REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made by and
among XxxxxxXxxx.xxx, Inc. (the "Company") and the Purchasers listed on Schedule
I thereto ("Purchasers").
RECITALS
A. The Purchasers desire to purchase from the Company and the Company
desires to issue and sell to the Purchasers the number of shares of the
Company's common stock (the "Common Stock") set forth across from each person's
name in Schedule I to the Securities Purchase Agreement dated December 3, 1999
(the "Securities Purchase Agreement"), all upon the terms set forth in the
Securities Purchase Agreement. Such offering of shares of Common Stock pursuant
to the Securities Purchase Agreement is referred to as (the "Offering").
B. To induce Purchasers to purchase Common Stock in the Offering, the
Company is willing under certain circumstances to register under the Securities
Act of 1933, as amended, and the rules and regulations thereunder (collectively,
the "Securities Act"), the Common Stock purchased by the Purchasers.
NOW THEREFORE, intending to be legally bound, the parties hereto agree
as follows:
1. Required Registrations.
(a) At any time after the earlier of: (i) twelve (12) months
following the completion of the sale of the Common Stock in the Offering, or
(ii) six months after the completion of the Company's initial public offering,
holders of at least one-half of the then outstanding shares of the Registrable
Securities may request, in writing, that the Company effect the registration of
Registrable Securities (as defined in Section 7 hereof) owned by such holders on
a form that may be used for the registration of Registrable Securities. If the
holders initiating the registration intend to distribute the Registrable
Securities by means of an underwriting, they shall so advise the Company in
their request. In the event such registration is underwritten, the right of
other holders to participate shall be conditioned on such holders' participation
in such underwriting. Upon receipt of any such request, the Company shall
promptly give written notice of such proposed registration to all holders of the
Registrable Securities and holders of Common Stock who have been granted
registration rights. Such holders shall have the right, by giving written notice
to the Company within 30 days after the Company provides its notice, to elect to
have included in such registration a number of their securities, including the
Registrable Securities, as such holders may request in such notice of election;
provided that if the underwriter (if any) managing the offering determines that,
because of marketing factors, all of the securities, including the Registrable
Securities, requested to be registered by all holders may not be included in the
offering, then subject to the priority rights, if any, of: holders of shares
subject to the Registration Rights Agreement dated November 13, 1998 (the "AOL
Shares") between the Company and America Online, Inc., (the "AOL Rights
Agreement"); holders of the shares issued to Health Plan Services, Inc. ("HPS")
subject to the Registration Rights Agreement (the "HPS Shares") between the
Company and HPS dated May 29, 1998 (the "HPS Registration Rights Agreement");
holders of the Series C Preferred Stock; Provident American Corporation and its
subsidiaries subject to Registration Rights Agreements dated March 30, 1999 (the
"Provident Shares"), and other holders of registration rights granted by the
Company, the Company shall include in such registration: (i) first, the
securities of the holders of the AOL Shares requesting registration pursuant to
the terms of the AOL Rights Agreement to the extent entitled to registration
under the AOL Rights Agreement; (ii) second, the securities of the holders of
the HPS Shares unless the HPS Shares are eligible for resale pursuant to Rule
144 without regard to volume limitations; (iii) third, the securities of the
holders of the common stock issuable upon the conversion of the Series C
Preferred Stock, the securities of the holder of the common stock issuable upon
the conversion of the Series D Preferred Stock and the securities issuable upon
the exercise of the warrant granted to UICI, pro rata based on the number of
shares requested to be included; (iv) fourth, the securities of holders of the
Provident Shares; (v) fifth, the securities of holders of common stock issuable
upon the conversion of the Series A Preferred Stock; (vi) sixth, the securities
of the holders of Common Stock pursuant to the terms of the Registration Rights
Agreement, dated May 7, 1999 and May 11, 1999; (vii) seventh, the securities
issuable upon the exercise of warrants granted to ING Baring Xxxxxx Xxxx, LLC;
(viii) eighth, the securities issuable upon the exercise of warrants granted to
First Health Group Corp.; (ix) ninth, the securities issuable upon the exercise
of warrants granted to Aetna/US Healthcare; (x) tenth, the securities issuable
upon the exercise of warrants granted to Blue Cross and Blue Shield Association;
(xi) eleventh, the securities of the Purchasers or their successors or assigns
where such entities hold Registrable Securities; and (xii) twelfth, the other
securities requested to be included therein by the other holders of the Company
securities requested to be included in such registration, pro rata among the
holders of such securities on the basis of the number of shares owned by each
such holder. To the extent that all of the Registrable Securities requested to
be included in the underwritten offering cannot be included, holders of
Registrable Securities shall participate in such offering pro rata among such
Purchasers, based on the number of shares of Registrable Securities each holder
proposed to include. Thereupon, the Company shall, as expeditiously as possible,
use its best efforts to effect the registration (on a form that may be used for
the registration of the Registrable Securities) of all the Registrable
Securities which the Company has been requested to so register.
(b) The Company shall not be required to effect more than two
registrations pursuant to the first sentence of paragraph (a) above; provided,
however, in the event of a proration pursuant to the foregoing paragraph (a)
which results in Purchasers holding Registrable Securities having less than all
of the requested securities being included in a current registration, then, to
the extent of such unincluded Registrable Securities, the Purchasers shall
receive an additional demand registration right upon the expiration of any
blackout period, upon the request of the holders of 50% of the remaining
Registrable Securities, and the Company shall be obligated to file an additional
registration statement (which registration statement shall contain a current
prospectus) relating to the Registrable Securities; and (ii) the Company shall
use its best efforts to effect the registration of such Registrable Securities
as promptly as practicable thereafter. In addition to the foregoing, the Company
shall agree upon the first anniversary of the Company's becoming subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act to file a
registration statement on Form S-3 (if then available) covering the resale from
time to time of all of the remaining Registrable Securities.
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(c) The Registration Expenses (as defined in Section 4) shall be
paid by the Company with respect to all registrations effected pursuant to this
Section.
(d) The Company may delay the filing or effectiveness of any
registration statement for a period of up to 180 days after the date of a
request pursuant to this Section 1 if at the time of such request to register
Registrable Securities: (i) the Company is engaged or has fixed plans to engage
within 30 days of the time of the request in a firm commitment underwritten
public offering or (ii) the Company furnishes to the Purchaser or Purchasers
requesting registration a certificate signed by senior executive officer of the
Company stating that the Company is engaged in any other activity which, in the
good faith determination of the Company's Board of Directors, is a material
non-public event which would be adversely affected by the requested registration
to the material detriment of the Company, then the Company may at its option
direct that such request be delayed for a period not in excess of 120 days from
the effective date of such offering or the date of commencement of such other
material activity, as the case may be, provided, however, the Company may not
utilize the right set forth in this clause (ii) more than once in any 12-month
period.
2. Piggyback Registration.
(a) Each time that the Company proposes to register a public
offering solely of its authorized but unissued Common Stock or shares held in
Treasury ("Primary Shares") or other securities, other than pursuant to a
Registration Statement on Form S-4 or Form S-8 or similar or successor forms
(collectively, "Excluded Forms"), the Company shall promptly give written notice
of such proposed registration to all holders of the Registrable Securities,
which shall offer such holders the right to request inclusion of any Registrable
Securities in the proposed registration statement.
(b) Each holder of the Registrable Securities shall have twenty (20)
days or such longer period as shall be set forth in the notice from the receipt
of such notice to deliver to the Company a written request specifying the number
of shares of Common Stock such holder intends to sell and the holder's intended
plan of disposition.
(c) In the event that the proposed registration by the Company is,
in whole or in part, an underwritten public offering of securities of the
Company, any request under Section 2(b) may specify that the Registrable
Securities be included in the underwriting on the same terms and conditions as
the shares of Common Stock, if any, otherwise being sold through underwriters
under such registration.
(d) Upon receipt of a written request pursuant to Section 2(b), the
Company shall promptly use its best efforts to cause all such Registrable
Securities to be registered, to the extent required to permit sale or
disposition as set forth in the written request.
(e) Notwithstanding the foregoing, if the managing underwriter of an
underwritten public offering determines and advises in writing that the
inclusion of all Registrable Securities proposed to be included in the
underwritten public offering, together with the AOL Shares, the HPS Shares and
any other issued and outstanding shares of Common Stock proposed to be included
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therein by holders other than the holders of Registrable Securities (such other
shares hereinafter collectively referred to as the "Other Shares"), would
interfere with the successful marketing of the securities proposed to be
included in the underwritten public offering, then the number of such shares to
be included in such underwritten public offering shall be reduced, and shares
shall be excluded from such underwritten public offering in a number deemed
necessary by such managing underwriter. In the event an exclusion of shares is
necessary, shares shall be included in the following order: (i) first, the
Primary Shares; (ii) second, the AOL Shares requested to be included in the
registration pursuant to the terms of the AOL Rights Agreement to the extent
entitled to registration under the AOL Rights Agreement; (iii) third, HPS Shares
requested to be included pursuant to the terms of the HPS Registration Rights
Agreement unless the HPS Shares are eligible for resale pursuant to Rule 144
without regard to volume limitations; (iv) fourth, the securities issued upon
the conversion of the Series C Preferred Stock of holders requesting
registration, the securities issued upon the conversion of Series D Preferred
Stock of holders requesting registration, and the securities issued upon the
exercise of the warrants granted to UICI, pro rata based on the number of shares
requested to be included; (v) fifth, the securities of holders of the Provident
Shares requesting registration; (vi) sixth, the securities issued upon the
conversion of the Series A Preferred Stock of holders requesting registration;
(vii) seventh, the securities of the holders of Common Stock requesting
registration pursuant to the terms of the Registration Rights Agreements, dated
May 7, 1999 and May 11, 1999; (viii) eighth, the securities issued upon the
exercise of the warrants granted to ING Baring Xxxxxx Xxxx, LLC; (ix) ninth, the
securities issued upon the exercise of the warrants granted to First Health
Group Corp.; (x) tenth, the securities issued upon exercise of the warrants
granted to Aetna/US Healthcare; (xi) eleventh, the securities issued upon the
exercise of the warrants granted to Blue Cross and Blue Shield Association;
(xii) twelfth, the securities held by the Purchasers or their successors or
assigns requesting registration; (xiii) thirteenth, other shares. To the extent
all of the Registrable Securities requested to be included in the underwritten
public offering can not be included, holders of Registrable Securities shall
participate in such offering pro rata based on the number of shares of
Registrable Securities each holder proposes to include.
(f) all shares of Common Stock that are not included in the
underwritten public offering shall be withheld from the market by the holders
thereof for a period, not to exceed 180 days following an initial public
offering and 90 days for any offering thereafter, that the managing underwriter
reasonably determines as necessary in order to effect the underwritten public
offering. The holders of such shares shall execute such documentation as the
managing underwriter reasonably requests to evidence this lock-up.
3. Procedures. Whenever the holders of Registrable Securities have
requested that any Registrable Securities be registered pursuant to this
Agreement, the Company shall use its best efforts to effect the registration and
the sale of such Registrable Securities in accordance with the intended method
of disposition thereof; and pursuant thereto the Company shall as expeditiously
as possible:
(a) prepare and file with the Securities and Exchange Commission
(the "Commission") a registration statement on the appropriate form under the
Securities Act, which form shall be available for the sale of such Registrable
Securities in accordance with the intended method or methods of distribution
thereof, and use its commercially reasonable efforts to cause such registration
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statement to become effective (provided that before filing a registration
statement or prospectus or any amendments or supplements thereto, the Company
shall furnish to the counsel selected by the holders of a majority of the
Registrable Securities covered by such registration statement copies of all such
documents proposed to be filed, which documents shall be subject to the review
and comment of such counsel);
(b) notify each holder of Registrable Securities of the
effectiveness of each registration statement filed hereunder and prepare and
file with the Commission, such amendments, post-effective amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary or appropriate to keep such registration statement
effective for the period required for sale of the Registrable Securities,
(provided that in no event shall the Company be obligated to keep such
registration statement effective (i) if the Company is eligible to use the Form
S-3, at such time as there are no longer any Registrable Securities outstanding,
and (ii) if the Company is not eligible to register on Form S-3, until such time
as the Purchasers are eligible to sell all of the Registrable Securities
pursuant to Rule 144 (k)), cause such prospectus as so supplemented to be filed
as required under the Securities Act, and comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement during such period in accordance with the intended
methods of disposition by the sellers thereof set forth in such registration
statement or supplement to the prospectus;
(c) if requested by the managing underwriter or underwriters or a
holder of Registrable Securities being sold in connection with an underwritten
offering, immediately incorporate in a Prospectus supplement or post-effective
amendment such information as the managing underwriters and the holders of a
majority in interest of the Registrable Securities being sold reasonably agree
should be included therein relating to the plan of distribution with respect to
such Registrable Securities, including, without limitation, information with
respect to the principal amount of Registrable Securities being sold to such
underwriters, the purchase price being paid therefor by such underwriters and
with respect to any other terms of the underwritten (or best efforts
underwritten) offering of the Registrable Securities to be sold in such
offering, and make all required filings of such Prospectus supplement or
post-effective amendment as soon as notified of the matters to be incorporated
in such Prospectus supplement or post-effective amendment;
(d) furnish to each seller of Registrable Securities such number of
copies of such registration statement, each amendment and supplement thereto,
the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as such seller may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such seller;
(e) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions
where such registration or qualification is required as any seller reasonably
requests and do any and all other acts and things which may be reasonably
necessary or advisable to enable such seller to consummate the disposition in
such jurisdictions of the Registrable Securities owned by such seller (provided
that the Company shall not be required to (i) qualify generally to do business
in any jurisdiction where it would not otherwise be required to qualify but for
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this subparagraph (ii) subject itself to taxation in any such jurisdiction or
(iii) consent to general service of process in any such jurisdiction);
(f) notify each seller of such Registrable Securities, at any time
when a prospectus relating thereto is required to be delivered under the
Securities Act, upon discovery that, or upon the happening of any event as a
result of which the prospectus included in such registration statement as then
in effect, contains an untrue statement of a material fact or omits any fact
necessary to make the statements therein not misleading in the light of the
circumstances under which they were made, and, at the request of any such
seller, the Company shall promptly prepare a supplement or amendment to such
prospectus so that, thereafter delivered to the purchasers of such Registrable
Securities, such prospectus shall not contain an untrue statement of a material
fact required to be stated therein or omit to state any fact necessary to make
the statements therein not misleading;
(g) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed or traded, and, if not so listed or traded, to be listed on the NASD
automated quotation system and, if listed on the NASD automated quotation
system, use commercially reasonable efforts to secure NASDAQ authorization for
such Registrable Securities and, without limiting the generality of the
foregoing, to arrange for at least two market makers to register as such with
respect to such Registrable Securities with the NASD;
(h) cooperate with the selling holders of Registrable Securities and
the managing underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold and not
bearing any restrictive legends; enable such Registrable Securities to be in
such denominations and registered in such names as the selling holders or the
managing underwriters, if any, may request at least ten Business Days prior to
any sale of Registrable Securities; and provide a transfer agent and registrar
for all such Registrable Securities not later than the effective date of such
registration statement;
(i) enter into such customary agreements (including, if there is an
underwriter, underwriting agreements in customary form including, without
limitation, the requirement to obtain an opinion of counsel to the Company and a
"comfort letter" from the independent public accountants to the Company in the
usual and customary form for such an underwritten offering);
(j) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other agent retained by
any such seller or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company that is customary, and cause
the Company's officers, directors, employees and independent accountants to
supply all information reasonably requested by any such seller, underwriter,
attorney, accountant or agent in connection with such registration statement;
(k) cooperate, and cause the Company's officers, directors,
employees and independent accountants to cooperate, with the selling holders of
Registrable Securities and the managing underwriters, if any, in the sale of the
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Registrable Securities and take any actions necessary to promote, facilitate or
effectuate such sale;
(l) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission and make available to its security
holders, as soon as reasonably practicable, an earning statement covering the
period of at least twelve months, beginning with the first fiscal quarter
beginning after the effective date of the registration statement, which earning
statement shall satisfy the provisions of Section 11(a) of the Securities Act;
(m) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any common stock included in such registration statement for sale in any
jurisdiction, the Company shall use its best efforts promptly to obtain the
withdrawal of such order; and
(n) otherwise use its best effects to take all other steps necessary
to effect the registration of the Registrable Securities.
4. Registration Expenses.
(a) All expenses incident to the Company's performance of or
compliance with this Agreement, including without limitation all registration
and filing fees (including, if applicable, the fees and expenses of any
"qualified independent underwriter" and its counsel as may be required under the
rules and regulations of the NASD), fees and expenses of compliance with
securities or blue sky laws (including fees and disbursements of counsel for the
underwriters or selling holders in connection with blue sky qualifications and
determination of their eligibility for investment under applicable laws),
printing expenses, messenger, telephone and delivery expenses, fees and
disbursements of custodians, and fees and disbursements of counsel for the
Company and all independent certified public accountants (including the expenses
of any special audit and "cold comfort" letters required by or incident to such
performance), underwriters (excluding underwriters' discounts and commissions)
and other Persons retained by the Company (all such expenses being herein called
"Registration Expenses"), shall be borne by the Company and the Company shall,
in any event, pay its internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties), the expense of any annual audit or quarterly review, the
expense of any liability insurance if such insurance coverage is obtained by the
Company and the expenses and fees for listing the securities to be registered on
each securities exchange on which similar securities issued by the Company are
then listed or on the NASD automated quotation system.
(b) Each holder of securities included in any registration hereunder
shall pay those expenses which are not Registration Expenses which are allocable
to the registration of such holder's securities so included (such as the fees
and disbursements of any counsel engaged by any Purchaser), and any such
expenses not so allocable, such as the underwriting discount and any selling
commissions shall be borne by all sellers of securities included in such
registration in proportion to the aggregate selling price of the securities to
be so registered.
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5. Indemnification and Contribution
(a) The Company agrees to indemnify and hold harmless each holder of
Registrable Securities which is included in a registration statement pursuant to
Section 1 herein, its officers and directors and each Person who controls such
holder (within the meaning of the Securities Act) against all losses, claims,
damages, liabilities and expenses, including without limitation attorneys' fees,
except as limited by Paragraph 5(c), which arise out of or are based upon: (i)
any untrue or alleged untrue statement of material fact contained in any
registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein
not misleading, or with respect to a prospectus, necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, except insofar as the same are caused by or contained in any
information furnished in writing to the Company by such holder expressly for use
therein or by such holder's failure to deliver a copy of the registration
statement or prospectus or any amendments or supplements thereto after the
Company has furnished such holder with a sufficient number of copies of the
same; and (ii) any violation by the Company of the Securities Act, the Exchange
Act (as defined below), any applicable state securities law or any rule or
regulation promulgated under the Securities Act, the Exchange Act or any state
securities law. In connection with an underwritten offering, the Company shall
indemnify such underwriters, their officers and directors and each Person who
controls such underwriters (within the meaning of the Securities Act) to the
same extent as provided above with respect to the indemnification of the holders
of Registrable Securities.
(b) In connection with any registration statement in which a holder
of Registrable Securities is participating, each such holder shall furnish to
the Company in writing such information and affidavits as the Company and any
underwriter reasonably requests for use in connection with any such registration
statement or prospectus and shall indemnify the Company, its directors and
officers and each Person who controls the Company (within the meaning of the
Securities Act) against any losses, claims, damages, liabilities and expenses,
including without limitation attorneys' fees, except as limited by Paragraph
5(c), resulting from any untrue or alleged untrue statement of material fact
contained in the registration statement, prospectus or preliminary prospectus or
any amendment thereof or supplement thereto or any omission or alleged omission
of a material fact required to be stated therein or necessary to make the
statements therein not misleading, but only to the extent that such untrue
statement or omission is contained in any information or affidavit so furnished
in writing by such holder.
(c) Any Person entitled to indemnification hereunder shall (i) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification (provided that the failure to give prompt notice
shall not impair any Person's right to indemnification hereunder to the extent
such failure has not materially prejudiced the indemnifying party) and (ii)
unless in such indemnified party's reasonable judgment a conflict of interest
between such indemnified and indemnifying parties may exist with respect to such
claim, permit such indemnifying party to assume the defense of such claim with
counsel reasonably satisfactory to the indemnified party. If such defense is
assumed, the indemnifying party shall not be subject to any liability for any
settlement made by the indemnified party without its consent (but such consent
shall not be unreasonably withheld). An indemnifying party who is not entitled
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to, or elects not to, assume the defense of a claim shall not be obligated to
pay the fees and expenses of more than one counsel for all parties indemnified
by such indemnifying party with respect to such claim, unless in the reasonable
judgment of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim.
(d) If the indemnification provided for in this Section 5 is
unavailable to an indemnified party under paragraphs (a) or (b) hereof in
respect to any losses, claims, damages, liabilities or expenses referred to
therein, then an indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative fault of the Company and
the holder of Registrable Securities in connection with the statements or
omissions that resulted in such losses, claim, damages, liabilities or expenses.
The relative fault of the Company and the holder of Registrable Securities in
connection with the statements that resulted in such losses, claims, liabilities
or expenses shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of material facts or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or the holder of the Registrable Securities and the parties relative intent,
knowledge, access to information and opportunity to correct such statement or
omission. The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 5(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in this Section 5(d). The amount paid
or payable by an indemnified party as a result of the losses, claims, damages,
liabilities or expenses (or actions in respect thereof) referred to above shall
be deemed to include any legal or other fees or expenses reasonably incurred by
such indemnified party in connection with investigating or, except as provided
in Section 5(c), defending any such action or claim.
(e) Notwithstanding any other provision of this Section, the
liability of any holder of Registrable Securities for indemnification or
contribution under this Section shall be individual to each holder and shall not
exceed an amount equal to the number of shares sold by such holder of
Registrable Securities multiplied by the net amount per share which he receives
in such underwritten offering.
(f) The indemnification and contribution provided for under this
Agreement shall remain in full force and effect regardless of any investigation
made by or on behalf of the indemnified party or any officer, director or
controlling Person of such indemnified party and shall survive the transfer of
securities.
6. Participation in Underwritten Registrations. No Person may
participate in any registration hereunder which is underwritten unless such
Person (i) agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Person or Persons entitled hereunder
to approve such arrangements and (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements; provided
that no holder of Registrable Securities included in any underwritten
registration shall be required to make any representations or warranties to the
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Company or the underwriters other than representations and warranties directly
regarding such holder and such holder's intended method of distribution.
7. Definitions.
"NASD" means the National Association of Securities Dealers.
"Person" means any individual, corporation, partnership, limited
liability company, trust, estate, association, cooperative, government or
governmental entity (or any branch, subdivision or agency thereof) or any other
entity.
"Registrable Securities" means (i) any of the shares of Common Stock
issued in the Offering; and (ii) any other securities that subsequently may be
issued or issuable with respect to such shares of Common Stock as a result of a
stock split or dividend or any sale, transfer, assignment or other transaction
involving such shares of the Company and any securities into which the shares of
Common Stock may thereafter be changed as a result of merger, consolidation,
recapitalization or other similar transaction. As to any particular Registrable
Securities, such securities shall cease to be Registrable Securities when they
have been distributed to the public pursuant to a offering registered under the
Securities Act or eligible to be sold to the public pursuant to Rule 144(k)
under the Securities Act (or any such rule then in force) or, if held by an
affiliate of the Company, when all such securities of such person are eligible
for resale pursuant to Rule 144 and could be sold in one transaction in
accordance with the volume limitations contained in Rule 144(e)(1)(i). For
purposes of this Agreement, a Person shall be deemed to be a holder of
Registrable Securities whenever such Person has the right to acquire directly or
indirectly such Registrable Securities (upon conversion or exercise in
connection with a transfer of securities or otherwise, but disregarding any
restrictions or limitations upon the exercise of such right), whether or not
such acquisition has actually been effected.
"Securities Act" means the Securities Act of 1933, as amended.
8. Rule 144. From and after the time the Company's Common Stock is
registered under Section 12(b) or 12(g) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), in order to permit each Purchaser to sell the
securities of the Company it holds from time to time pursuant to Rule 144
promulgated by the Commission or any successor to such rule or any other rule or
regulation of the Commission that may at any time permit each Purchaser to sell
its securities to the public without registration ("Resale Rules"), the Company
will:
(a) comply with all rules and regulations of the Commission
applicable in connection with use of the Resale Rules;
(b) make and keep adequate and current public information available,
as those terms are understood and defined in the Resale Rules, at all times;
(c) file with the Commission in a timely manner all reports and
other documents required of the Company under the Securities Act and the
Exchange Act;
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(d) furnish annually to the Purchasers material containing the
information required by Rule 14a-3(b) under the Exchange Act;
(e) furnish to each Purchaser promptly upon request (i) a written
statement by the Company that it has complied with the reporting requirements of
the Resale Rules, the Securities Act and the Exchange Act, (ii) a copy of the
most recent annual or quarterly report of the Company and any other reports and
documents so filed by the Company, and (iii) such other information as may be
reasonably requested in availing the Purchasers of any rule or regulation of the
Commission which permits the selling of any shares of Common Stock holding the
Purchasers without registration; and
(f) take any action (including cooperating with the Purchasers to
cause the transfer agent to remove any restrictive legend on certificates
evidencing the shares of Common Stock held by the Purchasers) as shall be
reasonably requested by the Purchasers or which shall otherwise facilitate the
sale of shares of Common Stock held by the Purchasers from time to time by the
Purchasers pursuant to the Resale Rules.
9. Rule 144A Information. Until such time as the Company is subject to
Section 13 or 15(d) of the Exchange Act, the Company will make available, upon
request, to the Purchasers and prospective purchaser or transferee of
Registrable Securities designated by the Purchasers, the information required to
allow the resale or other transfer of Registrable Securities pursuant to Rule
144A promulgated by the Commission under the Securities Act to enable resales
and other transfers of the Registrable Securities to be made pursuant to such
Rule 144A.
10. Miscellaneous.
(a) No Inconsistent Agreements. The Company shall not hereafter
enter into any agreement with respect to its securities which is inconsistent
with or violates the rights granted to the holders of Registrable Securities in
this Agreement, or grant to any person any registration rights, ("New
Registration Rights") with respect to securities of the Company if such New
Registration Rights are, in the reasonable opinion of the Purchasers, superior
in any fashion to the registration rights granted to the Purchasers pursuant to
this Agreement, unless the holders of a majority of the Registrable Securities
then outstanding consent in writing to such Registration Rights or such other
inconsistent agreement, provided however this limitation shall not apply to any
registration rights currently outstanding or which the Company is legally
obligated to grant as of the date hereof.
(b) Amendments and Waivers. Except as otherwise provided herein,
the provisions of this Agreement may be amended or waived only upon the prior
written consent of the Company and holders of a majority of the Registrable
Securities.
(c) Successors and Assigns. All covenants and agreements in this
Agreement by or on behalf of any of the parties hereto shall bind and inure to
the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not. In addition, whether or not any express assignment
has been made, the provisions of this Agreement which are for the benefit of
purchasers or holders of the Registrable Securities are also for the benefit of,
11
and enforceable by, any subsequent holder of the Registrable Securities. A
person is deemed to be a holder of the Registrable Securities whenever such
person is the registered holder of the Registrable Securities. Upon the transfer
of any Registrable Securities, the transferring holder of the Registrable
Securities shall cause the transferee to execute and deliver to the Company a
counterpart of this Agreement.
(d) Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
(e) Counterparts. This Agreement may be executed simultaneously in
two or more counterparts, any one of which need not contain the signatures of
more than one party, but all such counterparts taken together shall constitute
one and the same Agreement.
(f) Descriptive Heading. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
(g) Governing Law. The corporate law of Pennsylvania shall govern
all issues and questions concerning the relative rights of the Company and its
shareholders. All issues and questions concerning the construction, validity,
interpretation and enforcement of this Agreement shall be governed by, and
construed in accordance with, the laws of Pennsylvania, without giving effect to
any choice of law or conflict of law rules or provisions (whether of
Pennsylvania or any other jurisdiction) that would cause the application of the
laws of any jurisdiction other than Pennsylvania.
(h) Notices. Notices required or permitted to be given hereunder
shall be in writing and shall be deemed to be received when personally delivered
or sent by overnight courier or registered mail, return receipt requested,
addressed (i) if to the Company, at XxxxxxXxxx.xxx, Inc., 0000 XxXxxx Xxxx,
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000, Attention: President and to Blank Rome
Comisky & XxXxxxxx LLP, 0 Xxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, Attn:
Xxxxx X. Xxxxxx, Esquire; and (ii) if to any Purchaser, to the address set forth
on Schedule I hereto and to Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P., 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: Xxxxx Xxxx, Esq. (or at such
other address as each party furnishes by notice given in accordance with this
Section 10).
12
SIGNATURE PAGE TO XXXXXXXXXX.XXX, INC.
REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the undersigned has executed this Registration
Rights Agreement this sixth day of December, 1999.
XXXXXXXXXX.XXX, INC.
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: President and Chief Executive Officer
PROVIDENT AMERICAN CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx III
--------------------------------------------
Name: Xxxxxxx X. Xxxxxx III
Title: Chief Financial Officer and Treasurer
XXXXX XXXXXXX STRATEGIC GROWTH FUND, LTD.
By: Xxxxx Xxxxxxx Asset Management, LLC
By: ____________________________________________
Name:
Title:
XXXXX XXXXXXX STRATEGIC GROWTH FUND, L.P.
By: Xxxxx Xxxxxxx Capital, LLC,
its general partner
By: _____________________________________________
Name:
Title:
XXXXX XXXXXXX - XXX INVESTMENTS LC
By: ____________________________________________
Name:
Title:
LB I GROUP INC.
By: /s/ Xxxxxx Xxxxxxxxxx
--------------------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Senior Vice President
ROYAL BANK OF CANADA
By: its Agent
RBC Dominion Securities
By: /s/ Xxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxxxxx
Title: Managing Director
By: /s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: Vice President, Deputy General Counsel
VAUBAN INVESTISSMENT SA
By: ____________________________________________
Name:
Title:
SENECA CAPITAL, L.P.
By: Seneca Capital Advisors, LLC, its
general partner
By: /s/ Xxxx Xxxxxx
--------------------------------------------
Name: Xxxx Xxxxxx
Title: Managing Partner
SENECA CAPITAL INTERNATIONAL, LTD.
By: /s/ Xxxx Xxxxxx
--------------------------------------------
Name: Xxxx Xxxxxx
Title: Managing Partner
GOOD FAMILY LLC
By: /s/ Xxxxxx X. Good
--------------------------------------------
Name: Xxxxxx X. Good
Title: Manager
EUROPA INTERNATIONAL INCORPORATED
By: Xxxxx Capital Management,
its investment manager
By: ____________________________________________
Name:
Title:
XXXXXX CAPITAL MANAGEMENT, LLC
By: ____________________________________________
Name:
Title:
THE RAPTOR GLOBAL PORTOLIO LIMITED
By: Tudor Investment Corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
ALTAR ROCK FUND L.P.
By: Tudor Investment Corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
MKB INVESTMENT PARTNERS
By: /s/ Xxxxxxx Xxxx
--------------------------------------------
Name: Xxxxxxx Xxxx
Title: Partner
/s/ Xxxxxx Xxxxxxxxx
--------------------------------------------
Xxxxxx Xxxxxxxxx
--------------------------------------------
Xxxxxxx X. Xxxxx
/s/ Xxxxx X. Xxxxxxx
--------------------------------------------
Xxxxx X. Xxxxxxx
--------------------------------------------
Xxxxxxxx X. Xxxx
--------------------------------------------
Xxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxx
--------------------------------------------
Xxxxxxx X. Xxxx
/s/ Xxxxx X. Xxxxxxx
--------------------------------------------
Xxxxx X. Xxxxxxx
/s/ Xxxxxx XxXxxxx
--------------------------------------------
Xxxxxx XxXxxxx
Fordham Follies L.L.C.
By: ____________________________________________
Name:
Title:
SCHEDULE I
Purchasers: Amount of Registrable Securities
---------- --------------------------------
Provident American Corporation 133,333
0000 Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attn: President
Fax: (000) 000-0000
Xxxxx Xxxxxxx Strategic Growth Fund, L.P. 466,667
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxxx
Fax: (000) 000-0000
Xxxxx Xxxxxxx Strategic Growth Fund, Ltd. 333,333
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Fustus
Fax: (000) 000-0000
Xxxxx Xxxxxxx - XXX Investment LLC 66,667
c/o OTA Limited Partnership
0 Xxxxxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attn: Xxxxx XxXxxx
Fax: (000) 000-0000
LBI Group Inc. 766,667
c/x Xxxxxx Brothers, Inc.
3 World Financial Center
New York, New York 10285
Attn: Xxxxx Xxxxxxxxx
Fax: (000) 000-0000
Royal Bank of Canada 800,000
by its Agent
RBC Dominion Securities Xxx Xxxxxxx Xxxxx - 0xx Xxxxx
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000 X.X.X.
Attn: Vice President, Global Middle Office
Fax: (000) 000-0000
Vauban Investissement SA 66,667
Vauban Investissement SA
Xxxxxxxxxxxxxx 000
X.X. Xxx 0000
Xxxxxxx, Xxxxxxxxxxx Antilles
Seneca Capital L.P. 104,820
c/o Seneca Capital Advisors, LLC
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xx. Xxxx Xxxxxx
Seneca Capital International, Ltd., to: 128,513
c/o Seneca Capital Advisors, LLC
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xx. Xxxx Xxxxxx
Good Family LLC 133,333
0000 Xxxx Xxxx
Xxxx Xxxxxx, XX
Telephone:
Facsimile:
Attention: Xxx Xxxx
Europa International Incorporated 133,333
x/x Xxxxx Xxxxxxx Xxxxxxxxxx, X.X.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxx Xxxxx
Xxxxxx Capital Management, LLC 46,667
000 0xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (212)
Attn: Xxxxxx Xxxxxx
The Raptor Global Portfolio Limited 464,800
c/o Tudor Investment Corporation
00 Xxxxx Xxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxx
Altar Rock Fund L.P. 1,867
c/o Tudor Investment Corporation
00 Xxxxx Xxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxx
Xxxxxx Xxxxxxxxx 16,667
c/x Xxxxxx Brothers, Inc.
3 World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxxxxx
Xxxxxxx X. Xxxxx 6,667
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxxx
Fax: (000) 000-0000
Xxxxx X. Xxxxxxx 16,667
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxxx
Fax: (000) 000-0000
Xxxxxxxx X. Xxxx 16,667
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxxx
Fax: (000) 000-0000
Xxxx X. Xxxxxx 16,667
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxxx
Fax: (000) 000-0000
MKB Investments Partners 33,333
c/o X.X. Xxxxxx & Co. LLP
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxxxx Margenbesser
Xxxxxxx X. Xxxx 6,667
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Xxxxx X. Xxxxxxx 16,667
c/o Deltec Securities (U.K.) Limited
Xxxxxxxxxx Xxxxx
0 Xxxxxxxxx Xxxxx
Xxxxxx, Xxxxxx Xxxxxxx XX0X 0XX
Telephone: (000) 00-000-000-0000
Facsimile: (000) 00-000-000-0000
Xxxxxx XxXxxxx 66,667
00 Xxxxxx Xxxxx
Xxxxx Xxxxx, X.X. 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Fordham Follies, L.L.C. 2,667
c/o Xxxxxxxx Xxxxx
000 Xxxx 00xx Xxxxxx, Xxx. 00X
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
