EXHIBIT 10.5
SUBORDINATED REGISTRATION RIGHTS AGREEMENT
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AGREEMENT made this 20 day of December, 1996 by and among NovaMed Holdings
Inc. (the "Company"), those persons whose names are set forth on Schedule I
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hereto and each of the persons who shall, after the date hereof, acquire or
receive the right to acquire shares of Series A or Series B Convertible
Preferred Stock or Common Stock of the Company (other than through conversion of
Preferred Stock (as defined below)) and join in and become a party to this
Agreement by executing and delivering to the Company an Instrument of Accession
in the form of Schedule II hereto (each of such aforementioned persons being
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hereinafter referred to collectively as the "Holders" and singularly as a
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"Holder").
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WHEREAS, the Holders are acquiring simultaneously herewith shares of the
Common Stock, $.01 par value (the "Common Stock") of the Company, shares of the
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Series A Convertible Preferred Stock, $.01 par value (the "Series A Shares") of
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the Company and/or shares of the Series B Convertible Preferred Stock, $.01 par
value (the "Series B Shares") of the Company;
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NOW, THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the Company and the Holders hereby agree:
1. Certain Definitions. As used in this Agreement, the following terms
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shall have the following respective meanings:
"Affiliate" shall mean a person that directly or indirectly through one or
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more intermediaries, controls or is controlled by, or is under common control
with the person specified.
"Commission" shall mean the Securities and Exchange Commission, or any
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other federal agency at the time administering the Securities Act.
"Common Stock" shall mean the Common Stock, $.01 par value, of the Company,
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as constituted as of the date of this Agreement.
"Conversion Shares" shall mean shares of Common Stock issued upon
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conversion of the Junior Preferred Shares.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
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or any similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Junior Preferred Shares" shall mean the Series A Shares and the Series B
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Shares.
"Preferred Stock" shall mean the Series A Convertible Preferred Stock, the
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Series B Convertible Stock, Series C Convertible Preferred Stock and the Series
D Convertible Preferred Stock.
"Prior Registration Rights Agreement" means any agreement, promise,
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covenant or understanding by and between the Company or any of its subsidiaries,
including NovaMed Eyecare Management, LLC, a Delaware limited liability company,
and any Holder, which agreement, promise, covenant or understanding grants such
Holder any right to demand or request registration of Common Stock, Junior
Preferred Shares or Conversion Shares, grants such Holder the right to sell any
shares or otherwise participate in any registration of Common Stock or
Conversion Shares, or otherwise conflicts with the transactions contemplated
herein or in the Senior Registration Rights Agreement.
"Registration Expenses" shall mean the expenses so described in Section 7.
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"Restricted Stock" shall mean the Common Stock held by Holders and the
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Conversion Shares, excluding Common Stock and Conversion Shares which have been
(a) registered under the Securities Act pursuant to an effective registration
statement filed thereunder and disposed of in accordance with the registration
statement covering them or (b) publicly sold pursuant to Rule 144 under the
Securities Act.
"Securities Act" shall mean the Securities Act of 1933, as amended, or any
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similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Selling Expenses" shall mean the expenses so described in Section 7.
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"Senior Requesting Holders" shall mean the holders of shares of Senior
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Restricted Stock requesting registration pursuant to the Senior Registration
Rights Agreement.
"Senior Registration Rights Agreement" shall mean the Registration Rights
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Agreement of even date herewith between the Company and the holders of Series C
Shares and warrants to purchase Series D Shares.
"Senior Registration Demand" shall mean a registration of securities by the
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Company effected pursuant to Section 4 of the Senior Registration Rights
Agreement.
"Series C Shares" shall mean shares of the Series C preferred stock, par
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value $.01 per share, of the Company.
"Series D Shares" shall mean shares of the Series D preferred stock, par
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value $.01 per share, of the Company.
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2. Restrictive Legend. Each certificate representing Junior Preferred
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Shares or Restricted Stock shall, except as otherwise provided in this Section 2
or in Section 3, be stamped or otherwise imprinted with a legend substantially
in the following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR
ANY STATE SECURITIES LAWS AND MAY NOT BE TRANSFERRED OR OTHERWISE DISPOSED
OF UNLESS IT HAS BEEN REGISTERED UNDER SUCH ACT AND ALL SUCH APPLICABLE
LAWS OR AN EXEMPTION FROM REGISTRATION IS AVAILABLE."
A certificate shall not bear such legend if in the opinion of counsel
satisfactory to the Company the securities represented thereby may be publicly
sold without registration under the Securities Act and any applicable state
securities laws.
3. Notice of Proposed Transfer. Prior to any proposed transfer of any
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Junior Preferred Shares or Restricted Stock (other than under the circumstances
described in Section 5), the holder thereof shall give written notice to the
Company of its intention to effect such transfer. Each such notice shall
describe the manner of the proposed transfer and, if requested by the Company,
shall be accompanied by an opinion of counsel satisfactory to the Company to the
effect that the proposed transfer may be effected without registration under the
Securities Act and any applicable state securities laws, whereupon the holder of
such stock shall be entitled to transfer such stock in accordance with the terms
of its notice; provided, however, that no such opinion of counsel shall be
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required for a transfer to one or more partners of the transferor (in the case
of a transferor that is a partnership) or to an affiliated corporation (in the
case of a transferor that is a corporation). Each certificate for Junior
Preferred Shares or Restricted Stock transferred as above provided shall bear
the legend set forth in Section 2, except that such certificate shall not bear
such legend if (i) such transfer is in accordance with the provisions of Rule
144 (or any other rule permitting public sale without registration under the
Securities Act) or (ii) the opinion of counsel referred to above is to the
further effect that the transferee and any subsequent transferee (other than an
Affiliate of the Company) would be entitled to transfer such securities in a
public sale without registration under the Securities Act. The restrictions
provided for in this Section 3 shall not apply to securities which are not
required to bear the legend prescribed by Section 2 in accordance with the
provisions of that Section.
4. Termination of Prior Registration Rights Agreements. The Company and
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each Holder hereby terminate any and all Prior Registration Rights Agreements
and such Prior Registration Rights Agreements shall be null and void and of no
further force or effect.
5. Registration of Restricted Stock.
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(a) If the Company at any time proposes to register any of its
securities under the Securities Act for sale to the public whether for its
own account or for the account of other security holders or both (except
with respect to registration statements on Forms X-0,
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X-0 or another form not available for registering the Restricted Stock for
sale to the public), each such time it will give written notice to all
holders of outstanding Restricted Stock and Junior Preferred Shares of its
intention so to do. Upon the written request of any such holder, received
by the Company within 30 days after the giving of any such notice by the
Company, to register any of its Restricted Stock, the Company will use its
best efforts to cause the Restricted Stock as to which registration shall
have been so requested to be included in the securities to be covered by
the registration statement proposed to be filed by the Company, all to the
extent requisite to permit the sale or other disposition by the holder of
such Restricted Stock so registered. In the event that any registration
pursuant to this Section 5(a) shall be, in whole or in part, an
underwritten public offering of Common Stock, the number of shares of
Restricted Stock to be included in such an underwriting may be reduced (pro
rata among the requesting Holders based upon the number of shares of
Restricted Stock owned by such Holders) if and to the extent that the
managing underwriter shall be of the opinion that such inclusion would
adversely affect the marketing of the securities to be sold by the Company
therein; provided, however, that (i) if the registration is not a Senior
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Registration Demand and is not an initial public offering (an "IPO"), in no
event may less than one-half of the total number of shares of Common Stock
to be included in such underwriting for the account of persons other than
the Company be made available for shares of Restricted Stock, and (ii) if
the registration of securities is a Senior Registration Demand or an IPO,
then the number of shares of Restricted Stock to be included in such a
registration may be reduced (pro rata among the requesting Holders based
upon the number of shares of Restricted Stock owned by such Holders) if and
to the extent the managing underwriter shall be of the opinion that such
inclusion would adversely affect the marketing of the securities to be sold
by the Senior Requesting Holders.
(b) General Terms. Notwithstanding the foregoing provisions, the
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Company may withdraw any registration statement referred to in this Section
5 without thereby incurring any liability to the holders of Restricted
Stock. The rights provided under this Section 5 terminate with respect to
a holder of Restricted Stock as soon as such holder is able to sell its
Restricted Stock pursuant to Rule 144(k). For purposes of this Section 5,
the term "Restricted Stock" shall be deemed to include the number of shares
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of Restricted Stock which would be issuable to a holder of Junior Preferred
Shares upon the conversion of all Junior Preferred Shares held by such
holder at such time, provided, however, that the only securities which the
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Company shall be required to register pursuant hereto shall be shares of
Common Stock, and provided, further, however, that, in any underwritten
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public offering contemplated by this Section 5, the holders of Junior
Preferred Shares shall be entitled to sell such Junior Preferred Shares to
the underwriters for conversion and sale of the shares of Common Stock
issued upon conversion thereof.
6. Registration Procedures. If and whenever the Company is required by
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the provisions of Section 5 to use its best efforts to effect the registration
of any shares of Restricted Stock under the Securities Act, the Company will, as
expeditiously as possible:
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(a) prepare and file with the Commission a registration statement with
respect to such securities and use its best efforts to cause such
registration statement to become and remain effective for the period of the
distribution contemplated thereby (determined as hereinafter provided);
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective for the period specified in paragraph (a) above and
comply with the provisions of the Securities Act with respect to the
disposition of all Restricted Stock covered by such registration statement
in accordance with the sellers' intended method of disposition set forth in
such registration statement for such period;
(c) furnish to each seller of Restricted Stock and to each underwriter
such number of copies of the registration statement and the prospectus
included therein (including each preliminary prospectus) as such persons
reasonably may request in order to facilitate the public sale or other
disposition of the Restricted Stock covered by such registration statement;
(d) use its best efforts to register or qualify the Restricted Stock
covered by such registration statement under the securities or "blue sky"
laws of such jurisdictions as the sellers of Restricted Stock or, in the
case of an underwritten public offering, the managing underwriter
reasonably shall request, provided, however, that the Company shall not for
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any such purpose be required to qualify generally to transact business as a
foreign corporation in any jurisdiction where it is not so qualified or to
consent to general service of process in any such jurisdiction;
(e) use its best efforts to list the Restricted Stock covered by such
registration statement with any securities exchange on which the Common
Stock of the Company is then listed;
(f) immediately notify each seller of Restricted Stock and each
underwriter under such registration statement, at any time when a
prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event of which the Company has
knowledge as a result of which the prospectus contained in such
registration statement, as then in effect, includes an untrue statement of
a material fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in light
of the circumstances then existing;
(g) if the offering is underwritten and at the request of any seller
of Restricted Stock, use its best efforts to furnish on the date that
Restricted Stock is delivered to the underwriters for sale pursuant to such
registration: (i) an opinion dated such date of counsel representing the
Company for the purposes of such registration, addressed to the
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underwriters and to such seller, stating that such registration statement
has become effective under the Securities Act and that (A) to the best
knowledge of such counsel, no stop order suspending the effectiveness
thereof has been issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the Securities Act, (B) the
registration statement, the related prospectus and each amendment or
supplement thereof comply as to form in all material respects with the
requirements of the Securities Act (except that such counsel need not
express any opinion as to financial statements contained therein) and (C)
to such other effects as reasonably may be requested by counsel for the
underwriters or by such seller or its counsel and (ii) a letter dated such
date from the independent public accountants retained by the Company,
addressed to the underwriters and to such seller, stating that they are
independent public accountants within the meaning of the Securities Act and
that, in the opinion of such accountants, the financial statements of the
Company included in the registration statement or the prospectus, or any
amendment or supplement thereof, comply as to form in all material respects
with the applicable accounting requirements of the Securities Act, and such
letter shall additionally cover such other financial matters (including
information as to the period ending no more than five business days prior
to the date of such letter) with respect to such registration as such
underwriters reasonably may request; and
(h) make available for inspection by each seller of Restricted Stock,
any underwriter participating in any distribution pursuant to such
registration statement, and any attorney, accountant or other agent
retained by such seller or underwriter, all financial and other records,
pertinent corporate documents and properties of the Company, and cause the
Company's officers, directors and employees to supply all information
reasonably requested by any such seller, underwriter, attorney, accountant
or agent in connection with such registration statement.
For purposes of Section 6(a) and 6(b), the period of distribution of
Restricted Stock in a firm commitment underwritten public offering shall be
deemed to extend until each underwriter has completed the distribution of
all securities purchased by it, and the period of distribution of
Restricted Stock in any other registration shall be deemed to extend until
the earlier of the sale of all Restricted Stock covered thereby and 120
days after the effective date thereof.
In connection with each registration hereunder, the sellers of
Restricted Stock will furnish to the Company in writing such information
with respect to themselves and the proposed distribution by them as
reasonably shall be necessary in order to assure compliance with federal
and applicable state securities laws.
In connection with each registration pursuant to Section 5 covering an
underwritten public offering, the Company and each seller agree to enter
into a written agreement with the managing underwriter selected in the
manner herein provided in such form and containing such provisions as are
customary in the securities business for such an
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arrangement between such underwriter and companies of the Company's size
and investment stature.
7. Expenses. All expenses incurred by the Company in complying with
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Section 5, including, without limitation, all registration and filing fees,
printing expenses, fees and disbursements of counsel and independent public
accountants for the Company, fees and expenses (including counsel fees) incurred
in connection with complying with state securities or "blue sky" laws, fees of
the National Association of Securities Dealers, Inc., transfer taxes, fees of
transfer agents and registrars, costs of insurance, but excluding any Selling
Expenses, are called "Registration Expenses". All underwriting discounts,
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selling commissions and fees and disbursements of counsel for any seller of
Restricted Stock applicable to the sale of Restricted Stock are called "Selling
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Expenses".
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The Company will pay all Registration Expenses in connection with each
registration statement under Section 5. All Selling Expenses in connection with
each registration statement under Section 5 shall be borne by the participating
sellers in proportion to the number of shares sold by each, or by such
participating sellers other than the Company (except to the extent the Company
shall be a seller) as they may agree.
8. Indemnification and Contribution.
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(a) In the event of a registration of any of the Restricted Stock
under the Securities Act pursuant to Section 5, the Company will indemnify
and hold harmless each seller of such Restricted Stock thereunder, each
underwriter of such Restricted Stock thereunder and each other person, if
any, who controls such seller or underwriter within the meaning of the
Securities Act, against any losses, claims, damages or liabilities, joint
or several, to which such seller, underwriter or controlling person may
become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in any registration statement
under which such Restricted Stock was registered under the Securities Act
pursuant to Section 5, any preliminary prospectus or final prospectus
contained therein, or any amendment or supplement thereof, or arise out of
or are based upon 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, and will reimburse each such seller,
each such underwriter and each such controlling person for any legal or
other expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, damage, liability or action, provided,
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however, that the Company will not be liable in any such case if and to the
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extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission so made in conformity with information furnished by any
such seller, or an Affiliate of such seller which is also a seller, any
such underwriter or any such controlling person in writing specifically for
use in such registration statement or prospectus.
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(b) In the event of a registration of any of the Restricted Stock
under the Securities Act pursuant to Section 5, each seller of such
Restricted Stock thereunder, severally and not jointly, except that
liability shall be joint hereunder with respect to each Affiliate of a
seller who is also a seller, will indemnify and hold harmless the Company,
each person, if any, who controls the Company within the meaning of the
Securities Act, each officer of the Company who signs the registration
statement, each director of the Company, each underwriter and each person
who controls any underwriter within the meaning of the Securities Act,
against all losses, claims, damages or liabilities, joint or several, to
which the Company or such officer, director, underwriter or controlling
person may become subject under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the registration statement
under which such Restricted Stock was registered under the Securities Act
pursuant to Section 5, any preliminary prospectus or final prospectus
contained therein, or any amendment or supplement thereof, or arise out of
or are based upon 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, and will reimburse the Company and each
such officer, director, underwriter and controlling person for any legal or
other expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, damage, liability or action, provided,
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however, that such seller will be liable hereunder in any such case if and
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only to the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in reliance upon and in conformity with
information pertaining to such seller, as such, furnished in writing to the
Company by such seller or an Affiliate of such seller which is also a
seller specifically for use in such registration statement or prospectus,
and provided, further, however, that the liability of each seller hereunder
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shall be limited to the net proceeds received by such seller and Affiliates
of such seller from the sale of Restricted Stock covered by such
registration statement.
(c) Promptly after receipt by an indemnified party hereunder of notice
of the commencement of any action, such indemnified party shall, if a claim
in respect thereof is to be made against the indemnifying party hereunder,
notify the indemnifying party in writing thereof, but the omission so to
notify the indemnifying party shall not relieve it from any liability which
it may have to such indemnified party other than under this Section 8 and
shall only relieve it from any liability which it may have to such
indemnified party under this Section 8 if and to the extent the
indemnifying party is prejudiced by such omission. In case any such action
shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party
shall be entitled to participate in and, to the extent it shall wish, to
assume and undertake the defense thereof with counsel satisfactory to such
indemnified party, and, after notice from the indemnifying party to such
indemnified party of its election so to assume and undertake the defense
thereof, the indemnifying party shall not be liable to such
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indemnified party under this Section 8 for any legal expenses subsequently
incurred by such indemnified party in connection with the defense thereof,
provided, however, that, if the defendants in any such action include
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both the indemnified party and the indemnifying party and the indemnified
party shall have reasonably concluded that there may be reasonable defenses
available to it which are different from or additional to those available
to the indemnifying party or if the interests of the indemnified party
reasonably may be deemed to conflict with the interests of the indemnifying
party, the indemnified party shall have the right to select a separate
counsel and to assume such legal defenses and otherwise to participate in
the defense of such action, with the reasonable expenses and fees of such
separate counsel and other reasonable expenses related to such
participation to be reimbursed by the indemnifying party as incurred.
(d) In order to provide for just and equitable contribution to joint
liability under the Securities Act in any case in which either (i) any
holder of Restricted Stock exercising rights under this Agreement, or any
controlling person of any such holder, makes a claim for indemnification
pursuant to this Section 8 but it is judicially determined (by the entry of
a final judgment or decree by a court of competent jurisdiction and the
expiration of time to appeal or the denial of the last right of appeal)
that such indemnification may not be enforced in such case notwithstanding
the fact that this Section 8 provides for indemnification in such case, or
(ii) contribution under the Securities Act may be required on the part of
any such selling holder or any such controlling person in circumstances for
which indemnification is provided under this Section 8; then, and in each
such case, the Company and such holder will contribute to the aggregate
losses, claims, damages or liabilities to which they may be subject (after
contribution from others) in such proportion so that such holder is
responsible for the portion represented by the percentage that the public
offering price of its and its Affiliates' Restricted Stock offered by the
registration statement bears to the public offering price of all securities
offered by such registration statement, and the Company is responsible for
the remaining portion; provided, however, that, in any such case, (A) no
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such holder will be required to contribute any amount in excess of the
public offering price of all such Restricted Stock offered by it pursuant
to such registration statement; and (B) no person or entity guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) will be entitled to contribution from any person or entity
who was not guilty of such fraudulent misrepresentation.
9. Changes in Common Stock or Preferred Stock. If, and as often as,
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there is any change in the Common Stock or the Preferred Stock by way of a stock
split, stock dividend, combination or reclassification, or through a merger,
consolidation, reorganization or recapitalization, or by any other means,
appropriate adjustment shall be made in the provisions hereof so that the rights
and privileges granted hereby shall continue with respect to the Common Stock or
the Preferred Stock as so changed.
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10. Rule 144 Reporting. With a view to making available the benefits of
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certain rules and regulations of the Commission which may at any time permit the
sale of the Restricted Stock to the public without registration, at all times
after 90 days after any registration statement covering a public offering of
securities of the Company under the Securities Act shall have become effective,
the Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act;
(b) use its best efforts to 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; and
(c) furnish to each holder of Restricted Stock forthwith upon request
a written statement by the Company as to its compliance with the reporting
requirements of such Rule 144 and of the Securities Act and the Exchange
Act, a copy of the most recent annual or quarterly report of the Company,
and such other reports and documents so filed by the Company as such holder
may reasonably request in availing itself of any rule or regulation of the
Commission allowing such holder to sell any Restricted Stock without
registration.
11. Representations and Warranties of the Company. The Company represents
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and warrants to you as follows:
(a) The execution, delivery and performance of this Agreement by the
Company have been duly authorized by all requisite corporate action and
will not violate any provision of law, any order of any court or other
agency of government, the Charter or By-laws of the Company or any
provision of any indenture, agreement or other instrument to which it or
any or its properties or assets is bound, conflict with, result in a breach
of or constitute (with due notice or lapse of time or both) a default under
any such indenture, agreement or other instrument or result in the creation
or imposition of any lien, charge or encumbrance of any nature whatsoever
upon any of the properties or assets of the Company.
(b) This Agreement has been duly executed and delivered by the Company
and constitutes the legal, valid and binding obligation of the Company,
enforceable in accordance with its terms.
12. Miscellaneous.
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(a) All covenants and agreements contained 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 (including
without limitation transferees of any Junior
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Preferred Shares or Restricted Stock), whether so expressed or not,
provided, however, that registration rights conferred herein on the Holders
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shall only inure to the benefit of a transferee of Junior Preferred Shares
or Restricted Stock if (i) there is transferred to such transferee
securities representing or convertible into or exercisable for at least
500,000 Conversion Shares, or (ii) such transferee is a partner,
shareholder or affiliate of a party hereto.
(b) All notices, requests, consents and other communications hereunder
shall be in writing and shall be delivered in person, mailed by certified
or registered mail, return receipt requested, or sent by telecopier or
telex, addressed as follows:
if to the Company or any other party hereto, at the address of
such party set forth on Schedule I hereto;
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if to any subsequent holder of Junior Preferred Shares or
Restricted Stock, to it at such address as may have been furnished to
the Company in writing by such holder;
or, in any case, at such other address or addresses as shall have
been furnished in writing to the Company (in the case of a holder of
Junior Preferred Shares or Restricted Stock) or to the holders of
Junior Preferred Shares or Restricted Stock (in the case of the
Company) in accordance with the provisions of this paragraph.
(c) This Agreement shall be governed by and construed in accordance
with the laws of the State of Illinois.
(d) This Agreement may not be amended or modified, and no provision
hereof may be waived, without the written consent of the Company and the
holders of at least two-thirds of the outstanding shares of Restricted
Stock; provided, however, that for purposes of this Section 12(d), the term
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"Restricted Stock" shall be deemed to include the number of shares of
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Restricted Stock which would be issuable to a holder of Junior Preferred
Shares upon conversion of all Junior Preferred Shares held by such holder
at such time.
(e) This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
(f) The obligations of the Company to register shares of Restricted
Stock under Section 5 shall terminate on the fifth anniversary of the date
of the Company's initial public offering of shares of Common Stock at a per
share price of at least $7.50, and for
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aggregate offering proceeds (net of underwriting commissions and offering
expenses) of not less than $20,000,000 (a "Qualified IPO").
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(g) Except for rights granted pursuant to the Senior Registration
Rights Agreement, either on or subsequent to the date hereof, the Company
shall not grant to any third party any registration rights more favorable
than or inconsistent with any of those contained herein, so long as any of
the registration rights under this Agreement remains in effect. The
parties hereto agree, however, that the Company may, in its sole
discretion, execute the Instrument of Accession attached as Schedule II
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hereto with any person who shall, after the date hereof, acquire or receive
the right to acquire shares of the capital stock of the Company (other than
through the conversion of Preferred Stock).
(h) If any provision of this Agreement shall be held to be illegal,
invalid or unenforceable, such illegality, invalidity or unenforceability
shall attach only to such provision and shall not in any manner affect or
render illegal, invalid or unenforceable any other provision of this
Agreement, and this Agreement shall be carried out as if any such illegal,
invalid or unenforceable provision were not contained herein.
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IN WITNESS WHEREOF, the undersigned have executed this document as of the
date first written above.
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Xxxxxxx X. Xxxxxx
_________________________________
Xxxxxx X. Xxxxxxx
_________________________________
Xxxx X. XxXxxxx
_________________________________
Xxxx X. Xxxxxxxxx
_________________________________
Xxxxxx X. Xxxxxxxx
Xxxxxxxx X. Xxxxxxxxx and Xxxxxxx
Xxxxxxxxx, as joint tenants with
right of survivorship
_________________________________
Xxxxxxxx X. Xxxxxxxxx
_________________________________
Xxxxxxx Xxxxxxxxx
_________________________________
Xxxxxxxx X. Xxxxxxxxx
_________________________________
Xxxxxxxx Xxxxxxxxxx
_________________________________
Xxxx X. Xxxxx
_________________________________
Xxxxxxx Xxxx
_________________________________
Xxxxx XxXxxxx
_________________________________
Xxxxxx X. Xxxxxxxxxx
_________________________________
Xxxxxxx X. Xxxxxxxx
_________________________________
Xxxx X. Xxxxxx
Xxxx X. Xxxx Revocable Trust
By:_____________________________
Name:____________________________
_________________________________
Xxxxxxx X.X. Xxxxx
Xxxxx X. Xxxxxxx and Xxxxxxx X.
Xxxxxxx, as joint tenants with
right of survivorship
_____________________________
Xxxxx X. Xxxxxxx
____________________________
Xxxxxxx X. Xxxxxxx
_________________________________
Xxxxxxx Xxxxxx
_________________________________
Xxxxxx Xxxxxx
Xxxxxxxxx Eye Care P.C.
By:_______________________________
Name:_____________________________
Title:____________________________
Northshore Eye Surgicenter, Ltd.
By:_______________________________
Name:_____________________________
Title:____________________________
TRI-OC Management, Inc.
By:_______________________________
Name:_____________________________
Title:____________________________
Xxxx Family Limited Partnership
By:_______________________________
Name:_____________________________
Title:____________________________
Xxxxxxx Xxxxxxxx Family
Limited Partnership
By: Xxxxxxxxx-Xxxxxxxx Eye Institute, P.C.,
its general partner
By:____________________________
Xxxxxxx X. Xxxxxxxx,
an authorized signatory
Xxxxx Family Limited Partnership
By:____________________________
Xxxxxxxx X. Xxxxx, an authorized signatory
Vile Family Limited Partnership
By:____________________________
Xxxxxx Xxxx, one of its general partners
Xxxxxxxx X. Xxxxx Limited Partnership
By: Xxxxx Family Limited Partnership,
its general partner
By:____________________________
Xxxxxxxx X. Xxxxx,
an authorized signatory
Xxxxxxx Xxxx Limited Partnership
By:____________________________
Xxxxxxx Xxxx, one of its general partners
Xxxxxx X. Xxxxx and Xxxx X. Xxxxx
Family Limited Partnership
By:____________________________
Name:__________________________
Title:_________________________
_______________________________
Xxxxxx X. Xxxxxxxxx
_______________________________
Xxxx X. Xxxxxxxx, Xx.
_______________________________
Xxxxxxx X. Xxxxxxxxxx
_______________________________
Xxxxxxx X.X. Xxxxxxx
_______________________________
Xxxxxxx X. Xxxxx
_______________________________
Xxxxxxx X. XxXxxxxxx
_______________________________
T. Xxxxx Xxxxx
Xxxxx X. Xxxxxxx and Xxxxxx Xxxxxxx,
as joint tenants with right of survivorship
_______________________________
Xxxxx X. Xxxxxxx
_______________________________
Xxxxxx Xxxxxxx
_______________________________
Xxx X. Xxxxxx
_______________________________
Xxxxxxxxxxx X. Xxxxxx
_______________________________
Xxxxxx Xxxxxx
_______________________________
Xxxxx X. Xxxx
_______________________________
Xxxx X. Xxxx
_______________________________
Xxxxxx Xxxxxx
_______________________________
Xxxxx Xxxxx
NOVAMED HOLDINGS INC.
By:_______________________________
Its:______________________________
Schedule I
----------
Holders
-------
Xxxxxxx Xxxxxxxx Family Partnership
Xxxxxxxxx Eye Care, P.C.
Eldi E. Xxxxxxxxx
Xxxx Family Limited Partnership
Xxxxx X. Xxxx
Xxxx X. Xxxx
Northshore Eye Surgicenter, Ltd.
Xxxxxx X. Xxxxxxxx
Xxxxxxxx X. Xxxxxxxxx and Xxxxxxx Xxxxxxxxx, as joint tenants
Xxxxxxxx X. Xxxxxxxxx
Xxxxxxx Xxxx Limited Partnership
Vile Family Limited Partnership
Xxxxxxxx X. Xxxxx Limited Partnership
Xxxxx Family Limited Partnership
Xxxxxx X. Xxxxx and Xxxx X. Xxxxx Family Limited Partnership
Xxxxx X. Xxxxxxx and Xxxxxx Xxxxxxx, as joint tenants
Xxxxxxx X. Xxxxxxxxxx
Xxxxxxxx Xxxxxxxxxx
Xxxxxx X. Xxxxxxxxx
T. Xxxxx Xxxxx
Xxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Xxxx X. Xxxxxxxx Xx.
Xxxxxxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxx
Xxxx X. XxXxxxx
Xxxxxx X. Xxxxxxx
Xxxxxxx X.X. Xxxxxxx
Xxxxxx Xxxxxx
Xxxxxxx X. Xxxx
Xxxxxxx X. XxXxxxxxx
Xxxx X. Xxxxx
Xxxxx XxXxxxx
Xxxxxx X. Xxxxxxxxxx
Xxxxxxx X. Xxxxxxxx
Xxxx X. Xxxx Revocable Trust
Xxxxxxx X. X. Xxxxx
Xxxxx X. Xxxxxxx and Xxxxxxx X. Xxxxxxx, as joint tenants
Xxxxxxx Xxxxxx
TRI-OC Management, Inc.
Xxxx X. Xxxxxx
Xxxxxx Xxxxxx
Schedule II
-----------
Instrument of Accession
-----------------------
The undersigned, __________, in connection with becoming the owner or
holder of record of ________ (_______) shares of the Common Stock, par value
$.01 per share, of NovaMed Holdings Inc., an Illinois corporation (the
"Company"), hereby agrees to become a Holder, party to and bound by that certain
Subordinated Registration Rights Agreement, dated as of December __, 1996, by
and among the Company and certain shareholders of the Company. This Instrument
of Accession shall take effect and shall become an integral part of said
Subordinated Registration Rights Agreement immediately upon execution and
delivery to the Company of this Instrument.
IN WITNESS WHEREOF, this Instrument of Accession has been duly executed by
or on behalf of the undersigned, under the laws of the State of Illinois, as of
the date written below.
NOVAMED HOLDINGS INC.
By:_______________________________
Title:____________________________
HOLDER:
Signature:_________________________
Address: ________________________
________________________
________________________
Date: ________________________
