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EXHIBIT 4.12
REGISTRATION RIGHTS AGREEMENT
Dated as of January 1, 1998
by and among
FPA MEDICAL MANAGEMENT, INC.
as the Company,
and
Persons Listed on Schedule I hereto
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement is made and entered into as of
January1, 1998, by and among FPA Medical Management, Inc., a Delaware
corporation (the "Company"), and the Persons listed on Schedule I hereto (the
"Holders").
BACKGROUND
This Agreement is made pursuant to the Stock Purchase Agreement, dated as
of December 22, 1997 (the "Purchase Agreement"), by and among the Company, FPA
Medical Group of Illinois, Ltd., an Illinois professional corporation,
Physicians Quality Care, Ltd., an Illinois corporation ("PQC"), Associates in
Managed Care, Ltd., an Illinois medical corporation ("AMC"), the Individual PQC
Shareholders and the Physician Owners (as such terms are defined in the Purchase
Agreement. The execution of this Agreement is a condition to the closing of the
transactions contemplated by the Merger Agreement.
The parties hereby agree as follows:
1. Definitions
As used in this Agreement, the following terms shall have the following
meanings:
Advice: As defined in the last paragraph of Section 4 hereof.
Affiliate: As to any specified Person shall mean any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control," when used with respect to any Person, means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise and the terms
"affiliated," "controlling" and "controlled" have meanings correlative to the
foregoing.
Agreement: This Registration Rights Agreement, as the same may be amended,
supplemented or modified from time to time in accordance with the terms hereof.
Business Day: With respect to any act to be performed hereunder, each
Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which
banking institutions in New York, New York or other applicable place where such
act is to occur are authorized or obligated by applicable law, regulation or
executive order to close.
Closing Date: As defined in the Purchase Agreement.
Commission: The Securities and Exchange Commission.
Common Stock: Common stock, $0.02 par value per share, of the Company.
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Company: FPA Medical Management, Inc., a Delaware corporation, and any
successor corporation thereto.
Effectiveness Period: As defined in Section 2(a) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated by the Commission pursuant thereto.
Filing Date: The 180th day following the Closing Date.
Indemnified Person: As defined in Section 6(a) hereof.
Person: Any individual, partnership, joint venture, corporation, trust or
unincorporated organization.
Proceeding: An action, claim, suit or proceeding (including, without
limitation, an investigation or partial proceeding, such as a deposition),
whether commenced or, to the knowledge of the Person subject thereto,
threatened.
Prospectus: The prospectus included in the Shelf 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 pursuant to the Securities
Act), as amended or supplemented by any prospectus supplement, with respect to
the terms of the resale of any portion of the Restricted Securities covered by
such Shelf Registration Statement, and all other amendments and supplements to
any such prospectus, including post-effective amendments, and all material
incorporated by reference or deemed to be incorporated by reference, if any, in
such prospectus.
Holders: The Persons listed on Schedule I hereto.
Shelf Registration Statement: The registration statement of the Company
that covers the resale of any of the Restricted Securities pursuant to the
provisions of this Agreement, including the Prospectus, amendments and
supplements to such registration statement or Prospectus, including pre- and
post-effective amendments, all exhibits thereto, and all material incorporated
by reference or deemed to be incorporated by reference, if any, in such
registration statement.
Rule 144: Rule 144 promulgated by the Commission pursuant to the
Securities Act, as such rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission as a replacement thereto
having substantially the same effect as such rule.
Rule 158: Rule 158 promulgated by the Commission pursuant to the
Securities Act, as such rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission as a replacement thereto
having substantially the same effect as such rule.
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Rule 174: Rule 174 promulgated by the Commission pursuant to the
Securities Act, as such rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission as a replacement thereto
having substantially the same effect as such rule.
Rule 415: Rule 415 promulgated by the Commission pursuant to the
Securities Act, as such rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission as a replacement thereto
having substantially the same effect as such rule.
Rule 424: Rule 424 promulgated by the Commission pursuant to the
Securities Act, as such rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission as a replacement thereto
having substantially the same effect as such rule.
Securities Act: The Securities Act of 1933, as amended, and the rules and
regulations promulgated by the Commission thereunder.
Restricted Securities: The shares of Common Stock received by each Holder
pursuant to the terms of the Merger Agreement and any stock dividends with
respect to such shares until, in the case of any such share of Common Stock, (i)
the date on which it has been registered effectively pursuant to the Securities
Act and disposed of in accordance with the Shelf Registration Statement relating
to it, or (ii) the date on which the shares of Common Stock are distributed to
the public pursuant to Rule 144 (or any similar provisions then in effect) or
are salable pursuant to Rule 144(k) promulgated by the Commission pursuant to
the Securities Act.
2. Shelf Registration
(a) The Company agrees to file with the Commission after the Closing Date,
but in no event earlier than the Filing Date, a Shelf Registration Statement for
an offering to be made on a continuous basis pursuant to Rule 415 covering all
of the Restricted Securities. The Shelf Registration Statement shall initially
be on Form S-3 under the Securities Act or another appropriate form permitting
registration of such Restricted Securities for resale by the Holders in the
manner or manners reasonably designated by them. The Company shall use its
reasonable efforts, as described in Section 4, to cause the Shelf Registration
Statement to be declared effective pursuant to the Securities Act as promptly as
is practicable following the filing thereof, and (subject to Section 8 hereof)
to keep the Shelf Registration Statement continuously effective under the
Securities Act thereafter for the period ending one (1) year after the Closing
Date (except during periods following the filing of a post effective amendment
thereto and prior to the declaration of the effectiveness of such post effective
amendment; provided, the Company shall use its reasonable efforts to cause any
such post effective amendment to be declared effective as soon as practicable)
(subject to extension pursuant to clause (b)), or such shorter period as may be
specified by the Commission pursuant to Rule 144 or ending when there cease to
be outstanding any Restricted Securities (the "Effectiveness Period").
(b) The Company shall use its reasonable best efforts to keep the Shelf
Registration Statement continuously effective (except during periods following
the filing of a post effective amendment thereto and prior to the declaration of
the effectiveness of such post effective amendment; provided, the Company shall
use its reasonable best efforts to cause any such post
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effective amendment to be declared effective as soon as practicable) by
supplementing and amending the Shelf Registration Statement as required by the
rules, regulations or instructions applicable to the registration form used for
such Shelf Registration Statement if required by the Securities Act or
reasonably requested by the Holders.
3. Piggy Back Registration Rights.
(a) If at any time during the period commencing on the Closing Date (as
defined in the Purchase Agreement) and ending on the earliest to occur of the
following: (i) all Registrable Securities covered by a Registration Statement
have been sold under such Registration Statement, or (ii) a subsequent
Registration Statement 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 Company proposes to register any of its
securities under the Securities Act on any form for the registration of
securities under the Securities Act, whether or not for its own account (other
than by a registration statement on Form S-4 or Form S-8 or other form which
does not include substantially the same information as would be required in a
form for the general registration of securities or would not be available for
the Registrable Securities) (a "Piggy Back Registration"), it shall as
expeditiously as possible give written notice to the Holders of its intention to
do so and of the Holders' rights under Sections 3 through 5. (Such rights are
referred to hereinafter as "Piggy Back Registration Rights.") Upon the written
request of any of such Holders made within five (5) business days after receipt
of any such notice (which request shall specify the Registrable Securities
intended to be disposed of by each such Holder), the Company shall use its best
efforts to (i) include in the Registration Statement (and in any underwriting
relating thereto) all of the Registrable Securities with respect to which the
Company has received such requests and (ii) have such Registration Statement
declared effective by the Commission and maintain the effectiveness thereof for
the period necessary for the Holders to effect the proposed sale or other
disposition (but in no event for a period greater than 90 days).
(b) If at any time after giving written notice of its intention to
register any securities in a Piggy Back Registration but prior to the effective
date of the related Registration Statement, the Company shall determine for any
reason not to register such securities, the Company shall give written notice of
such determination to the Holders and thereupon shall be relieved of its
obligation to register any Registrable Securities in connection with such Piggy
Back Registration.
(c) If a Piggy Back Registration involves an offering by or through one or
more underwriters, then the Holders, provided they have requested to have
Registrable Securities included in the Company's Registration Statement, shall
agree to sell their Registrable Securities to the underwriters selected by the
Company on the same terms and conditions as apply to other selling shareholders
and enter into an underwriting agreement with such underwriters containing
customary selling shareholder representations and warranties.
(d) The Registration Statement filed in accordance with this Section may
include other securities of the Company with respect to which registration
rights have been granted, and may include securities of the Company being sold
for the account of the Company.
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If a Piggy Back Registration involves an offering by or through one or
more underwriters, the Company shall not be required to include Registrable
Securities therein if and to the extent the underwriter managing the offering
reasonably believes in good faith and advises the Company in writing (which in
turn so advises the Holders in writing) that such inclusion would materially
adversely affect such offering as a result of marketing factors. The number of
Registrable Securities that may be included, if any, following such underwriting
cutback shall be allocated among the exercising Holders on a pro rata basis
according to the number of Registrable Securities requested to be included in
such Piggy Back Registration.
4. Registration Procedures
In connection with the Company's registration obligations hereunder, the
Company shall effect such registration on the appropriate form available for the
sale of the Restricted Securities to permit the sale of the Restricted
Securities in accordance with the method or methods of disposition thereof
specified by the Holders, and pursuant thereto the Company shall as
expeditiously as reasonably possible:
(a) No fewer than five Business Days prior to the initial filing of the
Shelf Registration Statement or Prospectus and, if practical, no fewer than two
Business Days prior to the filing of any amendment or supplement thereto (other
than any document that would be incorporated or deemed to be incorporated
therein by reference), furnish to the Holders, copies of all such documents
proposed to be filed, which documents, if practical (other than those
incorporated or deemed to be incorporated by reference) will be subject to the
review of such Holders. The Company shall not file such Shelf Registration
Statement or related Prospectus or any amendments or supplements thereto to
which the Holders covered thereby shall reasonably object on a timely basis;
(b) Prepare and file with the Commission such amendments, including
post-effective amendments, to each Shelf Registration Statement as may be
necessary to keep such Shelf Registration Statement continuously effective for
the Effectiveness Period; cause the related Prospectus to be supplemented by any
required Prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424 under the Securities Act; and comply with the provisions of the
Securities Act and the Exchange Act with respect to the disposition of all
securities covered by such Shelf Registration Statement during such period in
accordance with the intended methods of disposition by the selling Holders
thereof contemplated hereby and set forth in such Shelf Registration Statement
as so amended or in such Prospectus as so supplemented.
(c) Notify the Holders promptly (and in the case of an event specified by
clause (i)(A) of this paragraph, if practical, in no event fewer than two
Business Days prior to such filing), and (if requested by any such Person),
confirm such notice in writing, (i)(A) when a Prospectus or any Prospectus
Supplement or post-effective amendment is proposed to be filed, and (B) with
respect to the Shelf 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 for amendments or supplements to
the Shelf Registration Statement or related Prospectus or for additional
information, (iii) of the issuance by the Commission, any state securities
commission, any other governmental agency or any court of any stop order, order
or injunction
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suspending or enjoining the use or the effectiveness of the Shelf 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 Restricted
Securities for sale in any jurisdiction, or the initiation or threat of any
proceeding for such purpose, and (v) of the happening of any event that makes
any statement made in such Shelf Registration Statement or related Prospectus or
any document incorporated or deemed to be incorporated therein by reference
untrue in any material respect or that requires the making of any changes in
such Shelf Registration Statement, Prospectus or documents so that, in the case
of the Shelf 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 in order to make the statements therein, not misleading, and that
in the case of the Prospectus, it will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(d) Use its reasonable best efforts to avoid the issuance of, or, if
issued, obtain the withdrawal of any order enjoining or suspending the use or
effectiveness of the Shelf Registration Statement or the lifting of any
suspension of the qualification (or exemption from qualification) of any of the
Restricted Securities for sale in any jurisdiction, at the earliest reasonable
practicable moment;
(e) If requested by the Holders, (i) promptly incorporate in a Prospectus
supplement or post-effective amendment such information as Holders indicate
relates to them or otherwise reasonably request be included therein, and (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; provided, however, that the Company shall not be required to take any
action pursuant to this Section 4(e) that would, in the opinion of counsel for
the Company, violate applicable law;
(f) Furnish to each Holder without charge, at least one conformed copy of
the Shelf Registration Statement and each amendment thereto, including financial
statements (but excluding schedules, all documents incorporated or deemed to be
incorporated therein by reference);
(g) Deliver to each Holder as many copies of the Prospectus or
Prospectuses (including each form of prospectus) and each amendment or
supplement thereto as such Persons reasonably request; and the Company hereby
consents to the use of such Prospectus and each amendment or supplement thereto
by each of the Holders in connection with the offering and sale of the
Restricted Securities covered by such Prospectus and any amendment or supplement
thereto;
(h) Prior to any public offering of the Restricted Securities, use its
reasonable best efforts to register or qualify or cooperate with the Holders in
connection with the registration or qualification (or exemption from such
registration or qualification) of such Restricted Securities for offer and sale
under the securities or "Blue Sky" laws of such jurisdictions within the United
States as any Holder reasonably requests in writing and to cause the offering of
the Restricted Securities covered by the Shelf Registration Statement to be
registered with or approved by such
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other governmental agencies or authorities within the United States, except as
may be required as a consequence of the selling Holder's business (in which case
the Company will cooperate in all reasonable respects with the filing of such
Shelf Registration Statement therewith and granting of approvals thereby), as
may be necessary to enable the selling Holders to consummate the disposition of
such Restricted Securities; keep each such registration or qualification (or
exemption therefrom) or approval effective during the period such Shelf
Registration Statement is required to be kept effective and do any and all other
acts necessary or advisable to enable the disposition in such jurisdictions of
the Restricted Securities covered by the Shelf Registration Statement; provided,
however, that the Company shall not be required to qualify generally to do
business in any jurisdiction where it is not then so qualified or to take any
action that would subject it to general service of process in any such
jurisdiction where it is not then so subject or subject the Company to any tax
in any such jurisdiction where it is not then so subject;
(i) In connection with any sale or transfer of the Restricted Securities
that will result in such securities no longer being the Restricted Securities,
cooperate with the Holders to facilitate the timely preparation and delivery of
certificates representing the Restricted Securities to be sold, which
certificates shall not bear any restrictive legends and shall be in a form
eligible for deposit with The Depository Trust Company and to enable such
Restricted Securities to be in such denominations and registered in such names
as the Holders may request at least two Business Days prior to any sale of the
Restricted Securities;
(j) Upon the occurrence of any event contemplated by Section 4(c)(v)
hereof, as promptly as practicable, prepare a supplement or amendment,
including, if appropriate, a post-effective amendment, to the Shelf Registration
Statement or a supplement to the related Prospectus or any document incorporated
or deemed to be incorporated therein by reference, and file any other required
document so that, as thereafter delivered, 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 in order to make the statements therein, in light
of the circumstances under which they were made, not misleading;
(k) Comply with applicable rules and regulations of the Commission and
make generally available to its security holders 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 after the effective date of the Shelf Registration
Statement, which statement shall cover said period, consistent with the
requirements of Rule 158; and
(l) List all Common Stock covered by such Shelf Registration Statement on
the exchange or system, if any, on which the Common Stock of the Company is then
listed.
(m) 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
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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 all records, information or documents made available
for inspection by the Company shall be deemed to be confidential and 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).
(n) Take all such other actions in connection therewith in order to
expedite or facilitate the disposition of such Registrable Securities.
The Company may require each seller of the Restricted Securities as to
which any registration is being effected to: (i) furnish to the Company such
information regarding the distribution of such Restricted Securities as is
required by law to be disclosed in the Shelf Registration Statement and (ii)
provide to the Company a signed writing accepting and acknowledging its rights
and obligations hereunder. The Company may exclude from such registration the
Restricted Securities of any holder of Restricted Securities who unreasonably
fails to furnish such information or signed writing at least 5 Business Days
prior to the effective date of such Shelf Registration Statement.
Each Holder agrees by acquisition of the Restricted Securities that, upon
receipt of any notice from the Company of the happening of any event of the kind
described in Section 3(c)(ii), 4(c)(iii), 4(c)(iv), or 4(c)(v) hereof, such
Holder will forthwith discontinue disposition of such Restricted Securities
covered by such Shelf Registration Statement or Prospectus until such Holder's
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 4(i) hereof, or until it is advised in writing (the "Advice") by the
Company that the use of the applicable Prospectus may be resumed, and, in either
case, has received copies of any additional or supplemental filings that are
incorporated or deemed to be incorporated by reference in such Prospectus.
The registration rights of the Holders pursuant to this Agreement and the
ability to offer and sell Restricted Securities pursuant to the Shelf
Registration Statement are subject to the conditions and limitations contained
in this paragraph, and each Holder will be deemed to have agreed with the
Company that if the Board of Directors of the Company determines in its good
faith judgment, as evidenced by a resolution of the Board of Directors, that the
use of any Prospectus would require the disclosure of material information that
the Company has a bona fide business purpose for preserving as confidential or
the disclosure of which would impede the Company's ability to consummate a
significant transaction, and that the Company is not otherwise required by
applicable securities laws or regulations to disclose, upon written notice of
such determination by the Company, the rights of the Holders to offer, sell or
distribute any Restricted Securities pursuant to the Shelf Registration
Statement or to require the Company to take action with respect to the
registration or sale of any Restricted Securities pursuant to the Shelf
Registration Statement shall be suspended until the date upon which the Company
notifies the
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Holders in writing that suspension of such rights for the grounds set forth in
this paragraph is no longer necessary subject to the limits set forth herein,
and the Company agrees to give such notice as promptly as practicable following
the date that such suspension of rights is no longer necessary.
5. Registration Expenses
All fees and expenses incident to the performance of or compliance with
this Agreement by the Company shall be borne by it whether or not the Shelf
Registration Statement is filed or becomes effective and whether or not any
securities are issued or sold pursuant to the Shelf Registration Statement. The
fees and expenses referred to in the foregoing sentence shall include, without
limitation, (a) all registration and filing fees (including, without limitation,
fees and expenses in compliance with securities or "Blue Sky" laws (b) printing
expenses (including, without limitation, expenses of printing Prospectuses), (c)
messenger, telephone and delivery expenses, (d) fees and disbursements of
counsel for the Company; (e) Securities Act liability insurance, if the Company
desires such insurance, and (f) fees and expenses of all other Persons retained
by the Company. In addition, the Company shall pay its 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, and the fees and expenses incurred in connection with the listing of the
securities to be registered on any securities exchange. Notwithstanding the
foregoing or anything in this Agreement to the contrary, each Holder shall pay
all underwriting discounts and commissions of any underwriters or broker-dealers
with respect to any Restricted Securities sold by it.
6. Indemnification
(a) The Company agrees to indemnify and hold harmless each Holder and his
representatives and agents (an "Indemnified Person"), from and against any and
all losses, claims, damages, liabilities and judgments caused by any untrue
statement or alleged untrue statement of a material fact contained in the Shelf
Registration Statement, Prospectus or form of Prospectus or in any amendment or
supplement thereto or in any preliminary Prospectus, or caused by (i) any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary in order to make the statements therein, in the case
of any Prospectus or form of Prospectus or supplement thereto, in the light of
the circumstances under which they were made, not misleading, except insofar as
such losses, claims, damages, liabilities or judgments are caused by any such
untrue statement or omission or alleged untrue statement or omission based upon
information relating to any Indemnified Person furnished to the Company by or on
behalf of such Indemnified Person or (ii) 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; provided that the foregoing indemnity with respect to
any preliminary Prospectus shall not inure to the benefit of any Indemnified
Person from whom the Person asserting such losses, claims, damages, liabilities
and judgments purchased securities if such untrue statement or omission or
alleged untrue statement or omission made in such preliminary Prospectus is
eliminated or remedied in the Prospectus and a copy of the Prospectus shall not
have been furnished to such Person in a timely manner provided such failure is
not as a result of an action or inaction on the part of the Indemnifying Person.
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(b) In case any action shall be brought against any Indemnified Person,
based upon the Shelf Registration Statement or any such Prospectus or any
amendment or supplement thereto and with respect to which indemnity may be
sought against the Company, such Indemnified Person shall promptly notify the
Company in writing and the Company shall assume the defense thereof, including
the employment of counsel reasonably satisfactory to such Indemnified Person and
payment of all fees and expenses. Any Indemnified Person shall have the right to
employ separate counsel in any such action and participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Person, unless (i) the employment of such counsel shall have
been specifically authorized in writing by the Company, (ii) the Company shall
have failed to assume the defense and employ counsel for the Indemnified Parties
or (iii) the named parties to any such action (including any impleaded parties)
include both such Indemnified Person and the Company and such Indemnified Person
shall have been advised by counsel that there may be one or more legal defenses
available to it which are different from or additional to those available to the
Company (in which case the Company shall not have the right to assume the
defense of such action on behalf of such Indemnified Person), provided, however,
that the Company shall not, in connection with any such action or separate but
substantially similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the fees and
expenses of more than one separate firm of attorneys (in addition to any local
counsel) for all such Indemnified Persons, which firm shall be designated in
writing by such Indemnified Persons; and provided, however, that all such fees
and expenses shall be reimbursed as they are incurred. The Company shall not be
liable for any settlement of any such action effected without its written
consent but if settled with the written consent of the Company, the Company
agrees to indemnify and hold harmless any Indemnified Person from and against
any loss or liability by reason of such settlement. 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 which any
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.
(c) In connection with the Shelf Registration Statement, each Holder
participating in such Shelf Registration Statement agrees, severally and not
jointly, to indemnify and hold harmless the Company, its directors, its officers
and any Person controlling the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Company to each Indemnified Person but only with
reference to information relating to such Indemnified Person furnished in
writing by or on behalf of such Indemnified Person. In case any action shall be
brought against the Company, any of its directors, any such officer or any
Person controlling the Company based on such Shelf Registration Statement and in
respect of which indemnity may be sought against any Indemnified Person, the
Indemnified Person shall have the rights and duties given to the Company (except
that if the Company shall have assumed the defense thereof, such Indemnified
Person shall not be required to do so, but may employ separate counsel therein
and participate in the defense thereof but the fees and expenses of such counsel
shall be at the expense of such Indemnified Person), and the Company, its
directors, any such officers and any Person controlling the Company shall have
the rights and duties specified for Indemnified Persons in Section 6(b) hereof.
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(d) If the indemnification provided for in this Section 6 is unavailable
to an indemnified party in respect of any losses, claims, damages, liabilities
or judgments referred to therein, then each indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claim, damages,
liabilities and judgments in such proportion as is appropriate to reflect the
relative fault of the Company and each such Indemnified Person in connection
with the statements, omissions or violations which resulted in such losses,
claims, damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative fault of the Company and each such
Indemnified Person 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 Company
or such Indemnified Person and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
The Company and the Holders agree that it would not be just and equitable
if contribution pursuant to this Section 6(d) were determined by pro rata
allocation (even if the Indemnified Persons were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph 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 6, no Indemnified Person shall be
required to contribute any amount in excess of the amount by which the total net
proceeds received by it in connection with the sale of the Restricted Securities
pursuant to this Agreement exceeds the amount of any damages which such
Indemnified Person 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 Indemnified Persons'
obligations to contribute pursuant to this Section 6(d) are several in
proportion to the respective amount of Restricted Securities included in any
such Shelf Registration Statement by each Indemnified Person and not joint.
7. Rule 144
The Company shall use its reasonable best efforts to file the reports
required to be filed by it under the Securities Act and the Exchange Act in a
timely manner and, if at any time it is not required to file such reports but in
the past had been required to or did file such reports, it will, upon the
request of any Holder, make available other information as required by, and so
long as necessary to permit, sales of its Restricted Securities pursuant to Rule
144.
8. Miscellaneous
(a) Remedies. In the event of a breach by the Company, or by a Holder of
any of their obligations under this Agreement, each Holder or the Company, in
addition to being entitled to exercise all rights granted by law, including
recovery of damages, will be entitled to specific
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performance of its rights under this Agreement. The Company and each Holder
agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of any of the provisions of this Agreement
and hereby further agrees that, in the event of any action for specific
performance in respect of such breach, it shall waive the defense that a remedy
at law would be adequate.
(b) 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, without the written consent of each of the Holders.
(c) Notices. All notices and other communications provided for herein
shall be made in writing by hand-delivery, next-day air courier, certified first
class mail, return receipt requested, telex or telecopy:
If the Company:
FPA Medical Management, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: Chief Financial Officer
with copies to:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Senior Vice President,
General Counsel and Secretary
FPA Medical Management, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
and
Pillsbury Madison & Sutro LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
If to any Holder:
at the address and telephone numbers set forth for such Holder
on Schedule 1 hereto
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with a copy to:
▇▇▇▇▇ ▇▇▇▇▇, M.D., ▇.▇.
-----------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: _______________________
Except as otherwise provided in this Agreement, all such communications
shall be deemed to have been duly given when (i) delivered by hand, if
personally delivered, (ii) one Business Day after being timely delivered to a
next-day air courier, (iii) five Business Days after being deposited in the
mail, postage prepaid, if mailed, (iv) when answered back, if telexed or (v)
when receipt is acknowledged by the recipient's telecopier machine, if
telecopied.
(d) 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
and shall inure to the benefit of each Holder. Notwithstanding the foregoing, no
transferee shall have any of the rights granted under this Agreement until such
transferee shall acknowledge its rights and obligations hereunder by a signed
written statement of such transferee's acceptance of such rights and
obligations.
(e) 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.
(f) 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 law.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the hereof. All
references made in this Agreement to "Section" and "paragraph" refer to such
Section or paragraph of this Agreement, unless expressly stated otherwise.
(h) Authority. The Company hereby represents to the parties listed on
Schedule I hereto that this Agreement has been duly authorized, executed and
delivered.
(i) 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 reasonably attorneys' fees in addition to any other
available remedy.
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IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be duly executed as of the date first written above.
FPA MEDICAL MANAGEMENT, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------
Title: Senior Vice President
-----------------------------
The foregoing Registration Rights Agreement is hereby confirmed and
accepted as of the date first above written.
Holders' Representative
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
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SCHEDULE I
[Names and Addresses of Shareholders of Physicians Quality Care, Ltd.]
[Names and Addresses of Shareholders of Associates in Managed Care, Ltd.]
1