THIRD AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT dated
as of September 30, 1997, among BMJ
MEDICAL MANAGEMENT, INC. (f/k/a
BONE, MUSCLE AND JOINT, INC.), a
Delaware corporation (the
"Company"), and the INVESTORS (as
hereinafter defined).
The Investors own or have the right to purchase or otherwise acquire shares
of the Common Stock, $.001 par value (the "Common Stock"), of the Company. The
Company and the Investors deem it to be in their respective best interests to
set forth the rights of the Investors in connection with public offerings and
sales of the Common Stock.
The Company and certain of the Investors are party to that certain Second
Amended and Restated Registration Rights Agreement dated as of March 12, 1997
(the "Original Agreement"). The Company and the Investors desire to amend and
restate the Original Agreement as provided herein.
In consideration of the premises and mutual covenants and obligations
hereinafter set forth, the parties hereto hereby agree as follows:
SECTION 1. Definitions. As used in this Agreement, the following terms
shall have the following meanings:
"Commission" shall mean the Securities and Exchange Commission or any other
Federal agency at the time administering the Securities Act.
"Exchange Act" shall mean the Securities Exchange Act of 1934 or any
successor Federal statute, and the rules and regulations of the Commission
promulgated thereunder, all as the same shall be in effect from time to time.
"Investors" shall mean each of the persons identified as an Investor on
Schedule I hereto, and shall include any successor to, or assignee or transferee
of, any of the Investors who or that agree in writing to be treated as an
Investor pursuant to this Agreement and to be bound by the terms and comply with
all applicable provisions hereof.
Original Agreement" has the meaning specified in the recitals hereof.
"Other Shares" shall mean at any time those shares of Common Stock that do
not constitute Primary Shares or Registrable Shares.
"Primary Shares" shall mean at any time the authorized but unissued shares
of Common Stock or shares of Common Stock held by the Company in its treasury.
"Registrable Shares" shall mean the shares of Common Stock held by the
Investors that constitute Restricted Shares.
"Registration Date" shall mean the date upon which the registration
statement pursuant to which the Company shall have initially registered shares
of Common Stock under the Securities Act for sale to the public shall have been
declared effective.
"Restricted Shares" shall mean the shares of Common Stock or any other
securities which by their terms are exercisable or exchangeable for or
convertible into Common Stock and any securities received in respect thereof,
which are held by an Investor and which have not theretofore been sold to the
public pursuant to a registration statement under the Securities Act or pursuant
to Rule 144.
"Rule 144" shall mean Rule 144 promulgated under the Securities Act or any
successor rule thereto or any complementary rule thereto (such as Rule 144A).
"Securities Act" shall mean the Securities Act of 1933, as amended, or any
successor Federal statute, and the rules and regulations of the Commission
promulgated thereunder, all as the same shall be in effect from time to time.
"Transfer" shall mean any disposition of any Restricted Shares or of any
interest therein that would constitute a sale thereof within the meaning of the
Securities Act other than any such disposition pursuant to an effective
registration statement under the Securities Act and complying with all
applicable state securities and "blue sky" laws.
SECTION 2. Required Registration. Upon the earlier to occur of (i) February
1, 2000 or (ii) that date which is six months after the consummation of the
initial public offering of the Common Stock, if the Company shall be requested
by in excess of 30 percent in interest of the Investors to effect the
registration under the Securities Act of Registrable Shares, then the Company
shall, within 10 days of such request, deliver a written notice of such proposed
registration to all holders of outstanding Registrable Shares and shall offer to
include in such proposed registration any Registrable Shares requested to be
included in such proposed registration by the holders of Registrable Shares who
or which shall respond in writing to the Company's notice within 15 days after
delivery thereof. The
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Company shall promptly thereafter use its best efforts to effect such
registration under the Securities Act of the Registrable Shares which the
Company has been so requested to register; provided, however, that the Company
shall not be obligated to effect any registration under the Securities Act
except in accordance with the following provisions:
(a) the Company shall not be obligated to use its best efforts to file
and cause to become effective (i) more than three registration statements
initiated pursuant to this Section 2 pursuant to which all of the
Registrable Shares requested to be included therein by the Investors have
been effectively sold thereunder or (ii) any registration statement during
any period in which any other registration statement (other than on Form
S-4 or Form S-8 promulgated under the Securities Act or any successor forms
thereto) pursuant to which Primary Shares are to be or were sold has been
filed and not withdrawn or has been declared effective within the prior 90
days;
(b) 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 for registration pursuant to this Section 2 if at the time of such
request (i) the Company is engaged, or has fixed plans to engage within 180
days of the time of such request, in a firm commitment underwritten public
offering of Primary Shares in which the holders of Registrable Shares may
include Registrable Shares pursuant to Section 3 or (ii) the Company
reasonably determines that such registration and offering would interfere
with any material transaction involving the Company, as approved by the
Board of Directors (as used herein "material transaction" shall mean any
transaction which would require a supplemental filing to a quarterly report
filed under Form 8-K with the Commission), provided that the Company may
only so delay the filing or effectiveness of a registration statement once
pursuant to clause (i) above and once pursuant to clause (ii) above; and
(c) with respect to any registration pursuant to this Section 2, the
Company may include in such registration any Primary Shares or Other
Shares; provided, however, that, in such case, such registration shall not
be treated as a registration initiated pursuant to this Section 2 if
Primary Shares are in fact sold pursuant to such Registration Statement;
provided further, however, that if the managing underwriter advises the
Company that the inclusion of all Registrable Shares, Primary Shares and
Other Shares proposed to be included in such registration would interfere
with the successful marketing (including pricing) of the Registrable Shares
proposed to be included in such registration, then (i) such registration
shall be treated as a registration initiated pursuant to this Section 2 if
no Primary Shares
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are in fact sold pursuant to such Registration Statement and (ii) the
number of Registrable Shares, Primary Shares and/or Other Shares proposed
to be included in such registration shall be included in the following
order:
(i) first, the Registrable Shares requested to be included in
such registration by the Investors (pro rata based on the
number of Restricted Shares held by all Investors requesting
inclusion of Registrable Shares in such registration);
(ii) second, the Primary Shares; and
(iii) third, the Other Shares, in such proportion as shall be
determined by the Company.
SECTION 3. Piggyback Registration. If the Company at any time proposes for
any reason to register Primary Shares or Other Shares under the Securities Act
(other than (i) registrations on Form S-4 or Form S-8 promulgated under the
Securities Act or any successor forms thereto or (ii) any registrations in
connection with an initial public offering of its Common Stock), it shall
promptly give written notice to all holders of outstanding Registrable Shares of
its intention so to register the Primary Shares or Other Shares and, upon the
written request, given within 30 days after delivery of any such notice by the
Company, of the holders of Registrable Shares to include in such registration
Registrable Shares held by such holders (which request shall specify the number
of Registrable Shares proposed to be included in such registration), the Company
shall use its best efforts to cause all such Registrable Shares to be included
in such registration on the same terms and conditions as the securities
otherwise being sold in such registration; provided, however, that if the
managing underwriter advises the Company that the inclusion of all such
Registrable Shares or Other Shares proposed to be included in such registration
would interfere with the successful marketing (including pricing) of Primary
Shares proposed to be registered by the Company, then the number of Primary
Shares, Registrable Shares and Other Shares proposed to be included in such
registration shall be included in the following order:
(i) first, the Primary Shares;
(ii) second, the Registrable Shares requested to be included in
such registration by the Investors (pro rata based on the
number of Restricted Shares held by all Investors requesting
inclusion of Registrable Shares in such registration); and
(iii) third, the Other Shares in such proportion as shall be
determined by the Company.
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SECTION 4. Registrations on Form S-3. Anything contained in Section 2 to
the contrary notwithstanding, at such time as the Company shall have qualified
for the use of Form S-3 promulgated under the Securities Act or any successor
form thereto, the holders of 30 percent of the Registrable Shares shall have the
right to request in writing an unlimited number of registrations on Form S-3, or
such successor form, of Registrable Shares held by them (the Company to bear the
costs of such registrations), which request or requests shall (i) specify the
number of Registrable Shares intended to be sold or disposed of, (ii) state the
intended method of disposition of such Registrable Shares and (iii) relate to
Registrable Shares having an anticipated aggregate offering price of at least
$500,000. A requested registration on Form S-3, or any such successor form, in
compliance with this Section 4 shall not count as a registration statement
initiated pursuant to Section 2 but shall otherwise be treated as a registration
initiated pursuant to Section 2 and shall, except as otherwise expressly
provided in this Section 4, be subject to Section 2.
SECTION 5. Condition to Registration Obligations. The Corporation shall not
be obligated to effect the registration of the Registrable Shares pursuant to
Section 2, 3 or 4 unless each of the Stockholders electing to participate in
such registration executes a power of attorney, custody arrangement and other
documents customary in such transactions and reasonably required by the managing
underwriter thereof prior to the filing of the registration statement.
SECTION 6. Holdback Agreement. If the Company at any time shall register
shares of Common Stock under the Securities Act (including any registration
pursuant to Sections 2, 3 or 4) for sale to the public, the Investors shall not
sell publicly, make any short sale of, grant any option for the purchase of, or
otherwise dispose publicly of, any Restricted Shares (other than those shares of
Common Stock included in such registration pursuant to Sections 2, 3 or 4)
without the prior written consent of the Company for a period designated by the
Company in writing to the holders of Registrable Shares, which period shall not
begin more than 10 days prior to the effectiveness of the registration statement
pursuant to which such public offering shall be made and shall not last more
than 180 days after the effective date of such registration statement.
SECTION 7. Preparation and Filing. If and whenever the Company is under an
obligation pursuant to the provisions of this Agreement to use its best efforts
to effect the registration of any Registrable Shares, the Company shall, as
expeditiously as practicable:
(a) use its best efforts to cause a registration statement that
registers such Registrable Shares to become
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and remain effective for a period of 90 days (or 12 months for
registrations on Form S-3 or successor form) or until all of such
Registrable Shares have been disposed of (if earlier);
(b) furnish, at least five business days before filing a registration
statement that registers such Registrable Shares, a prospectus relating
thereto or any amendments or supplements relating to such a registration
statement or prospectus, to one counsel selected by the holders of a
majority in interest of Registrable Shares (the Investors' Counsel"),
copies for review and comment during such five days of all such documents
proposed to be filed (it being understood that such five-business-day
period need not apply to successive drafts of the same document proposed to
be filed so long as such successive drafts are supplied to the Investors'
Counsel in advance of the proposed filing by a period of time that is
customary and reasonable under the circumstances);
(c) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective for at least a period of 90 days (or 12 months for
registrations on Form S-3 or successor form) or until all of such
Registrable Shares have been disposed of (if earlier) and to comply with
the provisions of the Securities Act with respect to the sale or other
disposition of such Registrable Shares and furnish copies of all such
amendments and supplements to Investors' Counsel;
(d) notify in writing the Investors' Counsel promptly (i) of the
receipt by the Company of any notification with respect to any comments by
the Commission relating to such registration statement or prospectus or any
amendment or supplement thereto or any request by the Commission for the
amendment or supplement thereof or for additional information with respect
thereto, (ii) of the receipt by the Company of any notification with
respect to the issuance by the Commission of any stop order suspending the
effectiveness of such registration statement or prospectus or any amendment
or supplement thereto or the initiation or threatening of any proceeding
for that purpose and (iii) of the receipt by the Company of any
notification with respect to the suspension of the qualification of such
Registrable Shares for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purposes and furnish copies of all
such notices to Investors' Counsel;
(e) use its best efforts to register or qualify such Registrable
Shares under such other securities or "blue sky" laws of such jurisdictions
as the Investors reasonably request
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and do any and all other acts and things which may be reasonably necessary
or advisable to enable the holders of Registrable Shares to consummate the
disposition in such jurisdictions of such Registrable Shares; provided,
however, that the Company will not be required to qualify generally to do
business, subject itself to general taxation or consent to general service
of process in any jurisdiction where it would not otherwise be required to
do so but for this paragraph (e);
(f) furnish to the holders of Registrable Shares such number of copies
of a summary prospectus or other prospectus, including a preliminary
prospectus, in conformity with the requirements of the Securities Act, and
such other documents as the holders of Registrable Shares may reasonably
request in order to facilitate the public sale or other disposition of such
Registrable Shares;
(g) use its best efforts to cause such Registrable Shares to be
registered with or approved by such other governmental agencies or
authorities as may be necessary by virtue of the business and operations of
the Company to enable the holders of Registrable Shares to consummate the
disposition of such Registrable Shares;
(h) notify the holders of Registrable Shares on a timely basis at any
time when a prospectus relating to such Registrable Shares is required to
be delivered under the Securities Act within the appropriate period
mentioned in subparagraph (a) of this Section 6, 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 light of the
circumstances then existing and, at the request of the holders of
Registrable Shares, prepare and furnish to the holders of Registrable
Shares a reasonable number of copies of a supplement to or amendment of
such prospectus as may be necessary so that, as thereafter delivered to the
offerees 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 in light of the circumstances then existing;
(i) make available for inspection by the holders of Registrable
Shares, any underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other agent retained
by the holders of Registrable Shares or any underwriter (collectively, the
"Inspectors"), all pertinent financial and other records, pertinent
corporate documents and properties of the Company
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(collectively, the "Records"), as shall be reasonably necessary to enable
them to exercise their due diligence responsibility, and cause the
Company's officers, directors and employees to supply all information
(together with the Records, the "Information") reasonably requested by any
such holders of Registrable Shares in connection with such registration
statement. Any of the Information which the Company determines in good
faith to be confidential, and of which determination the Inspectors are so
notified, shall not be disclosed by the Inspectors unless (i) the
disclosure of such Information is necessary to avoid or correct a
misstatement or omission in the registration statement, (ii) the release of
such Information is ordered pursuant to a subpoena or other order from a
court of competent jurisdiction or (iii) such Information has been made
generally available to the public. The holders of Registrable Shares agree
that they will, upon learning that disclosure of such Information is sought
in a court of competent jurisdiction, give notice to the Company and allow
the Company, at the Company's expense, to undertake appropriate action to
prevent disclosure of the Information deemed confidential;
(j) use its best efforts to obtain from its independent certified
public accountants "cold comfort" letters in customary form and at
customary times and covering matters of the type customarily covered by
cold comfort letters;
(k) use its best efforts to obtain from its counsel an opinion or
opinions in customary form;
(l) provide a transfer agent and registrar (which may be the same
entity and which may be the Company) for such Registrable Shares;
(m) issue to any underwriter to which the holders of Registrable
Shares may sell shares in such offering certificates evidencing such
Registrable Shares;
(n) list such Registrable Shares on any national securities exchange
on which any shares of the Common Stock are listed or, if the Common Stock
is not listed on a national securities exchange, use its best efforts to
qualify such Registrable Shares for inclusion on the automated quotation
system of the National Association of Securities Dealers, Inc. (the
"NASD"), or such other national securities exchange as the holders of a
majority of the Registrable Shares shall request;
(o) otherwise use its best efforts to comply with all applicable rules
and regulations of the Commission and make available to its
securityholders, as soon as reasonably
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practicable, earnings statements (which need not be audited) covering a
period of 12 months beginning within three months after the effective date
of the registration statement, which earnings statements shall satisfy the
provisions of Section 11(a) of the Securities Act; and
(p) use its best efforts to take all other steps necessary to effect
the registration of such Registrable Shares contemplated hereby.
SECTION 8. Expenses. All expenses incurred by the Company in complying with
Section 7, including, without limitation, all registration and filing fees
(including all expenses incident to filing with the NASD), fees and expenses of
complying with securities and "blue sky" laws, printing expenses, fees and
expenses of the Company's counsel and accountants and fees and expenses of the
Investors' Counsel, shall be paid by the Company; provided, however, that all
underwriting discounts and selling commissions applicable to the Registrable
Shares shall not be borne by the Company but shall be borne by the holders of
Registrable Shares in proportion to the number of Registrable Shares sold by
each of them.
SECTION 9. Indemnification. In connection with any registration of any
Registrable Shares under the Securities Act pursuant to this Agreement, the
Company shall indemnify and hold harmless the holders of Registrable Shares,
each underwriter, broker or any other person acting on behalf of the holders of
Registrable Shares and each other person, if any, who controls any of the
foregoing persons within the meaning of the Securities Act against any losses,
claims, damages or liabilities, joint or several (or actions in respect
thereof), to which any of the foregoing persons may become 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 an
untrue statement or alleged untrue statement of a material fact contained in the
registration statement under which such Registrable Shares were registered under
the Securities Act, any preliminary prospectus or final prospectus contained
therein or otherwise filed with the Commission, any amendment or supplement
thereto or any document incident to registration or qualification of any
Registrable Shares, 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 or, with respect to any
prospectus, necessary to make the statements therein in light of the
circumstances under which they were made not misleading, or any violation by the
Company of the Securities Act or state securities or "blue sky" laws applicable
to the Company and relating to action or inaction required of the Company in
connection with such registration or qualification under such state securities
or blue sky laws; and shall reimburse the holders of Registrable Shares, such
underwriter, such broker or
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such other person acting on behalf of the holders of Registrable Shares and each
such controlling person for any legal or other expenses reasonably incurred by
any of them in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in said
registration statement, preliminary prospectus, final prospectus, amendment,
supplement or document incident to registration or qualification of any
Registrable Shares in reliance upon and in conformity with written information
furnished to the Company through an instrument duly executed by the holders of
Registrable Shares or underwriter specifically for use in the preparation
thereof.
In connection with any registration of Registrable Shares under the
Securities Act pursuant to this Agreement, each holder of Registrable Shares
shall indemnify and hold harmless (in the same manner and to the same extent as
set forth in the preceding paragraph of this Section 9) the Company, each
director of the Company, each officer of the Company who shall sign such
registration statement, each underwriter, broker or other person acting on
behalf of the holders of Registrable Shares and each person who controls any of
the foregoing persons within the meaning of the Securities Act with respect to
any statement or omission from such registration statement, any preliminary
prospectus or final prospectus contained therein or otherwise filed with the
Commission, any amendment or supplement thereto or any document incident to
registration or qualification of any Registrable Shares, if such statement or
omission was made in reliance upon and in conformity with written information
furnished to the Company or such underwriter through an instrument duly executed
by such holder of Registrable Shares specifically for use in connection with the
preparation of such registration statement, preliminary prospectus, final
prospectus, amendment, supplement or document; provided, however, that the
maximum amount of liability in respect of such indemnification shall be limited,
in the case of each seller of Registrable Shares, to an amount equal to the net
proceeds actually received by such seller from the sale of Registrable Shares
effected pursuant to such registration.
Promptly after receipt by an indemnified party of notice of the
commencement of any action involving a claim referred to in the preceding
paragraphs of this Section 9, such indemnified party will, if a claim in respect
thereof is made against an indemnifying party, give written notice to the latter
of the commencement of such action. In case any such action is brought against
an indemnified party, the indemnifying party will be entitled to participate in
and to assume the defense thereof, jointly with any other indemnifying party
similarly notified to the extent that it may wish, with counsel reasonably
satisfactory
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to such indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be responsible for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof; provided, however, that if any indemnified party shall have reasonably
concluded that there may be one or more legal or equitable defenses available to
such indemnified party which are additional to or conflict with those available
to the indemnifying party, or that such claim or litigation involves or could
have an effect upon matters beyond the scope of the indemnity agreement provided
in this Section 9, the indemnifying party shall not have the right to assume the
defense of such action on behalf of such indemnified party and such indemnifying
party shall reimburse such indemnified party and any person controlling such
indemnified party for that portion of the fees and expenses of any counsel
retained by the indemnified party which is reasonably related to the matters
covered by the indemnity agreement provided in this Section 9.
If the indemnification provided for in this Section 9 is held by a court of
competent jurisdiction to be unavailable to an indemnified party with respect to
any loss, claim, damage, liability or action referred to herein, then the
indemnifying party, in lieu of indemnifying such indemnified party hereunder,
shall contribute to the amounts paid or payable by such indemnified party as a
result of such loss, claim, damage, liability or action in such proportion as is
appropriate to reflect the relative fault of the indemnifying party on the one
hand and of the indemnified party on the other in connection with the statements
or omissions which resulted in such loss, claim, damage, liability or action as
well as any other relevant equitable considerations. The relative fault of the
indemnifying party and of the indemnified party shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the indemnifying party or by the indemnified
party and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
SECTION 10. Underwriting Agreement. Notwithstanding the provisions of
Sections 6, 7, 8 and 9, to the extent that the holders of Registrable Shares
shall enter into an underwriting or similar agreement, which agreement contains
provisions covering one or more issues addressed in such Sections, the
provisions contained in such Sections addressing such issue or issues shall be
of no force or effect with respect to such registration.
SECTION 11. Information by Holder. Each of the holders of Registrable
Shares proposing to sell the same pursuant to a registration to which this
Agreement relates shall furnish to the Company such written information
regarding the holders of
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Registrable Shares and the distribution proposed by such holders of Registrable
Shares as the Company may reasonably request in writing and as shall be
reasonably required in connection with any registration, qualification or
compliance referred to in this Agreement.
SECTION 12. Exchange Act Compliance. From the Registration Date or such
earlier date as a registration statement filed by the Company pursuant to the
Exchange Act relating to any class of the Company's securities shall have become
effective, the Company shall comply with all of the reporting requirements of
the Exchange Act (whether or not it shall be required to do so) and shall comply
with all other public information reporting requirements of the Commission which
are conditions to the availability of Rule 144 for the sale of the Common Stock.
The Company shall cooperate with the holders of Registrable Shares in supplying
such information as may be necessary for such holders to complete and file any
information reporting forms presently or hereafter required by the Commission as
a condition to the availability of Rule 144.
SECTION 13. No Conflict of Rights. The Company represents and warrants to
the holders of Registrable Shares that the registration rights granted to the
holders of Registrable Shares hereby do not conflict with any other registration
rights granted by the Company. The Company shall not, after the date hereof,
grant any registration rights which conflict with or impair the registration
rights granted hereby.
SECTION 14. Termination. This Agreement shall terminate and be of no
further force or effect when there shall not be any Restricted Shares.
SECTION 15. Successors and Assigns. This Agreement shall bind and inure to
the benefit of the Company and the holders of Registrable Shares and, subject to
Section 16, the respective successors and assigns of the Company and holders of
Registrable Shares.
SECTION 16. Assignment. Each holder of Registrable Shares may assign its
rights hereunder to any purchaser or transferee acquiring at least 50,000 of
such holder's Restricted Shares; provided, however, that such purchaser or
transferee shall, as a condition to the effectiveness of such assignment, be
required to execute a counterpart to this Agreement agreeing to be treated as
the seller or transferor hereunder whereupon such purchaser or transferee shall
have the benefits of, and shall be subject to the restrictions contained in,
this Agreement.
SECTION 17. Entire Agreement. This Agreement amends, restates and
supersedes in its entirety the Original Agreement,
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and contains the entire agreement among the parties with respect to the subject
matter hereof and supersede all prior and contemporaneous arrangements or
understandings with respect thereto.
SECTION 18. Notices. All notices, requests, consents and other
communications hereunder to any party shall be deemed to be sufficient if
contained in a written instrument delivered in person or sent by telecopy,
nationally-recognized overnight courier or first class registered or certified
mail, return receipt requested, postage prepaid, addressed to such party at the
address set forth below or such other address as may hereafter be designated in
writing by such party to the other parties:
(a) if to the Company, to:
BMJ Medical Management, Inc.
0000 X. Xxxxxxx Xxxxxxx
Xxxxx 000X
Xxxx Xxxxx, Xxxxxxx 00000
Attention: President
Telecopier: (000) 000-0000;
with a copy to:
X'Xxxxxxxx Graev & Karabell, LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxx, Esq.;
Telecopier: (000) 000-0000; and
(b) if to any Investor, to the address of such Investor set forth on
Schedule I hereto.
All such notices, requests, consents and other communications shall be deemed to
have been delivered and received (a) in the case of personal delivery or
delivery by telecopier, on the date of such delivery, (b) in the case of
dispatch by nationally-recognized overnight courier, on the next business day
following such dispatch and (c) in the case of mailing, on the third business
day after the posting thereof.
SECTION 19. Modifications; Amendments; Waivers. The terms and provisions of
this Agreement may not be modified or amended, nor may any provision be waived,
except pursuant to a writing signed by (i) the Company and (ii) the holders of
at least 80% of the Restricted Shares then issued and outstanding; provided,
however, that no modification or amendment shall be effective to reduce the
percentages of the shares of the holders the approval of which is required under
this Section 19 nor shall any modification or amendment discriminate against any
Investor without the consent of such Investor.
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SECTION 20. Counterparts. This Agreement may be executed in any number of
counterparts, and each such counterpart hereof shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
SECTION 21. Headings. The headings of the various sections of this
Agreement have been inserted for convenience of reference only and shall not be
deemed to be a part of this Agreement.
SECTION 22. Governing Law. This Agreement shall be governed by and
construed in accordance with the domestic laws of the State of New York without
giving effect to any choice or conflict of law provision or rule (whether in the
State of New York or any other jurisdiction) that would cause the application of
the laws of any jurisdiction other than the State of New York.
* * * *
-14-
IN WITNESS WHEREOF, the parties set forth below, constituting the holders
of at least 80% of the Restricted Shares, have executed this Third Amended and
Restated Registration Rights Agreement as of the date first written above.
BMJ MEDICAL MANAGEMENT, INC.
(f/k/a/ BONE, MUSCLE AND JOINT, INC.)
By:_______________________________
Xxxxx X. Xxxxx.
Executive Vice President and Chief
Financial Officer
DELPHI VENTURES III, L.P.
By: DELPHI MANAGEMENT PARTNERS
III, L.L.C,
its General Partner
By:_______________________________
Xxxxxx X. Xxxxxxx
Managing Member
DELPHI BIOINVESTMENTS III, L.P.
By: DELPHI MANAGEMENT PARTNERS
III, L.L.C,
its General Partner
By:_______________________________
Xxxxxx X. Xxxxxxx
Managing Member
OAK INVESTMENT PARTNERS VI, LIMITED
PARTNERSHIP
By: OAK ASSOCIATES VI, LIMITED
PARTNERSHIP,
its General Partner
By:_______________________________
Xxx X. Xxxxxx
Managing Member
OAK VI AFFILIATES FUND, LIMITED
PARTNERSHIP, L.P.
By: OAK VI AFFILIATES, LLC,
its General Partner
By:_______________________________
Xxx X. Xxxxxx
Managing Member
----------------------------------
Xxxxxx Xxxxxx, M.D.
CGJR HEALTH CARE SERVICES PRIVATE
EQUITIES, L.P.
By: CGJR CAPITAL MANAGEMENT, INC.,
its General Partner
By:_________________________________
Xxxxxxxxxxx Xxxxx, Jr.
President
CGJR II, L.P.
By: CGJR CAPITAL MANAGEMENT, INC.,
its General Partner
By:_________________________________
Xxxxxxxxxxx Xxxxx, Jr.
President
CGJR/MF III, L.P.
By: CGJR CAPITAL MANAGEMENT, INC.,
its General Partner
By:_________________________________
Xxxxxxxxxxx Xxxxx, Jr.
President
HIS VENTURES, LLC
By:_________________________________
Name:
Title:
SCHEDULE I
Investors
Delphi Ventures III, L.P. Delphi BioInvestments III, L.P.
0000 Xxxx Xxxx Xxxx 0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000 Building 1, Suite 135
Menlo Park, California 94025 Xxxxx Xxxx, XX 00000
Telecopier: (000) 000-0000 Telecopier: (000) 000-0000
Oak Investment Partners Oak VI Affiliates Fund
VI, L.P. Limited Partnership
One Xxxxxx Island One Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000 Xxxxxxxx, Xxxxxxxxxxx 00000
Telecopier: (000) 000-0000 Telecopier: (000) 000-0000
Xxxxxx & Company, Inc. Xxxxxx Xxxxxx, M.D.
000 Xxxx Xxxx Xxxxxx 0000 X.X. 00xx Xxxxxx
P.O. Box 299 Boca Raton, Florida 33496
Xxxxxxxx, Xxxxxxxxxxx 00000 Telecopier: (000) 000-0000
Telecopier: (000) 000-0000
CGJR Health Care Services CGJR II, L.P.
Private Equities, L.P. 000 Xxxxxxxx Xxxxxxxxx
000 Xxxxxxxx Xxxxxxxxx Xxxxx 000
Xxxxx 000 Xxxxxxxxx, Xxxxxxxxx 00000
Xxxxxxxxx, Xxxxxxxxx 00000 Telecopier: (000) 000-0000
Telecopier: (000) 000-0000
CGJR/MF III, L.P. HIS Ventures, LLC
000 Xxxxxxxx Xxxxxxxxx 000 Xxxxxxx
Xxxxx 000 Xxxxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000 Xxxxxxx, Xxxxx 00000-0000
Telecopier: (000) 000-0000 Telecopier: (000) 000-0000
