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EXHIBIT 4.7
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement"), entered into
as of June 30, 1997 by and between FPA MEDICAL MANAGEMENT, INC., a Delaware
corporation (the "Company"), and the persons 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, FPA Acquisition Corp., a California
corporation wholly owned by the Company, and HealthCap, Inc., a California
corporation ("HealthCap"), have entered into that certain Agreement and Plan of
Merger dated as of June 2, 1997 (the "Merger Agreement"), in which in
consideration for the sale of the Shareholders' capital stock of HealthCap to
the Company, Shareholders are to receive shares of Common Stock, par value $0.01
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 for the mutual promises contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and Shareholder 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 Registrable Securities
in a sale effected pursuant to any Registration Statement).
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(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 (other than Common
Stock to be received upon exercise of any stock options received by Shareholder
in connection with the transaction contemplated by the Merger Agreement);
provided, however, that Registrable Securities shall not include any such shares
of Common Stock that have previously been registered or 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.
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(n) "Shelf Registration" shall mean either the Initial Shelf
Registration (as defined in Section 0(a) below) or a Subsequent Shelf
Registration (as defined in Section 2.1(b) below), as appropriate.
2. Registration.
2.1 Registration Statement. (a) The Company will, within ten (10)
days of the Effective Time (as defined in the Merger Agreement), use all
reasonable efforts to prepare and file with the Commission a Registration
Statement with respect to all of the Registrable Securities for an offering to
be made on a continuous basis pursuant to Rule 415 covering the resale from time
to time by the Holders of all of the Registrable Securities (the "Initial Shelf
Registration"). The Initial Shelf Registration shall be on Form S-3 or any
comparable or successor form permitting registration of Registrable Securities
for resale by the Holders ("Form S-3"). The Company shall use all reasonable
efforts to cause the Initial Shelf Registration to be declared effective under
the Securities Act as soon as practicable after the filing thereof, and to keep
the Initial Shelf Registration continuously effective under the Securities Act
until (i) all Registrable Securities covered by the Initial Shelf Registration
have been sold under the Initial Shelf Registration, or (ii) a subsequent Shelf
Registration covering all of the Registrable Securities has been declared
effective under the Securities Act or (iii) Holders no longer hold any
Registrable Securities or (iv) all Registrable Securities held by Holders may be
sold in compliance with Rule 144 (the "Effectiveness Period").
(b) If the Initial Shelf Registration or any subsequent Shelf
Registration ceases to be effective for any reason at any time during the
Effectiveness Period (other than because of the sale of all of the securities
registered thereunder), the Company shall use all reasonable efforts to obtain
the prompt withdrawal of any order suspending the effectiveness thereof, and in
any event shall within 30 days of such cessation of effectiveness amend the
Shelf Registration in a manner reasonably expected to obtain the withdrawal of
the order suspending the effectiveness thereof, or file an additional "shelf"
Registration Statement pursuant to Rule 415 covering all of the Registrable
Securities (a "Subsequent Shelf Registration"). If a Subsequent Shelf
Registration is filed, the Company shall use all reasonable efforts to cause the
Subsequent Shelf Registration to be declared effective as soon as practicable
after such filing and to keep such Registration Statement continuously effective
until the end of the Effectiveness Period.
(c) The Company shall supplement and amend the Shelf Registration or
Subsequent Shelf Registration, as the case may be, if required by the rules,
regulations or instructions applicable to the registration form used by the
Company for such Shelf Registration, if required by the Securities Act, or if
reasonably requested by the holders of a majority of the securities included in
such Registration Statement.
(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.
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
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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:
(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 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
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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 Effective Period 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,
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in 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 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 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.
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(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
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
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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 Shelf Registration (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 (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.
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 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.
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(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 director or 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 by such Holder for use in connection with 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. It is agreed
that the indemnity agreement contained in this paragraph 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 such Holder (which consent
has not been unreasonably withheld). Each Holder's liability under this
paragraph shall not exceed the proceeds 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), and provided further that 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.
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(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.
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.
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
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delivery, (ii) upon confirmation, if made by telefax 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; and
(b) if to the Company,
FPA Medical Management, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
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
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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
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Title
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Shareholders
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