EXHIBIT 4(b)
AMENDED AND RESTATED OPTION AND CONSULTING AGREEMENT
AGREEMENT, dated as of December 31, 1996, by and between Compscript,
Inc., a Florida corporation formerly known as Capital Brands, Inc.
("Compscript") and X.X. Xxxxxxxx & Co., Inc., having its principal offices at
Three Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Consultant").
WHEREAS, Compscript and Consultant are parties to that certain Option
and Consulting Agreement, dated as of May 1, 1996 (the "Option and Consulting
Agreement"), pursuant to which Compscript has retained Consultant to provide
certain advisory and other services (collectively, "Consultation Services"), as
more particularly set forth in Section 10 thereof and hereof; and
WHEREAS, Compscript and Consultant desire to amend and restate in its
entirety the Option and Consulting Agreement.
NOW THEREFORE, in consideration of the mutual covenants hereinafter set
forth and for other good and valuable consideration, the parties hereto agree as
follows:
1. ENGAGEMENT. Compscript agrees to engage Consultant and
Consultant agrees to provide Consultation Services as more particularly set
forth herein subject to applicable rules, regulations and policies of the
National Association of Securities Dealers, Inc. ("NASD") and the Securities and
Exchange Commission.
2. GRANT OF OPTION; RESERVATION OF SHARES.
As described with more particularity in Section 10 below, in
consideration of (a) the services provided by Consultant as of January 1996 up
to and including April 25, 1996 to Compscript in connection with that certain
stock purchase between Compscript, Inc. and Capital Brands, Inc. described in
that certain Form 8-K dated May 10, 1996 and (b) the Consultation Services,
Compscript hereby confirms its prior grant to the Consultant of the continuing
right and option (the "Option") to purchase from Compscript, at any time or from
time to time during the Exercise Period (as defined below), up to an aggregate
of 300,000 shares of Common Stock (the "Option Shares") upon the terms and
conditions herein set forth. Compscript shall at all times during the Exercise
Period keep reserved and available for issuance upon exercise of the Option the
total number of Option Shares then subject to the Option.
3. EXERCISE PRICE. The Option shall be exercisable: (i)
with respect to the first 100,000 Option Shares issuable upon
exercise of the Option, for an exercise price equal to $6.00 per
Option Share; (ii) with respect to the next 100,000 Option Shares
issuable upon exercise of the Option, for an exercise price equal
to $8.00 per Option Share; and (iii) with respect to the last 100,000 Option
Shares issuable upon exercise of the Option, for an exercise price equal to
$10.00 per Option Share. The Option Shares, when issued upon payment of the
applicable exercise price (the "Exercise Price"), shall be validly issued, fully
paid and non-assessable and free from all liens, charges, taxes or other
encumbrances.
4. TERM OF OPTION. The Option shall be exercisable in whole or in part
during the period (the "Exercise Period") commencing on the date hereof and
ending on April 1, 1999. Upon expiration of the Option, the Option shall be of
no further force and effect. Notwithstanding anything to the contrary herein,
the expiration and/or termination of the term of this Agreement shall not
operate to terminate the term of the Options, which Options shall survive the
expiration and/or termination of this Agreement.
5. MECHANICS OF EXERCISE. To exercise the Option, Consultant shall, at
any time or from time to time during the Exercise Period, deliver to Compscript:
(i) a written notice of exercise (each an "Exercise Notice") stating the number
of Option Shares with respect to which the Option is then being exercised, which
number shall not be less than 10,000 Option Shares; PROVIDED, HOWEVER, that an
Option Notice which effects an exercise with respect to the then remaining
Option Shares if less than 10,000 may state a number that is less than 10,000
Option Shares; and (ii) the Exercise Price payable in respect of the Option
Shares which are the subject of such Exercise Notice. The Option shall be deemed
to be exercised with respect to the Option Shares stated in an Exercise Notice,
and such Option Shares shall be deemed to be issued (whether or not a
certificate representing such Shares has been delivered to Consultant), at the
time such Option Notice and Exercise Price is received by Compscript.
6. NON-TRANSFERABILITY. The Option may not be assigned, pledged,
hypothecated or otherwise transferred by Consultant, and the Option shall not be
assignable by operation of law or subject to execution, attachment or similar
process. Any attempted assignment, pledge, hypothecation or other transfer of
the Option, and the levy of any execution, attachment or similar process upon
the Option shall be null and void and without effect. Notwithstanding anything
to the contrary contained herein, however, Consultant may assign the Option, in
whole or in part, to (i) a wholly owned subsidiary of the Consultant, (ii) one
or more officers or partners of the Consultant (or the officers or partners of
any such partner) or (iii) any entity in which one or more officers or partners
of the Consultant (or the officers or partners of any such partner) hold an
ownership interest.
7. DILUTION PROTECTION. The Exercise Price, and the number of Option
Shares (or other securities or property)
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issuable upon exercise of the Option shall be subject to adjustment from time to
time upon the occurrence of certain events, as provided in Appendix A attached
to this Agreement.
8. REGISTRATION; REGISTRATION RIGHTS.
(a) Compscript hereby covenants and agrees that it shall register under
the Securities Act the offer and sale of the Option Shares issuable upon the
exercise of the Option in accordance with the procedures set forth in Section
1.a. of Appendix B attached to the Agreement.
(b) In addition to the foregoing obligation of Compscript to register
under the Securities Act the offer and sale of the Option Shares issuable upon
the exercise of the Option and not in limitation thereof, Consultant shall have
the right to cause Compscript to register under the Securities Act the offer and
sale of the Option Shares issuable upon the exercise of the Option in accordance
with the registration procedures set forth in Section 1.b. of Appendix B
attached to this Agreement.
9. CONSULTATION FEE. The Consultant hereby waives the Fee (as such
term is defined in the Option and Consulting Agreement) to the extent not paid
to Consultant as of the date hereof.
10. CONSIDERATION AND CONSULTATION SERVICES.
(a) In consideration of the Options described in Section 3(i), the
Consultant has provided the services described in clause (a) of Section 2. In
consideration of the Options described in Sections 3(ii) and 3(iii), the
Consultant shall perform the Consultation Services for a term commencing on the
date hereof and ending on December 31, 1998. The Consultation Services shall
consist of providing advice to the senior management of Compscript and its Board
of Directors, undertaking for and consulting with Compscript concerning
strategic planning, marketing, corporate organization, structure, financial
matters in connection with the operation of the business of Compscript,
shareholder relations, and reviewing and advising Compscript regarding
Compscript's overall progress and needs in the foregoing areas. Notwithstanding
anything to the contrary contained herein, the issuance of the Option and the
vesting and exercise thereof are not contingent on Compscript's satisfaction
with Consultant's providing of the Consultation Services. Compscript
specifically acknowledges and agrees, however, that the Consultation Services to
be rendered by the Consultant shall be conducted on a "best-efforts" basis and
Consultant has not, cannot and does not guarantee that Consultant's efforts will
have any impact on Compscript's business or that any subsequent financial
improvement will result from Consultant's efforts.
(b) All Consultation Services to be performed hereunder
shall be subject to Consultant's reasonable availability for such
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performance, in view of the nature of the requested service and the amount of
notice provided by Compscript. Consultant shall devote such time and effort to
the performance of the Consultation Services as it shall determine is reasonably
necessary for such performance. Compscript shall furnish to Consultant all
information relevant to the performance by Consultant of the Consultation
Services under this Agreement, so as to permit Consultant to know all the facts
material to the Consultation Services to be rendered, and all material or other
information reasonably requested by Consultant.
(c) Anything to the contrary herein notwithstanding, it is agreed that
Consultant's services will not include any services that constitute the
rendering of legal opinions or performance of work that is in the ordinary
purview of a certified public accountant or any work that is in the ordinary
purview of a registered broker/dealer or in connection with or related to the
offer or sale of securities of Compscript in a capital raising transaction.
11. NON-EXCLUSIVE SERVICES. Compscript understands that Consultant is
currently providing certain advisory and financial consulting services to other
individuals and entities and agrees that Consultant is not prevented or barred
from rendering services of the same nature or a similar nature to any other
individuals or entities and acknowledges that such Services may from time to
time conflict with the timing of and the rendering of Consultant's services. In
addition, Consultant understands and agrees that Compscript shall not be
prevented or barred from retaining other persons or entities to provide services
of the same or similar nature as those provided by Consultant.
12. CONSULTANT NOT AN AGENT OR EMPLOYEE. Consultant's obligations under
this Agreement consist solely of the services described herein. In no event
shall Consultant be considered to be acting as an employee or agent of
Compscript or otherwise representing or binding Compscript. For the purposes of
this Agreement, Consultant is an independent contractor. All final decisions
with respect to acts of Compscript or its affiliates, whether or not made
pursuant to or in reliance on information or advice furnished by Consultant
hereunder, shall be those of Compscript or such affiliates and Consultant shall,
under no circumstances, be liable for any expenses incurred or losses suffered
by Compscript as a consequence of such actions. Consultant agrees that all of
his work product relating to the Services to be rendered pursuant to this
agreement, shall become the exclusive property of Compscript. The parties
acknowledge that the Consultation Services provided by the Consultant hereunder
are not in connection with the offering or sale of securities of Compscript in a
capital raising transaction.
13. LIABILITY OF CONSULTANT. In furnishing Compscript with management
advice and other services as herein provided,
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Consultant shall not be liable to Compscript or its creditors for errors of
judgment or for anything except malfeasance or gross negligence in the
performance of his duties or reckless disregard of his obligations and duties
under the terms of this Agreement.
It is further understood and agreed that Consultant may rely upon
information furnished to him reasonably believed to be accurate and reliable and
that, except as set forth herein in the first paragraph of this Section 13,
Consultant shall not be accountable for any loss suffered by Compscript by
reason of Compscript's action or non-action on the basis of any advice,
recommendation or approval of Consultant.
The parties further acknowledge that Consultant undertakes no
responsibility for the accuracy of any statements to be made by management
contained in press releases or other communications, including, but not limited
to, filings with the Securities and Exchange Commission and the NASD.
14.INDEMNIFICATION.
(a) Compscript agrees to indemnify and hold harmless the Consultant
from and against any and all losses, claims, damages, liabilities and expenses
(including, without limitation reasonable attorneys' fees and costs incurred in
the investigation, defense and settlement of the matter) suffered or incurred by
Consultant which arises out of this Agreement or otherwise out of the
performance by the Consultant of his obligations hereunder, unless, such losses,
claims, damages, liabilities or expenses are found by a final determination of a
court of competent jurisdiction to have arisen out of bad faith, gross
negligence or malfeasance of the Consultant in performing his services hereunder
(pending any such final determination, the indemnification and reimbursement
provision of this Agreement shall apply and Compscript shall be obligated to
reimburse the Consultant for his expenses provided, however, that the Consultant
shall reimburse Compscript for any such expenses if it is ultimately determined
that the Consultant was not entitled to indemnification hereunder). If for any
reason the foregoing indemnification is unavailable to the Consultant, or
insufficient to hold him harmless, then Compscript shall contribute to the
amount paid or payable by the Consultant as a result of such loss, claim, damage
or liability in such proportion as is appropriate to reflect not only the
relative benefits received by Compscript on the one hand and the Consultant on
the other hand, but also the relative fault of Compscript and the Consultant, as
well as any other relevant equitable considerations. The reimbursement,
indemnity and contribution obligations of Compscript under this paragraph shall
be in addition to any liability which Compscript may otherwise have and shall be
binding and inure to the benefit of any respective successors, assigns, heirs
and personal representatives of Compscript and the Consultant.
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(b) The Consultant agrees to give Compscript an opportunity to
participate in the defense or preparation of the defense of any action brought
against the Consultant to enforce any such claim or liability and Compscript
shall have the right so to participate
15. NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing and delivered by hand delivery,
registered first-class mail, telex, or telecopier, addressed as follows:
If to Compscript: Compscript, Inc.
0000 Xxxxxx Xxxxx Xxxxxxx
Xxxx Xxxxx, XX 00000
Attention: Xxxxx Xxxxx,
Chief Executive Officer
Telephone No. (000) 000-0000
Telecopier No. ________________
With a copy to: Xxxx X. Xxxxxxxxx, Esq.
Atlas, Xxxxxxxx, Trop & Borkson, P.A.
000 Xxxx Xxx Xxxx Xxxxxxxxx
Xxxx Xxxxxxxxxx, XX 00000
Telephone No. (000) 000-0000
Telecopier No. (000) 000-0000
If to Consultant: X.X. Xxxxxxxx & Co., Inc.
Three Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxxxxxx
and Xxxx Xxxxxxx
Telephone No. (000) 000-0000
Telecopier No. (000) 000-0000
With a copy to: Xxxx X. Xxxxxx, Esq.
Rosenman & Colin
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No. (000) 000-0000
Telecopier No. (000) 000-0000
All such notices and communications shall be deemed to have been
received: upon delivery if delivered by hand; two business days after being
deposited in the mail, postage prepaid, if mailed; when answered back if
telexed; and when receipt is acknowledged if telecopied.
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16. SEVERABILITY. In the event that any provision of this Agreement
shall be deemed unenforceable or invalid under any applicable law or be so held
by applicable court decision, such unenforceability or invalidity will not
render this Agreement unenforceable or invalid as a whole, and, in such event,
such provision will be changed and interpreted so as to accomplish the
objectives of such provision within the limits of applicable law or applicable
court decision.
17. GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York.
18. COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall constitute an original and all of which when taken together
shall constitute one agreement.
19. AMENDED AND RESTATED AGREEMENT. This Agreement amends and restates
in its entirety that certain Option and Consulting Agreement, dated as of May 1,
1996, as it may have been amended or supplemented prior to the date hereof, by
and between Compscript and Consultant.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
COMPSCRIPT, INC.
By: /S/ XXXXX XXXXX
----------------------
Xxxxx Xxxxx
Chief Executive Officer
X.X. XXXXXXXX & CO., INC.
By: /S/ XXXX XXXXXXX
----------------------
Xxxx Xxxxxxx
President
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APPENDIX A
DILUTION PROTECTION
a. ADJUSTMENTS GENERALLY. The Exercise Price, and the number of Option
Shares (or other securities or property) issuable upon exercise of the Option
shall be subject to adjustment from time to time upon the occurrence of certain
events, as provided in this Appendix A.
b. COMMON STOCK REORGANIZATION. If Compscript shall subdivide its
outstanding shares of Common Stock into a greater number of shares or
consolidate its outstanding shares of Common Stock into a smaller number of
shares (any such event being called a "Common Stock Reorganization"), then (a)
the Exercise Price shall be adjusted, effective immediately after the record
date at which the holders of shares of Common Stock are determined for purposes
of such Common Stock Reorganization, to a price determined by multiplying the
Exercise Price in effect immediately prior to such record date by a fraction,
the numerator of which shall be the number of shares of Common Stock outstanding
on such record date before giving effect to such Common Stock Reorganization and
the denominator of which shall be the number of shares of Common Stock
outstanding after giving effect to such Common Stock Reorganization, and (b) the
number of Option Shares subject to purchase upon exercise of the Option shall be
adjusted, effective at such time, to a number determined by multiplying the
number of Option Shares immediately before such Common Stock Reorganization by a
fraction, the numerator of which shall be the number of shares outstanding after
giving effect to such Common Stock Reorganization and the denominator of which
shall be the number of shares of Common Stock outstanding immediately before
such Common Stock Reorganization.
c. SPECIAL DIVIDENDS. If Compscript shall issue or distribute to all or
substantially all holders of shares of Common Stock evidences of indebtedness,
any other securities of Compscript or any cash, property or other assets, and if
such issuance or distribution does not constitute a regular cash dividend out of
surplus or net profits legally available therefor (determined in accordance with
generally accepted accounting principles, consistently applied) or a Common
Stock Reorganization (any such nonexcluded event being herein called a "Special
Dividend"), (a) the number of Option Shares issuable upon exercise of the Option
shall be increased (but not decreased), effective immediately after the record
date at which the holders of shares of Common Stock are determined for purposes
of such Special Dividend, to a number determined by multiplying the number of
Option Shares issuable upon exercise immediately before such Special Dividend by
a fraction, the numerator of which shall be the Fair Market Value per share of
outstanding Common Stock on such record date and the denominator of which
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shall be the Fair Market Value per share of outstanding Common Stock of
Compscript on such record date less the then Fair Market Value of the evidences
of indebtedness, securities, cash, or property or other assets issued or
distributed in such Special Dividend with respect to one share of Common Stock,
and (b) the Exercise Price shall be decreased (but not increased) to a price
determined by multiplying the Exercise Price then in effect by a fraction, the
numerator of which shall be the number of Option Shares issuable upon exercise
of the Option immediately before such Special Dividend and the denominator of
which shall be the number of Option Shares issuable upon exercise of the Option
immediately after such Special Dividend. If Compscript repurchases shares of
Common Stock for a per share consideration which exceeds the Fair Market Value
(as calculated immediately prior to such repurchase), then the number of Option
Shares issuable upon exercise of the Option and the Exercise Price shall be
adjusted in accordance with the foregoing provisions, as if, in lieu of such
repurchases, Compscript had distributed a Special Dividend having a Fair Market
Value equal to the Fair Market Value of all property and cash expended in the
repurchases.
d. COMPSCRIPT REORGANIZATION. If there shall be any consolidation or
merger to which Compscript is a party, other than a consolidation or a merger in
which Compscript is a continuing corporation and which does not result in any
reclassification of, or change (other than a Common Stock Reorganization or a
change in par value), in, outstanding shares of Common Stock, or any sale or
conveyance of the property of Compscript as an entirety or substantially as an
entirety (any such event being called a "Compscript Reorganization"), then,
effective upon the effective date of such Compscript Reorganization, Consultant
shall have the right to purchase, upon exercise of the Option, the kind and
amount of shares of stock and other securities and property (including cash, but
if all cash, then the Option must be exercised within 30 days after such
effective date, at the end of which period the Option shall terminate) which
Consultant would have owned or have been entitled to receive after such
Compscript Reorganization if the Option had been exercised immediately prior to
such Compscript Reorganization, assuming Consultant (i) is not a person with
which Compscript consolidated or into which Compscript merged or which merged
into Compscript or to which such sale or conveyance was made, as the case may be
("constituent person"), or an affiliate of a constituent person and (ii) failed
to exercise its rights of election, if any, as to the kind or amount of
securities, cash or other property receivable upon such Compscript
Reorganization (provided that if the kind or amount of securities, cash or other
property receivable upon such Compscript Reorganization is not the same for each
share of Common Stock held immediately prior to such consolidation, merger, sale
or conveyance by other than a constituent person or an affiliate thereof and in
respect of which such rights of election shall not have been exercised
("non-electing share"),
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then for the purposes of this Appendix A the kind and amount of shares of stock
and other securities or other property (including cash) receivable upon such
Compscript Reorganization shall be deemed to be the kind and amount so
receivable per share by a plurality of the non-electing shares). As a condition
to effecting any Compscript Reorganization, Compscript or the successor or
surviving corporation thereto, as the case may be, shall execute and deliver to
Consultant an agreement as to Consultant's rights in accordance with this
Subsection (d), providing for subsequent adjustments as nearly equivalent as may
be practicable to the adjustments provided for in this Appendix A. The
provisions of this Subsection (d) shall similarly apply to successive Compscript
Reorganizations.
e. ADJUSTMENT RULES. (1) Any adjustments pursuant to this Appendix A
shall be made successively whenever an event referred to herein shall occur.
(2) If Compscript shall set a record date to determine the holders of
shares of Common Stock for purposes of a Common Stock Reorganization, Special
Dividend or Compscript Reorganization, and shall legally abandon such action
prior to effecting such action, then no adjustment shall be made pursuant to
this Appendix A in respect of such action.
(3) No adjustment in the number of Option Shares issuable upon exercise
of the Option or in the Exercise Price shall be made hereunder unless such
adjustment increases or decreases such amount or price by one percent or more,
but any such lesser adjustment shall be carried forward and shall be made at the
time and together with the next subsequent adjustment which together with any
adjustments so carried forward shall serve to adjust such amount or price by one
percent or more.
(4) No adjustment in the Exercise Price shall be made hereunder if such
adjustment would reduce the Exercise Price to an amount below par value of the
Common Stock.
(5) "Fair Market Value" means the fair market value of the business or
property in question, as determined in good faith by the Board of Directors of
Compscript; PROVIDED, HOWEVER, that the Fair Market Value of any security for
which a Closing Price (as defined below) is available shall be the Market Price
(as defined below) of such security. The Fair Market Value of Compscript shall
be the Fair Market Value of such (including subsidiaries) as a going concern.
Notwithstanding the foregoing, if, at any date of determination of the Fair
Market Value of Compscript, the securities of any class shall then be publicly
traded, the Fair Market Value of Compscript on such date shall be the Market
Price on such date multiplied by the number of securities then outstanding.
"Closing Price" with respect to any security on any day means (a) if such
security is listed or admitted for trading on a national securities exchange,
the reported last sales price
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regular way or, if no such reported sale occurs on such day, the average of the
closing bid and asked prices regular way on such day, in each case as reported
in the principal consolidated transaction reporting system with respect to
securities listed on the principal national securities exchange on which such
class of security is listed or admitted to trading, or (b) if such security is
not listed or admitted to trading on any national securities exchange, the last
quoted sales price, or, if not so quoted, the average of the high bid and low
asked prices in the over-the-counter market on such day as reported by The
National Association of Securities Dealers, Inc. Automated Quotation System or
any comparable system then in use or, if not so reported, as reported by any New
York Stock Exchange member firm reasonably selected by Compscript for such
purpose. "Market Price" with respect to any security on any day means the
average of the daily Closing Prices of a share or unit of such security for the
10 consecutive business days ending on the most recent business day for which a
Closing Price is available; PROVIDED, HOWEVER, that in the event that the Market
Price is determined during a period following the announcement by Compscript of
(A) a dividend or distribution, or (B) any subdivision, combination or
reclassification of its securities and prior to the expiration of 20 business
days after the ex-dividend date for such dividend or distribution, or the record
date for such subdivision, combination or reclassification, then, and in each
such case, the Market Price shall be appropriately adjusted to reflect the
current market price per share equivalent of its securities.
Upon each determination of Fair Market Value hereunder, Compscript
shall promptly give written notice thereof to Consultant, setting forth in
reasonable detail the calculation of such Fair Market Value and the method and
basis of determination thereof, as the case may be. If Consultant shall disagree
with such determination and shall, by written notice to Compscript given within
15 days after Compscript's notice of such determination, elect to dispute such
determination, such dispute shall be resolved in accordance with this Subsection
(f)(5). In the event that a determination of Fair Market Value is disputed, such
dispute shall be submitted, at Compscript's choice and expense, to a nationally
recognized independent investment banking firm that has not provided investment
banking services to Compscript within two years of the selection date; and the
determination by such firm of Fair Market Value shall be binding on Compscript
and Consultant (the "Appraisal Procedure").
(6) All references in this Appendix A to the "Exercise Price" shall,
for purposes of making any required adjustments thereto pursuant to this
Appendix A, mean each Exercise Price set forth in Section 2 of the Agreement to
which this Appendix A is attached (as each such Exercise Price may be adjusted
from time to time pursuant to the provisions of this Appendix A) applicable to
Option Shares which are, at the time of any such adjustment, subject to issuance
upon exercise of the Option.
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f. PROCEEDINGS PRIOR TO ANY ACTION REQUIRING ADJUSTMENT. As a condition
precedent to the taking of any action which would require an adjustment pursuant
to this Appendix A, Compscript shall take any action which may be necessary in
order that Compscript may thereafter validly and legally issue as fully paid and
nonassessable all Option Shares which Consultant is entitled to receive upon
exercise of the Option.
g. NOTICE OF ADJUSTMENT. Not less than 10 nor more than 60 days prior
to the record date or effective date, as the case may be, of any action which
requires or might require an adjustment or readjustment pursuant to this
Appendix A, Compscript shall give notice to Consultant of such event, describing
such event in reasonable detail and specifying the record date or effective
date, as the case may be, and, if determinable, the required adjustment and the
computation thereof. If the required adjustment is not determinable at the time
of such notice, Compscript shall give notice to Consultant of such adjustment
and computation promptly after such adjustment becomes determinable.
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APPENDIX B
REGISTRATION PROCEDURES
1. REGISTRATION.
a. REQUIRED REGISTRATION PROCEDURES. Compscript shall, as
promptly as practicable but no later than April 15, 1997, at Compscript's sole
cost and expense (other than the fees and disbursements of counsel for
Consultant and the underwriting discounts, if any, payable in respect of the
Option Shares sold by Consultant) prepare and file with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S- 8 or
another available form of registration statement sufficient to permit the public
offering and sale of the Option Shares through the facilities of the Nasdaq
National Market or any other appropriate securities exchange, if any, on which
the Common Stock is being sold or on the over-the-counter market, and will use
its reasonable best efforts through its officers, directors, auditors, and
counsel to cause such registration statement to become effective as promptly as
practicable.
b. PIGGYBACK REGISTRATION. In addition to Compscript's
obligations under Section 1.a. of this Appendix B and not in limitation thereof,
Compscript shall give Consultant at least 30 days' prior written notice of each
filing by Compscript of a registration statement (other than a registration
statement on Form S-4 or on any successor form thereto) with the Commission. If
requested by Consultant in writing within 20 days after receipt of any such
notice, Compscript shall, at Compscript's sole expense (other than the fees and
disbursements of counsel for Consultant, and the underwriting discounts, if any,
payable in respect of the Option Shares sold by Consultant), register all or, at
Consultant's option, any portion of the Option Shares, concurrently with the
registration of such other securities, all to the extent requisite to permit the
public offering and sale of the Option Shares through the facilities of the
Nasdaq National Market or any other securities exchange, if any, on which the
Common Stock is being sold or on the over-the-- counter market, and will use its
reasonable best efforts through its officers, directors, auditors, and counsel
to cause such registration statement to become effective as promptly as
practicable. For purposes of this Appendix B, "Option Shares" shall not include
Option Shares which have been previously sold pursuant to a registration
statement or Rule 144 promulgated under the Securities Act. If the managing
underwriter of any such offering shall determine and advise Compscript that, in
its opinion, the distribution of all or a portion of the Option Shares requested
to be included in the registration concurrently with the securities being
registered by Compscript would materially adversely affect the distribution of
such securities
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by Compscript then Compscript will include in such registration first, the
securities that Compscript proposes to sell and second, the Option Shares
requested to be included in such registration, to the extent permitted by the
managing underwriter. In the event Compscript is advised by the staff of the
Commission, NASDAQ, self-regulatory or state securities agency that the
inclusion of the Option Shares will prevent, preclude or materially delay the
effectiveness of a registration statement filed, Compscript, in good faith, may
amend such registration statement to exclude the Option Shares.
c. In the event of a registration pursuant to the provisions
of this Appendix B, Compscript shall use its reasonable best efforts to cause
the Option Shares so registered to be registered or qualified for sale under the
securities or blue sky laws of such jurisdictions as Consultant may reasonably
request; PROVIDED, HOWEVER, that Compscript shall not be required to qualify to
do business in any state by reason of this Subsection c. in which it is not
otherwise required to qualify to do business.
d. Compscript shall keep effective any registration or
qualification contemplated by this Appendix B and shall from time to time amend
or supplement each applicable registration statement, preliminary prospectus,
final prospectus, application, document and communication for such period of
time as shall be required to permit Consultant to complete the offer and sale of
the Option Shares covered thereby. Compscript shall be required to keep in
effect any registration or qualification undertaken in accordance with this
Appendix B until the earlier of (i) April 30, 1998 and (ii) the date on which
all Option Shares issuable upon the exercise of the Option shall have been sold.
e. In the event of a registration pursuant to the provisions
of this Appendix B, Compscript shall furnish to Consultant such reasonable
number of copies of the registration statement and of each amendment and
supplement thereto (in each case, including all exhibits), of each prospectus
contained in such registration statement and each supplement or amendment
thereto (including each preliminary prospectus), all of which shall conform to
the requirements of the Securities Act and the rules and regulations thereunder,
and such other documents, as Consultant may reasonably request to facilitate the
disposition of the Option Shares included in such registration.
f. Compscript shall notify Consultant promptly when such
registration statement has become effective or a supplement to any prospectus
forming a part of such registration statement has been filed.
g. Compscript shall advise Consultant, promptly after it
shall receive notice or obtain knowledge of the issuance of any stop order by
the Commission suspending the effectiveness of
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such registration statement, or the initiation or threatening of any proceeding
for that purpose and promptly use its reasonable best efforts to prevent the
issuance of any stop order or to obtain its withdrawal if such stop order should
be issued.
h. Compscript shall promptly notify Consultant 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, would
include 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 in the light of the circumstances then existing, and at the
reasonable request of Consultant prepare and furnish to it such number of copies
of a supplement to or an amendment of such prospectus as may be necessary so
that, as thereafter delivered to the purchasers of such Option Shares or
securities, such prospectus shall not include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading in the light of the circumstances
under which they were made.
i. If requested by the underwriter for any underwritten
offering of Option Shares, Compscript and Consultant will enter into an
underwriting agreement with such underwriter for such offering, which shall be
reasonably satisfactory in substance and form to Compscript, Compscript's
counsel, Consultant, Consultant's counsel and the underwriter, and such
agreement shall contain such representations and warranties by Compscript and
Consultant and such other terms and provisions as are customarily contained in
an underwriting agreement with respect to secondary distributions solely by
selling stockholders, including, without limitation, indemnities substantially
to the effect and to the extent provided in Section 2 of this Appendix B.
j. Compscript agrees that until all the Option Shares have
been sold under a registration statement or pursuant to Rule 144 promulgated
under the Securities Act, it shall, upon becoming subject to the reporting
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), use its reasonable best efforts to keep current in filing all reports,
statements and other materials required to be filed with the Commission to
permit Compscript to maintain its eligibility to use a Form S-3 registration
statement and to permit Consultant to sell the Option Shares under Rule 144.
k. Compscript shall furnish to Consultant and to each
underwriter, if any, a signed counterpart, addressed to Consultant or each
underwriter, of (i) an opinion of counsel to Compscript, dated the effective
date of such registration statement (and, if such registration includes an
underwritten
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public offering, an opinion dated the date of the closing under the underwriting
agreement), and (ii) a "cold comfort" letter dated the effective date of such
registration statement (and, if such registration includes an underwritten
public offering, a letter dated the date of the closing under the underwriting
agreement) signed by the independent public accountants who have issued a report
on Compscript's financial statements included in such registration statement, in
each case covering substantially the same matters with respect to such
registration statement (and the prospectus included therein) and, in the case of
such accountants' letter, with respect to events subsequent to the date of such
financial statements, as are customarily covered in opinions of issuer's counsel
and in accountants' letters delivered to underwriters in underwritten public
offerings of securities provided, however, that the terms of this Subsection k
shall not apply if the Option Shares are registered in a "piggyback"
registration in which the party seeking registration does not receive an opinion
of counsel or a "cold comfort letter."
l. Consultant understands that Compscript makes no
representations of any kind concerning its intent or ability to offer or sell
any of the Option Shares in a public offering or otherwise and that its sole
right to have the Option Shares registered under the Securities Act is contained
in this Agreement.
2. INDEMNIFICATION.
a. Subject to the conditions set forth below, Compscript
agrees to indemnify and hold harmless Consultant, its officers, directors,
partners, employees, agents, and counsel, and each person, if any, who controls
any such person within the meaning of Section 15 of the Securities Act or
Section 20(a) of the Exchange Act from and against any and all loss, liability,
charge, claim, damage, and expense whatsoever (which shall include, for all
purposes of this Section 2, but not be limited to, attorneys' fees and any and
all reasonable expenses whatsoever incurred in investigating, preparing, or
defending against any litigation, commenced or threatened, or any claim
whatsoever, and any and all amounts paid in settlement of any claim or
litigation) as and when incurred, arising out of, based upon, or in connection
with (i) any untrue statement or alleged untrue statement of a material fact
contained (A) in any registration statement, preliminary prospectus, or final
prospectus (as from time to time amended and supplemented) or any amendment or
supplement thereto, relating to the sale of any of the Option Shares or (B) in
any application or other document or communication (in this Section 2
collectively called an "application") executed by or on behalf of Compscript or
based upon written information furnished by or on behalf of Compscript filed in
any jurisdiction in order to register or qualify any of the Option Shares under
the securities or blue sky laws thereof
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or filed with the Commission or any securities exchange; or any omission or
alleged omission to state a material fact required to be stated therein or
necessary to make the statements made therein not misleading, unless (x) such
statement or omission was made in reliance upon and in conformity with written
information furnished to Compscript with respect to Consultant by or on behalf
of Consultant expressly for inclusion in any registration statement, preliminary
prospectus, or final prospectus, or any amendment or supplement thereto, or in
any application, as the case may be, or (y) such loss, liability, charge, claim,
damage or expense arises out of Consultant's failure to comply with the terms
and provisions of this Agreement, or (ii) any breach of any representation,
warranty, covenant, or agreement of Compscript contained in this Agreement. The
foregoing agreement to indemnify shall be in addition to any liability
Compscript may otherwise have, including liabilities arising under this
Agreement.
If any action is brought against Consultant or any of its
officers, directors, partners, employees, agents, or counsel, or any controlling
persons of such person (an "indemnified party") in respect of which indemnity
may be sought against Compscript pursuant to the foregoing paragraph, such
indemnified party or parties shall promptly notify Compscript in writing of the
institution of such action (but the failure so to notify shall not relieve
Compscript from any liability other than pursuant to this Section 2(a)) and
Compscript shall promptly assume the defense of such action, including the
employment of counsel (reasonably satisfactory to such indemnified party or
parties) provided that the indemnified party shall have the right to employ its
or their own counsel in any such case, but the fees and expenses of such counsel
shall be at the expense of such indemnified party or parties unless the
employment of such counsel shall have been authorized in writing by Compscript
in connection with the defense of such action or Compscript shall not have
promptly employed counsel reasonably satisfactory to such indemnified party or
parties to have charge of the defense of such action or such indemnified party
or parties shall have reasonably concluded that there may be one or more legal
defenses available to it or them or to other indemnified parties which are
different from or additional to those available to Compscript, in any of which
events such fees and expenses shall be borne by Compscript and Compscript shall
not have the right to direct the defense of such action on behalf of the
indemnified party or parties. Anything in this Section 2 to the contrary
notwithstanding, Compscript shall not be liable for any settlement of any such
claim or action effected without its written consent, which shall not be
unreasonably withheld. Compscript shall not, without the prior written consent
of each indemnified party that is not released as described in this sentence,
settle or compromise any action, or permit a default or consent to the entry of
judgment in or otherwise seek to terminate any pending or threatened action, in
respect of which indemnity may be sought
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hereunder (whether or not any indemnified party is a party thereto) unless such
settlement, compromise, consent, or termination includes an unconditional
release of each indemnified party from all liability in respect of such action.
Compscript agrees promptly to notify Consultant of the commencement of any
litigation or proceedings against Compscript or any of it officers or directors
in connection with the sale of any Option Shares or any preliminary prospectus,
prospectus, registration statement, or amendment or supplement thereto, or any
application relating to any sale of any Option Shares.
b. Consultant agrees to indemnify and hold harmless
Compscript, each director of Compscript, each officer of Compscript who shall
have signed any registration statement covering Option Shares held by
Consultant, each other person, if any, who controls Compscript within the
meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange
Act, and its or their respective counsel, to the same extent as the foregoing
indemnity from Compscript to Consultant in Section 2(a) but only with respect to
statements or omissions, if any, made in any registration statement, preliminary
prospectus, or final prospectus (as from time to time amended and supplemented)
or any amendment or supplement thereto, or in any application, in reliance upon
and in conformity with written information furnished to Compscript with respect
to Consultant by or on behalf of Consultant, expressly for inclusion in any such
registration statement, preliminary prospectus, or final prospectus, or any
amendment or supplement thereto, or in any application, as the case may be. If
any action shall be brought against Compscript or any other person so
indemnified based on any such registration statement, preliminary prospectus, or
final prospectus, or any amendment or supplement thereto, or in any application,
and in respect of which indemnity may be sought against Consultant pursuant to
this Section 2(b) Consultant shall have the rights and duties given to
Compscript, and Compscript and each other person so indemnified shall have the
rights and duties given to the indemnified parties, by the provisions of Section
2(a).
c. To provide for just and equitable contribution, if (i) an
indemnified party makes a claim for indemnification pursuant to Section 2(a) or
2(b) (subject to the limitations thereof) but it is found in a final judicial
determination, not subject to further appeal, that such indemnification may not
be enforced in such case, even though this Agreement expressly provides for
indemnification in such case, or (ii) any indemnified or indemnifying party
seeks contribution under the Securities Act, the Exchange Act or otherwise, then
Compscript (including for this purpose any contribution made by or on behalf of
any director of Compscript, any officer of Compscript who signed any such
registration statement, any controlling person of Compscript, and its or their
respective counsel) as one entity, and Consultant (including for this purpose
any contribution by or
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on behalf of an indemnified party) as a second entity, shall contribute to the
losses, liabilities, claims, damages, and expenses whatsoever to which any of
them may be subject, on the basis of relevant equitable considerations such as
the relative fault of Compscript and Consultant in connection with the facts
which resulted in such losses, liabilities, claims, damages, and expenses. The
relative fault, in the case of an untrue statement, alleged untrue statement,
omission, or alleged omission shall be determined by, among other things,
whether such statement, alleged statement, omission or alleged omission relates
to information supplied by Compscript or by Consultant, and the parties'
relative intent, knowledge, access to information, and opportunity to correct or
prevent such statement, alleged statement, omission, or alleged omission.
Compscript and Consultant agree that it would be unjust and inequitable if the
respective obligations of Compscript and Consultant for contribution were
determined by pro rata or per capita allocation of the aggregate losses,
liabilities, claims, damages, and expenses (even if Consultant and the other
indemnified parties were treated as one entity for such purpose) or by any other
method of allocation that does not reflect the equitable considerations referred
to in this Section 2(c). No person guilty of a fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who is not guilty of such fraudulent
misrepresentation. For purposes of this Section 2(c) each person, if any, who
controls Consultant within the meaning of Section 15 of the Securities Act or
Section 20(a) of the Exchange Act and each officer, director, partner, employee,
agent, and counsel of Consultant or control person shall have the same rights to
contribution as Consultant or control person and each person, if any, who
controls Compscript within the meaning of Section 15 of the Securities Act or
Section 20(a) of the Exchange Act, each officer of Compscript who shall have
signed any such registration statement, each director of Compscript, and its or
their respective counsel shall have the same rights to contribution as
Compscript, subject to each case to the provisions of this Section 2(c).
Anything in this Section 2(c) to the contrary notwithstanding, no party shall be
liable for contribution with respect to the settlement of any claim or action
effected without its written consent. This Section 2(c) is intended to supersede
any right to contribution under the Securities Act, the Exchange Act or
otherwise.
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