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EXHIBIT 10.15
INVESTOR REGISTRATION 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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INVESTOR REGISTRATION AGREEMENT
THIS INVESTOR REGISTRATION AGREEMENT (this "Agreement") is made as of
October 28, 1996, by and among MEDIRISK, INC., a Delaware corporation (the
"Company"), and XXXXXXXX VENTURE PARTNERS II, L.P., a Delaware limited
partnership ("Xxxxxxxx"), THE CHASE MANHATTAN BANK, N.A., AS TRUSTEE FOR SEARS
PENSION TRUST ("Sears"), and XXXXXXXX X. XXXXXX, an individual ("Xxxxxx")
(Xxxxxx being sometimes referred to as "Executive").
W I T N E S S E T H :
WHEREAS, Xxxxxxxx, Sears and Xxxxxx own shares of the capital stock of the
Company (and Xxxxxxxx and Sears hold warrants to purchase stock of the
Company); and
WHEREAS, the parties to this Agreement are currently parties to a
Registration Agreement, dated as of April 5, 1991, as amended on or about
November 22, 1991 to include Sears as a party and as further amended by a
Consent and Modification Agreement, dated January 8, 1996 (as so amended, the
"Original Registration Agreement"); and
WHEREAS, in connection with the proposed initial public offering by the
Company, the parties desire to terminate the Original Registration Agreement
and to enter into this Agreement setting forth the terms of registration rights
available to Xxxxxxxx, Sears and Xxxxxx;
NOW, THEREFORE, in consideration of the foregoing and the covenants
contained herein, the parties agree as follows:
1. Demand Registrations.
(a) Requests for Registration. Subject to the terms and conditions
hereof, at any time after the Company's Initial Public Offering (as defined
below), if the holders of at least 50% of the Registrable Securities (as
defined below) request registration under the Securities Act of 1933, as
amended (the "Securities Act"), of all or part of their Registrable Securities
on Form S-1 or any similar long-form registration ("Long-Form Registrations"),
or on Form S-2 or S-3 or any similar short-form registration ("Short-Form
Registrations"), if available, which requests specify the approximate number of
Registrable Securities requested to be registered and the anticipated per share
price range for such offering, then within ten days after receipt of any such
request, the Company will give written notice of such requested registration to
all other holders of Registrable Securities and will include in such
registration all Registrable Securities with respect to which the Company has
received written requests for inclusion therein within 15 days after the
receipt of the Company's notice. All registrations requested pursuant to this
paragraph 1(a) are referred to herein as "Demand Registrations." As used
herein, the term
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"Initial Public Offering" means the Company's first offering of Common Stock of
the Company that is registered under the Securities Act, which offering is
underwritten on a firm commitment basis and produces gross proceeds in excess
of $10,000,000.
(b) Certain Expenses of Registrations. The holders of Registrable
Securities will be entitled to request (i) three Demand Registrations in which
the Company will pay all Registration Expenses ("Company-paid Demand
Registrations") and (ii) an unlimited number of Demand Registrations in which
the holders of Registrable Securities will pay their shares of the Registration
Expenses as set forth in paragraph 5 hereof; provided that the aggregate
offering value of the Registrable Securities requested to be registered in any
Demand Registration must equal at least $5,000,000. A Demand Registration
which is a Long-Form Registration will not count as one of the permitted
Company-paid Demand Registrations until it has become effective, and neither
the second nor any subsequent Demand Registration which is a Long-Form
Registration will count as one of the permitted Company-paid Demand
Registrations unless the holders of Registrable Securities are able to register
and sell at least 90% of the Registrable Securities requested to be included in
such registration; provided that in any event the Company will pay all
Registration Expenses (as defined below) in connection with any registration
initiated as a Company-paid Demand Registration whether or not it has become
effective. Demand Registrations will be Short-Form Registrations whenever the
Company is permitted to use any applicable short form. After the Company has
become subject to the reporting requirements of the Securities Exchange Act of
1934, as amended (the "1934 Act"), the Company will use its best efforts to
make Short-Form Registrations available for the sale of Registrable Securities.
(c) Priority on Demand Registrations. The Company will not include in any
Demand Registration any securities that are not Registrable Securities without
the prior written consent of the holders of a majority of the Registrable
Securities initially requesting such registration, which consent will not be
unreasonably withheld. If a Demand Registration is an underwritten offering
and the managing underwriters advise the Company in writing that in their
opinion the number of Registrable Securities and, if permitted hereunder, other
securities requested to be included in such offering exceeds the number of
Registrable Securities and other securities, if any, which can be sold in an
orderly manner in such offering within a price range acceptable to the holders
of a majority of the Registrable Securities initially requesting registration,
the Company will include in such registration prior to the inclusion of any
securities which are not Registrable Securities the number of Registrable
Securities requested to be included which in the opinion of such underwriters
can be sold in an orderly manner within the price range of such offering, pro
rata among the respective holders thereof on the basis of the amount of
Registrable Securities owned by each such holder. Any Persons other than
holders of Registrable Securities who participate in Demand Registrations which
are not at the Company's expense must pay their share of the Registration
Expenses as provided in paragraph 5 hereof.
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(d) Restrictions on Registrations. The Company will not be obligated to
effect any Long-Form Registration within six months after the effective date of
a previous Long-Form Registration or a registration in which the holders of
Registrable Securities were given piggyback rights pursuant to paragraph 2 and
in which the holders of the Registrable Securities were able to sell at least
90% of the number of Registrable Securities requested to be included. The
Company may postpone for up to three months the filing or the effectiveness of
a registration statement for a Demand Registration if the Company, in a
certificate executed by the President of the Company in favor of all holders of
Registrable Securities, states that, in the good faith judgment of the Board of
Directors of the Company, such Demand Registration would be substantially
disadvantageous to the Company; provided that in such event, the holders of
Registrable Securities initially requesting such Demand Registration will be
entitled to withdraw such request and, if such request is withdrawn, such
Demand Registration will not count as one of the permitted Demand Registrations
hereunder, and the Company will pay all Registration Expenses in connection
with such withdrawn registration; provided, further, that the Company may
exercise its right to postpone filings only once within any 12-month period;
provided, further, however, that notwithstanding the foregoing clause, the
Company may exercise its right to postpone filings a second time within any
12-month period, if the second postponement is made on account of the Company
being in possession of material information that it deems advisable not to
disclose in a registration statement.
(e) Selection of Underwriters. In any Demand Registration, the holders of
a majority of the Registrable Securities initially requesting registration may
select a managing underwriter reasonably acceptable to the Company to
administer the offering.
2. Piggyback Registrations.
(a) Right to Piggyback. Whenever the Company proposes to register any of
its securities under the Securities Act (other than pursuant to a Demand
Registration) and the registration form to be used may be used for the
registration of Registrable Securities (a "Piggyback Registration"), the
Company will give prompt written notice (in any event within five business days
after its receipt of notice of any exercise of demand registration rights other
than under this Agreement) to all holders of Registrable Securities and
Executive Registrable Securities (as defined below) of its intention to effect
such a registration and will include in such registration all Registrable
Securities and Executive Registrable Securities with respect to which the
Company has received written requests for inclusion therein within 15 days
after the receipt of the Company's notice.
(b) Piggyback Expenses. The Registration Expenses of the holders of
Registrable Securities and Executive Registrable Securities will be paid by the
Company in all Piggyback Registrations.
(c) Priority on Primary Registrations. If a Piggyback Registration is an
underwritten primary registration on behalf of the Company or any other party
having
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demand registration rights with respect to securities of the Company and if
the managing underwriters advise the Company in writing that in their
opinion the number of securities requested to be included in such registration
exceeds the number which can be sold in an orderly manner in such offering
within a price range acceptable to the Company or such other party, then the
Company will include in such registration (i) first, the securities the Company
proposes to sell or those that such party exercising its demand registration
rights proposes to sell, (ii) second, the Registrable Securities and Executive
Registrable Securities and any securities held by HealthPlan Services
Corporation ("HPSC Registrable Securities") requested to be included in such
registration on a piggyback basis, pro rata among the holders of such
Registrable Securities, Executive Registrable Securities and HPSC Registrable
Securities on the basis of the number of shares proposed to be included in the
registration by each such holder, and (iii) third, other securities requested
to be included in such registration.
(d) Priority on Secondary Registrations. If a Piggyback Registration is
an underwritten secondary registration on behalf of holders of the Company's
securities (other than holders exercising demand registration rights) and if
the managing underwriters advise the Company in writing that in their opinion
the number of securities requested to be included in such registration exceeds
the number which can be sold in an orderly manner in such offering within a
price range acceptable to the holders initially requesting such registration,
then the Company will include in such registration (i) first, the securities
requested to be included therein by the holders requesting such registration
and the Registrable Securities, Executive Registrable Securities and HPSC
Registrable Securities requested to be included in such registration, pro rata
among the holders of such securities on the basis of the number of securities
proposed to be included in the registration by each such holder, and (ii)
second, other securities requested to be included in such registration.
(e) Selection of Underwriters. If any Piggyback Registration is an
underwritten offering, the selection of investment banker(s) and manager(s) for
the offering must be approved by the holders of a majority of the Registrable
Securities and a majority of the Executive Registrable Securities included in
such Piggyback Registration, which approval will not be unreasonably withheld.
(f) Other Registrations. If the Company has previously filed a
registration statement with respect to Registrable Securities pursuant to
paragraph 1 or pursuant to this paragraph 2, and if such previous registration
has not been withdrawn or abandoned, the Company will not file or cause to be
effected any other registration of any of its equity securities or securities
convertible or exchangeable into or exercisable for its equity securities under
the Securities Act (except on Form S-8 or any successor form), whether on its
own behalf or at the request of any holder or holders of such securities,
until a period of at least six months has elapsed from the effective date of
such previous registration.
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3. Holdback Agreements.
(a) Each holder of Registrable Securities and Executive Registrable
Securities agrees not to effect any public sale or distribution (including
sales pursuant to Rule 144 promulgated pursuant to the Securities Act) of
equity securities of the company, or any securities convertible into or
exchangeable or exercisable for such securities, during the seven days prior to
and the 90-day period beginning on the effective date of any underwritten
Demand Registration or underwritten Piggyback Registration in which Registrable
Securities are included (except for sales of such securities as part of such
underwritten registered offering and as otherwise permitted under Rule 144(k)),
unless the underwriters managing the registered public offering otherwise
agree.
(b) The Company agrees not to effect any public sale or distribution of
its equity securities, or any securities convertible into or exchangeable or
exercisable for such securities, during the seven days prior to and during the
90-day period beginning on the effective date of any underwritten Demand
Registration or any underwritten Piggyback Registration (except as part of such
underwritten registration or pursuant to registrations on Form S-8 or any
successor form), unless the underwriters managing the registered public
offering otherwise agree.
4. Registration Procedures. Whenever the holders of Registrable
Securities have requested that any Registrable Securities be registered
pursuant to this Agreement, the Company will use its best efforts to effect the
registration and the sale of such Registrable Securities in accordance with the
intended method of disposition thereof (including the registration of warrants
held by a holder of Registrable Securities requesting registration as to which
the Company has received reasonable assurances that only Registrable Securities
will be distributed to the public), and pursuant thereto the Company will as
expeditiously as possible:
(a) Prepare and file with the Securities and Exchange Commission a
registration statement with respect to such Registrable Securities and use its
best efforts to cause such registration statement to become effective and
remain effective until the earlier of (i) the date when all Registrable
Securities covered by the registration statement have boon sold, or (ii) 180
days from the effective date of the registration statement; provided that
before filing a registration statement or prospectus or any amendments or
supplements thereto, the Company will furnish to the counsel selected by the
holders of a majority of the Registrable Securities covered by such
registration statement copies of all such documents proposed to be filed
including documents that are to be incorporated by reference into such
registration statement, amendment or supplement, which documents will be
subject to the review of such counsel, and which proposed registration
statement or amendment or supplement thereto shall not be filed by the Company
if the holders of a majority of the Registrable Securities covered by such
statement, amendment or supplement reasonably object to such filing;
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(b) Prepare and file with the Securities and Exchange 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 referred to in paragraph 4(a) and comply
with the provisions of the Securities Act with respect to the disposition of
all securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the sellers thereof sot
forth in such registration statement;
(c) Furnish to each holder of Registrable Securities such number of copies
of such registration statement, each amendment and supplement thereto, the
prospectus included in such registration statement (including each preliminary
prospectus) and such other documents as such holder may reasonably request in
order to facilitate the disposition of the Registrable Securities owned by such
holder;
(d) Use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions
as any holder thereof reasonably requests and do any and all other acts and
things which may be reasonably necessary or advisable to enable such holder to
consummate the disposition in such jurisdictions of the Registrable Securities
owned by such holder;
(e) Notify each holder of such Registrable securities, at any time when a
prospectus relating thereto is required to be delivered under the Securities
Act, of the happening of any event is a result of which the prospectus included
in such registration statement contains an untrue statement of a material fact
or omits any fact necessary to make the statements therein not misleading, and,
at the request of any such holder, the Company will prepare a supplement or
amendment to such prospectus so that, as thereafter delivered to the purchasers
of such Registrable Securities, such prospectus will not contain an untrue
statement of a material fact or omit to state any fact necessary to make the
statements therein not misleading;
(f) Promptly notify the holders of Registrable securities and the
underwriters, if any, of the following events and (if requested by any such
person) confirm such notification in writing: (i) the filing of the prospectus
or any prospectus supplement and the registration statement and any amendment
or post-effective amendment thereto and, with respect to the registration
statement or any post-effective amendment thereto, the declaration of the
effectiveness of such documents, (ii) any requests by the Securities and
Exchange Commission for amendments or supplements to the registration statement
or the prospectus or for additional information, (iii) the issuance or threat
of issuance by the Securities and Exchange commission of any stop order
suspending the effectiveness of the registration statement or the initiation of
any proceedings for that purpose, and (iv) the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation or threat
of initiation of any proceeding for such purpose;
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(g) Cause all such Registrable Securities to be listed on each securities
exchange on which similar securities issued by the Company are then listed and,
if not so listed, to be listed on the Nasdaq Stock Market and, if listed on the
Nasdaq Stock Market automated quotation system, use its best efforts to secure
designation of all such Registrable Securities covered by such registration
statement as a NASDAQ "national market system security" within the meaning of
Rule 11Aa2-1 of the Securities and Exchange commission or, failing that, to
secure Nasdaq authorization for such Registrable Securities and, without
limiting the generality of the foregoing, to arrange for at least two market
makers to register as such with respect to such Registrable Securities with the
NASD;
(h) Provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement;
(i) Enter into such customary agreements (including, without limitation,
underwriting agreements in customary form) and take all such other actions as
the holders of a majority of the Registrable Securities being sold or the
underwriters, if any, reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities (including, without limitation,
affecting a stock split or a combination of shares);
(j) Make available for inspection by any holder of Registrable Securities,
any underwriter participating in any disposition pursuant to such registration
statement and any attorney, accountant or other agent retained by any such
holder or underwriter, all financial and other records, pertinent corporate
documents and properties of the Company, and cause the Company's officers,
directors, employees and independent accountants to supply all information
reasonably requested by any such holder, underwriter, attorney, accountant or
agent in connection with such registration statement;
(k) Otherwise use its best efforts to comply with all applicable rules and
regulations of the Securities and Exchange Commission, and make available to
its security holders, as soon as reasonably practicable, an earnings statement
covering the period of at least twelve months beginning with the first day of
the Company's first full calendar quarter after the effective date of the
registration statement, which earnings statement shall satisfy the provisions
of Section 11(a) of the Securities Act and Rule 158 thereunder;
(1) Permit any holder of Registrable Securities to participate in the
preparation of such registration statement or comparable statement and to
require the insertion therein of material, furnished by any such holder to the
Company in writing, which in the reasonable judgment of such holder and its
counsel should be included; provided that such material shall be furnished
under such circumstances as shall cause it to be subject to the indemnification
provisions provided pursuant to paragraph 6(b) hereof;
(m) Make every reasonable effort to prevent the entry of any order
suspending the effectiveness of the registration statement and, in the event of
the issuance
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of any such stop order, or of any order suspending or preventing the use of any
related prospectus or suspending the qualification of any security included in
such registration statement for sale in any jurisdiction, the Company will use
its best efforts promptly to obtain the withdrawal of such order:
(n) Use its best efforts to cause such Registrable Securities covered by
such registration statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the holders
thereof to consummate the disposition of such Registrable Securities;
(o) Cooperate with the selling holders of Registrable Securities and the
underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold and not bearing any
restrictive legends, and enable such Registrable Securities to be in such lots
and registered in such names as the underwriters may request at least two
business days prior to any delivery of Registrable Securities to the
underwriters;
(p) Provide a CUSIP number for all Registrable Securities not later than
the effective date of the registration statement; and
(q) Prior to the effectiveness of the registration statement and any
post-effective amendment thereto and at each closing of an underwritten
offering, (i) make such representations and warranties to the selling holders
of such Registrable Securities and the underwriters, if any, with respect to
the Registrable Securities and the registration statement as are customarily
made by issuers to underwriters in primary underwritten offerings, (ii) obtain
opinions of counsel to the Company and updates thereof (which counsel and which
opinions shall be reasonably satisfactory to the underwriters, if any, and to
the holders of a majority of the Registrable Securities being sold) addressed
to each selling holder and the underwriters, if any, covering the matters
customarily covered in opinions requested in underwritten offerings and such
other matters as may be reasonably requested by such holders and underwriters
or their counsel, (iii) obtain "cold comfort" letters and updates thereof from
the Company's independent certified public accountants addressed to the selling
holders of Registrable Securities and the underwriters, if any, such letters to
be in customary form and covering matters of the type customarily covered in
"cold comfort" letters by underwriters in connection with primary underwritten
offerings, and (iv) deliver such documents and certificates as may be
reasonably requested by the holders of a majority of the Registrable Securities
being sold and by the underwriters, if any, to evidence compliance with clause
(i) above and with any customary conditions contained in the underwriting
agreement or other agreement entered into by the Company.
5. Registration Expenses.
(a) All expenses incident to the Company's performance of or compliance
with this Agreement, including without limitation all registration and filing
fees, fees and expenses of compliance with securities or blue sky laws,
printing expenses,
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messenger and delivery expenses, and fees and disbursements of counsel for the
Company and all independent certified public accountants, underwriters
(excluding discounts and commissions) and other Persons retained by the Company
(all such expenses being herein called "Registration Expenses"), will be borne
as provided in this Agreement, except that the Company will, in any event, pay
its internal expenses (including, without limitation, all salaries and expenses
of its officers and employees performing legal or accounting duties), the
expense of any annual audit or quarterly review, the expense of any liability
insurance and the expenses and fees for listing the securities to be registered
on each securities exchange on which similar securities issued by the Company
are then listed or on the Nasdaq Stock Market.
(b) In connection with each Demand Registration and each Piggyback
Registration, the Company will reimburse the holders of Registrable Securities
covered by such registration for the reasonable fees (not exceeding $20,000 for
each registration) and disbursements of one counsel chosen by the holders of a
majority of the Registrable Securities initially requesting such registration
and approved by the Company, which approval shall not be unreasonably withheld
or delayed.
(c) To the extent Registration Expenses are not required to be paid by the
Company, each holder of securities included in any registration hereunder will
pay those Registration Expenses allocable to the registration of such holder's
securities so included, and any Registration Expenses not so allocable will be
borne by all sellers of securities included in such registration in proportion
to the aggregate selling price of the securities to be so registered.
6. Indemnification.
(a) The Company agrees to indemnify, to the extent permitted by law, each
holder of Registrable Securities or Executive Registrable Securities, its
officers, directors and partners, as the case may be, and each Person who
controls such holder (within the meaning of the Securities Act) against all
losses, claims, damages, liabilities and expenses caused by any untrue or
alleged untrue statement of material fact contained in any registration
statement, prospectus or preliminary prospectus or any amendment thereof or
supplement thereto or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as the same are caused by or contained in any
information furnished in writing to the Company by such holder expressly for
use therein or by such holder's failure to deliver a copy of the registration
statement or prospectus or any amendments or supplements thereto after the
Company has furnished such holder with a sufficient number of copies of the
same. In connection with an underwritten offering, the Company will indemnify
such underwriters, their officers, directors and partners, as the case may be,
and each Person who controls such underwriters (within the meaning of the
Securities Act) to the same extent as provided above with respect to the
indemnification of the holders of Registrable Securities.
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(b) In connection with any registration statement in which a holder of
Registrable Securities or Executive Registrable Securities is participating,
each such holder will furnish to the Company in writing such information and
affidavits as the Company reasonably requests for use in connection with any
such registration statement or prospectus and, to the extent permitted by law,
will indemnify the Company, its directors and officers and each Person who
controls the Company (within the meaning of the Securities Act) against any
losses, claims, damages, liabilities and expenses resulting from any untrue or
alleged untrue statement of material fact contained in the registration
statement, prospectus or preliminary prospectus or any amendment thereof or
supplement thereto or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading, but only to the extent that such untrue statement or omission is
contained in any information or affidavit so furnished in writing by such
holder; provided that the obligation to indemnify will be individual to each
holder and will be limited to the net amount of proceeds received by such
holder from the sale of Registrable Securities or Executive Registrable
Securities pursuant to such registration statement.
(c) Any Person entitled to indemnification hereunder will (i) give prompt
written notice to the indemnifying party of any claim with respect to which it
seeks indemnification and (ii) unless in such indemnified party's reasonable
judgment a conflict of interest between such indemnified and indemnifying
parties may exist with respect to such claim, permit such indemnifying party to
assume the defense of such claim with counsel reasonably satisfactory to the
indemnified party. If such defense is assumed, indemnifying party will not be
subject to any liability for any settlement made by the indemnified party
without its consent (but such consent will not be unreasonably withheld). An
indemnifying party who is not entitled to, or elects not to, assume the defense
of a claim will not be obligated to pay the fees and expenses of more than one
counsel for all parties indemnified by such indemnifying party with respect to
such claim, unless in the reasonable judgment of any indemnified party a
conflict of interest may exist between such indemnified party and any other of
such indemnified parties with respect to such claim.
(d) The indemnification provided for under this Agreement will remain in
full force and effect regardless of any investigation made by or on behalf of
the indemnified party or any officer, director or controlling Person of such
indemnified party and will survive the transfer of securities. The Company
also agrees to make such provisions, as are reasonably requested by any
indemnified party, for contribution to such party in the event the Company's
indemnification is unavailable for any reason.
7. Participation in Underwritten Registrations. No Person may participate
in any registration hereunder which is underwritten unless such Person (a)
agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Person or Persons entitled hereunder
to approve such arrangements, and (b) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents required under the terms of such underwriting arrangements;
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provided, that no holder of Registrable Securities included in any underwritten
registration shall be required to make any representations or warranties to the
Company or the underwriters other than representations and warranties regarding
such holder and such holder's intended method of distribution.
8. Reports Under the Securities Laws. With a view to making available to
the holders of Registrable Securities and Executive Registrable Securities the
benefits of Rule 144 promulgated under the Securities Act and any other rule or
regulation of the Securities and Exchange commission that may at any time
permit such holder to sell securities of the Company to the public without
registration, the Company agrees to use its best efforts to:
(a) Make and keep public information available, as those terms are
understood and defined in Rule 144, at all times subsequent to 90 days after
the effective date of any registration statement covering an underwritten
public offering filed under the Securities Act by the Company;
(b) File with the Securities and Exchange Commission in a timely manner
all reports and other documents required of the Company under the Securities
Act and the 1934 Act at any time after it is subject to such registration
requirements; and
(c) Furnish to any such holder so long as such holder owns any of the
Registrable Securities or Executive Registrable Securities forthwith upon
request a written statement by the Company that it has complied with the
reporting requirements of Rule 144 (at any time after 90 days after the
effective date of such registration statement filed by the Company), and of the
Securities Act and the 1934 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 by the
Company as may be reasonably requested by any such holder in availing any such
holder of any rule or regulation of the Securities and Exchange Commission
permitting the selling of any such securities without registration.
9. Certain Limitations in Connection with Future Grants of Registration
Rights. From and after the date of this Agreement, the Company shall not enter
into any agreement with any holder or prospective holder of any securities of
the Company providing for the granting to such holder of registration rights
unless such agreement:
(a) Includes as a term the equivalent of paragraph 3 of this Agreement;
(b) Includes a provision that, in the case of a Demand Registration,
protects the holders of Registrable Securities if marketing factors require a
limitation on the number of securities to be included in an underwriting in the
manner contemplated by paragraphs 1(d), 2(c) and 2(d) of this Agreement; and
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(c) Is otherwise not inconsistent with the rights granted to the holders
of Registrable Securities in this Agreement.
10. Transfer of Registration Rights. Provided that the Company is given
written notice by the holder of Registrable Securities at the time of such
transfer stating the name and address of the transferee and identifying the
securities with respect to which the rights under this Agreement are being
assigned, the rights of such holder of Registrable Securities or Executive
Registrable Securities under this Agreement may be transferred in whole or in
part at any time.
11. Definitions. "Executive Registrable Securities" means (i) any equity
securities held as of the date hereof or. hereafter acquired by an Executive or
by a member of the immediate family of Xxxxxx, and (ii) any shares of equity
securities of the Company issued or issuable with respect to the foregoing
securities by way of dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization. As to any particular Executive Registrable Securities, such
securities will cease to be Executive Registrable Securities when they have
been distributed to the public pursuant to a offering registered under the
Securities Act or sold to the public through a broker, dealer or market maker
in compliance with Rule 144 under the Securities Act (or any similar rule then
in force). For purposes of this Agreement, Xxxxxx will also be deemed to be a
holder of Executive Registrable Securities whenever Xxxxxx has the right to
acquire such Executive Registrable Securities (upon conversion or exercise) in
connection with a transfer of securities or otherwise, but disregarding any
restrictions or limitations upon the exercise of such right), whether or not
such acquisition has actually been effected.
"Registrable Securities" means (i) any equity securities of the Company
held as of the date hereof or acquired hereafter by Xxxxxxxx or Sears, (ii) any
equity securities of the Company issued or issuable with respect to the
securities referred to in clause (i) by way of a stock dividend or stock split
or in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization, and (iii) any other shares of equity
securities of the Company held by persons holding securities described in
clauses (i) and (ii) above. As to any particular Registrable Securities, such
securities will cease to be Registrable Securities when they have been
distributed to the public pursuant to a offering registered under the
Securities Act or sold to the public through a broker, dealer or market maker
in compliance with Rule 144 under the Securities Act (or any similar rule then
in force). For purposes of this Agreement, a Person will also be deemed to be
a holder of Registrable Securities whenever such Person has the right to
acquire directly or indirectly such Registrable Securities (upon conversion or
exercise in connection with a transfer of securities or otherwise, but
disregarding any restrictions or limitations upon the exercise of such right),
whether or not such acquisition has actually been effected.
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14
12. Miscellaneous.
(a) No inconsistent Agreements. The Company will not hereafter enter into
any agreement with respect to its securities which is inconsistent with or
violates the rights granted to the holders of Registrable Securities in this
Agreement.
(b) Adjustments Affecting Registrable Securities. The Company will not
take any action, or permit any change to occur, with respect to its securities
which would materially and adversely affect the ability of the holders of
Registrable Securities to include such Registrable Securities in a registration
undertaken pursuant to this Agreement or which would materially and adversely
affect the marketability of such Registrable Securities in any such
registration (including, without limitation, effecting a stock split or a
combination of shares).
(c) Remedies. Any Person having rights under any provision of this
Agreement will be entitled to enforce such rights specifically, to recover
damages caused by reason of any breach of any provision of this Agreement and
to exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or other security) for specific performance and for other injunctive
relief in order to enforce or prevent violation of the provisions of this
Agreement.
(d) Amendments and Waivers. Except as otherwise provided herein, the
provisions of this Agreement may be amended or waived only upon the prior
written consent of the Company, holders of a majority of the Registrable
Securities (excluding all Registrable Securities held by the Company) and
holders of a majority of the Executive Registrable Securities.
(e) Successors and Assigns. All covenants and agreements in this
Agreement by or on behalf of any of the parties hereto will bind and inure to
the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not. In addition, whether or not any express
assignment has been made, the provisions of this Agreement which are for the
benefit of purchasers or holders of Registrable Securities or Executive
Registrable Securities are also for the benefit of, and enforceable by, any
subsequent holder of Registrable Securities or Executive Registrable
Securities.
(f) Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the
remainder of this Agreement.
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15
(g) Counterparts. This Agreement may be executed simultaneously in two or
more counterparts, any one of which need not contain the signatures of more
than one party, but all such counterparts taken together shall constitute one
and the same Agreement.
(h) Descriptive Headings; Interpretation. The descriptive headings of
this Agreement are inserted for convenience only-and de not constitute a
paragraph of this Agreement. The use of the word "including" in this Agreement
shall be by way of example rather than by limitation.
(i) Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Georgia.
(j) Notices. All notices, demands or other communications to be given or
delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be delivered personally to the recipient, sent by reputable
express courier service (charges prepaid) or sent by certified or registered
mail, return receipt requested and postage prepaid and shall be deemed to have
been given when so delivered, sent or deposited in the U.S. Mail. Such
notices, demands and other communications shall be sent to the parties hereto
at the addresses indicated below or, with respect to subsequent holders of
Registrable Securities or Executive Registrable Securities, at the addresses of
such holders set forth in the books and records of the Company:
If to the Company: Medirisk, Inc.
Two Piedmont Center, Suite 400
3565 Piedmont Road, N.E.
Xxxxxxx, Xxxxxxx 00000
with a copy to: Xxxxxxx X. Xxxxxxxx
Xxxxxx & Bird
One Atlantic Center
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
If to Xxxxxxxx: Xxxxxxxx Venture Partners II, L.P.
00000 Xxxxxxx Xxxxxxxxx
Xxxxx 0000 Xxxxx Xxxx
Xxxxxxxxx, Xxxx 00000
If to Sears: The Chase Manhattan Bank, N.A.
c/o Xxxxx Xxxxxx
The Chicago Corp.
000 XxXxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
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16
If to Xxxxxx: Xxxxxxxx X. Xxxxxx
0000 Xxxxx Xxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
or to such other address as it appears in the records of the Company (unless
otherwise indicated by such holder) or to the attention of such other person as
the recipient party has specified by prior written notice to the sending party.
(k) Termination of Prior Agreement. This Agreement is intended by the
parties to supersede and replace the Original Registration Agreement, and the
parties agree that the Original Registration Agreement shall be terminated
effective immediately prior to the effectiveness of the Company's registration
statement for its initial public offering.
* * * * *
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17
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
MEDIRISK, INC., a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxx, Xx.
---------------------------------------
Title: Vice President
---------------------------------------
XXXXXXXX VENTURE PARTNERS II, L.P.,
a Delaware limited partnership
By: Xxxxxxxx Venture Management II, L.P., its
general partner
By: Pinkas Family Partners, L.P., its
general partner
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Xxxxxx X. Xxxxxx, its
general partner
SEARS PENSION TRUST
By: Chase Manhattan Bank, N.A., as Trustee
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------------
Title: Vice President
--------------------------------------
/s/ Xxxxxxxx X. Xxxxxx
-------------------------------------------
XXXXXXXX X. XXXXXX
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