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EXHIBIT 4.9
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement"), is entered into
as of September 2, 1997 by and between FPA MEDICAL MANAGEMENT, INC., a Delaware
corporation (the "Company"), and the persons and entities listed on the
signature pages hereto (individually, a "Shareholder," and collectively, the
"Shareholders"),
W I T N E S S E T H:
WHEREAS, the Company, Sterling Healthcare Group, Inc., a Florida
corporation and wholly owned subsidiary of the Company ("Sterling"), EMC
Acquisition Corp., a Delaware corporation and wholly owned subsidiary of
Sterling, Emergency Medical Care Incorporated, a Missouri corporation ("EMC"),
and one of the Shareholders of EMC have entered into that certain Agreement and
Plan of Merger dated as of August 2, 1997 (the "Merger Agreement"), in which,
in consideration for the sale of the Shareholders' outstanding shares of
capital stock of EMC to the Company, the Shareholders are to receive, among
other things, shares of Common Stock, par value $0.002 per share, of the
Company (the "Common Stock"), which shares are not registered under the
Securities Act, as defined below; and
WHEREAS, the parties hereto wish to enter into this Agreement to
provide for the registration of such shares of Common Stock;
NOW, THEREFORE, in consideration of the mutual promises contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Shareholders
hereby agree as follows:
Article 1. Registration.
1.1 Certain Definitions. As used in this Agreement, the following
terms shall have the following meanings:
(a) "Advice": See the last paragraph of Section 2.2.
(b) "Commission" shall mean the Securities and Exchange Commission or
any other federal agency at the time administering the Securities Act.
(c) "Effectiveness Period": See Section 2.1(a).
(d) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any similar successor federal statute and the rules and regulations
thereunder, all as the same shall be in effect at the time.
(e) "Holder" shall mean the Shareholders, and any transferee or
subsequent transferee of Registrable Securities originally issued to the
Shareholders (other than a transferee who purchases the
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Registrable Securities in a sale effected pursuant to any Registration
Statement).
(f) "Prospectus" shall mean the prospectus included in any
Registration Statement (including, without limitation, a prospectus that
discloses information previously omitted from a prospectus filed as part of an
effective registration statement in reliance upon Rule 430A promulgated under
the Securities Act), as amended or supplemented by any prospectus supplement,
including, without limitation, with respect to the terms of the offering of any
portion of the Registrable Securities covered by such Registration Statement
and all other amendments and supplements to the prospectus, including
post-effective amendments, and all material incorporated by reference or deemed
to be incorporated by reference in such prospectus.
(g) "Register," "registered" and "registration" shall 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 statement.
(h) "Registrable Securities" shall mean shares of Common Stock issued
to the Shareholders pursuant to the Merger Agreement; provided, however, that
Registrable Securities shall not include any such shares of Common Stock which
have been sold under an effective Registration Statement by Shareholder.
(i) "Registration Expenses": See Section 2.3.
(j) "Registration Statement" shall mean any registration statement of
the Company that covers any of the Registrable Securities pursuant to the
provisions of this Agreement, including the Prospectus, amendments and
supplements to such registration statement, including post-effective
amendments, all exhibits, and all material incorporated by reference or deemed
to be incorporated by reference in such registration statement.
(k) "Rule 144" shall mean Rule 144 as promulgated by the Commission
under the Securities Act, as such rule may be amended from time to time, or any
similar successor rule that may be promulgated by the Commission.
(l) "Rule 415" shall mean Rule 415 as promulgated by the Commission
under the Securities Act, as such rule may be amended from time to time, or any
similar successor rule that may be promulgated by the Commission.
(m) "Securities Act" shall mean the Securities Act of 1933, as
amended, or any similar successor federal statute and the rules and regulations
thereunder, all as the same shall be in effect at the time.
2. Registration.
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2.1 Piggy Back Registration Rights. (a) If at any time during the
period commencing on the Effective Time (as defined in the Merger Agreement)
and ending on the earliest to occur of the following: (i) all Registrable
Securities have been sold under a Registration Statement, or (ii) Holders no
longer hold any Registrable Securities or (iii) all Registrable Securities held
by Holders may be sold in compliance with Rule 144 (the "Effectiveness
Period"), the Company proposes to register any of its securities under the
Securities Act on any form for the registration of securities under the
Securities Act, whether or not for its own account (other than by a
registration statement on Form S-4 or Form S-8 or other form which does not
include substantially the same information as would be required in a form for
the general registration of securities or would not be available for the
Registrable Securities) (a "Piggy Back Registration"), it shall as
expeditiously as possible give written notice to the Holders of its intention
to do so and of the Holders' rights under this Section 2. (Such rights are
referred to hereinafter as "Piggy Back Registration Rights.") Upon the written
request of the Holders made within five (5) business days after receipt of any
such notice (which request shall specify the Registrable Securities intended to
be disposed of by the Holders, excluding however, Registrable Securities
covered by a Registration Statement which has been declared effective under the
Securities Act), the Company shall include in the Registration Statement the
Registrable Securities which the Company has been so requested to register by
the Holders and the Company shall use reasonable efforts to prepare and file
with, and have declared effective by, the Commission a Registration Statement
with respect to all of the Registrable Securities. The Company shall use
reasonable efforts to maintain the effectiveness of any Registration Statement
covering Registrable Securities for the period necessary for the Holders to
effect the proposed sale or other disposition (but in no event for a period
greater than 90 days).
(b) If at any time after giving written notice of its intention to
register any securities in a Piggy Back Registration but prior to the effective
date of the related Registration Statement, the Company shall determine for any
reason not to register such securities, the Company shall give written notice
of such determination to the Holders and thereupon shall be relieved of its
obligation to register any Registrable Securities in connection with such Piggy
Back Registration.
(c) If a Piggy Back Registration involves an offering by or through
one or more underwriters, then the Holders, provided they have requested to
have Registrable Securities included in the Company's Registration Statement,
shall agree to sell their Registrable Securities to the underwriters selected
by the Company on the same terms and conditions as apply to other selling
shareholders and enter into an underwriting agreement with such underwriters
containing customary representations and warranties.
(d) The Registration Statement filed in accordance with this Section
may include other securities of the Company with respect to which registration
rights have been granted, and may include securities of the Company being sold
for the account of the Company.
(e) If a Piggy Back Registration involves an offering by or through
one or more underwriters, the Company shall not be required to include
Registrable Securities therein if and to the extent the underwriter managing
the offering reasonably believes in good faith and advises the Company (which
in turn advises the Holders) that such inclusion would materially adversely
affect such offering. In the event that less than all Registrable Securities
are to be included in a Registration Statement as a result of the provisions of
this Section 2.1(e), (i) all shares of Common Stock to be offered pursuant to
such Registration Statement by stockholders not holding contractual
registration rights shall first be excluded and (ii) thereafter, to the extent
necessary, the number of shares of Common Stock, if any,
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to be offered for the accounts of Holders and other stockholders of the Company
holding contractual registration rights shall be reduced pro rata on the basis
of the relative number of shares of Common Stock held by each stockholder that
are registrable pursuant to contractual registration rights to the number
recommended by such managing underwriter.
2.2 Registration Procedures. In connection with the Company's
registration obligations under Section 2.1 hereof, the Company shall effect
such registration to permit the sale of the Registrable Securities in
accordance with the method or methods of disposition thereof intended by the
Holder, and pursuant thereto the Company shall as expeditiously as practicable
(and any obligations of the Company relating to Registrable Securities shall
extend to Registrable Securities covered by an effective Registration
Statement, all of which have not yet been sold):
(a) Before filing any Registration Statement or Prospectus or any
amendments or supplements thereto (other than documents that would be
incorporated or deemed to be incorporated therein by reference and that the
Company is required by applicable securities laws or stock exchange
requirements to file), furnish to the Holders copies of all such documents
proposed to be filed, which documents will be subject to the review of such
Holders and their counsel, if any, and the Company shall not file any such
Registration Statement or amendment thereto or any Prospectus or any supplement
thereto (other than such documents which, upon filing, would be incorporated or
deemed to be incorporated by reference therein and that the Company is required
by applicable securities laws or stock exchange requirements to file) to which
the Holders of a majority of the securities covered by such Registration
Statement shall reasonably object on a timely basis. In the event of any such
objection, the Holders shall provide the Company with any required revisions to
such prospectus or supplement within ten (10) days of such objection.
(b) Prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as may be necessary to
keep such Registration Statement continuously effective for the applicable
period specified in Section 2.1(a); cause the related Prospectus to be amended
or supplemented by any required Prospectus amendment or supplement, and as so
amended or supplemented to be filed pursuant to Rule 424 (or any similar
provisions then in force) 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 the applicable period
in accordance with the methods of disposition intended by the Holders thereof
set forth in such Registration Statement as so amended or in such Prospectus as
so supplemented.
(c) Notify the Holders promptly, and confirm such notice in writing,
(i) when a Prospectus or any Prospectus supplement or post- effective amendment
has been filed, and, with respect to a Registration Statement or any
post-effective amendment, when the same has become effective, (ii) of any
request by the Commission or any other federal or state governmental authority
during the period of effectiveness of the Registration Statement for amendments
or supplements to a Registration Statement or related Prospectus or for
additional information, (iii) of the issuance by the Commission or any other
federal or state governmental authority of any stop order suspending the
effectiveness of a Registration Statement or the initiation of any proceedings
for that purpose, (iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification or exemption from qualification
of any of the Registrable Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, (v) of the
existence of any fact or the happening of any event that makes any statement
made in such Registration Statement or related Prospectus or any document
incorporated or deemed to be incorporated therein by reference untrue in any
material respect or which requires the making of any changes in such
Registration Statement, Prospectus or
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documents so that, in the case of the Registration Statement, it will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading, and that in the case of the Prospectus, it will not contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, and (vi) of
the Company's reasonable determination that a post-effective amendment to a
Registration Statement would be appropriate.
(d) Use all reasonable efforts to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement, or the lifting of any
suspension of the qualification (or exemption from qualification) of any of the
Registrable Securities for sale in any jurisdiction, at the earliest
practicable moment.
(e) If reasonably requested by the Holders of a majority of the
securities being sold, (i) promptly incorporate in a Prospectus supplement or
post-effective amendment such information as the Company or the Holders of a
majority of such securities agree should be included therein as required by
applicable law, (ii) make all required filings of such Prospectus supplement or
such post-effective amendment as soon as practicable after the Company has
received notification of the matters to be incorporated in such Prospectus
supplement or post-effective amendment, and (iii) supplement or make amendments
to any Registration Statement consistent with clause (i) or (ii) above;
provided, that the Company shall not be required to take any actions under this
paragraph that are not, in the opinion of outside counsel for the Company, in
compliance with applicable law.
(f) Furnish to each Holder and its counsel, if any, upon written
request and without charge, at least one conformed copy of the Registration
Statement or Statements and any post-effective amendment thereto, including
financial statements (but excluding schedules, all documents incorporated or
deemed to be incorporated therein by reference and all exhibits, unless
requested in writing by such Holder or counsel).
(g) Deliver to each Holder and its counsel, if any, without charge,
as many copies of the Prospectus or Prospectuses relating to such Registrable
Securities (including each preliminary prospectus) and any amendment or
supplement thereto as such Persons may reasonably request in writing; and the
Company hereby consents to the use of such Prospectus or each amendment or
supplement thereto by each Holder in connection with the offering and sale of
the Registrable Securities covered by such Prospectus or any amendment or
supplement thereto.
(h) Use all reasonable efforts to register and qualify the
Registrable Securities under (or obtain exemption from) the securities or Blue
Sky laws of such jurisdictions within the United States as any Holder
reasonably requests in writing; keep each such registration or qualification
(or exemption therefrom) effective during the applicable period set forth in
Section 2.1(a) and do any and all other acts or things necessary or advisable
to enable the disposition in such jurisdictions of the Registrable Securities
covered by the applicable Registration Statement; provided, that the Company
will not be required to (i) qualify generally to do business in any
jurisdiction where it is not then so qualified or (ii) take any action that
would subject it to general service of process in any such jurisdiction where
it is not then so subject.
(i) Cause the Registrable Securities covered by the applicable
Registration Statement to be registered with or approved by such other
governmental agencies or authorities within the United States, except as may be
required solely as a consequence of the nature of any Holder or Holders, in
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which case the Company will cooperate in all reasonable respects with the
filing of such Registration Statement and the granting of such approvals, as
may be necessary to enable such Holder or Holders to consummate the disposition
of such Registrable Securities.
(j) Within five (5) days following the occurrence of any event
contemplated by paragraphs 2.2(c)(v) or 2.2(c)(vi) above, prepare and file with
the Commission a supplement or post-effective amendment to each Registration
Statement or an amendment or supplement to the related Prospectus or any
document incorporated therein by reference or file any other required document
(such as a Current Report on Form 8-K) so that, as thereafter delivered to the
purchasers of the Registrable Securities being sold thereunder, such Prospectus
will not contain 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, in the light of the circumstances under which they were made, not
misleading; provided, however, that the five-(5) day period may be extended by
an additional 30 days if in the good faith judgment of the Board of Directors
of the Company, such amended or supplemental disclosures would be seriously
detrimental to the Company at such time and the Board of Directors concludes
that it is essential not to make such amended or supplemental disclosures and
the Company shall furnish to the Holders a certificate signed by the President
of the Company certifying thereto; provided further that the Company may not
extend such period more than once in any twelve-month period.
(k) If necessary in connection with a disposition of Registrable
Securities, make available for inspection, at the offices where normally kept
during reasonable business hours, by a representative of any Holder and any
attorney or accountant retained by such Holder, financial and other records,
pertinent corporate documents and properties of the Company and its
subsidiaries as they may reasonably request, and cause the officers, directors
and employees of the Company and its subsidiaries to supply all information
reasonably requested by any such representative, attorney or accountant in
connection with such disposition; provided, that any records, information or
documents that are designated by the Company in writing as confidential at the
time of delivery of such records, information or documents shall be kept
confidential by such Persons, and such Persons shall so agree in writing,
unless (i) such records, information or documents are in the public domain or
otherwise publicly available, (ii) disclosure of such records, information or
documents is required by court or administrative order or is necessary to
respond to inquiries of regulatory authorities or (iii) disclosure of such
records, information or documents is otherwise required by law (including,
without limitation, pursuant to the requirements of the Securities Act).
(l) Comply with all applicable rules and regulations of the
Commission and make generally available to its securityholders earning
statements satisfying the provisions of Section 11(a) of the Securities Act and
Rule 158 thereunder (or any similar rule promulgated under the Securities Act)
no later than 45 days after the end of any 12 month period (or 90 days after
the end of any 12 month period if such period is a fiscal year) commencing on
the first day of the first fiscal quarter of the Company, after the effective
date of a Registration Statement, which statements shall cover said 12 month
periods.
(m) Enter into such agreements and take all such other actions in
connection therewith in order to expedite or facilitate the disposition of such
Registrable Securities.
(n) Unless any Registrable Securities shall be in book-entry only
form, cooperate with the Holders and transfer agent and registrar to facilitate
the timely preparation and delivery of certificates representing Registrable
Securities to be sold and not bearing any restrictive legends; and enable such
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Registrable Securities to be in such denominations and registered in such names
as a Holder may request.
(o) Cause the Common Stock to be listed on each securities exchange
or quotation system on which the Company's Common Stock is then listed no later
than the date the Registration Statement is declared effective and, in
connection therewith, to the extent applicable, to make any required filings
under the Exchange Act and to have such filings declared effective thereunder.
The Company may require a Holder, and each Holder agrees, to furnish
to the Company such information regarding the distribution of such Registrable
Securities as the Company may, from time to time, reasonably request in writing
and the Company may exclude from such registration the Registrable Securities
of any Holder if such Holder unreasonably fails to furnish such information
within a reasonable time after receiving such request. Each Holder agrees
promptly to furnish to the Company all information required to be disclosed in
order to make the information previously furnished to the Company by such
Holder not misleading. Any sale of any Registrable Securities by any Holder
shall constitute a representation and warranty by such Holder that the
information relating to such Holder and its plan of distribution is as set
forth in the Prospectus delivered by such Holder in connection with such
disposition, that such Prospectus does not as of the time of such sale contain
any untrue statement of a material fact relating to such Holder or its plan of
distribution and that such Prospectus does not as of the time of such sale omit
to state any material fact relating to such Holder or its plan of distribution
necessary to make the statements in such Prospectus, in the light of the
circumstances under which they were made, not misleading.
Each Holder agrees that, upon receipt of any notice from the Company
of the happening of any event of the kind described in paragraphs 2.2(c)(ii),
2.2(c)(iii), 2.2(c)(iv), 2.2(c)(v) or 2.2(c)(vi) hereof, such Holder will
forthwith discontinue disposition of such Registrable Securities covered by the
applicable Registration Statement or Prospectus until such Holder's receipt of
the copies of the supplemented or amended Prospectus contemplated by paragraph
2.2(j) hereof, or until it is advised in writing (the "Advice") by the Company
that the use of the applicable Prospectus may be resumed, and has received
copies of any additional or supplemental filings that are incorporated or
deemed to be incorporated by reference in such Prospectus. The Company agrees
to give the Advice promptly after it determines that the use of the applicable
Prospectus may be resumed.
2.3 Registration Expenses. All fees and expenses incident to the
performance of or compliance with this Agreement by the Company shall be borne
by the Company whether or not any of the Registration Statements become
effective and whether or not any of the Registrable Securities are transferred
pursuant to the Registration Statement. Such fees and expenses shall include,
without limitation, (i) all registration and filing fees (including, without
limitation, fees and expenses (A) with respect to designation of the
Registrable Securities as eligible for trading on The Nasdaq Stock Market's
National Market, and (B) of compliance with securities or Blue Sky laws), (ii)
printing expenses (including, without limitation, expenses of printing
certificates for Registrable Securities in a form eligible for deposit with The
Depository Trust Company and of printing Prospectuses), (iii) messenger,
telephone and delivery expenses, (iv) fees and disbursements of counsel for the
Company and counsel for the Holders in connection with the Registration
Statement (provided that the Company shall not be liable for the reasonable
fees and expenses of more than one separate firm for all parties other than the
Company participating in any transaction hereunder), (v) reasonable fees and
disbursements of all independent certified public accountants, (vi) Securities
Act liability insurance if the Company so desires such insurance, and (vii)
fees and expenses of all other Persons retained by the Company. In addition,
the Company will, in any event, bear its own internal expenses
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(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expense of any annual
audit, the fees and expenses incurred in connection with the listing of the
Registrable Securities on any securities exchange on which similar securities
issued by the Company are then listed and the fees and expenses of any Person,
including special experts, retained by the Company. The Holders shall pay all
underwriting or brokerage commissions and discounts, if any, associated with
the Registrable Securities being sold by the Holders pursuant to the Piggy Back
Registration.
3. Indemnification.
(a) To the maximum extent permitted by law, the Company will
indemnify and hold harmless each Holder of such Registrable Securities and each
person, if any, who controls such Holder within the meaning of the Securities
Act or the Exchange Act, against any losses, claims, damages or liabilities
(joint or several) to which they may become subject under the Securities Act,
the Exchange Act or other federal or state law, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any of the following statements, omissions or violations
(collectively, a "Violation"): (i) any untrue statement or alleged untrue
statement of a material fact contained in such registration statement,
including any preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto, (ii) 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 (iii) any violation or alleged
violation by the Company of the Securities Act, the Exchange Act, any state
securities law or any rule or regulation promulgated under the Securities Act,
the Exchange Act or any state securities law; and the Company will reimburse
each such Holder or controlling person for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
indemnity agreement contained in this Section shall not apply to amounts paid
in settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Company (which consent shall
not be unreasonably withheld), nor shall the Company be liable in any such case
for any such loss, claim, damage, expense, liability or action to the extent
that it arises out of or is based upon a Violation which arises out of or is
based upon information furnished in writing for use in connection with such
registration by any such Holder or controlling person; provided, further, that
the Company will not be liable to any Holder or controlling person with respect
to any loss, claim, damage, expense or liability arising out of or based upon
any untrue statement or alleged untrue statement or omission or alleged
omission to state a material fact in any preliminary prospectus which is
corrected in an amended, supplemented or final prospectus if the purchaser
asserting such loss, claim, damage, expense or liability purchased from such
Holder and was not sent or given a copy of such amended, supplemented or final
prospectus at or prior to the sale of Registrable Securities to such purchaser.
(b) To the maximum extent permitted by law, each Holder will, if
Registrable Securities held by such Holder are included in the Registrable
Securities as to which such registration, qualification or compliance is being
effected, indemnify and hold harmless the Company and each person who controls
the Company within the meaning of the Securities Act or the Exchange Act,
against any losses, claims, damages or liabilities (joint or several) to which
the Company or any such controlling person may become subject, under the
Securities Act, the Exchange Act or other federal or state law, insofar as such
losses, claims, damages or liabilities (or actions in respect thereto) arise
out of or are based upon any Violation, in each case to the extent (and only to
the extent) that such Violation arises out of or is based upon information
furnished in writing by such Holder for use in connection with
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such registration; and each such Holder will reimburse any legal or other
expenses reasonably incurred by the Company or any such controlling person in
connection with investigating or defending any such loss, claim, damage,
liability, or action; provided, however, that the indemnity agreement contained
in this Section shall not apply to amounts paid in settlement of any such loss,
claim, damage, liability or action if such settlement is effected without the
consent of the Holder, which consent shall not be unreasonably withheld. Each
Holder's liability under this paragraph shall not exceed the net proceeds
actually received by such Holder from the sale of Registrable Securities held
by such Holder included in such registration, qualification or compliance.
(c) Each party entitled to indemnification under this Section (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified
Party has actual knowledge of any claim as to which indemnity may be sought,
and shall permit the Indemnifying Party to assume the defense of any such claim
or any litigation resulting therefrom, provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or litigation,
shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld). Without limiting the generality of the foregoing,
the Indemnified Party may withhold its consent to any such counsel who also
acts as counsel to the Indemnifying Party (with respect to such claim or
otherwise) and the Indemnified Party reasonably believes that there exists a
conflict of interest between the Indemnified Party and the Indemnifying Party,
with respect to such claim or litigation. In such event, the Indemnifying
Party shall bear the expense of another counsel who shall represent the
Indemnified Party and any other persons or entities who have indemnification
rights from the Indemnifying Party hereunder, with respect to such claim or
litigation, and shall be selected as provided in the first sentence of this
paragraph. The Indemnified Party may participate in such defense at such
party's expense (except to the extent that the Indemnifying Party is required
to pay the expense of such counsel pursuant to this paragraph). The failure of
any Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Agreement, unless such failure
is materially prejudicial to the Indemnifying Party in defending such claim or
litigation. No Indemnifying Party, in the defense of any such claim or
litigation, shall, except with the consent of each Indemnified Party, consent
to entry of any judgment or enter into any settlement which does not include as
an unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability with respect to such claim or
litigation.
(d) If the indemnification provided for in this Section is held by a
court of competent jurisdiction to be unavailable to an Indemnified Party with
respect to any loss, liability, claim, damage or expense referred to therein,
then the Indemnifying Party, in lieu of indemnifying such Indemnified Party
hereunder, shall contribute to the amount paid or payable by such Indemnified
Party as a result of such loss, liability, claim, damage or expense 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, liability, claim,
damage or expense 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 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. Each Holder's
liability under this paragraph shall not exceed the net proceeds actually
received by such Holder from the sale of Registrable Securities held by such
Holder included in the relevant registration, qualification or compliance.
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4. Information Requirements
(a) The Company shall file in a timely manner the reports required to
be filed by it under the Securities Act and the Exchange Act, and if at any
time the Company is not required to file such reports, it will, upon the
request of any Holder, make publicly available other information so long as
necessary to permit sales pursuant to Rule 144 under the Securities Act. The
Company further covenants that it will cooperate with any Holder and take such
further action as such Holder may reasonably request (including without
limitation making such representations as any such Holder may reasonably
request), all to the extent required from time to time to enable such Holder to
sell Registrable Securities without registration under the Securities Act
within the limitation of the exemptions provided by Rule 144 under the
Securities Act. Upon the request of any Holder, the Company shall deliver to
such Holder a written statement as to whether it has complied with such filing
requirements.
(b) The Company shall file in a timely manner the reports required to
be filed by it under the Exchange Act and shall comply with all other
requirements set forth in the instructions to Form S-3 in order to allow the
Company to be eligible to file registration statements on Form S-3.
5. Miscellaneous.
5.1 No Inconsistent Agreements. The Company has not entered, as
of the date hereof, and shall not enter, on or after the date of this
Agreement, any agreement with respect to its securities which is inconsistent
with the rights granted to the Holders in this Agreement [except for that
certain Registration Rights Agreement to be entered into by and among the
Company and certain of the stockholders of Health Partners, Inc.].
5.2 Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of each
Holder.
5.3 Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing and shall be deemed given (i) when
made, if made by hand delivery, (ii) upon confirmation, if made by facsimile
transmission or (iii) one business day after being deposited with a reputable
next-day courier, charges prepaid, to the parties as follows:
(a) if to a Holder, at the most current address given by
such Holder to the Company in accordance with the provisions of this
Section (or, if no such address has been furnished by such Holder, to
such Holder in care of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ 63005); and
(b) if to the Company,
FPA Medical Management, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
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or to such other address as any party may have furnished to the other parties
in writing in accordance herewith.
5.4 Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and permitted assigns of each of
the parties. The Company may not assign its rights or obligations hereunder
without the prior written consent of Holders of a majority of the Registrable
Securities.
5.5 Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
5.6 Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
5.7 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California, as applied to
contracts made and performed within the State of California, without regard to
principles of conflicts of laws.
5.8 Severability. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction to be invalid,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall
in no way be affected, impaired or invalidated, and the parties hereto shall
use their best efforts to find and employ an alternative means to achieve the
same or substantially the same result as that contemplated by such term,
provision, covenant or restriction. It is hereby stipulated and declared to be
the intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such which may
be hereafter declared invalid, void or unenforceable.
5.9 Entire Agreement. This Agreement is intended by the parties
as a final expression of their agreement and is intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein and the registration rights
granted by the Company with respect to the Common Stock issued to Shareholder
pursuant to the Merger Agreement. Except as provided in the Merger Agreement,
there are no restrictions, promises, warranties or undertakings, other than
those set forth or referred to herein, with respect to the registration rights
granted by the Company with respect to the Common Stock. This Agreement
supersedes all prior agreements and understandings among the parties with
respect to such registration rights.
5.10 Attorneys' Fees. In any action or proceeding brought to
enforce any provision of this Agreement, or where any provision hereof is
validly asserted as a defense, the prevailing party, as determined by the
court, shall be entitled to recover reasonable attorneys' fees in addition to
any other available remedy.
5.11 Further Assurances. Each of the parties hereto shall use all
reasonable efforts to take, or cause to be taken, all appropriate action, do or
cause to be done all things reasonably necessary, proper or advisable under
applicable law, and execute and deliver such documents and other papers, as may
be required to carry out the provisions of this Agreement and the other
documents contemplated hereby and consummate and make effective the
transactions contemplated hereby.
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5.12 Termination. This Agreement and the obligations of the
parties hereunder shall terminate at the end of the Effectiveness Period,
except for any liabilities or obligations under Sections 2.3 or 3 or the
proviso of paragraph 2.2(k) above, which shall remain in effect in accordance
with their terms.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
FPA Medical Management, Inc.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Title Senior Vice President and Secretary
------------------------------------
Shareholders:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ - Trustee
-----------------------------------------
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ - Trustee
-----------------------------------------
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