EXHIBIT 10.2
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement ("Agreement") is made and entered
into this 31st day of December, 2002, by and among WellPoint Health Networks
Inc., Aetna Inc., CIGNA Health Corporation, Health Net, Inc. (formerly
Foundation Health Systems, Inc.), Oxford Health Plans, Inc., Anthem Insurance
Companies, Inc., PacifiCare Health Systems, Inc., and NDCHealth Corporation
(each, a "Stockholder" and collectively, the "Stockholders"), and PROXYMED,
INC., a Florida corporation (referred to as "ProxyMed").
WHEREAS, pursuant to an Indenture, dated December 31, 2002 (the
"Indenture"), by and between ProxyMed and LaSalle Bank, N.A., national banking
association, as trustee (the "Trustee"), ProxyMed has agreed to issue and sell
to the Stockholders an aggregate of $13,400,000 principal amount of 4%
Convertible Notes due December 31, 2008 (the "Notes") as partial consideration
in connection with the merger contemplated in that certain Agreement and Plan
of Merger and Reorganization, dated December 31, 2002 (the "Merger Agreement")
between ProxyMed, Davie Acquisition Sub, a Delaware corporation and MedUnite
Inc., a Delaware corporation; and
WHEREAS, in order to induce each Stockholder to vote for the approval
of the Merger (as defined in the Merger Agreement) and to accept the Notes as
consideration in the Merger ProxyMed has agreed to provide the Stockholders and
their direct and indirect transferees the registration rights set forth in this
Agreement.
NOW, THEREFORE, in consideration of the agreements contained herein
and other good and valuable consideration, the receipt of which are hereby
acknowledged, the Stockholders, individually and collectively, and ProxyMed,
intending to be legally bound, hereby agree as follows:
1. Grant of Rights. ProxyMed hereby grants registration rights
to the Designated Holders (as hereinafter defined) upon the terms and
conditions set forth in this Agreement.
(a) Definitions. As used in this Agreement, and unless
the context requires a different meaning, the following terms have the meanings
indicated:
"Business Day" shall mean each Monday, Tuesday,
Wednesday, Thursday and Friday that is not a day on which banking institutions
in The City of New York are authorized or obligated by law or executive order to
close.
"Common Stock" means the Common Stock, par value
$0.001 per share, of ProxyMed or any other capital stock of ProxyMed into which
such stock is reclassified or reconstituted and any other common stock of
ProxyMed.
"Damages Payment Date" means each interest payment
date under the Indenture in the case of the Notes, and each March 15 and
September 15 in the case of the Registrable Securities.
"Designated Holder" means a Stockholder and any of
its transferees to whom Registrable Securities have been transferred in
accordance with Section 7 of this Agreement, other than a transferee to whom
Registrable Securities have been transferred pursuant to a Registration
Statement under the Securities Act or Rule 144 or Regulation S under the
Securities Act (or any successor rule thereto).
"Exchange Act" means the Securities Exchange Act of
1934, as amended.
"Notice of Sale" means a written notice specifying
the intended manner of sale of Registrable Securities and the identity of the
person or entity for whose account the Registrable Securities will be sold.
"Registration Expenses" shall mean any and all
expenses incident to performance of or compliance by ProxyMed with this
Agreement, including without limitation: (i) all SEC, stock exchange or
National Association of Securities Dealers, Inc. registration and filing fees,
(ii) all fees and expenses incurred in connection with compliance with state
securities or blue sky laws (including reasonable fees and disbursements of
counsel for any underwriters or Designated Holders in connection with blue sky
qualification of any of the Registrable Securities), (iii) all expenses
incurred by ProxyMed in preparing or assisting in preparing, word processing,
printing and distributing any Registration Statement, any Prospectus, any
amendments or supplements thereto, any underwriting agreements, securities
sales agreements and other documents relating to the performance of and
compliance with this Agreement, (iv) all fees and disbursements relating to the
qualification of the Indenture under applicable securities laws, (v) the fees
and disbursements of the Trustee and its counsel, (vi) the fees and
disbursements of counsel for ProxyMed and the reasonable fees and disbursements
of one counsel for the Designated Holders and (vii) the fees and disbursements
of the independent public accountants of ProxyMed, including the expenses of
any special audits or "cold comfort" letters required by or incident to such
performance and compliance, but excluding fees and expenses of counsel to the
underwriters (other than fees and expenses set forth in clause (ii) above) or
the Designated Holders (other than fees and expenses set forth in clause (vi)
above) and underwriting discounts, SEC fees and transfer taxes, if any,
relating to the sale or disposition of Registrable Securities by a Designated
Holder.
"Registrable Securities" means each of the
following: (a) any and all shares of Common Stock issued or issuable to any of
the Designated Holders upon conversion of the Notes, and (b) any shares of
Common Stock issued or issuable to any of the Designated Holders with respect
to the Registrable Securities by way of stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization or otherwise and any shares of Common
Stock or voting common stock issuable upon conversion, exercise or exchange
thereof.
"Registration Trigger Date" means the date on which
the Stockholder achieves the first Triggering Event as set forth in the
Indenture.
"SEC" shall mean the Securities and Exchange
Commission.
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"Shelf Registration" shall mean a registration
effected pursuant to Section 1(c) hereof.
"Shelf Registration Statement" shall mean a "shelf"
registration statement of ProxyMed pursuant to the provisions of Section 1 of
this Agreement providing for the registration of, and the sale on a continuous
or delayed basis by the holders of, all of the Registrable Securities pursuant
to Rule 415 under the Securities Act, or any similar rule that may be adopted
by the SEC, and all amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by
reference therein. As the context may require, "Shelf Registration Statement"
shall include any Subsequent Shelf Registration Statement.
"Securities Act" means the Securities Act of 1933,
as amended, and the rules and regulations of the SEC promulgated thereunder.
"Subsequent Shelf Registration Statement" shall have
the meaning set forth in Section 1(d) hereof.
"Trustee" shall mean the trustee with respect to the
Notes under the Indenture.
"Underwriter" shall mean the investment banker or
investment bankers or manager or managers that shall administer an underwritten
offering, if any, conducted pursuant to this Agreement.
(b) Holders of Registrable Securities. A Person is
deemed to be a Holder of Registrable Securities whenever such Person owns of
record Registrable Securities, or a security convertible into, Registrable
Securities whether or not such acquisition or conversion has actually been
effected. If ProxyMed receives conflicting instructions, notices or elections
from two or more Persons with respect to the same Registrable Securities,
ProxyMed may act upon the basis of the instructions, notice or election
received from the registered owner of such Registrable Securities. Registrable
Securities issuable upon conversion of another security shall be deemed
outstanding for the purposes of this Agreement.
(c) Shelf Registration. ProxyMed shall, on or prior to
30 calendar days after the Registration Trigger Date (the "Filing Deadline
Date"), file with the SEC a Shelf Registration Statement providing for the sale
by the Holders of all of the Registrable Securities and, thereafter, shall use
its reasonable best efforts to have such Shelf Registration Statement declared
effective by the SEC on or prior to 200 calendar days after the Registration
Trigger Date (the "Effectiveness Deadline Date"). ProxyMed agrees to use its
reasonable best efforts to keep the Shelf Registration Statement continuously
effective until the expiration of the period referred to in Rule 144(k)
promulgated by the SEC with respect to the Registrable Securities or such
shorter period that will terminate when all of the Registrable Securities
covered by the Shelf Registration Statement have been sold pursuant to the
Shelf Registration Statement (such period being referred to herein as the
"Effectiveness Period"). At the time the Shelf Registration Statement is
initially declared effective, each Designated Holder shall be named as a
selling securityholder in the Shelf Registration Statement and the related
Prospectus in such a manner as to comply with Item 507 of Regulation S-K and
any other disclosure laws or regulations
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applicable to selling securityholders under the Securities Act. ProxyMed shall
not include the securities proposed to be sold by ProxyMed or by any other
shareholder in the Shelf Registration Statement to the extent the underwriter
or underwriters of the Registrable Securities otherwise being registered under
the Shelf Registration Statement shall determine in good faith that the
inclusion of such securities would jeopardize the successful sale at the
desired price of the Registrable Securities proposed to be sold by such
underwriter or underwriters.
(d) If (i) the Shelf Registration Statement or any
Subsequent Shelf Registration Statement ceases to be effective for any reason
at any time during the Effectiveness Period (other than because all Registrable
Securities registered thereunder shall have been resold pursuant thereto or
shall have otherwise ceased to be Registrable Securities) or (ii) sales of some
or all of a Designated Holder's Registrable Securities may not be made pursuant
to the Shelf Registration Statement or any Subsequent Shelf Registration
Statement for any other reason during the Effectiveness Period (other than on
Business Days on which financial markets are generally closed or because of a
Deferral Period), ProxyMed shall use its reasonable best efforts to obtain the
prompt withdrawal of any order suspending the effectiveness thereof or to
permit such sales, including by (A) amending, within thirty (30) days of such
cessation of effectiveness, the Shelf Registration Statement in a manner
reasonably expected to obtain the withdrawal of the order suspending the
effectiveness thereof or to permit such sales, or (B) by filing an additional
Shelf Registration Statement pursuant to Rule 415 covering all of the
securities that as of the date of such filing are Registrable Securities (a
"Subsequent Shelf Registration Statement"). If a Subsequent Shelf Registration
Statement is filed, ProxyMed shall use its reasonable best efforts to cause the
Subsequent Shelf Registration Statement to become effective as promptly as is
practicable after such filing and to keep such Registration Statement (or any
subsequent Shelf Registration Statement) continuously effective until the end
of the Effectiveness Period.
(e) ProxyMed further agrees to, after the effective time
of the Shelf Registration Statement, supplement or amend the Shelf Registration
Statement if required by the rules, regulations or instructions applicable to
the registration form used by ProxyMed for such Shelf Registration Statement or
by the Securities Act or by any other rules and regulations thereunder for
shelf registration or if reasonably requested by a Designated Holder with
respect to information relating to such Designated Holder, including without
limitation any action necessary to identify such Designated Holder as a selling
securityholder in the Shelf Registration Statement, and to use its reasonable
best efforts to cause any such supplement to be filed or amendment to become
effective and such Shelf Registration Statement to become usable as soon as
thereafter practicable. ProxyMed agrees to furnish to the Designated Holders of
Registrable Securities copies of any such supplement or amendment promptly
after its being used or filed with the SEC.
(f) If at any time the Notes are convertible into
securities other than the Common Stock pursuant to the definition of "Common
Stock" in the Indenture, ProxyMed shall, or shall cause any successor under the
Indenture to, cause such securities to be included in the Shelf Registration
Statement no later than the date on which the Securities may then be
convertible into such securities.
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(g) ProxyMed shall pay all Registration Expenses in
connection with the registration pursuant to this Section 1. Each Designated
Holder shall pay pro rata based on the amount of securities sold all
underwriting discounts, SEC fees and transfer taxes, if any, relating to the
sale or disposition of such Designated Holder's Registrable Securities.
(h) Each Designated Holder of Registrable Securities
wishing to sell Registrable Securities pursuant to a Shelf Registration
Statement and related Prospectus agrees to deliver a completed and signed
Notice of Sale to ProxyMed at least three (3) Business Days prior to any
intended distribution of Registrable Securities under the Shelf Registration
Statement; it being understood that, the Designated Holders of Registrable
Securities covered by a Shelf Registration Statement who desire to do so may
sell such Registrable Securities in an underwritten offering. From and after
the Effective Time, ProxyMed shall, as promptly as practicable after the date a
Notice of Sale is delivered, and in any event on or prior to the later of (x) 5
Business Days after such date or (y) 5 Business Days after the expiration of
any Deferral Period in effect when the Notice of Sale is delivered or put into
effect within ten (10) Business Days of such delivery date, (i) if required by
applicable law, file with the SEC a post-effective amendment to the Shelf
Registration Statement or a Subsequent Shelf Registration Statement or prepare
and, if required by applicable law, file a supplement to the related Prospectus
or a supplement or amendment to any document incorporated therein by reference
or file any other required document so that the Designated Holder delivering
such Notice of Sale is named as a selling security Designated Holder in the
Shelf Registration Statement (or such Subsequent Shelf Registration Statement)
and the related Prospectus in such a manner as to comply with Item 507 of
Regulation S-K and any other disclosure laws or regulations applicable to
selling security Designated Holders under the Securities Act and, if ProxyMed
shall file a post-effective amendment to the Shelf Registration Statement or a
Subsequent Shelf Registration Statement, use its reasonable best efforts to
cause such post-effective amendment (or such Subsequent Shelf Registration
Statement) to be declared effective under the Securities Act as promptly as is
practicable, but in any event by the date that is forty-five (45) days after
the date such post-effective amendment (or such Subsequent Shelf Registration
Statement) is required by this clause to be filed; (ii) provide such Designated
Holder copies of any documents filed pursuant to Section 1(h)(i) upon written
request; and (iii) notify such Designated Holder as promptly as practicable
after the effectiveness under the Securities Act of any post-effective
amendment or a Subsequent Shelf Registration Statement filed pursuant to
Section 1(h)(i); provided, that if such Notice of Sale is delivered during a
Deferral Period or a Deferral Period is put into effect within ten (10)
Business Days after such delivery date, ProxyMed shall so inform the Designated
Holder delivering such Notice of Sale and shall take the actions set forth in
clauses (i), (ii) and (iii) above within fifteen (15) Business Days of the
expiration of the Deferral Period in accordance with Section 2(d).
(i) The parties hereto agree that the Designated Holders
of Registrable Securities will suffer damages, and that it would not be feasible
to ascertain the extent of such damages with precision, if the Shelf
Registration Statement has not been declared effective under the Securities Act
on or prior to the Effectiveness Deadline Date (referred to herein as an
"Event," and the "Event Date" for purposes hereof shall be the Effectiveness
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Deadline Date). Events shall be deemed to continue until the "Event Termination
Date," which shall be the date the Shelf Registration Statement is filed.
Accordingly, commencing on (and including) any Event Date and
ending on (but excluding) the next date on which there are no Events that have
occurred and are continuing (a "Damages Accrual Period"), ProxyMed agrees to
pay, as liquidated damages and not as a penalty, an amount (the "Liquidated
Damages Amount"), payable on the Damages Payment Dates to Designated Holders of
Notes and Registrable Securities, as the case may be, accruing, for each
portion of such Damages Accrual Period beginning on and including a Damages
Payment Date (or, in respect of the first time that the Liquidated Damages
Amount is to be paid to Designated Holders on a Damages Payment Date as a
result of the occurrence of any particular Event, from the Event Date) and
ending on but excluding the first to occur of (A) the date of the end of the
Damages Accrual Period or (B) the next Damages Payment Date, at a rate per
annum equal to one percent (1.0%) of the aggregate principal amount of such
Notes or, in the case of Notes that have been converted into Common Stock, at a
rate per annum of one percent (1.0%) of an amount equal to the number of shares
of Common Stock multiplied by the quotient of $1,000 divided by the Conversion
Rate during such periods, as the case may be, in each case determined as of the
Business Day immediately preceding the next Damages Payment Date; provided,
that any Liquidated Damages Amount accrued with respect to any Note or portion
thereof converted into Common Stock on a conversion date prior to the Damages
Payment Date, shall, in any such event, be paid instead to the Designated
Holder who submitted such Note or portion thereof for conversion on the
applicable conversion date. Notwithstanding the foregoing, no Liquidated
Damages Amounts shall accrue as to any Registrable Security from and after the
earlier of (x) the date such security is no longer a Registrable Security and
(y) expiration of the Effectiveness Period. The rate of accrual of the
Liquidated Damages Amount with respect to any period shall not exceed the rate
provided for in this paragraph notwithstanding the occurrence of multiple
concurrent Events. Following the cure of all Events requiring the payment by
ProxyMed of Liquidated Damages Amounts to the Designated Holders of Registrable
Securities pursuant to this Section, the accrual of Liquidated Damages Amounts
will cease (without in any way limiting the effect of any subsequent Event
requiring the payment of any Liquidated Damages Amount by ProxyMed).
The Trustee shall be entitled, on behalf of Designated
Holders of Notes or Registrable Securities, to seek any available remedy for
the enforcement of this Agreement, including for the payment of any Liquidated
Damages Amount. Notwithstanding the foregoing, the parties agree that the sole
damages payable for a violation of the terms of this Agreement with respect to
which liquidated damages are expressly provided shall be such liquidated
damages. Nothing shall preclude a Designated Holder of Notes or a Designated
Holder of Registrable Securities from pursuing or obtaining specific
performance or other equitable relief with respect to this Agreement.
All of ProxyMed's obligations set forth in this Section 1(i)
that are outstanding with respect to any Registrable Security at the time such
security ceases to be a Registrable Security shall survive until such time as
all such obligations with respect to such security have been satisfied in full.
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The parties hereto agree that the liquidated damages provided
for in this Section 1(i) constitute a reasonable estimate of the damages that
may be incurred by Designated Holders of Registrable Securities by reason of
the failure of the Shelf Registration Statement to be declared effective prior
to the Effectiveness Registration Date in accordance with the provisions
hereof.
2. Obligations of ProxyMed. Whenever registration of the
Registrable Securities is required pursuant to Section 1(c) of this Agreement,
the following shall apply:
(a) ProxyMed shall prepare and file with the SEC a
Registration Statement or Registration Statements on any appropriate form under
the Securities Act available for the sale of the Registrable Securities by the
Designated Holders thereof in accordance with the intended method or methods of
distribution thereof, and use its reasonable best efforts to cause each such
Registration Statement to become effective and remain effective as provided
herein; provided, that before filing any Registration Statement or Prospectus
or any amendments or supplements thereto with the SEC (other than amendments or
supplements prepared by ProxyMed in performance of its obligations under
Section 1(h)), ProxyMed shall furnish to the Designated Holders'
Representative, copies of all such documents proposed to be filed and use its
reasonable best efforts to reflect in each such document when so filed with the
SEC such comments as counsel to the Stockholders reasonably shall propose
within five (5) Business Days of the delivery of such copies to the
Stockholders and such counsel. The provisions of this Section shall not apply
to filings by ProxyMed under the Exchange Act that are incorporated by
reference in such Registration Statement or Prospectus.
(b) ProxyMed shall prepare and file with the SEC such
amendments and supplements to the Registration Statement and the prospectus
included therein as may be necessary to keep the Registration Statement during
the Effectiveness Period and to comply with the provisions of the Securities
Act and regulations of the SEC thereunder with respect to disposition of the
Registrable Securities during such period, in accordance with the intended
methods of disposition by the Designated Holders as set forth in the
Registration Statement.
(c) ProxyMed shall provide Designated Holders and the
Underwriter, if any, with such reasonable number of copies of the prospectus
included in the Registration Statement (in preliminary and definitive form) or
supplements thereto as may be reasonably required and such other documents as
each Designated Holder or Underwriter, if any, may reasonably request to
facilitate the disposition of the Registrable Securities. Subject to Section
2(d) hereof, ProxyMed consents to the use of such Prospectus and any amendment
or supplement thereto in accordance with applicable law by each of the selling
Designated Holders of Registrable Securities and any Underwriters, if any, in
connection with the offering and sale of the Registrable Securities covered by
and in the manner described in such Prospectus or any amendment or supplement
thereto in accordance with applicable law.
(d) Upon (A) the issuance by the SEC of a stop order
suspending the effectiveness of a Shelf Registration Statement or the
initiation of proceedings with respect to a Shelf Registration Statement under
Section 8(d) or 8(e) of the Securities Act, (B) the occurrence
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of any event or the existence of any fact (a "Material Event") as a result of
which any Registration Statement shall 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, or any Prospectus
shall 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, or (C) the occurrence or existence of any pending corporate
development that, in the reasonable discretion of ProxyMed, makes it
appropriate to suspend the availability of a Shelf Registration Statement and
the related Prospectus for a discrete period of time, (i) in the case of clause
(B) above, subject to the second succeeding sentence, as promptly as
practicable prepare and file, if necessary pursuant to applicable law, a
post-effective amendment to such Registration Statement or a supplement to the
related Prospectus or any document incorporated therein by reference or file
any other required document that would be incorporated by reference into such
Registration Statement and Prospectus so that such Registration Statement does
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 such Prospectus does 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, as thereafter
delivered to the purchasers of the Registrable Securities being sold
thereunder, and, in the case of a post-effective amendment to a Registration
Statement, subject to the second succeeding sentence, use its reasonable best
efforts to cause it to be declared effective as promptly as is practicable, and
(ii) give notice to each Designated Holder, counsel to the Stockholders and the
Underwriters, if any, that the availability of such Registration Statement is
suspended (a "Deferral Notice") and, upon receipt of any Deferral Notice, each
Designated Holder agrees not to sell any Registrable Securities pursuant to
such Registration Statement until such Designated Holder's receipt of copies of
the supplemented or amended Prospectus provided for in clause (i) above, or
until it is advised in writing by ProxyMed that the Prospectus may be used, and
has received copies of any additional or supplemental filings that are
incorporated or deemed incorporated by reference in such Prospectus. Subject to
the next sentence, ProxyMed will use its reasonable best efforts to ensure that
the use of the Prospectus may be resumed (x) in the case of clause (A) above,
as promptly as is practicable, (y) in the case of clause (B) above, as soon as,
in the sole judgment of ProxyMed, public disclosure of such Material Event
would not be prejudicial to or contrary to the interests of ProxyMed and (z) in
the case of clause (C) above, as soon as in the reasonable discretion of
ProxyMed, such suspension is no longer appropriate. ProxyMed shall be entitled
to exercise its right under this Section 2(d) to suspend the availability of
the Shelf Registration Statement or any Prospectus no more than one (1) time in
any three month period or three (3) times in any twelve month period, and any
such period during which the availability of the Registration Statement and any
Prospectus is suspended (the "Deferral Period") shall not exceed 30 days;
provided, that the aggregate duration of any Deferral Periods shall not exceed
30 days in any three month period or 90 days in any twelve (12) month period.
(e) ProxyMed shall use its best efforts to register or
qualify the Registrable Securities to be registered pursuant to this Agreement
to the extent required under the applicable
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securities or "blue sky" laws of the jurisdictions in which the Designated
Holders are permanent residents.
(f) In the event of any underwritten public offering,
ProxyMed shall enter into and perform its obligations under an underwriting
agreement, in usual and customary form, with the managing Underwriter(s) of
such offering, it being understood that in any such underwritten offering, the
Underwriters that will administer the offering will be selected by ProxyMed
with the consent of the Designated Holders' Representative. Each Designated
Holder participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
(g) ProxyMed shall use its reasonable efforts to
furnish, on the date that such Registrable Securities are delivered to the
underwriters for sale, if such securities are being sold through Underwriters,
(i) an opinion, dated as of such date, of the counsel representing ProxyMed for
the purposes of such registration, in form and substance as is customarily
given to underwriters in an underwritten public offering, addressed to the
underwriters, if any, and (ii) a letter, dated as of such date, from the
independent certified public accountants of ProxyMed, in form and substance as
is customarily given by independent certified public accountants to
Underwriters in an underwritten public offering addressed to the underwriters.
(h) Upon execution of a confidentiality agreement in a
form customarily used in connection with underwritten public offerings,
ProxyMed shall make available for inspection by a representative of the
Designated Holders, any Underwriter participating in any disposition pursuant
to such Shelf Registration Statement, and attorneys and accountants designated
by the Designated Holders, at reasonable times and in a reasonable manner, all
financial and other records, pertinent documents and properties of ProxyMed,
and cause the respective officers, directors and employees of ProxyMed to
supply all information reasonably requested by any such representative,
Underwriter, attorney or accountant in connection with a Shelf Registration
Statement in order to enable such persons to conduct a reasonable investigation
within the meaning of Section 11 of the Securities Act.
(h) From the date hereof until the end of the Effective
Period, ProxyMed shall promptly take such action as may be necessary so that
(i) each of the Shelf Registration Statement and any amendment thereto and the
Prospectus and any amendment or supplement thereto (and each report or other
document incorporated by reference therein in each case) complies in all
material respects with the Securities Act and the Exchange Act and the
respective rules and regulations thereunder, (ii) each of the Shelf
Registration Statement and any amendment thereto does not, when it becomes
effective, 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 light of the circumstances under which they were made, not
misleading and (iii) each of the Prospectus and any amendment or supplement to
the Prospectus does not at any time during the Effectiveness Period include an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
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(i) ProxyMed shall promptly notify each Designated
Holder and counsel for the Stockholders promptly and, if requested by any such
Designated Holder or counsel, confirm such advice in writing (i) when a Shelf
Registration Statement has become effective and when any post-effective
amendment thereto has been filed and becomes effective, (ii) of any
communication or request by the SEC or any state securities authority related
to amendments and supplements to a Registration Statement and Prospectus or
related to additional information before or after the Registration Statement
has become effective, (iii) of the issuance by the SEC or any state securities
authority of any stop order suspending the effectiveness of a Registration
Statement or the initiation of any proceedings for that purpose, (iv) if,
between the effective date of a Registration Statement and the closing of any
sale of Registrable Securities covered thereby, the representations and
warranties of ProxyMed contained in any underwriting agreement, securities
sales agreement or other similar agreement, if any, relating to the offering
cease to be true and correct in all material respects or if ProxyMed receives
any notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation of any
proceeding for such purpose, (v) of the happening of any event during the
period a Shelf Registration Statement is effective which makes, results in or
causes such Registration Statement or the related Prospectus to include an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements, in light of the circumstances under which they
were made, not misleading and (vi) of any determination by ProxyMed that a
post-effective amendment to a Registration Statement would be appropriate,
which notice may state that it constitutes a Deferral Notice, in which event
the provisions of 2(d) shall apply. ProxyMed shall make every reasonable effort
to prevent the issuance, and if issued to obtain the withdrawal, of any order
suspending the effectiveness of a Registration Statement as promptly as
practicable and provide prompt notice to each Designated Holder of the
withdrawal of any such order.
(j) ProxyMed will use its reasonable best efforts to
cause the Common Stock issuable upon conversion of the Securities to be listed
for quotation on the Nasdaq National Market or other stock exchange or trading
system, if any, on which the Common Stock primarily trades. ProxyMed shall
cooperate with the Designated Holders to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold and not
bearing any restrictive legends and enable such Registrable Securities to be
registered in such names as the Designated Holders may reasonably request at
least one business day prior to the closing of any sale of Registrable
Securities.
(k) ProxyMed shall inform in writing the Designated
Holders' Representative of the occurrence of a Registration Trigger Date no
later than 10 calendar days after the occurrence of such Registration Trigger
Date.
3. Designated Holder Representative.
(a) Each Designated Holder hereby appoints and
authorizes ▇▇. ▇▇▇ ▇. ▇▇▇▇▇▇▇ to act as, and ▇▇. ▇▇▇▇▇▇▇ by his signature on
the designated signature page of this Agreement agrees to act as, the agent
hereunder for the benefit of the Designated Holders for the receipt and for the
giving of any notice specified in this Agreement to be given or received, as
the case may be, by the Designated Holders' Representative, except for any
Notice of Sale or any
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notice required pursuant to Section 5; it being expressly understood that with
respect to any Notice of Sale, Deferral Notice or Sale Notice or any matters
related thereto the Designated Holders' Representative shall not be an agent
hereunder for the benefit of the Designated Holders. The parties may each
conclusively rely on the authority of the Designated Holders' Representative to
act as agent for each Designated Holder for the receipt or giving of any notice
specified in this Agreement, other than any Notice of Sale, Deferral Notice or
Sale Notice to be given or received, as the case may be, by the Designated
Holders, until such time as ProxyMed shall have received written notice from
the Designated Holders' Representative (or his duly appointed successor in the
case of his incapacity to serve) of his resignation or incapacity to serve and
the appointment of a substitute agent. Each Designated Holder agrees that,
should the Designated Holders' Representative resign or be unable to serve, it
shall immediately select jointly with the other Designated Holders a single
substitute agent for the giving and receiving of notices, whose appointment
shall be effective on the date of the prior agent's resignation or incapacity.
(b) The Designated Holders' Representative accepts his
appointment. It is agreed that the Designated Holders' Representative shall not
have any duties or responsibilities, except those expressly stated in this
Agreement or in a written agreement executed by all of the Designated Holders
and the Designated Holders' Representative, nor shall the Designated Holders'
Representative have or be deemed to have any fiduciary relationship with any
Designated Holder as a result of his appointment as the Designated Holders'
Representative, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or otherwise exist
against the Designated Holders' Representative.
(c) The Designated Holders agree severally and not
jointly Pro Rata to pay or reimburse the Designated Holders' Representative for
all of his reasonable out-of-pocket costs and expenses incurred in connection
with the performance of his duties under this Agreement, including, without
limitation, the reasonable fees and disbursements of counsel for the Designated
Holders' Representative. "Pro Rata" shall mean each Designated Holder's pro
rata share based on each Designated Holder's ownership of principal amount of
Notes on the date of this Agreement.
(d) The Designated Holders' Representative shall have
the right to select, instruct and use, on behalf of the Designated Holders,
legal counsel to represent the Designated Holders jointly in connection with
the filing and having declared effective the Shelf Registration Statement and
related matters contemplated by this Agreement (provided that, without separate
retention, such counsel shall not represent any of the Designated Holders in
connection with any sale of Registrable Securities). The Designated Holders'
Representative may use appropriate in-house counsel or retain outside counsel,
as appropriate. Unless and until the Designated Holders' Representative names
other counsel, any reference to counsel for the Stockholders or the Designated
Holders herein shall be deemed to refer to ▇▇▇▇▇▇ Godward LLP ("▇▇▇▇▇▇
Godward").
(e) The Stockholders acknowledge and agree that, if
requested by ▇▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ Godward LLP, outside general counsel to
MedUnite, may represent such
11
Stockholders jointly as special counsel in connection with the review of the
Shelf Registration Statement to be filed by ProxyMed and any pre-effective
amendments to such Shelf Registration Statement (the "Registration"). Such
representation shall not include any ongoing monitoring of ProxyMed's
compliance with this Agreement or any other agreement. The applicable rules of
professional conduct require that ▇▇▇▇▇▇ Godward inform the parties hereunder
of this representation and obtain their consent. The Stockholders hereby (a)
acknowledge that they have had an opportunity to ask for and have obtained
information relevant to such representation, including disclosure of the
reasonably foreseeable adverse consequences of such representation; (b)
acknowledge that with respect to the Registration, Cooley Godward may represent
the Stockholders jointly; and (c) gives its informed consent to ▇▇▇▇▇▇
Godward's future representation of any of the Stockholders and their respective
affiliates on any matters unrelated to the Registration solely to the extent
▇▇▇▇▇▇ Godward's collective representation of the Stockholders in the
Registration may present an actual or potential conflict of interest in such
future representation of any individual Stockholder or any of its affiliates.
4. Designated Holder Information. ProxyMed may request in
writing that each Designated Holder furnish to ProxyMed such information
regarding the Designated Holder and the distribution of the Registrable
Securities as may be required under the Securities Act, and each Designated
Holder agrees to provide such information to ProxyMed promptly after receipt of
such written request.
5. Suspension of Sales. Each Designated Holder agrees that, upon
receipt of notice from ProxyMed of the happening of any event of the kind
described in Section 2(d) above, the Designated Holder will forthwith
discontinue disposition of Registrable Securities pursuant to the Registration
Statement in accordance with the provisions of Section 2(d) above, and if so
directed by ProxyMed each Designated Holder will deliver to ProxyMed (at
ProxyMed's expense) all copies, other than permanent file copies then in the
Designated Holder's possession, of the prospectus covering the Registrable
Securities current at the time of receipt of such notice.
6. Restriction on Resale.
(a) Unless otherwise agreed to by ProxyMed, no
Designated Holder will resell the Registrable Securities without (i)
registration under the Securities Act; (ii) compliance with Rule 144
promulgated under the Securities Act, or (iii) receipt of an opinion of counsel
for the Designated Holder, acceptable to ProxyMed, to the effect that an
exemption from registration is available; provided, however, that clause (iii)
above shall not apply to any resale by a Designated Holder to an entity
affiliated by common control (or other related entity) with such Designated
Holder. All reasonable costs, fees and expenses of counsel for ProxyMed in
connection with review of such opinion shall be borne by ProxyMed.
(b) Unless otherwise agreed to by ProxyMed, and subject
to Section 6(e) below, a Designated Holder will not sell more than 10% of the
Registrable Securities beneficially owned by such Designated Holder as of the
date of this Agreement on any single trading day.
12
(e) In the event that a Designated Holder desires to
sell 100% the Registrable Securities beneficially owned by such Designated
Holder, such Designated Holder shall notify ProxyMed in writing of its intent
to proceed with such sale (such notice, "Sale Notice"). The Sale Notice shall
specify the number of shares of Common Stock proposed to be sold by the
Designated Holder, the price per share of Common Stock on the date of the Sale
Notice and the aggregate amount of cash to be paid to such Designated Holder
for the purchase of the shares of Common Stock subject to the Sale Notice (the
"Purchase Price"). ProxyMed shall have the right to provide written notice of
its intention to purchase from the Designated Holder the Common Stock subject
to the Sale Notice at the Purchase Price until 5 p.m. (New York City time) on
or before the third Business Day immediately following the date of the Sale
Notice (the "Purchase Period"). If ProxyMed has not purchased the Common Stock
subject to the Sale Notice by payment of the Purchase Price to the Designated
Holder in immediately available funds prior to the expiration of the fifth
Business Day following the Purchase Period the Purchase Period, the Designated
Holder may sell all, but not less than all, of the Common Stock subject to the
Sale Notice to any Person without regard to the limitation set forth in Section
6(e) above so long as such sale is consummated within the 15 Business Day
period following the termination of the Purchase Period.
7. Transfer of Registration Rights. The rights to cause ProxyMed
to register Registrable Securities pursuant to this Agreement may be assigned
by a Stockholder to a transferee or assignee of Registrable Securities that (a)
is a subsidiary, parent, general partner, limited partner, retired partner,
member or retired member, or stockholder of a Stockholder, (b) is a
Stockholder's family member or trust for the benefit of an individual, or (c)
is an entity affiliated by common control (or other related entity) with such
Stockholder, and in each case acquires at least fifty thousand (50,000) shares
of Registrable Securities (as adjusted for stock splits and combinations);
provided, however, (i) a transferor shall, within ten (10) days after such
transfer, furnish to ProxyMed written notice of the name and address of such
transferee or assignee and the securities with respect to which such
registration rights are being assigned and (ii) such transferee shall agree in
writing to be subject to all restrictions and obligations set forth in this
Agreement and in the Stockholders Undertaking.
8. Miscellaneous.
(a) Amendments and Waivers. This Agreement may not be
amended without the written consent of ProxyMed and all of the Designated
Holders.
(b) Successors and Assigns. None of the parties hereto
shall assign any of its rights or obligations under this Agreement without the
express written consent of the other parties hereto. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
(c) Notices. All notices and other communications
provided for hereunder shall be effective as provided in the Merger Agreement
and shall be given to the following addresses:
13
IF TO PROXYMED:
PROXYMED, INC.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Vice President and
General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
WITH COPY TO (WHICH COPY SHALL NOT CONSTITUTE NOTICE):
HOLLAND & KNIGHT
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
IF TO THE DESIGNATED HOLDERS REPRESENTATIVE:
▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
WITH COPY TO (WHICH COPY SHALL NOT CONSTITUTE NOTICE):
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇ Godward LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
IF TO ANY STOCKHOLDER, TO THE ADDRESS SET FORTH NEXT TO SUCH
STOCKHOLDER'S NAME ON SCHEDULE 1 TO THIS AGREEMENT.
(d) Descriptive Headings. The headings in this Agreement
are for convenience of reference only and shall not limit or otherwise affect
the meaning of terms contained herein.
14
(e) Counterpart. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original, but all of
which shall constitute one and the same instrument.
(f) Governing Law. This Agreement shall be governed by
and shall be construed, interpreted and enforced in accordance with the laws of
the State of Delaware.
(g) Merger, etc. If ProxyMed shall merge with or
consolidate with any other Person and, in connection with such merger or
consolidation, all or part of the Registrable Securities shall be changed into
or exchanged for stock or other securities of any other Person, then, in each
such case, proper provision shall be made so that such Person shall be bound by
the provisions of this Agreement and the term "ProxyMed" shall thereafter be
deemed to refer to such Person. For purposes hereof, the term "Person" shall
mean any business entity.
(h) Entire Agreement. This Agreement constitutes the
entire agreement between the parties hereto with respect to the subject matter
hereof and supersedes all prior negotiations, understandings, agreement,
arrangements and understandings, both oral and written, between the parties
hereto with respect to such subject matter.
(i) No Third Party Beneficiary. Nothing expressed or
implied in this Agreement is intended, or shall be construed, to confer upon or
give any person, firm, corporation, partnership, association or other entity,
other than the parties hereto and their respective successors and permitted
assigns, any rights or remedies under or by reason of this Agreement.
(j) Waivers and Remedies. The waiver by any of the
parties hereto of any other party's prompt and complete performance, or breach
or violation, of any provision of this Agreement shall not operate or be
construed as a waiver of any subsequent breach or violation, and the waiver by
any of the parties hereto to exercise any right or remedy which it may possess
hereunder shall not operate or be construed as a bar to the exercise of such
right or remedy by such party upon the occurrence of any subsequent breach or
violation.
(k) Severability. The invalidity of any one or more of
the words, phrases, sentences, clauses, sections or subsections contained in
this Agreement shall not affect the enforceability of the remaining portions of
this Agreement or any part hereof, all of which are inserted conditionally on
their being valid in law, and, in the event that any one or more of the words,
phrases, sentences, clauses, sections or subsections contained in Agreement
shall be declared invalid by a court of competent jurisdiction, this Agreement
shall be construed as if such invalid word or words, phrase or phrases,
sentence or sentences, clause or clauses, section or sections, or subsection or
subsections had not been inserted.
(l) Binding Effect. This Agreement shall insure to the
heirs and legal representatives and successors of the parties hereto.
(m) Intentionally Omitted.
15
(n) Indemnification by ProxyMed. ProxyMed agrees to
indemnify and hold harmless each Designated Holder and each Person, if any, who
controls any Designated Holder within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, or is under common control
with, or is controlled by, any Designated Holder, from and against all losses,
claims, damages and liabilities (including, without limitation, any legal or
other expenses reasonably incurred by any Designated Holder or any such
controlling or affiliated Person in connection with defending or investigating
any such action or claim) caused by any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement (or any
amendment thereto) pursuant to which Registrable Securities were registered
under the Securities Act, including all documents incorporated therein by
reference, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or caused by any untrue statement or alleged untrue
statement of a material fact contained in any Prospectus (as amended or
supplemented if ProxyMed shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact necessary to make the statements therein in light of the
circumstances under which they were made not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue statement
or omission or alleged untrue statement or omission based upon information
relating to any Designated Holder furnished to ProxyMed in writing by any
selling Designated Holder expressly for use therein; provided, however, that
the foregoing indemnity with respect to any preliminary Prospectus shall not
inure to the benefit of any Designated Holder, or any Person controlling such
Designated Holder or any Person under common control with, or controlled by,
any Designated Holder, to the extent it is established that any such losses,
claims, damages or liabilities result from the fact that such Designated
Holder, or Person controlling such Designated Holder, or Person under common
control with, or controlled by, any Designated Purchaser, sold Registrable
Securities to a person to whom there was not sent or given, by or on behalf of
such Designated Holder, a copy of the Prospectus (as then amended or
supplemented, if ProxyMed shall have furnished any amendments or supplements
thereto) at or prior to the written confirmation of the sale of the Registrable
Securities to such person, and if such losses, claims, damages or liabilities
result from an untrue statement or alleged untrue statement or an omission or
alleged omission contained in such preliminary Prospectus that was corrected in
the Prospectus (as so amended or supplemented), unless such failure is the
result of noncompliance by ProxyMed with its obligations to deliver copies of
the Prospectus to such Designated Holder; nor shall this indemnity inure to the
benefit of any Designated Holder, or any Person controlling such Designated
Holder, or any Person under common control with, or controlled by, such
Designated Holder, from whom the person asserting any such losses, claims,
damages or liabilities purchased the Registrable Securities concerned to the
extent it is established that, at the time of such purchase, such Designated
Holder had received written notice from ProxyMed that the use of such
Prospectus was suspended as provided in Section 2(d) hereof. In connection with
any underwritten offering, ProxyMed will also indemnify the Underwriters, if
any, their officers and directors and each Person who controls such Persons
(within the meaning of the Securities Act and the Exchange Act) to the same
extent as provided above with respect to the indemnification of the Designated
Holders, if requested in connection with any Registration Statement.
16
(o) Indemnification by Stockholders. Each Designated
Holder agrees, severally and not jointly, to indemnify and hold harmless
ProxyMed, and the other selling Designated Holders, and each of their
respective directors, officers who sign the Registration Statement and each
Person, if any, who controls ProxyMed, and any other selling Designated Holder
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act to the same extent as the foregoing indemnity from ProxyMed to
the Designated Holders, but only with reference to information relating to such
Designated Holder furnished to ProxyMed in writing by such Designated Holder
expressly for use in any Registration Statement (or any amendment thereto) or
any Prospectus (or any amendment or supplement thereto).
(p) Third-Party Claims. In case any proceeding
(including any governmental investigation) shall be instituted involving any
Person in respect of which indemnity may be sought pursuant to either paragraph
(n) or paragraph (o) above, such Person (the "indemnified party") shall
promptly notify the Person against whom such indemnity may be sought (the
"indemnifying party") in writing and the indemnifying party, upon request of
the indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the
reasonable fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain
its own counsel, but the reasonable fees and expenses of such counsel shall be
at the expense of such indemnified party unless (i) the indemnifying party and
the indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for (a)
the reasonable fees and expenses of more than one separate firm (in addition to
any local counsel) for the Designated Holders and all Persons, if any, who
control any Designated Holder within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act or any Person under common
control with, or controlled by, any Designated Holder, (b) the reasonable fees
and expenses of more than one separate firm (in addition to any local counsel)
for ProxyMed, its directors, its officers who sign the Registration Statement
and each Person, if any, who controls ProxyMed within the meaning of either
such Section and (c) the reasonable fees and expenses of more than one separate
firm (in addition to any local counsel) for all Holders and all Persons, if
any, who control any Holders within the meaning of either such Section, and
that all such reasonable fees and expenses shall be reimbursed as they are
incurred. In such case involving the Designated Holders and Persons who control
the Designated Holders or any Person under common control with, or controlled
by, any Designated Holder such firm shall be designated in writing by
Designated Holders' Representative. The indemnifying party shall not be liable
for any settlement of any proceeding effected without its written consent but,
if settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of
17
which such indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such proceeding.
(q) If the indemnification provided for in paragraph (o)
or paragraph (p) of this Section 8 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities in such proportion as is appropriate to reflect the
relative fault of the indemnifying party or parties on the one hand and of the
indemnified party or parties on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative fault of ProxyMed and the Designated Holders 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 ProxyMed or by the Designated
Holders and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Designated
Holders' respective obligations to contribute pursuant to this Section 8(q) are
several in proportion to the respective principal amount of Registrable
Securities of such Designated Holder that were registered pursuant to a
Registration Statement. ProxyMed and each Designated Holder agree that it would
not be just or equitable if contribution pursuant to this Section 8(q) were
determined by pro rata allocation or by any other method of allocation that
does not take account of the equitable considerations referred to in this
paragraph (q). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages and liabilities referred to in this paragraph
(q) shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8(q), no Designated Holder shall
be required to indemnify or contribute any amount in excess of the amount by
which the total price at which Registrable Securities were sold by such
Designated Holder exceeds the amount of any damages that such Designated Holder
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11 (f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section 8(q)
are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity. The
indemnity and contribution provisions contained in this Section 8 shall remain
operative and in full force and effect regardless of (i) any termination of
this Agreement, (ii) any investigation made by or on behalf of the Designated
Holders or any Person controlling any Designated Holder, or any Person under
common control with, or controlled by, any Designated Holder or by or on behalf
of ProxyMed, its officers or directors or any Person controlling ProxyMed and
(iii) any sale of Registrable Securities pursuant to a Shelf Registration
Statement.
18
IN WITNESS WHEREOF, each of the undersigned has caused this Agreement
to be executed on its behalf as of the date first written above.
PROXYMED, INC.
By:
-----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief Financial Officer
DESIGNATED HOLDERS' REPRESENTATIVE:
By:
-----------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
--------------------------------------
19
STOCKHOLDERS
AETNA INC.
By:
-----------------------------------------
Name:
Title:
CIGNA HEALTH CORPORATION
By:
-----------------------------------------
Name:
Title:
HEALTH NET, INC.
By:
-----------------------------------------
Name:
Title:
20
OXFORD HEALTH PLANS, INC.
By:
-----------------------------------------
Name:
Title:
ANTHEM INSURANCE COMPANIES, INC.
By:
-----------------------------------------
Name:
Title:
PACIFICARE HEALTH SYSTEMS, INC.
By:
-----------------------------------------
Name:
Title:
WELLPOINT HEALTH NETWORKS INC.
By:
-----------------------------------------
Name:
Title:
NDCHEALTH CORPORATION
By:
-----------------------------------------
Name:
Title:
21
SCHEDULE 1
NAMES AND ADDRESSES OF STOCKHOLDER PARTIES
-------------------------------------------------------------------------------
AETNA, INC.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ANTHEM INSURANCE COMPANY, INC.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
CIGNA HEALTH CORPORATION
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
HEALTH NET, INC.
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
NDC HEALTH CORPORATION
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
OXFORD HEALTH PLANS, INC.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
PACIFICARE HEALTH SYSTEMS, INC.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
WELLPOINT HEALTH NETWORKS, INC.
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇