Exhibit 4.02
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT ("Agreement"), dated as of June 15,
1999, is among Xxxxxx X. Xxxxxxxx, Xxxx X. Xxxxxx, JLT, LP, Gemplus SCA, Gemplus
Corp., West Plains Investment, Inc., Finno SCA, Candel & Partners, Xxxxx Xxxxx
(the preceding nine individuals and entities are hereafter referred to as the
"Non-Newcourt Shareholders"), Newcourt Financial USA Inc., a Delaware
corporation (the "Lender") and RealMed Corporation, an Indiana corporation (the
"Company").
WHEREAS, the Lender has purchased from the Company contemporaneously
with the execution of this Agreement a convertible subordinated promissory note
in a maximum principal amount of $17,500,000 (the "Note");
WHEREAS, the Note is convertible by its terms into common shares of the
Company (the "Company Common Stock");
WHEREAS, the parties hereto desire to enter into this Agreement which
sets forth the terms of certain registration rights applicable to the
Registrable Securities (as defined below).
NOW, THEREFORE, upon the terms and conditions, and the mutual promises
herein contained, and for good and valuable consideration, the receipt and
adequacy of which are acknowledged, the parties hereto agree as follows:
1. Certain Definitions. As used in this Agreement, the following
initially capitalized terms shall have the following meanings:
(a) "Affiliate" means, with respect to any person, any other person
who, directly or indirectly, is in control of, is controlled by or is under
common control with the former person.
(b) "Holder" and "Holders" means the parties hereto (other than the
Company) or their respective successors, permitted transferees or assignees.
(c) "In Registration" means, with respect to the Company, that there
has been an organizational meeting with underwriters regarding a proposed public
offering of the Company's securities.
(d) "Registrable Securities" means Company Common Stock received upon
conversion of the Note and the Company Common Stock currently owned by the
Non-Newcourt Shareholders and Lender, as shown on the attached Exhibit A, any
stock or other securities into which or for which such Company Common Stock may
hereafter be changed, converted or exchanged, and any other securities issued to
holders of such Company Common Stock (or such shares into which or for which
such shares are so changed, converted or exchanged) upon any reclassification,
share combination, share subdivision, share dividend, merger, consolidation or
similar transactions or events, provided that any such securities shall cease to
be Registrable Securities (i) if a registration statement with respect to the
sale of such securities shall have become effective under the Securities Act and
such securities are sold pursuant to such registration statement, or (ii) if
such securities shall have been distributed pursuant to Rule 144, Rule 144A or
Rule 145(d).
(e) "Registration Expenses" means all reasonable expenses in connection
with any registration of securities pursuant to this Agreement including,
without limitation, the following: (i) SEC filing fees; (ii) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Registrable Securities to be disposed of
under the Securities Act; (iii) all expenses in connection with the preparation,
printing and filing of the registration statement, any preliminary prospectus or
final prospectus and amendments and supplements thereto and the mailing and
delivering of copies thereof to any Holders, underwriters and dealers and all
expenses incidental to delivery of the Registrable Securities; (iv) the cost of
producing blue sky or legal investment memoranda; (v) all expenses in connection
with the qualification of the Registrable Securities to be disposed of for
offering and sale under state securities laws, including the fees and
disbursements of counsel for the underwriters or Holders in connection with such
qualification and in connection with any blue sky and legal investments surveys;
(vi) the filing fees incident to securing any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of the
Registrable Securities to be disposed of; (vii) transfer agents', depositaries'
and registrars' fees and the fees of any other agent appointed in connection
with such offering; (viii) all security engraving and security printing
expenses; (ix) all fees and expenses payable in connection with the listing of
the Registrable Securities on each securities exchange or inter-dealer quotation
system on which a class of common equity securities of the Company is then
listed; and (x) courier, overnight, and delivery expenses; provided further that
Registration Expenses shall not include any underwriting discounts, commissions
or fees attributable to the sale of the Registrable Securities.
(f) "Restricted Securities" has the same meaning as in Rule 144(a)
(3) (as hereinafter defined).
(g) "Rule 144" means Rule 144 promulgated under the Securities Act,
or any successor rule to similar effect.
(h) "Rule 144A" means Rule 144A promulgated under the Securities Act,
or any successor rule to similar effect.
(i) "Rule 145" means Rule 145 promulgated under the Securities Act,
or any successor rule to similar effect.
(j) "SEC" means the United States Securities and Exchange Commission.
(l) "Securities Act" means the Securities Act of 1933, as amended,
or any successor statute, and the rules and regulations of the SEC promulgated
thereunder.
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2. Piggyback Registration. If the Company at any time proposes to
register any of its Common Stock or any other of its common equity securities,
including any security convertible into or exchangeable for any of its common
equity securities (collectively, "Other Securities") under the Securities Act
(other than a registration described in paragraph (c) of this Section), whether
or not for sale for its own account, in a manner which would permit registration
of Registrable Securities for sale for cash to the public under the Securities
Act, it will each such time give prompt written notice to the Holders of its
intention to do so at least 20 business days prior to the anticipated filing
date of the registration statement relating to such registration. Such notice
shall offer Holders the opportunity to include in such registration statement
any or all of the Registrable Securities owned by each such Holder. Upon the
receipt of the Company's notice (which request shall specify the number of
Registrable Securities intended to be disposed of and the intended method of
disposition thereof), the Company shall effect, in the manner set forth in
Section 4, in connection with the registration of the Other Securities, the
registration under the Securities Act of all Registrable Securities which
Company has been so requested to register, to the extent required to permit the
disposition (in accordance with such intended methods thereof) of the
Registrable Securities so requested to be registered, provided that:
(a) if at any time after giving written notice of its intention to
register other securities and prior to the effective date of such registration,
the Company shall determine for any reason not to register or to delay
registration of such securities, the Company may, at its election, give written
notice of such determination to the Holders and, thereupon, (A) in the case of a
determination not to register, the Company shall be relieved of its obligation
to register any Registrable Securities in connection with such registration and
(B) in the case of a determination to delay such registration, the Company shall
be permitted to delay registration of any Registrable Securities requested to be
included in such registration for the same period as the delay in registering
such Other Securities;
(b) if the registration referred to in the first sentence of this
Section 2 is to be an underwritten primary registration on behalf of the
Company, and the managing underwriter advises the Company in writing (with a
copy to the Holders) that, in such firm's good faith opinion, such offering
would be materially and adversely affected by the inclusion therein of the
Registrable Securities requested to be included therein, the Company shall
include in such registration: (1) first, all securities Company proposes to sell
for its own account ("Company Securities"), (2) second, up to the full number of
Registrable Securities held by Lender (or its successor, or permitted
transferees or assignees) (the "Newcourt Holders") requested to be included in
such registration, (3) third, up to the full number of Registerable Securities
held by the Non-Newcourt Shareholders requested to be included in such
registration, and (4) fourth, other securities, if any, requested to be included
therein by the holders thereof (the "Other Holders"), in excess of the number or
dollar amount of securities the Company proposes to sell which, in the
good-faith opinion of the managing underwriter, can be so sold without so
materially and adversely affecting such offering (and, if less than the full
number of such Registrable Securities in either clause (2) or clause (3),
allocated pro rata among the Holders of such Registrable Securities subject to
such clause on the basis of the number of securities requested to be registered
in such registration by each such Holder which is subject to such clause); and
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(c) the Company shall not be required to effect any registration of
Registrable Securities under this Section 2 incidental to the registration of
any of its securities in connection with mergers, acquisitions, exchange offers,
subscription offers, dividend reinvestment plans or stock option or other
executive or employee benefit or compensation plans.
3. Expenses, Underwriting Discounts, Commissions and Fees. The Company
agrees to pay all Registration Expenses with respect to an offering pursuant to
Section 2 hereof, provided that, the Company shall have no obligation to pay any
underwriting discounts, commissions or fees (including, but not limited to, fees
for Holders' counsel) relating to Registrable Securities. All such underwriting
discounts, commissions and fees of each Holder shall be borne by that Holder.
4. Registration and Qualifications. If and whenever the Company is
required to use its reasonable best efforts to effect the registration of any
Registrable Securities under the Securities Act as provided in Section 2 hereof,
the Company shall:
(a) prepare and file a registration statement under the Securities Act
relating to the Registrable Securities to be offered as soon as practicable, but
in no event later than 30 days (45 days if the applicable registration form is
other than Form S-3 or a successor form thereto) after the date notice is given,
and use its reasonable best efforts to cause the same to become effective within
60 days after the date notice is given (90 days if the applicable registration
form is other than Form S-3 or a successor form thereto);
(b) prepare and file with the SEC 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 90 days (or,
in the case of an underwritten offering, such shorter time period as the
underwriters may require);
(c) furnish to the Holders and to any underwriter of such Registrable
Securities such number of conformed copies of such registration statement and of
each such amendment and supplement thereto (in each case including all
exhibits), such number of copies of the prospectus included in such registration
statement (including each preliminary prospectus and any summary prospectus), in
conformity with the requirements of the Securities Act, and such other
documents, as the Holders or such underwriter may reasonably request in order to
facilitate the public sale of the Registrable Securities, and a copy of any and
all transmittal letters or other correspondence to, or received from the SEC or
any other governmental agency or self-regulatory body or other body having
jurisdiction (including any domestic or foreign securities exchange) relating to
such offering;
(d) use its reasonable best efforts to register or qualify all
Registrable Securities covered by such registration statement under the
securities or blue sky laws of such jurisdictions as may be necessary to offer
and sell the Registrable Securities in those jurisdictions, and use its
reasonable best efforts to obtain all appropriate registration, permits and
consents required in connection therewith, and do any and all other acts and
things which may be necessary or advisable to enable the Holders or any such
underwriter to consummate the disposition in such jurisdictions of its
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Registrable Securities covered by such registration statement; provided that the
Company shall not for any such purpose be required to register or qualify
generally to do business as a foreign corporation in any jurisdiction wherein it
is not so qualified, or to subject itself to taxation in any such jurisdiction,
or to consent to general service of process in any such jurisdiction;
(e) (i) furnish an opinion of counsel for the Company addressed to the
underwriters and the Holders and dated the date of the closing under the
underwriting agreement (if any) (or if such offering is not underwritten, dated
the effective date of the registration statement), and (ii) furnish a letter
addressed to the Holders, if permissible under applicable accounting practices,
and signed by the independent public accountants who have audited the Company's
financial statements included in such registration statement, in each such case
covering substantially the same matters with respect to such registration
statement (and the prospectus included therein) as are customarily covered in
opinions of issuer's counsel and in accountants' letters delivered to
underwriters in underwritten public offerings of securities and such other
matters as the Holders may reasonably request and, in the case of such
accountants' letter, with respect to events subsequent to the date of such
financial statements;
(f) immediately notify each Holder of Registrable Securities included
in such registration (each a "Selling Holder") in writing (i) at any time when a
prospectus relating to a registration pursuant to Section 2 or 3 hereof is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of any material fact or omits to
state any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, and (ii) of any request by the SEC or any other regulatory body
or other body having jurisdiction in respect of any amendment of or supplement
to any registration statement or other document relating to such offering, and
in either such case (i) or (ii) at the request of the Holders prepare and
furnish to the Holders a reasonable number of copies of a supplement to or an
amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus
shall not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they are made, not
misleading;
(g) furnish unlegended certificates representing ownership of
the Registrable Securities being sold in such denominations as shall be
requested by the Holders or the underwriters; and
(h) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the SEC relating to the registration and
distribution of the Registrable Securities, and take all other reasonable steps
necessary and appropriate to effect all registrations in the manner contemplated
by this Agreement.
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5. Underwriting; Due Diligence.
(a) If requested by the underwriters for any underwritten offering of
Registrable Securities pursuant to a registration requested under this
Agreement, the Company shall enter into an underwriting agreement with such
underwriters for such offering, such agreement to contain such representations
and warranties by the Company and such other terms and provisions as are
customarily contained in underwriting agreements with respect to secondary
distribution, including, without limitation, indemnities and contribution
substantially to the effect and to the extent provided in Section 7 hereof and
the provision of opinions of counsel and accountants' letters to the effect and
to the extent provided in Section 5(e) hereof. The Selling Holders on whose
behalf the Registrable Securities are to be distributed by such underwriters
shall be parties to any such underwriting agreement and the representations and
warranties by, and the other agreements on the part of, the Company to and for
the benefit of such underwriters, shall also be made to and for the benefit of
such Selling Holders. Such underwriting agreement shall also contain such
representations and warranties by the Selling Holders on whose behalf the
Registrable Securities are to be distributed as are customarily contained in
underwriting agreements with respect to secondary distributions.
(b) In the event that any registration pursuant to Section 2 shall
involve, in whole or in part, an underwritten offering, Company may require the
Registrable Securities requested to be registered pursuant to Section 2 to be
included in such underwriting on the same terms and conditions as shall be
applicable to the other securities being sold through underwriters under such
registration. If requested by the underwriters for such underwritten offering,
the Selling Holders on whose behalf the Registrable Securities are to be
distributed shall enter into an underwriting agreement with such underwriters,
such agreement to contain such representations and warranties by the Selling
Holders and such other terms and provisions as are customarily contained in
underwriting agreements with respect to secondary distributions, including
without limitation, indemnities and contribution substantially to the effect and
to the extent provided in Section 6 hereof. Such underwriting agreement shall
also contain such representations and warranties by Company and such other
person or entity for whose account securities are being sold in such offering as
are customarily contained in underwriting agreements with respect to secondary
distributions.
(c) In connection with the preparation and filing of each registration
statement registering Registrable Securities under the Securities Act, the
Company shall give the Holders and the underwriters, if any, and their
respective counsel and accountants, such reasonable and customary access to its
books and records and such opportunities to discuss the business of the Company
with its officers and the independent public accountants who have certified the
Company's financial statements as shall be necessary, in the opinion of the
Holders and such underwriters or their respective counsel, to conduct a
reasonable investigation within the meaning of the Securities Act.
6. Indemnification and Contribution.
(a) In the case of each offering of Registrable Securities made
pursuant to this Agreement, the Company agrees to indemnify and hold harmless
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each Holder, its officers and directors, each underwriter of Registrable
Securities so offered and each person, if any, who controls any of the foregoing
persons within the meaning of Section 15 of the Securities Act, from and against
any and all claims, liabilities, losses, damages, expenses and judgments, joint
or several, to which they or any of them may become subject, under the
Securities Act or otherwise, including any amount paid in settlement of any
litigation commenced or threatened, and shall promptly reimburse them, as and
when incurred, for any reasonable legal or other expenses incurred by them in
connection with investigating any claims and defending any actions, insofar as
such losses, claims, damages, liabilities or actions shall arise out of, or
shall be based upon, any untrue statement or alleged untrue statement of a
material fact contained in the registration statement (or in any preliminary or
final prospectus included therein, or any amendment thereto or supplement
thereto, or in any document incorporated by reference therein, or any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading); provided,
however, that the Company shall not be liable to a particular Holder in any such
case to the extent that any such loss, claim, damage, liability or action arises
out of, or is based upon, any untrue statement or alleged untrue statement, or
any omission, if such statement or omission shall have been made in reliance
upon and in conformity with information relating to such Holder furnished to the
Company in writing by or on behalf of such Holder specifically for use in the
preparation of the registration statement (or in any preliminary or final
prospectus included therein) or any amendment thereof or supplement thereto.
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of a Holder and shall survive the transfer of
such securities. The foregoing indemnity agreement is in addition to any
liability which the Company may otherwise have to each Holder, its officers and
directors, underwriters of the Registrable Securities or any controlling person
of the foregoing; provided, further, that, as to any underwriter or any person
controlling any underwriter, this indemnity does not apply to any loss,
liability, claim, damage or expense arising out of or based upon any untrue
statement or alleged untrue statement or omission or alleged omission in any
preliminary prospectus if a copy of a prospectus was not sent or given by or on
behalf of an underwriter to such person asserting such loss, claim, damage,
liability or action at or prior to the written confirmation of the sale of the
Registrable Securities as required by the Securities Act and such untrue
statement or omission had been corrected in such prospectus.
(b) In the case of each offering made pursuant to this Agreement, each
Holder of Registrable Securities included in such offering, by exercising its
registration rights hereunder, agrees to indemnify and hold harmless the
Company, its officers and directors and each person, if any, who controls any of
the foregoing (within the meaning of Section 15 of the Securities Act), from and
against any and all claims, liability, losses, damages, expenses and judgments,
joint or several, to which they or any of them may become subject, under the
Securities Act or otherwise, including any amount paid in settlement of any
litigation commenced, or threatened, and shall promptly reimburse them, as and
when incurred, for any legal or other expenses incurred by them in connection
with investigating any claims and defending any actions, insofar as any such
losses, claims, damages, liabilities or actions shall arise out of, or shall be
based upon, any untrue statement or alleged untrue statement of a material fact
contained in the registration statement (or in any preliminary or final
prospectus included therein) or any amendment thereof or supplement thereto, or
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any omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, but
in each case only to the extent that such untrue statement of a material fact is
contained in, or such material fact is omitted from, information relating to
such Holder furnished in writing to the Company by or on behalf of such Holder
specifically for use in the preparation of such registration statement (or in
any preliminary or final prospectus included therein). The foregoing indemnity
is in addition to any liability which such Holder may otherwise have to the
Company, or any of its directors, officers or controlling persons; provided,
however, that, as to any underwriter or any person controlling any underwriter,
this indemnity does not apply to any loss, liability, claim, damage or expense
arising out of or based upon any untrue statement or alleged untrue statement or
omission or alleged omission in any preliminary prospectus if a copy of a
prospectus was not sent or given by or on behalf of an underwriter to such
person asserting such loss, claim, damage, liability or action at or prior to
the written confirmation of the sale of the Registrable Securities as required
by the Securities Act and such untrue statement or omission had been corrected
in such prospectus. In no event, however, shall a Holder be required to pay
pursuant to this Section 6(b) an amount in the aggregate in excess of the net
proceeds received by such Holder in connection with the sale of Registrable
Securities in the offering which is the subject of such loss, claim, damage or
liability.
(c) Procedure for Indemnification. Each party indemnified under
paragraph (a) or (b) of this Section 6 shall, promptly after receipt of notice
of any claim or the commencement of any action against such indemnified party in
respect of which indemnity may be sought, notify the indemnifying party in
writing of the claim or the commencement thereof; provided that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have to an indemnified party on account of the indemnity agreement contained
in paragraph (a) or (b) of this Section 7, except to the extent the indemnifying
party was actually prejudiced by such failure, and in no event shall relieve the
indemnifying party from any other liability which it may have to such
indemnified party. If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein, and, to the extent
that it wishes, jointly with any other similarly notified indemnifying party to
assume the defense thereof with counsel reasonably satisfactory to the
indemnified party. After notice from the indemnifying party to the indemnified
party of its election to assume the defense of such claim or action, the
indemnifying party shall not be liable to the indemnified party under this
Section 7 for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than reasonable
costs of investigation; provided that each indemnified party, its officers and
directors, if any, and each person, if any, who controls such indemnified party
within the meaning of the Securities Act, shall have the right to employ
separate counsel reasonably approved by the indemnifying party to represent them
if the named parties to any action (including any impleaded parties) include
both such indemnified party and an indemnifying party or an affiliate of an
indemnifying party, and such indemnified party shall have been advised by
counsel either (i) that there may be one or more legal defenses available to
such indemnified party that are different from or additional to those available
to such indemnifying party or such affiliate or (ii) a conflict may exist
between such indemnified party and such indemnifying party or such affiliate,
and in that event the fees and expenses of one such separate counsel for all
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such indemnified parties shall be paid by the indemnifying party. An indemnified
party will not enter into any settlement agreement which is not approved by the
indemnifying party, which approval shall not to be unreasonably withheld. The
indemnifying party may not agree to any settlement of any such claim or action
which provides for any remedy or relief other than monetary damages for which
the indemnifying party shall be responsible hereunder, without the prior written
consent of the indemnified party, which shall not be unreasonably withheld, and
any such settlement agreement shall contain a complete and unconditional release
from liability of each indemnified party. Notwithstanding the foregoing, if at
any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated
by this Section 7, the indemnifying party agrees that it shall be liable for any
settlement effected without its written consent if (i) such settlement is
entered into more than 30 business days after receipt by such indemnifying party
of the aforesaid request and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior to the
date of settlement. In any action hereunder as to which the indemnifying party
has assumed the defense thereof with counsel reasonably satisfactory to the
indemnified party, the indemnified party shall continue to be entitled to
participate in the defense thereof, with counsel of its own choice, but, except
as set forth above, the indemnifying party shall not be obligated hereunder to
reimburse the indemnified party for the costs thereof. In all instances, the
indemnified party shall cooperate fully with the indemnifying party or its
counsel in the defense of each claim or action.
If the indemnification provided for in this Section 6 shall for any
reason be unavailable to an indemnified party in respect of any loss, claim,
damage or liability, or any action in respect thereof, referred to herein, then
each indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, in such
proportion as shall be appropriate to reflect the relative fault of the
indemnifying party on the one hand and the indemnified party on the other with
respect to the statements or omissions which resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative fault shall be determined by reference to
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
indemnifying party on the one hand or the indemnified party on the other, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission, but not by
reference to any indemnified party's stock ownership in Company. In no event,
however, shall a Holder be required to contribute in excess of the amount of the
net proceeds received by such Holder in connection with the sale of Registrable
Securities in the offering which is the subject of such loss, claim, damage or
liability. The amount paid or payable by an indemnified party as a result of the
loss, claim, damage or liability, or action in respect thereof, referred to
above in this paragraph shall be deemed to include, for purposes of this
paragraph, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim. 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.
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7. Rules 144 and 145. Company shall take such measures and file such
information, documents and reports as shall be required by the SEC as a
condition to the availability of Rules 144 and 145 (or any successor
provisions).
8. No Transfer of Registration Rights.
(a) Holders may not transfer any portion of their rights under this
Agreement except that Holders may transfer such rights to transferees who agree
in writing to the terms and conditions of this Agreement.
(b) No transfer of registration rights pursuant to this Section shall
be effective unless Company has received written notice of an intention to
transfer at least 10 days prior to Holder's successor entering into a binding
agreement to transfer Registrable Securities. Such notice need not contain
proposed terms or name a proposed transferee. On or before the time of the
transfer, Company shall receive a written notice stating the name and address of
any transferee and identifying the amount of Registrable Securities with respect
to which the rights under this Agreement are being transferred and the nature of
the rights to transferred.
(c) After any such transfer, Holder shall retain its rights under this
Agreement with respect to all other Registrable Securities owned by Holder.
(d) Upon the request of Holder's successor, Company shall execute a
Registration Rights Agreement with such transferee or a proposed transferee
substantially similar to this Agreement.
9. Miscellaneous.
(a) Injunctions. Each party acknowledges and agrees that irreparable
damage would occur in the event that any of the provisions of this Agreement was
not performed in accordance with its specific terms or was otherwise breached.
Therefore, each party shall be entitled to an injunction or injunctions to
prevent breaches of the provisions of this Agreement and to enforce specifically
the terms and provisions hereof in any court having jurisdiction, such remedy
being in addition to any other remedy to which such party may be entitled at law
or in equity. Each party hereby irrevocably waives trial by jury.
(b) Severability. If any term or provision of this Agreement is held by
a court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms and provisions set forth herein shall remain in full
force and effect and shall in no way be affected, impaired or invalidated, and
each of the parties shall use its reasonable best efforts to find and employ an
alternative means to achieve the same or substantially the same result as that
contemplated by such term or provision.
(c) Further Assurances. Subject to the specific terms of this
Agreement, each of the parties hereto shall make, execute, acknowledge and
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deliver such other instruments and documents, and take all such other actions,
as may be reasonably required in order to effectuate the purposes of this
Agreement and to consummate the transactions contemplated hereby.
(d) Waivers, etc. No failure or delay on the part of either party (or
the intended third-party beneficiaries referred to herein) in exercising any
power or right hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. No
modification or waiver of any provision of this Agreement nor consent to any
departure therefrom shall in any event be effective unless the same shall be in
writing and signed by an authorized officer of each of the parties, and then
such waiver or consent shall be effective only in the specific instance and for
the purpose for which given.
(e) Entire Agreement. This Agreement contains the final and complete
understanding of the parties with respect to its subject matter. This Agreement
supersedes all prior agreements and understandings between the parties, whether
written or oral, with respect to the subject matter hereof.
(f) Counterparts. For the convenience of the parties, this Agreement
may be executed in any number of counterparts, each of which shall be deemed to
be an original but all of which together shall be one and the same instrument.
Any facsimile transmission of a signed counterpart of this Agreement shall be
deemed to be an original counterpart and all signatures appearing thereon shall
be deemed to be originals.
(g) Amendment. This Agreement may be amended only by a written
instrument duly executed by an authorized officer of each of the parties.
(h) Notices. Unless expressly provided herein, all notices, claims,
certificates, requests, demands and other communications hereunder shall be in
writing and shall be deemed to be duly given (i) when personally delivered or
(ii) if mailed, registered or certified mail, postage prepaid, return receipt
requested, on the date the return receipt is executed or the letter refused by
the addressee or its agent or (iii) if sent by overnight courier which delivers
only upon the signed receipt of the addressee, on the date the receipt
acknowledgment is executed or refused by the addressee or its agent:
(i) if to Xxxxxx X. Xxxxxxxx:
RealMed Corporation
Suite 350
00000 X. Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxx
Facsimile Number: (000) 000-0000
11
(ii) if to Xxxx X. Xxxxxx:
RealMed Corporation
Suite 350
00000 X. Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxx X. Xxxxxx
Facsimile Number: (000) 000-0000
(iii) if to JLT:
Conseco Companies
00000 X. Xxxxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxx
Facsimile Number: (000) 000-0000
(iv) if to Gemplus SCA:
Avenue du Pic de Bertange
X.X. 000
00000 Xxxxxxx Xxxxx
Xxxxxx
Attn: Legal Dept.
Facsimile Number: 011-33-4-42-36-59-27
with copies to:
Gemplus Corp.
Xxxxx 000
0 Xxxxxx Xxxxx
Xxxxxxx Xxxx, Xxxxxxxxxx 00000-0000
Attn: Legal Dept.
Facsimile Number: (000) 000-0000
(v) if to Gemplus Corp.:
Xxxxx 000
0 Xxxxxx Xxxxx
Xxxxxxx Xxxx, Xxxxxxxxxx 00000-0000
Attn: Legal Dept.
Facsimile Number: (000) 000-0000
(vi) if to West Plains Investment, Inc.:
x/x Xxxxxx & Xxxxxxxx
0 Xxxxxx Xxxxx
00000 Xxxxx, Xxxxxx
Attn: Xxxxx Xxxxx
Facsimile Number: 011-331-56-791029
12
(vii) if to Finno SCA:
x/x Xxxxxx & Xxxxxxxx
0 Xxxxxx Xxxxx
00000 Xxxxx, Xxxxxx
Attn: Xxxxx Xxxxx
Facsimile Number: 011-331-56-791029
(viii) If to Candel & Partners:
0 Xxxxxx Xxxxx
00000 Xxxxx, Xxxxxx
Attn: Xxxxx Xxxxx
Facsimile Number: 011-331-56-791029
(ix) if to Xxxxx Xxxxx:
0 Xxxxxx Xxxxx
00000 Xxxxx, Xxxxxx
Facsimile Number: 011-331-56-791029
(x) if to the Lender:
Newcourt Financial USA Inc.
Xxx Xxxxxxxx Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000-0000
Attn: Xxxxxxx X. Xxxxxxxxx
Facsimile Number: (000) 000-0000
with copies to:
Xxxx X. Xxxxxxx
Xxxxxx & Xxxxxxx, PC
4000 Bank Xxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Facsimile Number: (000) 000-0000
13
(xi) if to the Company:
RealMed Corporation
Suite 350
00000 X. Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxx, Chief Executive Officer
Facsimile Number: (000) 000-0000
with copies to:
Xxxxxx X. Xxxxx
Xxxxx & Xxxxxxx
Suite 2700
000 X. Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000-0000
Facsimile Number: (000) 000-0000
(vi) if to a successor, transferee or assignee, Holder of
Registrable Securities, to the address provided by such
Holder;
or to such other address as may have previously furnished to the other party in
writing in the manner set forth above.
(i) GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED
BY THE INTERNAL LAWS OF THE STATE OF INDIANA.
(j) Assignment; Beneficiaries. Except as provided herein, the parties
may not assign their rights under this Agreement. The Company may not delegate
its obligations under this Agreement. Notwithstanding the foregoing, it is
expressly understood, intended and agreed by the parties hereto that this
Agreement is intended to benefit the Holders and that each of the Holders,
together with such Holder's permitted successors, assigns and transferees, shall
be a beneficiary of the respective rights, obligations, duties, privileges and
responsibilities under this Agreement and shall be entitled to enforce the
provisions hereof as though such Holder were a party hereto.
(k) Headings. The headings in this Agreement are for purposes of
convenience of reference only, shall not be deemed to constitute a part of this
Agreement and shall not be considered in construing the terms of this Agreement.
(l) Gender. Wherever the context shall so require, all words in the
masculine gender shall be deemed to include the feminine or neuter gender; all
singular words shall include the plural; and, all plural words shall include the
singular.
14
(m) Construction. This Agreement shall not be strictly construed
against any party.
(n) Attorneys' Fees. In the event of any litigation among any of the
parties to this Agreement regarding the matters governed hereby or the
enforcement hereof, the losing party shall pay to the prevailing party all
reasonably expenses and costs, including reasonable attorneys' fees, incurred by
the prevailing party in connection with such litigation.
15
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above written.
GEMPLUS SCA GEMPLUS CORP.
By: /s/ Xxxxxxx Xxxxx By: /s/ Xxxx XxXxxxxxxx
Xxxxxxx Xxxxx, CFO Xxxx XxXxxxxxxx, VP and General Counsel
Printed Name, Title Printed Name, Title
WEST PLAINS INVESTMENT, INC. FINNO SCA
By: /s/ Xx. Xxxxxxx Xxxxxxx By: /s/ Xxxxx Xxxxx
Xx. Xxxxxxx Xxxxxxx, Director Xxxxx Xxxxx, General Manager
Printed Name, Title Printed Name, Title
CANDEL & PARTNERS JLT, LP
By: /s/ Xxxxx Xxxxx By: /s/ Xxxxxx X. Xxxx
Xxxxx Xxxxx, CEO Xxxxxx X. Xxxx, General Partner
Printed Name, Title Printed Name, Title
________________________________
Xxxxx Xxxxx
(Signatures continued on next page)
(Signatures continued from preceding page)
/s/ Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx
/s/ Xxxx X. Xxxxxx
Xxxx X. Xxxxxx
NEWCOURT FINANCIAL USA INC.
By: /s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx, Executive Vice President
REALMED CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx, President
