EXHIBIT 10.1
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (Agreement") is made and entered
into this 6th day of May, 2002, between XXXXXXX X. XXXXXXX and XXXXXXX
XXXXXXXX-XXXXXX, individually and collectively referred as "Shareholders", and
PROXYMED, INC., a Florida corporation (referred to as "ProxyMed").
As of the date first above written, Shareholders have each acquired
15,017 unregistered and restricted shares of ProxyMed Common Stock, par value
$.001 per share, pursuant to the terms of that Stock Purchase Agreement dated
this same date (the "SPA") (the shares referred to herein are collectively
referred to as the "Shares"). Pursuant to the terms of the SPA, ProxyMed agrees
to grant Shareholders certain registration rights with respect to the Shares,
all in accordance with the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the agreements contained herein and
other good and valuable consideration, the receipt of which are hereby
acknowledged, Shareholders, individually and collectively, and ProxyMed,
intending to be legally bound, hereby agree as follows:
1. REGISTRATION RIGHTS. ProxyMed, at its expense, will file on or
before May 6, 2003, with the Securities and Exchange Commission ("SEC") pursuant
to the Securities Act of 1933, as amended (the "Securities Act"), on Form S-3 or
its equivalent, a registration statement (the "Registration Statement") for a
total of one hundred percent (100%) of the Common Stock pro rata as to each of
the Shareholders. For avoidance of doubt, the Shareholder shall not have any
pre-emptive nor "piggy-back" registrations rights hereunder.
2. OBLIGATIONS OF PROXYMED. In connection with the filing of any the
Registration Statement with the SEC, ProxyMed shall:
(a) Use its reasonable best efforts to cause the Registration
Statement to remain effective until the earlier to occur of (i) 18 months from
the effective date of the Registration Statement; (ii) such time as the public
sale under the Registration Statement or other disposition of all of the Shares
has been consummated by the Shareholders, or (iii) such time as the Shares may
be sold without restriction as to volume under Rule 144 of the Securities Act.
Upon the occurrence of any of (i), (ii), or (iii) above, ProxyMed shall have no
further obligations under this Agreement;
(b) Prepare and file with the SEC such amendments and
supplements to the Registration Statement and the prospectus included therein as
may be necessary to keep the Registration Statement effective for the time
period contemplated by Section 2(a) hereof and to comply with the provisions of
the Securities Act and regulations of the SEC thereunder with respect to
disposition of the Shares during such period, in accordance with the intended
methods of disposition by the Shareholders as set forth in the Registration
Statement;
(c) Provide Shareholders with such reasonable number of copies
of the prospectus included in the Registration Statement (in preliminary and
definitive form) or
supplements thereto as may be reasonably required and such other documents as
Shareholders may reasonably request to facilitate the disposition of the Shares;
(d) Immediately notify the Shareholders, at any time during
which the Registration Statement remains effective in accordance with Section
2(a) hereof, upon becoming aware that the prospectus included in the
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, and at the request of the Shareholders, promptly
prepare and furnish to the Shareholders a reasonable number of copies of an
amended or supplemented prospectus as may be necessary so that, as thereafter
delivered to the purchasers of the Shares, such prospectus shall not include any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading
in light of the circumstances; and
(e) Use its best efforts to register or qualify the Shares to
be registered pursuant to this Agreement under the applicable securities or
"blue sky" laws of the jurisdiction in which the Shareholders are permanent
residents.
3. EXPENSES OF REGISTRATION. All expenses incurred in effecting the
registration of the Shares pursuant to the terms of this Agreement, including
all registration and filing fees, printing expenses, and fees and disbursements
of counsel for ProxyMed, shall be borne by ProxyMed, excluding underwriting
discounts or commissions attributable to the sale of the Shares and expenses
incurred by Shareholders for their own counsel or accountants.
4. SHAREHOLDERS INFORMATION. As a condition to complying with its
obligations under Section 1 of this Agreement, ProxyMed may require the
Shareholders to furnish ProxyMed with such information regarding the
Shareholders and the distribution of the Shares as ProxyMed may from time to
time reasonably request in writing.
5. SUSPENSION OF SALES. The Shareholders agrees that, upon receipt of
notice from ProxyMed of the happening of any event of the kind described in
Section 2(d) above, the Shareholders will forthwith discontinue disposition of
Shares pursuant to the Registration Statement until the Shareholders' receipt of
the copies of the supplemented or amended prospectus contemplated by Section
2(d) above, and if so directed by ProxyMed the Shareholders will deliver to
ProxyMed (at ProxyMed's expense) all copies, other than permanent file copies
then in the Shareholders' possession, of the prospectus covering the Shares
current at the time of receipt of such notice. In the event ProxyMed shall give
any such notice, the period mentioned in Section 2(a)(i) above shall be extended
by the number of days during the period from and including the date of the
giving of such notice pursuant to Section 2(d) above to and including the date
when the Shareholders shall have received the copies of the supplemented or
amended prospectus contemplated by Section 2(d) hereof.
6. RESTRICTION ON RESALE. Unless otherwise agreed to by ProxyMed,
Shareholders will not resell the Shares without (i) registration under the
Securities Act; (ii) compliance with Rule 144 promulgated under the Securities
Act, or (iii) receipt of an opinion of counsel for the Shareholders, acceptable
to ProxyMed, to the effect that an exemption from registration is
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available. All reasonable costs, fees and expenses of counsel for ProxyMed in
connection with review of such opinion shall be borne by ProxyMed.
7. RULE 144. If, after the expiration of the time period described in
Section 2(a)(i) hereof, Shareholders have not disposed of all of their Shares,
ProxyMed shall use its reasonable best efforts to facilitate the transfer of
Shares by Shareholders under Rule 144. ProxyMed's reasonable best efforts shall
include, assuming such Shareholders are qualified to rely on Rule 144, causing
ProxyMed's counsel to issue the necessary opinion letters to ProxyMed's transfer
agent to cause the Securities Act's restrictive legends to be removed from such
Shares.
8. TRANSFER OF REGISTRATION RIGHTS. The registration rights of the
Shareholders pursuant to this Agreement may not be transferred without the prior
written consent of ProxyMed. Any unauthorized transfers or assignments shall be
null and void and gives ProxyMed the right to terminate this Agreement
effectively immediately upon serving notice.
9. MISCELLANEOUS.
(a) AMENDMENTS AND WAIVERS. This Agreement may not be amended
without the written consent of each party hereto.
(b) SUCCESSORS AND ASSIGNS. None of the parties hereto shall
assign any of its rights or obligations under this Agreement without the express
written consent of the other party hereto. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
(c) NOTICES. All notices and other communications provided for
hereunder shall be given and shall be effective as provided in the SPA.
(d) DESCRIPTIVE HEADINGS. The headings in this Agreement are
for convenience of reference only and shall not limit or otherwise affect the
meaning of terms contained herein.
(e) COUNTERPART. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
(f) GOVERNING LAW. This Agreement shall be governed by and
shall be construed, interpreted and enforced in accordance with the laws of the
State of Florida.
(g) MERGER, ETC. If ProxyMed shall merge with or consolidate
with any other Person and, in connection with such merger or consolidation, all
or part of the Shares shall be changed into or exchanged for stock or other
securities of any other Person, then, in each such case, proper provision shall
be made so that such Person shall be bound by the provisions of this Agreement
and the term "ProxyMed" shall thereafter be deemed to refer to such Person. For
purposes hereof, the term "Person" shall mean any business entity.
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(h) ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof
and supersedes all prior negotiations, understandings, agreement, arrangements
and understandings, both oral and written, between the parties hereto with
respect to such subject matter.
(i) NO THIRD PARTY BENEFICIARY. Nothing expressed or implied
in this Agreement is intended, or shall be construed, to confer upon or give any
person, firm, corporation, partnership, association or other entity, other than
the parties hereto and their respective successors and permitted assigns, any
rights or remedies under or by reason of this Agreement.
(j) WAIVERS AND REMEDIES. The waiver by any of the parties
hereto of any other party's prompt and complete performance, or breach or
violation, of any provision of this Agreement shall not operate or be construed
as a waiver of any subsequent breach or violation, and the waiver by any of the
parties hereto to exercise any right or remedy which it may possess hereunder
shall not operate or be construed as a bar to the exercise of such right or
remedy by such party upon the occurrence of any subsequent breach or violation.
(k) SEVERABILITY. The invalidity of any. one or more of the
words, phrases, sentences, clauses, sections or subsections contained in this
Agreement shall not affect the enforceability of the remaining portions of this
Agreement or any part hereof, all of which are, inserted conditionally on their
being valid in law, and, in the event that any one or more of the words,
phrases, sentences, clauses, sections or subsections contained in Agreement
shall be declared invalid by a court of competent jurisdiction, this Agreement
shall be construed as if such invalid word or words, phrase or phrases, sentence
or sentences, clause or clauses, section or sections, or subsection or
subsections had not been inserted.
(l) BINDING EFFECT. This Agreement shall insure to the heirs
and legal representatives and successors of the parties hereto.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, each of the undersigned has caused this Agreement
to be executed on its behalf as of the date first written above.
PROXYMED, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx, Chief Financial Officer
SHAREHOLDERS:
/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
/s/ Xxxxxxx Xxxxxxxx-Xxxxxx
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Xxxxxxx Xxxxxxx-Xxxxxx
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