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REGISTRATION AGREEMENT
THIS REGISTRATION AGREEMENT is made as of the _________ day of
October, 1997 by and between PhyMatrix Corp., a Delaware corporation (the
"Company"), and the stockholders of the Company listed on Schedule A attached
hereto (individually, a "Stockholder" and, collectively, the "Stockholders").
WHEREAS, the Stockholders are the holders of certain shares of Common
Stock of the Company, $.01 par value (the "Common Stock"); and
WHEREAS, each of the Stockholders has requested certain rights to
require the Company to register for public distribution up to the number of
shares of his or her Common Stock as are listed on Schedule A hereto and the
Company is willing to grant such rights.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1 . Certain Definitions
As used in this Agreement, the following terms shall have the
following respective meanings:
"Closing Date" means the date on which the merger of PhyMatrix
Acquisition I, Inc. (a wholly-owned subsidiary of the Company) with and into
Clinical Studies, Ltd. becomes effective under the General Corporation Law of
the State of Delaware.
"Commission" means the Securities and Exchange Commission, or
any other Federal agency at the time administering the Securities Act (as
hereinafter defined).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any similar Federal statute, and the rules and regulations of the
Commission promulgated under such Act, as they each may, from time to time, be
in effect.
"Market Value" means the average closing price per share of
the Common Stock as quoted on The Nasdaq Stock Market for the five (5) business
days preceding any registration request pursuant to this Agreement.
"Registration Statement" means a registration statement filed
by the Company with the Commission for a public offering and sale of securities
of the Company (other than a registration statement on Form S-8 or Form S-4, or
their successors, or any other form for public offering of a debt security or
any registration statement covering only securities proposed to be issued in
exchange for securities or assets of another corporation).
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"Registrable Shares" means an aggregate of the shares of
Common Stock owned by the Stockholders and set forth on Schedule A hereto and
any shares of Common Stock of the Company issued (or issuable upon the
conversion of any warrant, right, or other security which is issued) in respect
of or in exchange for or in replacement of such shares of Common Stock (because
of stock splits, stock dividends, reclassifications, recapitalizations or
similar events).
"Securities Act" means the Securities Act of 1933, as amended,
or any similar Federal statute, and the rules and regulations of the Commission
promulgated under such Act, as they each may, from time to time, be in effect.
"Shares" means all shares of Common Stock of the Company owned
by the Stockholders.
"Stockholders" means those persons identified on Schedule A
hereto, any person who becomes a party to this Agreement pursuant to Section
15(b) and any persons or entities to whom the rights granted under this
Agreement are transferred as permitted by Section 12 hereof. Notwithstanding
anything to the contrary in this Agreement, for the purposes of Section 2 and
Section 3 hereof, Xxxxxxx Xxxxxxx and Xxxxxx Xxxxxxx, as Trustee of each of The
Xxxxxxxxx Xxxxxxx 1993 Qualified Sub-Chapter S Trust and The Xxxxx Xxxxxxx 1993
Qualified Sub-Chapter S Trust, shall be treated as one individual Stockholder.
2. "Piggyback" Registration
(a) If (without limit as to number) the Company proposes
to file a Registration Statement in connection with an underwritten public
offering, it will, prior to such filing, give written notice to all
Stockholders of its intention to do so, and, upon the written request of a
Stockholder or Stockholders given within twenty (20) days after the Company
provides such notice (which request shall state the intended method of
disposition of such Registrable Shares), the Company shall use its best efforts
to cause (x) up to 100,000 Registrable Shares per Stockholder, or (y) following
one year from the Closing Date, all Registrable Shares of any requesting
Stockholder, that the Company has been requested to register by such
Stockholder or Stockholders, to be registered under the Securities Act;
provided, however, that the Company shall have the right to postpone or
withdraw any registration effected pursuant to this Section 2 without
obligation to any Stockholder.
(b) In connection with any underwritten offering
involving a registration pursuant to this Section 2, the Company shall not be
required to include any Registrable Shares in such underwriting unless the
requesting Stockholders accept the terms of the underwriting as agreed upon
between the Company and the underwriters selected by it, provided that the
terms of the underwriting applicable to the Stockholders are reasonable and
customary with respect to selling stockholders and are consistent with standard
underwriting practice.
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(c) If, in the reasonable opinion of the managing
underwriter in an underwritten public offering, the registration of all or part
of the Registrable Shares which the holders have requested to be included
pursuant to this Section 2 would materially and adversely affect such public
offering, then the Company shall be required to include in the underwriting
only that number of Registrable Shares, if any, which the managing underwriter
reasonably believes in good faith may be sold without causing such adverse
effect; provided, however, that the aggregate Market Value of the Registrable
Shares requested to be included in such registration may not be reduced to less
than ten percent (10%) of the total Market Value of all securities included in
such registration. If the number of Registrable Shares to be included in the
underwriting in accordance with the foregoing is less than the total number of
shares which the holders of Registrable Shares have requested to be included,
then the holders of Registrable Shares who have requested registration shall
participate in the underwriting pro rata based upon their total ownership of
the aggregate number of shares requested to be included in such registration by
the Stockholders and by holders hereafter granted registration rights (or in
any other proportion as agreed upon by all holders having such rights).
(d) Any Registrable Shares registered pursuant to this
Section 2 shall be in addition to, and not in limitation of, the Registrable
Shares which may be sold by the Stockholders pursuant to Section 3 hereof.
3. Demand Registrations.
(a) Within ten (10) business days following the Closing
Date, the Company shall file a Registration Statement with the Commission
relating to the resale of all of each Stockholder's Registrable Shares.
Thereupon, the Company shall use its best efforts to effect the registration
on Form S-3, or such successor form, of all Registrable Shares which
the Company has been requested to register under this Section 3. Any
Registration Statement filed pursuant to this Section 3 shall be for an
offering to be made on a delayed or continuous basis pursuant to Rule 415 of
the Securities Act and such Registration Statement shall provide that following
the Closing Date no more than 100,000 Registrable Shares shall be sold by any
Stockholder during the thirty (30) day period ending on the 15th day of each
month commencing December 15, 1997 and ending October 15, 1998, provided (i)
that during the first 30 day period in which Registrable Shares may be sold,
each of Drs. Xxxxxxx and Xxxxx shall be entitled to sell an additional 20,000
Registrable Shares apiece, such additional shares to be in addition to, and not
in limitation of, any rights of the Stockholders to sell any Registrable Shares
under this section 3, and (ii) that any Registrable Shares which cannot be sold
in any such thirty (30) day period because such Registration Statement has not
yet become effective, may be sold immediately upon its becoming effective, and
provided, further, that no limitation shall apply on and after October 15,
1998. No term or provision of this Agreement shall be construed to restrict
any Stockholder's ability to transfer its Registrable Shares to any party by
any means other than a Registration Statement filed pursuant hereto.
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(b) In the event that Registrable Shares are sold
pursuant to a Registration Statement in an underwritten offering pursuant to
this Section 3, the Company agrees to enter into an underwriting agreement
containing customary representations and warranties with respect to the
business and operations of an issuer of the securities being registered and
customary covenants and agreements to be performed by such issuer, including,
without limitation, customary provisions with respect to indemnification by the
Company of the underwriters of such offering.
(c) In the case of any registration effected pursuant to
this Section 3, the Stockholders shall have the right to designate the managing
underwriter in any underwritten offering, subject to the approval of the
Company, which approval may not be unreasonably withheld or delayed.
4. Registration Procedures
If and whenever the Company is required by Section 2 or Section 3 of
this Agreement to use its best efforts to effect the registration of any of the
Registrable Shares under the Securities Act, the Company shall as expeditiously
as possible:
(a) prepare and file with the Commission a Registration
Statement including such Registrable Shares and use its best efforts to cause
that Registration Statement to become effective;
(b) prepare and file with the Commission any amendments
and supplements to the Registration Statement and the prospectus included in
the Registration Statement as may be necessary to keep the Registration
Statement effective until the earlier of (i) two (2) years following the
Closing Date, and (ii) the date on which no Stockholder holds any Registrable
Shares;
(c) furnish to each selling Stockholder such reasonable
numbers of copies of the prospectus, including a preliminary prospectus, in
conformity with the requirements of the Securities Act, and such other
documents as the selling Stockholder may reasonably request in order to
facilitate the public sale or other disposition of the Registrable Shares owned
by the selling Stockholder;
(d) use its best efforts to register or qualify the
Registrable Shares covered by the Registration Statement under the securities
or Blue Sky laws of such states as the selling Stockholders shall reasonably
request, and do any and all other acts and things that may be necessary or
desirable to enable the selling Stockholders to consummate the public sale or
other disposition in such jurisdictions of the Registrable Shares owned by the
selling Stockholders; provided, however, that the Company shall not be required
in connection with this paragraph
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(d) to qualify as a foreign corporation or execute a general consent to
service of process in any jurisdiction;
(e) immediately notify each selling Stockholder under
such Registration Statement and each underwriter, 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 contained in such
Registration Statement, as then in effect, includes an untrue statement of a
material fact or omits to state a material fact required to be stated therein
or necessary to make the statements therein not misleading in the light of the
circumstances then existing and provide selling Stockholders with revised
prospectuses; and
(f) furnish to each selling Stockholder on the date that
Registrable Shares are delivered to the underwriters or other purchasers for
sale in an underwritten offering: (i) an opinion, dated such date, of the
counsel representing the Company for the purposes of such registration, in form
and substance as is customarily given by company counsel to underwriters in an
underwritten public offering, addressed to the underwriters or other purchasers
and to each of the selling Stockholders and (ii) a letter dated such date, from
the independent 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 or other
purchasers and to each of the selling Stockholders.
If the Company has delivered preliminary or final prospectuses to the
selling Stockholders and after having done so the prospectus is amended to
comply with the requirements of the Securities Act, the Company shall promptly
notify the selling Stockholders and, if requested, the selling Stockholders
shall immediately cease making offers of Registrable Shares and return all
prospectuses to the Company. The Company shall promptly provide the selling
Stockholders with revised prospectuses and, following receipt of the revised
prospectuses, the selling Stockholders shall be free to resume making offers of
Registrable Shares.
5. Allocation of Expenses
The Company will pay all Registration Expenses of all registrations
under this Agreement. For purposes of this Section, the term "Registration
Expenses" shall mean all expenses incurred by the Company in complying with
this Agreement, including, without limitation, all registration and filing
fees, exchange listing fees, printing expenses, accounting fees, fees and
disbursements of counsel for the Company, but excluding underwriting discounts
and selling commissions relating to the Registrable Shares and the fees and
expenses of counsel for the selling Stockholders.
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6. Indemnification
(a) In the event of any registration of any of the
Registrable Shares under the Securities Act pursuant to this Agreement, the
Company will indemnify, defend and hold harmless each Stockholder joining in
such registration, each officer, director, partner, legal counsel and
accountant of such Stockholder, each underwriter of such Registrable Shares,
and each other person, if any, who controls such Stockholder or underwriter
within the meaning of the Securities Act or the Exchange Act against any
losses, claims, damages, liabilities or actions, joint or several, to which
such Stockholder, counsel, accountant, underwriter or controlling person may
become subject under the Securities Act, the Exchange Act, state securities
laws or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in any Registration
Statement under which such Registrable Shares were registered under the
Securities Act, any preliminary prospectus or final prospectus contained in
the Registration Statement, or any amendment or supplement to such Registration
Statement, or arise out of or are based upon the omission or alleged omission
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading; and the Company will reimburse or pay upon
the direction of such Stockholder, counsel, accountant, underwriter and each
such controlling person for any legal or any other expenses reasonably incurred
by such seller, counsel, accountant, underwriter or controlling person in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any untrue statement or omission made in such
Registration Statement, preliminary prospectus or prospectus, or any such
amendment or supplement, in reliance upon and in conformity with information
furnished to the Company, orally or in writing, by or on behalf of such
Stockholder, counsel, accountant, underwriter or controlling person
specifically for use in the preparation thereof and, provided, further, that
if any losses, claims or liabilities arise out of or are based on an untrue
statement, alleged untrue statement, omission or alleged omission contained in
any preliminary prospectus which did not appear in the final prospectus and if
the Stockholder delivered a copy of the preliminary prospectus to the person
alleging such damage and failed to deliver a copy of the final prospectus to
such person, the Company shall not have any liability with respect to such
person.
(b) In the event of any registration of any of the
Registrable Shares under the Securities Act pursuant to this Agreement, each
Stockholder participating in any such registration, severally and not jointly,
will indemnify and hold harmless the Company, each of its directors and
officers and each underwriter and each person, if any, who controls the Company
or any such underwriter 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, such directors and officers, underwriter or
controlling person may become subject under the Securities Act, Exchange Act,
state securities laws or other-wise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement
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or alleged untrue statement of a material fact contained in any Registration
Statement under which such Registrable Shares were registered under the
Securities Act, any preliminary prospectus or final prospectus contained in the
Registration Statement, or any amendment or supplement to the Registration
Statement, or arise out of or are based upon any omission or alleged omission
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading, if the statement or omission was made in
reliance upon and in conformity with information furnished in writing to the
Company by or on behalf of such Stockholder, specifically for use in connection
with the preparation of such Registration Statement, prospectus, amendment or
supplement; provided, however, that the obligations of such Stockholders
hereunder shall be limited to an amount equal to the proceeds to each
Stockholder of Registrable Shares sold as contemplated herein.
(c) Each party entitled to indemnification under this
Section 6 (the "Indemnified Party") shall give notice to the party required to
provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may
be sought, and shall permit the Indemnifying Party to assume the defense of any
such claim or any litigation resulting therefrom; provided, that counsel for
the Indemnifying Party, who shall conduct the defense of such claim or
litigation, shall be approved by the Indemnified Party (whose approval shall
not be unreasonably withheld); and, provided, further, that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Section 6. The Indemnified
Party may participate in such defense at such party's expense; provided,
however, that the Indemnifying Party shall pay such expense if representation
of such Indemnified Party by the counsel retained by the Indemnifying Party
would be inappropriate due to actual or potential differing interests between
the Indemnified Party and any other party represented by such counsel in such
proceeding. No Indemnifying Party, in the defense of any such claim or
litigation shall, except with the consent of each Indemnified Party, consent to
entry of any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect of such claim or
litigation, and no Indemnified Party shall consent to entry of any judgment or
settle such claim or litigation without the prior written consent of the
lndemnifying Party.
7. Information by Stockholders
Each holder of Registrable Shares included in any registration shall
furnish to the Company such information regarding such holder as the Company
may reasonably request in writing and as shall be required in connection with
any registration, qualification or compliance referred to herein.
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8. Shareholder Agreement
Notwithstanding anything to the contrary contained herein, this
Agreement shall at all times be subject to the terms of the Shareholder
Agreements, of even date herewith, by and between the Company and each of the
Stockholders.
9. Rule 144 Requirements
The Company shall:
(a) make and keep public information available, as those
terms are understood and defined in Rule 144 promulgated under the Securities
Act;
(b) use its best efforts to file with the Commission in a
timely manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act (at any time after it has become subject to
such reporting requirements); and
(c) furnish to any holder of Registrable Shares upon request
a written statement by the Company as to its compliance with the reporting
requirements of said Rule 144 (at any time after ninety (90) days after the
closing of the first sale of securities by the Company pursuant to a
Registration Statement), and of the Securities Act and the Exchange Act (at any
time after it has become subject to such reporting requirements), a copy of the
most recent annual or quarterly report of the Company, and such other reports
and documents of the Company as such holder may reasonably request to avail
itself of any similar rule or regulation of the Commission allowing it to sell
any such securities without registration-
10. Termination
This Agreement shall terminate on the earlier of (i) two (2) years
following the Closing Date and (ii) date on which no Stockholders holds any
Registrable Shares.
11. Assignment
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their permitted successors and assigns. Without the written
consent of the Company, no Stockholder shall assign his or her rights
hereunder, other than an assignment (i) to a member of the Stockholder's
immediate family (spouse or children), (ii) to a trustee(s) in trust for the
Stockholder and/or his immediate family or (iii) to an entity solely controlled
by members of the Stockholder's immediate family, provided that the Stockholder
transfers to any such assignee Registrable Shares and any such assignee becomes
a party to this Agreement.
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12. Notices
All notices, requests, consents, and other communications under this
Agreement shall be in writing and shall be delivered by hand or sent by
electronic facsimile transmission or mailed by first class certified or
registered mail, return receipt requested, postage prepaid, to the Stockholders
at the addresses set forth under their respective names on Schedule A, and to
the Company at its principal office, or to such other address as any party may
provide in writing to the others.
13. Entire Agreement
This Agreement and the Shareholder Agreement embody the entire
understanding between the parties hereto with respect to the subject matter
hereof and supersede all prior agreements and understandings relating to such
subject matter.
14. Amendments and Waivers
(a) Except as otherwise expressly set forth in this
Agreement, any term of this Agreement may be amended and the observance of any
term of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively), with the written consent
of the Company and the holders of at least ninety-five percent (95%) of the
Registrable Shares. Any amendment or waiver effected in accordance with this
Section 14 shall be binding upon all Stockholders and on each holder of any
Shares or Registrable Shares and shall be applied uniformly to all
Stockholders. No waivers of or exceptions to any term, condition or provision
of this Agreement, in any one or more instances, shall be deemed to be, or
construed as, a further or continuing waiver of any such term, condition or
provision.
(b) An assignee of Registrable Shares pursuant to Section
11 shall, and any holder of Shares with the written agreement of the Company
may, become a party to this Agreement and subject to all of the rights and
obligations of a Stockholder hereunder by executing an additional party
signature page in the form attached hereto as Schedule B and delivering it to
the Company. The Company shall attach any such signature page to the original
copy of this Agreement maintained by it. Upon the delivery to the Company of
an additional party signature page pursuant to this Section 14(b), Schedule A
hereto shall be deemed to be automatically amended by adding the name and
address of the person becoming Stockholder under this Agreement and the number
of Shares held by such person to be treated as Registrable Shares hereunder.
16. Counterparts
This Agreement may be executed in several counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
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17. Headings
The headings of the sections, subsections and paragraphs of this
Agreement have been added for convenience only and shall not be deemed to be a
part of this Agreement.
18. Severability
The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provision of this
Agreement.
19. Governing Law
This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware.
* * *
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IN WITNESS WHEREOF, the undersigned have hereunto set their hands under seal as
of the day and year first above written.
THE COMPANY:
PHYMATRIX CORP.
By: /a/ Xxxxxx X. Xxxxxx
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Its:
---------------------------
STOCKHOLDERS:
/s/ Xxxxxxx Xxxxxxx
-------------------------------
Xxxxxxx Xxxxxxx
/s/ Xxxxxx Xxxxx
-------------------------------
Xxxxxx Xxxxx
/s/ Xxxxxx Xxxxxxxx TTEE
-------------------------------
Xxxxxx Xxxxxxxx as Trustee of
The Xxxxxxxxx Xxxxxxx 1993
Qualified Sub-Chapter S Trust
/s/ Xxxxxx Xxxxxxxx TTEE
-------------------------------
Xxxxxx Xxxxxxxx as Trustee of
The Xxxxx Xxxxxxx 1993
Qualified Sub-Chapter S Trust
/s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------
Xxxxxxx X. Xxxxxxxxx
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Schedule A
Number of
Name and Address of Stockholder Shares
Xxxxxx Xxxxx 2,442,756
Xxxxxxx Xxxxxxx 903,352
Xxxxxx Xxxxxxxx as Trustee of 789,702
The Xxxxxxxxx Xxxxxxx 1993
Qualified Sub-Chapter S Trust
Xxxxxx Xxxxxxxx as Trustee of 789,702
The Xxxxx Xxxxxxx 1993
Qualified Sub-Chapter S Trust
Xxxxxxx X. Xxxxxxxxx 318,793
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Schedule B
ADDITIONAL PARTY SIGNATURE PAGE
TO
REGISTRATION RIGHTS AGREENIENT
The undersigned hereby executes the Registration Agreement dated as of
_______________________________, 1997 among the Company and certain of
its stockholders, authorizes this signature page to be attached to a
counterpart of the Registration Agreement and agrees to be bound by
all of the terms and provisions of the Registration Agreement as if
the undersigned had executed said Agreement on the date of its
original execution.
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Name
----------------------------------------
Address
----------------------------------------
Number of Shares
----------------------------------------
Date
ACCEPTED AND AGREED TO:
PHYMATRIX CORP.
By:
--------------------------------
Its
-----------------------------------
Date
