EXHIBIT 4.3
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SHAREHOLDER'S REPRESENTATION STATEMENT
AND REGISTRATION RIGHTS AGREEMENT
THIS SHAREHOLDER'S REPRESENTATION STATEMENT AND REGISTRATION RIGHTS
AGREEMENT (the "Agreement") is entered into by the undersigned shareholders
(the "Shareholders") of Clinical Reference Systems, Ltd., a Colorado corporation
("CRS") and Access Health, Inc. a Delaware corporation ("Access Health" or the
"Company"), as of the 25th day of November, 1996, in consideration of and in
connection with that certain Agreement and Plan of Reorganization by and between
Access Health, Access Health Colorado, Inc., a Colorado corporation ("Merger
Sub") and CRS.
RECITALS
A. CRS, Access Health and Merger Sub have entered into an Agreement and
Plan of Reorganization, dated as of September 5, 1996 (the "Reorganization
Agreement"), pursuant to which CRS will be merged with and into Merger Sub (the
"Merger").
B. Upon the consummation of the Merger, subject to the terms and
conditions of the Reorganization Agreement, and in connection therewith, the
Shareholders will become the owners of 170,000 shares of Common Stock of Access
Health (the "Access Health Common Stock").
C. The Access Health Common Stock to be issued in connection with the
Merger has not been registered under the Securities Act of 1933, as amended (the
"Securities Act") in reliance upon the exemption therefrom contained in Section
4(2) of the Securities Act.
NOW, THEREFORE, in consideration of the premises and the mutual agreements,
provisions and covenants set forth in the Reorganization Agreement and in this
Agreement and in consideration of the exchange of the CRS Common Stock for
Access Health Common Stock, the parties hereby represent, warrant, covenant and
do hereby agree as follows:
1. Restricted Stock; Legend
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1.1 Legend. It is understood that each certificate representing the
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Access Health Common Stock and any securities issued in respect thereof or
exchange therefor shall bear legends in substantially the following forms (in
addition to any legend required under applicable state securities laws):
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933. NO SALE OR DISPOSITION OF THESE SECURITIES MAY BE
EFFECTED WITHOUT THE PRIOR WRITTEN CONSENT OF THE COMPANY AND
WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED UNDER THE ACT OR RECEIPT OF A NO
ACTION LETTER FROM THE SECURITIES AND EXCHANGE COMMISSION."
1.2 In connection with the limitations on disposition with respect to
the Access Health Common Stock contained in this Agreement, Access Health will
issue stop transfer instructions to its transfer agent with respect to such
shares.
1.3 The undersigned Shareholders understand that Access Health is
under no obligation to register the sale, transfer or other disposition of the
Access Health Common Stock, except as specifically provided in this Agreement
2. Shareholder's Representations. Each Shareholder represents, warrants
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and covenants to Access Health that:
2.1 Experience; Risk. Shareholder is able to fend for itself in the
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transactions contemplated by this Agreement and the Reorganization Agreement and
has the ability to bear the economic risk of the investment, including complete
loss of the investment.
2.2 Investment. Shareholder is acquiring the Access Health Common
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Stock for investment for its own account, not as a nominee or agent, and not
with a view to, or for resale in connection with, any distribution thereof, and
Shareholder has no present intention of selling, granting any participation in,
or otherwise distributing the same. Shareholder understands that the Access
Health Common Stock has not been registered under the Securities Act by reason
of a specific exemption from the registration provisions of the Securities Act
which depends upon, among other things, the bona fide nature of the investment
intent and the accuracy of such Shareholder's representations as expressed
herein.
2.3 Restricted Securities; Rule 144. Shareholder understands that
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the Access Health Common Stock is characterized as "restricted securities" under
the federal securities laws inasmuch as they are being acquired from Access
Health in a transaction not involving a public offering and that under such laws
and applicable regulations the Access Health Common Stock may be resold without
registration under the Securities Act only in certain limited circumstances.
Shareholder acknowledges that the Access Health Common Stock must be held
indefinitely unless subsequently registered under the Securities Act or an
exemption from such registration is available. Shareholder is aware of the
provisions of Rule 144 promulgated under the Securities Act which permit limited
resale of shares purchased in a private placement subject to the satisfaction of
certain conditions. Shareholder understands that within sixty (60) days of the
consummation of the transaction contemplated by the Reorganization Agreement
Access Health expects to file with the Securities and Exchange Commission, a
Registration Statement on Form S-3 whereby the shares of Access Health Common
Stock to be issued in such transaction will become Registered Shares.
Immediately upon such Registration, such shares of Access Health Common Stock
will be freely tradeable by persons who are not affiliates of CRS.
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2.4 Access to Data. Each Shareholder is aware of Access Health's
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business affairs and financial condition and has sufficient information about
Access Health to reach an informed and knowledgeable decision to acquire the
Access Health Common Stock pursuant to the Reorganization Agreement. Each
Shareholder acknowledges he or she has (i) previously received Access Health's
Annual Report for the fiscal year ended September 30, 1995, and (ii) has
previously received Access Health's Quarterly Report for the quarterly period
ended June 30, 1996. Each Shareholder is acquiring such Access Health Common
Stock for investment for such Shareholder's own account and not with a view to
resale or distribution.
3. Transfers of Stock. With respect to any disposition or attempted
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disposition of any Access Health Common Stock, the undersigned Shareholder will
comply with the following procedure:
3.1 With respect to a disposition of the Access Health Common Stock
registered under the Securities Act, the undersigned will dispose of such shares
as provided in the applicable registration statement.
3.2 Each Shareholder who becomes subject to the provisions of Section
16 of the Securities Exchange Act of 1934, as amended (the "Exchange Act") as a
result of their relationship with Access Health subsequent to the date of this
Agreement, hereby agrees to dispose of any shares of Access Health Common Stock
held by such person in conformity with the then current xxxxxxx xxxxxxx and
compliance policies of Access Health applicable to similarly situated persons.
4. Registration Rights.
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4.1 Certain Definitions. As used in this Section 4, the following
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terms shall have the following respective meanings:
(i) The term "Commission" means the Securities and Exchange
Commission;
(ii) The term "Form S-3" will refer to the registration statement
of the same name (including successors thereto) prepared for filing with the
Commission;
(iii) The term "Holder" means any holder or transferee of
outstanding Registrable Securities who acquired such Registrable Securities in a
transaction or series of transactions not involving any public offering;
(iv) The terms "register", "registered" and "registration" refer
to a registration effected by preparing and filing a registration statement in
compliance with the Securities Act and the declaration or ordering of the
effectiveness of such registration;
(v) The term "Registrable Securities" means the Access Health
Common Stock so long as such shares have not been (i) sold to or through a
broker or dealer or underwriter in
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a public distribution or a public securities transaction, or (ii) sold in a
transaction exempt from the registration and prospectus delivery requirements of
the Securities Act under Section 4(1) thereof so that all transfer restrictions
and restrictive legends with respect thereto are removed upon the consummation
of such sale, together with any securities issued with respect to the Access
Health Common Stock upon a stock split, stock dividend, recapitalization or
similar event;
(vi) The term "Restricted Securities" means the Access Health
Common Stock required to bear the legends set forth in Section 1.1 hereof; and
(vii) The term "Securities Act" means the Securities Act of
1933, as amended.
4.2 Registration on Form S-3. Access Health will use reasonable
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efforts to prepare and file a registration statement under the Securities Act on
Form S-3 covering the Registrable Securities (whether or not required by law to
do so) and to have such registration statement declared effective by January 24,
1997. To the extent that Form S-3 is not available to Access Health, Access
Health will prepare and file a registration statement on Form S-1 covering the
Registrable Securities and will use reasonable efforts to cause such
registration statement to be declared effective as soon as possible after the
closing of the Merger. Access Health knows of no reason why Form S-3 would not
be available to register the Access Health Common Stock.
4.3 Registration and Selling Expenses. All expenses incurred in
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connection with any registration proceeding pursuant to Section 4.2 will be
borne by Access Health.
4.4 Registration Procedures. In the case of the registration and
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qualification effected by Access Health pursuant to this Section 4, Access
Health will keep each Holder participating therein advised in writing as to the
initiation of such registration or qualification and as to the completion
thereof. Access Health will, as expeditiously as possible:
(i) Prepare and file with the Commission a registration statement
with respect to such Registrable Securities and use its best efforts to cause
such registration statement to become effective, and, keep such registration
statement effective for the lesser of (i) two years, (ii) until such time as the
Holders have informed Access Health in writing that the distribution of their
securities has been completed or (iii) upon a favorable interpretation of the
Field's Xxxx which would allow the shareholders to sell the Registrable
Securities (without restriction) in reliance on the exemption from the
registration requirements of Section 5 of the Securities Act provided by Section
3(a)(10) thereof.
(ii) Prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement, and use reasonable efforts to cause each such
amendment to become effective, 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.
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(iii) Furnish to the Holders participating in such registration
such reasonable number of copies of the registration statement, preliminary
prospectus, final prospectus and such other documents as such Holders may
reasonable request in order to facilitate the public offering of such
securities.
(iv) Notify each seller 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 or incomplete in the light of the
circumstances then existing, and at the request of any such seller, prepare and
furnish to such seller a reasonable number of copies of supplement to or an
amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchaser of such shares, such prospectus shall not include an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading or
incomplete in the light of the circumstances then existing.
(v) Use reasonable efforts to register and qualify the securities
covered by such registration statement under such other securities or Blue Sky
laws of such jurisdictions as shall be reasonably requested by the Holders,
provided that the Company shall not be required in connection therewith or as
condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions.
(vi) Use reasonable efforts to qualify the Registrable Securities
being registered for inclusion on the automated quotation system of the National
Association of Securities Dealers, Inc.
4.5 Information by Holder. The Holder or Holders of Registrable
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Securities included in the registration will furnish to Access Health such
information regarding such Holder or Holders and the distribution proposed by
such Holder or Holders as Access Health may reasonably request in writing in
connection with any registration, qualification or compliance referred to in
this Section 4.
5. Rule 144 Reporting. With a view to making available the benefits of
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certain rules and regulations of the Commission which may at any time permit the
sale of the Restricted Securities to the public without registration, Access
Health agrees for a period of three years from the date of this Agreement to use
its best efforts to:
5.1 Make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act;
5.2 Use its best efforts to file with the Commission in a timely
manner all reports and other documents required of Access Health under the
Securities Act and the Securities Exchange Act of 1934, as amended; and
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5.3 So long as a Shareholder owns any Restricted Securities to
furnish to the Shareholder forthwith upon request a written statement by Access
Health as to its compliance with the reporting requirements of said Rule 144 and
of the Securities Act and the Exchange Act, a copy of the most recent annual or
quarterly report of Access Health, and such other reports and documents of
Access Health and other information in the possession of or reasonably
obtainable by Access Health as a Shareholder may reasonably request in availing
itself of any rule or regulation of the Commission allowing a Shareholder to
sell any such securities without registration.
6. Notices. Except as otherwise provided in this Agreement, all notices
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or other communications hereunder shall be in writing and delivered personally
or sent by registered or certified mail, postage prepaid. Until otherwise
specified by notice in writing to the other party, such notices, if given to
Access Health, shall be addressed to it at 00000 Xxxxx Xxxx Xxxx, Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000, Attention: General Counsel; and if given to the
undersigned Shareholders, shall be addressed to them at their addresses set
forth on the stock records of Access Health or Access Health's transfer agent.
7. Miscellaneous.
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7.1 This Agreement shall be binding upon and shall inure to the
benefit of Access Health and the undersigned Shareholders and their respective
assigns, transferees and successors in interest.
7.2 This Agreement shall be governed by and construed in accordance
with the laws of the State of California, excluding its conflicts of law rules,
as applied to agreements entered into in California between California
residents.
7.3 This Agreement may be executed in counterparts. All of such
counterparts, taken together, shall constitute a single instrument.
7.4 This Agreement and the contents hereof shall not be disclosed in
any form by Shareholder to any other person or entity. Each Shareholder further
agrees not to disclose to any other person and to maintain the confidentiality
of all non-public information known to him or her concerning the Merger and the
transactions in connection therewith.
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IN WITNESS WHEREOF, the Parties below have caused this Shareholder's
Representation Statement and Registration Rights Agreement to be executed as of
the date first written above.
ACCESS HEALTH, INC. SHAREHOLDER
By:
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(Signature)
Title:
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(Print Name)
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(Print Address)
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(Print Address)
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(Print Telephone Number)
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(Social Security or Tax I.D. Number)
Total Number of Shares of Capital Stock owned on the date
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hereof:
Common Stock:
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State of Residence:
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[SIGNATURE PAGE TO SHAREHOLDER'S REPRESENTATION STATEMENT]
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