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EXHIBIT 4.8
May 3, 1999
NFT Ventures, Inc.
Xxxxxxx Xxxxxx
NP Ventures, LTD.
Xxxxxx Xxxxxxxxxxx
Xxxx Xxxxxx
Registration Rights Agreement
Gentlemen:
This letter will confirm that in connection with the settlement of
certain claims as contemplated by that certain Settlement Agreement and
Release, dated January 13, 1999, by and among NFT Ventures, Inc., a Utah
corporation; Xxxxxxx X. Xxxxxx; Xxxx Xxxxxx; NP Ventures, Ltd., a Texas limited
partnership; and Xxxxxx X. Xxxxxxxxxxx (individually, an "NFT Principal and
collectively, the "NFT Principals"), acting severally and not jointly, on the
one hand, and Medaphis Corporation, a Delaware corporation ("Medaphis") on the
other hand; as amended by Amendment No. 1 thereto dated January 13, 1999 and
Amendment No. 2 thereto dated May 3, 1999 (as so amended, the "Settlement
Agreement"), and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged and confirmed, the parties hereto
hereby covenant and agree as follows:
1. Certain Definitions. Any capitalized terms used herein
without definition shall have the meaning ascribed to such terms in the
Settlement Agreement.
2. Resale Registration Statement.
(a) Medaphis shall prepare and file with the Commission as soon
as practicable after the date hereof a registration statement (the
"Registration Statement") on Form S-3 or other available form with respect to
resale of the Settlement Shares by the NFT Principals and shall use its
reasonable best efforts to have the Registration Statement declared effective
by the Commission as promptly as practicable thereafter.
(b) Medaphis and each of the NFT Principals will cooperate in
the preparation of the Registration Statement for the Settlement Shares and
will furnish each other with all information concerning themselves, their
subsidiaries, directors, officers, and stockholders and such other matters as
may be reasonably necessary or advisable for the Registration Statement,
filings under the state securities laws, and any other statement or application
made by or on behalf of Medaphis or any of the NFT Principals to any
governmental body in connection with this Settlement Agreement and the
transactions contemplated hereby.
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(c) Medaphis shall provide a reasonable opportunity for each of
the NFT Principals (and their respective representatives) to review a draft of
the Registration Statement, and any amendment or supplement thereto, and to
correct any information with respect to such NFT Principal prior to the time
the Registration Statement is filed with the Commission.
3. Effectiveness of Registration Statement. Medaphis agrees to
maintain the effectiveness of the Registration Statement from the date on which
the Commission declares the Registration Statement to be effective through the
first to occur of (i) the first anniversary of the Closing and the
effectiveness of the respective releases provided under Section 2.1; (ii) the
date on which each of the NFT Principals is no longer subject to any
restriction on resale pursuant to Rule 144 under the Securities Act; and (iii)
the date on which each of the NFT Principals shall have sold all of the
Settlement Shares held by such person. Notwithstanding the preceding sentence,
if the Board of Directors of Medaphis determines in good faith that it is in
the best interests of the stockholders of Medaphis not to disclose the
existence of facts surrounding any proposed or pending acquisition,
disposition, strategic alliance, financing transaction or other pending
material event involving Medaphis, Medaphis may, by written notice to the NFT
Principals, suspend the rights of the NFT Principals to make sales pursuant to
the Registration Statement; provided that such period of suspension shall not
exceed forty-five (45) days during the period in which the Registration
Statement is required to remain effective as provided herein. As of the date
hereof, Medaphis is not aware of such a pending material event that would cause
it to declare such a suspension of effectiveness.
4. Medaphis Covenants. In connection with the preparation,
filing and effectiveness of the Registration Statement, Medaphis covenants and
agrees that it will:
a. prepare and file with the Commission such
amendments and supplements to the Registration Statement and the
prospectus used in connection therewith as may be necessary to keep
the Registration Statement effective for such period as may be
required hereunder, and in each case to comply with the provisions of
the Securities Act with respect to the disposition of the Settlement
Shares during such period in accordance with the intended methods of
distribution by the NFT Principals set forth in the Registration
Statement;
b. furnish to each NFT Principal such number of
copies of the Registration Statement, each amendment and supplement
thereto, in each case including all exhibits, the prospectus included
in the Registration Statement and such other documents as such NFT
Principal may reasonable request in order to facilitate the
disposition of the Settlement Shares by such NFT Principal;
c. use its reasonable best efforts to register or
qualify the Settlement Shares under such other securities or blue sky
laws of such jurisdictions within the United States as any NFT
Principal reasonably requests to keep such registration
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or qualification in effect for as long as the Registration Statement
is in effect and to do any and all other acts and things which may be
reasonably necessary or advisable to enable such NFT Principal to
consummate the disposition in such jurisdictions of the Settlement
Shares then held or owned by such NFT Principal;
d. at any time when a prospectus relating to the
resale of Settlement Shares is required to be delivered under the
Securities Act, to notify each NFT Principal of the happening of any
event as a result of which the prospectus contained in the
Registration Statement contains an untrue statement of material fact
or omits any fact necessary to make the statements therein not
misleading and, promptly prepare a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers of
Settlement Shares, such prospectus will not contain an untrue
statement of material fact or omit to state any fact necessary to make
the statements therein, in light of the circumstances under which such
statements were made, not misleading; and
e. if the Registration Statement has been filed on
Form S-3 or any other available form promulgated by the Commission
permitting the incorporation of Medaphis's Commission reports or other
documents by reference, and if such "short form" thereafter becomes
unavailable for use by Medaphis for any reason, Medaphis shall as
promptly as practicable thereafter take such steps as are necessary to
convert the Registration Statement into a registration statement on
Form S-1 or other available "long form," including, but not limited
to, by post-effective amendment, and shall use commercially reasonable
efforts to cause such "long-form" registration statement to become
effective as promptly as practicable thereafter and to otherwise
comply with the provisions of this Section 2.
5. Exchange Act Reports. From and after the date hereof, and
for so long as is necessary in order to permit the NFT Principals to sell the
Settlement Shares pursuant to Rule 144 promulgated under the Securities Act
("Rule 144") and to maintain the availability to Medaphis of Form S-3 or other
available short-form registration statement permitting the incorporation of
Medaphis's Commission reports or other documents by reference, Medaphis will
file on a timely basis all reports and other documents required to be filed by
it pursuant to the Securities Act and the Exchange Act, including Section 13 or
15(d) thereof; and to furnish to any NFT Principal, so long as such NFT
Principal owns any Settlement Shares, forthwith upon request (i) a written
statement by Medaphis that it has complied with reporting requirements of Rule
144, the Securities Act and the Exchange Act, or that it qualifies as a
registrant whose securities may be issued or resold pursuant to Form S-3 (or
any other available short-form registration statement), (ii) a copy of the most
recent annual or quarterly report of Medaphis and such other reports and
documents so filed by Medaphis (including all exhibits), and (iii) such other
information as may be reasonably requested in availing any NFT Principal of any
rule or regulation of the Commission which permits the selling of any such
securities of Medaphis without registration or pursuant to Form S-3 or other
available "short-form" registration statement.
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6. Acknowledgment of NFT Principals. Each of the NFT
Principals acknowledges that the issuance of the Settlement Shares will not be
registered under the Securities Act, or any applicable state securities laws,
in reliance upon exemptions from registration contained in the Securities Act
and such state laws, and that Medaphis's reliance upon such exemptions is based
in part upon the NFT Principal's representations, warranties and agreements
contained in this Agreement. Each Recipient acknowledges that, prior to the
execution of this Agreement, it has had the opportunity to ask questions of and
receive answers or obtain additional information from a representative of
Medaphis concerning the financial and other affairs of Medaphis and the terms
and conditions of the issuance of the Settlement Shares, and, to the extent
such NFT Principal believes necessary in light of its personal knowledge of
Medaphis' affairs, it has asked such questions and received satisfactory
answers.
7. Representations and Warranties of NFT Principals. Each of
the NFT Principals represents, warrants and agrees as follows:
(a) it shall not make any sale, transfer or other
disposition of the Settlement Shares without registration under the
Securities Act and any applicable state securities laws unless an
exemption from such registration is available and is complied with;
(b) it is familiar with the business in which
Medaphis is engaged, and based upon its knowledge and experience in
financial and business matters, it is familiar with the investments of
the sort which it is undertaking by receiving the Settlement Shares;
it is fully aware of the problems and risks involved in making an
investment of this type; and it is capable of evaluating the merits
and risks of this investment;
(c) that the investment which the NFT Principal is
undertaking by receiving the Settlement Shares is in accord with the
nature and size of such NFT Principal's present investments and net
worth, and such NFT Principal is financially able to bear the economic
risk of this investment;
(d) that all information with respect to such NFT
Principal contained in the Registration Statement and any prospectus
used in connection therewith is true and correct in all material
respects as of the date hereof; and
(e) that such NFT Principal is an "accredited
investor" as such term is defined in rule 501(a) under the Securities
Act.
8. Medaphis Stock Legend. Each of the certificates
representing the Settlement Shares, or any substitutions therefor, shall be
stamped or imprinted with a legend stating in substance as follows:
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"The shares evidenced by this certificate have not been
registered under the Securities Act of 1933, as amended, and
may not be transferred, nor will any assignee or endorsee
hereof be recognized as an owner hereof by the issuer for any
purpose, unless a registration statement under the Securities
Act of 1933, as amended, with respect to such shares shall
then be in effect or unless the availability of an exemption
from registration with respect to any proposed transfer or
disposition of such shares shall be established to the
satisfaction of counsel for the issuer. In addition, these
securities have not been registered or qualified under the
securities laws of any state and may not be sold or
transferred except in a transaction which is exempt under the
applicable state securities laws or pursuant to an effective
registration or qualification under such laws."
9. Expenses.
(a) All expenses incurred by Medaphis in connection with the
preparation, filing and maintenance of effectiveness of the Registration
Statement, including, without limitation, all registration, filing and
qualification fees, printing expenses, fees and disbursements of counsel and
independent accountants for Medaphis, fees of the National Association of
Securities Dealers, Inc., transfer taxes, fees of transfer agents and
registrars, but excluding any Selling Expenses (as hereinafter defined), are
herein referred to as "Registration Expenses." Any underwriting discounts,
selling commissions and brokerage fees, fees and expenses of each of the NFT
Principals applicable to the sale of the Settlement Shares are herein called
"Selling Expenses."
(b) Medaphis will pay all Registration Expenses in connection
with the Registration Statement, any amendment thereto and any resale
prospectus filed pursuant to this Agreement. All Selling Expenses, to the
extent not covered by the terms of the Settlement Agreement, shall be borne by
the respective NFT Principal incurring such Selling Expense.
(c) If at any time after the one-year period specified in
subsection (d)(1) of Rule 144, and any NFT Principal shall not be an affiliate
of Medaphis, Medaphis agrees (i) to cooperate with such NFT Principal in
connection with the removal of legends placed on certificates representing such
NFT Principal's Settlement Shares pursuant to Section 8 hereof, (ii) not to
require legal opinions with respect to the transfer of such Settlement Shares
after expiration of such one-year holding period (or if it does to issue or
cause to be issued such opinion at its own expense), and (iii) to otherwise
bear all expenses associated with reissuing such shares without legends or in
connection with the issuance of any opinions requested by Medaphis or its
transfer agent with respect to the transfer of such shares; provided, however,
that each NFT Principal hereby agrees that any sale during the one-year period
after the period specified in subsection (d)(1) of Rule 144 shall be made in
accordance with all applicable manner of sale restrictions.
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10. Miscellaneous.
(a) This Agreement shall be governed by and construed in
accordance with the laws of the state of Georgia, without reference to
Georgia's choice of law rules.
(b) This Agreement and the Settlement Agreement constitute the
entire agreement of the parties with respect to the subject matter hereof.
(c) 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.
[Signature page follows.]
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Please indicate your acceptance of the foregoing by signing and
returning the enclosed counterpart of this letter, whereupon this letter
(hereinsometimes referred to as this "Agreement") shall be a binding agreement
among Medaphis and each of the NFT Principals.
MEDAPHIS CORPORATION
By: /s/ Xxxxxxxx X.X. Xxxxx
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Xxxxxxxx X.X. Xxxxx
Executive Vice President
NFT PRINCIPALS:
NFT VENTURES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx, Chairman
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx, Individually
/s/ Xxxx Xxxxxx
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Xxxx Xxxxxx, Individually
NP VENTURES, LTD.
By: Powershift Partners, LLC, its general partner
By: /s/ Xxxxxx X. Xxxxxxxxxxx
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Xxxxxx X. Xxxxxxxxxxx, President
/s/ Xxxxxx X. Xxxxxxxxxxx
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Xxxxxx X. Xxxxxxxxxxx, Individually
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