REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement"), dated as of
SEPTEMBER 30, 2002, is entered into by and among MATRIA HEALTHCARE, INC., a
Delaware corporation ("Matria"), LIFEMETRIX, INC., a Delaware corporation
("LifeMetrix"), and the preferred stockholders of LifeMetrix listed on Schedule
1 attached hereto (the "Preferred Stockholders").
W I T N E S S E T H:
WHEREAS, Matria, LifeMetrix and Quality Oncology, Inc., a Delaware
corporation and wholly-owned subsidiary of LifeMetrix ("QO"), have entered into
a Purchase and Sale Agreement dated as of April 29, 2002 (the "Purchase
Agreement") pursuant to which Matria will acquire substantially all of the
assets of LifeMetrix, including all of the issued and outstanding stock of QO,
for consideration consisting in part of the Common Stock (as defined below) of
Matria (such Common Stock being acquired by LifeMetrix pursuant to the Purchase
Agreement being referred to herein as the "Shares");
WHEREAS, the Purchase Agreement contemplates that LifeMetrix may transfer
Shares to the Preferred Stockholders under certain circumstances in connection
with the liquidation of LifeMetrix or otherwise; and
WHEREAS, the Purchase Agreement contemplates that LifeMetrix and the
Preferred Stockholders be granted certain piggyback registration rights with
respect to the Shares, all in accordance with the terms and conditions set forth
herein;
NOW, THEREFORE, in consideration of the premises, mutual agreements and
promises contained herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
hereby agree as follows:
ARTICLE I
DEFINITIONS
Capitalized terms used but not defined herein will have the respective
meanings assigned to such terms in the Purchase Agreement. As used in this
Agreement, the following terms shall have the following respective meanings:
"Board" means the Board of Directors of Matria.
"Common Stock" means the common stock, $.01 par value per share, of
Matria.
"Commission" means the Securities and Exchange Commission.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Holder" means LifeMetrix, any Preferred Stockholder, and any permitted
transferee of LifeMetrix or any Preferred Stockholder pursuant to
Section 2.6.
"Initial Issuance Date" means the date any Shares are issued by Matria
as part of the Closing Purchase Price.
"Registrable Securities" means the Shares that are issued and outstanding
from time to time. The term "Registrable Securities" does not include(i)
Shares that have been registered, as defined below, and sold pursuant
to such registration, (ii) Shares that have been sold pursuant to Rule
144 promulgated under the Securities Act, or (iii) Shares for which the
term of the registration rights granted hereunder has expired pursuant
to this Agreement.
The terms "register," "registered," and "registration" refer to
a registration effected by preparing and filing of a registration
statement in compliance with the Securities Act, and the declaration
or order by the Commission of the effectiveness of such registration
statement.
"Restricted Period" means (i) with respect to the Shares issued on the
Initial Issuance Date, a period of one (1) year from the Initial
Issuance Date (such Restricted Period being the "First Restricted
Period"), and (ii) with respect to the Shares issued on the Subsequent
Issuance Date, a period of one (1) year from the Subsequent Issuance
Date (such Restricted Period being the "Second Restricted Period").
"Securities Act" means the Securities Act of 1933, as amended.
"Shares" has the meaning set forth in the recitals hereto. In the event
Matria shall declare a stock split, stock dividend or other distribution
of capital stock in respect of, or issue capital stock in replacement of
or exchange for, the Shares, such shares shall be Shares within the
meaning of this Agreement.
"Standstill Agreement" means that certain Standstill Agreement of even
date herewith by and among Matria, LifeMetrix and certain stockholders
of LifeMetrix.
"Subsequent Issuance Date" means the date any Shares are issued by Matria
as part of the Earn Out Payment.
"Underwritten Public Offering" means a public offering of Common Stock
for cash which is offered and sold in a registered transaction on a firm
commitment underwritten basis through one or more underwriters, all
pursuant to an underwriting agreement.
ARTICLE II
REGISTRATION RIGHTS
Section 2.1 "Piggyback" Registration Rights.
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(a) If Matria, at any time during the term of the registration rights
hereunder proposes to register under the Securities Act any class of Matria's
equity securities for sale to the public on a registration statement on Form
X-0, X-0, X-0 or any successor form for the sale of equity securities to the
public, then and in each such case Matria, subject to the terms and conditions
contained herein (including, without limitation, the terms and conditions
contained in Section 2.1(b)) shall give thirty (30) days prior written notice of
such proposed registration to the Holders. Any Holder who wishes to include
Registrable Securities in the proposed registration shall provide Matria with a
written notice specifying the number of Registrable Securities held by such
Holder to be included in such registration within twenty (20) days after receipt
of notice from Matria (each Holder who provides such notice to Matria being
referred to as an "Electing Holder"). Subject to Section 2.1(b), Matria shall
cause such number of Registrable Securities as shall be so designated by the
Electing Holders to be included, upon the same terms (including the method of
distribution) as other equity securities of Matria to be included in any such
offering. Matria may, without the consent of the Electing Holders or other
Holders, withdraw any such registration and abandon any proposed offering if in
the reasonable good faith belief of the Board such withdrawal and abandonment
appears to be in the best interests of Matria and its stockholders. The failure
of any Holder to exercise its rights hereunder with respect to any registration
shall not constitute a waiver of its rights to participate in any other
registration. Notwithstanding the foregoing, Matria shall not be required to
give such notice or include any Registrable Securities in any form of
registration statement unless such Registrable Securities of such Holder are
eligible for inclusion in the applicable form of registration statement as
described above.
(b) In connection with any offering involving an underwriting of shares of
Matria's capital stock, Matria shall not be required under this Section 2.1(b)
to include any of the Registrable Securities in such underwriting unless the
Electing Holders accept the terms of the underwriting as agreed upon between
Matria and the underwriters selected by it (or by such other person entitled to
select the underwriters), and then only in such quantity as the underwriters
determine in their sole discretion will not jeopardize the success of the
offering by Matria or such other person. If the total amount of securities,
including Registrable Securities requested by the Electing Holders to be
included in such offering, exceeds the amount of securities that the
underwriters determine in their sole discretion is compatible with the success
of the offering, then Matria shall be required to include in the offering only
that number of Securities which the underwriters determine in their sole
discretion will not jeopardize the success of the offering. Allocation of
securities to be sold in any such offering shall be made first to Matria and
thereafter, to the extent any other securities are to be included on a pro-rata
basis among the Electing Holders and any other selling stockholders who have
contractual rights to include shares in such offering according to the total
number of designated Registrable Securities requested by each such Electing
Holder and such other selling stockholders to be included in such offering and
entitled to inclusion therein on the basis of this Agreement or such other
contractual agreement. To facilitate the allocation of shares in accordance with
the above provisions, Matria may round the number of Registrable Securities
allocated to any Electing Holder or other selling stockholder to the nearest 100
shares. Notwithstanding anything to the contrary in this Agreement, but subject
to the next sentence, each Holder including any Registrable Securities in a
registration pursuant to this Section 2.1(b) agrees to delay the sale of any
Registrable Securities not sold in such registration for the period requested by
the underwriter or managing agent up to 90 days (or such lesser amount of time
if permitted by such underwriter or managing agent) following the effective date
of the registration statement. The foregoing restriction shall not apply to the
number of Registrable Securities, if any, requested by any Electing Holder to be
included in a registration but which are excluded from such registration at the
discretion of the underwriters as set forth in this Section 2.1(b).
Section 2.2 Undertakings of Holders. As a condition of the registration
provided for in this Section 2, each Holder who includes Registrable Securities
in any such registration shall, in addition to the indemnification obligations
set forth in Section 2.4(b), (a) furnish such information concerning itself and
the terms of its proposed offering to Matria as reasonably requested in
connection with such registration, and (b) reasonably cooperate with Matria and
its representatives to cause such registration to become effective at the
earliest practicable time.
Section 2.3 Additional Undertakings of Matria. If and whenever Matria is
under an obligation to effect the registration of any Registrable Securities
under this Agreement, Matria shall at its sole cost and expense:
(i) furnish to each Electing Holder such numbers of each
prospectus (including each preliminary prospectus and
prospectus supplement) in conformity with the
requirements of the Securities Act, and such other
documents as are reasonably requested by the Electing
Holders to facilitate the public offering of their
Registrable Securities; and
(ii) use its reasonable efforts to register or qualify the
Registrable Securities covered by such registration
under the securities or blue sky laws of such
jurisdictions (and shall do any and all other acts or
things) as is reasonable to enable the Electing
Holders to consummate the public sale or the
disposition of their Registrable Securities;
provided, however, that Matria shall not be required
in connection therewith or as a condition thereto to
qualify to do business or to file a general consent
to service of process in any such states or
jurisdictions.
Section 2.4 Indemnification.
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(a) In the case of each registration effected by Matria pursuant to
this Agreement in which any Holder's Registrable Securities are included, Matria
agrees to indemnify and hold harmless such Holder against any and all losses,
claims, damages or liabilities to which they or any of them may become subject
under the Securities Act or any other statute or common law, including any
amount paid in settlement of any litigation, commenced or threatened, if such
settlement is effected with the written consent of Matria, and to reimburse them
for any reasonable legal or other reasonable expenses incurred by them in
connection with the investigation of any claims and defenses of any actions,
insofar as any such losses, claims, damages, liabilities or actions arise out of
or are (i) based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement, (ii) any preliminary
prospectus or final prospectus contained therein, or (iii) any amendment or
supplement thereto or any document incorporated by reference therein, or the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading;
provided, however, that the indemnification agreement contained in this Section
2.4(a) shall not (i) apply to such losses, claims, damages, liabilities or
actions of any Holder arising out of, or based upon, any such untrue statement
or alleged untrue statement, or any such omission or alleged omission, if such
statement or omission was made in reliance upon and in conformity with
information furnished to Matria in writing by such Holder for use in connection
with the preparation of the registration statement or any preliminary prospectus
or final prospectus contained in the registration statement or any such
amendment thereof or supplement thereto or any document incorporated by
reference therein, or (ii) inure to the benefit of any party to the extent such
party's claim for indemnification hereunder arises out of or is based on any
violation by such party of applicable law.
(b) In the case of each registration effected by Matria pursuant to
this Agreement in which any Holder's Registrable Securities are included, such
Holder shall be obligated, in the same manner and to the same extent as set
forth in Section 2.4(a), to indemnify and hold harmless Matria and each party,
if any, who controls Matria within the meaning of the Securities Act, and
Matria's and any such party's directors and officers, and the underwriters for
such offering, and each person, if any, who controls any such underwriter within
the meaning of the Securities Act, with respect to any statement or alleged
untrue statement in, or omission or alleged omission from, such registration
statement or any post-effective amendment thereof or any preliminary prospectus
or final prospectus (as amended or supplemented, if amended or supplemented as
aforesaid) contained in such registration statement, if such statement or
omission was made in reliance upon and in conformity with information furnished
in writing to Matria by such indemnifying party for use in connection with the
preparation of such registration statement or any preliminary prospectus or
final prospectus contained in such registration statement or any such amendment
thereof or supplement thereto; provided, however, that the liability of each
Holder hereunder shall be limited to the proceeds received by each Holder from
the sale of Registrable Securities covered by such registration statement,
amendment, supplement or prospectus, as the case may be.
(c) Each party entitled to indemnification under this Section 2.4 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom; provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or any litigation resulting
therefrom, shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld) and the Indemnified Party may participate in such
defense at the Indemnified Party's expense (unless the Indemnified Party shall
have reasonably concluded that there may be a conflict of interest between the
Indemnifying Party and the Indemnified Party in such action, in which case the
fees and expenses of counsel shall be at the expense of the Indemnifying Party),
and provided further that the failure of any Indemnified Party to give notice as
provided herein shall not relieve the Indemnifying Party of its obligations
under this Section 2.4 unless, and only to the extent that, the Indemnifying
Party is materially prejudiced thereby. No Indemnifying Party, in the defense of
any such claim or litigation shall, except with the consent of each Indemnified
Party, consent to entry of any judgment or enter into any settlement which does
not include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability in respect
to such claim or litigation. Each Indemnified Party shall furnish such
information regarding itself or the claim in question as an Indemnifying Party
may reasonably request in writing and as shall be reasonably required in
connection with the defense of such claim and litigation resulting therefrom.
(d) If the indemnification provided for in this Section 2.4 is held by
a court of competent jurisdiction to be unavailable to an Indemnified Party with
respect to any loss, liability, claim, damage or expense referred to herein,
then the Indemnifying Party, in lieu of indemnifying such Indemnified Party
hereunder, shall contribute to the amount paid or payable by such Indemnified
Party as a result of such loss, liability, claim, damage or expense in such
proportion as is appropriate to reflect the relative fault of the Indemnifying
Party on the one hand and of the Indemnified Party on the other hand in
connection with the statements or omissions which resulted in such loss,
liability, claim, damage or expense, as well as any other relevant equitable
considerations. The relative fault of the Indemnifying Party and of the
Indemnified 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 the Indemnifying Party or by the Indemnified Party and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
(e) Notwithstanding the foregoing, to the extent that the provisions on
indemnification and contribution contained in the underwriting agreement entered
into in connection with any Underwritten Public Offering contemplated by this
Agreement are in conflict with the foregoing provisions, the provisions in such
underwriting agreement shall be controlling.
(f) The foregoing indemnity and contribution agreements of Matria and
the Holders are subject to the condition that, insofar as they relate to any
loss, claim, liability or damage arising from any misstatement or omission made
in a preliminary prospectus, but eliminated or remedied in the amended or
supplemented prospectus on file with the Commission at the time the registration
statement in question becomes effective or the amended or supplemented
prospectus filed with the Commission pursuant to Commission Rule 424(b) (the
"Final Prospectus"), such indemnity or contribution agreement shall not inure to
the benefit of any underwriter or Holder if a copy of the Final Prospectus was
furnished to the underwriter or Holder and was not furnished to the person
asserting the loss, liability, claim or damage at or prior to the time such
action is required by the Securities Act.
Section 2.5 Rule 145 Requirements. For a period commencing on the date
of this Agreement and ending upon the first to occur of (i) the third
anniversary of the Subsequent Issuance Date, or (ii) the sale of all Registrable
Securities by the Holders, with a view to making available to each Holder the
benefits of Rule 145(d) promulgated under the Securities Act, Matria agrees to
file with the Commission in a timely manner all reports and other documents
required of Matria under the Exchange Act. Each Holder's right to require Matria
to register the Registrable Securities pursuant to Section 2.1 shall expire at
such time as such Registrable Securities are eligible for sale in the open
market pursuant to Rule 145(d)(2) promulgated under the Securities Act.
Section 2.6 Transfer of Registration Rights. The registration rights
described in this Section 2 shall not be transferable or assignable without the
prior consent of Matria, which consent may be withheld by Matria in its sole
discretion; provided, however, that, subject to applicable securities laws, the
registration rights described in this Section 2 may be transferred or assigned
by the Holders to any parties to whom a Holder transfers Shares as permitted by
the Purchase Agreement and the Standstill Agreement (other than a transferee of
Shares pursuant to a registration statement filed hereunder or in any other
market transaction so permitted) so long as such transferee or assignee of such
registration rights assumes all of the obligations of the transferring or
assigning Holder under this Agreement.
Section 2.7 Term of Registration Rights. The term of the registration
rights granted in this Section 2 shall be as follows: (i) for any Shares issued
on the Initial Issuance Date, for a period beginning on the Initial Issuance
Date and continuing until the date that is two (2) years from the Initial
Issuance Date; and (ii) for any Shares issued on the Subsequent Issuance Date,
for a period beginning on the Subsequent Issuance Date and continuing until the
date that is two (2) years from the Subsequent Issuance Date.
ARTICLE III
MISCELLANEOUS
Section 3.1 No Waiver. No failure or delay on the part of any party in
the exercise of any power, right or privilege hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such power,
right or privilege preclude other or further exercise thereof or of any other
right, power or privilege.
Section 3.2 Entire Agreement; Amendment. This Agreement (including the
Schedules hereto, which are hereby incorporated by reference) constitutes the
entire understanding of the parties hereto with respect to the subject matter
hereof. This Agreement may be amended only by an agreement in writing executed
by Matria and the Holders of a majority of the Registrable Securities.
Section 3.3 Severability. If any provision of this Agreement is held by
a court of competent jurisdiction to be unenforceable, the remaining provisions
shall remain in full force and effect. It is declared to be the intention of the
parties hereto that they would have executed the remaining provisions without
including any that may be declared unenforceable.
Section 3.4 Headings; References. Article and Section headings are for
convenience only and will not control or affect the meaning or construction of
any provision of this Agreement. Any references to specific Articles or Sections
shall be references to Articles or Sections of this Agreement unless expressly
stated otherwise.
Section 3.5 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute the same Agreement, and any signature page of any such
counterpart, or any electronic facsimile thereof, may be attached or appended to
any other counterpart to complete a fully executed counterpart of this
Agreement, and any telecopy or other facsimile transmission of any signature
shall be deemed an original.
Section 3.6 Notices. All notices and other communications required or
permitted hereunder shall be in writing, shall be effective when given, and
shall in any event be deemed to be given upon receipt or, if earlier, (a) five
(5) days after deposit with the U.S. Postal Service or other applicable postal
service, if delivered by first class mail, postage prepaid, (b) upon delivery,
if delivered by hand, (c) one (1) business day after the business day of deposit
with Federal Express or similar overnight courier, freight prepaid or (d) one
(1) business day after the business day of facsimile transmission, if delivered
by facsimile transmission with copy by first class mail, postage prepaid, and
shall be addressed to the address of such party as set forth beneath such
party's signature hereto, or at such other address as a party may designate by
ten days' advance written notice to the other parties hereto pursuant to the
provisions of this Section 3.6.
Section 3.7 Successors and Assigns; Assignment. This Agreement shall
bind the successors and assigns of the parties hereto, and shall inure to the
benefit of any successor or assign of any of the parties hereto. This Agreement
may not be assigned by any party hereto without the prior written consent of the
other party or parties except as contemplated by Section 2.6.
Section 3.8 Governing Law. The validity and effect of this Agreement
and the rights and obligations of the parties hereto shall be governed by and
construed in accordance with the laws of the State of Delaware.
[Signatures begin on following page]
IN WITNESS WHEREOF, the parties hereto have executed or caused this
Agreement to be duly executed as of the date first referred to above.
"Matria"
MATRIA HEALTHCARE, INC.
By:
Address: ________________________
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Attn: ________________________
"LifeMetrix"
LIFEMETRIX, INC.
By:
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Title: ______________________________
Address: ________________________
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Attn: ________________________
"Preferred Stockholders"
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By:
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Title: ______________________________
Address: ________________________
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Attn: ________________________
Schedule 1
Preferred Stockholders
[List of Preferred Stockholders executing this Agreement to be added]
