EXHIBIT 4.12
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is entered into as of November 3,
1999 by and among HealthGate Data Corp, a Delaware corporation (the "Company")
and Snap! LLC, a Delaware limited liability company (the "Holder").
WHEREAS, the Company and the Holder have entered into a Stock Purchase
Agreement of even date herewith (the "Purchase Agreement"); and
WHEREAS, the Company and the Holder wish to provide certain
arrangements with respect to the registration of shares of capital stock of the
Company under the Securities Act (as defined below);
NOW, THEREFORE, in consideration of the mutual promises and obligations
contained herein, the parties agree as follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following terms shall
have the following respective meanings:
"COMMISSION" means the Securities and Exchange Commission, or any other
Federal agency at the time administering the Securities Act.
"COMMON STOCK" means the Common Stock, $.01 par value, of the Company.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
or any similar Federal statute, and the rules and regulations of the Commission
issued under such Act, as they each may, from time to time, be in effect.
"REGISTRATION EXPENSES" means the expenses described in Section 4.
"REGISTRABLE SHARES" means (a) the shares of Common Stock issued or
issuable to the Holder pursuant to the Purchase Agreement, and (b) any other
shares of Common Stock issued in respect of such shares (because of stock
splits, stock dividends, reclassifications, recapitalization, or similar
events).
"REGISTRATION STATEMENT" means a registration statement filed by the
Company with the Commission for a public offering and sale of securities of the
Company, whether by the Company or any other holder of Common Stock or other
capital stock of the Company, (other than a registration statement on Form S-8
or Form S-4, or their successors, or any other form
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for a limited purpose, or any registration statement covering only securities
proposed to be issued in exchange for securities or assets of another
corporation).
"SECURITIES ACT" means the Securities Act of 1933, as amended, or any
similar Federal statute, and the rules and regulations of the Commission issued
under such Act, as they each may, from time to time, be in effect.
"SHARES" means shares of the Common Stock issued or issuable pursuant
to the Purchase Agreement.
2. REGISTRATION.
2.1. COMPANY REGISTRATION. Whenever the Company proposes to file a
Registration Statement (other than in connection with the Company's initial
public offering), it shall give prompt written notice to the Holder of its right
to participate in the offering (and in no event less than 20 days prior to the
anticipated date of effectiveness of the Registration Statement). Upon the
written request of the Holder given within 15 days after the Company provides
such notice, the Company shall use reasonable efforts to cause all Registrable
Shares which the Holder has requested to register to be registered under the
Securities Act pursuant to such Registration Statement. The Company shall have
the right to postpone or withdraw any registration effected pursuant to this
Section 2.1 without obligation to the Holder.
2.2. LIMITATIONS. In connection with any offering under this Section 2
involving an underwriting, the Company shall not be required to include any
Registrable Shares in such underwriting unless the Holder accepts the terms of
the underwriting as agreed upon between the Company and the underwriters
selected by it. The right of the Holder to include Registrable Shares in a
Registration Statement under this Section 2 shall be subject to the limitations,
including limitations on priority, set forth in the Company's registration
rights agreements existing as of the date hereof (each of which either has been
filed with the Commission as an exhibit to the Company's registration statement
or provided to Holder).
3. REGISTRATION PROCEDURES. Whenever the Company is required by the provisions
of this Agreement to effect the registration of any of the Registrable Shares
under the Securities Act, the Company shall, as expeditiously as possible:
3.1. FILING. Prepare and file with the Commission a Registration
Statement with respect to such Registrable Shares and use reasonable efforts to
cause that Registration Statement to become and remain effective;
3.2. AMENDMENTS AND SUPPLEMENTS Prepare and file with the Commission
any amendments and supplements to the Registration Statement and the prospectus
included in the Registration Statement as may be necessary to keep any
Registration Statement effective for a period of not less than 90 days from the
effective date;
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3.3. COPIES OF PROSPECTUS. Furnish to the Holder such reasonable
numbers of copies of the Registration Statement, each amendment and supplement
thereto, the prospectus included in such Registration Statement, including a
preliminary prospectus, in conformity with the requirements of the Securities
Act, and such other documents as the Holder may reasonably request in order to
facilitate the public sale or other disposition of the Registrable Shares;
3.4. BLUE SKY QUALIFICATION. Use its best efforts to register or
qualify the Registrable Shares covered by the Registration Statement under the
securities or Blue Sky laws of such jurisdictions as the Holder shall reasonably
request, and do any and all other acts and things that may be necessary or
advisable to enable Holder to consummate the public sale or other disposition in
such jurisdictions of the Registrable Shares; PROVIDED, HOWEVER, that the
Company shall not thereby be required to qualify as a foreign corporation or
execute a general consent to service of process in any jurisdiction;
3.5. NOTICE OF EVENTS. Notify Holder, at any time when a prospectus
relating to Registrable Shares is required to be delivered under the Securities
Act, of the happening of any event as a result of which the prospectus included
in the Registration Statement contains an untrue statement of a material fact or
omits any fact necessary to make the statements therein not misleading, and, at
the request of Holder, the Company will prepare a supplement or amendment to
such prospectus so that, as thereafter delivered to the purchasers of such
Registrable Shares, such prospectus will not contain an untrue statement of a
material fact or omit to state any fact necessary to make the statements therein
not misleading;
3.6. UNDERWRITTEN OFFERING. In the event that Registrable Shares are
sold pursuant to a Registration Statement in an underwritten offering, enter
into an underwriting agreement containing customary representations and
warranties with respect to the business and operations of the Company and
customary covenants and agreements to be performed by the Company, including
without limitation customary provisions with respect to indemnification by the
Company of the underwriters of such offering;
3.7. EARNINGS STATEMENT. Use reasonable 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 earnings statement of
the Company (in form complying with the provisions of Rule 158 promulgated under
the Securities Act) covering the period of at least 12 months beginning with the
first month following the effective date of the Registration Statement;
3.8. LISTING. Either list the Registrable Shares on a national
securities exchange or have them designated as national market securities by the
National Association of Securities Dealers, Inc.
("NASD");
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3.9. TRANSFER AGENT AND REGISTRAR. Provide a transfer agent and
registrar for all such Registrable Shares not later than the effective date of
such Registration Statement;
3.10. INSPECTION. Make available for inspection by Holder, any
underwriter participating in any disposition pursuant to this Agreement, and any
attorney, accountant or other agent retained by any such 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 Holder, or such underwriter, attorney,
accountant or agent in connection with such Registration Statement.
In connection with any Registration under Section 2 hereof, the Holder will
expeditiously supply the Company with all information and copies of all
documents reasonably necessary to effect such registration in compliance with
the Securities Act and the rules and regulations thereunder and shall otherwise
cooperate with the Company and its counsel in expediting the effectiveness of
any such registration.
If the Company has delivered preliminary or final prospectuses to the Holder and
after having done so the prospectus is amended to comply with the requirements
of the Securities Act, the Company shall promptly notify the Holder and, if
requested, the Holder shall immediately cease making offers of Registrable
Shares and shall return all prospectuses to the Company. The Company shall
promptly provide the Holder with revised prospectuses and, following receipt of
the revised prospectuses, the Holder shall be free to resume making offers of
the Registrable Shares.
The Holder shall furnish to the Company such information about the Holder and
the distribution proposed by the Holder as the Company may reasonably request in
writing and as shall be required in connection with any registration,
qualification or compliance referred to in this Section 3.
4. ALLOCATION OF EXPENSES. The Company shall pay the Registration Expenses for
all registrations pursuant to Section 2. For purposes of this Section, the term
"Registration Expenses" shall mean all expenses incurred by the Company in
complying with Section 2, including, without limitation, all registration and
filing fees, exchange or national market listing fees, all fees and expenses of
complying with securities or blue sky laws, all fees and expenses associated
with filings with the NASD, all printing expenses, fees and disbursements of
counsel for the Company and its independent public accountants, fees and
disbursements of one counsel for the selling Stockholders retained by
Stockholders holding a majority of the Registrable Shares included in a
registration and the expense of any special audits incident to or required by
any such registration, but excluding underwriting discounts and selling
commissions, fees of more than one counsel for the selling Stockholders and
other expenses incurred by the selling Stockholders that are not "Registration
Expenses" as defined in this Section. Such underwriting discounts, selling
commissions and other expenses shall be borne
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pro rata by the selling Stockholders in accordance with the number of their
Registrable Shares taken in the aggregate included in such registration.
5. INDEMNIFICATION.
5.1. COMPANY INDEMNIFICATION. In the event of any registration of any
of the Registrable Shares under the Securities Act pursuant to this Agreement,
the Company shall indemnify and hold harmless the Holder, its partners,
directors, officers and employees (which persons shall be deemed to be included
in the term seller in this Section 5.1), each underwriter of such Registrable
Shares and each other person, if any, who controls such seller or underwriter
within the meaning of the Securities Act or the Exchange 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,
the Exchange Act, state securities laws 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 Registrable Shares
were registered under the Securities Act, any preliminary prospectus or final
prospectus contained in the Registration Statement, or any amendment or
supplement to such Registration Statement, or arise out of or are based upon the
omission or alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and the
Company shall reimburse such seller, underwriter and each such controlling
person for any legal or any other expenses reasonably incurred by such seller,
underwriter or controlling person in connection with investigating or defending
any such loss, claim, damage, liability or action; PROVIDED, HOWEVER, that the
Company shall not be liable to any such seller, underwriter or controlling in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any untrue statement or omission made in such
Registration Statement, preliminary prospectus or prospectus, or any such
amendment or supplement, in reliance upon and in conformity with information
furnished to the Company, in writing, by or on behalf of such seller,
underwriter or controlling person specifically for use in the preparation
thereof.
5.2. SELLER INDEMNIFICATION. In the event of any registration of any of
the Registrable Shares under the Securities Act pursuant to this Agreement, the
Holder shall indemnify and hold harmless the Company, each of its directors and
officers and each underwriter (if any) and each person, if any, who controls the
Company or any such underwriter within the meaning of the Securities Act or the
Exchange Act, against any losses, claims, damages or liabilities, joint or
several, to which the Company, such directors and officers, underwriter or
controlling person may become subject under the Securities Act, Exchange Act,
state securities laws 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 a material fact contained in any
Registration Statement under which such Registrable Shares were registered under
the Securities Act, any preliminary prospectus or final prospectus contained in
the Registration Statement, or any amendment or supplement to the Registration
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Statement, or arise out of or are based upon any omission or alleged omission to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, if the statement or omission was made in
reliance upon and in conformity with information furnished in writing to the
Company by or on behalf of Holder, specifically for use in connection with the
preparation of such Registration Statement, prospectus, amendment or supplement;
PROVIDED, HOWEVER, that the obligations of Holder hereunder shall be limited to
an amount equal to the proceeds to the Holder of Registrable Shares sold as
contemplated herein.
5.3. NOTICE OF CLAIMS, ETC. Each party entitled to indemnification
under this Section 5 (the "Indemnified Party") shall give notice to the party
required to provide indemnification (the "Indemnifying Party") promptly after
such Indemnified Party has actual knowledge of any claim as to which indemnity
may be sought, and shall permit the Indemnifying Party to assume the defense of
any such claim or any litigation resulting therefrom; PROVIDED, that counsel for
the Indemnifying Party, who shall conduct the defense of such claim or
litigation, shall be approved by the Indemnified Party (whose approval shall not
be unreasonably withheld); and, PROVIDED, FURTHER, that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Section 5. The Indemnified
Party may participate in such defense at such party's expense; PROVIDED,
HOWEVER, that the Indemnifying Party shall pay such expense if representation of
such Indemnified Party by the counsel retained by the Indemnifying Party would
be inappropriate due to actual or potential differing interests between the
Indemnified Party and any other party represented by such counsel in such
proceeding. No Indemnifying Party, in the defense of any such claim or
litigation shall, except with the consent of each Indemnified Party, consent to
entry of any judgment or enter into any settlement that does not include as a
term thereof the giving by the claimant or plaintiff to such Indemnified Party
of a general release from all liability in respect of such claim or litigation,
and no Indemnified Party shall consent to entry of any judgment or settle such
claim or litigation without the prior written consent of the Indemnifying Party.
5.4. CONTRIBUTION. If for any reason the foregoing indemnification is
not available, or is insufficient to hold harmless an Indemnified Party, other
than by reason of the exceptions provided herein, then the Indemnifying Party
shall contribute to the amount paid or payable by the Indemnified Party as a
result of such losses, claims, damages or liabilities in such proportion as is
appropriate to reflect the relative fault of the Holder and the Company as well
as any other equitable considerations including the parties' relative knowledge
and access to information concerning the matter with respect to which any claim
is asserted and the opportunity to correct and prevent any such statement or
omission leading to such loss, claim, damage or liability (or actions in respect
thereof), but not including the relative benefits received by the Holder on the
one hand and the Company on the other; PROVIDED, HOWEVER, that in any such case
(i) the Holder of Registrable Shares will not be required to contribute except
to the extent and under such circumstances as the Holder would be required to
provide indemnification hereunder and then only in an amount not in excess of
the net proceeds to it of all Registrable Shares sold in the registration, and
(ii) no person guilty of fraudulent
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misrepresentation, within the meaning of Section 11(f) of the Securities Act,
shall be entitled to contribution from any person who is not so guilty.
5.5. No Investigation; Survival. The indemnification 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 will survive the
transfer of the Registrable Shares.
6. MISCELLANEOUS.
6.1. "STAND-OFF" AGREEMENT. In connection with any underwritten public
offering, if requested by the Company and the managing underwriter, the Holder
hereby agrees not to effect any public sale or distribution of any Registrable
Shares, nor engage in any transaction that would result in a public sale or
distribution of securities of the same class as the Registrable Shares for a
specified period of time not to exceed 180 days following the effective date of
a Registration Statement; PROVIDED, THAT this provision shall apply to the
Holder in connection with any Registration Statement other than the Company's
initial public offering only if Registrable Shares are included in such
offering. The Holder agrees to execute any lock-up agreement reasonably
requested by the managing underwriter to confirm this agreement. The Company may
impose stop-transfer instructions with respect to the Registrable Shares or
other securities subject to the foregoing restriction until the end of the
stand-off period.
6.2. RULE 144 REQUIREMENTS. With a view to making available to the
Holder the benefits of Rule 144 promulgated under the Securities Act and any
other rule or regulation of the Commission that may at any time permit such
stockholder to sell securities of the Company to the public without
registration, the Company agrees to use reasonable efforts to:
(a) make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act (at any time
after it has become subject to the reporting requirements of the Exchange Act);
(b) 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 (at any time after it has become subject to such reporting
requirements); and
(c) furnish to the Holder upon request a written statement by
the Company as to its compliance with the reporting requirements of said Rule
144 (at any time after 90 days after the closing of the first sale of securities
by the Company pursuant to a Registration Statement), and of the Securities Act
and the Exchange Act (at any time after it has become subject to such reporting
requirements), a copy of the most recent annual or quarterly report of the
Company, and such other reports and documents of the Company as such holder may
reasonably request
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to avail itself of any similar rule or regulation of the Commission allowing it
to sell any such securities without registration.
6.3. TRANSFER OF RIGHTS. This Agreement, and the rights and obligations
of the Holder hereunder, may not be assigned by the Holder without the prior
written consent of the Company.
6.4. GOVERNING LAW. This Agreement shall be governed in all respects by
the laws of The Commonwealth of Massachusetts without giving effect to the
conflict of laws principles.
6.5. ENTIRE AGREEMENT; AMENDMENT AND WAIVER. This Agreement constitutes
the full and entire understanding and agreement between the parties with regard
to the subject matter hereof. Neither this Agreement nor any term may be
amended, waived, discharged or terminated, except by a written instrument signed
by the Company and the Holder.
6.6. NOTICES. All notices and other communications required or
permitted under this Agreement shall be in writing and shall be deemed
effectively given upon personal delivery or five days after deposit with the
United States Post Office, by registered or certified mail, postage prepaid,
addressed to the Company at its principal office and to a Holder at its address
on the records maintained by the Company or at such other address as any party
may designate by ten days' prior written notice to the other party.
6.7. TITLES. The titles of the Sections of this Agreement are for
convenience of reference only and are not to be considered in construing this
Agreement.
6.8. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement under seal
as of the date first above written.
HEALTHGATE DATA CORP.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Chief Executive Officer
SNAP! LLC
By: /s/ Xxxxxx Xxxxxxx
------------------
Name: Xxxxxx Xxxxxxx
Title: Chief Operating Officer
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