsistent with applicable law, Holder of
Registrable Securities agrees not to offer publicly or effect any public sale or
distribution of the issue being registered or of any similar security of the
Company, or any securities convertible into or exchangeable or exercisable for
such securities, including a sale pursuant to Rule 144 (or any similar provision
then in force) under the Securities Act, during the seven days prior to, and
during the ninety-day period beginning on, the effective date of all
registration statements relating to the Company's securities. if and to the
extent requested by the Company in the case of a non-underwritten public
offering in which Registrable Securities of the Holder are included or if and to
the extent requested by the managing underwriter(s) in the case of an
underwritten public offering during the first year of this Agreement. Anything
herein to the contrary notwithstanding, under no circumstances shall the Holder
of Registrable Securities be precluded by the provisions of this Section 3 from
offering publicly or effecting any public sale or distribution of Registrable
Securities for more than ninety days out of any consecutive period of 270 days.
4. REGISTRATION PROCEDURES.
Subject to the provisions of Section 2 hereof, in connection with
the registration of Registrable Securities hereunder, the Company will as
expeditiously as possible:
(a) furnish to each seller of Registrable Securities, prior to
filing a registration statement, copies of such registration statement as
proposed to be filed, and thereafter such number of copies of such registration
statement, each amendment and supplement thereto (in each case including all
exhibits thereto), the prospectus included in such registration statement
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(including each preliminary prospectus) and such other documents in such
quantities as such seller may reasonably request from time to time in order to
facilitate the disposition of the Registrable Securities owned by such seller;
(b) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions as
any seller of Registrable Securities reasonably requests and do any and all
other acts and things which may be reasonably necessary or advisable to enable
such seller to consummate the disposition in such jurisdictions of the
Registrable Securities owned by such seller; except 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 paragraph (b), (ii)
subject itself to taxation in any such jurisdiction or (iii) consent to general
service of process in any such jurisdiction;
(c) use its best efforts to cause the Registrable Securities covered
by such registration statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary by virtue of the
business and operation of the Company to enable the seller or sellers thereof to
consummate the disposition of such Registrable Securities;
(d) notify each seller of such Registrable Securities, 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 contains an untrue statement
of a material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and the
Company will promptly (or, if such event is the conduct of negotiations
disclosure of which, in the Company's reasonable judgment, would be detrimental
to the Company and the Company shall have given a notice to each seller of
Registrable Securities to such effect (the "Negotiation Notice"), promptly after
any required disclosure would not be detrimental to the Company but in no event
more than ninety days after the giving of the Negotiation Notice) prepare a
supplement or amendment to such prospectus so that, as thereafter delivered to
the purchasers of such Registrable Securities, such prospectus will not contain
an untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading.
(e) use its best efforts to cause all such Registrable Securities to
be listed (i) on each securities exchange on which Similar Securities issued by
the Company are then listed, or (ii) if no such Similar Securities are then
listed, on the Nasdaq National Market;
(f) enter into customary agreements (including an underwriting
agreement in customary form) and take such other actions as are reasonably
required in order to expedite or facilitate the disposition of such Registrable
Securities;
(g) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement, and any attorney, accountant or other agent retained by
any such seller or underwriter (collectively, the "Inspectors"), all financial
and other records, pertinent corporate documents and properties of the
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Company and its subsidiaries (collectively, the "Records") as shall be
reasonably necessary to enable them to exercise their due diligence
responsibility, and cause the officers, directors and employees of the Company
to supply all information reasonably requested by any such Inspector in
connection with such registration statement. Records which the Company
determines, in good faith, to be confidential and which it notifies the
Inspectors are confidential shall not be disclosed by the Inspectors unless (i)
the disclosure of such Records is necessary to avoid or correct a misstatement
or omission in the registration statement and either (A) such registration has
not been terminated or delayed pursuant to the provisions of Section 2 hereof,
as the case may be, or (B) sales have been consummated pursuant to such
registration statement by any seller of Registrable Securities or (ii) the
release of such Records is ordered pursuant to a subpoena or other order from a
court of competent jurisdiction. Each seller of Registrable Securities shall use
reasonable efforts, prior to any such disclosure by such seller's Inspector, to
inform the Company that such disclosure is necessary to avoid or correct a
misstatement or omission in the registration statement. Each seller of
Registrable Securities further agrees that it will, upon learning that
disclosure of such Records is sought in a court of competent jurisdiction, give
notice to the Company and allow the Company, at the expense of the Company, to
undertake appropriate action to prevent disclosure of the Records deemed
confidential;
(h) in the event such sale is pursuant to an underwritten public
offering, use its best efforts to obtain a letter of the kind contemplated by
the Statement of Auditing Standards No. 72, "Letters For Underwriters and
Certain Other Requesting Parties," promulgated by the American Institute of
Certified Public Accountants (an "AICPA Letter") from the independent public
accountants for the Company in customary form and covering such matters of the
type customarily covered by such letters as the Holder reasonably requests; and
(i) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and to make available to the Holder of
Registrable Securities, as soon as reasonably practicable, an earning statement
covering a period of twelve months, beginning within three months after the
effective date of the registration statement, which earning statement shall
satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder.
The Company may require each seller of Registrable Securities as to
which any registration is being effected to furnish to the Company such
information regarding such seller or the distribution of such securities as the
Company may from time to time reasonably request in writing, in each case only
as required by the Securities Act.
The Holder of Registrable Securities agrees that, upon receipt of
any notice (including any Negotiation Notice) from the Company of the happening
of any event of the kind described in Section 4(d) hereof, the Holder shall
forthwith discontinue disposition of Registrable Securities pursuant to the
registration statement covering such Registrable Securities until the Holder's
receipt of the copies of the supplemented or amended prospectus contemplated by
Section 4(d) hereof (the "Blackout Period"), and, if so directed by the Company,
the Holder will deliver to the Company (at the expense of the Company) all
copies, other than permanent file
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copies then in the Holder's possession, of the prospectus covering such
Registrable Securities current at the time of receipt of such notice. The
Company will suspend any underwritten public offering that includes the
Registrable Securities during the Blackout Period.
5. REGISTRATION EXPENSES.
All expenses incident to the performance of or compliance with
Section 2 this Agreement by the Company, including, without limitation, all
registration and filing fees (including, without limitation, fees of the
Commission and the National Association of Securities Dealers, Inc.), fees and
expenses of compliance with securities or blue sky laws (including reasonable
fees and disbursements of counsel in connection with blue sky qualifications of
the Registrable Securities), rating agency fees, printing expenses, messenger
and delivery expenses, internal expenses the fees and expenses incurred in
connection with the listing of the securities to be registered on each
securities exchange on which Similar Securities issued by the Company are then
listed, fees and disbursements of counsel for the Company and its independent
certified public accountants (including the expenses of any special audit or
AICPA Letter required by or incident to such performance), securities acts
liability insurance (if the Company elects to obtain such insurance), the fees
and expenses of any special experts retained by the Company in connection with
such registration and the fees and expenses of other persons retained by the
Company (all such expenses being herein called "Registration Expenses"), will be
borne by the Company, except that the Holder will pay those expenses incurred
solely as a result of Holder's participation in the offering, including, but not
limited to, Holder's pro rata portion of the Commission, National Association of
Securities Dealers, Inc., listing, and blue sky filing fees.
6. INDEMNIFICATION; CONTRIBUTION.
(a) INDEMNIFICATION BY THE COMPANY. The Company agrees to indemnify,
to the full extent permitted by law, the Holder of Registrable Securities
included in any registration statement pursuant to Section 2 hereof, its
officers and directors and each person who controls, is controlled by or under
common control with (within the meaning of the Securities Act) the Holder,
officer and director, against all losses, claims, damages, liabilities and
expenses (including attorneys' fees and other expenses incurred in connection
with investigating or defending any such claims) caused by any untrue or alleged
untrue statement of material fact contained in any registration statement, or
any prospectus or preliminary prospectus contained therein, or any amendment or
supplement thereto, or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except (i) insofar as the same are caused by (i) any
such untrue statement or omission or alleged untrue statement or omission based
upon information furnished in writing to the Company by or on behalf of a Holder
or underwriter expressly for use therein or (ii) the fact that the Holder or
underwriter sold Registerable Securities to a Person to whom there was not sent
or given a copy of the prospectus as amended or supplemented to the date of such
sale at or prior to the confirmation of such sale. In connection with an
underwritten offering, the Company will indemnify the underwriters thereof,
their officers and directors and each person who controls such
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underwriters (within the meaning of the Securities Act) to the same extent as
provided above with respect to the indemnification of the Holder of Registrable
Securities.
(b) INDEMNIFICATION BY HOLDERS OF REGISTRABLE SECURITIES. In
connection with any registration statement in which the Holder of Registrable
Securities is participating, the Holder will furnish to the Company in writing
such information with respect to the Holder as the Company reasonably requests
for use in connection with any such registration statement, or any prospectus or
preliminary prospectus contained therein, or any amendment or supplement
thereto, and agrees to indemnify, to the extent permitted by law, the Company,
its directors and officers and each person who controls the Company (within the
meaning of the Securities Act) against any losses, claims, damages, liabilities
and expenses caused by any untrue or alleged untrue statement of a material fact
contained in any such registration statement, or any prospectus or preliminary
prospectus contained therein, or any amendment or supplement thereto, or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, to
the extent, but only to the extent, that such untrue statement or omission is
contained in any information with respect to the Holder provided by the Holder
for use in the preparation of such registration statement. The Company will
furnish Holder with a copy of the information attributable to the Holder in the
registration statement at the time of the initial filing. Notwithstanding
anything to the contrary in this Agreement, in no event shall any
indemnification provided hereunder by the Holder of Registrable Securities in
connection with any registration thereof exceed the amount of proceeds received
by the Holder in connection with such registration.
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. Any person entitled to
indemnification hereunder agrees to give prompt written notice to the
indemnifying party after the receipt by such person of any written notice of the
commencement of any action, suit, proceeding or investigation or threat thereof
made in writing for which such person will claim indemnification or contribution
pursuant to this Agreement and, unless in the reasonable judgment of such
indemnified party a conflict of interest may exist between such indemnified
party and the indemnifying party with respect to such claim, permit the
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to such indemnified party. If the indemnifying party is not
entitled to, or elects not to, assume the defense of a claim, it will not be
obligated to pay the fees and expenses of more than one counsel with respect to
such claim, unless in the reasonable judgment of any indemnified party a
conflict of interest may exist between such indemnified party and any other of
such indemnified parties with respect to such claim, in which event the
indemnifying party shall be obligated to pay the fees and expenses of such
additional counsel or counsels. The indemnifying party will not be subject to
any liability for any settlement made without its consent.
(d) CONTRIBUTION. If the indemnification provided for in this
Section 6 from the indemnifying party is unavailable to an indemnified party
hereunder in respect of any losses, claims, damages, liabilities or expenses
referred to therein, then the indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities or
expenses in such
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proportion as is appropriate to reflect the relative fault of the indemnifying
party and indemnified parties in connection with the actions which resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative fault of such indemnifying party
and indemnified parties shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement
of a material fact, has been made by, or relates to information supplied by,
such indemnifying party or indemnified parties, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such action. The amount paid or payable by a party as a result of the losses,
claims, damages, liabilities and expenses referred to above shall be deemed to
include, subject to the limitations set forth in Section 6(c) hereof, any legal
or other fees or expenses reasonably incurred by such party in connection with
any investigation or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 6(d) were determined by PRO RATA
allocation or by any other method of allocation which does not take into account
the equitable considerations referred to in the immediately preceding paragraph.
No person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
If indemnification is available under this Section 6, the
indemnifying parties shall indemnify each indemnified party to the full extent
provided in Section 6(a) and (b) hereof without regard to the relative fault of
said indemnifying party or indemnified party or any other equitable
consideration provided for in this Section 6(d).
Notwithstanding anything to the contrary in this Agreement, in no
event shall the amount contributed hereunder by the Holder of Registrable
Securities in connection with any registration thereof exceed the amount of
proceeds received by such Holder in connection with such registration.
7. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS.
No person may participate in any underwritten registration
thereunder unless such person (a) agrees to sell such person's securities on the
basis provided in any underwriting arrangements approved by the persons entitled
hereunder to approve such arrangements and (b) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements.
8. TERMINATION OF THE COMPANY'S OBLIGATIONS.
The Company's obligations pursuant to Section 2 hereof shall
terminate on the date on which all Registrable Securities (other than
Registrable Securities acquired by the Company or any affiliate of the Company)
can be freely sold by the Holder thereof without registration under
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the Securities Act to a transferee, who (unless an affiliate of the Company)
would be able to sell freely such Common Shares without further registration
under the Securities Act.
9. GENERAL.
(a) AMENDMENTS AND WAIVERS. Except as otherwise provided herein, the
provisions of this Agreement may not be amended, modified or supplemented, and
waivers or consents to or departures from the provisions hereof may not be given
unless the Company has obtained the written consent of the Holder.
(b) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made by hand delivery, telex, telecopy, overnight
courier or registered first-class mail:
(i) if to the Holder of Registrable Securities at the most
current address given by the Holder to the Company in writing;
(ii) if to the Company at its address set forth in the
Purchase Agreement.
All such notices and communications shall be deemed to have been
duly given: when delivered, if by hand, overnight courier or mail; when the
appropriate answerback is received, if by telex; when transmitted, if by
telecopy.
(c) SUCCESSORS AND ASSIGNS; NONTRANSFERABILITY OF REGISTRATION
RIGHTS. This Agreement shall inure to the benefit and be binding upon the
successors of each of the parties. The registration rights set forth in this
Agreement may not be transferred by Doctor to any other Person.
(d) DELAY OF REGISTRATION. No Holder shall have any right to take
any action to restrain, enjoin or otherwise delay any registration as the result
of any controversy that might arise with respect to the interpretation or
implementation of the Agreement.
(e) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) HEADINGS. The headings to this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of Texas applicable to contracts and to be performed
wholly within Texas.
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(h) SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be in any way
impaired thereby, it being intended that all of the rights and privileges of
Doctor shall be enforceable to the fullest extent permitted by law.
(i) ENTIRE AGREEMENT. This Agreement, together with the Purchase
Agreement is intended by the parties as a final expression of their agreement
and intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein and therein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein and therein. This
Agreement and the Purchase Agreement supersede all prior agreements and
understandings between the parties with respect to such subject matter.
(j) ATTORNEYS' FEES. In any action or proceeding brought to enforce
any provision of this Agreement, or where any provision hereof or of the
Purchase Agreement or the Registrable Securities is validly asserted as a
defense, the successful party shall be entitled to recover reasonable attorneys'
fees in addition to any other available remedy.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
AMERICAN MEDICAL PROVIDERS, INC.
By:
Name:
Title:
____________________________________
____________________________________
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