EXHIBIT 10.2
CHRONIC CARE SOLUTIONS HOLDING, INC.
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of September 30, 2005, among
the institutional investor(s) listed on Schedule I hereto (the "Institutional
Investors"), those employees listed on Schedule II hereto (the "Employee
Investors" and together with the Institutional Investors, the "Investors") and
Chronic Care Solutions Holding, Inc., a Delaware corporation (the "Company").
RECITALS
WHEREAS, the Investors have, pursuant to the terms of the Securities
Purchase Agreement, dated as of September 30, 2005, by and among the Company and
the Investors (the "Purchase Agreement"), agreed to purchase shares of Series A
Convertible Preferred Stock, par value $0.01 per share, of the Company (the
"Preferred Stock"); and
WHEREAS, the shares of Preferred Stock are convertible into shares of
common stock, par value $0.01 per share, of the Company (the "Common Stock");
and
WHEREAS, the Institutional Investors hold 10 shares of Common Stock;
and
WHEREAS, the Company has agreed, as a condition precedent to the
Investors' obligations under the Purchase Agreement, to grant the Investors
certain Registration rights; and
WHEREAS, the Company and the Investors desire to define the
Registration rights of the Investors on the terms and subject to the conditions
herein set forth.
NOW, THEREFORE, in consideration of the foregoing premises and for
other good and valuable consideration, the parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following terms have the respective
meanings set forth below:
Agreement: shall mean this Registration Rights Agreement among the
Investors and the Company;
Commission: shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act;
Exchange Act: shall mean the Securities Exchange Act of 1934, as
amended (or any successor act), and the rules and regulations promulgated
thereunder;
Holder: shall mean any holder of Registrable Securities;
Initial Public Offering: shall mean the initial public offering of
shares of Common Stock pursuant to a Registration under the Securities Act;
Initial Qualified Public Offering: shall mean the consummation of the
Company's initial Qualified Public Offering;
QPO Registration: shall mean any Registration in connection with the
Initial Qualified Public Offering or any Registration prior to such Initial
Qualified Public Offering;
Initiating Holder(s): shall mean the Institutional Investors who in
the aggregate are the Holders of more than 50% of all then outstanding
Registrable Securities held by the Institutional Investors;
Person: shall mean an individual, partnership, joint-stock company,
corporation, limited liability company, trust or unincorporated organization,
and a government or agency or political subdivision thereof;
Qualified Public Offering: shall have the meaning set forth in the
Restated Certificate;
Register, Registered and Registration: shall mean a registration
effected by preparing and filing a registration statement in compliance with the
Securities Act (and any post-effective amendments filed or required to be filed)
and the declaration or ordering of effectiveness of such registration statement;
Registrable Securities: shall mean (A) shares of Common Stock issuable
upon conversion of the shares of Preferred Stock, (B) any other shares of Common
Stock held or hereafter acquired by the Investors, including any shares of
Common Stock issuable upon exchangeable securities, and (C) any stock of the
Company issued as a dividend or other distribution with respect to, or in
exchange for or in replacement of, the shares of Preferred Stock or Common Stock
referred to in clause (A) or (B);
Registration Expenses: shall mean all expenses incurred by the Company
in compliance with Section 2(a), (b) and (c) hereof, including, without
limitation, all registration and filing fees, printing expenses, fees and
disbursements of counsel for the Company, fees and expenses of one counsel for
all the Holders, which counsel shall be chosen by the Initiating Holder, blue
sky fees and expenses and the expense of any special audits incident to or
required by any such Registration (but excluding the compensation of regular
employees of the Company, which shall be paid in any event by the Company);
Restated Certificate: shall have the meaning set forth in that certain
Stockholders' Agreement, dated as of the date hereof, by and among the Company
and the Investors;
Security, Securities: shall have the meaning set forth in Section 2(1)
of the Securities Act;
Securities Act: shall mean the Securities Act of 1933, as amended (or
any successor act), and the rules and regulations promulgated thereunder; and
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Selling Expenses: shall mean all underwriting discounts and selling
commissions applicable to the sale of Registrable Securities and all fees and
disbursements of counsel for each of the Holders other than fees and expenses of
one counsel.
SECTION 2. REGISTRATION RIGHTS
(a) Requested Registration.
(i) Request for Registration. If the Company shall receive a
written request that the Company effect any Registration with respect to
all or a part of the Registrable Securities from the Initiating Holder, (x)
at any time prior to the Initial Qualified Public Offering or (y) at any
time after 180 days after the Initial Qualified Public Offering, the
Company will:
(1) promptly give written notice of the proposed
Registration, qualification or compliance to all other Holders (other
than the Employee Investors if in connection with any QPO
Registration); and
(2) as soon as practicable, use its diligent best efforts to
effect such Registration (including, without limitation, the execution
of an undertaking to file post-effective amendments, appropriate
qualification under applicable blue sky or other state securities laws
and appropriate compliance with applicable regulations issued under
the Securities Act) as may be so requested and as would permit or
facilitate the sale and distribution of all or such portion of such
Registrable Securities as are specified in such request, together with
all or such portion of the Registrable Securities of any Holder or
Holders (other than the Employee Investors if in connection with any
QPO Registration) joining in such request as are specified in a
written request received by the Company within ten (10) business days
after written notice from the Company is given under Section
2(a)(i)(1) above; provided that the Company shall not be obligated to
effect, or take any action to effect:
(A) any such Registration pursuant to this Section 2(a)
in any particular jurisdiction in which the Company would be
required to execute a general consent to service of process in
effecting such Registration, qualification or compliance, unless
the Company is already subject to service in such jurisdiction
and except as may be required by the Securities Act or applicable
rules or regulations thereunder;
(B) any such Registration pursuant to clause (y) of
this Section 2(a)(i), if the Company has effected two (2) such
Registrations pursuant to requests under clause (y) of this
Section 2(a)(i) and such Registrations have been declared or
ordered effective and the sales of all such Registrable
Securities requested to be so Registered shall have closed;
(C) any such Registration pursuant to this Section
2(a), if the Registrable Securities requested by the Initiating
Holder to be
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Registered pursuant to such request do not have an anticipated
aggregate public offering price (before deduction of Selling
Expenses) of at least $25,000,000;
(D) any such Registration pursuant to this Section 2(a)
during the period starting with the date sixty (60) days prior to
the Company's good faith estimate of the date of filing of, and
ending on the date six (6) months immediately following the
effective date of, any registration statement pertaining to
securities of the Company (other than a Registration of
securities in a Rule 145 transaction under the Securities Act,
with respect to an employee benefit plan or with respect to the
Initial Public Offering), provided that the Company is actively
employing in good faith all reasonable efforts to cause such
registration statement to become effective; provided, however,
that the Company may only delay an offering pursuant to this
Section 2(a)(i)(2)(D) for a period of not more than sixty (60)
days, if a filing of any other registration statement is not made
within that period and the Company may only exercise this right
once in any twelve (12)-month period; or
(E) any such Registration pursuant to this Section
2(a), if the Company shall furnish to the Initiating Holder a
certificate signed by the President of the Company stating that
in the good faith judgment of the Board of Directors of the
Company it would be seriously detrimental to the Company or its
stockholders for a registration statement to be filed in the near
future, in which case the Company's obligation to use its
diligent best efforts to comply with this Section 2(a) shall be
deferred for a period not to exceed sixty (60) days from the date
of receipt of the written request from such Initiating Holder;
provided, however, that the Company shall not exercise such right
more than once in any twelve (12)-month period.
The registration statement filed pursuant to the request of the
Initiating Holder may, subject to the provisions of Section 2(a)(ii) below,
include other securities of the Company which are held by Persons who, by virtue
of agreements with the Company, are entitled to include their securities in any
such Registration ("Other Stockholders"). In the event that the Institutional
Investors request a Registration pursuant to this Section 2(a) in connection
with a distribution of Registrable Securities to its partners or members, the
Registration shall provide for the resale by such partners or members, if
requested by such Institutional Investors.
(ii) Underwriting. If the Initiating Holder intends to distribute
the Registrable Securities covered by its request (including, subject to
the terms hereof, such Registrable Securities of any Holder joining such
request pursuant to, and in accordance with, Section 2(a)(i)(2) hereof) by
means of an underwriting, it shall so advise the Company as a part of its
request made pursuant to Section 2(a)(i).
If Other Stockholders request inclusion of their securities in the
underwriting, the Holders shall offer to include the securities of such Other
Stockholders in the underwriting and may condition such offer on their
acceptance of the further applicable provisions of this Section
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2. The Holders whose shares of Common Stock are to be included in such
Registration and the Company shall (together with all Other Stockholders
proposing to distribute their securities through such underwriting) enter into
an underwriting agreement in customary form with the representative of the
underwriter or underwriters selected for such underwriting by the Initiating
Holder and reasonably acceptable to the Company; provided, however, that such
underwriting agreement shall not provide for indemnification or contribution
obligations on the part of the Holders materially greater than the obligations
of the Holders under Section 2(f)(ii). Notwithstanding any other provision of
this Section 2(a), if the representative advises the Holders in writing that
marketing factors require a limitation on the number of shares of Common Stock
to be underwritten, the securities of the Company held by Other Stockholders
shall be excluded from such Registration to the extent so required by such
limitation. If, after the exclusion of such shares, further reductions are still
required, the number of Registrable Securities included in the Registration by
each Holder shall be reduced on a pro rata basis (based on the number of shares
held by such Holder), by such minimum number of shares as is necessary to comply
with such request. No Registrable Securities or any other securities excluded
from the underwriting by reason of the underwriter's marketing limitation shall
be included in such Registration. If any Other Stockholder who has requested
inclusion in such Registration as provided above disapproves of the terms of the
underwriting, such Person may elect to withdraw therefrom by providing written
notice to the Company, the underwriter and the Initiating Holder. The securities
so withdrawn shall also be withdrawn from Registration. If the underwriter has
not limited the number of Registrable Securities or other securities to be
underwritten, the Company and officers and directors of the Company (to the
extent such Persons are not otherwise Holders) may include its or their
securities for its or their own account in such Registration if the
representative so agrees and if the number of Registrable Securities and other
securities which would otherwise have been included in such Registration and
underwriting will not thereby be limited.
(b) Company Registration.
(i) If the Company shall determine to Register any of its equity
securities either for its own account or for the account of the
Institutional Investors, any Holder or any Other Stockholder, other than a
Registration relating solely to employee benefit plans, or a Registration
relating solely to a Rule 145 transaction under the Securities Act, or a
Registration on any registration form which does not permit secondary sales
or does not include substantially the same information as would be required
to be included in a registration statement covering the sale of Registrable
Securities, the Company will:
(1) promptly give to each of the Holders (other than the
Employee Investors if in connection with any QPO Registration) a
written notice thereof (which notice shall include a list of the
jurisdictions in which the Company intends to attempt to qualify such
securities under the applicable blue sky or other state securities
laws); and
(2) include in such Registration (and any related
qualification under blue sky laws or other compliance), and in any
underwriting involved therein, all the Registrable Securities (other
than Registrable Securities held by
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the Employee Investors if in connection with any QPO Registration)
specified in a written request or requests, made by the Holders within
fifteen (15) days after receipt of the written notice from the Company
described in clause (1) above, except as set forth in Section 2(b)(ii)
below. Such written request may specify to include in such
registration all or a part of the Holders' Registrable Securities. In
the event any Holder requests inclusion in a Registration pursuant to
this Section 2(b) in connection with a distribution of Registrable
Securities to its partners or members, the Registration shall provide
for the resale by such partners or members, if requested by such
Holder.
(ii) Underwriting. If the Registration of which the Company gives
notice is for a Registered public offering involving an underwriting, the
Company shall so advise each of the Holders (other than the Employee
Investors if in connection with the Initial Qualified Public Offering or
Registrations prior to such Initial Qualified Public Offering) as a part of
the written notice given pursuant to Section 2(b)(i)(1) above. In such
event, the right of each of the Holders (other than the Employee Investors
if in connection with the Initial Qualified Public Offering or
Registrations prior to such Initial Qualified Public Offering) to
Registration pursuant to this Section 2(b) shall be conditioned upon such
Holders' participation in such underwriting and the inclusion of such
Holders' Registrable Securities in the underwriting to the extent provided
herein. The Holders whose shares are to be included in such Registration
shall (together with the Company and the Other Stockholders distributing
their securities through such underwriting) enter into an underwriting
agreement in customary form with the representative of the underwriter or
underwriters selected for underwriting by the Company; provided, however,
that such underwriting agreement shall not provide for indemnification or
contribution obligations on the part of the Holders materially greater than
the obligations of the Holders under Section 2(f)(ii). Notwithstanding any
other provision of this Section 2(b), if the representative determines that
marketing factors require a limitation on the number of shares to be
underwritten, and (x) if such Registration is the Initial Public Offering,
the representative may (subject to the allocation priority set forth below)
exclude from such Registration and underwriting some or all of the
Registrable Securities which would otherwise be underwritten pursuant
hereto, and (y) if such Registration is other than the Initial Public
Offering, the representative may (subject to the allocation priority set
forth below) limit the number of Registrable Securities to be included in
the Registration and underwriting to not less than twenty-five percent
(25%) of the shares included therein (based on the number of shares). The
Company shall so advise all Holders of securities requesting Registration,
and the number of shares of securities that are entitled to be included in
the Registration and underwriting shall be allocated in the following
manner: The securities of the Company held by officers, directors and Other
Stockholders of the Company (other than Registrable Securities and other
than securities held by holders who by contractual right demanded such
Registration ("Demanding Holders")) shall be excluded from such
Registration and underwriting to the extent required by such limitation,
and, if a limitation on the number of shares is still required, the number
of shares that may be included in the Registration and underwriting by each
of the Holders and Demanding Holders shall be reduced, on a pro rata basis
(based on the number of shares held by such Holder or Demanding Holder), by
such minimum number of shares as is necessary to
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comply with such limitation. If any of the Holders or any officer, director
or Other Stockholder disapproves of the terms of any such underwriting, he,
she or it may elect to withdraw therefrom by providing written notice to
the Company and the underwriter. Any Registrable Securities or other
securities excluded or withdrawn from such underwriting shall be withdrawn
from such Registration.
(c) Form S-3. Following the Initial Public Offering, the Company shall
use its best efforts to qualify for Registration on Form S-3 for secondary
sales. After the Company has qualified for the use of Form S-3, the Initiating
Holder shall have the right to request an unlimited number of Registrations on
Form S-3 (such requests shall be in writing and shall state the number of shares
of Registrable Securities to be disposed of and the intended method of
disposition of shares by such Initiating Holder), provided that the Company
shall not be obligated to effect, or take any action to effect, any such
Registration pursuant to this Section 2(c):
(i) unless the Holders requesting Registration propose to dispose
of shares of Registrable Securities having an aggregate price to the public
(before deduction of Selling Expenses) of more than $10,000,000;
(ii) within one hundred eighty (180) days of the effective date
of the most recent Registration pursuant to this Section 2(c) in which
securities held by the Initiating Holder could have been included for sale
or distribution;
(iii) in any particular jurisdiction in which the Company would
be required to execute a general consent to service of process in effecting
such Registration, qualification or compliance, unless the Company is
already subject to service in such jurisdiction and except as may be
required by the Securities Act or applicable rules or regulations
thereunder;
(iv) during the period starting with the date sixty (60) days
prior to the Company's good faith estimate of the date of filing of, and
ending on the date six (6) months immediately following the effective date
of, any registration statement pertaining to securities of the Company
(other than a Registration of securities in a Rule 145 transaction under
the Securities Act or with respect to an employee benefit plan), provided
that the Company is actively employing in good faith all reasonable efforts
to cause such registration statement to become effective; provided,
however, that the Company may only delay an offering pursuant to this
Section 2(c)(iv) for a period of not more than sixty (60) days, if a filing
of any other registration statement is not made within that period and the
Company may only exercise this right once in any twelve (12)-month period;
or
(v) if the Company shall furnish to the Initiating Holder a
certificate signed by the President of the Company stating that in the good
faith judgment of the Board of Directors of the Company it would be
seriously detrimental to the Company or its stockholders for a registration
statement to be filed in the near future, in which case the Company's
obligation to use its best efforts to comply with this Section 2(c) shall
be deferred for a period not to exceed sixty (60) days from the date of
receipt of a written
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request from the Initiating Holder; provided, however, that the Company
shall not exercise such right more than once in any twelve (12)-month
period.
The Company shall give written notice to all Holders of the receipt of
a request for Registration pursuant to this Section 2(c) and shall provide a
reasonable opportunity for other Holders to participate in the Registration,
provided that if the Registration is for an underwritten offering, the terms of
Section 2(a)(ii) above shall apply to all participants in such offering. Subject
to the foregoing, the Company will use its best efforts to effect promptly the
Registration of all shares of Registrable Securities on Form S-3 to the extent
requested by the Initiating Holder holding such shares for purposes of
disposition. In the event the Initiating Holder requests a Registration pursuant
to this Section 2(c) in connection with a distribution of Registrable Securities
to its partners or members, the Registration shall provide for the resale by
such partners or members, if requested by such Initiating Holder.
(d) Expenses of Registration. All Registration Expenses incurred in
connection with any Registration, qualification or compliance pursuant to this
Section 2 shall be borne by the Company, and all Selling Expenses shall be borne
by the Holders of the securities so Registered pro rata on the basis of the
number of their shares so Registered other than fees and expenses of counsel,
which, to the extent not included in Registration Expenses, shall be borne by
the Holder incurring such fees and expenses of counsel (or, if incurred by a
Holder or Holders on behalf of one or more other Holders, pro rata on the basis
of the number of their shares so Registered).
(e) Registration Procedures. In the case of each Registration effected
by the Company pursuant to this Section 2, the Company will keep the Holders, as
applicable, advised in writing as to the initiation of each Registration and as
to the completion thereof. At its expense, the Company will:
(i) keep such Registration effective for a period of one hundred
twenty (120) days or until the Holders (or in the case of a distribution to
the partners or members of such Holder, such partners or members), as
applicable, have completed the distribution described in the registration
statement relating thereto, whichever first occurs; provided, however, that
(1) such one hundred twenty (120)-day period shall be extended for a period
of time equal to the period during which the Holders, partners or members,
as applicable, refrain from selling any securities included in such
Registration in accordance with the provisions in Section 2(i) hereof; and
(2) in the case of any Registration of Registrable Securities on Form S-3
which are intended to be offered on a continuous or delayed basis, such one
hundred and twenty (120)-day period shall be extended until all such
Registrable Securities are sold, provided that Rule 415, or any successor
rule under the Securities Act, permits an offering on a continuous or
delayed basis; and provided further that applicable rules under the
Securities Act governing the obligation to file a post-effective amendment
permit, in lieu of filing a post-effective amendment which (x) includes any
prospectus required by Section 10(a) of the Securities Act or (y) reflects
facts or events representing a material or fundamental change in the
information set forth in the registration statement, the incorporation by
reference of information required to be included in (x) and (y) above to be
contained in periodic
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reports filed pursuant to Section 12 or 15(d) of the Exchange Act in the
registration statement;
(ii) furnish such number of prospectuses and other documents
incident thereto as each of the Holders, as applicable, from time to time
may reasonably request;
(iii) notify each Holder of Registrable Securities covered by
such Registration at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any
event as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material
fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, in the light of
the circumstances then existing; and
(iv) furnish, on the date that such Registrable Securities are
delivered to the underwriters for sale, if such securities are being sold
through underwriters or, if such securities are not being sold through
underwriters, on the date that the registration statement with respect to
such securities becomes effective, (1) an opinion, dated as of such date,
of the counsel representing the Company for the purposes of such
Registration, in form and substance as is customarily given to underwriters
in an underwritten public offering and reasonably satisfactory to a
majority in interest of the Holders participating in such Registration,
addressed to the underwriters, if any, and to the Holders participating in
such Registration and (2) a letter, dated as of such date, from the
independent certified public accountants of the Company, in form and
substance as is customarily given by independent certified public
accountants to underwriters in an underwritten public offering and
reasonably satisfactory to a majority in interest of the Holders
participating in such Registration, addressed to the underwriters, if any,
and if permitted by applicable accounting standards, to the Holders
participating in such Registration.
(f) Indemnification.
(i) The Company will indemnify each of the Holders, as
applicable, each of its officers, directors, partners and members, and each
Person controlling each of the Holders, with respect to each Registration
which has been effected pursuant to this Section 2, and each underwriter,
if any, and each Person who controls any underwriter, against all claims,
losses, damages and liabilities (or actions in respect thereof) arising out
of or based on any untrue statement (or alleged untrue statement) of a
material fact contained in any prospectus, offering circular or other
document (including any related registration statement, notification or the
like) incident to any such Registration, qualification or compliance, or
based on any omission (or alleged omission) to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, or any violation by the Company of the Securities
Act or the Exchange Act or any rule or regulation thereunder applicable to
the Company and relating to action or inaction required of the Company in
connection with any such Registration, qualification or compliance, and
will reimburse each of the Holders, each of its officers, directors,
partners and members, and each Person controlling each of the
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Holders, each such underwriter and each Person who controls any such
underwriter, for any legal and any other expenses reasonably incurred in
connection with investigating and defending any such claim, loss, damage,
liability or action, provided that the Company will not be liable in any
such case to the extent that any such claim, loss, damage, liability or
expense arises out of or is based on any untrue statement or omission based
upon written information furnished to the Company by the Holders or
underwriter and stated to be specifically for use therein.
(ii) Each of the Holders will, if Registrable Securities held by
it are included in the securities as to which such Registration,
qualification or compliance is being effected, indemnify the Company, each
of its directors and officers and each underwriter, if any, of the
Company's securities covered by such a registration statement, each Person
who controls the Company or such underwriter, each Other Stockholder and
each of their respective officers, directors, partners and members, and
each Person controlling such Other Stockholder against all claims, losses,
damages and liabilities (or actions in respect thereof) arising out of or
based on any untrue statement (or alleged untrue statement) of a material
fact contained in any such registration statement, prospectus, offering
circular or other document made by such Holder about such Holder, or any
omission (or alleged omission) to state therein a material fact required to
be stated therein or necessary to make the statements by such Holder about
such Holder therein not misleading, and will reimburse the Company and such
Other Stockholders, directors, officers, partners, members, Persons,
underwriters or control Persons for any legal or any other expenses
reasonably incurred in connection with investigating and defending any such
claim, loss, damage, liability or action, in each case to the extent, but
only to the extent, that such untrue statement (or alleged untrue
statement) or omission (or alleged omission) is made in such registration
statement, prospectus, offering circular or other document in reliance upon
and in conformity with written information furnished to the Company by such
Holder and stated to be specifically for use therein; provided, however,
that the obligations of each of the Holders hereunder shall be limited to
an amount equal to the net proceeds to such Holder of securities sold as
contemplated herein.
(iii) Each party entitled to indemnification under this Section
2(f) (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 any litigation resulting therefrom, shall be approved by the
Indemnified Party (whose approval shall not unreasonably be withheld) and
the Indemnified Party may participate in such defense at such party's
expense (unless the Indemnified Party shall have reasonably concluded that
there may be a conflict of interest between the Indemnifying Party and the
Indemnified Party in such action, in which case the fees and expenses of
counsel shall be at the expense of the Indemnifying Party); 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 2(f) unless the Indemnifying Party is materially
prejudiced thereby. No Indemnifying Party, in the defense of any such claim
or litigation shall, except with the consent of each Indemnified
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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 to such claim or litigation. Each Indemnified Party
shall furnish such information regarding itself or the claim in question as
an Indemnifying Party may reasonably request in writing and as shall be
reasonably required in connection with the defense of such claim and
litigation resulting therefrom.
(iv) If the indemnification provided for in this Section 2(f) is
held by a court of competent jurisdiction to be unavailable to an
Indemnified Party with respect to any loss, liability, claim, damage or
expense referred to herein, then the Indemnifying Party, in lieu of
indemnifying such Indemnified Party hereunder, shall contribute to the
amount paid or payable by such Indemnified Party as a result of such loss,
liability, claim, damage or expense in such proportion as is appropriate to
reflect the relative fault of the Indemnifying Party on the one hand and of
the Indemnified Party on the other in connection with the statements or
omissions which resulted in such loss, liability, claim, damage or expense,
as well as any other relevant equitable considerations. The relative fault
of the Indemnifying Party and of the Indemnified 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 the Indemnifying Party
or by the Indemnified Party and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or omission.
(v) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the
underwriting agreement entered into in connection with any underwritten
public offering contemplated by this Agreement are in conflict with the
foregoing provisions, the provisions in such underwriting agreement shall
be controlling.
(vi) The foregoing indemnity agreement of the Company and Holders
is subject to the condition that, insofar as they relate to any loss,
claim, liability or damage arising out of a statement made in or omitted
from a preliminary prospectus but eliminated or remedied in the amended
prospectus on file with the Commission at the time the registration
statement in question becomes effective or the amended prospectus filed
with the Commission pursuant to Rule 424(b) under the Securities Act (the
"Final Prospectus"), such indemnity or contribution agreement shall not
inure to the benefit of any underwriter or Holder if a copy of the Final
Prospectus was furnished to the underwriter and was not furnished to the
Person asserting the loss, liability, claim or damage at or prior to the
time such action is required by the Securities Act.
(g) Information by the Holders.
(i) Each of the Holders holding securities included in any
Registration shall furnish to the Company such information regarding such
Holder and the distribution proposed by such Holder as the Company may
reasonably request in writing and as shall
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be reasonably required in connection with any Registration, qualification
or compliance referred to in this Section 2.
(ii) In the event that, either immediately prior to or subsequent
to the effectiveness of any registration statement, any Holder shall
distribute Registrable Securities to its partners or members, such Holder
shall so advise the Company and provide such information as shall be
necessary to permit an amendment to such registration statement to provide
information with respect to such partners or members, as selling security
holders. Promptly following receipt of such information, the Company shall
file an appropriate amendment to such registration statement reflecting the
information so provided. Any incremental expense to the Company resulting
from such amendment shall be borne by such Holder.
(h) Rule 144 Reporting.
With a view to making available the benefits of certain rules and
regulations of the Commission which may permit the sale of restricted securities
to the public without Registration, the Company agrees to:
(i) make and keep public information available as those terms are
understood and defined in Rule 144 under the Securities Act ("Rule 144"),
at all times from and after ninety (90) days following the effective date
of the first Registration under the Securities Act filed by the Company for
an offering of its securities to the general public;
(ii) 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
(iii) so long as a Holder owns any Registrable Securities,
furnish to such Holder upon request, a written statement by the Company as
to its compliance with the reporting requirements of Rule 144 (at any time
from and after ninety (90) days following the effective date of the first
registration statement filed by the Company for an offering of its
securities to the general public), 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 so filed as such Holder may
reasonably request in availing itself of any rule or regulation of the
Commission allowing such Holder to sell any such securities without
Registration.
(i) "Market Stand-off" Agreement. Each of the Holders agrees, if
requested by the Company and an underwriter of equity securities of the Company,
not to sell or otherwise transfer or dispose of any Registrable Securities held
by such Holder during the one hundred eighty (180)-day period immediately
following the effective date of a registration statement of the Company filed
under the Securities Act or, if the Initiating Holder agrees to be subject to
such restriction for a period longer than such one hundred eighty (180)-day
period, such longer period; provided that:
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(i) such agreement only applies to the Initial Public Offering;
and
(ii) all officers and directors of the Company enter into similar
agreements.
If requested by the underwriters, the Holders shall execute a separate
agreement to the foregoing effect. The Company may impose stop-transfer
instructions with respect to the shares (or securities) subject to the foregoing
restriction until the end of said restricted period. The provisions of this
Section 2(i) shall be binding upon any transferee who acquires Registrable
Securities.
(j) Additional Registration Rights. The Company shall not, without
first obtaining the written consent of the Holders who are Holders of more than
50% of the then outstanding Registrable Securities, grant future Registration
rights on terms more favorable than the Registration rights granted pursuant to
this Agreement.
(k) Termination. The Registration rights set forth in this Section 2
shall not be available to any Holder if, (i) in the opinion of counsel to the
Company, all of the Registrable Securities then owned by such Holder could be
sold in any ninety (90)-day period pursuant to Rule 144 (without giving effect
to the provisions of Rule 144(k)) or (ii) all of the Registrable Securities held
by such Holder have been sold in a Registration pursuant to the Securities Act
or pursuant to Rule 144.
SECTION 3. MISCELLANEOUS
(a) Directly or Indirectly. Where any provision in this Agreement
refers to action to be taken by any Person, or which such Person is prohibited
from taking, such provision shall be applicable whether such action is taken
directly or indirectly by such Person.
(b) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
made and to be performed entirely within such State.
(c) Section Headings. The headings of the sections and subsections of
this Agreement are inserted for convenience only and shall not be deemed to
constitute a part thereof.
(d) Notices.
(i) All notices, requests, demands, waivers and other
communications required or permitted to be given under this Agreement shall
be in writing and shall be deemed to have been duly given if (a) delivered
personally, (b) mailed, certified or registered mail with postage prepaid,
(c) sent by next-day or overnight mail or delivery or (d) sent by telecopy
(including facsimile), as follows:
(1) if to the Company, to Chronic Care Solutions Holding,
Inc. c/o Warburg Pincus Private Equity IX, L.P., 000 Xxxxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxxxxxx (facsimile: (212)
878-9100), or at such other address as it may have furnished in
writing to the Company and
-13-
Holders, with a copy to Xxxxxxx Xxxx & Xxxxxxxxx LLP, 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxxx X. Xxxxxxx, Esq.
(facsimile: (000) 000-0000).
(2) if to the Institutional Investors or the Employee
Investors, at the address or facsimile number listed on Schedule I or
Schedule II, respectively, or at such other address or facsimile
number as the Institutional Investors or the Employee Investors may
have furnished in writing to the Company and the Holders.
(ii) Any notice so addressed shall be deemed to be given: if
delivered personally or by telecopy (including facsimile), on the date of
such delivery, if a business day, otherwise on the first business day
thereafter; if mailed by certified or registered mail with postage prepaid,
on the third business day after the date of such mailing; and if sent by
next-day or overnight mail or delivery, on the first business day following
the date of such mailing or delivery.
(e) Reproduction of Documents. This Agreement and all documents
relating hereto, including, without limitation, any consents, waivers and
modifications which may hereafter be executed may be reproduced by the Holders
by any photographic, photostatic, microfilm, microcard, miniature photographic
or other similar process and the Holders may destroy any original document so
reproduced. The parties hereto agree and stipulate that any such reproduction
shall be admissible in evidence as the original itself in any judicial or
administrative proceeding (whether or not the original is in existence and
whether or not such reproduction was made by the Holders in the regular course
of business) and that any enlargement, facsimile or further reproduction of such
reproduction shall likewise be admissible in evidence.
(f) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties. The
registration rights set forth in Section 2 of this Agreement may be assigned, in
whole or in part, to any transferee of Registrable Securities (who shall be
bound by all obligations of this Agreement); provided, however, that no
transferee of Registrable Securities shall have any rights under this Agreement
unless (i) the transferee is expressly granted rights under this Agreement and
such rights are set forth in a writing executed by the transferor and the
Company and (ii) such transferee's Registrable Securities represent at least
five percent (5%) of the outstanding Common Stock on a fully-diluted basis.
(g) Entire Agreement; Amendment and Waiver. This Agreement constitutes
the entire understanding of the parties hereto relating to the subject matter
hereof and supersedes all prior understandings among such parties. This
Agreement may be amended, and the observance of any term of this Agreement may
be waived, with (and only with) the written consent of the Company and the
Institutional Investors holding a majority of the then outstanding Registrable
Securities then held by the Institutional Investors.
(h) Severability. In the event that any part or parts of this
Agreement shall be held illegal or unenforceable by any court or administrative
body of competent jurisdiction, such
-14-
determination shall not affect the remaining provisions of this Agreement which
shall remain in full force and effect.
(i) Counterparts. This Agreement may be executed in two or more
counterparts (including by facsimile), each of which shall be deemed an original
and all of which together shall be considered one and the same agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-15-
IN WITNESS WHEREOF, the undersigned has executed this Registration
Rights Agreement as of the date first above written.
CHRONIC CARE SOLUTIONS HOLDING, INC.
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Title: President
[Registration Rights Agreement Signature Page]
IN WITNESS WHEREOF, the undersigned has executed this Registration
Rights Agreement as of the date first above written.
WARBURG PINCUS PRIVATE EQUITY IX, L.P.
By: Warburg Pincus IX LLC, General
Partner
By: /s/ Xxxxx Xxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Managing Director
[Registration Rights Agreement Signature Page]
IN WITNESS WHEREOF, the undersigned has executed this Registration
Rights Agreement as of the date first set forth above.
EMPLOYEE INVESTOR:
/s/ Xxxxxx Deutsch
----------------------------------------
Name: Xxxxxx Deutsch
Title: Executive Chairman
[Registration Rights Agreement Signature Page]
IN WITNESS WHEREOF, the undersigned has executed this Registration
Rights Agreement as of the date first set forth above.
EMPLOYEE INVESTOR:
/s/ Xxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxx Xxxxxx
Title: Chief Executive Officer
[Registration Rights Agreement Signature Page]
IN WITNESS WHEREOF, the undersigned has executed this Registration
Rights Agreement as of the date first set forth above.
EMPLOYEE INVESTOR:
/s/ Xxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxx
Title: Chief Financial Officer
[Registration Rights Agreement Signature Page]
IN WITNESS WHEREOF, the undersigned has executed this Registration
Rights Agreement as of the date first set forth above.
EMPLOYEE INVESTOR:
/s/ Xxxxxxx Xxxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxxx
[Registration Rights Agreement Signature Page]
IN WITNESS WHEREOF, the undersigned has executed this Registration
Rights Agreement as of the date first set forth above.
EMPLOYEE INVESTOR:
/s/ Xxxxxx Xxxxxxxxxx
----------------------------------------
Name: Xxxxxx Xxxxxxxxxx
[Registration Rights Agreement Signature Page]
IN WITNESS WHEREOF, the undersigned has executed this Registration
Rights Agreement as of the date first set forth above.
EMPLOYEE INVESTOR:
/s/ Xxxxx Xxxxx
----------------------------------------
Name: Xxxxx Xxxxx
[Registration Rights Agreement Signature Page]
Schedule I
"Institutional Investors"
INVESTOR NAME AND ADDRESS
Warburg Pincus Private Equity IX, L.P.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxxxx
with a copy to:
Xxxxxxx Xxxx & Xxxxxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Schedule II
"Employee Investors"
INVESTOR NAME AND ADDRESS
XXXXXX DEUTSCH
00 Xxxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
XXXXXX XXXXXX
0000 Xxxxxxx Xxx
Xxxx Xxxxxx, XX 00000
XXXXXX XXXXXX
000 Xxxxxxx Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
XXXXXXX XXXXXXX
0000 Xxxxx Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
XXXXXX XXXXXXXXXX
0000 Xxxxxxxxx Xxxxx
Xxxx Xxxxxx, XX 00000
XXXXX XXXXX
0000 Xxxxx Xxxxxx Xxxx
Xxxxxxxx, XX 00000
