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EXHIBIT 10.16
TERMINATION AND WAIVER AGREEMENT DATED AS OF OCTOBER 28, 1996,
BETWEEN THE COMPANY, XXXXXXXX VENTURE PARTNERS II, L.P.,
CHASE MANHATTAN BANK, N.A., AS TRUSTEE, AND XXXXXXXX X. XXXXXX
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TERMINATION AND WAIVER AGREEMENT
THIS TERMINATION AND WAIVER AGREEMENT (this "Agreement") has been executed
as of the 28th day of October, 1996, by MEDIRISK, INC., a Delaware corporation
(as successor by merger to Medirisk, Inc., a Florida corporation) ("Medirisk"),
THE CHASE MANHATTAN BANK, N.A., AS TRUSTEE FOR SEARS PENSION TRUST ("Sears"),
XXXXXXXX VENTURE PARTNERS II, L.P. ("Xxxxxxxx") and XXXXXXXX X. XXXXXX
("Xxxxxx," with Xxxxxxxx, Sears and Xxxxxx each being referred to as a
"Shareholder" and collectively referred to as the "Shareholders").
WHEREAS, Sears and Xxxxxxxx each own 448,717.5 shares of the Series A
Convertible Preferred Stock of Medirisk (the "Series A Preferred"); and
WHEREAS, Xxxxxx owns 76,924 shares of the Series A Preferred; and
WHEREAS, Medirisk and the Shareholders are parties to a Consent and Waiver
Agreement, dated as of January 8, 1996 (the "Consent and Modification
Agreement"), related to certain aspects of the ownership of shares by the
Shareholders; and
WHEREAS, Medirisk, Xxxxxxxx, Sears and Xxxxxx are parties to a
Registration Agreement, dated April 5, 1991, as amended on or about November
22, 1991 to include Sears as a party and as amended by the Consent and
Modification Agreement (as so amended to date, the "Original Registration
Agreement"), related to registration rights available to the Shareholders; and
WHEREAS, Medirisk, the Shareholders and HealthPlan Services Corporation
are parties to a Shareholders Agreement, dated as of January 8, 1996 (the "1996
Shareholders Agreement"), related to certain aspects of the ownership of shares
by the Shareholders; and
WHEREAS, effective September 19, 1996, Medirisk, Inc., a Florida
corporation ("Medirisk (Florida)"), was merged (the "Reincorporation Merger")
with and into Medirisk for the purposes of changing the state of incorporation
of Medirisk (Florida); and
WHEREAS, on September 19, 1996, Medirisk filed with the Securities and
Exchange Commission a registration statement on Form S-1 to register 3,000,000
shares of Common Stock (with an over-allotment option of 450,000 shares) to be
sold in an underwritten public offering (the "Initial Public Offering"); and
WHEREAS, in connection with the Initial Public Offering, the Board of
Directors of Medirisk has approved a 0.8368 for one reverse stock split with
respect to the Common Stock of Medirisk to be effective immediately prior to
the effectiveness of the Registration Statement for the Initial Public Offering
(the "Reverse Split"); and
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WHEREAS, pursuant to the terms of the Series A Preferred, the Consent and
Modification Agreement and the Original Registration Agreement, the
Reincorporation Merger and the Initial Public Offering will trigger certain
rights of Xxxxx, Xxxxxxxx and Xxxxxx;
NOW, THEREFORE, in consideration of the foregoing premises the
Shareholders and Medirisk hereby agree as follows:
SECTION 1. ORIGINAL REGISTRATION AGREEMENT, ETC. Each of the
Shareholders hereby waives its rights to (i) receive, in connection with the
Reincorporation Merger, a notice in accordance with paragraph 5(l) of Section I
of Article Fourth of the Articles of Incorporation of Medirisk (Florida), each
of the Shareholders acknowledging and agreeing that it or he consented to the
Reincorporation Merger as a shareholder of Medirisk (Florida) prior to its
effectiveness; (ii) receive, in connection with the Initial Public Offering, a
notice of a Piggyback Registration (as defined in the Original Registration
Agreement) in accordance with paragraph 2(a) of the Original Registration
Agreement; (iii) approve or disapprove of the issuance of shares of Common
Stock in the Initial Public Offering for purposes of the Original Purchase
Agreement (as defined in, and amended by, the Consent and Modification
Agreement); and (iv) participate, as a Piggyback Registration, in the Initial
Public Offering as specified in paragraph 2 of the Original Registration
Agreement. The Shareholders hereby consent to the Reincorporation Merger, the
Reverse Split and the Initial Public Offering for purposes of the designation
of the Series A Preferred in the Articles of Incorporation of Medirisk
(Florida), the Consent and Modification Agreement, the Original Purchase
Agreement and the Original Registration Agreement.
SECTION 2. TERMINATION OF AGREEMENTS. The Shareholders and Medirisk
hereby acknowledge and agree that the 1996 Shareholders Agreement shall be, by
its terms, automatically terminated upon the closing of the Initial Public
Offering. The Shareholders and Medirisk agree that effective immediately prior
to the effectiveness of the registration statement for the Initial Public
Offering each of the Consent and Modification Agreement, the Original Purchase
Agreement and the Original Registration Agreement shall be terminated and of no
further force and effect, the parties acknowledging and agreeing that
contemporaneously with the execution of this Agreement, they are executing and
delivering an Investor Registration Agreement providing for registration rights
substantially identical to those provided in the Original Registration
Agreement; provided that the Consent and Modification Agreement, the Original
Purchase Agreement and the Original Registration Agreement shall be deemed
reinstated and of full force and effect if the Inital Public Offering is not
closed notwithstanding the effectiveness of such registration statement.
SECTION 3. GENERAL WAIVER AND CONSENT. The Shareholders hereby consent
to and waive their respective rights with respect to (including the right to
receive any notice(s) of) the Reincorporation Merger, the Reverse Split and
Initial Public Offering, which rights arise under any of the Original
Shareholders Agreement, the 1996 Shareholders Agreement, the Original Purchase
Agreement, the Original Registration
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Agreement, Medirisk (Florida)'s Articles of Incorporation or Bylaws, Medirisk's
Certificate of Incorporation or Bylaws, or any other document or instrument,
other than their respective rights to receive the merger consideration in
connection with the Reincorporation Merger.
SECTION 4. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Georgia.
SECTION 5. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same instrument.
SECTION 6. GENDER. In this Agreement the masculine, feminine or neuter
gender shall be construed to mean each of the others of the masculine, feminine
or neuter gender.
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IN WITNESS WHEREOF this Agreement has been executed by the parties below
as of the dates set forth below and shall be effective as of the last date
executed by a party hereto.
MEDIRISK, INC.
By: /s/ Xxxxxxx X. Xxxxx, Xx.
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Title: Vice President
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XXXXXXXX VENTURE PARTNERS II, L.P.,
a Delaware limited partnership
By: Xxxxxxxx Venture Management II, L.P.,
as general partner
By: Pinkas Family Partners, L.P.,as
general partner
By:/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx, general partner
SEARS PENSION TRUST
By: Chase Manhattan Bank, N.A., as Trustee
By: /s/ Xxxxxx X. Xxxxxxxxx
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Title: Vice President
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/s/ Xxxxxxxx X. Xxxxxx
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XXXXXXXX X. XXXXXX
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