Exhibit 4.1
REGISTRATION RIGHTS AGREEMENT
AGREEMENT, dated as of September 23, 1997 between Physician
Computer Network, Inc., a Delaware corporation (the "Company"),
and Xxxxxx Xxxxx (the "Holder).
W I T N E S S E T H
WHEREAS, the Company is a party to an Agreement and Plan of
Merger dated September 23, 1997 (the "Merger Agreement") with
Printed Products Group, Inc. d/b/a Solion, the Holder and Solion
Corp.;
WHEREAS, the Holder is to receive an aggregate of 450,990
shares (the "Shares") of Common Stock, par value $.01 per share
(the "Common Stock"), of the Company as part of the consideration
payable to the Holder pursuant to the Merger Agreement; and
WHEREAS, as a condition to the obligations of the Holder to
consummate the transactions contemplated by the Merger Agreement,
the Company has agreed to provide the Holder certain registration
rights with respect to the Shares.
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements herein contained, and for other
good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the Company and the Holder hereby
agree as follows:
1. Restrictive Legend. Each Certificate representing
the Shares shall, except as otherwise provided herein, be stamped
or otherwise imprinted with a legend substantially in the
following form:
"The securities represented by this
certificate have not been
registered under the Securities Act
of 1933, as amended (the "Act") or
applicable state securities laws.
These securities have been acquired
for investment and not with a view
to distribution or resale, and may
not be sold, mortgaged, pledged,
hypothecated or otherwise
transferred without an effective
registration statement for such
securities under the Act and
applicable state securities laws or
the availability of an exemption
from the registration provisions of
the Act and applicable state
securities laws."
The restrictions imposed by Section 1 hereof upon the
trasferability of Shares shall cease and terminate as to any
particular Shares (i) when, in the opinion of Xxxxxxx, Xxxxxx &
Xxxxxxxx, P.C. or other counsel reasonably acceptable to the
Company, such restrictions are no longer required in order to
assure compliance with the Securities Act or (ii) when such
Shares shall have been registered under the Securities Act or
transferred pursuant to Rule 144 thereunder. Whenever such
restrictions shall cease and terminate as to any Shares or such
Shares shall be transferrable under paragraph (k) of Rule 144,
the holder thereof shall be entitled to receive from the Company,
without expense, new certificates not bearing the legend set
forth in Section 1 hereof.
2. Notice of Proposed Transfer. Prior to any
proposed transfer of any Shares (other than under the
circumstances described in Sections 3 and 4), the holder thereof
shall give written notice to the Company of its intention to
effect such transfer. Each such notice shall describe the manner
of the proposed transfer and, if requested by the Company, shall
be accompanied by an opinion of counsel in form and substance
reasonably satisfactory to the Company to the effect that the
proposed transfer may be effected without registration under the
Act, whereupon the holder of such Shares shall be entitled to
transfer such Shares in accordance with the terms of its notice.
Each certificate for Shares transferred as above provided shall
bear the legend set forth in Section 1, except that such
certificate shall not bear such legend if the opinion of counsel
referred to above is to the further effect that the transferee
and any subsequent transferee (other than an affiliate of the
Company) would be entitled to transfer such securities in a
public sale without registration under the Act. The restrictions
provided for in this Section 2 shall not apply to securities
which are not required to bear the legend prescribed by Section 1
in accordance with the provisions of that Section.
3. Demand Registration.
(a) At any time following the one year anniversary of the
date of this Agreement, the Holder may make a written request to
the Company requesting that the Company register under the Act
all or any portion of the Shares held by the Holder (but in no
event shall the written demand be for less than 200,000 Shares)
for sale in the manner specified in such notice; provided,
however, that the Company shall not be required to effect a
registration pursuant to this Section 3 if counsel for the
Company shall deliver an opinion, in form and substance
reasonably satisfactory to the Holder, to the effect that the
Shares are salable pursuant to Rule 144 under the Act; and
provided, further, however, that no request may be made under
this Section 3 within 180 days after the effective date of a
registration statement filed by the Company covering a public
offering in which the Holder shall have been entitled to join
pursuant to Section 4 hereof.
(b) The Company shall use its reasonable commercial efforts
to register the Shares under the Act by taking all actions
necessary, including, without limitation, those actions set forth
in Section 5 hereof, to permit the public sale of the Shares in
accordance with the method of disposition specified in the notice
described in paragraph (a) above, the number of Shares specified
in such notice. If such method of disposition shall be an
underwritten public offering, the Holder may designate the
managing underwriter of such offering, subject to the approval of
the Company, which approval shall not be unreasonably withheld or
delayed. The Company shall be obligated to register the Shares
pursuant to this Section 3 on one occasion only, provided,
however, that such obligation shall be deemed satisfied only when
a registration statement covering all Shares specified in the
notice received as aforesaid, for sale in accordance with the
method of disposition specified by the Holder shall have become
effective.
(c) The Company shall be entitled to include in any
registration statement referred to in this Section 3, for sale in
accordance with the method of disposition specified by the
Holder, shares of Common Stock to be sold by other selling
stockholders or by the Company for its own account, except as and
to the extent that, in the opinion of the managing underwriter
(if such method of disposition shall be an underwritten public
offering), such inclusion would adversely affect the marketing of
the Shares to be sold.
4. Piggyback Registration. If the Company at any time
following the one year anniversary of the date of this Agreement
(other than pursuant to Section 3) proposes to register any
shares of Common Stock under the Act for sale to the public,
whether for its own account or for the account of other security
holders or both (except with respect to registration statements
on Form X-0, X-0 or another form not available for registering
the Shares for sale to the public), it will give written notice
to the Holder at least twenty (20) days before the initial filing
with the Commission of such registration statement. Upon the
written request of the Holder to register any of the Shares, such
notice to be delivered to the Company within 15 days after the
giving of any such notice by the Company, the Company will use
its reasonable commercial efforts to cause the number of Shares
as to which registration shall have been so requested to be
included in the registration statement proposed to be filed by
the Company, all to the extent requisite to permit the sale or
other disposition by the Holder (in accordance with its written
request) of the Shares so registered. In the event that any
registration pursuant to this Section 4 shall be, in whole or in
part, an underwritten public offering, the number of Shares to be
included in such offering may be reduced if and to the extent
that the managing underwriter or underwriters, if any, of such
offering shall be of the opinion that
inclusion of the Shares would adversely affect the marketing of
the securities to be sold by the Company therein. In such event,
the Company shall include in the registration statement the
number of shares of Common Stock that the Company is so advised
can be sold in such offering in the following priority: (i)
first, all shares of Common Stock to be sold by any other
shareholder who has exercised his demand or similar right to
require the Company to file a registration statement with respect
to all or a portion of the shares of Common Stock held by such
shareholder; (ii) second, all shares of Common Stock proposed to
be included in such registration statement by the Company; (iii)
third, all shares of Common Stock proposed to be included in such
registration statement by holders of Common Stock having
piggyback registration rights outstanding on the date hereof; and
(iv) fourth, all other Common Stock proposed to be included in
such registration statement by other holders thereof, pro rata,
based on the value (as determined in good faith by the managing
underwriter) of the Common Stock proposed to be included by such
holders.
5. Registration Procedures. In the event that the Company
is required by the provisions of Sections 3 or 4 to effect the
registration of any Shares under the Act, the Company will, as
expeditiously as possible:
(a) prepare and file with the Commission a
registration statement (which, in the case of an underwritten
public offering pursuant to Section 3, shall be on Form X-0, X-0,
X-0 or other form of general applicability satisfactory to the
managing underwriter selected as therein provided) with respect
to the Shares and use its reasonable commercial efforts to cause
such registration statement to become and remain effective for
the period of the distribution contemplated thereby (determined
as hereinafter provided), provided that in the case of a
registration pursuant to Sections 3 or 4 (I) the Company shall
not be required to cause any special audit to be undertaken in
connection with any such registration and in the case of a
registration pursuant to Section 3 only, (II) the Company shall
not be required to file any registration statement during any
period of time when (x) the Company is contemplating a public
offering of its securities and, in the judgment of the managing
underwriter thereof (or the Company, if such offering is not
underwritten) such filing would have a material adverse effect on
the contemplated offering, or (y) the Company is in possession of
material information that it deems advisable not to disclose in a
registration statement or (z) the Company is engaged in any
program for the repurchase of its own securities. The foregoing
notwithstanding, the restrictions set forth in this Section 4(a)
shall not, under any circumstances, work so as to effect a delay
of more than one hundred eighty (180) days in the filing of any
registration statement demanded by the Holder to be filed in
accordance with Section 3; provided, however, that with respect
to the restrictions set forth in clause (II) (y) of this Section
4(a), the Company may dalay filing the registration
statement for two hundred seventy (270) days from the date of
written request for registration pursuant to Section 3 if the
Company furnishes to the Holder a certificate, signed by the
President of the Company, stating that, in the good faith
judgement of the Board of Directors, it would be seriously
detrimental to the Company or its stockholders for a registration
statement to be filed containing the disclosure of material
information required to be included therein by reason of the
federal securities laws;
(b) prepare and file with the Commission such
amendments and supplements to such registration statement and the
prospectus used in connection therewith as may be necessary to
keep such registration statement effective for the period
specified in paragraph (a) above and comply with the provisions
of the Act with respect to the sale or other disposition of all
of the Shares covered by such registration statement in
accordance with the Holders's intended method of disposition set
forth in such registration statement for such period;
(c) furnish to the Holder and each underwriter such
number of copies of the registration statement and each such
amendment and supplement thereto (in each case including all
exhibits) and the prospectus included therein (including each
preliminary prospectus) as such persons may reasonably request in
order to facilitate the public sale or other disposition of the
Shares covered by such registration statement;
(d) use its reasonable commercial efforts to register
or qualify the Shares covered by such registration statement
under the securities or "blue sky" laws of such jurisdictions as
the Holder, or in the case of an underwritten public offering,
the managing underwriter, shall reasonably request, provided,
however, that the Company shall not for any such purpose be
required to (i) qualify generally to transact business as a
foreign corporation in any jurisdiction where it is not so
qualified, (ii) to subject itself to taxation in any such
jurisdiction, or (iii) to consent to general service of process
in any such jurisdiction;
(e) use its reasonable commercial efforts to list the
Shares covered by such registration statement with any securities
exchange on which the Common Stock of the Company is then listed;
(f) immediately notify the Holder and each underwriter
under such registration statement, at any time when a prospectus
relating thereto is required to be delivered under the Act, of
the happening of any event of which the Company has knowledge as
a result of which the prospectus contained in such registration
statement, as then in effect, includes an untrue statement of a
material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading in light of circumstances then existing, and promptly
prepare and furnish to the Holder a reasonable number of copies
of a prospectus supplement or amendment 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 light of the
circumstances then existing;
(g) if the offering is underwritten and the Holder so
requests, use its reasonable commercial efforts to furnish on the
date that any of the Shares are delivered to the underwriters
for sale pursuant to such registration; (i) an opinion dated such
date of counsel representing the Company for the purposes of such
registration, addressed to the underwriters and to the Holder, to
such effects as reasonably may be requested by counsel for the
underwriters or by the Holder or his counsel, and (ii) a letter
dated such date from the independent pubic accountants retained
by the Company, addressed to the underwriters and to the Holder,
stating that they are independent public accountants within the
meaning of the Act and that, in the opinion of such accountants,
the financial statements of the Company included 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 Act, and such
letter shall additionally cover such other financial matters
(including information as to the period ending no more than five
business days prior to the date of such letter) with respect to
such registration as such underwriters reasonably may request;
(h) make available for inspection by the Holder, any
underwriter participating in any distribution pursuant to such
registration statement, and any attorney, accountant or other
agent retained by the Holder or underwriter, reasonable access to
all financial records and other records, pertinent corporate
documents and properties of the Company, as such parties may
reasonably request, and cause the Company's officers, directors
and employees to supply all information reasonably requested by
any such seller, underwriter, attorney, accountant or agent in
connection with such registration statement;
(i) cooperate with the Holder and the managing
underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing the Shares to be sold,
such certificates to be in such denominations and registered in
such names as the Holder or the managing underwriters may request
at least two business days prior to any sale of the Shares;
(j) permit the Holder to participate in good faith in
the preparation of such registration or comparable statement and
to require the insertion therein of material, furnished to the
Company in writing, which in the reasonable judgment of the
Holder and its counsel should be included; and
(k) otherwise cooperate to give effect to the rights
granted in Sections 3 and 4 hereof;
For purposes of Section 5(a) and 5(b) and of Section
3(c), the period of distribution of the Shares in a firm
commitment underwritten public offering shall be deemed to extend
until each underwriter has completed the distribution of all
securities purchased by it, and the period of distribution of the
Shares in any other registration shall be deemed to extend until
the earlier of the sale of all of the Shares covered thereby and
120 days after the effective date thereof.
In connection with each registration hereunder, the
Holder will furnish to the Company in writing such information
requested by the Company with respect to himself and the proposed
distribution by him as reasonably shall be necessary in order to
assure compliance with federal and applicable state securities
laws.
In connection with each registration pursuant to
Sections 3 or 4 covering an underwritten public offering, the
Company and the Holder agree to enter into and perform its
obligations under a written agreement with the managing
underwriter selected in the manner herein provided in such form
and containing such provisions as are customary in the securities
business for such an arrangement between such underwriter and
companies of the Company's size and investment stature.
6. Indemnification.
(a) In the event of a registration of any of the
Shares under the Act pursuant to Sections 3 or 4, the Company
shall indemnify and hold harmless the Holder against any losses,
claims, damages or liabilities to which the Holder may become
subject under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions or proceedings,
whether commenced or threatened, in respect thereof) arise out of
or are based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in any registration
statement under which the Shares were registered under the Act
pursuant to Section 3 or 4, any preliminary, final or summary
prospectus contained therein, or any amendment or supplement
thereto, (ii) or any omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, and the
Company shall reimburse the Holder for any legal or any other
expenses reasonably incurred by him in connection with
investigating or defending any such loss, claim, damage,
liability, action or proceeding; provided, however, that the
Company shall not be liable in any such case to the extent that
any such loss, claim, damage, liability (or action or proceeding
in respect thereof) or expense arises out of or is based upon an
untrue statement or alleged untrue statement or omission or
alleged omission from such registration statement, any such
preliminary prospectus, final prospectus, summary prospectus,
amendment or supplement, which statement or omission is made in
reliance upon and in conformity
with information furnished by the Holder in writing specifically
for use in such registration statement or prospectus.
(b) In the event of a registration of any of the
Shares under the Act pursuant to Sections 3 or 4, the Holder
shall indemnify and hold harmless the Company, each director of
the Company, each officer of the Company and each other person,
if any, who controls the Company within the meaning of Section 15
of the Act, each underwriter and each person who controls any
underwriter within the meaning of Section 15 of the Act against
all losses, claims, damages or liabilities, joint or several, to
which the Company or any such officer, director, underwriter or
controlling person may become subject under the Act or otherwise,
but only insofar as and to the extent that such losses, claims,
damages or liabilities (or actions or proceedings, whether
commenced or threatened, in respect thereof) arise as a result of
(i) any untrue statement or alleged untrue statement of any
material fact contained in any registration statement under which
the Shares were registered under the Act pursuant to Section 3 or
4, any preliminary, final or summary prospectus contained
therein, or any amendment or supplement thereto, (ii) or any
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they were made,
not misleading, and the Holder shall reimburse the Company and
each such officer, director, underwriter or controlling person
for any legal or any other expenses reasonably incurred by him in
connection with investigating or defending any such loss, claim,
damage, liability, action or proceeding; provided, however, that
the Holder shall be liable hereunder in any such case if and only
to the extent that any such loss, claim, damage, liability (or
action or proceeding in respect thereof) or expense arises as a
result of an untrue statement or alleged untrue statement or
omission or alleged omission from such registration statement,
any such preliminary prospectus, final prospectus, summary
prospectus, amendment or supplement, which statement or omission
was made in reliance upon and in conformity with information
pertaining to the Holder, as such, furnished in writing by the
Holder specifically for use in such registration statement or
prospectus.
(c) Promptly after receipt by an indemnified party of
notice of the commencement of any action or proceeding involving
a claim referred to in Section 6(a) or 6(b), such indemnified
party shall, if a claim in respect thereof is to be made against
an indemnifying party hereunder, give written notice to the
indemnifying party of the commencement of such action; provided
that the failure of any indemnified party to give notice as
provided herein shall not relieve the indemnifying party of its
obligations under Section 6(a) or 6(b), except to the extent that
the indemnifying party is actually prejudiced by such failure to
give notice. In case any such action is brought against an
indemnified party and it shall notify the indemnifying party of
the commencement thereof, the indemnifying party shall be
entitled to
participate in and, to the extent it shall wish, to assume and
undertake the defense thereof with counsel reasonably
satisfactory to such indemnified party, and, after notice from
the indemnifying party to such indemnified party of its election
so to assume and undertake the defense thereof, the indemnifying
party shall not be liable to the indemnified party under this
Section for any legal expenses subsequently incurred by such
indemnified party in connection with the defense thereof other
than reasonable costs of investigation and of liaison with
counsel so selected, provided, however, that if the defendants in
any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have
reasonably concluded that there may be reasonable defenses
available to it which are different from or in addition to those
available to the indemnifying party or if the interests of the
indemnified party reasonably may be deemed to conflict with the
interests of the indemnifying party, the indemnified party shall
have the right to select a separate counsel and to assume such
legal defense and otherwise participate in the defense of such
action, with the reasonable expenses and fees of such separate
counsel and other reasonable expenses related to such
participation to be reimbursed by the indemnifying party as
incurred. No indemnifying party shall be liable for any
settlement of any action or proceeding effected without its
written consent, which consent shall not be unreasonable
withheld, delayed or conditioned. No indemnifying party shall,
without the consent of the 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.
(d) The indemnification required by this Section 6
shall be made by periodic payments of the amount thereof during
the course of the investigation or defense, as and when bills are
received or expense, loss, damage or liability is incurred.
7. Expenses. All expenses incurred by the Company in
complying with Sections 3 and 4, including, without limitation,
all registration and filing fees, printing expenses, fees and
disbursements of counsel and independent public accountants for
the Company, fees and expenses (including counsel fees) incurred
in connection with complying with state securities or "blue sky"
laws, fees of the securities exchange upon which the Common Stock
of the Company is then listed, transfer taxes and fees of
transfer agents and registrars, but excluding any Selling
Expenses, are called "Registration Expenses". All underwriting
discounts and selling commissions and transfer taxes applicable
to the sale of the Shares and fees and expenses of counsel to the
sellers of the Shares are called "Selling Expenses".
The Company will pay all Registration Expenses in
connection with each registration statement under Sections 3 or
4. All Selling Expenses in connection with each registration
statement
under Sections 3 or 4 shall be borne by the participating sellers
in proportion to the number of shares sold by each, or by such
participating sellers other than the Company (except to the
extent the Company shall be a seller) as they may agree.
8. Holder Information. The Holder shall provide the
Company with such information with respect to the Shares to be
sold, the plans for the proposed disposition thereof and such
other information as shall, in the opinion of counsel for the
Company be reasonably necessary to enable the Company to include
in such registration statement all material facts required to be
disclosed with respect to the Holder as a shareholder of the
Company.
9. Miscellaneous.
(a) All covenants and agreements contained in this
Agreement by or on behalf of any of the parties hereto shall bind
and inure to the benefit of the respective successors and assigns
of the parties hereto (including without limitation transferees
of any Shares), whether so expressed or not.
(b) All notices, requests, consents and other
communications hereunder shall be in writing and shall be mailed
by certified or registered mail, return receipt requested,
postage prepaid, or telexed, in the case of non-U.S. residents at
the address of such party set forth in the Merger Agreement, or,
in any case, at such other address or addresses as shall have
been furnished in writing to the Company (in the case of a holder
of Shares) or to the Holder (in the case of the Company) in
accordance with the provisions of this paragraph.
(c) This Agreement shall be governed by, and
interpreted under, the laws of the State of Delaware without
regard to conflicts of law principles.
(d) This Agreement may not be amended or modified, and
no provision hereof may be waived, without the written consent of
each of the original parties hereto.
(e) This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
(f) If requested in writing by the underwriters for an
underwritten public offering of securities of the Company, the
Holder shall agree not to sell publicly any Shares or any other
shares of Common stock (other than any Shares or other shares of
Common Stock being registered in such offering), without the
consent of such underwriters, for a period of not more than 180
days following the effective date of the registration statement
relating to such offering or for such shorter period as is
applicable to any other officer or director of the Company who
holds Common Stock.
(g) If any provision of this Agreement shall be held
to be illegal, invalid or unenforceable, such illegality,
invalidity or unenforceability shall attach only to such
provision and shall not in any manner affect or render illegal,
invalid or unenforceable any other provision of this Agreement,
and this Agreement shall be carried out as if any such illegal,
invalid or unenforceable provision were not contained herein.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date and year first above written.
PHYSICIAN COMPUTER NETWORK, INC.
By: \s\ Xxxx X. Xxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxx
Title: Secretary
\s\ Xxxxxx Xxxxx
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XXXXXX XXXXX
