EXHIBIT 4
REGISTRATION RIGHTS AGREEMENT, dated as of December 31, 1996, among
PHYSICIAN SUPPORT SYSTEMS, INC., a Delaware corporation (the
"Company"), and each of the shareholders of Revenue Production
Management, Inc., an Illinois corporation ("RPM"), listed on the
signature pages hereof (collectively, the "Stockholders").
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Pursuant to an Agreement and Plan of Merger, dated as of December 31,
1996 (the "Merger Agreement"), among the Company, PSS Revenue Production
Management, Inc., a Delaware corporation ("Merger Subsidiary") and a wholly
owned subsidiary of PSS, and Revenue Production Management, Inc. "RPM", the
Stockholders have the right to receive shares of common stock, par value $.001
per share (the "Common Stock"), of the Company upon the Effective Time of the
merger (the "Merger") of Merger Subsidiary with and into RPM.
As a condition to the Merger, the Company must enter into this
Agreement.
The parties hereto agree as follows:
1. Definitions. As used herein, the following terms have the
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following respective meanings:
Commission means the Securities and Exchange Commission, or any other
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federal agency at the time administering the Securities Act.
Distribution Period means (a) in the case of a distribution of
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Registrable Shares in a firm commitment underwritten public offering, the period
of time following the effective date of the registration statement utilized in
connection with such registration under the Securities Act and extending until
each underwriter has completed the distribution of all securities purchased by
it, but in any case not more than 30 days, and (b) in the case of any other
registration of Registrable Shares, the period ending on the earlier of (i) the
sale of all Registrable Shares covered by such registration and (ii) 21 days
following the effective date of the such registration statement.
Effective Time means the time at which the Merger becomes effective as
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set forth in the Merger Agreement.
Pooling Period means the period beginning at the Effective Time and
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continuing until such time as financial results covering at least 30 days of
combined operations of the Company and RPM shall have been published by the
Company within the meaning of Section 201.01 of the Commission's Codification of
Financial Reporting Policies.
Registrable Shares means the shares of Common Stock issued to the
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Stockholders pursuant to the Merger Agreement, which bear the legend set forth
in Section 10.
Securities Act means the Securities Exchange Act of 1933, as amended.
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2. Incidental Registration. (a) If at any time after the Pooling
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Period, the Company proposes to register any Common Stock under the Securities
Act (other than on Forms X-0, X-0 or any other form which does not permit
registration of securities by selling stockholders for sale to the public for
cash) in connection with the proposed offer and sale for cash either for its own
account or on behalf of any holder of Common Stock (an "Eligible Registration"),
it will give written notice to the Stockholders of its intention to do so. Upon
a Stockholder's written request to the Company, given within five business days
after receipt of any such notice, to register any of such Stockholder's
Registrable Shares, the Company will use its reasonable best efforts to cause
the Registrable Shares as to which registration shall have been so requested to
be included in the shares of Common Stock to be covered by the registration
statement proposed to be filed by the Company; provided that nothing set forth
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in this Agreement shall prevent the Company from, at any time, withdrawing,
abandoning or delaying any registration of such Common Stock.
(b) The Company shall have the sole right to select the managing
underwriter or underwriters. The managing underwriter for such offering shall
have the authority, in its sole discretion, to reduce the number of Registrable
Shares to be included in such registration if and to the extent that it
determines that inclusion of such Registrable Shares would adversely affect the
marketing of the other Common Stock to be sold thereunder. Any such reduction
in the shares included in any such offering shall be effected (i) first, by
excluding shares ("Piggyback Shares") of Common Stock that otherwise would be
included by virtue of incidental or piggyback registration rights (but not
demand registration rights) granted to stockholders (including the
Stockholders), which exclusion shall be effected on a pro rata basis based upon
the number of shares of Common Stock so requested to be registered in such
offering by all such stockholders proposing to sell Piggyback Shares and (ii)
second, only to the extent necessary and after the exclusion of all Piggyback
Shares, by excluding shares of Common Stock included in such registration by the
Company and any stockholder of the Company who shall have exercised a demand
registration right in connection with such offering, which exclusion shall be
effected on a pro rata basis upon the number of shares of Common Stock proposed
to be registered on behalf of the Company and on behalf of any such holder of
demand registration rights.
(c) If any registration pursuant to this Section 2 shall be
underwritten, in whole or in part, the Company or the managing underwriter or
underwriters may require that the Registrable Shares requested for inclusion
pursuant to this Section 2 be included in the underwriting on the same terms and
conditions as the securities otherwise being sold through the underwriters.
3. Demand Registration. (a) If, on or before June 30, 1997, December
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31, 1997 or December 31, 1998 (in each case, a "Trigger Date"), the Company has
not registered any Common Stock under an Eligible Registration in which the
holders of Registrable Shares were entitled to include (whether or not they
elected to include and net of any reductions pursuant to Section 2(b) in the
number of Registrable Shares that may have been included) at least 25%, 50% and
100%, respectively, of their Registrable Shares initially held (which
percentages shall be determined on a cumulative basis, giving effect to all
prior registrations under Section 2 and all prior registrations under Section
3), then, at any time after the applicable Trigger Date, the Stockholders may
request that the Company register the Registrable Shares under the Securities
Act for public sale (the "Demand Rights"); provided that (i) at least 37,500
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Registerable Shares must be included in any Demand Right, (ii) not more than
157,500 Registerable Shares may be included in any registration statement
prepared or filed on or before Xxxxxxxx 00, 0000, (xxx) not more than 240,000
Registerable Shares may be included in any registration statement prepared or
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filed pursuant to a Demand Right on or before December 31, 1998, (iv) not more
than 316,000 Registerable Shares may be included in any registration statement
prepared or filed pursuant to a Demand Right after December 31, 1998, (v) not
more than three Demand Rights may be requested in the aggregate and (vi) not
more than one Demand Right may be exercised in any 9-month period. To request a
Demand Right, Stockholders wishing to include in a Demand Right a number of
Registrable Shares at least equal to the minimum number of Registrable Shares
required to be included therein shall notify the Company of their request for a
Demand Right. Within 10 business days of such notice, the Company shall notify
the Stockholders that were not part of such Demand Right request that the
Company has received a request for a Demand Right. Upon written request of any
such Stockholder to the Company (given within five business days after receipt
of such notice) to include any of such Stockholder's Registrable Shares in such
Demand Right, such Registrable Shares shall be so included.
(b) The Company shall be entitled, in its sole discretion, to delay
undertaking efforts to register Registrable Shares pursuant to this Section 3
for (i) in the case of the first request for Demand Rights, a period of up to 60
days, (ii) in the case of the second request for Demand Rights, a period of up
to 90 days and (iii) in any other case, a period of up to 120 days, in each case
from the date of receipt of the request for Demand Rights specified in Section
3(a).
(c) The registration of Registrable Shares pursuant to this Section 3
shall, unless the Company otherwise agrees in its sole discretion, be pursuant
to an underwritten offering. The Company shall have the right, in its sole
discretion and to the exclusion of any holder of Registrable Shares, to select a
managing underwriter or underwriters in connection with any registration
statement filed pursuant to this Section 3 and shall have the right to include
any additional shares of Common Stock in a registration statement filed pursuant
to this Section 3. The managing underwriter for such offering shall have the
authority, in its sole discretion, to reduce the number of shares of Common
Stock to be included in a registration pursuant to this Section 3 if and to the
extent that it determines that inclusion of all of such shares of Common Stock
would adversely affect the marketing of the other shares of Common Stock to be
sold thereunder. Any such reduction in the shares included in any such offering
shall be effected (i) first, by excluding Piggyback Shares, which exclusion
shall be effected on a pro rata basis based upon the number of shares of Common
Stock so requested to be registered in such offering by all such stockholders
proposing to sell Piggyback Shares and (ii) second, only to the extent necessary
and after the exclusion of all Piggyback Shares, by excluding shares of Common
Stock included in such registration by the Company and any Stockholder who shall
have exercised a Demand Right in connection with such offering, which exclusion
shall be effected on a pro rata basis upon the number of shares of Common Stock
proposed to be registered on behalf of the Company and on behalf of any such
Stockholder.
(d) Notwithstanding anything to the contrary set forth in this
Section 3, the Stockholders may on one occasion rescind a request for a Demand
Right and such rescinded request shall not be considered a request for a Demand
Right for purposes of Section 3(a), provided that: (i) a written rescission
notice signed by all of the Stockholders that had requested that Registrable
Shares be included in such Demand Right (a "Rescission Notice") be received by
the Company prior to the Company's filing a registration statement relating to
such Demand Right; (ii) the Company has not incurred documented out-of-pocket
expenses in excess of $100,000 in connection with fulfilling its obligations
hereunder relating to such Demand Right; and (iii) the Stockholders may not
request another Demand Right within three months after rescinding a Demand Right
pursuant to this Section 3(d).
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4. Preparation and Filing. If and whenever the Company is under an
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obligation pursuant to the provisions of Section 2 or 3 to effect the
registration of any Registrable Shares, the Company shall, as expeditiously as
practicable:
(a) prepare and diligently pursue the filing with the Commission of a
registration statement with respect to such securities and use its reasonable
efforts to cause such registration statement to become and remain effective for
the Distribution Period, but no longer;
(b) prepare and file with the Commission such amendments and
supplements to such registration statements and the prospectus used in
connection therewith as may be necessary to keep such registration statement
effective for the Distribution Period, but no longer;
(c) furnish to the holders of Registrable Shares included in such
registration statement such number of copies of a summary prospectus or other
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as such holders of
Registrable Shares may reasonably request in order to facilitate the public sale
or other disposition of such Registrable Shares;
(d) use its reasonable efforts to register, qualify, or obtain an
exemption with respect to, the Registrable Shares covered by such registration
statement under the securities or "blue sky" laws of such states as each holder
of such Registrable Shares shall reasonably request (provided, that the Company
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shall not be required to consent to general service of process for all purposes
in any jurisdiction where it is not then qualified) and do any and all other
acts or things which may be necessary or advisable to enable such seller to
consummate the public sale or other disposition in such jurisdictions of such
securities;
(e) notify each Stockholder selling Registrable Shares covered by such
registration statement, at any time during the Distribution Period when a
prospectus relating thereto covered by such registration statement 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 at
the request of such Stockholder, prepare and furnish to such Stockholder a
reasonable number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such shares, such prospectus shall not include an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in the light
of the circumstances then existing;
(f) use its reasonable efforts to furnish, at the request of any
Stockholder requesting registration of Registrable Shares pursuant to Section 2
or 3, on the date that such Registrable Shares are delivered to the underwriters
for sale in connection with a registration pursuant to Section 2 or 3, 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, (i) an opinion, dated such
date, of the counsel representing the Company for the purposes of such
registration, stating that such registration statement has become effective
under the Securities Act and that (A) to the best of such counsel's knowledge,
no stop order suspending the effectiveness thereof has been issued and no
proceedings for that purpose have been instituted or are pending or contemplated
under the Securities Act, (B) the registration statement, the related
prospectus, and each amendment or
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supplement thereof, comply as to form in all material respects with the
requirements of the Securities Act and the applicable rules and regulations of
the Commission thereunder (except no opinion or statement is required regarding
financial statements and other financial and statistical data) and (C) to such
other effects as may reasonably be requested by counsel for the underwriters, if
any, and (ii) a letter dated such date, from the independent certified public
accountants of the Company, stating that they are independent public accountants
within the meaning of the Securities Act and that, in the opinion of such
accountants, the financial statements of the Company included or incorporated by
reference in the registration statement or the prospectus, or any amendment or
supplement thereof, comply as to form in all material respects with the
applicable accounting requirements of the Securities Act, and such letter shall
additionally cover such other financial matters with respect to the registration
in respect of which such letter is being given as such underwriters, if any, may
reasonably request;
(g) Notwithstanding anything to the contrary contained herein, the
Company shall have the right to deregister any Registrable Shares that remain
unsold at the conclusion of any Distribution Period.
5. Stockholders' Lock-Up; Cooperation. If any Registrable Shares of
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a Stockholder are included in an underwritten registration pursuant to Section 2
or 3, each Stockholder, as a condition to receiving the rights granted
hereunder, may be required to, and if required such Stockholder shall, enter
into an agreement (a "Lock-up Agreement"), pursuant to which such Stockholder
shall refrain from selling any Registrable Shares not included in such
registration during the period of distribution of Common Stock by such
underwriters and for a period of up to 180 days following the effective date of
such registration. In connection with each registration pursuant to Section 2
or 3 hereof, the Stockholders selling Registrable Shares shall furnish in
writing to the Company and any underwriter participating in such offering such
information with respect to themselves and the proposed distribution by them as
shall be reasonably necessary in order to assure compliance with federal and
applicable state securities laws.
6. Underwriting Agreement. In connection with each registration
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pursuant to Section 2 or 3 covering an underwritten public offering, the Company
and the Stockholders agree to enter into a written agreement with the managing
underwriter or underwriters in such form and containing such provisions as are
usual and customary in the securities business for such an arrangement between
reputable underwriters and companies of the Company's size and investment
stature; provided, that such agreement shall not contain any such provision
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applicable to the Company or the Stockholders which is inconsistent with the
provisions of this Agreement; and provided, further, that the time and place of
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the closing under said underwriting agreement shall be as mutually agreed upon
between the Company and such managing underwriter.
7. Expenses. All expenses incurred by the Company in complying with
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this Agreement, including, without limitation, all registration and filing fees,
fees and expenses of complying with securities and "blue sky" laws, printing
expenses and fees and disbursements of counsel, and of the independent certified
public accountants shall be paid by the Company; provided, that the fees and
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expenses of any counsel to the Stockholders and all underwriting discounts and
selling commissions applicable to the Registrable Shares covered by
registrations effected pursuant to Section 1 shall not be borne by the Company
but shall be borne by the seller or sellers.
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8. Indemnification. (a) In the event of any registration of any
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Registrable Shares under the Securities Act pursuant to this Agreement or
registration or qualification of any Registrable Shares pursuant to this
Agreement, the Company shall indemnify and hold harmless the Stockholder owning
such Registrable Shares and each other person, if any, who controls such holder,
within the meaning of Section 15 of the Securities Act, against any losses,
claims, damages or liabilities, joint or several, to which any of the foregoing
persons may become subject under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in any registration statement under which such
Registrable Shares were registered under the Securities Act, any preliminary
prospectus or final prospectus contained therein, or any amendment or supplement
thereto, or any document prepared or furnished by the Company incident to the
registration or qualification of any Registrable Shares pursuant to this
Agreement, or arise out of or are based upon the 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, with respect to any prospectus,
necessary to make the statements therein in light of the circumstances under
which they were made, not misleading, or any violation by the Company of the
Securities Act or state securities or "blue sky" laws applicable to the Company
and relating to action or inaction required of the Company in connection with
such registration or qualification under such state securities or blue sky laws;
and shall reimburse such Stockholder or other person acting on behalf of such
Stockholder and each such controlling person for any legal or any other expenses
reasonably incurred by any of them in connection with investigating or defending
any such loss, claim, damage, liability or action; provided, that the Company
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shall not be liable (i) in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in the
registration statement, the preliminary prospectus or prospectus or the
amendment or supplement or any document incident to the registration or
qualification of any Registrable Shares pursuant to this Agreement in reliance
upon and in conformity with written information furnished to the Company by such
Stockholder or such underwriter specifically for use in the preparation thereof
and (ii) to any broker or other person acting on behalf of such Stockholder to
the extent that any such loss, claim, damage or liability arises out of or is
based upon any representation or other statement of such broker or other person
that is not in conformity with the preliminary prospectus or prospectus.
(b) Each Stockholder hereby indemnifies and holds harmless the
Company, each director of the Company, each officer of the Company who shall
sign such registration statement and any person who controls the Company within
the meaning of Section 15 of the Securities Act, and before Registrable Shares
held by such Stockholder shall be included in any registration pursuant to this
Agreement, any underwriter acting on such Stockholder's behalf shall agree to
indemnify and hold harmless the Company, each director of the Company, each
officer of the Company who shall sign such registration statement and any person
who controls the Company within the meaning of the Securities Act (in each case
in the same manner and to the same extent as set forth in (a) above) with
respect to any untrue statement or omission from such registration statement,
any preliminary prospectus or final prospectus contained therein, or any
amendment or supplement thereof, if such untrue statement or omission was made
in reliance upon and in conformity with written information furnished to the
Company by such Stockholder or such underwriter, as the case may be,
specifically for use in the preparation of such registration statement,
preliminary prospectus, final prospectus or amendment or supplement; provided
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that, the maximum amount of liability in respect of such indemnification shall
be limited, in the case of each Stockholder who, at any time during the
registration or the year preceding the registration,
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was not an officer or director of the Company or any of its subsidiaries, to an
amount paid for such Registrable Shares upon the sale thereof pursuant to such
registration.
(c) Each party entitled to indemnification hereunder (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 (at its expense) to assume the defense of any
claim or any litigation resulting therefrom; provided, that counsel for the
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indemnifying party, who shall conduct the defense of such claim or litigation,
shall be reasonably satisfactory to the indemnified party, and the indemnified
party may participate in such defense, but only at such indemnified party's
expense; and provided, further, that the omission by any indemnified party to
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give notice as provided herein shall not relieve the indemnifying party of its
obligations under this Section 8 except to the extent that the omission results
in a failure of actual notice to the indemnifying party and such indemnifying
party is damaged as a result of the failure to give notice. It is understood
that the indemnifying party shall not, in connection with any action or related
actions in the same jurisdiction, be liable for the fees and disbursements of
more than one separate firm qualified in such jurisdiction to act as counsel for
the indemnified party; it being further understood that the Stockholders
collectively will be considered one indemnified party for purposes of this
sentence. No indemnifying party, in the defense of any such claim or
litigation, shall, except with the consent of each indemnified party, consent to
entry of any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect to such claim or
litigation.
9. Rule 144 Matters. For so long as any Stockholder holds
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Registrable Shares that may not be sold, without restriction, under Rule 144
under the Securities Act or any successor rule, the Company shall (a) make and
keep public information generally available, as those terms are defined in Rule
144 under the Securities Act, and (b) file with the Commission in a timely
manner reports and other documents required of the Company under the Securities
Act and the Securities Exchange Act of 1934, as amended.
10. Stock Legend. Each certificate representing Registrable Shares
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shall be stamped or otherwise imprinted with a legend substantially as follows:
"THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE
SECURITIES OR BLUE SKY LAWS OF ANY STATE AND MAY NOT BE SOLD, TRANSFERRED
OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT OR IN A TRANSACTION WHICH IS NOT SUBJECT TO THE
REGISTRATION REQUIREMENTS OF THE ACT OR ANY APPLICABLE STATE SECURITIES OR
BLUE SKY LAWS AND, IN THE CASE OF A TRANSACTION NOT SUBJECT TO SUCH
REGISTRATION REQUIREMENTS, UNLESS THE COMPANY HAS RECEIVED AN OPINION OF
COUNSEL REASONABLY SATISFACTORY TO IT THAT SUCH TRANSACTION DOES NOT
REQUIRE REGISTRATION UNDER THE ACT."
11. Representations and Warranties. (a) The Company hereby
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represents and warrants to each other party that:
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(i) The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly authorized by all
necessary corporate action on the part of the Company. The Company has all
requisite corporate power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby and has duly executed and
delivered this Agreement. This Agreement constitutes the valid and binding
obligation of the Company, enforceable against it in accordance with its
respective terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other laws of general applicability relating to
or affecting creditors' rights and to general equitable principles.
(ii) Neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated hereby nor compliance by the
Company with any of the provisions hereof will (A) conflict with or result in a
breach of the charter, by-laws or other constitutive documents of the Company,
(B) conflict with or result in a default (or give rise to any right of
termination, cancellation or acceleration) under any of the provisions of any
note, bond, lease, mortgage, indenture, or any material license, franchise,
permit, agreement or other instrument or obligation to which the Company is a
party, or by which the Company or the Company's properties or assets, may be
bound or affected, except for such conflict, breach or default as to which
requisite waivers or consents shall be obtained before the Closing, or (C)
violate any law, statute, rule or regulation or order, writ, injunction or
decree applicable to the Company or the Company's properties or assets, except
for any such violations that are immaterial to the Company or any of the
Company's properties or assets or (D) result in the creation or imposition of
any security interest, lien or other encumbrance upon any of the Company's
properties or assets of such Stockholder. No consent or approval by, or any
notification of or filing with, any person, firm, corporation, partnership,
joint venture, association or entity (governmental or private) (each, a "person"
and collectively, "persons") is required in connection with the execution,
delivery and performance by the Company of this Agreement or the consummation of
the transactions contemplated hereby, except as set forth in the Merger
Agreement.
(b) Representations and Warranties of the Stockholders. Each of the
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Stockholders represents and warrants to the Company that:
(i) Such Stockholder has all requisite power, capacity and authority to
enter into this Agreement and to consummate the transactions contemplated hereby
and has duly executed and delivered this Agreement. This Agreement constitutes
the valid and binding obligation of such Stockholder, enforceable in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other laws of general applicability relating to
or affecting creditors' rights and to general equitable principles.
(ii) Neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated hereby nor compliance by such
Stockholder with any of the provisions hereto will (A) conflict with or result
in a default (or give rise to any right of termination, cancellation or
acceleration) under any of the provisions of any note, bond, lease, mortgage,
indenture, or any material license, franchise, permit, agreement or other
instrument or obligation to which such Stockholder is a party, or by which such
Stockholder or such Stockholder's properties or assets may be bound or affected,
except for such conflict, breach or default as to which requisite waivers or
consents shall be obtained before the Closing (which waivers or consents are set
forth in Section 2.1(d) of the Disclosure Schedule (defined in the Merger
Agreement), (B) violate any law, statute, rule or regulation or order, writ,
injunction or decree applicable to such Stockholder or such Stockholder's
properties or assets, except for any
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such violations that are immaterial to the Company or any of the Company's
properties or assets or (C) result in the creation or imposition of any security
interest, lien or other encumbrance upon any property or assets of such
Stockholder. No consent or approval by, or any notification of or filing with,
any person is required in connection with the execution, delivery and
performance by such Stockholder of this Agreement or the consummation of the
transactions contemplated hereby except as set forth in the Merger Agreement.
12. Termination of Registration Rights. No Stockholder shall be
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entitled to exercise any registration right provided for in this Agreement at
any time during which all the Registrable Shares held by such Stockholder may be
sold without restriction of any kind under Rule 144.
13. Miscellaneous.
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(a) Entire Agreement. This Agreement and the Merger Agreement and
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the exhibits and schedules thereto constitute the entire agreement between the
Company and the Stockholders with respect to the transactions contemplated
hereby and thereby and supersedes all prior agreements or understandings among
the parties with respect thereto.
(b) Headings. Descriptive headings are for convenience only and
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shall not control or affect the meaning or construction of any provision of this
Agreement.
(c) Notices. All notices or other communications provided for in
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this Agreement shall be in writing and shall be sent by confirmed telecopy (with
an undertaking to provide a hard copy) or delivered by hand or sent by overnight
courier service prepaid to the address specified below.
If to the Company:
Physician Support Systems, Inc.
Xxxxx 000 xxx Xxx-Xxxxxxx Xxxx
X.X. Xxx 00
Mt. Joy, Pennsylvania 117552
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxxx
Xxxxxxxx X. Xxxxxx III
Xxxxx X. Xxxxxx
If to a Stockholder:
To the address for such Stockholder set forth on the signature page
hereof
or to such other address as the party to whom notice is to be given may have
furnished to the other party in writing in accordance herewith.
(d) Counterparts. This Agreement may be executed in any number of
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counterparts, and each such counterpart hereof shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
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(e) Amendments. This Agreement shall not be altered or otherwise
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amended except pursuant to an instrument in writing signed by the Company and
each holder of the Registrable Shares then outstanding.
(f) Transferability. The registration and other rights granted to
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the Stockholders hereunder are non-transferable and cannot be assigned or
transferred in any manner to any third party without the prior written consent
of the Company. Notwithstanding the foregoing, any Stockholder may assign the
registration rights granted to such Stockholder herein to no more than two: (i)
private or public foundations exempt from federal income taxation pursuant to
Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, to which
Registrable Shares have been transferred in transactions that do not result in
the recognition of taxable income or capital gain for federal income tax
purposes; and/or (ii) revocable or irrevocable inter vivos trusts, partnerships
or other entities to which Registrable Shares have been transferred in
transactions that do not result in the recognition of taxable income or capital
gain for federal income tax purposes.
(g) Pooling of Interests. If any provision of this Agreement or the
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application of any such provision to any person or circumstance shall preclude
the use of "pooling of interests" accounting treatment in connection with the
Merger, then such provision shall be of no force and effect to the extent, and
solely to the extent, necessary to preserve such accounting treatment for the
Merger, and in that event, the remainder of this Agreement shall not be
affected, and in lieu of such provision there shall be added as part of this
Agreement a provision as similar in terms as may be possible for the Merger to
be treated as a "pooling of interests" for accounting purposes.
(H) CHOICE OF LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
-------------
IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS.
10
IN WITNESS WHEREOF, each of the parties has caused this Agreement to
be duly executed and delivered as of the date first above written.
PHYSICIAN SUPPORT SYSTEMS, INC.
By: /s/ Xxxxx X. Xxxxxx
---------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President and
Chief Financial Officer
STOCKHOLDERS:
/s/ Xxxx X. Xxxxxxxxx
------------------------------------
Xxxx X. Xxxxxxxxx
Address:
/s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxx
Address:
/s/ Xxxx X. Xxxxxx
----------------------------------
Xxxx X. Xxxxxx
Address:
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