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EXHIBIT 4.11
REGISTRATION RIGHTS AGREEMENT
Dated as of November 19, 1997
by and between
FPA MEDICAL MANAGEMENT, INC.
as the Company,
and
AVANTI CORPORATE HEALTH SYSTEMS, INC.
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Effectiveness Period: As defined in Section 2(a) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated by the Commission pursuant thereto.
Filing Date: The later of six business days or 10 calendar days following
the Closing Date.
Holder: Avanti Corporate Health Systems, Inc., its permitted assigns
hereunder, and any successor corporation thereto.
Indemnified Person: As defined in Section 5(a) hereof.
Person: Any individual, partnership, joint venture, corporation, trust or
unincorporated organization.
Prospectus: The prospectus included in the Shelf Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated pursuant to the Securities
Act), as amended or supplemented by any prospectus supplement, with respect to
the terms of the resale of any portion of the Restricted Securities covered by
such Shelf Registration Statement, and all other amendments and supplements to
any such prospectus, including post-effective amendments, and all material
incorporated by reference or deemed to be incorporated by reference, if any, in
such prospectus.
Restricted Securities: The shares of Common Stock received by the Holder
pursuant to the terms of the Purchase Agreement and any stock dividends with
respect to such shares until, in the case of any such share of Common Stock, (i)
the date on which they have been registered effectively pursuant to the
Securities Act and disposed of in accordance with the Shelf Registration
Statement relating to them, or (ii) the date on which the shares of Common Stock
are distributed to the public pursuant to Rule 144 (or any similar provisions
then in effect) or are salable pursuant to Rule 144(k) promulgated by the
Commission pursuant to the Securities Act.
Rule 144: Rule 144 promulgated by the Commission pursuant to the
Securities Act, as such rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission as a replacement thereto
having substantially the same effect as such rule.
Rule 158: Rule 158 promulgated by the Commission pursuant to the
Securities Act, as such rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission as a replacement thereto
having substantially the same effect as such rule.
Rule 174: Rule 174 promulgated by the Commission pursuant to the
Securities Act, as such rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission as a replacement thereto
having substantially the same effect as such rule.
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Rule 415: Rule 415 promulgated by the Commission pursuant to the
Securities Act, as such rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission as a replacement thereto
having substantially the same effect as such rule.
Rule 424: Rule 424 promulgated by the Commission pursuant to the
Securities Act, as such rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission as a replacement thereto
having substantially the same effect as such rule.
Securities Act: The Securities Act of 1933, as amended, and the rules and
regulations promulgated by the Commission thereunder.
Shelf Registration Statement: The registration statement of the Company
that covers the offering on a continuous basis and resale of any of the
Restricted Securities pursuant to the provisions of this Agreement, including
the Prospectus, amendments and supplements to such registration statement or
Prospectus, including pre- and post-effective amendments, all exhibits thereto,
and all material incorporated by reference or deemed to be incorporated by
reference, if any, in such registration statement.
2. Shelf Registration
(a) The Company agrees to file promptly with the Commission after the
Closing Date, but in no event later than the Filing Date, a Shelf Registration
Statement for an offering to be made on a continuous basis pursuant to Rule 415
covering all of the Restricted Securities. The Company represents and warrants
that it is eligible to file registration statements on Form S-3. The Shelf
Registration Statement shall initially be on Form S-3 under the Securities Act
or another appropriate form permitting registration of such Restricted
Securities for offering on a continuous basis and resale by the Holder in the
manner or manners designated by it in accordance with applicable regulations.
The Company shall use its reasonable best efforts to cause the Shelf
Registration Statement to be declared effective pursuant to the Securities Act
as promptly as is practicable following the filing thereof, and, as described in
Section 3, to keep the Shelf Registration Statement continuously effective under
the Securities Act thereafter for the period ending two (2) years after the
Closing Date (except during periods following the filing of a post effective
amendment thereto and prior to the declaration of the effectiveness of such post
effective amendment; provided, the Company shall use its reasonable efforts to
cause any such post effective amendment to be declared effective as soon as
practicable) (subject to extension pursuant to clause (b), or such shorter
period as may be specified by the Commission for the resale of restricted
securities by non-affiliates of an issuer pursuant to Rule 144 or ending when
there cease to be outstanding any Restricted Securities (the "Effectiveness
Period")).
(b) The Company shall use its reasonable best efforts to keep the Shelf
Registration Statement continuously effective (except during periods following
the filing of a post effective amendment thereto and prior to the declaration of
the effectiveness of such post effective amendment; provided, the Company shall
use its reasonable best efforts to cause any such post effective amendment to be
declared effective as soon as practicable) by supplementing and amending the
Shelf Registration Statement as required by the rules, regulations or
instructions
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applicable to the registration form used for such Shelf Registration Statement
if required by the Securities Act or reasonably requested by the Holder.
3. Registration Procedures
In connection with the Company's registration obligations hereunder, the
Company shall effect such registration on the appropriate form available for the
sale of the Restricted Securities to permit the sale of the Restricted
Securities in accordance with the method or methods of disposition thereof
specified by the Holder, and pursuant thereto the Company shall as expeditiously
as reasonably possible:
(a) No fewer than five Business Days prior to the initial filing of the
Shelf Registration Statement or Prospectus and, if practical, no fewer than two
Business Days prior to the filing of any amendment or supplement thereto (other
than any document that would be incorporated or deemed to be incorporated
therein by reference), furnish to the Holder, copies of all such documents
proposed to be filed, which documents, if practical (other than those
incorporated or deemed to be incorporated by reference) will be subject to the
review of the Holder. The Company shall not file such Shelf Registration
Statement or related Prospectus or any amendments or supplements thereto to
which the Holder covered thereby shall reasonably object on a timely basis;
(b) Promptly prepare and file with the Commission such amendments,
including post-effective amendments, to each Shelf Registration Statement as may
be necessary to keep such Shelf Registration Statement continuously effective
for the Effectiveness Period; promptly cause the related Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 under the Securities Act; and promptly comply with
the provisions of the Securities Act and the Exchange Act with respect to the
disposition of all securities covered by such Shelf Registration Statement
during such period in accordance with the intended methods of disposition by the
selling Holder thereof contemplated hereby and set forth in such Shelf
Registration Statement as so amended or in such Prospectus as so supplemented.
(c) Notify the Holder promptly (and in the case of an event specified by
clause (i)(A) of this paragraph, if practical, in no event fewer than four
Business Days prior to such filing), and (if requested by the Holder), confirm
such notice in writing, (i)(A) when a Prospectus or any Prospectus Supplement or
post-effective amendment is proposed to be filed, and (B) with respect to the
Shelf Registration Statement or any post-effective amendment, when the same has
become effective, (ii) of any request by the Commission or any other federal or
state governmental authority for amendments or supplements to the Shelf
Registration Statement or related Prospectus or for additional information,
(iii) of the issuance by the Commission, any state securities commission, any
other governmental agency or any court of any stop order, order or injunction
suspending or enjoining the use or the effectiveness of the Shelf Registration
Statement or the Initiation of any proceedings for that purpose, (iv) of the
receipt by the Company of any notification with respect to the suspension of the
qualification or exemption from qualification of any of the Restricted
Securities for sale in any jurisdiction, or the initiation or threat of any
proceeding for such purpose, and (v) of the happening of any event that makes
any statement
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made in such Shelf Registration Statement or related Prospectus or any document
incorporated or deemed to be incorporated therein by reference untrue in any
material respect or that requires the making of any changes in such Shelf
Registration Statement, Prospectus or documents so that, in the case of the
Shelf Registration Statement, it will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, not misleading, and that
in the case of the Prospectus, it will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(d) Use its reasonable best efforts to avoid the issuance of, or, if
issued, obtain the withdrawal of any order enjoining or suspending the use or
effectiveness of the Shelf Registration Statement or the lifting of any
suspension of or enjoining the exemption from qualification of any of the
Restricted Securities for sale in any jurisdiction, at the earliest reasonable
practicable moment;
(e) If requested by the Holder, (i) promptly incorporate in a Prospectus
supplement or post-effective amendment such information as the Holder indicates
relates to it or otherwise reasonably requests be included therein, and (ii)
make all required filings of such Prospectus supplement or such post-effective
amendment as soon as practicable after the Company has received notification of
the matters to be incorporated in such Prospectus supplement or post-effective
amendment; provided, however, that the Company shall not be required to take any
action pursuant to this Section 3(e) that would, in the opinion of counsel for
the Company, violate applicable law;
(f) Furnish to the Holder without charge, at least one conformed copy of
the Shelf Registration Statement and each amendment thereto, including financial
statements (but excluding schedules and all documents incorporated or deemed to
be incorporated therein by reference);
(g) Promptly deliver to the Holder as many copies of the Prospectus or
Prospectuses (including each form of prospectus) and each amendment or
supplement thereto as such Holder reasonably requests; and the Company hereby
consents to the use of such Prospectus and each amendment or supplement thereto
by the Holder in connection with the offering and sale of the Restricted
Securities covered by such Prospectus and any amendment or supplement thereto;
(h) Prior to any public offering of the Restricted Securities, use its
reasonable best efforts to register or qualify or cooperate with the Holder in
connection with the registration or qualification (or exemption from such
registration or qualification) of such Restricted Securities for offer and sale
under the securities or "Blue Sky" laws of such jurisdictions within the United
States as the Holder reasonably requests in writing and to cause the offering of
the Restricted Securities covered by the Shelf Registration Statement to be
registered with or approved by such other governmental agencies or authorities
within the United States, as may be necessary to enable the selling Holder to
consummate the disposition of such Restricted Securities continuously during the
Effective Period; keep each such registration or qualification (or exemption
therefrom) or approval effective during the Effective Period and do any and all
other acts necessary or advisable
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to enable the disposition in such jurisdictions of the Restricted Securities
covered by the Shelf Registration Statement continuously during the Effective
Period; provided, however, that the Company shall not be required to qualify
generally to do business in any jurisdiction where it is not then so qualified
or to take any action that would subject it to general service of process in any
such jurisdiction where it is not then so subject or subject the Company to any
material tax in any such jurisdiction where it is not then so subject;
(i) In connection with any sale or transfer of the Restricted Securities
that will result in such securities no longer being the Restricted Securities,
cooperate with the Holder to facilitate the timely preparation and delivery of
certificates representing the Restricted Securities to be sold, which
certificates shall not bear any restrictive legends and shall be in a form
eligible for deposit with The Depository Trust Company and to enable such
Restricted Securities to be in such denominations and registered in such names
as the Holder may request at least two Business Days prior to any sale of the
Restricted Securities;
(j) Upon the occurrence of any event contemplated by Section 3(c)(v)
hereof, as promptly as practicable, prepare a supplement or amendment,
including, if appropriate, a post-effective amendment, to the Shelf Registration
Statement or a supplement to the related Prospectus or any document incorporated
or deemed to be incorporated therein by reference, and file any other required
document so that, as thereafter delivered, such Prospectus will not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading and give prompt
notice to the Holder upon the compliance by the Company with such requirements;
(k) Comply with applicable rules and regulations of the Commission and
make generally available to its security holders earning statements satisfying
the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder
(or any similar rule promulgated under the Securities Act), no later than 45
days after the end of any 12-month period (or 90 days after the end of any
12-month period if such period is a fiscal year) commencing on the first day of
the first fiscal quarter after the effective date of the Shelf Registration
Statement, which statement shall cover said period, consistent with the
requirements of Rule 158;
(l) List all Common Stock covered by such Shelf Registration Statement
on the exchange or system, if any, on which the Common Stock of the Company is
then listed simultaneously with the effectiveness of the Registration Statement;
(m) If necessary in connection with a disposition of Registrable
Securities, make available for inspection, at the offices where normally kept
during reasonable business hours, by a representative of the Holder and any
attorney or accountant retained by the Holder, financial and other records,
pertinent corporate documents and properties of the Company and its subsidiaries
as they may reasonably request, and cause the officers, directors and employees
of the Company and its subsidiaries to supply all information reasonably
requested by any such representative, attorney or accountant in connection with
such disposition, provided, that all records, information or documents made
available for inspection by the Company shall be deemed to be confidential
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and at the time of delivery of such records, information or documents shall be
kept confidential by such Persons, and such Persons shall so agree in writing,
unless (i) such records, information or documents are in the public domain or
otherwise publicly available, (ii) disclosure of such records, information or
documents is required by court or administrative order or is necessary to
respond to inquiries of regulatory authorities or (iii) disclosure of such
records, information or documents is otherwise required by law (including,
without limitation, pursuant to the requirements of the Securities Act); and
(n) Take all such other actions in connection therewith in order to
expedite or facilitate the disposition of such Registrable Securities.
The Company may require the Holder to: (i) furnish to the Company such
information regarding the distribution of such Restricted Securities as is
required by law to be disclosed in the Shelf Registration Statement and (ii)
provide to the Company a signed writing accepting and acknowledging its rights
and obligations hereunder. The Company may exclude from such registration the
Restricted Securities if the Holder unreasonably fails to furnish such
information or signed writing at least 5 Business Days prior to the effective
date of such Shelf Registration Statement.
The Holder agrees by acquisition of the Restricted Securities that, upon
receipt of any notice from the Company of the happening of any event of the kind
described in Section 3(c)(ii), 3(c)(iii), 3(c)(iv), or 3(c)(v) hereof, the
Holder will forthwith discontinue disposition of such Restricted Securities
covered by such Shelf Registration Statement or Prospectus until the Holder's
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 3(i) hereof, or until it is advised in writing (the "Advice") by the
Company that the use of the applicable Prospectus may be resumed, and, in either
case, has received copies of any additional or supplemental filings that are
incorporated or deemed to be incorporated by reference in such Prospectus.
The registration rights of the Holder pursuant to this Agreement and the
ability to offer and sell Restricted Securities pursuant to the Shelf
Registration Statement are subject to the conditions and limitations contained
in this paragraph, and the Holder will be deemed to have agreed with the Company
that if the Board of Directors of the Company determines in its good faith
judgment, as evidenced by a resolution of the Board of Directors, that the use
of any Prospectus would require the disclosure of material information that the
Company has a bona fide business purpose for preserving as confidential or the
disclosure of which would impede the Company's ability to consummate a
significant transaction, and that the Company is not otherwise required by
applicable securities laws or regulations to disclose, to the extent
practicable, upon at least four Business Days prior written notice to the Holder
of such determination by the Company, the rights of the Holder to offer, sell or
distribute any Restricted Securities pursuant to the Shelf Registration
Statement or to require the Company to take action with respect to the
registration or sale of any Restricted Securities pursuant to the Shelf
Registration Statement shall be suspended until the date upon which the Company
notifies the Holder in writing that suspension of such rights for the grounds
set forth in this paragraph is no longer necessary subject to the limits set
forth herein, and the Company agrees to give such notice as promptly as
practicable following the date that such
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suspension of rights is no longer necessary. The Company also agrees, promptly
upon the giving of any notice contemplated by this paragraph, to give a similar
notice to all security holders of the Company who have registration rights and
itself not to offer, sell or buy its securities during any period when the
rights of the Holder are suspended pursuant to this paragraph.
4. Registration Expenses
All fees and expenses incident to the performance of or compliance with
this Agreement by the Company shall be borne by it whether or not the Shelf
Registration Statement is filed or becomes effective and whether or not any
securities are issued or sold pursuant to the Shelf Registration Statement. The
fees and expenses referred to in the foregoing sentence shall include, without
limitation, (a) all registration and filing fees (including, without limitation,
fees and expenses in compliance with securities or "Blue Sky" laws (b) printing
expenses (including, without limitation, expenses of printing Prospectuses), (c)
messenger, telephone and delivery expenses, (d) fees and disbursements of
counsel for the Company; (e) Securities Act liability insurance, if the Company
desires such insurance, and (f) fees and expenses of all other Persons retained
by the Company. In addition, the Company shall pay its internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expense of any annual
audit, and the fees and expenses incurred in connection with the listing of the
securities to be registered on any securities exchange. Notwithstanding the
foregoing or anything in this Agreement to the contrary, the Holder shall pay
all underwriting discounts and commissions of any underwriters or broker-dealers
with respect to any Restricted Securities sold by it.
5. Indemnification
(a) The Company agrees to indemnify and hold harmless the Holder and its
directors, officers, employees, shareholders, Affiliates, representatives and
agents (an "Indemnified Person") from and against any and all losses, claims,
damages, liabilities and judgments (including reasonable attorneys' fees) caused
by or resulting from (i) any breach by the Company of this Agreement, (ii) any
untrue statement or alleged untrue statement of a material fact contained in the
Shelf Registration Statement, Prospectus or form of Prospectus or in any
amendment or supplement thereto or in any preliminary Prospectus, (iii) any
omission or alleged omission to state in such Shelf Registration, Prospectus or
form of Prospectus a material fact required to be stated therein or necessary in
order to make the statements in such Shelf Registration, Prospectus or form of
Prospectus (in the case of any Prospectus or form of Prospectus or supplement
thereto, in the light of the circumstances under which they were made) not
misleading, except insofar as such losses, claims, damages, liabilities or
judgments are caused by any such untrue statement or omission or alleged untrue
statement or omission in information furnished in writing by such Indemnified
Person describing the method of disposition by such Indemnified Person of the
Restricted Securities or (iv) any violation or alleged violation by the Company
of the Securities Act, the Exchange Act, any state securities law or any rule or
regulation promulgated under the Securities Act, the Exchange Act or any state
securities law; provided that the foregoing indemnity with respect to any
preliminary Prospectus shall not inure to the benefit of any Indemnified Person
from whom the Person asserting such losses, claims, damages, liabilities and
judgments purchased
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securities if such untrue statement or omission or alleged untrue statement or
omission made in such preliminary Prospectus is eliminated or remedied in the
Prospectus and a copy of the Prospectus shall not have been furnished to such
Person in a timely manner so long as such failure is not as a result of an
action or inaction on the part of the Indemnifying Person.
(b) In case any action shall be brought against any Indemnified Person,
based upon the Shelf Registration Statement or any such Prospectus or any
amendment or supplement thereto and with respect to which indemnity may be
sought against the Company, such Indemnified Person shall promptly notify the
Company in writing (provided that such notice shall not be a condition of such
indemnity obligation) and the Company shall assume the defense thereof,
including the employment of counsel reasonably satisfactory to such Indemnified
Person and payment of all fees and expenses. Any Indemnified Person shall have
the right to employ separate counsel in any such action and participate in the
defense thereof, but the fees and expenses of such counsel shall be at the
expense of such Indemnified Person unless (i) the employment of such counsel
shall have been specifically authorized in writing by the Company, (ii) the
Company shall have failed to assume the defense and employ counsel for the
Indemnified Parties or (iii) the named parties to any such action (including any
impleaded parties) include both such Indemnified Person and the Company and such
Indemnified Person shall have been advised by counsel that there may be one or
more legal defenses available to it which are different from or in addition to
those available to the Company (in which case the Company shall not have the
right to assume the defense of such action on behalf of such Indemnified
Person), provided, however, that the Company shall not, in connection with any
such action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) for all such Indemnified Persons, which firm
shall be designated in writing by such Indemnified Persons; in the circumstances
described in clauses (i), (ii) or (iii) of this sentence, the fees and expenses
of such separate counsel shall be reimbursed as they are incurred. The Company
shall not be liable for any settlement of any such action effected without its
written consent but if settled with the written consent of the Company, the
Company agrees to indemnify and hold harmless any Indemnified Person from and
against any loss or liability by reason of such settlement. The Company shall
not, without the prior written consent of the Indemnified Person, effect any
settlement of any pending or threatened proceeding in respect of which any
Indemnified Person is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Person, unless such settlement includes an
unconditional release of such Indemnified Person from all liability on claims
that are the subject matter of such proceeding.
(c) The Holder agrees to indemnify and hold harmless the Company, its
directors, officers and any Person controlling the Company within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act to the same
extent as the foregoing indemnity from the Company to each Indemnified Person in
connection with the Shelf Registration Statement or Prospectus (but only with
reference to information relating to the method of disposition of the Restricted
Securities by the Holder furnished in writing by the Holder expressly for use in
the Shelf Registration Statement or Prospectus) or a breach by the Holder of
this Agreement. In case any action shall be brought against the Company, any of
its directors, any such officer or any Person controlling the Company based on a
breach by the Holder of this Agreement or such Shelf
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Registration Statement or Prospectus and in respect of which indemnity may be
sought against the Holder, the Company shall promptly notify the Holder in
writing (provided that such notice shall not be a condition of such indemnity
obligation) and the Holder shall assume the defense thereof, including the
employment of counsel reasonably satisfactory to the Company and payment of all
fees and expenses. The Company shall have the right to employ separate counsel
in any such action and participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of the Company unless (i) the
employment of such counsel shall have been specifically authorized in writing by
the Holder, (ii) the Holder shall have failed to assume the defense and employ
counsel for the Company or (iii) the named parties to any such action (including
any impleaded parties) include both the Holder and the Company and the Company
shall have been advised by counsel that there may be one or more legal defenses
available to it which are different from or additional to those available to the
Holder (in which case the Holder shall not have the right to assume the defense
of such action on behalf of the Company), provided, however, that the Holder
shall not, in connection with any such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the fees and expenses of
more than one separate firm of attorneys (in addition to any local counsel) for
the Company, which firm shall be designated in writing by the Company; in the
circumstances described in clauses (i), (ii) or (iii) of this sentence, the fees
and expenses of such separate counsel shall be reimbursed as they are incurred.
The Holder shall not be liable for any settlement of any such action effected
without its written consent but if settled with the written consent of the
Holder, the Holder agrees to indemnify and hold harmless the Company from and
against any loss or liability by reason of such settlement. The Holder shall
not, without the prior written consent of the Company, effect any settlement of
any pending or threatened proceeding in respect of which the Company is or could
have been a party and indemnity could have been sought hereunder by the Company,
unless such settlement includes an unconditional release of the Company from all
liability on claims that are the subject matter of such proceeding.
(d) If the indemnification provided for in this Section 5 is unavailable
to an indemnified party in respect of any losses, claims, damages, liabilities
or judgments referred to therein, then each 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 losses, claim, damages,
liabilities and judgments in such proportion as is appropriate to reflect the
relative fault of the Company and each such Indemnified Person in connection
with the statements, omissions or violations which resulted in such losses,
claims, damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative fault of the Company and each such
Indemnified Person shall be determined by reference to whether the untrue or
alleged untrue statement of a material fact or the omission to state a material
fact relates to information regarding the Company or to information with respect
to the method of disposition of the Restricted Securities furnished in writing
by such Indemnified Person expressly for use in the Shelf Registration Statement
or the Prospectus.
The Company and the Holder agree that it would not be just and equitable
if contribution pursuant to this Section 5(d) were determined by pro rata
allocation (even if the Indemnified Persons were treated as one entity for such
purpose) or by any other method of allocation which
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does not take into account the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an indemnified
party as a result of the losses, claims, damages, liabilities or judgments
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 5, no Indemnified Person other than the Company shall be required to
contribute any amount in excess of the amount by which the total net proceeds
received by it in connection with the sale of the Restricted Securities pursuant
to this Agreement exceeds the amount of any damages which such Indemnified
Person has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. 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.
6. Rule 144
The Company shall use its reasonable best efforts to file the reports
required to be filed by it under the Securities Act and the Exchange Act in a
timely manner and, if at any time it is not required to file such reports but in
the past had been required to or did file such reports, it will, upon the
request of the Holder, make available other information as required by, and so
long as necessary to keep Rule 144 continuously available for the resale of the
Restricted Securities until the Holder no longer holds any Restricted
Securities.
7. Miscellaneous
(a) Remedies. In the event of a breach by the Company, or by the Holder
of any of its obligations under this Agreement, the Holder or the Company, in
addition to being entitled to exercise all rights granted by law, including
recovery of damages, will be entitled to specific performance of its rights
under this Agreement. The Company and the Holder agree that monetary damages
would not be adequate compensation for any loss incurred by reason of a breach
by it of any of the provisions of this Agreement and hereby further agree that,
in the event of any action for specific performance in respect of such breach,
it shall waive the defense that a remedy at law would be adequate.
(b) Amendments and Waivers. 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, without the written consent of the Company and the Holder.
(c) Notices. All notices and other communications provided for herein
shall be made in writing by hand-delivery, next-day air courier, certified first
class mail, return receipt requested, telex or telecopy:
If the Company:
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FPA Medical Management, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
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Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: Chief Financial Officer
with copies to:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Senior Vice President,
General Counsel and Secretary
FPA Medical Management, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
and
Pillsbury Madison & Sutro LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
If to Holder:
Avanti Corporate Health Systems, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇-▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
with a copy to:
NYLCare Health Plans, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Except as otherwise provided in this Agreement, all such communications
shall be deemed to have been duly given when (i) delivered by hand, if
personally delivered, (ii) one Business Day after being timely delivered to a
next-day air courier, (iii) five Business Days after being deposited
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in the mail, postage prepaid, if mailed, (iv) when answered back, if telexed or
(v) when receipt is acknowledged by telephonic confirmation, if telecopied.
(d) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and permitted assigns of each of the parties
and shall inure to the benefit of the Holder. Avanti Corporate Health Systems,
Inc. may assign the benefit of this Agreement to any affiliate to which the
Restricted Securities are issued pursuant to Section 2.02(b) of the Purchase
Agreement. Notwithstanding the foregoing, no transferee shall have any of the
rights granted under this Agreement until such transferee shall acknowledge its
rights and obligations hereunder by a signed written statement of such
transferee's acceptance of such rights and obligations. It shall be a condition
to the right of the Company to merge with a successor that the successor by
merger acknowledge in writing the applicability of the rights of the Holder
under this Agreement to the securities of the successor received by the Holder
in such merger.
(e) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and, all of which taken
together shall constitute one and the same Agreement.
(f) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, as applied to contracts made
and performed within the State of Delaware without regard to principles of
conflicts of law.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the hereof. All
references made in this Agreement to "Section" and "paragraph" refer to such
Section or paragraph of this Agreement, unless expressly stated otherwise.
(h) Authority. The Company hereby represents to the Holder that this
Agreement has been duly authorized, executed and delivered.
(i) Attorneys' Fees. In any action or proceeding brought to enforce any
provision of this Agreement, or where any provision hereof is validly asserted
as a defense, the prevailing party, as determined by the court, shall be
entitled to recover reasonably attorneys' fees in addition to any other
available remedy.
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IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be duly executed as of the date first written above.
FPA MEDICAL MANAGEMENT, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
The foregoing Registration Rights Agreement is hereby confirmed and
accepted as of the date first above written.
AVANTI CORPORATE HEALTH SYSTEMS, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
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