REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made by and
among XxxxxxXxxx.xxx, Inc. (the "Company") and UICI ("Holder").
RECITALS
A. Pursuant to the Agreement and Plan of Merger between Provident
American Corporation, the Company, the Holder and Insurdata Incorporated
("Insurdata"), dated December 6, 1999 (the "Merger Agreement"), Insurdata will
be merged with and into the Company, with the Company as the surviving entity
(the "Merger"). Pursuant to the Merger, all shares of issued and outstanding
common stock of Insurdata will be converted into shares of HealthAxis common
stock. In connection with the Merger, the Company will issue 18,943,678 shares
of the Company's common stock, no par value, to Holder (the "Merger Shares").
Such offering of the Merger Shares is referred to as the "Offering."
B. To induce Holder to enter into the Merger Agreement, the Company is
willing under certain circumstances to register under the Securities Act of
1933, as amended, and the rules and regulations thereunder (collectively, the
"Securities Act"), the Merger Shares.
NOW THEREFORE, intending to be legally bound, the parties hereto agree
as follows:
1. Required Registrations.
(a) At any time after the earlier of: (i) twelve (12) months
following the issuance of the Merger Shares, or (ii) six months after the
completion of the Company's initial public offering, holders of at least 25% of
the then outstanding shares of the Merger Shares may request, in writing, that
the Company effect the registration of Registrable Securities (as defined in
Section 7 hereof) owned by such holders on a form that may be used for the
registration of Registrable Securities. If the holders initiating the
registration intend to distribute the Registrable Securities by means of an
underwriting, they shall so advise the Company in their request. In the event
such registration is underwritten, the right of other holders to participate
shall be conditioned on such holders' participation in such underwriting. Upon
receipt of any such request, the Company shall promptly give written notice of
such proposed registration to all holders of the Registrable Securities and
holders of common stock who have been granted registration rights. Such holders
shall have the right, by giving written notice to the Company within 30 days
after the Company provides its notice, to elect to have included in such
registration a number of their securities, including the Registrable Securities,
as such holders may request in such notice of election; provided that if the
underwriter (if any) managing the offering determines that, because of marketing
factors, all of the securities, including the Registrable Securities, requested
to be registered by all holders may not be included in the offering, then
subject to the priority rights, if any, of: holders of shares subject to the
Registration Rights Agreement dated November 13, 1998 (the "AOL Shares") between
the Company and America Online, Inc., (the "AOL Rights Agreement"); holders of
the shares issued to Health Plan Services, Inc. ("HPS") subject to the
Registration Rights Agreement (the "HPS Shares") between the Company and HPS
dated May 29, 1998 (the "HPS Registration Rights Agreement"); holders of the
Series C Preferred Stock; Provident American Corporation and its subsidiaries
subject to Registration Rights Agreements dated March 30, 1999 (the "Provident
Shares"), and other holders of registration rights granted by the Company, the
Company shall include in such registration: (i) first, the securities of the
holders of the AOL Shares requesting registration pursuant to the terms of the
AOL Rights Agreement to the extent entitled to registration under the AOL Rights
Agreement; (ii) second, the securities of the holders of the HPS Shares unless
the HPS Shares are eligible for resale pursuant to Rule 144 without regard to
volume limitations; (iii) third, the securities of the holders of the common
stock issuable upon the conversion of the Series C Preferred Stock, the
securities of the holder of the common stock issuable upon the conversion of the
Series D Preferred Stock and the securities issuable upon the exercise of the
warrant granted to Holder, pro rata based on the number of shares requested to
be included; (iv) fourth, the securities of holders of the Provident Shares; (v)
fifth, the securities of holders of common stock issuable upon the conversion of
the Series A Preferred Stock; (vi) sixth, the securities of the holders of
Common Stock pursuant to the terms of the Registration Rights Agreements, dated
May 7, 1999 and May 11, 1999; (vii) seventh, the securities issuable upon the
exercise of warrants granted to ING Baring Xxxxxx Xxxx, LLC; (viii) eighth, the
securities issuable upon the exercise of warrants granted to First Health Group
Corp.; (ix) ninth, the securities issuable upon the exercise of warrants granted
to Aetna/US Healthcare; (x) tenth, the securities issuable upon the exercise of
warrants granted to Blue Cross and Blue Shield Association; (xi) eleventh, the
securities of the holders of common stock requesting registration pursuant to
the Registration Rights Agreement dated December 3, 1999; (xii) twelfth, the
securities of the Holder or its successors or assigns where such entities hold
Registrable Securities; and (xiii) thirteenth, the securities requested to be
included therein by the other holders of the Company securities requested to be
included in such registration, pro rata among the holders of such securities on
the basis of the number of shares owned by each such holder. Thereupon, the
Company shall, as expeditiously as possible, use its best efforts to effect the
registration (on a form that may be used for the registration of the Registrable
Securities) of all the Registrable Securities which the Company has been
requested to so register.
(b) The Company shall not be required to effect more than two
registrations pursuant to the first sentence of paragraph (a) above; provided,
however, in the event of a proration pursuant to the foregoing paragraph (a)
which results in Holder holding Registrable Securities having less than all of
the requested securities being included in a current registration, then, to the
extent of such unincluded Registrable Securities, the Holder shall receive an
additional demand registration right upon the expiration of any blackout period,
subject to any priority rights provided in paragraph (a), and the Company shall
be obligated to file an additional registration statement (which registration
statement shall contain a current prospectus) relating to the Registrable
Securities; and (ii) the Company shall use its best efforts to effect the
registration of such Registrable Securities as promptly as practicable
thereafter. In addition to the foregoing, the Company shall agree upon the first
anniversary of the Company's becoming subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act to file a registration statement on Form
S-3 (if then available) covering the resale from time to time of all of the
remaining Registrable Securities.
(c) The Registration Expenses (as defined in Section 4) shall
be paid by the Company with respect to all registrations effected pursuant to
this Section.
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(d) The Company may delay the filing or effectiveness of any
registration statement for a period of up to 180 days after the date of a
request pursuant to this Section 1 if at the time of such request to register
Registrable Securities: (i) the Company is engaged or has fixed plans to engage
within 30 days of the time of the request in a firm commitment underwritten
public offering or (ii) if the Company furnishes to the Holder requesting
registration a certificate signed by senior executive officer of the Company
stating that the Company is engaged in any other activity which, in the good
faith determination of the Company's Board of Directors, is a material
non-public event which would be adversely affected by the requested registration
to the material detriment of the Company, then the Company may at its option
direct that such request be delayed for a period not in excess of 90 days from
the effective date of such offering or the date of commencement of such other
material activity, as the case may be, provided, however, the Company may not
utilize the right set forth in this clause (ii) more than once in any 12-month
period.
2. Piggyback Registration.
(a) Each time that the Company proposes to register a public
offering solely of its authorized but unissued common stock or shares held in
Treasury ("Primary Shares") or other securities, other than pursuant to a
Registration Statement on Form S-4 or Form S-8 or similar or successor forms
(collectively, "Excluded Forms"), the Company shall promptly give written notice
of such proposed registration to all holders of the Merger Shares, which shall
offer such holders the right to request inclusion of the common stock in the
proposed registration statement.
(b) Each holder of the Merger Shares shall have twenty (20) days or
such longer period as shall be set forth in the notice from the receipt of such
notice to deliver to the Company a written request specifying the number of
shares of common stock such holder intends to sell and the holder's intended
plan of disposition.
(c) In the event that the proposed registration by the Company is,
in whole or in part, an underwritten public offering of securities of the
Company, any request under Section 2(b) may specify that the Merger Shares be
included in the underwriting on the same terms and conditions as the shares of
common stock, if any, otherwise being sold through underwriters under such
registration.
(d) Upon receipt of a written request pursuant to Section 2(b), the
Company shall promptly use its best efforts to cause all such Registrable
Securities to be registered, to the extent required to permit sale or
disposition as set forth in the written request.
(e) Notwithstanding the foregoing, if the managing underwriter of an
underwritten public offering determines and advises in writing that the
inclusion of all Registrable Securities proposed to be included in the
underwritten public offering, together with the AOL Shares, the HPS Shares and
any other issued and outstanding shares of common stock proposed to be included
therein by holders other than the holders of Registrable Securities (such other
shares hereinafter collectively referred to as the "Other Shares"), would
interfere with the successful marketing of the securities proposed to be
included in the underwritten public
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offering, then the number of such shares to be included in such underwritten
public offering shall be reduced, and shares shall be excluded from such
underwritten public offering in a number deemed necessary by such managing
underwriter. In the event an exclusion of shares is necessary, shares shall be
included in the following order: (i) first, the Primary Shares; (ii) second, the
AOL Shares requested to be included in the registration pursuant to the terms of
the AOL Rights Agreement to the extent entitled to registration under the AOL
Rights Agreement; (iii) third, HPS Shares requested to be included pursuant to
the terms of the HPS Registration Rights Agreement unless the HPS Shares are
eligible for resale pursuant to Rule 144 without regard to volume limitations;
(iv) fourth, the securities issued upon the conversion of the Series C Preferred
Stock of holders requesting registration, the securities issued upon the
conversion of Series D Preferred Stock of holders requesting registration, and
the securities issued upon the exercise of the warrants granted to Holder, pro
rata based on the number of shares requested to be included; (v) fifth, the
securities of holders of the Provident Shares requesting registration; (vi)
sixth, the securities issued upon the conversion of the Series A Preferred Stock
of holders requesting registration; (vii) seventh, the securities of the holders
of Common Stock requesting registration pursuant to the terms of the
Registration Rights Agreements, dated May 7, 1999 and May 11, 1999; (viii)
eighth, the securities issued upon the exercise of the warrants granted to ING
Baring Xxxxxx Xxxx, LLC; (ix) ninth, the securities issued upon the exercise of
the warrants granted to First Health Group Corp.; (x) tenth, the securities
issued upon exercise of the warrants granted to Aetna/US Healthcare; (xi)
eleventh, the securities issued upon the exercise of the warrants granted to
Blue Cross and Blue Shield Association; (xii) twelfth, the securities of holders
requesting registration pursuant to the terms of the Registration Rights
Agreement dated December 3, 1999; (xiii) thirteenth, the securities held by the
Holder or its successors or assigns requesting registration; (xiv) fourteenth,
Other Shares. To the extent all of the Registrable Securities requested to be
included in the underwritten public offering can not be included, holders of
Registrable Securities shall participate in such offering pro rata based on the
number of shares of Registrable Securities each holder proposes to include.
(f) all shares of common stock that are not included in the
underwritten public offering shall be withheld from the market by the holders
thereof for a period, not to exceed 180 following an initial public offering and
90 days for any offering thereafter, that the managing underwriter reasonably
determines as necessary in order to effect the underwritten public offering. The
holders of such shares shall execute such documentation as the managing
underwriter reasonably requests to evidence this lock-up.
3. Procedures. Whenever the holders of Registrable Securities have
requested that any Registrable Securities be registered pursuant to this
Agreement, the Company shall use its best efforts to effect the registration and
the sale of such Registrable Securities in accordance with the intended method
of disposition thereof; and pursuant thereto the Company shall as expeditiously
as possible:
(a) prepare and file with the Securities and Exchange Commission
(the "Commission") a registration statement on the appropriate form under the
Securities Act, which form shall be available for the sale of such Registrable
Securities in accordance with the intended method or methods of distribution
thereof, and use its commercially reasonable efforts to cause such registration
statement to become effective (provided that before filing a registration
statement or prospectus or any amendments or supplements thereto, the Company
shall furnish to the counsel selected by the holders of a majority of the
Registrable Securities covered by such registration statement copies of all such
documents proposed to be filed, which documents shall be subject to the review
and comment of such counsel);
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(b) notify each holder of Registrable Securities of the
effectiveness of each registration statement filed hereunder and prepare and
file with the Commission, such amendments, post-effective amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary or appropriate to keep such registration statement
effective for the period as there are Registrable Securities outstanding, cause
such prospectus as so supplemented to be filed as required under the Securities
Act, and comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration statement during such
period in accordance with the intended methods of disposition by the sellers
thereof set forth in such registration statement or supplement to the
prospectus;
(c) if requested by the managing underwriter or underwriters or a
holder of Registrable Securities being sold in connection with an underwritten
offering, immediately incorporate in a Prospectus supplement or post-effective
amendment such information as the managing underwriters and the holders of a
majority in interest of the Registrable Securities being sold reasonably agree
should be included therein relating to the plan of distribution with respect to
such Registrable Securities, including, without limitation, information with
respect to the principal amount of Registrable Securities being sold to such
underwriters, the purchase price being paid therefor by such underwriters and
with respect to any other terms of the underwritten (or best efforts
underwritten) offering of the Registrable Securities to be sold in such
offering; and make all required filings of such Prospectus supplement or
post-effective amendment as soon as notified of the matters to be incorporated
in such Prospectus supplement or post-effective amendment;
(d) furnish to each seller of Registrable Securities such number of
copies of such registration statement, each amendment and supplement thereto,
the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as such seller may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such seller;
(e) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions
where such registration or qualification is required as any seller reasonably
requests and do any and all other acts and things which may be reasonably
necessary or advisable to enable such seller to consummate the disposition in
such jurisdictions of the Registrable Securities owned by such seller (provided
that the Company shall not be required to (i) qualify generally to do business
in any jurisdiction where it would not otherwise be required to qualify but for
this subparagraph (ii) subject itself to taxation in any such jurisdiction or
(iii) consent to general service of process in any such jurisdiction);
(f) notify each seller of such Registrable Securities, at any
time when a prospectus relating thereto is required to be delivered under the
Securities Act, upon discovery that, or upon the happening of any event as a
result of which the prospectus included in such registration statement as then
in effect, contains an untrue statement of a material fact or omits any fact
necessary to make the statements therein not misleading in the light of the
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circumstances under which they were made, and, at the request of any such
seller, the Company shall promptly prepare a supplement or amendment to such
prospectus so that, thereafter delivered to the purchasers of such Registrable
Securities, such prospectus shall not contain an untrue statement of a material
fact required to be stated therein or omit to state any fact necessary to make
the statements therein not misleading;
(g) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed or traded, and, if not so listed or traded, to be listed on the NASD
automated quotation system and, if listed on the NASD automated quotation
system, use commercially reasonable efforts to secure NASDAQ authorization for
such Registrable Securities and, without limiting the generality of the
foregoing, to arrange for at least two market makers to register as such with
respect to such Registrable Securities with the NASD;
(h) cooperate with the selling holders of Registrable Securities and
the managing underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold and not
bearing any restrictive legends; and enable such Registrable Securities to be in
such denominations and registered in such names as the selling holders or the
managing underwriters, if any, may request at least ten Business Days prior to
any sale of Registrable Securities; provide a transfer agent and registrar for
all such Registrable Securities not later than the effective date of such
registration statement;
(i) enter into such customary agreements (including, if there is an
underwriter, underwriting agreements in customary form including, without
limitation, the requirement to obtain an opinion of counsel to the Company and a
"comfort letter" from the independent public accountants to the Company in the
usual and customary form for such an underwritten offering);
(j) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other agent retained by
any such seller or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company that is customary, and cause
the Company's officers, directors, employees and independent accountants to
supply all information reasonably requested by any such seller, underwriter,
attorney, accountant or agent in connection with such registration statement;
(k) cooperate, and cause the Company's officers, directors,
employees and independent accountants to cooperate, with the selling holders of
Registrable Securities and the managing underwriters, if any, in the sale of the
Registrable Securities and take any actions necessary to promote, facilitate or
effectuate such sale;
(l) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission and make available to its security
holders, as soon as reasonably practicable, an earning statement covering the
period of at least twelve months, beginning with the first fiscal quarter
beginning after the effective date of the registration statement, which earning
statement shall satisfy the provisions of Section 11(a) of the Securities Act;
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(m) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any common stock included in such registration statement for sale in any
jurisdiction, the Company shall use its best efforts promptly to obtain the
withdrawal of such order; and
(n) otherwise use its best effects to take all other steps necessary
to effect the registration of the Registrable Securities.
4. Registration Expenses.
(a) All expenses incident to the Company's performance of or
compliance with this Agreement, including without limitation all registration
and filing fees (including, if applicable, the fees and expenses of any
"qualified independent underwriter" and its counsel as may be required under the
rules and regulations of the NASD), fees and expenses of compliance with
securities or blue sky laws (including fees and disbursements of counsel for the
underwriters or selling holders in connection with blue sky qualifications and
determination of their eligibility for investment under applicable laws),
printing expenses, messenger, telephone and delivery expenses, fees and
disbursements of custodians, and fees and disbursements of counsel for the
Company and all independent certified public accountants (including the expenses
of any special audit and "cold comfort" letters required by or incident to such
performance), underwriters (excluding underwriters' discounts and commissions)
and other Persons retained by the Company (all such expenses being herein called
"Registration Expenses"), shall be borne by the Company and the Company shall,
in any event, pay its internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties), the expense of any annual audit or quarterly review, the
expense of any liability insurance if such insurance coverage is obtained by the
Company and the expenses and fees for listing the securities to be registered on
each securities exchange on which similar securities issued by the Company are
then listed or on the NASD automated quotation system.
(b) Each holder of securities included in any registration hereunder
shall pay those expenses which are not Registration Expenses which are allocable
to the registration of such holder's securities so included (such as the fees
and disbursements of any counsel engaged by an Holder), and any such expenses
not so allocable, such as the underwriting discount and any selling commissions
shall be borne by all sellers of securities included in such registration in
proportion to the aggregate selling price of the securities to be so registered.
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5. Indemnification and Contribution
(a) The Company agrees to indemnify and hold harmless each holder of
Registrable Securities which is included in a registration statement pursuant to
Section 1 herein, its officers and directors and each Person who controls such
holder (within the meaning of the Securities Act) against all losses, claims,
damages, liabilities and expenses which arise out of or are based upon: (i) any
untrue or alleged untrue statement of material fact contained in any
registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein
not misleading, or with respect to a prospectus, necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, except insofar as the same are caused by or contained in any
information furnished in writing to the Company by such holder expressly for use
therein or by such holder's failure to deliver a copy of the registration
statement or prospectus or any amendments or supplements thereto after the
Company has furnished such holder with a sufficient number of copies of the
same; and (ii) any violation by the Company of the Securities Act, the Exchange
Act (as defined below), any applicable state securities law or any rule or
regulation promulgated under the Securities Act, the Exchange Act or any state
securities law. In connection with an underwritten offering, the Company shall
indemnify such underwriters, their officers and directors and each Person who
controls such underwriters (within the meaning of the Securities Act) to the
same extent as provided above with respect to the indemnification of the holders
of Registrable Securities.
(b) In connection with any registration statement in which a holder
of Registrable Securities is participating, each such holder shall furnish to
the Company in writing such information and affidavits as the Company and any
underwriter reasonably requests for use in connection with any such registration
statement or prospectus and shall indemnify the Company, its directors and
officers and each Person who controls the Company (within the meaning of the
Securities Act) against any losses, claims, damages, liabilities and expenses
resulting from any untrue or alleged untrue statement of material fact contained
in the registration statement, prospectus or preliminary prospectus or any
amendment thereof or supplement thereto or any omission or alleged omission of a
material fact required to be stated therein or necessary to make the statements
therein not misleading, but only to the extent that such untrue statement or
omission is contained in any information or affidavit so furnished in writing by
such holder.
(c) Any Person entitled to indemnification hereunder shall (i) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification (provided that the failure to give prompt notice
shall not impair any Person's right to indemnification hereunder to the extent
such failure has not materially prejudiced the indemnifying party) and (ii)
unless in such indemnified party's reasonable judgment a conflict of interest
between such indemnified and indemnifying parties may exist with respect to such
claim, permit such indemnifying party to assume the defense of such claim with
counsel reasonably satisfactory to the indemnified party. If such defense is
assumed, the indemnifying party shall not be subject to any liability for any
settlement made by the indemnified party without its consent (but such consent
shall not be unreasonably withheld). An indemnifying party who is not entitled
to, or elects not to, assume the defense of a claim shall not be obligated to
pay the fees and expenses of more than one counsel for all parties indemnified
by such indemnifying party with respect to such claim, unless in the reasonable
judgment of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim.
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(d) If the indemnification provided for in this Section 5 is
unavailable to an indemnified party under paragraphs (a) or (b) hereof in
respect to any losses, claims, damages, liabilities or expenses referred to
therein, then an 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, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative fault of the Company and
the holder of Registrable Securities in connection with the statements or
omissions that resulted in such losses, claim, damages, liabilities or expenses.
The relative fault of the Company and the holder of Registrable Securities in
connection with the statements that resulted in such losses, claims, liabilities
or expenses shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of material facts or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or the holder of the Registrable Securities and the parties relative intent,
knowledge, access to information and opportunity to correct such statement or
omission.
(e) Notwithstanding any other provision of this Section, the
liability of any holder of Registrable Securities for indemnification or
contribution under this Section shall be individual to each holder and shall not
exceed an amount equal to the number of shares sold by such holder of
Registrable Securities multiplied by the net amount per share which he receives
in such underwritten offering.
(f) The indemnification and contribution provided for under this
Agreement shall remain in full force and effect regardless of any investigation
made by or on behalf of the indemnified party or any officer, director or
controlling Person of such indemnified party and shall survive the transfer of
securities.
6. Participation in Underwritten Registrations. No Person may
participate in any registration hereunder which is underwritten unless such
Person (i) agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Person or Persons entitled hereunder
to approve such arrangements and (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements; provided
that no holder of Registrable Securities included in any underwritten
registration shall be required to make any representations or warranties to the
Company or the underwriters other than representations and warranties directly
regarding such holder and such holder's intended method of distribution.
7. Definitions.
"NASD" means the National Association of Securities Dealers, Inc.
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"Person" means any individual, corporation, partnership, limited
liability company, trust, estate, association, cooperative, government or
governmental entity (or any branch, subdivision or agency thereof) or any other
entity.
"Registrable Securities" means (i) any of the Merger Shares; and
(ii) any other securities that subsequently may be issued or issuable with
respect to such shares as a result of a stock split or dividend or any sale,
transfer, assignment or other transaction involving such shares of the Company
and any securities into which the shares of common stock may thereafter be
changed as a result of merger, consolidation, recapitalization or other similar
transaction. As to any particular Registrable Securities, such securities shall
cease to be Registrable Securities when they have been distributed to the public
pursuant to a offering registered under the Securities Act or eligible to be
sold to the public pursuant to Rule 144(k) under the Securities Act (or any such
rule then in force) or, if held by an affiliate of the Company, when all such
securities of such person are eligible for resale pursuant to Rule 144 and could
be sold in one transaction in accordance with the volume limitations contained
in Rule 144(e)(1)(i). For purposes of this Agreement, a Person shall be deemed
to be a holder of Registrable Securities whenever such Person has the right to
acquire directly or indirectly such Registrable Securities (upon conversion or
exercise in connection with a transfer of securities or otherwise, but
disregarding any restrictions or limitations upon the exercise of such right),
whether or not such acquisition has actually been effected.
"Securities Act" means the Securities Act of 1933, as amended.
8. Rule 144. From and after the time the Company's common stock is
registered under Section 12(b) or 12(g) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), in order to permit each Holder to sell the
securities of the Company it holds from time to time pursuant to Rule 144
promulgated by the Commission or any successor to such rule or any other rule or
regulation of the Commission that may at any time permit the Holder to sell its
securities to the public without registration ("Resale Rules"), the Company
will:
(a) comply with all rules and regulations of the Commission
applicable in connection with use of the Resale Rules;
(b) make and keep adequate and current public information available,
as those terms are understood and defined in the Resale Rules, at all times;
(c) file with the Commission in a timely manner all reports and
other documents required of the Company under the Securities Act and the
Exchange Act;
(d) furnish annually to the Holder material containing the
information required by Rule 14a-3(b) under the Exchange Act;
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(e) furnish to the Holder promptly upon request (i) a written
statement by the Company that it has complied with the reporting requirements of
the Resale Rules, the Securities Act and the Exchange Act, (ii) a copy of the
most recent annual or quarterly report of the Company and any other reports and
documents so filed by the Company, and (iii) such other information as may be
reasonably requested in availing the Holder of any rule or regulation of the
Commission which permits the selling of any shares of common stock holding the
Holder without registration; and
(f) take any action (including cooperating with the Holder to cause
the transfer agent to remove any restrictive legend on certificates evidencing
the shares of common stock held by the Holder) as shall be reasonably requested
by the Holder or which shall otherwise facilitate the sale of shares of common
stock held by the Holder from time to time by the Holder pursuant to the Resale
Rules.
9. Rule 144A Information. Until such time as the Company is subject to
Section 13 or 15(d) of the Exchange Act, the Company will make available, upon
request, to the Holder and prospective purchaser or transferee of Registrable
Securities designated by the Holder, the information required to allow the
resale or other transfer of Registrable Securities pursuant to Rule 144A
promulgated by the Commission under the Securities Act to enable resales and
other transfers of the Registrable Securities to be made pursuant to such Rule
144A.
10. Miscellaneous.
(a) No Inconsistent Agreements. The Company shall not hereafter
enter into any agreement with respect to its securities which is inconsistent
with or violates the rights granted to the holders of Registrable Securities in
this Agreement.
(b) Amendments and Waivers. Except as otherwise provided herein, the
provisions of this Agreement may be amended or waived only upon the prior
written consent of the Company and holders of a majority of the Registrable
Securities.
(c) Successors and Assigns. All covenants and agreements in this
Agreement by or on behalf of any of the parties hereto shall bind and inure to
the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not. In addition, whether or not any express assignment
has been made, the provisions of this Agreement which are for the benefit of the
Holder of the Registrable Securities are also for the benefit of, and
enforceable by, any subsequent holder of the Registrable Securities. Upon the
transfer of any the Registrable Securities, the transferring holder of the
Registrable Securities shall cause the transferee to execute and deliver to the
Company a counterpart of this Agreement.
(d) Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
(e) Counterparts. This Agreement may be executed simultaneously in
two or more counterparts, any one of which need not contain the signatures of
more than one party, but all such counterparts taken together shall constitute
one and the same Agreement.
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(f) Descriptive Heading. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
(g) Governing Law. The corporate law of Pennsylvania shall govern
all issues and questions concerning the relative rights of the Company and its
shareholders. All issues and questions concerning the construction, validity,
interpretation and enforcement of this Agreement shall be governed by, and
construed in accordance with, the laws of Pennsylvania, without giving effect to
any choice of law or conflict of law rules or provisions (whether of
Pennsylvania or any other jurisdiction) that would cause the application of the
laws of any jurisdiction other than Pennsylvania.
(h) Notices. Notices required or permitted to be given hereunder
shall be in writing and shall be deemed to be received when personally delivered
or sent by overnight courier or registered mail, return receipt requested,
addressed (i) if to the Company, at XxxxxxXxxx.xxx, Inc., 0000 XxXxxx Xxxx,
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000, Attention: President; and (ii) if to the
Holder, at UICI, 0000 XxXxxx Xxxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000,
Attention: President (or at such other address as each party furnishes by notice
given in accordance with this Section 10).
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SIGNATURE PAGE TO XXXXXXXXXX.XXX, INC.
REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the undersigned has executed this Registration
Rights Agreement this ________ day of _________________, 1999.
UICI
By: ___________________________________
Name: ________________________________
Title: _______________________________
XXXXXXXXXX.XXX, INC.
By: __________________________________
Name: Xxxxxxx Xxxxxx
Title: President and Chief Executive Officer
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