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EXHIBIT 10.7
AMERICAN PHYSICIAN PARTNERS, INC.
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is made as of the 1~, 1996, by and
between American Physician Partners, Inc., a Delaware corporation (the
"Company"), and each other person or entity executing this Agreement.
RECITALS
WHEREAS, certain investors (the "Investors") have purchased
Convertible Promissory Notes of the Company (the "Notes") in connection with
the sale by the Company and the purchase by the Investors of Notes in a private
placement thereof by the Company (the "Private Placement");
WHEREAS, the Company and the Investors desire to provide for certain
arrangements with respect to the registration of shares of Common Stock of the
Company, issued upon conversion of the Notes held by the Investors as provided
in this Agreement:
NOW, THEREFORE, in consideration of the mutual promises and agreements
contained herein and for other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the Company and the Investors
hereby agree as follows:
1. Registration Rights. The Company covenants and agrees as follows:
1.1 Definitions. For purposes of this Paragraph 1:
(a) The term "register", and "registered", and "registration" refer to
a registration effected by preparing and filing a registration
statement or similar document in compliance with the Securities Act of
1933, as amended (the "Securities Act")and the declaration or ordering
of effectiveness of such registration statement or document;
(b) The term "Registrable Securities" means (1) the shares of Common
Stock issued or issuable upon conversion of the shares of Notes and (2)
any Common Stock of the Company issued as (or issuable upon the
conversion or exercise of any warrant, right or other security which is
issued as) a dividend or other distribution with respect to, or in
exchange for or in replacement of, such Notes or Common Stock,
excluding in all cases, however, any Registrable Securities sold by a
person in a transaction in which his rights under this Section 1 are
not assigned or pursuant to an effective registration statement or to
the public pursuant to an exemption from registration requirements
under the Securities Act;
(c) The number of shares of "Registrable Securities then outstanding"
shall be determined by the number of shares of Common Stock outstanding
which are Registrable Securities, and the number of shares of Common
Stock issuable pursuant to conversion of all outstanding Notes.
(d) The term "Holder" means any person owning or having the right to
acquire Registrable Securities or any assignee thereof in accordance
with Section 1.13 hereof; and
(e) The term "Form S-3" means such form under the Securities Act as in
effect on the date hereof or any registration form under the Securities
Act subsequently adopted by the Securities and Exchange Commission
("SEC") which permits inclusion or incorporation of substantial
information by reference to other documents filed by the Company with
the SEC.
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1.2 Request for Registration.
(a) If the Company shall receive at any time one year or more after
the effective date of the Company's first underwritten public offering
of shares of Common Stock pursuant to a registration statement in which
the aggregate gross proceeds to the Company equal or exceeds
$10,000,000 (the "Initial Public Offering") and prior to September 30,
2001, a written request from the Holders of more than fifty percent
(50%) of the Registrable Securities then outstanding that the Company
file a registration statement under the Securities Act covering the
registration of at least fifty percent (50%) of the Registrable
Securities then outstanding, then the Company shall promptly give
written notice of such request to all Holders and shall, subject to the
limitations of subsection 1.2 (b), effect as soon as practicable the
registration under the Securities Act of all Registrable Securities
which the Holders request to be registered within thirty (30) days of
the mailing of such notice by the Company in accordance with Section
2.5.
(b) If the Holders initiating the registration request hereunder
("Initiating Holders") intend to distribute the Registrable Securities
covered by their request by means of an underwriting, they shall so
advise the Company as a part of their request made pursuant to this
Section 1.2 and the Company shall include such information in the
written notice referred to in subsection 1.2(a). The underwriter will
be selected by a majority in interest of the Initiating Holders and
approved by the Company, which approval shall not unreasonably be
withheld. In such event, the right of any Holder to include his
Registrable Securities in such registration shall be conditioned upon
such Holder's participation in such underwriting (unless otherwise
mutually agreed by a majority in interest of the Initiating Holders and
such Holder) to the extent provided herein. All Holders proposing to
distribute their securities through such underwriting shall (together
with the Company as provided in subsection 1.4(e)) enter into an
underwriting agreement in customary form with the underwriter or
underwriters selected for such underwriting by a majority in interest
of the Initiating Holders. Notwithstanding any other provision of this
Section 1.2, if the underwriter advises the Initiating Holders in
writing that marketing factors require a limitation of the number of
shares to be underwritten, then the Initiating Holder shall so advise
all Holders of Registrable Securities that may be included in the
underwriting that such number of Registrable Securities to be included
shall be allocated among all such Holders thereof, including the
Initiating Holders, in proportion (as nearly as practicable) to the
amount of Registrable Securities of the Company owned by each Holder;
provided, however, that the number of shares of Registrable Securities
to be included in such underwriting shall not be reduced unless all
other securities are first entirely excluded from the underwriting.
(c) The Company is obligated to effect only one (1) such registration
pursuant to this Section 1.2.
(d) Notwithstanding the foregoing, if the Company shall furnish to
Holders requesting a registration statement pursuant to this Section
1.2 a certificate signed by the President of the Company stating that
in the good faith judgment of the Board of Directors of the Company it
would be seriously detrimental to the Company and its shareholders for
such registration statement to be filed and it is therefore essential
to defer the filing of such registration statement, the Company shall
have the right to defer taking any action with respect to such filing
for a period of not more than 90 days after receipt of the request of
the Initiating Holders; provided, however, that the Company may not
utilize this right more than once in any twelve month period.
1.3 Company Registration.
(a) If (but without any obligation to do so) at any time one year or
more after the Initial Public Offering and prior to September 30, 2001,
the Company proposes to register (including for this purpose a
registration effected by the Company for shareholders other than the
Holders) any of its stock or other securities under the Securities Act
in connection with the public offering of such securities solely for
cash (other than a registration relating solely to the sale of
securities to participants in a Company stock plan, a registration
statement relating to a merger, a registration statement on Form S-4 or
a registration on any
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form which does not include substantially the same information as would
be required to be included in a registration statement covering the
sale of the Registrable Securities), the Company shall, at such time,
promptly give each Holder written notice of such registration. Upon
the written request of each Holder given within thirty (30) days after
mailing of such notice by the Company in accordance with Section 2.5,
the Company shall, subject to the provisions of Section 1.8, cause to
be registered under the Securities Act all of the Registrable
Securities that each such Holder has requested to be registered.
(b) The Company's obligations pursuant to subsection 1.3(a) above
shall apply only to the first two (2) Company Registrations described
in subsection 1.3(a).
1.4 Obligations of the Company. Whenever required under this Paragraph 1
to effect the registration of any Registrable Securities, the Company
shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best efforts to
cause such registration statement to become effective and, upon the
request of the Holders of a majority of the Registrable Securities
registered thereunder, keep such registration statement effective for
up to one hundred twenty (120) days for the purpose of selling all
stock or securities registered with the SEC.
(b) Prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection with
such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement.
(c) Furnish to the Holders such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements
of the Securities Act, and such other documents as they may reasonably
request in order to facilitate the disposition of Registrable
Securities owned by them.
(d) Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably requested by
the Holders, provided that the Company shall not be required in
connection therewith or as a condition thereto to qualify to do
business or to file a general consent to service of process in any such
states or jurisdictions.
(e) In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter or such offering. Each
Holder participating in such underwriting shall also enter into and
perform its obligations under such an agreement.
(f) Notify each Holder of Registrable Securities covered by 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 as a result of which the prospectus included 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 the light of the circumstances then existing.
(g) Furnish, at the request of any Holder requesting registration of
Registrable Securities pursuant to this Paragraph 1, on the date that
such Registrable Securities are delivered to the underwriters for sale
in connection with a registration pursuant to this Paragraph 1 if such
securities are being sold through underwriters, or, if such securities
are not being sold through underwriters on the date that the
registration statement with respect to such securities becomes
effective, (i) an opinion dated such date of the counsel representing
the Company for the purposes of such registration, in form and
substance as is customarily given to underwriters in an underwritten
public offering, addressed to the underwriters, if any, and to the
Holders requesting registration of Registrable Securities and (ii) a
"cold comfort" letter dated such date
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from the independent certified public accountants of the Company, in
form and substance as is customarily given by independent certified
public accountants to underwriters in an underwritten public offering,
addressed to the underwriters, if any, and to the Holders requesting
registration of Registrable Securities.
1.5 Furnish Information.
(a) It shall be a condition precedent to the obligations of the
Company to take any action pursuant to this Section 1 with respect to
the Registrable Securities of any selling Holder that such Holder shall
furnish to the Company such information regarding itself, the
Registrable Securities held by it, and the intended method of
disposition of such securities as shall be required to effect the
registration of such Holder's Registrable Securities.
(b) The Company shall have no obligation with respect to any
registration requested pursuant to Section 1.2 or Section 1.12 if, due
to the operation of subsection 1.5(a), the number of shares or the
anticipated aggregate offering price of the Registrable Securities to
be included in the registration does not equal or exceed the number of
shares or the anticipated aggregate offering price required to
originally trigger the Company's obligation to initiate such
registration as specified in subsection 1.2(a) or subsection
1.12(b)(2), whichever is applicable.
1.6 Expenses of Demand Registration. All expenses other than underwriting
discounts and commissions incurred in connection with registrations,
filings, or qualifications pursuant to Section 1.2, including without
limitation all registration, filing and qualification fees, printers' and
accounting fees, fees and disbursements of counsel for the Company, and the
reasonable fees and disbursements of one counsel for the selling Holders
shall be borne by the Company; provided, however, that the Company shall
not be required to pay for any expenses of any registration proceeding
begun pursuant to Section 1.2 if the registration request is subsequently
withdrawn at the request of the Holders of a majority of the Registrable
Securities to be registered (in which case all Participating Holders shall
bear such expenses), unless the Holders of a majority of the Registrable
Securities agree to forfeit their right to demand registration pursuant to
Section 1.2; provided further, however, that if at the time of such
withdrawal, the Holders have learned of a material adverse change in the
condition, business, or prospects of the Company from that known to the
Holders at the time of their request and have withdrawn the request with
reasonable promptness following disclosure by the Company of such material
adverse change, then the Holders shall not be required to pay any of such
expenses and shall retain their rights pursuant to Section 1.2. Fees and
disbursements of counsel and accountants for the selling Holders and any
other expenses incurred by the selling Holders not expressly included above
shall be borne by the selling Holders.
1.7 Expenses of Company Registration. The Company shall bear and pay all
expenses incurred in connection with any registration, filing or
qualification of Registrable Securities with respect to all registrations
pursuant to Section 1.3 for each Holder (which right may be assigned as
provided in Section 1.13), including without limitation all registration,
filing, and qualification fees, printers and accounting fees relating or
apportionable thereto and the fees and disbursements of one counsel for the
selling Holders selected by them, but excluding underwriting discounts and
commissions relating to Registrable Securities.
1.8 Underwriting Requirements. In connection with any offering involving
an underwriting of shares of the Company's capital stock, the Company shall
not be required under Section 1.3 to include any of the Holders' securities
in such underwriting unless they accept the terms of the underwriting as
agreed upon between the Company and the underwriters selected by it (or by
other persons entitled to select the underwriters), and then only in such
quantity as the underwriters determine in their sole discretion will not
jeopardize the success of the offering by the Company. If the total amount
of securities, including Registrable Securities, requested by shareholders
to be included in such offering exceeds the amount of securities sold other
than by the Company that the underwriters determine in their sole
discretion is compatible with the success of the offering, then the Company
shall be required to include in the offering only that number of such
securities, including Registrable
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Securities, which the underwriters determine in their sole discretion will
not jeopardize the success of the offering (the securities so included to
be apportioned pro rata among the selling shareholders according to the
total amount of securities entitled to be included therein owned by each
selling shareholder or in such other proportions as shall mutually be
agreed to by such selling shareholders) but in no event shall (i) the
amount of securities, including Registrable Securities and all other
securities the holders of which have similar rights, of the selling
shareholders included in the offering be reduced below thirty percent (30%)
of the total amount of securities included in such offering, or (ii)
notwithstanding (i) above, any shares being sold by a shareholder
exercising a demand registration right similar to that granted in Section
1.2 be excluded from such offering. For purposes of the preceding
parenthetical concerning apportionment of any selling shareholder which is
a holder of Registrable Securities and which is a partnership or
corporation, the partners, retired partners and shareholders of such
holder, or the estates and family members of any such partners and retired
partners and any trusts for the benefit of any of the foregoing persons
shall be deemed to be a single "selling shareholder", and any pro-rata
reduction with respect to such "selling shareholder" shall be based upon
the aggregate amount of shares carrying registration rights owned by all
entities and individuals included in such "selling shareholder", as defined
in this sentence.
1.9 Delay of Registration. No Holder shall have any right to obtain or
seek any injunction restraining or otherwise delaying any such registration
as a result of any controversy that might arise with respect to the
interpretation or implementation of this Paragraph 1.
1.10 Indemnification. In the event any Registrable Securities are
included in a registration statement under this Paragraph 1:
(a) To the extent permitted by law, the Company will indemnify and
hold harmless each Holder, any underwriter (as defined in the
Securities Act) for such Holder and each person, if any, who controls
such Holder or underwriter within the meaning of the Securities Act or
the Securities and Exchange Act of 1934, as amended (the "1934 Act"),
against any losses, claims, damages, or liabilities (joint or several)
to which they may become subject under the Securities Act, or the 1934
Act or other federal or state law, insofar as such losses, claims,
damages, or liabilities (or actions in respect thereof) arise out of or
are based upon any of the following statements, omissions or violations
(collectively a "Violation:): (i) any untrue statement or alleged
untrue statement of a material fact contained in such registration
statement, including any preliminary prospectus or final prospectus
contained therein or any amendments or supplements thereto, (ii) 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, or (iii) any violation or alleged violation by the Company
of the Securities Act, the 1934 Act, any state securities law or any
rule or regulation promulgated under the Securities Act, or the 1934
Act or any state securities law; and the Company will pay to each such
Holder, underwriter or controlling person, as incurred, any legal or
other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the indemnity agreement contained in
this subsection 1.10(a) shall not apply to amounts paid in settlement
of any such loss, claim, damage, liability, or action if such
settlement is effected without the consent of the Company (which
consent shall not be unreasonably withheld), nor shall the Company be
liable in any such case for any such loss, claim, damage, liability, or
action to the extent that it arises out of or is based upon a Violation
which occurs in reliance upon and in conformity with written
information furnished expressly for use in connection with such
registration by any such Holder, underwriter or controlling person.
(b) To the extent permitted by law, each selling Holder will indemnify
and hold harmless the Company, each of its directors, each of its
officers who has signed the registration statement, each person, if
any, who controls the Company within the meaning of the Securities Act,
any underwriter, any other Holder selling securities in such
registration statement and any controlling person of any such
underwriter or other Holder, against any losses, claims, damages, or
liabilities (joint or several) to which any of the foregoing persons
may become subject, under the Securities Act, or the 1934 Act or other
federal or state law, insofar as such
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losses, claims, damages, or liabilities (or actions in respect thereto)
arise out of or are based upon and in conformity with written
information furnished by such Holder expressly for use in connection
with such registration; and each such Holder will pay, as incurred, any
legal or other expenses reasonably incurred by any person intended to
be indemnified pursuant to this subsection 1.10(b), in connection with
investigating or defending any such loss, claim, damage, liability, or
action; provided, however, that the indemnity agreement contained in
this subsection 1.10(b) shall not apply to amounts paid in settlement
of any such loss, claim, damage, liability or action if such settlement
is effected without the consent of the Holder, which consent shall not
be unreasonably withheld; provided that in no event shall any indemnity
under this subsection 1.10(b) exceed the gross proceeds from the
offering received by such Holder.
(c) Promptly after receipt by an indemnified party under this Section
1.10 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in
respect thereof is to be made against any indemnifying party under this
Section 1.10, deliver to the indemnifying party a written notice of the
commencement thereof and the indemnifying party shall have the right to
participate in, and, to the extent the indemnifying party so desires,
jointly with any other indemnifying party similarly noticed, assume the
defense thereof with counsel mutually satisfactory to the parties;
provided, however, that an indemnified party (together with all other
indemnified parties which may be represented without conflict by one
counsel) shall have the right to retain one separate counsel, with the
fees and expenses to be paid by the indemnifying party, 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 such indemnified proceeding. The failure
to deliver written notice to the indemnifying party within a reasonable
time of the commencement of any such action, if prejudicial to its
ability to defend such action, shall relieve such indemnifying party of
any liability to the indemnified party under this Section 1.10, but the
omission to deliver written notice to the indemnifying party will not
relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 1.10.
(d) If the indemnification provided for in this Section 1.10 is held
by a court of competent jurisdiction to be unavailable to an
indemnified party with respect to any loss, liability, claim, damage,
or expenses referred to therein, then the indemnifying party, in lieu
of indemnifying such indemnified party hereunder, shall contribute to
the amount paid or payable by such indemnified party as a result of
such loss, liability, claim, damage, or expense in such proportion as
it appropriate to reflect the relative fault of the indemnifying party
on the one hand and of the indemnified party on the other in connection
with the statements or omissions that resulted in such loss, liability,
claim, damage, or expense as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of
the indemnified party shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material
fact or the omission to state a material fact relates to information
supplied by the indemnifying party or by the indemnified party and the
parties' relative intent, knowledge, access to information, and
opportunity to correct or prevent such statement or omission.
(e) Notwithstanding the foregoing, to the extent that the provisions
on indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public
offering are in conflict with the foregoing provisions, the provisions
in the underwriting agreement shall control.
(f) The obligations of the Company and Holders under this Section 1.10
shall survive the completion of any offering of Registrable Securities
in a registration statement under this Paragraph 1, and otherwise.
1.11 Reports Under Securities Exchange Act of 1934. With a view to making
available to the Holders the benefits of Rule 144 promulgated under the Act
and any other rule or regulation of the SEC that may at any time permit a
Holder to sell securities of the Company to the public without registration
or pursuant to a registration on Form S-3, the Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in SEC Rule
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144, at all times after ninety (90) days after the effective date of
the Initial Public Offering filed by the Company for the offering of
its securities to the general public;
(b) take such action as is necessary to enable the Holders to utilize
Form S-3 for the sale of their Registrable Securities;
(c) file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and 1934
Act; and
(d) furnish to any Holder, so long as the Holder owns any Registrable
Securities, forthwith upon request (i) a written statement by the
Company that it has complied with the reporting requirements of SEC
Rule 144 (at any time after ninety (90) days following the effective
date of the Initial Public Offering), the Securities Act and the 1934
Act (at any time after it has become subject to such reporting
requirements), or that it qualifies as a registrant who securities may
be resold pursuant to Form S-3 (at any time after it so qualifies),
(ii) a copy of the most recent annual or quarterly report of the
Company and such other reports and documents so filed by the Company,
and (iii) such other information as may be reasonably requested in
availing any Holder of any rule or regulation of the SEC which permits
the selling of any such securities without registration or pursuant to
such form.
1.12 Form S-3 Registration. In case the Company shall receive from any
Holder or Holders a written request or requests that the Company effect a
registration on Form S-3 and any related qualification or compliance with
respect to all or a part of the Registrable Securities owned by such Holder
or Holders, the Company will:
(a) promptly give written notice of the proposed registration, and any
related qualification or compliance, to all other Holders; and
(b) as soon as practicable, effect such registration and all such
qualifications and compliances as may be so requested and as would
permit or facilitate the sale and distribution of all or such portion
of such Holder's or Holders' Registrable Securities as are specified in
such request, together with all or such portion of the Registrable
Securities of any other Holder or Holders joining in such request as
are specified in a written request given within 15 days after receipt
of such written notice from the Company; provided, however, that the
Company shall not be obligated to effect any such registration,
qualification, or compliance, pursuant to this Section 1.12: (1) if
Form S-3 is not available for such offering by the Holders; (2) if the
Holders, together with the holders of any other securities of the
Company entitled to inclusion in such registration, propose to sell
Registrable Securities and such other securities (if any) at an
aggregate price to the public (net of any underwriters' discounts or
commissions) of less than $250,000; (3) if the Company shall furnish to
the Holders a certificate signed by the President of the Company
stating that in the good faith judgment of the Board of Directors of
the Company, it would be seriously detrimental to the Company and its
shareholders for such Form S-3 registration to be effected at such
time, in which event the Company shall have the right to defer the
filing of the Form S-3 registration statement for a period of not more
than 90 days after receipt of the request of the Holder or Holders
under this Section 1.12; provided, however, that the Company shall not
utilize this right more than once in any twelve month period; (4) if
the Company has, within the twelve (12) month period preceding the date
of such request, already effected a registration on Form S-3 for the
Holders pursuant to this Section 1.12; (5) in any particular
jurisdiction in which the Company would be required to qualify to do
business or to execute a general consent to service of process in
effecting such registration, qualification, or compliance; (6) if the
Company has previously effected two (2) such registrations; or (7) if
it is to be effected after September 30, 2001.
(c) Subject to the foregoing, the Company shall file a registration
statement covering the Registrable Securities and other securities so
requested to be registered as soon as practicable after receipt of the
request or requests of the Holders. All expenses incurred in
connection with a registration requested
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pursuant to this Section 1.12, including (without limitation) all
registration, filing, qualification, printing and accounting fees and
the reasonable fees and disbursements of counsel of the Company shall
be borne by the Company. Registrations effected pursuant to this
Section 1.12 shall not be counted as demands for registration or
registrations effected pursuant to Section 1.2 or Section 1.3,
respectively.
1.13 Assignment of Registration Rights. The rights to cause the Company to
register Registrable Securities pursuant to this Paragraph 1 may be
assigned (but only with all related obligations) by a Holder to a
transferee or assignee of such securities provided the Company is within a
reasonable time after such transfer furnished with written notice of the
name and address of such transferee or assignee and the securities with
respect to which such registration rights are being assigned; and provided,
further, that such assignment shall be effective only if immediately
following such transfer the further disposition of such securities by the
transferee or assignee is restricted under the Securities Act.
1.14 Limitation on Subsequent Registration Rights. From and after the date
of this Agreement, the Company shall not, without the prior written consent
of the Holders of a majority of the outstanding Registrable Securities,
enter into any agreement with any holder or prospective holder of any
securities of the Company which would allow such holder or prospective
holder (a) to include such securities in any registration filed under
Section 1.2 hereof, unless under the terms of such agreement, such holder
or prospective holder may include such securities in any such registration
only to the extent that the inclusion of his securities will not reduce the
amount of the Registrable Securities of the Holders which is included or
(b) to make a demand registration which could result in such registration
statement being declared effective prior to the first anniversary of the
effective date of the Initial Public Offering.
1.15 "Market Stand-Off" Agreement. Each Investor hereby agrees that,
during the period of duration specified by the Company and an underwriter
of common stock or other securities of the Company, following the effective
date of a registration statement of the Company filed under the Securities
Act, it shall not, to the extent requested by the Company and such
underwriter, directly or indirectly sell, offer to sell, contract to sell
(including, without limitation, any short sale), grant any option to
purchase or otherwise transfer or dispose of (other than to donees who
agree to be similarly bound) any securities of the Company held by it at
any time during such period except common stock included in such
registration; provided however, that:
(a) such agreement shall be applicable only to the first such
registration statement of the Company which covers common stock (or
other securities) to be sold on its behalf to the public in an
underwritten offering; and
(b) all officers and directors of the Company and all other persons
with registration rights (whether or not pursuant to this Agreement)
enter into similar agreements.
In order to enforce the foregoing covenant, the Company may impose
stop-transfer instructions with respect to the Registrable Securities
of each Investor (and the shares or securities of every other person
subject to the foregoing restriction) until the end of such period.
1.16 Termination of Registration Rights. No Holder shall be entitled to
exercise any right provided for in this Section 1 after September 30, 2001.
2. Miscellaneous.
2.1 Successors and Assigns. Except as otherwise provided herein, the terms
and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties
(including transferees of the Notes or the Registrable Securities).
Nothing in this Agreement, express or implied, is intended to confer upon
any party other than the parties hereto or their respective successors and
assigns any rights, remedies, obligations, or liabilities under or by
reason of this Agreement, except as expressly provided
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in this Agreement.
2.2 Governing Law. This Agreement shall be governed by and construed under
the laws of the State of Delaware without giving effect to principles of
conflicts of laws.
2.3 Counterparts. 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.
2.4 Titles and Subtitles. The titles and subtitles used in this Agreement
are used for convenience only and are not to be considered in construing or
interpreting this Agreement.
2.5 Notices. Unless otherwise provided, any notice required or permitted
under this Agreement shall be given in writing and shall be deemed
effectively given upon personal delivery to the party to be notified or
upon deposit with the United States Post Office, by registered or certified
mail, postage prepaid and addressed to the party to be notified at the
address indicated for such party on the signature page hereto, or at such
other address as such party may designate by ten (10) days advance written
notice to the other parties.
2.6 Amendments and Waivers. Any term of this Agreement may be amended and
the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the
holders of a majority of the Registrable Securities then outstanding,
except that this Agreement may be amended to include as parties hereto all
holders of Common Stock of the Company on the date hereof (the "Common
Holders") by a written instrument executed by the Company and each Common
Holder electing to be included as a party hereto. Any amendment or waiver
effected in accordance with this Section 2.7 shall be binding upon each
holder of any Registrable Securities then outstanding, each future holder
of all such Registrable Securities, and the Company.
2.7 Severability. If one or more provisions of this Agreement are held to
be unenforceable under applicable law, such provision shall be excluded
from this Agreement and the balance of the Agreement shall be interpreted
as if such provision were so excluded and shall be enforceable in
accordance with its terms.
2.8 Aggregation of Stock. All shares of Registrable Securities held or
acquired by affiliated entities or persons shall be aggregated together for
the purpose of determining the availability of any rights under this
Agreement.
2.9 Entire Agreement. This Agreement (including the Exhibits hereto, if
any) constitutes the full and entire understanding and agreement between
the parties with regard to the subjects hereof and thereof.
[SIGNATURE PAGE OF INVESTOR FOLLOWS ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first above written.
American Physician Partners, Inc.
By: ___________________________________
Xxxxxxx X. Xxxxxxx
President and Chief Executive Officer
Address: 00000 Xxxxx Xxxxxxx Xxxx
Xxxxx 000
Xxxxxx, XX 00000
INVESTOR:
________________________________________
[Type or Print Name]
By:_____________________________________
Print Title:____________________________
Address _______________________________
_______________________________
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