Exhibit 4.3
STOCK PURCHASE AND REGISTRATION RIGHTS AGREEMENT
THIS STOCK PURCHASE AND REGISTRATION RIGHTS AGREEMENT (this "Agreement") is
entered into as of the 5th day of July, 2001, by and between PLANVISTA
CORPORATION (f/k/a HealthPlan Services Corporation), a Delaware corporation, as
issuer (the "Company"), and XxXxxxxx, Race & Xxxxx, Inc., a Florida corporation,
on behalf of the investment funds listed on Exhibit A hereto (collectively, the
"Purchaser").
WHEREAS, the Purchaser is an existing stockholder of the Company who
desires to purchase, and the Company desires to sell, a number of additional
shares of the Company's common stock, $.01 par value per share, all on the
terms and subject to the conditions set forth herein; and
WHEREAS, as a condition to the purchase of the shares, the Purchaser has
required and the Company has agreed to grant registration rights as set forth
herein;
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. DEFINITIONS. The following terms have the following meanings:
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"Closing" means the closing of the purchase of the Placement Shares as
contemplated herein.
"Commission" means the Securities and Exchange Commission, or any
other federal agency then administering the Securities Act or the Exchange Act.
"Common Stock" means the shares of common stock of the Company $.01
par value per share.
"Company" is defined in the preamble to this Agreement.
"Demanding Holders" is defined in Section 5.2(a).
"Demand Registration" is defined in Section m 5.2(a).
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder, all as
the same shall be in effect at the time.
"Indemnified Party" is defined in Section 7.3.
"Indemnifying Party" is defined in Section 7.3.
"Maximum Number of Shares" is defined in Section 5.2(d).
"Piggy-Back Registration" is defined in Section 5.3(a).
"Purchaser" is defined in the preamble to this Agreement.
"Purchaser Indemnified Party" is defined in Section 7.1.
"Register," "registered" and "registration" mean a registration
effected by preparing and filing a registration statement or similar document in
compliance with the requirements of the Securities Act, and the applicable rules
and regulations promulgated thereunder, and such registration statement becoming
effective.
"Registration Statement" means a registration statement filed by the
Company with the Commission in compliance with the Securities Act and the rules
and regulations promulgated thereunder for a public offering and sale of Common
Stock (other than a registration statement on Form S-4 or Form S-8, or their
successors, or any registration statement covering only securities proposed to
be issued in exchange for securities or assets of another entity).
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder, all as the same
shall be in effect at the time.
"Shares" is defined in Section 2.1.
"Underwriter" means a securities dealer who purchases any Registrable
Securities as principal in an underwritten offering and not as part of such
dealer's market-making activities.
2. SALE AND PURCHASE OF SHARES.
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2.1 Purchase and Sale of Stock/Payment. The Company will sell, and the
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Purchaser will buy at the Closing, Five Hundred Fifty-Three Thousand Five
Hundred (553,500) shares of the Company's Common Stock in the amounts set forth
on Exhibit A (the "Placement Shares") for a purchase price of $6.87 per share or
an aggregate of Three Million Eight Hundred Thousand Dollars ($3,800,000),
payable at Closing, by wire transfer of immediately available funds in
accordance to the account(s) set forth on Schedule 1 hereto.
3. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF PURCHASER.
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3.1 Investment Intention. Purchaser is an accredited investor as that
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term is defined in Rule 501(a) as promulgated by the Securities and Exchange
Commission and is
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acquiring the Placement Shares for investment purposes, with no present
intention of and with no view toward distributing all or any part of the
Placement Shares to others for resale or otherwise participating, directly or
indirectly, in any distribution of the Placement Shares in violation of state or
federal securities laws. Purchaser understands that the Placement Shares have
not been registered under any state or federal securities laws based upon the
understanding of the Company that the issuance of the Placement Shares as
described in this Agreement is exempt from such registration. Accordingly, the
Placement Shares will be treated as Restricted Securities, as defined in Rule
144 of the Securities Act, under the provisions of Rule 144 as promulgated by
the Commission. The purchaser agrees that the Certificates representing the
Placement Shares will contain a legend to this effect as follows:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
WITH THE SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT
0F 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY OTHER JURISDICTION.
THE SALE OR OTHER DISPOSITION OF THESE SHARES IS PROHIBITED UNLESS
SUCH SALE OR OTHER DISPOSITION IS IN ACCORDANCE WITH THE REGISTRATION
REQUIREMENTS OF SUCH ACT AND THE SECURITIES LAWS OF ANY OTHER
APPLICABLE JURISDICTION OR PURSUANT TO AN EXEMPTION FROM SUCH
REGISTRATION REQUIREMENTS."
Purchaser agrees that it will not make any sale of the Placement
Shares without causing the prospectus delivery requirements of the Securities
Act to be satisfied or otherwise complying with the Securities Act and the
exemptions from registration set forth therein, and the transfer agent will be
instructed to note these restrictions on transfer on the stock records of the
Company.
The Reliance by the Company upon an exemption from registration is
predicated, in part, upon the representations and warranties of Purchaser
contained in this Section 3.
3.2 Authority. Purchaser is a duly and validly existing corporation in
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good standing under the laws of its state of incorporation and has the power and
authority to execute this Agreement and carry out the transactions contemplated
hereby. All corporate and other action on the part of Purchaser required to
authorize the purchase of the Placement Shares from the Company has been taken
and no consent of, authorization of or filing with any person or governmental
agency is necessary in order for Purchaser to execute this Agreement or carry
out the transactions contemplated hereby to be performed by Purchaser.
3.3 Evaluation of Investment. Purchaser has such knowledge and
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experience in financial and business matters in general, and in investments in
particular, as to enable it to evaluate the merits and risks of an investment in
the Company. Purchaser has been furnished during the course of the transactions
contemplated hereby and prior to the execution of this Agreement with all
documents and information concerning the Company as requested from
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time to time, has been encouraged by the Company to have the transactions
reviewed by its legal counsel or other advisor, and has had, along with its
legal counsel or other advisor, the opportunity to ask questions of the
representatives of the Company and receive satisfactory answers to it concerning
the Company and has been able to obtain any and all information concerning the
Company that it has desired.
4. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY
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PVC hereby represents and warrants to the Purchaser as follows:
4.1 Stock. The Placement Shares have been duly authorized by the
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Company, and when issued at Closing under the terms hereof will be fully paid
and non-assessable.
4.2 Corporate Authority. The Company is a duly and validly existing
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corporation in good standing under the laws of its state of incorporation and
has taken all corporate action necessary or required on its part to authorize
the sale of the Placement Shares to the Purchaser and no consent of,
authorization of or filing with any person or governmental agency is necessary
in order for the Company to execute this Agreement or carry out the transactions
contemplated hereby to be performed by the Company.
5. REGISTRATION RIGHTS.
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5.1 Registration of Placement Shares. As soon as practicable
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following the Closing, the Company shall file a Registration Statement with the
Commission to cover the sale of the Placement Shares by the Purchaser. The
Registration Statement shall be on such form as shall then be available to the
Company and which the Company believes will be most expediently reviewed by the
Commission and achieve such registration, and may include the shares of other
selling stockholders or of the Company. The Company shall use its best efforts
to achieve the prompt effectiveness of the Registration Statement under this
Section 5.1 and to maintain it current until the Placement Shares covered
thereby have been sold. The registration of the Placement Shares pursuant to
this Section 5.1 shall not require any demand, written or oral, nor any other
form of notification from the Purchaser and shall not count as a "Demand
Registration" for purposes of Subsection 5.2(a).
5.2 Demand Registration.
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(a) Request for Registration. At any time, if all of the
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Placement Shares are not sold during the initial registration pursuant to
Section 5.1, the holders of a majority-in-interest of the Placement Shares
may make a written demand for registration under the Securities Act of all
or part of their Placement Shares (a "Demand Registration"). Any demand for
a Demand Registration shall specify the number of Placement Shares proposed
to be sold and the intended method(s) of distribution thereof. The Company
will notify all holders of Placement Shares of the demand, and each holder
of Placement Shares who wishes to include all or a portion of such holder's
Placement Shares in the Demand Registration (each holder including
Placement Shares in such
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registration, a "Demanding Holder") shall so notify the Company within
fifteen (15) days after the receipt by the holder of the notice from the
Company. Upon any such request, the Demanding Holders shall be entitled to
have their Placement Shares included in the Demand Registration, subject to
Section 5.2(d) and the provisos set forth in Section 6.1(a). The Company
shall not be obligated to effect more than two (2) Demand Registrations
under this Section 5.2(a).
(b) Effective Registration. A registration will not count as a
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Demand Registration until the Registration Statement filed with the
Commission with respect to such Demand Registration has been declared
effective and the Company has complied with all of its obligations under
this Agreement with respect thereto; provided, however, that if, after such
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Registration Statement has been declared effective, the offering of
Placement Shares pursuant to a Demand Registration is interfered with by
any stop order, injunction or other order or requirement of the Commission
or any other governmental agency or court, the Registration Statement with
respect to such Demand Registration will be deemed not to have been
declared effective.
(c) Underwritten Offering. If a majority-in-interest of the
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Demanding Holders so elect, the offering of such Placement Shares pursuant
to such Demand Registration shall be in the form of an underwritten
offering. A majority-in-interest of the Demanding Holders may select one or
more firms of investment bankers to act as the managing Underwriter or
Underwriters in connection with such offering and may select any additional
managers to be used in connection with such offering.
(d) Reduction of Offering. If the managing Underwriter or
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Underwriters for a Demand Registration that is to be an underwritten
offering advises the Company and the Demanding Holders in writing that the
dollar amount or number of shares of Placement Shares which the Demanding
Holders desire to sell, taken together with all other shares of Common
Stock or other securities which the Company desires to sell and the shares
of Common Stock, if any, as to which registration has been requested
pursuant to written contractual piggy-back registration rights held by
other shareholders of the Company who desire to sell, exceeds the maximum
dollar amount or maximum number of shares that can be sold in such offering
without adversely affecting the proposed offering price, the timing, the
distribution method, or the probability of success of such offering (such
maximum dollar amount or maximum number of shares, as applicable, the
"Maximum Number of Shares"), then the Company shall include in such
registration: (i) first, the Placement Shares as to which Demand
Registration has been requested by the Demanding Holders (pro rata in
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accordance with the number of shares of Placement Shares held by each
Demanding Holder, regardless of the number of shares of Placement Shares
which such Demanding Holder has requested be included in such registration)
that can be sold without exceeding the Maximum Number of Shares; (ii)
second, to the extent that the Maximum Number of Shares has not been
reached under the foregoing clause (i), the shares of Common Stock or other
securities that the Company desires to sell that can be sold without
exceeding the Maximum Number of Shares; (iii) third, to the extent that the
Maximum Number of Shares has not been reached under the foregoing clauses
(i) and (ii), the shares of Common Stock for the account of other
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persons that the Company is obligated to register pursuant to written
contractual arrangements with such persons (to be allocated among the
persons requesting inclusion in such registration pursuant to such
contractual arrangements pro rata in accordance with the number
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of shares of Common Stock with respect to which such persons have the right
to request such inclusion under such contractual arrangements, regardless
of the number of shares which each such person has actually requested to be
included in such registration) and that can be sold without exceeding the
Maximum Number of Shares; and (iv) fourth, to the extent that the Maximum
Number of Shares have not been reached under the foregoing clauses (i),
(ii) and (iii), the shares of Common Stock that other shareholders desire
to sell that can be sold without exceeding the Maximum Number of Shares.
(e) Withdrawal. If a majority-in-interest of the Demanding
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Holders disapprove of the terms of any underwriting or are not entitled to
include all of their Placement Shares in any offering, such majority-in-
interest of the Demanding Holders may elect to withdraw from such offering
by giving written notice to the Company and the Underwriter of their
request to withdraw prior to the effectiveness of the Registration
Statement filed with the Commission with respect to such Demand
Registration. If the majority-in-interest of the Demanding Holders
withdraws from a proposed offering relating to a Demand Registration, then
such registration shall not count as a Demand Registration provided for in
Section 5.2(a).
5.3 Piggy-Back Registration.
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(a) Piggy-Back Rights. If at any time the Company proposes to
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file a Registration Statement under the Securities Act with respect to an
offering of equity securities, or securities or other obligations
exercisable or exchangeable for, or convertible into, equity securities, by
the Company for its own account or by shareholders of the Company for their
own account (or by the Company and by shareholders of the Company), other
than a Registration Statement (i) filed in connection with any employee
stock option or other benefit plan, (ii) for an exchange offer or offering
of securities solely to the Company's existing shareholders or (iii) for a
dividend reinvestment plan, then the Company shall (x) give written notice
of such proposed filing to the holders of Placement Shares as soon as
practicable but in no event less than forty-five (45) days before the
anticipated filing date, which notice shall describe the amount and type of
securities to be included in such offering, the intended method(s) of
distribution, and the name of the proposed managing Underwriter or
Underwriters, if any, of the offering, and (y) offer to the holders of
Placement Shares in such notice the opportunity to register such number of
Placement Shares at such holders may request in writing within fifteen (15)
days following receipt of such notice (a "Piggy-Back Registration"). The
Company shall cause such Placement Shares to be included in such
registration and shall use its best efforts to cause the managing
Underwriter or Underwriters of a proposed underwritten offering to permit
the Placement Shares requested to be included in a Piggy-Back Registration
to be included on the same terms and conditions as any similar securities
of the Company and to permit the sale or other
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disposition of such Placement Shares in accordance with the intended
method(s) of distribution thereof.
(b) Reduction of Offering. If the managing Underwriter or
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Underwriters for a Piggy-Back Registration that is to be an underwritten
offering advises the Company and the holders of Placement Shares in writing
that the dollar amount or number of shares of Common Stock which the
Company desires to sell, taken together with shares of Common Stock, if
any, as to which registration has been demanded pursuant to written
contractual arrangements with persons other than the holders of Placement
Shares hereunder, the Placement Shares as to which registration has been
requested under this Section 5.3, and the shares of Common Stock, if any,
as to which registration has been requested pursuant to the written
contractual piggy-back registration rights of other shareholders of the
Company, exceeds the Maximum Number of Shares, then the Company shall
include in such registration: (i) first, the shares of Common Stock or
other securities that the Company desires to sell that can be sold without
exceeding the Maximum Number of Shares; (ii) second, if the registration is
a "demand" registration undertaken at the demand of persons other than the
holders of Placement Shares pursuant to written contractual arrangements
with such persons, then to the extent that the Maximum Number of Shares has
not been reached under the foregoing clause (i), the shares of Common Stock
for the account of demanding persons that can be sold without exceeding the
Maximum Number of Shares; (iii) third, to the extent that the Maximum
Number of Shares has not been reached under the foregoing clauses (i) and
(ii), the Placement Shares as to which registration has been requested
under this Section 5.3: and (iv) fourth, to the extent that the Maximum
Number of Shares has not been reached under the foregoing clauses (i), (ii)
and (iii), the shares of Common Stock if any, as to which registration has
been requested pursuant to written contractual piggy-back registration
rights which such other shareholders desire to sell that can be sold
without exceeding the Maximum Number of Shares.
(c) Withdrawal. Any holder of Placement Shares may elect to
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withdraw such holder's request for inclusion of Placement Shares in any Piggy-
Back Registrarion by giving written notice to the Company of such request to
withdraw prior to the effectiveness of the Registration Statement. The Company
may also elect to withdraw a registration statment at any time prior to the
effectiveness of the Registration Statement. Notwithstanding any such
withdrawal, the Company shall pay all expenses incurred by the holders of
Placement Shares in connection with such Piggy-Back Registrarion as provided in
Section 6.3.
5.4 Registrations on Form S-3. The holders of Placement Shares may at
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any time request in writing that the Company register the resale of any or all
of Registrable Securities on Form S-3 (or any similar short-form registration
which may be available at such time). Upon receipt of such written request, the
Company will promptly give written notice of the proposed registration to all
other holders of Placement Shares, and, as soon as practicable thereafter,
effect the registration of all or such portion of such holder's or holders'
Placement Shares as are specified in such request, together with all or such
portion of the Placement Shares of any other holder or holders joining in such
request as are specified in a written request given within fifteen (15) days
after receipt of such written notice from the Company; provided, however, that
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the
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Company shall not be obligated to effect any such registration pursuant to this
Section 5.4 if Form S-3 is not available for such offering. The Company shall
use its best efforts to maintain each Registration Statement under this Section
5.4 effective for sixty (60) days or until the Placement Shares covered thereby
have been sold, whichever shall first occur. Registrations effected pursuant to
this Section 5.4 shall not be counted as Demand Registrations effected pursuant
to Section 5.2.
5.5 Restrictions on Arbitrage. The Purchaser agrees that it will not
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hedge, short, or otherwise arbitrage the Placement Shares in any manner which
would violate the registration requirements applicable as to such Placement
Shares under the Securities Act.
6. REGISTRATION PROCEDURES.
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6.1 Filings; Information. Whenever the Company is required to effect
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the registration of any Placement Shares pursuant to Section 5, the Company
shall use its best efforts to effect the registration and sale of such Placement
Shares in accordance with the intended method(s) of distribution thereof as
expeditiously as practicable, and in connection with any such request:
(a) Filing Registration Statement. The Company shall, as
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expeditiously as possible and in any event within sixty (60) days after receipt
of a request for a Demand Registration pursuant to Section 5.2, prepare and file
with the Commission a Registration Statement on any form for which the Company
then qualifies or which counsel for the Company shall deem appropriate and which
form shall be available for the sale of all Placement Shares to be registered
thereunder in accordance with the intended method(s) of distribution thereof,
and shall use its best efforts to cause such Registration Statement to become
and remain effective for the requisite period; provided, however, that the
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Company shall have the right to defer any Demand Registration for up to thirty
(30) days, and any Piggy-Back Registration for up to the lesser of thirty (30)
days or such lesser period as may be applicable to deferment of any demand
registration to which such Piggy-Back Registration relates, in each case if the
Company shall furnish to the holders a certificate signed by the Chief Executive
Officer of the Company stating that, in the good faith judgment of the Board of
Directors of the Company, it would be materially detrimental to the Company and
its shareholders for such Registration Statement to be effected at such time;
provided further, however, that the Company shall not have the right to exercise
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the right set forth in the immediately preceding proviso more than once in any
365-day period in respect of a Demand Registration hereunder.
(b) Copies. The Company shall, prior to filing a Registration
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Statement or prospectus, or any amendment or supplement thereto, furnish without
charge to the holders of Placement Shares included in such registration, and
such holders' legal counsel, copies of such Registration Statement as proposed
to be filed, each amendment and supplement to such Registration Statement (in
each case including all exhibits thereto and documents incorporated by reference
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therein), the prospectus included in such Registration Statement (including each
preliminary prospectus), and such other documnents as the holders of Placement
Shares included in such registration or
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legal counsel for any such holders may request in order to facilitate the
disposition of the Placement Shares owned by such holders.
(c) Amendments and Supplements. The Company shall prepare and file
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with the Commission such amendments, including post-effective amendments, and
supplements to each such Registration Statement and the prospectus used in
connection therewith as may be necessary to keep such Registration Statement
effective and in compliance with the provisions of the Securities Act until all
Placement Shares have been sold.
(d) Notification. After the filing of a Registration Statement, the
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Company shall promptly, and in no event more than two (2) Business Days after
such filing, notify the holders of Placement Shares included in such
Registration Statement of such filing, and shall further notify such holders
promptly and confirm such advice in writing in all events within two (2)
Business Days of the occurrence of any of the following: (i) when such
Registration Statement becomes effective; (ii) when any post-effective amendment
to such Registration Statement becomes effective; (iii) of any stop order issued
or threatened by the Commission (and the Company shall take all actions required
to prevent the entry of such stop order or to remove it if entered); and (iv) of
any request by the Commission for any amendment or supplement to such
Registration Statement or any prospectus relating thereto or for additional
information or of the occurrence of an event requiring the preparation of a
supplement or amendment to such prospectus so that, as thereafter delivered to
the purchasers of the securities covered by such Registration Statement, 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, and promptly make available to the holders of
Placement Shares included in such Registration Statement any such supplement or
amendment; except that before filing with the Commission a Registration
Statement or prospectus or any amendment or supplement thereto, including
documents incorporated by reference, the Company shall furnish to the holders of
the Placement Shares included in such Registration Statement and to the legal
counsel for any such holders, copies of all such documents proposed to be filed
sufficiently in advance of filing to provide such holders and legal counsel with
a reasonable opportunity to review such documents and comment thereon.
(e) State Securities Laws Compliance. The Company shall use its best
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efforts to (i) register or qualify the Placement Shares covered by any
Registration Statement under such securities or "blue sky" laws of such
jurisdictions in the United States as the holders of the Placement Shares
included in such Registration Statement (in light of their intended plan of
distribution) may request and (ii) cause such Placement Shares covered by the
Registration Statement to be registered with or approved by such other
governmental authorities as may be necessary by virtue of the business and
operations of the Company and do any and all other acts and things that may be
necessary or advisable to enable the holders of the Placement Shares included in
such Registration Statement to consummate the disposition of such Placement
Shares in such jurisdictions; provided, however, that the Company shall not be
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required to qualify generally to do
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business in any jurisdiction where if would not otherwise be required to
qualify but for this paragraph (e), or subject itself to taxation in any
such jurisdiction.
(f) Agreements for Disposition. The Company shall enter into
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customary agreements (including, if applicable, 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 Placement
Shares. The representations, warranties and covenants of the Company in any
underwriting agreement which are made to or for the benefit of any
Underwriters shall also be made to and for the benefit of the holders of
Placement Shares included in such registration statement. No holder of
Placement Shares included in such registration statement shall be required
to make any representations or warranties in the underwriting agreement
except, if applicable, with respect to such holder's organization, good
standing, authority, title to the Placement Shares, lack of conflict of
such sale with such holder's material agreements and organizational
documents, and with respect to written information relating to such holder
that such holder has furnished in writing expressly for inclusion in such
Registration Statement.
(g) Cooperation. The principal executive officer of the
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Company, the principal financial officer of the Company, the principal
accounting officer of the Company and all other officers and members of the
management of the Company shall cooperate fully in any offering of
Placement Shares hereunder, which cooperation shall include, without
limitation, the preparation of the Registration Statement with respect to
such offering and all other offering materials and related documents, and
participation in meetings with Underwriters, attorneys, accountants and
potential investors.
(h) Records. The Company shall make available for
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inspection by the holders of Registrable Securities included in such
Registration Statement, any Underwriter participating in any disposition
pursuant to such registration statement and any attorney, accountant or
other professional retained by any holder of Placement Shares included in
such Registration Statement or any Underwriter, all financial and other
records, pertinent corporate documents and properties of the Company, as
shall be necessary to enable them to exercise their due diligence
responsibility, and cause the Company's officers, directors and employees
to supply all information requested by any of them in connection with such
Registration Statement.
(i) Opinions and Comfort Letters. The Company shall furnish
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to each holder of Placement Shares included in any Registration Statement a
signed counterpart, addressed to such holder, of (i) any opinion of counsel
to the Company delivered to any Underwriter and (ii) any comfort letter
from the Company's independent public accountants delivered to any
Underwriter. In the event no legal opinion is delivered to any Underwriter,
the Company shall furnish to each holder of Placement Shares included in
such Registration Statement, at any time that such holder elects to use a
prospectus, an opinion of counsel to the Company to the effect that the
Registration Statement containing such prospectus has been declared
effective and that no stop order is in effect.
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(j) Earnings Statement. The Company shall comply with all
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applicable rules and regulations of the Commission and the Securities Act,
and make available to its shareholders, as soon as practicable, an earnings
statement covering a period of twelve (12) months, beginning within three
(3) months after the effective date of the registration statement, which
earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder.
(K) Listing. The Company shall use its best efforts to cause
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all Placement Shares included in any registration to be listed on such
exchanges or otherwise designated for trading in the same manner as similar
securities issued by the Company are then listed or designated or, if no
such similar securities are then listed or designated, in a manner
satisfactory to the holders of a majority of the Placement Shares or
Registrable Securities included in such registration.
6.2 Obligation to Suspend Distribution. Upon receipt of any
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notice from the Company of the happening of any event of the kind described in
Section 6.1(d)(iv), or in the case of a resale registration on Form S-3 pursuant
to Section 5.4 hereof, upon any suspension by the Company, pursuant to a written
xxxxxxx xxxxxxx compliance program adopted by the Company's Board of Directors,
of the ability of all "insiders" covered by such program to transact in the
Company's securities because of the existence of material non-public
information, each holder of Placement Shares included in any registration shall
immediately discontinue disposition of such Placement Shares pursuant to the
Registration Statement covering such Placement Shares until such holder receives
the supplemented or amended prospectus contemplated by Section 6.1(d)(iv) or the
restriction on the ability of "insiders" to transact in the Company's securities
is removed, as applicable, and, if so directed by the Company, each such holder
will deliver to the Company all copies, other than permanent file copies then in
such holder's possession, of the most recent prospectus covering such Placement
Shares at the time of receipt of such notice.
6.3 Registration Expenses. The Company shall bear all costs
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and expenses incurred in connection with any registration pursuant to Section
5.1(a), any Demand Registration pursuant to Section 5.2, and any Piggy-Back
Registration pursuant to Section 5.3, and any registration on Form S-3 effected
pursuant to Section 5.4, and all expenses incurred in performing or complying
with its other obligations under this Agreement, whether or not the Registration
Statement becomes effective, including, without limitation: (i) all registration
and filing fees; (ii) fees and expenses of compliance with securities or "blue
sky" laws (including fees and disbursements of counsel in connection with blue
sky qualifications of the Placement Shares); (iii) printing expenses; (iv) the
Company's internal expenses (including, without limitation, all salaries and
expenses of its officers and employees); (v) the fees and expenses incurred in
connection with the listing of the Purchased as required by Section 6.1(k); (vi)
National Association of Securities Dealers, Inc. fees; (vii) fees and
disbursements of counsel for the Company and fees and expenses for independent
certified public accountants retained by the Company (including the expenses or
costs associated with the delivery of any opinions or comfort letters requested
pursuant to Section 6.1(i)); (viii) the fees and expenses of any special experts
retained by the Company in connection with such registration; (ix) the purchase
of selling stockholder errors and omissions insurance for the benefit of the
Purchaser in any amount equivalent to the gross proceeds to be received by the
Purchaser in connection with any
11
registration under this Agreement, on terms and conditions satisfactory to the
Purchaser, and (x) all fees and expenses incurred by the holders of Placement
Shares in connection with their participation in such registration, including,
without limitation, the fees and expenses of one legal counsel selected by the
holders of a majority-in-interest of the Placement Shares included in such
registration, as well as accountants and other experts selected by the
Purchaser. The Company shall have no obligation to pay any underwriting
discounts or selling commissions attributable to the Placement Shares being sold
by the holders thereof, which underwriting discounts or selling commissions
shall be borne by such holders. The Company will keep any registration effective
for at least ninety (90) days.
6.4 Information. The holders of Placement Shares shall provide
-----------
such information as may reasonably be requested by the Company in connection
with the preparation of any Registration Statement, including amendments and
supplements thereto, in order to effect the registration of any Placement Shares
under the Securities Act pursuant to Section 2.
7. INDEMNIFICATION AND CONTRIBUTION.
--------------------------------
7.1 Indemnification by the Company. The Company agrees to
------------------------------
indemnify and hold harmless the Purchaser and each other holder of Placement
Shares and each of their respective officers, employees, affiliates, directors,
partners, members, attorneys and agents, and each person, if any, who controls
the Purchaser (within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act) (each, a "Purchaser Indemnified Party"), from and
against any expenses, losses, judgments, claims, damages or liabilities, whether
joint or several, arising out of or based upon any untrue statement (or alleged
untrue statement) of a material fact contained in any Registration Statement
under which such Placement Shares were registered under the Securities Act, any
preliminary prospectus, final prospectus or summary prospectus contained in the
Registration Statement, or any amendment or supplement to such Registration
Statement, or arising out of or 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, or any violation by the Company of the
Securities Act or any rule or regulation promulgated thereunder applicable to
the Company and relating to action or inaction required of the Company in
connection with any such registration; and the Company shall promptly, but in no
event more than five (5) Business Days after request for payment, pay directly
or reimburse each Purchaser Indemnified Party for any legal and any other
expenses reasonably incurred by such Purchaser Indemnified Party in connection
with investigating and defending any such expense, loss, judgment, claim,
damage, liability or action; provided, however, that the Company will not be
-------- -------
liable in any such case to the extent that any such expense, loss, claim, damage
or liability arises out of or is based upon any untrue statement or omission
made in such Registration Statement, preliminary prospectus, final prospectus,
or summary prospectus, or any such amendment or supplement, in reliance upon and
in conformity with information furnished to the Company, in writing, by such
selling Holder and stated to be specifically for use therein. The Company also
shall indemnify any Underwriter of the Placement Shares, their officers,
affiliates, directors, partners, members and agents and each person who controls
such Underwriter on substantially the same basis as that of the indemnification
provided above in this Section 4.1.
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7.2 Indemnification by Holders of Placement Shares. Each
----------------------------------------------
selling holder of Placement Shares will, in the event that any registration is
being effected under the Securities Act pursuant to this Agreement of any
Placement Shares held by such selling holder, indemnify and hold harmless the
Company, each of its directors and officers and each underwriter (if any), and
each other person, if any, who controls such selling holder or such underwriter
within the meaning of the Securities Act, against any losses, claims, judgments,
damages or liabilities, whether joint or several, insofar as such losses,
claims, judgments, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement of a material fact contained in
any Registration Statement under which such Placement Shares were registered
under the Securities Act, any preliminary prospectus, final prospectus or
summary 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 to state a material fact required to be stated therein or necessary to
make the statement 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 such selling holder and stated to be specifically for use therein,
and shall reimburse the Company, its directors and officers, and each such
controlling person for any legal or other expenses reasonably incurred by any of
them in connection with investigating or defending any such loss, claim, damage,
liability or action. Each selling holder's indemnification obligations hereunder
shall be several and not joint and shall be limited to the amount of any net
proceeds actually received by such selling holder.
7.3 Conduct of Indemnification Proceedings. Promptly after
--------------------------------------
receipt by any person of any notice of any expense, loss, judgment, claim,
damage, liability or any action in respect of which indemnity may be sought
pursuant to Section 7.1 or 7.2, such person (the "Indemnified Party") shall, if
a claim in respect thereof is to be made against any other person for
indemnification hereunder, notify such other person (the "Indemnifying Party")
in writing of the expense, loss, claim, judgment, damage, liability or action;
provided, however, that the failure by the Indemnified Party to notify the
-------- -------
Indemnifying Party shall not relieve the Indemnifying Party from any liability
which the Indemnifying Party may have to such Indemnified Party hereunder,
except and solely to the extent the Indemnifying Party is actually prejudiced by
such failure. If the Indemnified Party is seeking indemnification with respect
to any claim or action brought against the Indemnified Party, then the
Indemnifying Party shall be entitled to participate in such claim or action,
and, to the extent that it wishes, jointly with all other Indemnifying Parties,
to assume the defense thereof with counsel satisfactory to the Indemnified
Party. After notice from the Indemnifying Party to the Indemnified Party of its
election to assume the defense of such claim or action, the Indemnifying Party
shall not be liable to the Indemnified Party for any legal or other expenses
subsequently incurred by the Indemnified Party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that in
-------- -------
any action in which both the Indemnified Party and the Indemnifying Party are
named as defendants, the Indemnified Party shall have the right to employ
separate counsel (but no more than one such separate counsel) to represent the
Indemnified Party and its controlling persons who may be subject to liability
arising out of any claim in respect of which indemnity may be sought by the
Indemnified Party against the Indemnifying Party, with the fees and expenses of
such counsel to be paid by such Indemnifying Party if, based upon the written
opinion of counsel of such Indemnified Party, representation of both parties by
the same counsel would be inappropriate due to actual or potential differing
interests between them. No Indemnifying Party shall, without the
13
prior written consent of the Indemnified Party, consent to entry of judgment or
effect any settlement of any claim or pending or threatened proceeding in
respect of which the Indemnified Party is or could have been a party and
indemnity could have been sought hereunder by such Indemnified Party, unless
such judgment or settlement includes an unconditional release of such
Indemnified Party from all liability arising out of such claim or proceeding.
7.4 Contribution.
------------
(a) If the indemnification provided for in the foregoing
Section 7.1, 7.2 and 7.3 is unavailable to any Indemnified Party in respect
of any expense, loss, judgment, claim, damage, liability or action referred
to herein, then each such 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 expense, loss, judgment, claim,
damage, liability or action in such proportion as is appropriate to reflect
the relative fault of the Indemnified Parties and the Indemnifying Parties
in connection with the actions or omissions which resulted in such expense,
loss, judgment, claim, damage, liability or action, as well as any other
relevant equitable considerations. The relative fault of any Indemnified
Party and any Indemnifying Party shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates
to information supplied by such Indemnified Party or such Indemnifying
Party and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
(b) The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 7.4 were determined by
pro rata allocation or by any other method of allocation which does not
--- ----
take account of the equitable considerations referred to in the immediately
preceding Section 7.4(a). The amount paid or payable by an Indemnified
Party as a result of any expense, loss, judgment, claim, damage, liability
or action referred to in the immediately preceding paragraph shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses incurred by such Indemnified Party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7.4, no holder of Placement Shares shall be
required to contribute any amount in excess of the dollar amount of the net
proceeds (after payment of any underwriting fees, discounts, commissions or
taxes) actually received by such holder from the sale of Placement Shares
which gave rise to such contribution obligation. 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.
8. MISCELLANEOUS.
-------------
8.1 Rule 144. The Company covenants that it shall file any reports
--------
required to be filed by it under the Securities Act and the Exchange Act and
shall take such further action as the holders of Placement Shares may reasonably
request, all to the extent required from time to time to enable such holders to
sell Placement Shares without registration under the Securities Act
14
within the limitation of the exemptions provided by Rule 144 under the
Securities Act, as such Rules may be amended from time to time, or any similar
Rule or regulation hereafter adopted by the Commission.
8.2 Assignment; No Third Party Beneficiaries. This Agreement and the
----------------------------------------
rights, duties and obligations of the Company hereunder may not be assigned or
delegated by the Company in whole or in part. This Agreement and the provisions
hereof shall be binding upon and shall inure to the benefit of each of the
parties and their respective successors and permitted assigns. This Agreement is
not intended to confer any rights or benefits on any persons that are not party
hereto other than as expressly set forth in Article 7 and this Section 8.2.
8.3 Notices. All notices, demands, requests, consents, approvals or
-------
other communications (collectively, "Notices") required or permitted to be given
hereunder or which are given with respect to this Agreement shall be in writing
and shall be personally served, delivered by reputable air courier service with
charges prepaid, or transmitted by hand delivery, telegram, telex or facsimile,
addressed as set forth below, or to such other address as such party shall have
specified most recently by written notice. Notice shall be deemed given on the
date of service or transmission if personally served or transmitted by telegram,
telex or facsimile. Notice otherwise sent as provided herein shall be deemed
given on the next Business Day following timely delivery of such notice to a
reputable air courier service.
To the Company:
PlanVista Corporation
0000 Xxxxxxxx Xxxx
Xxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Fax: (000) 000-0000
with a copy to:
Fowler, White, Gillen, Boggs, Xxxxxxxxx & Banker, P.A.
000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
15
To the Purchaser:
XxXxxxxx, Race & Xxxxx, Inc.
000 X. Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxx
Fax: (000) 000-0000
8.4 Severability. This Agreement shall be deemed
------------
severable, and the invalidity or unenforceability of any term or provision
hereof shall not affect the validity or enforceability of this Agreement or of
any other term or provision hereof. Furthermore, in lieu of any such invalid or
unenforceable term or provision, the parties hereto intend that there shall be
added as a part of this Agreement a provision as similar in terms to such
invalid or unenforceable provision as may be possible and be valid and
enforceable.
8.5 Counterparts. This Agreement may be executed in
------------
multiple counterparts, each of which shall be deemed an original, and all of
which taken together shall constitute one and the same instrument.
8.6 Entire Agreement. This Agreement, the Stock Purchase
----------------
Agreement and the other documents contemplated thereby (including all agreements
entered into pursuant hereto and thereto and all certificates and instruments
delivered pursuant hereto and thereto) constitute the entire agreement of the
parties with respect to the subject matter hereof and supersede all prior and
contemporaneous agreements, representations, understandings, negotiations and
discussions between the parties, whether oral or written.
8.7 Modifications and Amendments. No amendment,
----------------------------
modification or termination of this Agreement shall be binding upon any other
party unless executed in writing by the parties hereto intending to be bound
thereby.
8.8 Titles and Headings. Titles and headings of sections
-------------------
of this Agreement are for convenience only and shall not affect the construction
of any provision of this Agreement.
8.9 Waivers and Extensions. Any party to this Agreement
----------------------
may waive any right, breach or default which such party has the right to waive,
provided that such waiver will not be effective against the waiving party unless
--------
it is in writing, is signed by such party, and specifically refers to this
Agreement. Waivers may be made in advance or after the right waived has arisen
or the breach or default waived has occurred. Any waiver may be conditional. No
waiver of any breach of any agreement or provision herein contained shall be
deemed a waiver of any preceding or succeeding breach thereof nor of any other
agreement or provision herein contained. No waiver or extension of time for
performance of any obligations or acts shall be deemed a waiver or extension of
the time for performance of any other obligations or acts.
8.10 Remedies Cumulative. In the event that the Company
-------------------
fails to observe or perform any covenant or agreement to be observed or
performed under this Agreement, the
16
Purchaser or any other holder of Placement Shares may proceed to protect and
enforce its rights by suit in equity or action at law, whether for specific
performance of any term contained in this Agreement or for an injunction against
the breach of any such term or in aid of the exercise of any power granted in
this Agreement or to enforce any other legal or equitable right, or to take any
one or more of such actions, without being required to post a bond. The Company
agrees to pay all fees, costs, and expenses, including, without limitation, fees
and expenses of attorneys, accountants and other experts, and all fees, costs
and expenses of appeals, incurred by the Purchaser or any other holder of
Placement Shares in connection with the enforcement of this Agreement or the
collection of any sums due hereunder, whether or not suit is commenced. None of
the rights, powers or remedies conferred under this Agreement shall be mutually
exclusive, and each such right, power or remedy shall be cumulative and in
addition to any other right, power or remedy, whether conferred by this
Agreement or now or hereafter available at law, in equity, by statute or
otherwise.
8.11 Governing Law. This Agreement shall be governed by,
-------------
interpreted under, and construed in accordance with the internal laws of the
---
State of Delaware applicable to agreements made and to be performed within the
State of Delaware, without giving effect to any choice-of-law provisions
thereof that would compel the application of the substantive laws of any other
jurisdiction.
8.12 Waiver of Trial by Jury. Each party hereby irrevocably
-----------------------
and unconditionally waives the right to a trial by jury in any action, suit,
counterclaim or other proceeding (whether based on contract, tort or otherwise)
----
arising out of, connected with or relating to this Agreement, or the actions of
Purchaser in the negotiation, administration, performance or enforcement hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be executed and delivered by their duly authorized representatives
as of the date first written above.
COMPANY PLANVISTA CORPORATION (f/k/a HealthPlan
Services Corporation)
By: /s/ Xxxxxxx X. Xxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chairman & Chief Executive Officer
PURCHASER XXXXXXXX, RACE & XXXXX, INC.
By: /s/ Xxxx X. Race
----------------------
Name: Xxxx X. Race
Title: Partner
18
