Exhibit 4.2
EXECUTION
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is entered into as of
the 2nd day of July, 2001, among PLANVISTA CORPORATION (f/k/a HealthPlan
Services Corporation), a Delaware corporation, as issuer (the "Company") and THE
HOLDERS LISTED ON THE SIGNATURE PAGES HEREOF (each a "Holder" or, together,
"Holders").
WHEREAS, the Company and the Holders are parties to that certain Second
Amended and Restated Credit Agreement dated as of June 8, 2000 (as modified by
the Limited Waiver and Consent thereto dated as of June 29, 2000, the Limited
Waiver and Consent thereto dated as of September 12, 2000, the Limited Waiver
thereto dated as of September 19, 2000, the Limited Waiver and Consent thereto
dated as of September 19, 2000, the Limited Waiver and Consent thereto dated as
of October 19, 2000, the Limited Waiver dated as of December 8, 2000, the First
Amendment and Limited Waiver and Consent dated as of March 29, 2001, the Second
Amendment and Limited Waiver and Consent dated as of April 16, 2001, the Limited
Waiver and Consent dated as of April 30, 2001, the Limited Waiver and Consent
dated as of May 4, 2001, the Limited Waiver and Extension dated as of June 15,
2001, the Third Amendment and Limited Waiver dated as of July 2, 2001 (the
"Third Amendment") and as such agreement may have otherwise been amended,
restated, supplemented or otherwise modified from time to time prior to the date
hereof, the "Credit Agreement"). Capitalized terms used herein without
definition shall have the meanings set forth in the Credit Agreement;
WHEREAS, pursuant to the terms of the Third Amendment, the Holders are
entitled to acquire and the Company desires to deliver 75,000 shares of common
stock of the Company, all on the terms and subject to the conditions set forth
herein; and
WHEREAS, as a condition to the delivery of the shares, the Holders have
required and the Company has agreed to grant registration rights as set forth
herein;
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. DEFINITIONS. The following terms have the following meanings:
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"Commission" means the Securities and Exchange Commission, or any
other federal agency then administering the Securities Act or the Exchange Act.
"Common Stock" means the shares of common stock of the Company $.01
par value per share.
"Company" is defined in the preamble to this Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder, all as
the same shall be in effect at the time.
"HealthPlan Holdings Registration Agreement" is defined in Section
3.4.
"Holders" means each of the Holders listed on the signature pages
hereof, for so long as (and to the extent that) each owns any Registrable
Securities, and each of their respective successors, assigns, and direct and
indirect transferees who become registered owners of Registrable Securities.
"Holder Indemnified Party" is defined in Section 6.1.
"Indemnified Party" is defined in Section 6.3.
"Indemnifying Party" is defined in Section 6.3.
"Maximum Number of Shares" is defined in Section 4.2(b).
"Piggy-Back Registration" is defined in Section 4.2(a).
"Register," "registered" and "registration" mean a registration
effected by preparing and filing a registration statement or similar document in
compliance with the requirements of the Securities Act, and the applicable rules
and regulations promulgated thereunder, and such registration statement becoming
effective.
"Registrable Securities" means (a) any shares of Common Stock of the
Company owned by the Holders on the date hereof or by any agent acting on their
behalf, (b) any other securities of the Company issued or issuable after the
date of this agreement in respect of any such securities (or other securities
issued in respect thereof) by way of dividend, distribution or split, in
connection with a combination, exchange, reorganization, recapitalization or
reclassification of the Company's securities, or pursuant to a merger, division,
consolidation or other similar business transaction or combination involving the
Company. As to any particular Registrable Securities, such securities shall
cease to be Registrable Securities when: (i) a Registration Statement with
respect to the sale of such securities shall have become effective under the
Securities Act and such securities shall have been sold, transferred, disposed
of or exchanged in accordance with such Registration Statement; (ii) such
securities shall have become freely transferable under Rule 144(k) (or any
successor rule or regulation) promulgated under the Securities Act; (iii) such
securities shall have been otherwise transferred, new certificates for them not
bearing a legend restricting further transfer shall have been delivered by the
Company and subsequent public distribution of them shall not require
registration under the Securities Act; or (iv) such securities shall have ceased
to be issued and outstanding.
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"Registration Statement" means a registration statement filed by the
Company with the Commission in compliance with the Securities Act and the rules
and regulations promulgated thereunder for a public offering and sale of Common
Stock (other than a registration statement on Form S-4 or Form S-8, or their
successors, or any registration statement covering only securities proposed to
be issued in exchange for securities or assets of another entity).
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder, all as the same
shall be in effect at the time.
"Shares" is defined in Section 2.1.
"Underwriter" means a securities dealer who purchases any Registrable
Securities as principal in an underwritten offering and not as part of such
dealer's market-making activities.
2. DELIVERY OF SHARES.
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2.1 Delivery of Stock/Consideration. The Company has delivered, and
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each Holder has acquired, the Common Stock set forth on Schedule I with respect
to such Holder aggregating seventy-five thousand (75,000) shares of the Common
Stock (the "Shares") in consideration for the execution and delivery of the
Third Amendment.
3. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF HOLDER.
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3.1 Investment Intention. Each Holder is acquiring the Shares solely
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for its own account, for investment purposes, with no present intention of and
with no view toward distributing all or any part of the Shares to others for
resale or otherwise participating, directly or indirectly, in any distribution
of the Shares in violation of state or federal securities laws. Each Holder
understands that the Shares have not been registered under any state or federal
securities laws based upon the understanding of the Company that the issuance of
the Shares as described in this Agreement is exempt from such registration.
Accordingly, the Shares will be treated as Restricted Securities, as defined in
Rule 144 of the Securities Act, under the provisions of Rule 144 as promulgated
by the Commission. Each Holder agrees that the certificates representing the
Shares will contain a legend to this effect as follows:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
WITH THE SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY OTHER JURISDICTION.
THE SALE OR OTHER DISPOSITION OF THESE SHARES IS PROHIBITED UNLESS
SUCH SALE OR OTHER DISPOSITION IS IN ACCORDANCE WITH THE REGISTRATION
REQUIREMENTS OF SUCH ACT AND THE SECURITIES LAWS OF ANY OTHER
APPLICABLE JURISDICTION OR PURSUANT TO AN EXEMPTION FROM SUCH
REGISTRATION REQUIREMENTS."
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The Reliance by the Company upon an exemption from registration is
predicated, in part, upon the representations and warranties of each Holder
contained in this Section 3.
3.3 Evaluation of Investment. Each Holder has such knowledge and
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experience in financial and business matters in general, and in investments in
particular, as to enable it to evaluate the merits and risks of an investment in
the Company. Each Holder has been furnished during the course of the
transactions contemplated hereby and prior to the execution of this Agreement
with all documents and information concerning the Company as requested from time
to time, has been encouraged by the Company to have the transactions reviewed by
its legal counsel or other advisor, and has had, along with its legal counsel or
other advisor, the opportunity to ask questions of the representatives of the
Company and receive satisfactory answers to it concerning the Company and has
been able to obtain any and all information concerning the Company that it has
desired.
3.4 Restrictions on Sale of the Shares. Each Holder of the Shares
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agrees not to effect any sale or distribution of such Shares, including a sale
pursuant to Rule 144 under the Securities Act during the ninety (90) days prior
to, and during the one hundred twenty (120) day period beginning on, the
effective date of any demand registration made pursuant to Section 2.2 of the
Registration Rights Agreement dated as of June 18, 2001, by and between the
Company and HealthPlan Holdings, Inc. (the "HealthPlan Holdings Registration
Agreement"), a copy of which has been furnished to each Holder, unless such sale
or distribution is part of any such registration.
4. REGISTRATION RIGHTS.
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4.1 Registration of Shares. As soon as practicable following the
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delivery of the Shares, the Company shall file a Registration Statement with the
Commission to cover the sale of the Shares by the Holders. The Registration
Statement shall be on such form as shall then be available to the Company and
which the Company believes will be most expediently reviewed by the Commission
and achieve such registration, and may include the shares of other selling
stockholders or of the Company. The Company shall use its best efforts to
achieve the prompt effectiveness of the Registration Statement under this
Section 4.1 and to maintain it current until the Shares covered thereby have
been sold. The registration of the Shares pursuant to this Section 4.1 shall not
require any demand, written or oral, nor any other form of notification from the
Holders. Each Holder agrees that, during any day after the delivery of the
Shares, and while the Registration Statement covering the Shares is in effect,
it shall not sell more than twenty-five percent (25%) of the average daily
trading volume of the Company's common stock during the preceding ninety (90)
day period.
4.2 Piggy-Back Registration.
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(a) Piggy-Back Rights. If all of the Shares are not sold during the
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registration contemplated by Section 4.1 and at any time the Company proposes to
file a Registration Statement under the Securities Act with respect to an
offering of equity securities, or securities or other obligations exercisable or
exchangeable for, or convertible into, equity securities, by the Company for its
own account or by shareholders of the Company for their own account (or by
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the Company and by shareholders of the Company), other than a Registration
Statement (i) filed in connection with any employee stock option or other
benefit plan, (ii) for an exchange offer or offering of securities solely to the
Company's existing shareholders or (iii) for a dividend reinvestment plan, then
the Company shall (x) give written notice of such proposed filing to the holders
of Shares as soon as practicable but in no event less than forty-five (45) days
before the anticipated filing date, which notice shall describe the amount and
type of securities to be included in such offering, the intended method(s) of
distribution, and the name of the proposed managing Underwriter or Underwriters,
if any, of the offering, and (y) offer to the holders of Shares in such notice
the opportunity to register such number of Shares as such holders may request in
writing within fifteen (15) days following receipt of such notice (a "Piggy-Back
Registration"). The Company shall cause such Shares to be included in such
registration and shall use its best efforts to cause the managing Underwriter or
Underwriters of a proposed underwritten offering to permit the Shares requested
to be included in a Piggy-Back Registration to be included on the same terms and
conditions as any similar securities of the Company and to permit the sale or
other disposition of such Shares in accordance with the intended method(s) of
distribution thereof.
(b) Reduction of Offering. If the managing Underwriter or
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Underwriters for a Piggy-Back Registration that is to be an underwritten
offering advises the Company and the holders of Shares in writing that the
dollar amount or number of shares of Common Stock which the Company desires to
sell, taken together with shares of Common Stock, if any, as to which
registration has been demanded pursuant to written contractual arrangements with
persons other than the holders of Shares hereunder, the Shares as to which
registration has been requested under this Section 4.2, and the shares of Common
Stock, if any, as to which registration has been requested pursuant to the
written contractual piggy-back registration rights of other shareholders of the
Company, exceeds the maximum dollar amount or maximum number of shares that can
be sold in such offering without adversely affecting the proposed offering
price, the timing, the distribution method, or the probability of success of
such offering (such maximum dollar amount or maximum number of shares, as
applicable, the "Maximum Number of Shares"), then the Company shall include in
such registration: (i) first, the shares of Common Stock or other securities
that the Company desires to sell that can be sold without exceeding the Maximum
Number of Shares; (ii) second, if the registration is a "demand" registration
undertaken at the demand of persons other than the holders of Shares pursuant to
written contractual arrangements with such persons, then to the extent that the
Maximum Number of Shares has not been reached under the foregoing clause (i),
the shares of Common Stock for the account of demanding persons that can be sold
without exceeding the Maximum Number of Shares; (iii) third, to the extent that
the Maximum Number of Shares has not been reached under the foregoing clauses
(i) and (ii), the Shares as to which registration has been requested under this
Section 4.2; and (iv) fourth, to the extent that the Maximum Number of Shares
has not been reached under the foregoing clauses (i), (ii) and (iii), the shares
of Common Stock, if any, as to which registration has been requested pursuant to
written contractual piggy-back registration rights which such other shareholders
desire to sell that can be sold without exceeding the Maximum Number of Shares.
(c) Withdrawal. Any holder of Shares may elect to withdraw such
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holder's request for inclusion of Shares in any Piggy-Back Registration by
giving written notice to the
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Company of such request to withdraw prior to the effectiveness of the
Registration Statement. The Company may also elect to withdraw a registration
statement at any time prior to the effectiveness of the Registration Statement.
Notwithstanding any such withdrawal, the Company shall pay all expenses incurred
by the holders of Shares in connection with such Piggy-Back Registration as
provided in Section 5.3.
5. REGISTRATION PROCEDURES.
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5.1 Filings; Information. Whenever the Company is required to
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effect the registration of any Shares pursuant to Section 4, the Company shall
use its best efforts to effect the registration and sale of such Shares in
accordance with the intended method(s) of distribution thereof as expeditiously
as practicable, and in connection with any such request:
(a) Filing Registration Statement. The Company shall, as
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expeditiously as possible, prepare and file with the Commission a
Registration Statement on any form for which the Company then qualifies or
which counsel for the Company shall deem appropriate and which form shall
be available for the sale of all Shares to be registered thereunder in
accordance with the intended method(s) of distribution thereof, and shall
use its best efforts to cause such Registration Statement to become and
remain effective for the requisite period; provided, however, that the
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Company shall have the right to defer any Piggy-Back Registration for up to
the lesser of thirty (30) days or such lesser period as may be applicable
to deferment of any demand registration to which such Piggy-Back
Registration relates, in each case if the Company shall furnish to the
holders a certificate signed by the Chief Executive Officer of the Company
stating that, in the good faith judgment of the Board of Directors of the
Company, it would be materially detrimental to the Company and its
shareholders for such Registration Statement to be effected at such time.
(b) Copies. The Company shall, prior to filing a
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Registration Statement or prospectus, or any amendment or supplement
thereto, furnish without charge to the holders of Shares included in such
registration, and such holders' legal counsel, copies of such Registration
Statement as proposed to be filed, each amendment and supplement to such
Registration Statement (in each case including all exhibits thereto and
documents incorporated by reference therein), the prospectus included in
such Registration Statement (including each preliminary prospectus), and
such other documents as the holders of Shares included in such registration
or legal counsel for any such holders may request in order to facilitate
the disposition of the Shares owned by such holders.
(c) Amendments and Supplements. The Company shall prepare
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and file with the Commission such amendments, including post-effective
amendments, and supplements to each such Registration Statement and the
prospectus used in connection therewith as may be necessary to keep such
Registration Statement effective and in compliance with the provisions of
the Securities Act until all Shares have been sold.
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(d) Notification. After the filing of a Registration
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Statement, the Company shall promptly, and in no event more than two (2)
Business Days after such filing, notify the holders of Shares included in
such Registration Statement of such filing, and shall further notify such
holders promptly and confirm such advice in writing in all events within
two (2) Business Days of the occurrence of any of the following: (i) when
such Registration Statement becomes effective; (ii) when any post-effective
amendment to such Registration Statement becomes effective; (iii) of any
stop order issued or threatened by the Commission (and the Company shall
take all actions required to prevent the entry of such stop order or to
remove it if entered); and (iv) of any request by the Commission for any
amendment or supplement to such Registration Statement or any prospectus
relating thereto or for additional information or of the occurrence of an
event requiring the preparation of a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers of the
securities covered by such Registration Statement, such prospectus will not
contain an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, and promptly make available to the
holders of Shares included in such Registration Statement any such
supplement or amendment; except that before filing with the Commission a
Registration Statement or prospectus or any amendment or supplement
thereto, including documents incorporated by reference, the Company shall
furnish to the holders of the Shares included in such Registration
Statement and to the legal counsel for any such holders, copies of all such
documents proposed to be filed sufficiently in advance of filing to provide
such holders and legal counsel with a reasonable opportunity to review such
documents and comment thereon.
(e) State Securities Laws Compliance. The Company shall use
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its best efforts to (i) register or qualify the Shares covered by any
Registration Statement under such securities or "blue sky" laws of such
jurisdictions in the United States as the holders of the Shares included in
such Registration Statement (in light of their intended plan of
distribution) may request and (ii) cause such Shares covered by the
Registration Statement to be registered with or approved by such other
governmental authorities as may be necessary by virtue of the business and
operations of the Company and do any and all other acts and things that may
be necessary or advisable to enable the holders of the Shares included in
such Registration Statement to consummate the disposition of such Shares in
such jurisdictions; provided, however, that the Company shall not be
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required to qualify generally to do business in any jurisdiction where it
would not otherwise be required to qualify but for this paragraph (e), or
subject itself to taxation in any such jurisdiction.
(f) Agreements for Disposition. The Company shall enter into
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customary agreements (including, if applicable, an underwriting agreement
in customary form) and take such other actions as are reasonably required
in order to expedite or facilitate the disposition of such Shares. The
representations, warranties and covenants of the Company in any
underwriting agreement which are made to or for the benefit of any
Underwriters shall also be made to and for the benefit of the holders of
Shares included in such registration statement. No holder of Shares
included in such registration statement shall be required to make any
representations or warranties in the underwriting agreement
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except, if applicable, with respect to such holder's organization, good
standing, authority, title to the Shares, lack of conflict of such sale
with such holder's material agreements and organizational documents, and
with respect to written information relating to such holder that such
holder has furnished in writing expressly for inclusion in such
Registration Statement.
(g) Cooperation. The principal executive officer of the
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Company, the principal financial officer of the Company, the principal
accounting officer of the Company and all other officers and members of the
management of the Company shall cooperate fully in any offering of Shares
hereunder, which cooperation shall include, without limitation, the
preparation of the Registration Statement with respect to such offering and
all other offering materials and related documents, and participation in
meetings with Underwriters, attorneys, accountants and potential investors.
(h) Records. The Company shall make available for inspection
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by the holders of Registrable Securities included in such Registration
Statement, any Underwriter participating in any disposition pursuant to
such registration statement and any attorney, accountant or other
professional retained by any holder of Shares included in such Registration
Statement or any Underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, as shall be necessary to
enable them to exercise their due diligence responsibility, and cause the
Company's officers, directors and employees to supply all information
requested by any of them in connection with such Registration Statement.
(i) Opinions and Comfort Letters. The Company shall furnish
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to each holder of Shares included in any Registration Statement a signed
counterpart, addressed to such holder, of (i) any opinion of counsel to the
Company delivered to any Underwriter and (ii) any comfort letter from the
Company's independent public accountants delivered to any Underwriter. In
the event no legal opinion is delivered to any Underwriter, the Company
shall furnish to each holder of Shares included in such Registration
Statement, at any time that such holder elects to use a prospectus, an
opinion of counsel to the Company to the effect that the Registration
Statement containing such prospectus has been declared effective and that
no stop order is in effect.
(j) Earnings Statement. The Company shall comply with all
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applicable rules and regulations of the Commission and the Securities Act,
and make available to its shareholders, as soon as practicable, an earnings
statement covering a period of twelve (12) months, beginning within three
(3) months 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.
(k) Listing. The Company shall use its best efforts to cause
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all Shares included in any registration to be listed on such exchanges or
otherwise designated for trading in the same manner as similar securities
issued by the Company are then listed or designated or, if no such similar
securities are then listed or designated, in a manner
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satisfactory to the holders of at least 66-2/3% of the Shares or
Registrable Securities included in such registration.
5.2 Obligation to Suspend Distribution. Upon receipt of any notice
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from the Company of the happening of any event of the kind described in Section
5.1(d)(iv), or upon any suspension by the Company, pursuant to a written xxxxxxx
xxxxxxx compliance program adopted by the Company's Board of Directors, of the
ability of all "insiders" covered by such program to transact in the Company's
securities because of the existence of material non-public information, each
holder of Shares included in any registration shall immediately discontinue
disposition of such Shares pursuant to the Registration Statement covering such
Shares until such holder receives the supplemented or amended prospectus
contemplated by Section 5.1(d)(iv) or the restriction on the ability of
"insiders" to transact in the Company's securities is removed, as applicable,
and, if so directed by the Company, each such holder will deliver to the Company
all copies, other than permanent file copies then in such holder's possession,
of the most recent prospectus covering such Shares at the time of receipt of
such notice.
5.3 Registration Expenses. The Company shall bear all costs and
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expenses incurred in connection with any Piggy-Back Registration pursuant to
Section 4.2, and all expenses incurred in performing or complying with its other
obligations under this Agreement, whether or not the Registration Statement
becomes effective, including, without limitation: (i) all registration and
filing fees; (ii) fees and expenses of compliance with securities or "blue sky"
laws (including fees and disbursements of counsel in connection with blue sky
qualifications of the Shares); (iii) printing expenses; (iv) the Company's
internal expenses (including, without limitation, all salaries and expenses of
its officers and employees); (v) the fees and expenses incurred in connection
with the listing of the Shares as required by Section 5.1(k); (vi) National
Association of Securities Dealers, Inc. fees; (vii) fees and disbursements of
counsel for the Company and fees and expenses for independent certified public
accountants retained by the Company (including the expenses or costs associated
with the delivery of any opinions or comfort letters requested pursuant to
Section 5.1(i)); (viii) the fees and expenses of any special experts retained by
the Company in connection with such registration; (ix) the purchase of selling
stockholder errors and omissions insurance for the benefit of the Holders in any
amount equivalent to the gross proceeds to be received by each Holder in
connection with any registration under this Agreement, on terms and conditions
satisfactory to each Holder; and (x) all fees and expenses incurred by the
holders of Shares in connection with their participation in such registration,
including, without limitation, the fees and expenses of one legal counsel
selected by [the holders having or holding at least 66-2/3% of the Shares]
included in such registration, as well as accountants and other experts selected
by First Union National Bank, as a Holder and as administrative agent to the
lenders under the Credit Agreement. The Company shall have no obligation to pay
any underwriting discounts or selling commissions attributable to the Shares
being sold by the holders thereof, which underwriting discounts or selling
commissions shall be borne by such holders.
5.4 Information. The holders of Shares shall provide such
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information as may reasonably be requested by the Company in connection with the
preparation of any Registration Statement, including amendments and supplements
thereto, in order to effect the registration of any Shares under the Securities
Act pursuant to Section 2.
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6. INDEMNIFICATION AND CONTRIBUTION.
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6.1 Indemnification by the Company. The Company agrees to indemnify
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and hold harmless each Holder and each other holder of Shares and each of their
respective officers, employees, affiliates, directors, partners, members,
attorneys and agents, and each person, if any, who controls such Holder (within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act) (each, a "Holder Indemnified Party"), from and against any expenses,
losses, judgments, claims, damages or liabilities, whether joint or several,
arising out of or based upon any untrue statement (or alleged untrue statement)
of a material fact contained in any Registration Statement under which such
Shares were registered under the Securities Act, any preliminary prospectus,
final prospectus or summary prospectus contained in the Registration Statement,
or any amendment or supplement to such Registration Statement, or arising out of
or based upon any omission (or alleged omission) to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, or any violation by the Company of the Securities Act or any rule or
regulation promulgated thereunder applicable to the Company and relating to
action or inaction required of the Company in connection with any such
registration; and the Company shall promptly, but in no event more than five (5)
Business Days after request for payment, pay directly or reimburse each Holder
Indemnified Party for any legal and any other expenses reasonably incurred by
such Holder Indemnified Party in connection with investigating and defending any
such expense, loss, judgment, claim, damage, liability or action; provided,
however, that the Company will not be liable in any such case to the extent that
any such expense, loss, claim, damage or liability arises out of or is based
upon any untrue statement or omission made in such Registration Statement,
preliminary prospectus, final prospectus, or summary prospectus, or any such
amendment or supplement, in reliance upon and in conformity with information
furnished to the Company, in writing, by any selling Holder and stated to be
specifically for use therein. The Company also shall indemnify any Underwriter
of the Shares, their officers, affiliates, directors, partners, members and
agents and each person who controls such Underwriter on substantially the same
basis as that of the indemnification provided above in this Section 6.1.
6.2 Indemnification by Holders of Shares. Each selling holder of
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Shares will, in the event that any registration is being effected under the
Securities Act pursuant to this Agreement of any Shares held by such selling
holder, indemnify and hold harmless the Company, each of its directors and
officers and each underwriter (if any), and each other person, if any, who
controls such selling holder or such underwriter within the meaning of the
Securities Act, against any losses, claims, judgments, damages or liabilities,
whether joint or several, insofar as such losses, claims, judgments, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement of a material fact contained in any Registration Statement
under which such Shares were registered under the Securities Act, any
preliminary prospectus, final prospectus or summary prospectus contained in the
Registration Statement, or any amendment or supplement to the Registration
Statement, or arise out of or are based upon any omission to state a material
fact required to be stated therein or necessary to make the statement therein
not misleading, if the statement or omission was made in reliance upon and in
conformity with information furnished in writing to the Company by such selling
holder and stated to be specifically for use therein, and shall reimburse the
Company, its directors and officers, and each such controlling person for any
legal or other expenses
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reasonably incurred by any of them in connection with investigating or defending
any such loss, claim, damage, liability or action. Each selling holder's
indemnification obligations hereunder shall be several and not joint and shall
be limited to the amount of any net proceeds actually received by such selling
holder.
6.3 Conduct of Indemnification Proceedings. Promptly after receipt by
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any person of any notice of any expense, loss, judgment, claim, damage,
liability or any action in respect of which indemnity may be sought pursuant to
Section 6.1 or 6.2, such person (the "Indemnified Party") shall, if a claim in
respect thereof is to be made against any other person for indemnification
hereunder, notify such other person (the "Indemnifying Party") in writing of the
expense, loss, claim, judgment, damage, liability or action; provided, however,
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that the failure by the Indemnified Party to notify the Indemnifying Party shall
not relieve the Indemnifying Party from any liability which the Indemnifying
Party may have to such Indemnified Party hereunder, except and solely to the
extent the Indemnifying Party is actually prejudiced by such failure. If the
Indemnified Party is seeking indemnification with respect to any claim or action
brought against the Indemnified Party, then the Indemnifying Party shall be
entitled to participate in such claim or action, and, to the extent that it
wishes, jointly with all other Indemnifying Parties, to assume the defense
thereof with counsel satisfactory to the Indemnified Party. After notice from
the Indemnifying Party to the Indemnified Party of its election to assume the
defense of such claim or action, the Indemnifying Party shall not be liable to
the Indemnified Party for any legal or other expenses subsequently incurred by
the Indemnified Party in connection with the defense thereof other than
reasonable costs of investigation; provided, however, that in any action in
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which both the Indemnified Party and the Indemnifying Party are named as
defendants, the Indemnified Party shall have the right to employ separate
counsel (but no more than one such separate counsel) to represent the
Indemnified Party and its controlling persons who may be subject to liability
arising out of any claim in respect of which indemnity may be sought by the
Indemnified Party against the Indemnifying Party, with the fees and expenses of
such counsel to be paid by such Indemnifying Party if, based upon the written
opinion of counsel of such Indemnified Party, representation of both parties by
the same counsel would be inappropriate due to actual or potential differing
interests between them. No Indemnifying Party shall, without the prior written
consent of the Indemnified Party, consent to entry of judgment or effect any
settlement of any claim or pending or threatened proceeding in respect of which
the Indemnified Party is or could have been a party and indemnity could have
been sought hereunder by such Indemnified Party, unless such judgment or
settlement includes an unconditional release of such Indemnified Party from all
liability arising out of such claim or proceeding.
6.4 Contribution.
------------
(a) If the indemnification provided for in the foregoing
Sections 6.1, 6.2 and 6.3 is unavailable to any Indemnified Party in
respect of any expense, loss, judgment, claim, damage, liability or action
referred to herein, then each such Indemnifying Party, in lieu of
indemnifying such Indemnified Party, shall contribute to the amount paid or
payable by such Indemnified Party as a result of such expense, loss,
judgment, claim, damage, liability or action in such proportion as is
appropriate to reflect the relative fault of the Indemnified Parties and
the Indemnifying Parties in connection
11
with the actions or omissions which resulted in such expense, loss,
judgment, claim, damage, liability or action, as well as any other relevant
equitable considerations. The relative fault of any Indemnified Party and
any Indemnifying Party shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by such Indemnified Party or such Indemnifying Party
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(b) The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 6.4 were determined by
pro rata allocation or by any other method of allocation which does not
--- ----
take account of the equitable considerations referred to in the immediately
preceding Section 6.4(a). The amount paid or payable by an Indemnified
Party as a result of any expense, loss, judgment, claim, damage, liability
or action referred to in the immediately preceding paragraph shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses incurred by such Indemnified Party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6.4, no holder of Shares shall be required to
contribute any amount in excess of the dollar amount of the net proceeds
(after payment of any underwriting fees, discounts, commissions or taxes)
actually received by such holder from the sale of Shares which gave rise to
such contribution obligation. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation.
7. MISCELLANEOUS.
-------------
7.1 Rule 144. The Company covenants that it shall file any reports
--------
required to be filed by it under the Securities Act and the Exchange Act and
shall take such further action as the holders of Shares may reasonably request,
all to the extent required from time to time to enable such holders to sell
Shares without registration under the Securities Act within the limitation of
the exemptions provided by Rule 144 under the Securities Act, as such Rules may
be amended from time to time, or any similar Rule or regulation hereafter
adopted by the Commission.
7.2 Assignment; No Third Party Beneficiaries. This Agreement and the
----------------------------------------
rights, duties and obligations of the Company hereunder may not be assigned or
delegated by the Company in whole or in part. This Agreement and the rights,
duties and obligations of each Holder hereunder may be not be assigned or
delegated by such Holder in whole or in part except to a person that directly,
or indirectly through one or more intermediaries, controls, or is controlled by,
or is or under common control with, such Holder. This Agreement and the
provisions hereof shall be binding upon and shall inure to the benefit of each
of the parties and their respective successors and permitted assigns. This
Agreement is not intended to confer any rights or benefits on any persons that
are not party hereto other than as expressly set forth in Article 6 and this
Section 7.2.
12
7.3 Notices. All notices, demands, requests, consents, approvals or
-------
other communications (collectively, "Notices") required or permitted to be given
hereunder or which are given with respect to this Agreement shall be in writing
and shall be personally served, delivered by reputable air courier service with
charges prepaid, or transmitted by hand delivery, telegram, telex or facsimile,
addressed as set forth below, or to such other address as such party shall have
specified most recently by written notice. Notice shall be deemed given on the
date of service or transmission if personally served or transmitted by telegram,
telex or facsimile. Notice otherwise sent as provided herein shall be deemed
given on the next Business Day following timely delivery of such notice to a
reputable air courier service.
If to the Company:
PlanVista Corporation
0000 Xxxxxxxx Xxxx
Xxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Fax: (000) 000-0000
with a copy to:
Fowler, White, Gillen, Boggs, Xxxxxxxxx & Banker, P.A.
000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
If to First Union Nation Bank, as a Holder:
First Union National Bank
One First Union Center TW-10
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxxxxx Xxxx
Fax: (000) 000-0000
If to any other Holder, to the address of such Holder as set
forth in the books and records of the Company.
7.4 Severability. This Agreement shall be deemed severable, and the
------------
invalidity or unenforceability of any term or provision hereof shall not affect
the validity or enforceability of this Agreement or of any other term or
provision hereof. Furthermore, in lieu of any such invalid or unenforceable term
or provision, the parties hereto intend that there shall
13
be added as a part of this Agreement a provision as similar in terms to such
invalid or unenforceable provision as may be possible and be valid and
enforceable.
7.5 Counterparts. This Agreement may be executed in multiple
------------
counterparts, each of which shall be deemed an original, and all of which taken
together shall constitute one and the same instrument.
7.6 Entire Agreement. This Agreement, the Third Amendment and the
----------------
other documents contemplated thereby (including all agreements entered into
pursuant hereto and thereto and all certificates and instruments delivered
pursuant hereto and thereto) constitute the entire agreement of the parties with
respect to the subject matter hereof and supersede all prior and contemporaneous
agreements, representations, understandings, negotiations and discussions
between the parties, whether oral or written.
7.7 Modifications and Amendments. The provisions of this Agreement,
----------------------------
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company has obtained the written consent of Holders
of at least 66-2/3% of the Shares. No amendment, modification or termination of
this Agreement shall be binding upon any other party unless executed in writing
by the parties hereto intending to be bound thereby.
7.8 Titles and Headings. Titles and headings of sections of this
-------------------
Agreement are for convenience only and shall not affect the construction of any
provision of this Agreement.
7.9 Waivers and Extensions. Any party to this Agreement may waive
----------------------
any right, breach or default which such party has the right to waive, provided
--------
that such waiver will not be effective against the waiving party unless it is in
writing, is signed by such party, and specifically refers to this Agreement.
Waivers may be made in advance or after the right waived has arisen or the
breach or default waived has occurred. Any waiver may be conditional. No waiver
of any breach of any agreement or provision herein contained shall be deemed a
waiver of any preceding or succeeding breach thereof nor of any other agreement
or provision herein contained. No waiver or extension of time for performance of
any obligations or acts shall be deemed a waiver or extension of the time for
performance of any other obligations or acts.
7.10 Remedies Cumulative. In the event that the Company fails to
-------------------
observe or perform any covenant or agreement to be observed or performed under
this Agreement, the Holder or any other holder of Shares may proceed to protect
and enforce its rights by suit in equity or action at law, whether for specific
performance of any term contained in this Agreement or for an injunction against
the breach of any such term or in aid of the exercise of any power granted in
this Agreement or to enforce any other legal or equitable right, or to take any
one or more of such actions, without being required to post a bond. The Company
agrees to pay all fees, costs, and expenses, including, without limitation, fees
and expenses of attorneys, accountants and other experts, and all fees, costs
and expenses of appeals, incurred by the Holder or any other holder of Shares in
connection with the enforcement of this Agreement or the collection of any sums
due hereunder, whether or not suit is commenced. None of the rights, powers or
remedies conferred under this Agreement shall be mutually exclusive, and each
such
14
right, power or remedy shall be cumulative and in addition to any other right,
power or remedy, whether conferred by this Agreement or now or hereafter
available at law, in equity, by statute or otherwise.
7.11 Governing Law. This Agreement shall be governed by, interpreted
-------------
under, and construed in accordance with the internal laws of the State of
Delaware applicable to agreements made and to be performed within the State of
Delaware, without giving effect to any choice-of-law provisions thereof that
would compel the application of the substantive laws of any other jurisdiction.
7.12 Waiver of Trial by Jury. Each party hereby irrevocably and
-----------------------
unconditionally waives the right to a trial by jury in any action, suit,
counterclaim or other proceeding (whether based on contract, tort or otherwise)
arising out of, connected with or relating to this Agreement, or the actions of
Holder in the negotiation, administration, performance or enforcement hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
15
IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be executed and delivered by their duly authorized representatives
as of the date first written above.
COMPANY PLANVISTA CORPORATION (f/k/a
HealthPlan Services Corporation)
By:/s/ Xxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chairman and Chief Executive
Officer
HOLDERS FIRST UNION NATIONAL BANK,
as a Holder
By:/s/ Xxxxxxx Xxxx
----------------------------------
Name: Xxxxxxx Xxxx
Title: Authorized Officer
CREDIT LYONNAIS, NEW YORK BRANCH,
as a Holder
By:/s/ Xxxx-Xxxxxxx Van Essche
----------------------------------
Name: Xxxx-Xxxxxxx Van Essche
Title: Vice President
SUNTRUST BANK, as a Holder
By:/s/ Xxxxxx X. Xxxxxxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Director
FLEET NATIONAL BANK, as a Holder
By:/s/ Xxxx X. Xxxx, II
----------------------------------
Name: Xxxx X. Lucy, II
Title: Vice President
S-1
SOUTHTRUST BANK, as a Holder
By:/s/ B. E. Xxxxxxx
----------------------------------
Name: B. E. Xxxxxxx
Title: Vice President
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEEBANK BA "RABOBANK
NEDERLAND", NEW YORK BRANCH, as a
Holder
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
By: /s/ Xxxx XxXxxxx
----------------------------------
Name: Xxxx XxXxxxx
Title: Vice President
BANK OF AMERICA, N.A., as a Holder
By:/s/ Xxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
AMSOUTH BANK, as a Holder
By:/s/ Xxxxxxx X. Xxxx
----------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
HIBERNIA NATIONAL BANK, as a Holder
By:/s/ Xxxxx Xxxxxxxx
----------------------------------
Name: Xxxxx Angelty
Title: Vice President
S-2
FIFTH THIRD BANK, CENTRAL OHIO, as a
Holder
By: /s/ Xxxx Xxxxxx
----------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
S-3
