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EXHIBIT 10.8
FORM OF REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Registration Agreement") is made
as of the _____ day of __________, 1996, by and between PHYSICIANS' SPECIALTY
CORP., a Delaware corporation ("PSC"), and ____________________________________
("Shareholder"). Capitalized terms not otherwise defined herein shall have the
meaning set forth in the Agreement among PSC, PSC Acquisition Corp. and
Shareholder of even date herewith (the "Agreement").
PSC and Shareholder hereby agree as follows:
1. Piggyback Registration Rights. If PSC at any time proposes to
register any of its Voting Common Stock $.001 par value per share ("PSC") for
its own or others' account under the Securities Act of 1933, as amended (the
"1933 Act") for an underwritten public offering for cash, other than a
registration relating to employee benefit plans, mergers, acquisitions,
exchange offer or dividend reinvestment plan, PSC will give Shareholder prompt
written notice of its intent to do so. Upon the written request of Shareholder
given within 30 days after receipt of such notice, PSC will use its best
efforts to cause to be included in such registration all of the PSC Common
Stock which Shareholder requests. For purposes of this Registration Agreement,
"PSC Common Stock" means any and all shares of PSC Stock transferred to
Shareholder in exchange for __________________________________________________
______________________________________ under the Agreement. Notwithstanding
the foregoing, if PSC is advised in writing in good faith by any managing
underwriter of the securities being offered pursuant to any registration
statement under this Section 1 that the number of shares to be sold by persons
other than PSC is greater than the number of such shares which can be offered
without adversely affecting the offering, PSC may reduce pro rata the number of
shares offered for the accounts of such persons (based upon the number of
shares requested to be registered by such persons) to a number deemed
satisfactory by such managing underwriter.
2. Registration Procedures. All expenses in connection with the
registrations under this Registration Agreement (including all registration,
filing, qualification, printer's, PSC's counsel and accounting fees, but
excluding underwriting commissions and discounts) shall be borne by PSC. In
connection with registrations under Section 1 hereof, PSC shall (i) use its
best efforts to prepare and file with the SEC, as soon as reasonably
practicable, a registration statement with respect to the PSC Common Stock and
use its best efforts to cause such registration to promptly become and remain
effective for a period of at least 120 days (or such shorter period during
which Shareholder shall have sold all PSC Common Stock he requested to be
registered); (ii) use its best efforts to register and qualify the PSC Common
Stock covered by such registration statement under applicable state securities
law as the Shareholder shall reasonably request for the distribution of the PSC
Common Stock; and (iii) take such other actions as are reasonable and
necessary to comply with the requirements of the 1933 Act and the regulations
thereunder.
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3. Underwriting Arrangement. In connection with each registration
pursuant to Section 1 hereof covering an underwritten public offering, PSC and
Shareholder agree to enter into a written agreement with the managing
underwriter in such form and containing such provisions as are customary in the
securities business for such an arrangement between such underwriter and
companies of PSC's size and investment stature, including indemnification.
4. Availability of Rule 144. PSC shall not be obligated to register
shares of PSC Common Stock held by the Shareholder at any time when the resale
provisions of Rule 144 promulgated under the 1933 Act are available to
Shareholder without limitation as to volume.
5. Market Standoff. In consideration of the granting to Shareholder of
the registration rights under this Registration Agreement, Shareholder agrees
that he will not sell, transfer or otherwise dispose of, including without
limitation through put or short sale arrangements, shares of PSC Common Stock
in the ten days prior to the effectiveness of any registration of PSC Stock for
sale to the public and for up to 180 days following the effectiveness of such
registration, provided that all directors, executive officers and holders of
more than five percent of the outstanding PSC Stock agree to the same
restrictions.
6. Successors and Assigns. Except as provided in Section 7, this
Registration Agreement and the rights of the parties hereunder may not be
assigned (except by operation of law) and shall be binding upon and shall inure
to the benefit of the parties hereto, their successors and permitted assigns,
and the heirs, devisees and legal representatives of Shareholder.
7. Assignment of Registration Rights. The rights to request PSC to
register PSC Common Stock pursuant to Section 1 hereof may be assigned by
Shareholder to a permitted transferee of the PSC Common Stock owned by the
Shareholder, and by such permitted transferee to a subsequent permitted
transferee, but only if such rights are transferred in connection with the sale
or other transfer of all the PSC Common Stock then held by Shareholder. Any
transferee to whom rights under this Registration Agreement are transferred
shall (i) as a condition to such transfer, deliver to PSC a written instrument
by which such transferee agrees to be bound by the obligations imposed upon
Shareholder under this Registration Agreement to the same extent as if she, he
or it were a Shareholder under this Registration Agreement and (ii) be deemed
to be Shareholder hereunder.
8. Indemnification and Contribution.
(a) Indemnification. In connection with any registration and/or sale of
any PSC Common Stock pursuant to this Registration Agreement, PSC shall, and
hereby does, indemnify and hold harmless Shareholder against any losses,
claims, damages or liabilities, joint or several (or actions in respect
thereof), to which Shareholder may be subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon (i) any untrue statement (or
alleged untrue statement) of any material fact contained in any registration
statement under which such securities were registered under the Securities Act
or offered for sale, any preliminary prospectus or final
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prospectus contained therein, or any summary prospectus issued in connection
with any securities being registered or offered for sale thereby, or any
amendment or supplement thereto, or any document incorporated by reference
therein, (ii) any omission (or alleged omission) to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading or (iii) any violation by PSC of the Securities Act or any Blue
Sky law, or any rule or regulation promulgated under the Securities Act or any
Blue Sky law, or any other law applicable to PSC in connection with the sale,
registration or qualification of any PSC Common Stock, and PSC shall reimburse
Shareholder for any legal or other expenses reasonably incurred by him in
connection with investigating or defending any such loss, claim, liability,
action or proceeding; provided, however, that PSC shall not be liable to any
such person in any such case to the extent that any such loss, claim, damage,
liability or expense arises out of or is based upon any such untrue statement
or omission made in such registration statement, preliminary prospectus,
summary prospectus, prospectus, or amendment or supplement thereto, or such
other document, in reliance upon and in conformity with written information
furnished to PSC by Shareholder specifically for use therein. The indemnity
provided for herein shall remain in full force and effect regardless of any
investigation made by or on behalf of Shareholder and shall survive the
transfer of such securities by Shareholder.
PSC may require, as a condition to including any PSC Common Stock held by
Shareholder in any Registration Statement filed pursuant to Section 1, that PSC
shall have received an undertaking from Shareholder to indemnify and hold
harmless (in the same manner and to the same extent as set forth in the
immediately preceding paragraph of this Section 8(a) PSC, each director of PSC,
each officer of PSC who shall sign such Registration Statement and each other
person, if any, who controls PSC within the meaning of the Securities Act
(except Shareholder, if Shareholder so controls PSC), with respect to any
untrue statement in or omission from such Registration Statement, any
preliminary prospectus or final prospectus contained therein, any summary
prospectus issued in connection with any securities being registered or offered
for sale thereby, or any amendment or supplement thereto, or any filing with or
representation to the Commission or any state securities commission or other
authority under the Securities Act or any Blue Sky law, or any other law,
applicable to PSC in connection with the sale, registration or qualification of
any PSC Common Stock, in each case if such statement or omission was made in
reliance on and in conformity with written information furnished to PSC by
Shareholder specifically for use in preparing any such registration statement,
preliminary prospectus, final prospectus, summary prospectus or amendment or
supplement thereto, or in making any such filing or representation; provided,
however, that the liability of Shareholder pursuant to any such undertaking
shall not exceed the net cash proceeds received by Shareholder from the sale of
PSC Common Stock covered by the Registration Statement giving rise to such
liability. Shareholder shall promptly provide such undertaking
upon request, provided that any failure of Shareholder to provide such
undertaking shall have no effect on the obligations of PSC hereunder. The
indemnity provided for herein shall remain in full force and effect regardless
of any investigation made by or on behalf of the indemnified party and shall
survive any transfer of the PSC Common Stock held by the indemnifying party.
(b) Contribution. If the indemnification provided for in Section 8(a)
above is unavailable to an indemnified party in respect of any losses, claims,
damages or liabilities referred
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to therein, then the intended indemnifying party, in lieu of indemnifying such
intended indemnified party thereunder, shall contribute to the amount paid or
payable by such attended 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 intended indemnifying party on the one hand and of the
intended indemnified parties on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative fault of the
intended indemnifying party and of the intended 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 intended indemnifying party or by the
intended indemnified party and the party's relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission.
PSC and Shareholder agree that it would not be just and equitable if
contribution pursuant to this Section 8(b) were determined by pro rata
allocation or by any other method of allocation which does not take into
account the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages and liabilities or actions or proceedings in
respect thereof referred to in the immediately preceding paragraph shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. No person guilty of
fraudulent misrepresentations (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.
(c) Notice of Claims, etc. Promptly after receipt by an indemnified
party under Section 8(a) above of notice of the commencement of any action or
proceeding, such indemnified party shall, if a claim in respect thereof is to
be made against an indemnifying party, notify the indemnifying party in writing
of the commencement thereof. In case any such action shall be brought against
any indemnified party, and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnifying party. Upon the
permitted assumption by the indemnifying party of the defense of such action
the indemnifying party shall not be liable to such indemnified party under this
Section 8 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof (other than reasonable
costs of investigation) unless the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense of the
indemnifying party.
9. Entire Agreement. This Registration Agreement constitutes the entire
agreement and understanding between Shareholder and PSC and supersedes any
prior or contemporaneous agreement or understanding relating to the subject
matter of this Registration Agreement. This Registration Agreement may be
modified or amended only by a written instrument executed by Shareholder and
PSC (acting through its officers, duly authorized by its Board of Directors).
10. Counterparts. This Registration Agreement may be executed in two or
more
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counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
11. Notices. Any notice to be given pursuant to this Registration
Agreement shall be sufficiently given if sent by registered mail, return
receipt requested, postage prepaid, and addressed as follows:
If to PSC:
Physicians' Specialty Corp.
0000 Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
If to Shareholder:
12. Governing Law and Jurisdiction. This Registration Agreement shall be
governed by and construed in accordance with the domestic substantive laws of
the State of Georgia, without regard to its conflict of laws principles.
13. Amendments and Waivers. Neither this Registration Agreement nor any
term hereof may be changed, waived, discharged or terminated orally or in
writing, except that any term of this Registration Agreement may be amended and
the observance of any such term may be waived (either generally or in a
particular instance and either retroactively or prospectively) only with the
written consent of PSC and Shareholder; provided, however, that no such
amendment or waiver shall affect the provisions of this Section 13 and no such
waiver shall extend to or affect any other obligation not expressly waived.
14. Severability. Should any Section or any part of a Section within this
Registration Agreement be rendered void, invalid or unenforceable by any court
of law for any reason, such invalidity or unenforceability shall not void or
render invalid or unenforceable any other Section or part of a Section in this
Registration Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Agreement as of the day and year first above written.
PHYSICIANS' SPECIALTY CORP.
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By:
Title:
SHAREHOLDER
By:
