EXHIBIT 4.7
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT dated as of September 29, 1994, between
PHP HEALTHCARE CORPORATION, a Delaware corporation (the "Company"), and SHAMROCK
INVESTMENTS, a California partnership ("Shamrock").
RECITALS
1. Shamrock has entered into a Stock Purchase Agreement dated the
date hereof (the "Stock Purchase Agreement") under which it has acquired 100,000
shares of the Common Stock of the Company.
2. The Company and Shamrock therefore deem it to be in their
respective best interests to set forth the rights of Shamrock and certain other
holders of such shares of Common Stock of the Company in connection with public
offerings and sales of such shares.
NOW, THEREFORE, in consideration of the premises and mutual covenants
and obligations hereinafter set forth, and intending to be legally bound hereby,
the Company and Shamrock hereby agree as follows:
1. DEFINITIONS. For purposes of this Agreement:
(a) "Common Stock" shall mean the common stock, $.01 par value
per share, of the Company and any other securities into which or for which
such common stock has been converted or exchanged pursuant to a plan of
recapitalization, reorganization, merger, sale of assets, or otherwise.
(b) "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder.
(c) "Form S-3" means such form of registration statement under
the Securities Act on the date hereof or any registration form under the
Securities Act subsequently adopted by the SEC that permits the inclusion
or incorporation of substantial information by reference to other documents
filed by the Company with the SEC.
(d) "Holder" means Shamrock, so long as it holds any Registrable
Securities, and any person owning Registrable Securities who is a permitted
assignee under Section 11 of this Agreement.
(e) The terms "register," "registered," and "resignation" refer
to a registration effected by the preparation and filing of a Registration
Statement in compliance with the Securities Act, and the declaration or
ordering of effectiveness of such Registration Statement by the SEC.
(f) "Registrable Securities" shall mean the shares of Common
Stock acquired by Shamrock pursuant to the Stock Purchase Agreement or
owned by any subsequent Holder or Holders, and, in each case, all shares of
Common Stock 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, in exchange for, or in replacement of such
shares of Common Stock. The term"Registrable Securities" excludes, however,
any security (i) the sale of which has been effectively registered under
the Securities Act and which has been disposed of in accordance with a
Registration Statement, (ii) that has been sold by a Holder in a
transaction exempt from the registration statement and prospectus delivery
requirements of the Securities Act under Section 4(1) thereof (including,
without limitation, transactions pursuant to Rules 144 and 144A) such that
the further disposition of such securities by the transferee or assignee is
not restricted under the Securities Act, (iii) that have been sold by a
Holder in a transaction in which such Holder's rights under this Agreement
are not, or cannot be, assigned, or (iv) for which the registration rights
provided under this Agreement have expired pursuant to Section 14 of this
Agreement.
(g) "Registration Expenses" shall mean (i) registration,
qualification and filing fees; (ii) fees and expenses of compliance with
securities or blue sky laws (including reasonable fees and disbursements of
counsel in connection with blue sky qualifications of any Registrable
Securities being registered); (iii) printing expenses; (iv) fees and
disbursements of counsel for the Company and customary fees and expenses
for independent certified public accountants retained by the Company
(including the expenses of any comfort letters or costs associated with the
delivery by independent certified public accountants of comfort letters
customarily requested by underwriters); (v) fees and expenses of counsel
for the requesting Holders; (vi) fees and expenses of listing any
Registrable Securities on any securities exchange on which the Common Stock
is then listed; (vii) fees and disbursements of underwriters customarily
paid by issuers or sellers of securities; and (viii) any underwriting fees,
discounts or commissions attributable to the sale of any Registrable
Securities and any fees and expenses of underwriters' counsel; but
excluding all internal expenses of the Company, including without
limitation all salaries and expenses of officers and employees of the
Company performing legal or accounting duties.
(h) "Registration Statement" shall mean any registration
statement or similar document that covers any of the Registrable Securities
pursuant to the provisions of this Agreement, including the prospectus or
preliminary prospectus included therein, all amendments and supplements to
such Registration Statement, including post-effective amendments, all
exhibits to such Registration Statement and all material incorporated by
reference in such Registration Statement.
2
(i) "Rule 144" shall mean Rule 144 promulgated under the
Securities Act or any successor rule thereto.
(j) "Rule 144A" shall mean Rule 144A promulgated under the
Securities Act or any successor rule thereto.
(k) "SEC" shall mean the Securities and Exchange Commission.
(l) "Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
2. FORM S-3 REGISTRATION.
(a) After the date hereof, if the Company shall receive from the
Holder(s) of the Registrable Securities a written request that the Company
effect a registration on Form S-3 and any related qualification or compliance
with respect to any or all such Registrable Securities owned by such Holder(s),
the Company shall use its reasonable best efforts to 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 of the Registrable
Securities specified in such request.
(b) The Company shall not be obligated to effect any
registration, qualification or compliance pursuant to this Section 2 if Form S-3
is not available to the Company for such offering by the requesting Holder(s).
(c) The Company shall not be obligated to effect more than one
registration pursuant to this Section 2 and shall not be obligated to effect
more than one registration in any twelve-month period pursuant to this Section 2
or Section 3.
3. INCIDENTAL REGISTRATION. After the date hereof, if (but without
any obligation to do so) the Company proposes to register (including a
registration effected by the Company for shareholders other than the Holders)
any shares of Common Stock under the Securities Act in connection with the
public offering of such shares solely for cash on any form of Registration
Statement in which the inclusion of Registrable Securities is appropriate (other
than a registration (i) relating solely to the sale of securities to
participants in a Company stock plan, (ii) pursuant to a Registration Statement
on Form S-4 or Form S-8 (or any successor forms) or any form that does not
include substantially the same information, other than information relating to
the selling shareholders or their plan of distribution, as would be required to
be included in a registration statement covering the sale of Registrable
Securities, (iii) in connection with any dividend reinvestment or similar plan,
or (iv) for the sole purpose of offering securities to another entity or its
security holders in connection with the acquisition of assets or securities of
such entity or any similar transaction), the Company shall promptly give each
Holder written notice of such registration in the manner provided in Section 16
at least 30 days before the anticipated filing date of any such Registration
Statement. Upon the written request of any Holder given in the manner provided
in Section 16 within 15 days after the mailing of such notice by the Company,
the Company shall, subject to the provisions of Section 7 hereof, cause to be
registered under the Securities Act
3
all of the Registrable Securities that such Holder has so requested to be
registered. The Company shall not be required to proceed with, or maintain the
effectiveness of, any registration of its securities after giving notice herein
provided, and the right of any Holder to have Registrable Securities included in
such Registration Statement shall be conditioned upon participation in any
underwriting to the extent provided herein. The Company shall not be required to
include any Registrable Securities in such underwriting unless the Holders
thereof enter into an underwriting agreement in customary form and upon terms
and conditions agreed upon between the Company and the underwriter(s) (except as
to monetary obligations of the Holders not contemplated by Section 6 of this
Agreement), with the underwriter(s) selected by the Company. In the event that
the underwriter(s) shall advise the Company that marketing or other factors
require a limitation of the number of shares to be underwritten, then the
Company shall so advise all Holders of Registrable Securities that would
otherwise be underwritten pursuant hereto. The underwriter(s) may exclude some
or all of the Registrable Securities from such underwriting and the number of
Registrable Securities, if any, that may be included in the underwriting shall
be allocated among all Holders thereof in proportion (as nearly as practicable)
to the number of Registrable Securities which each Holder requested be included
in such registration. Nothing in this Section 3 is intended to diminish the
number of securities to be included by the Company in such underwriting. The
Company and the underwriter(s) selected by the Company shall make all
determinations with respect to the timing, pricing and other matters related to
the offering.
4. REGISTRATION PROCEDURE. Whenever required under this Agreement
to effect the registration of any Registrable Securities, the Company shall, as
expeditiously as reasonably practicable:
(a) Prepare and file with the SEC a new Registration Statement
with respect to such Registrable Securities and use its reasonable best
efforts to cause such registration statement to become effective, and keep
such Registration Statement effective for up to 90 days or such shorter
period as shall be required to sell all of the Registrable Securities
covered by such Registration Statement (except as provided in Section 3);
provided, however, that if such Registration Statement is on Form S-3 and
relates to a distribution by the Holders on a delayed or continuous basis
other than by means of an underwriting, the Company shall keep such
Registration Statement effective for the maximum period permitted for such
Registration Statement; provided further that no Registration Statement
need remain in effect after all Registrable Securities covered thereby have
been sold.
(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 of Registrable Securities to be
registered, without charge, such number of copies of a prospectus,
including a preliminary prospectus, and any amendment or supplement thereto
as they may reasonably request
4
and a reasonable number of copies of the then-effective Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules, all documents incorporated therein by reference
and all exhibits (including those incorporated by reference).
(d) Promptly after the filing of any document that is to be
incorporated by reference into a Registration Statement or prospectus,
provide copies of such document to the Holders of Registrable Securities
covered thereby and any underwriter.
(e) Use its reasonable 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, however, that the Company shall not be
required to qualify to do business or to file a general consent to service
of process in any such states or jurisdictions where it would not otherwise
be required to so qualify to do business or consent to service of process
or subject itself to taxation in any such jurisdiction.
(f) Cooperate with the Holders of Registrable Securities and
each underwriter participating in the disposition of such Registrable
Securities and their respective counsel in connection with any filings
required to be made with the National Association of Securities Dealers,
Inc.
(g) 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 underwriter(s) of such offering, with such terms
and conditions as the Company and the underwriter(s) may agree. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
(h) 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.
(i) Cause all Registrable Securities covered by the Registration
Statement to be listed on each securities exchange or automated quotation
system on which shares of the Company's Stock is then listed. If any of
such shares are not so listed, the Company shall cause such shares to be
listed on the securities exchange or automated quotation system as may be
reasonably requested by the holders of a majority of the Registrable
Securities being registered.
(j) In the case of an underwritten public offering, furnish, at
the request of any Holder requesting registration pursuant to this
Agreement, on the date
5
that such Registrable Securities are delivered to the underwriters for sale
in connection with a registration pursuant to this Agreement, (A) an
opinion of counsel representing the Company for the purposes of such
registration, and (B) a letter from independent certified public
accountants of the Company, in each case to be dated such date and to be in
form and substance as is customarily given by counsel or independent
certified public accountants, as the case may be, to underwriters in an
underwritten public offering, addressed to the underwriters.
(k) Permit a representative of any Holder of Registrable
Securities, any underwriter participating in any disposition pursuant to
such registration, and any attorney or accountant retained by such Holder
or underwriter, to participate, at each person's own expense, in the
preparation of the Registration Statement, and cause the Company's
officers, directors and employees to supply all information reasonably
requested by any such representative, underwriter, attorney or accountant
in connection with such registration; provided, however, that such
representatives, underwriters, attorneys or accountants enter into a
confidentiality agreement, in form and substance reasonably satisfactory to
the Company, prior to the release or disclosure of any such information.
Notwithstanding the foregoing, the Company may delay, suspend or withdraw any
registration or qualification of Registrable Securities required pursuant this
Agreement for a period not exceeding 120 days if the Company shall in good faith
determine that any such registration would adversely affect an offering or
contemplated offering of any securities of the Company or any other contemplated
material corporate event. In addition, the Company shall not be required to
register Registrable Securities within 12 months after the effective date of a
Registration Statement referred to in Section 3 pursuant to which the Holders
were afforded the opportunity to register Registrable Securities.
5. HOLDERS' OBLIGATION TO FURNISH INFORMATION. It shall be a
condition precedent to the obligations of the Company to take any action
pursuant to this Agreement with respect to any Registrable Securities that the
Holder of such securities 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.
Each Holder agrees that, upon receipt of any notice from the Company,
such Holder will forthwith discontinue disposition of Registrable Securities
pursuant to the then current prospectus until (i) such Holder is advised in
writing by the Company that a new Registration Statement covering the reoffer of
Registrable Securities has become effective under the Securities Act or (ii)
such Holder receives copies of a supplemented or amended prospectus contemplated
by Section 4 hereof, or until such Holder is advised in writing by the Company
that the use of the prospectus may be resumed. The Company shall use its
reasonable best efforts to limit the duration of any discontinuance of
disposition of Registrable Securities pursuant to this paragraph.
6. REGISTRATION EXPENSES. In the case of any demand registration on
Form S-3 pursuant to Section 2, the Company shall pay the fees and disbursements
of
6
counsel for the Company and customary fees and expenses for independent
certified public accountants retained by the Company (including the expenses of
any comfort letters or costs associated with the delivery by independent
certified public accountants of comfort letters customarily requested by
underwriters), and the requesting Holders shall pay their own expenses and shall
bear on a pro rata basis with the other requesting Holders all other
Registration Expenses relating to the Registrable Securities, provided, that the
holder of any other shares of Common Stock included in any such registration, or
the Company with respect to shares to be sold by the Company pursuant to such
registration, shall bear its incremental Registration Expenses. In the case of
any incidental registration pursuant to Section 3, the requesting Holders shall
pay their own expenses and shall bear on a pro rata basis with other requesting
Holders all incremental Registration Expenses, including, without limitation,
incremental registration and qualification fees and expenses (including
underwriters' fees, discounts and commissions), and all incremental costs and
disbursements (including legal fees and expenses), that result from the
inclusion of the Registrable Securities in such registration.
7. EFFECTIVENESS OF REGISTRATION. A registration requested pursuant
to Section 2 or Section 3 will not be deemed to have been effected if (i) the
registration statement has not been kept effective for the period required under
Section 4(a) of this Agreement or (ii) the offering of Registrable Securities
pursuant to such registration is interfered with by any stop order, injunction
or other order or requirement of the SEC or other governmental agency or court.
8. DELAY OF REGISTRATION. No Holder shall have any right to obtain
or seek an injunction restraining or otherwise delaying any registration of the
Company's securities as the result of any controversy that might arise with
respect to the interpretation or implementation of this Agreement.
9. INDEMNIFICATION AND CONTRIBUTION. In the event any Registrable
Securities are included in a Registration Statement pursuant to this Agreement:
(a) The Company will indemnify and hold harmless each Holder,
its directors, officers and employees and each person, if any, who
"controls" such Holder (within the meaning of the Securities Act) against
all losses, claims, damages, or liabilities, joint or several, or actions
in respect thereof to which such Holder or other person entitled to
indemnification hereunder may become subject under the Securities Act, or
otherwise, insofar as such losses, claims, damages, 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 such
Registration Statement, any related preliminary prospectus, or any related
prospectus or any amendment or supplement thereto, or arise out of, or are
based upon, the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse such Holder or other person
entitled to indemnification hereunder for any legal or other expenses
reasonably incurred by it in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
Company will not be so liable to the extent that any such loss, claim,
damage, liability or action arises out
7
of, or is based upon, an untrue statement or alleged untrue statement of a
material fact or an omission or alleged omission to state a material fact
in such Registration Statement, such preliminary prospectus, or such
prospectus, or any such amendment or supplement thereto in reliance upon,
and in conformity with, written information furnished to the Company by or
on behalf of a Holder or an underwriter specifically for use therein; and
provided further that the Company will not be liable, and this
indemnification agreement shall not apply, in any such case to the extent
that any such loss, claim, damage, liability or action is solely
attributable to the failure of such Holder (or underwriter or agent acting
on its behalf) to deliver a final prospectus (or amendment or supplement
thereto) that corrects a material misstatement or omission contained
in the preliminary prospectus (or final prospectus). The Company will also
indemnify underwriters, selling brokers, dealer managers and similar
securities industry professionals participating in the distribution, their
officers and directors and each person who "controls" such persons (within
the meaning of the Securities Act) to the same extent as provided above
with respect to the indemnification of the Holders, if so requested, except
with respect to information furnished in writing specifically for use in
any prospectus or Registration Statement by any selling Holders or any such
underwriters.
(b) With respect to written information furnished to the Company
by or on behalf of a Holder specifically for use in a Registration
Statement, any related preliminary prospectus, or any related prospectus or
any supplement or amendment thereto, such Holder will severally indemnify
and hold harmless the Company, and its directors, officers and employees
and each person, if any, who "controls" the Company (within the meaning of
the Securities Act) against any losses, claims, damages or liabilities,
joint or several, or actions in respect thereof, to which the Company or
such other person entitled to indemnification hereunder may become subject
under the Securities Act, or otherwise, insofar as such losses, claims,
damages, 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 such Registration Statement, such preliminary
prospectus, or such prospectus, or any such amendment or supplement
thereto, or arise out of, or are based upon, the omission or alleged
omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading; and such Holder
will reimburse the Company and such other persons for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action, in each case
to the extent, but only to the extent, that the same arises out of, or is
based upon, an untrue statement or alleged untrue statement of a material
fact or an omission or alleged omission to state a material fact in such
Registration Statement, such preliminary prospectus, or such prospectus or
any such amendment or supplement thereto in reliance upon, and in
conformity with, such written information. The Company shall be entitled to
receive indemnities from underwriters, selling brokers, dealer managers and
similar securities industry professionals participating in the
distribution, to the same extent as provided above with respect to the
information so furnished in writing by such persons specifically for
inclusion in any prospectus or Registration Statement. The Holder will also
indemnify underwriters, selling brokers, dealer managers and similar
8
securities industry professionals participating in the distribution, their
officers and directors and each person who "controls" such persons (within
the meaning of the Securities Act) to the same extent as provided above
with respect to the indemnification of the Company, if so requested.
(c) Promptly after receipt by an indemnified party of notice of any
claim or the commencement of any action, the indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party,
notify the indemnifying party in writing of the claim or the commencement
of that action; provided, however, that the failure to notify the
indemnifying party will not relieve it from any liability that it may have
to the indemnified party except to the extent it was actually damaged or
suffered any loss or incurred any additional expense as a result thereof.
If any such claim or action is brought against an indemnified party, and it
notifies the indemnifying party thereof, the indemnifying party will be
entitled to assume the defense thereof with counsel selected by the
indemnifying party and 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, (i) the
indemnifying party will not be liable to the indemnified party for any
legal or other expense subsequently incurred by the indemnified party in
connection with the defense thereof, (ii) the indemnifying party will not
be liable for the costs and expenses of any settlement of such claim or
action unless such settlement was effected with the written consent of
the indemnifying party or the indemnified party waived any rights to
indemnification hereunder in writing, in which case the indemnified party
may effect a settlement without such consent, and (iii) the indemnified
party will be obligated to cooperate with the indemnifying party in the
investigation of such claim or action; provided, however, that the Holders
and their respective controlling persons who may be subject to liability
arising out of any claim in respect of which indemnity may be sought by
such Holders against the Company may employ their own counsel if they have
been advised by counsel in writing that, in the reasonable judgment of such
counsel, it is advisable for such Holders and their controlling persons to
be represented by separate counsel due to the presence of conflicts of
interest, and in that event the fees and expenses of such separate counsel
will also be paid by the Company; provided that the Company shall not be
liable for the fees and expenses of more than one separate counsel at any
time for all such indemnified parties. An indemnifying party shall not,
without the prior written consent of the indemnified parties, settle,
compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or
action) unless such settlement, compromise or consent includes a release of
such indemnified party reasonably acceptable to such indemnified party from
all liability arising out of such claim, action, suit or proceeding or
unless the indemnifying party shall confirm in a written agreement
reasonably acceptable to such indemnified party, that notwithstanding any
federal, state or common law, such settlement, compromise or consent shall
not adversely affect the right of any indemnified party to indemnification
or contribution as provided in this Agreement.
9
(d) If for any reason the indemnification provided for in
Sections 10(a) or (b) is unavailable to an indemnified party or is
insufficient to hold it harmless as contemplated therein, then the
indemnifying party shall contribute to the amount paid or payable by the
indemnified party as a result of such loss, claim, damage, or liability in
such proportion as is appropriate to reflect not only the relative benefits
received by the indemnifying party and the indemnified party, but also the
relative fault of the indemnifying party and the indemnified party, as well
as any other relevant equitable considerations. 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.
(e) The obligations under this Section 10 shall survive the
completion of any offering of Registrable Securities in a Registration
Statement pursuant to this Agreement, and otherwise.
10. REPORTS UNDER EXCHANGE ACT. With a view to making available to
the Holders the benefits of Rule 144 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, the Company agrees to:
(a) Make and keep public information available, as those terms
are understood and defined in Rule 144; and
(b) Furnish to any Holder, so long as the Holder owns any
Registrable Securities, upon request (i) a written statement by the Company
as to its compliance with the reporting requirements of Rule 144 for the
most recent 90 days, the Securities Act and the Exchange Act, or as to its
qualification as a registrant whose securities may be resold pursuant to
Form S-3, (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.
11. ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the
Company to register Registrable Securities pursuant to this Agreement may be
assigned by Shamrock to Xxxxxxx X. Xxxxxx and Xxxxxxx X. Xxxxxxxxx; provided,
however, that (i) the Company is, promptly upon 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,
(ii) the transfer of such securities may be effected in accordance with all
applicable securities laws, (iii) immediately following such transfer the
further disposition of such securities by the transferee or assignee is
restricted under the Securities Act, and (iv) the transferee executes and agrees
to be bound by this Agreement, an executed counterpart of which shall be
furnished to the Company. In no event may the rights of Holders hereunder be
transferred or assigned to any other person.
10
12. AMENDMENT OF REGISTRATION RIGHTS. Any provision of this
Agreement may be amended or the observance thereof 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 Registrable Securities then outstanding. Any amendment or
waiver effected in accordance with this Section shall be binding upon each
Holder of any Registrable Securities, each future Holder of such securities
and the Company.
13. "MARKET STAND-OFF" AGREEMENT. Any Holder, if requested by the
Company or an underwriter of an underwritten public offering, agrees not to
sell, make any short sale of, loan, grant any option for the purchase of, or
otherwise transfer or dispose of any Common Stock held by such Holder (other
than Registrable Securities included in the registration) without the prior
written consent of the Company or such underwriter(s), as the case may be,
during a period of up to seven days prior to and 180 days following the
effective date of any underwritten registration of the Company's securities
effected pursuant to Section 2 or 3 hereof. Such agreement shall be in
writing in form satisfactory to the Company and such underwriter, and may be
included in the underwriting agreement. The Company may impose stop-transfer
instructions with respect to the securities subject to the foregoing
restriction until the end of the required stand-off period.
14. TERMINATION OF REGISTRATION RIGHTS. A Holder's registration
rights under this Agreement relating to such Registrable Securities shall
terminate on the date such Holder is able to dispose of all its shares of
Registrable Securities in any 90-day period pursuant to Rule 144. All
registration rights (except for rights previously exercised in connection
with an underwritten public offering pursuant to Section 3) of a Holder under
this Agreement shall terminate on the date on which all of such Holder's
shares of Registrable Securities can be sold pursuant to Rule 144(k).
15. INFORMATION CONFIDENTIAL. No Holder may use any confidential
information received by it pursuant to this Agreement in violation of the
Exchange Act or reproduce, disclose, or disseminate such information to any
other person (other than its employees or agents having a need to know the
contents of such information and its attorneys), except to the extent
reasonably related to the exercise of rights under this Agreement, unless such
information has been made available to the public generally (other than by
such recipient in violation of this Section 15) or such recipient is required
to disclose such information by a governmental body or regulatory agency or by
law in connection with a transaction that is not otherwise prohibited hereby.
16. NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, or air-courier guaranteeing overnight delivery:
(a) If to a Holder of Registrable Securities: Shamrock
Investments, 0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx
00000, Attention: Xxxxxxx X. Xxxxxx, Managing Partner (facsimile: (310)
551-3037), and thereafter at such other address as may be designated from
time to time by notice given in the manner provided in this Section 16.
11
(b) If to the Company: PHP Healthcare Corporation, 00000
Xxxxxxxx Xxxx Xxxxx, Xxxxxx, Xxxxxxxx 00000, Attention: General Counsel
(facsimile: (000) 000-0000), and thereafter at such other address as may be
designated from time to time by notice given in the manner provided in this
Section 16.
(c) All such notices and other communications shall be deemed
to have been delivered and received (i) in the case of personal delivery,
telex, telecopier or telegram, on the date of such delivery, (ii) in the
case of air courier, on the business day after the date when sent and (iii)
in the Case of mailing, on the third business day following such mailing.
(d) From time to time as the Company may request, each Holder
shall provide to the Company such evidence or documentation reasonably
satisfactory to the Company, in its sole discretion, certified by an
appropriate officer of such Holder, regarding the number of shares of
Common Stock beneficially owned by such Holder and its status as an
"affiliate" under the Securities Act.
17. SUCCESSORS AND ASSIGNS. Subject to the provisions of Section 11
hereof, this Agreement shall inure to the benefit of and be binding upon the
successors and permitted assigns of each of the parties.
18. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one of the same agreement.
19. HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
20. GOVERNING LAW. This Agreement shall be governed by and
constructed in accordance with the internal laws of the State of Delaware
without giving effect to conflicts of laws principles.
21. SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance,
is held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired
thereby.
22. ENTIRE AGREEMENT. This Agreement is intended by the parties as
a final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein. This Agreement supersedes
all prior agreements and understandings between the parties with respect to
such subject matter.
12
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement as of the date first written above.
PHP HEALTHCARE CORPORATION
By: /s/ Xxxx X. Xxxxx
--------------------------------------
Name: Xxxx X. Xxxxx
Title: Senior Executive Vice President
SHAMROCK INVESTMENTS
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing General Partner
13
