EXHIBIT 4
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement"), dated as of
November 6, 1996, is by and among Occupational Health + Rehabilitation Inc (the
"Company"), and the parties listed under the heading of Investors on Schedule A
attached hereto (the "Investors").
WHEREAS, the Investors and the Company are, on the date hereof,
entering into a Series A Convertible Preferred Stock Purchase Agreement (the
"Series A Purchase Agreement") pursuant to which the Company is issuing to the
Investors up to 1,666,667 shares of Series A Convertible Preferred Stock, par
value $.001 per share, of the Company (the "Series A Preferred Shares"); and
WHEREAS, the Company has agreed to grant to the Investors, as an
inducement to enter into the Series A Purchase Agreement, certain rights with
respect to the Series A Preferred Shares;
NOW, THEREFORE, in consideration of the premises set forth herein, the
parties hereto hereby agree as follows:
1. Certain Definitions. As used in this Agreement, the following terms
shall have the following respective meanings:
"Commission" shall mean the Securities and Exchange
Commission, or any other federal agency at the time administering the Securities
Act.
"Common Stock" shall mean the Common Stock, $.001 par value,
of the Company, as constituted as of the date of this Agreement.
"Conversion Shares" shall mean shares of Common Stock issued
or issuable upon conversion of the Series A Preferred Shares, and any shares of
capital stock received in respect thereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, or any similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"Holder" shall mean the person who is the then record owner of
Restricted Stock.
"Registrable Shares" shall mean the shares of Restricted
Stock.
"Registration Expenses" shall mean the expenses so described
in Section 8.
"Restricted Stock" shall mean the Conversion Shares, excluding
shares which have been (a) registered under the Securities Act pursuant to an
effective registration statement filed thereunder and disposed of in accordance
with the registration statement covering them or (b) publicly sold pursuant to
Rule 144 under the Securities Act.
"Securities Act" shall mean the Securities Act of 1933, as
amended, or any similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
2. Restrictive Legend.
Each certificate representing the Restricted Stock shall bear a legend
stating in substance:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 OR APPLICABLE STATE SECURITIES LAWS.
THESE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW
TO DISTRIBUTION OR RESALE, AND MAY NOT BE SOLD, MORTGAGED, PLEDGED,
HYPOTHECATED OR OTHERWISE TRANSFERRED [FOR NON U.S. PERSONS ADD: IN THE
UNITED STATES OR TO U.S. PERSONS] WITHOUT AN EFFECTIVE REGISTRATION
STATEMENT FOR SUCH SECURITIES UNDER THE SECURITIES ACT OF 1933 AND
APPLICABLE STATE SECURITIES LAWS, OR THE AVAILABILITY OF AN EXEMPTION
FROM THE REGISTRATION PROVISIONS OF THE SECURITIES ACT OF 1933 AND
APPLICABLE STATE SECURITIES LAWS.
A certificate shall not be required to bear such legend if, in the
opinion of counsel satisfactory to the Company, the securities represented
thereby may be publicly sold without registration under the Securities Act.
3. Notice of Proposed Transfer.
Prior to any proposed transfer of any Restricted Stock (other than
under the circumstances described in Section 4, 5 or 6), the Holder thereof
shall give written notice to the Company of its intention to effect such
transfer. Each such notice shall describe the manner of the proposed transfer
and, if requested by the Company, shall be accompanied by an opinion of counsel
satisfactory to the Company to the effect that the proposed transfer may be
effected without registration under the Securities Act, whereupon the Holder of
such stock shall be entitled to transfer such stock in accordance with the terms
of its notice; provided, however, that no such opinion of counsel shall be
required for a distribution by a partnership to its partners of such stock in
respect of such interest. Each certificate for shares of Restricted Stock
transferred as above provided shall bear the legend set forth in Section 2,
except that such certificate shall not bear such legend if (i) such transfer is
in accordance with the provisions of Rule 144 (or any other rule permitting
public sale without registration under the Securities Act) or (ii) the opinion
of counsel referred to above is to the further effect that the transferee and
any subsequent transferee (other than an affiliate of the Company) would be
entitled to transfer such securities in a public sale without registration under
the Securities Act. The restrictions provided for in this Section 3 shall not
apply to securities which are not required to bear the legend prescribed by
Section 2 in accordance with the provisions of that Section.
4. Required Registration.
(a) At any time prior to November 6, 2001, the Holders of
Registrable Shares constituting at least 51% of the total shares of Registrable
Shares then outstanding may request the Company to register under the Securities
Act all or any portion of the Registrable Shares held by such requesting Holder
or Holders for sale in the manner specified in such notice, provided that the
Registrable Shares for which registration has been requested shall constitute at
least 25% of the total Registrable Shares originally issued if such Holder or
Holders shall request the registration of less than all Registrable Shares then
held by such Holder or Holders. Notwithstanding anything to the contrary
contained herein, no request may be made under this Section 4 within 180 days
after the effective date of
a registration statement filed by the Company covering a firm commitment
underwritten public offering in which the Holders of Registrable Shares shall
have been entitled to join pursuant to Section 5 or 6 and in which there shall
have been effectively registered all Registrable Shares to which registration
shall have been requested.
(b) Following receipt of any notice under this Section 4, the
Company shall immediately notify all Holders of Registrable Shares from whom
notice has not been received and shall use its reasonable best efforts to
register under the Securities Act, for public sale in accordance with the method
of disposition specified in such notice from requesting Holders, the number of
Registrable Shares specified in such notice (and in all notices received by the
Company from other Holders within 30 days after the giving of such notice by the
Company). If such method of disposition shall be an underwritten public
offering, the Holders of a majority of the Registrable Shares to be sold in such
offering may designate the managing underwriter of such offering, subject to the
approval of the Company, which approval shall not be unreasonably withheld or
delayed. The Company shall be obligated to register Registrable Shares pursuant
to this Section 4 on two occasions only, provided, however, that such obligation
shall be deemed satisfied only when a registration statement, which covers all
Registrable Shares specified in notices received as aforesaid and with respect
to which the request for registration has not been withdrawn and provides for
sale of such shares in accordance with the method of disposition specified by
the requesting Holders, shall have become effective and, if such method of
disposition is a firm commitment underwritten public offering, all such shares
shall have been sold pursuant thereto.
(c) The Company shall be entitled to include in any
registration statement referred to in this Section 4, for sale in accordance
with the method of disposition specified by the requesting Holders, shares of
Common Stock to be sold by the Company for its own account, except as and to the
extent that, in the opinion of the managing underwriter (if such method of
disposition shall be an underwritten public offering), such inclusion would
adversely affect the marketing of the Registrable Shares to be sold. Except for
registration statements on Form ▇-▇, ▇-▇ or any successor thereto, the Company
will not file with the Commission any other registration statement with respect
to its Common Stock, whether for its own account or that of other stockholders,
from the date of receipt of a notice from requesting Holders pursuant to this
Section 4 (the "Demand Holders")until the first to occur of (i) withdrawal of
such registration statement or (ii) the effectiveness of such registration
statement unless such registration statement relates to a firm commitment
underwritten public offering, then the completion of the period of distribution
of the registration contemplated thereby; provided, however, that following
receipt of any notice under this Section 4, the Company shall immediately notify
all holders of the Company's Common Stock who have contractual rights to demand
registrations pursuant to the terms of any other registration rights agreement
to which the Company is a party. Upon the written request of such demand rights
holders constituting the requisite percentages of shares to initiate a demand
under such other registration rights agreement specifying the number of shares
to be registered, which request shall be deemed to be an exercise of a demand
right under the terms of the registration rights agreement to which they are
parties, such demand rights holders shall be deemed to be Demand Holders and the
shares requested to be registered by such Demand Holders shall be deemed to be
Registrable Shares, in each case, for purposes of Section 4(d), provided that
such written request is received by the Company within 30 days of the giving of
notice by the Company.
(d) If, in the opinion of the managing underwriter, the
inclusion in a registration statement to be filed under this Section of any
shares other than the Registrable Shares requested to be registered under this
Section by Demand Holders would adversely affect the marketing of such shares,
then, in such event (a) such other shares may be included in such registration
only if all of the Registrable Shares requested to be registered by Demand
Holders hereunder are included, and (b) such
other shares shall be subject to the provisions of Section 5 and the first
sentence of Section 4(c) as to priority of inclusion. If, in the opinion of the
managing underwriter, the inclusion of the Registrable Shares requested to be
registered under this Section by Demand Holders would adversely affect the
marketing of such Registrable Shares, Registrable Shares to be sold by the
Demand Holders shall be excluded in such manner that the Registrable Shares to
be excluded shall first be the Registrable Shares of Demand Holders who are not
affiliates (as defined in Rule 144 of the Securities Act) of the Company (the
"Affiliate Holders") and whose Registrable Shares are then saleable under Rule
144(e) or Rule 144(k) under the Securities Act and then pro rata among them, and
if further reduction is necessary, shall next be pro rata among the remaining
Registrable Shares of the Demand Holders who are Affiliate Holders or whose
Registrable Shares are not then saleable under Rule 144(e) or Rule 144(k) ,
provided, however, that, notwithstanding anything in this Agreement to the
contrary, in respect of the first underwritten public offering following the
date of this Agreement, no reduction shall reduce the number of shares which may
be sold by requesting Holders to less than 25% of the shares to be sold in such
offering.
5. Incidental Registration.
If the Company at any time (other than pursuant to Section 4 or Section
6) proposes to register any of its securities under the Securities Act for sale
to the public, whether for its own account or for the account of other
securityholders or both (except with respect to registration statements on Forms
▇-▇, ▇-▇ or another form not available for registering the Restricted Stock for
sale to the public), each such time the Company will give written notice to all
Holders of outstanding Restricted Stock of its intention to do so. Upon the
written request of any such Holder received by the Company within 30 days of the
giving of any such notice by the Company to register any of such Holder's
Restricted Stock (which request shall state the intended method of disposition
thereof), the Company will use its reasonable best efforts to cause the
Restricted Stock as to which registration shall have been so requested to be
included in the securities to be covered by the registration statement proposed
to be filed by the Company, all to the extent requisite to permit the sale or
other disposition by the Holder (in accordance with such Holder's written
request) of such Restricted Stock so registered. In the event that any
registration pursuant to this Section 5 shall be, in whole or in part, an
underwritten public offering of Common Stock, the number of shares of Restricted
Stock to be included in such an underwriting may be reduced if and to the extent
that the managing underwriter shall be of the opinion that such inclusion would
adversely affect the marketing of the securities to be sold by the Company or
the requesting party therein or that such reduction is otherwise advisable,
provided, however, that after any shares to be sold by holders that do not have
contractual rights to have shares included in such registration have been
excluded, shares to be sold by the Holders shall be excluded in such manner that
the shares to be excluded shall first be the shares of selling Holders and other
requesting holders who, in each case, are not Affiliate Holders and whose shares
are then saleable under Rule 144(e) or Rule 144(k) under the Securities Act and
then pro rata among them, and if further reduction is necessary, shall next be
pro rata among the remaining shares of the selling Holders and other requesting
holders who are Affiliate Holders or whose shares are not then saleable under
Rule 144(e) or Rule 144(k), unless such registration is pursuant to the exercise
of a demand right of another securityholder, in which event such securityholder
shall be entitled to include all shares it desires to have so included before
any shares of Restricted Stock or shares of any other holder are included
therein and provided, however, that, notwithstanding anything in this Agreement
to the contrary, in respect of the first underwritten public offering following
the date of this Agreement, no reduction shall reduce the number of shares which
may be sold by requesting Holders to less than 25% of the shares to be sold in
such offering.
6. Registration on Form S-3.
If at any time prior to November 6, 2001 (i) a Holder or Holders of
Registrable Shares request that the Company file a registration statement on
Form S-3 or any successor thereto for a public offering of all or any portion of
the Registrable Shares held by such requesting Holder or Holders, the reasonably
anticipated aggregate price to the public of at least $500,000, and (ii) the
Company is a registrant entitled to use Form S-3 or any successor thereto to
register such shares, then the Company shall use its reasonable best efforts to
register under the Securities Act on Form S-3 or any successor thereto, for
public sale in accordance with the method of disposition specified in such
notice, the number of Registrable Shares specified in such notice. Whenever the
Company is required by this Section 6 to use its reasonable best efforts to
effect the registration of Registrable Shares, each of the procedures and
requirements of Section 4 (including but not limited to the requirement that the
Company notify all Holders of Registrable Shares from whom notice has not been
received and provide them with the opportunity to participate in the offering)
shall apply to such registration, provided, however, that there shall be up to
five (5) registrations on Form S-3 which may be requested and obtained under
this Section 6, and the Company shall not be obligated to register Registrable
Shares pursuant to this Section 6 on more than one occasion per twelve (12)
month period, and provided, further, however, that the requirements contained in
the first sentence of Section 4(a) shall not apply to any registration on Form
S-3 which may be requested and obtained under this Section 6.
7. Registration Procedures.
If and whenever the Company is required by the provisions of Section 4,
5 or 6 to use its reasonable best efforts to effect the registration of any
shares of Restricted Stock under the Securities Act, the Company will, as
expeditiously as possible:
(a) prepare and file with the Commission a registration
statement (which, in the case of an underwritten public offering pursuant to
Section 4, shall be on Form S-1 or other form of general applicability
satisfactory to the managing underwriter selected as therein provided) with
respect to such securities and use its reasonable best efforts to cause such
registration statement to become and remain effective for the period of the
distribution contemplated thereby (determined as hereinafter provided);
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective for
the period specified in paragraph (a) above and comply with the provisions of
the Securities Act with respect to the disposition of all Restricted Stock
covered by such registration statement in accordance with the sellers' intended
method of disposition set forth in such registration statement for such period;
(c) furnish to each seller of Restricted Stock and to each
underwriter such number of copies of the registration statement and the
prospectus included therein (including each preliminary prospectus) as such
persons reasonably may request in order to facilitate the public sale or other
disposition of the Restricted Stock covered by such registration statement;
(d) use its reasonable best efforts to register or qualify the
Restricted Stock covered by such registration statement under the securities or
"blue sky" laws of such jurisdictions as the sellers of Restricted Stock or, in
the case of an underwritten public offering, the managing underwriter reasonably
shall request, provided, however, that the Company shall not for any such
purpose be required to qualify generally to transact business as a foreign
corporation in any jurisdiction where it is not so qualified or to consent to
general service of process in any such jurisdiction;
(e) use its reasonable best efforts to list the Restricted
Stock covered by such registration statement with any securities exchange on
which the Common Stock is then listed;
(f) immediately notify each seller of Restricted Stock and
each underwriter under such registration statement, at any time when a
prospectus relating thereto is required to be delivered under the Securities
Act, of the happening of any event of which the Company has knowledge as a
result of which the prospectus contained in such registration statement, as then
in effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing, and promptly
prepare and furnish to such seller a reasonable number of copies of a prospectus
supplemented or amended so that, as thereafter delivered to the purchasers of
such Restricted Stock, such prospectus shall not include an untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading in light of the
circumstances then existing;
(g) if the offering is underwritten and at the request of any
seller of Restricted Stock as provided herein, use its reasonable best efforts
to furnish on the date that Restricted Stock is delivered to the underwriters
for sale pursuant to such registration: (i) an opinion dated such date of
counsel representing the Company for the purposes of such registration,
addressed to the underwriters and to such seller, stating that such registration
statement has become effective under the Securities Act and that (A) to the
knowledge of such counsel, no stop order suspending the effectiveness thereof
has been issued and no proceedings for that purpose have been instituted or are
pending or threatened under the Securities Act, (B) the registration statement,
the related prospectus and each amendment or supplement thereof comply as to
form in all material respects with the requirements of the Securities Act
(except that such counsel need not express any opinion as to financial
statements, schedules and other financial or statistical information contained
therein) and (C) to such other effects as reasonably may be requested by counsel
for the underwriters or by such seller or its counsel; and (ii) a letter dated
such date from the independent public accountants retained by the Company,
addressed to the underwriters and to such seller, stating that they are
independent public accountants within the meaning of the Securities Act and
that, in the opinion of such accountants, the financial statements of the
Company included in the registration statement or the prospectus, or any
amendment or supplement thereof, comply as to form in all material respects with
the applicable accounting requirements of the Securities Act, and such letter
shall additionally cover such other financial matters (including information as
to the period ending no more than five business days prior to the date of such
letter) with respect to such registration as such underwriters reasonably may
request;
(h) make available for inspection by each seller of Restricted
Stock, any underwriter participating in any distribution pursuant to such
registration statement, and any attorney, accountant or other agent retained by
such seller or underwriter, all financial and other records, pertinent corporate
documents and properties of the Company, and cause the Company's officers,
directors and employees to supply all information reasonably requested by any
such seller, underwriter, attorney, accountant or agent in connection with such
registration statement;
(i) cooperate with the selling holders of Restricted Stock and
the managing underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Restricted Stock to be sold, such
certificates to be in such denominations and registered in such names as such
holders or the managing underwriters may request at least two business days
prior to any sale of Restricted Stock; and
(j) permit any holder of Restricted Stock which holder, in the
sole and exclusive judgment, exercised in good faith, of such holder, might be
deemed to be a controlling person of the Company, to participate in good faith
in the preparation of such registration or comparable statement and to require
the insertion therein of material, furnished to the Company in writing, which in
the reasonable judgment of such holder and its counsel should be included.
For purposes of Section 7(a) and 7(b) and of Section 4(c), the period
of distribution of Restricted Stock included therein shall be deemed to extend
until the first to occur of (i) each underwriter's completion of the
distribution of all securities purchased by it, and (ii) one hundred and twenty
(120) days.
In connection with each registration hereunder, the sellers of
Restricted Stock will furnish to the Company in writing such information with
respect to themselves and the proposed distribution by them as reasonably shall
be necessary in order to assure compliance with federal and applicable state
securities laws.
In connection with each registration pursuant to Section 4, 5 or 6
covering an underwritten public offering, the Company and each seller agree to
enter into a written agreement with the managing underwriter selected in the
manner herein provided in such form and containing such provisions as are
customary in the securities business for such an arrangement between such
underwriter and companies of the Company's size and investment stature.
No Holder of shares of Restricted Stock included in a registration
statement shall (until further notice) effect sales thereof after receipt of
telegraphic or written notice from the Company to suspend sales to permit the
Company to correct or update a registration statement or prospectus; but the
obligations of the Company with respect to maintaining any registration
statement current and effective shall be extended by a period of days equal to
the period such suspension is in effect unless (i) such extension would result
in the Company's inability to use the financial statements in the registration
statement as initially filed and (ii) such correction or update did not result
from the Company's acts or failures to act.
At the end of the period during which the Company is obligated to keep
the registration statement current and effective as described above (and any
extensions thereof required by the preceding sentence), the Holders of shares of
Restricted Stock included in the registration statement shall discontinue sales
of shares pursuant to such registration statement upon receipt of notice from
the Company of its intention to remove from registration the shares covered by
such registration statement which remain unsold, and such Holders shall notify
the Company of the number of shares registered which remain unsold immediately
upon receipt of such notice from the Company.
8. Expenses.
All expenses incurred by the Company in complying with Sections 4, 5
and 6, including, without limitation, all registration and filing fees, printing
expenses, fees and disbursements of counsel and independent public accountants
for the Company, fees and expenses (including counsel fees) incurred in
connection with complying with state securities or "blue sky" laws, fees of the
National Association of Securities Dealers, Inc., transfer taxes, fees of
transfer agents and registrars, costs of insurance, and fees and disbursements
of one counsel for the sellers of Restricted Stock, but excluding any Selling
Expenses, are called "Registration Expenses." All underwriting discounts and
selling commissions applicable to the sale of Restricted Stock are called
"Selling Expenses."
The Company will pay all Registration Expenses in connection with each
registration statement under Sections 4, 5 or 6. All Selling Expenses in
connection with each registration statement under Sections 4, 5 or 6 shall be
borne by the participating sellers in proportion to the number of shares sold by
each, or by such participating sellers other than the Company (except to the
extent the Company shall be a seller) as they may agree.
9. Indemnification and Contribution.
(a) In the event of a registration of any of the Restricted
Stock under the Securities Act pursuant to Sections 4, 5 or 6, the Company will
indemnify and hold harmless each seller of such Restricted Stock thereunder, its
officers and directors, each underwriter of such Restricted Stock thereunder and
each other person, if any, who controls such seller or underwriter within the
meaning of the Securities Act, against any losses, claims, damages or
liabilities, joint or several, to which such seller, officer, director,
underwriter or controlling person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of any material fact contained in any registration
statement under which such Restricted Stock was registered under the Securities
Act pursuant to Sections 4, 5 or 6, any preliminary prospectus or final
prospectus contained therein, or any amendment or supplement thereof, (ii) any
blue sky application or other document executed by the Company specifically for
that purpose or based upon written information furnished by the Company filed in
any state or other jurisdiction in order to qualify any or all of the Restricted
Stock under the securities laws thereof (any such application, document or
information herein called a "Blue Sky Application"), (iii) 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, (iv) any violation
by the Company or its agents of any rule or regulation promulgated under the
Securities Act applicable to the Company or its agents and relating to action or
inaction required of the Company in connection with such registration, or (v)
any failure to register or qualify the Restricted Stock in any state where the
Company or its agents has affirmatively undertaken or agreed in writing that the
Company (the undertaking of any underwriter chosen by the Company being
attributed to the Company) will undertake such registration or qualification on
the seller's behalf (provided that in such instance the Company shall not be so
liable if it has undertaken its best efforts to so register or qualify the
Restricted Stock) and will reimburse each such seller, and such officer and
director, each such underwriter and each such 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 Company will not be liable in any such case if and to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission so made in conformity with information furnished by any such seller,
any such underwriter or any such controlling person in writing specifically for
use in such registration statement or prospectus, and except that the foregoing
indemnity agreement is subject to the condition that, insofar as it relates to
any such untrue statement or alleged untrue statement or omission or alleged
omission made in the preliminary prospectus but eliminated or remedied in the
amended prospectus on file with the Commission at the time the registration
statement becomes effective or in the amended prospectus filed with the
Commission pursuant to Rule 424(b) or in the prospectus subject to completion
and term sheet under Rule 434 of the Securities Act, which together meet the
requirements of Section 10(a) of the Securities Act (the "Final Prospectus"),
such indemnity agreement shall not inure to the benefit of any such seller, any
such underwriter or any such controlling person, if such seller, underwriter or
controlling person was obligated under law to provide a copy of the Final
Prospectus to the person or entity asserting the loss, liability, claim or
damage and failed to do so after sufficient copies of the Final Prospectus were
delivered by the Company to such seller, underwriter or controlling person in
sufficient time to deliver
the Final Prospectus within the period required by the Securities Act; provided,
further, that this indemnity shall not be deemed to relieve any underwriter of
any of its due diligence obligations.
(b) To the extent permitted by law, in the event of a
registration of any of the Restricted Stock under the Securities Act pursuant to
Section 4, 5 or 6, each seller of such Restricted Stock thereunder, severally
and not jointly, will indemnify and hold harmless the Company, each person, if
any, who controls the Company within the meaning of the Securities Act, each
officer of the Company who signs the registration statement, each director of
the Company, each underwriter and each person who controls any underwriter
within the meaning of the Securities Act, against all losses, claims, damages or
liabilities, joint or several, to which the Company or such officer, director,
underwriter or controlling person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any registration statement
under which such Restricted Stock was registered under the Securities Act
pursuant to Section 4, 5 or 6, any preliminary prospectus or final prospectus
contained therein, or any amendment or supplement thereof, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances in which they were made, and will
reimburse the Company and each such officer, director, underwriter 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 such seller will be liable
hereunder in any such case if and only to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission so made in reliance
upon and in conformity with information pertaining to such seller furnished in
writing to the Company by such seller specifically for use in such registration
statement or prospectus, and provided, further, that the foregoing indemnity
agreement is subject to the condition that, insofar as it relates to any such
untrue statement or alleged untrue statement or omission or alleged omission
made in the preliminary prospectus but eliminated or remedied in the amended
prospectus on file with the Commission at the time the registration statement
becomes effective or in the Final Prospectus, such indemnity agreement shall not
inure to the benefit of the Company, any controlling person or any underwriter,
if the Company, underwriter or controlling person was obligated under law to
provide a copy of the Final Prospectus to the person or entity asserting the
loss, liability, claim or damage and failed to do so within the period required
by the Securities Act; provided, further, that this indemnity shall not be
deemed to relieve any underwriter of any of its due diligence obligations; and
provided, further, that in no event shall any indemnity by a seller under this
Section 9(b) exceed the gross proceeds from the offering received by such
seller.
(c) Promptly after receipt by an indemnified party hereunder
of notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party hereunder,
notify the indemnifying party in writing thereof, but the omission so to notify
the indemnifying party shall not relieve it from any liability which it may have
to such indemnified party other than under this Section 9 and shall only relieve
it from any liability which it may have to such indemnified party under this
Section 9 if and to the extent the indemnifying party is prejudiced by such
omission. In case any such action shall be brought against any indemnified party
and it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate in and, to the extent it
shall wish, to assume and undertake the defense thereof with counsel
satisfactory to such indemnified party, and, after notice from the indemnifying
party to such indemnified party of its election so to assume and undertake the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under this Section 9 for any legal expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation and of liaison with counsel so selected, provided,
however, that, if the defendants in any
such action include both the indemnified party and the indemnifying party and
counsel to the indemnified party shall have reasonably concluded that there are
reasonable defenses available to the indemnified party which are different from
or additional to those available to the indemnifying party or if the interests
of the indemnified party reasonably may be deemed to conflict with the interests
of the indemnifying party, the indemnified party shall have the right to select
a separate counsel and to assume such legal defenses and otherwise to
participate in the defense of such action, with the expenses and fees of such
separate counsel and other expenses related to such participation to be
reimbursed by the indemnifying party as incurred. 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
in respect to such claim or litigation.
(d) In order to provide for just and equitable contribution to
joint liability under the Securities Act in any case in which either (i) any
Holder of Restricted Stock exercising rights under this Agreement, or any
controlling person of any such Holder, makes a claim for Indemnification
pursuant to this Section 9 but it is judicially determined (by the entry of a
final judgment or decree by a court of competent jurisdiction and the expiration
of time to appeal or the denial of the last right of appeal) that such
indemnification may not be enforced in such case notwithstanding the fact that
this Section 9 provides for indemnification in such case, or (ii) contribution
under the Securities Act may be required on the part of any such selling Holder
or any such controlling person in circumstances for which indemnification is
provided under this Section 9; then, and in each such case, the Company and such
Holder will contribute to the aggregate losses, claims, damages or liabilities
to which they may be subject (after contribution from others) in such proportion
so that such Holder is responsible for the portion represented by the percentage
that the public offering price of its Restricted Stock offered by the
registration statement bears to the public offering price of all securities
offered by such registration statement, and the Company is responsible for the
remaining portion; provided, however, that, in any such case, (A) no such Holder
will be required to contribute any amount in excess of the public offering price
of all such Restricted Stock offered by it pursuant to such registration
statement; and (B) no person or entity guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) will be entitled to
contribution from any person or entity who was not guilty of such fraudulent
misrepresentation.
10. Changes in Common Stock or Series A Preferred Stock. If, and as
often as, there is any change in the Common Stock or Series A Preferred Stock by
way of a stock split, stock dividend, combination or reclassification, or
through a merger, consolidation, reorganization or recapitalization, or by any
other means, appropriate adjustment shall be made in the provisions hereof so
that the rights and privileges granted hereby shall continue with respect to the
Common Stock or Series A Preferred Stock as so changed.
11. Rule 144 Reporting. With a view to making available the benefits of
certain rules and regulations of the Commission which may at any time permit the
sale of the Restricted Stock to the public without registration, the Company
agrees to:
(a) make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act;
(b) use its reasonable best efforts to file with the
Commission in a timely manner all reports and other documents required of the
Company under the Securities Act and the Exchange Act; and
(c) furnish to each Holder of Restricted Stock forthwith upon
request a written statement by the Company as to its compliance with the
reporting requirements of such Rule 144 and of the Securities Act and the
Exchange Act, a copy of the most recent annual or quarterly report of the
Company, and such other reports and documents so filed by the Company as such
Holder may reasonably request in availing itself of any rule or regulation of
the Commission allowing such Holder to sell any Restricted Stock without
registration.
The Company shall not be required to effect a registration pursuant to
Section 4, 5 or 6 hereof for any Holder desiring to participate in such
registration who (a) may then dispose of all of its shares of Restricted Stock
pursuant to Rule 144 within the three-month period following such proposed
registration; and (b) holds less than 1% of the outstanding capital stock of the
Company (on a common stock-equivalent basis) at the time of such registration.
12. Representations and Warranties of the Company. The Company
represents and warrants to you as follows:
(a) The execution, delivery and performance of this Agreement
by the Company have been duly authorized by all requisite corporate action and
will not violate any provision of law, any order of any court or other agency of
government, the Charter or By-laws of the Company or any provision of any
indenture, agreement or other instrument to which it or any or its properties or
assets is bound, conflict with, result in a breach of or constitute (with due
notice or lapse of time or both) a default under any such indenture, agreement
or other instrument or result in the creation or imposition of any lien, charge
or encumbrance of any nature whatsoever upon any of the properties or assets of
the Company.
(b) This Agreement has been duly executed and delivered by the
Company and constitutes the legal, valid and binding obligation of the Company,
enforceable in accordance with its terms (subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and
similar laws affecting the rights of creditors generally), except to the extent
the indemnification provisions herein may be deemed not enforceable.
(c) The Company has not granted any registration rights, and
no such registration rights exist, that conflict with the registrations rights
set forth herein or contemplated hereby. All registration rights agreements
relating to the capital stock of the Company permit, or have been amended to
permit, the transactions and rights set forth herein and contemplated hereby.
13. Miscellaneous.
(a) All covenants and agreements contained in this Agreement
by or on behalf of any of the parties hereto shall bind and inure to the benefit
of the respective successors and assigns of the parties hereto (including
without limitation transferees of any of the shares of Restricted Stock),
whether so expressed or not, provided, however, that registration rights
conferred herein on the Holders of shares of Restricted Stock shall only inure
to the benefit of a transferee of shares of Restricted Stock if such transferee,
in the Company's reasonable judgment, is not a competitor of the Company, and
(i) there is transferred to such transferee at least 20% of the total shares of
Restricted Stock originally issued to the direct or indirect transferor of such
transferee by the Company or (ii) such transfer is made in connection with the
distribution by a Holder to such Holders beneficial owners (including, without
limitation, to partners of a general or limited partnership, shareholders of a
corporation and beneficiaries of a trust) of securities of the Holder or to the
partners or employees of the Holder, provided that at the Company's request, one
person shall be designated by such transferees as their agent for purposes of
their rights
hereunder and the provision of a notice by the Company to such agent in
accordance with the provisions hereof shall be deemed compliance with such
provisions for all such beneficial owners, partners and employees, and following
such request by the Company, the Company shall have no obligation under said
provisions with respect to such transferees until it shall have been notified of
the name and address of such agent.
(b) Each Holder agrees that it will provide notice to the
Company of any transfer or assignment of its rights or interests hereunder. Any
failure by the Company to fulfill a covenant or obligation hereunder which is
the direct result of a failure by a Holder to provide such notice shall not be
deemed to be a breach of any covenant or obligation hereunder.
Nothing in this Agreement shall be construed to create any rights or
obligations except among the parties hereto and their respective and permitted
successors and assigns, and no person or entity shall be regarded as a
third-party beneficiary of this Agreement.
Except as provided in Section 13(a) above, all notices, requests,
consents and other communications hereunder shall be in writing, shall be
addressed to the receiving party's address set forth below or to such other
address as a party may designate by notice hereunder, and shall be either (i)
delivered by hand, (ii) sent by overnight courier, with a receipt obtained or
(iii) sent by registered or certified mail, return receipt requested, postage
prepaid.
If to the Company: Occupational Health + Rehabilitation Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Chief Executive Officer
If to an Investor: To such Investor at the address of such
Investor set forth in Schedule I to the
Series A Purchase Agreement
All notices, requests, consents and other communications hereunder
shall be deemed to have been given (i) if by hand, at the time of the delivery
thereof to the receiving party at the address of such party set forth above,
(ii) if sent by overnight courier, on the next business day following the day
such notice is delivered to the courier service, or (iii) if sent by registered
or certified mail, on the 5th business day following the day such mailing is
made.
(c) This Agreement shall be governed and construed in
accordance with the law of the Commonwealth of Massachusetts, without giving
effect to the conflict of laws principles thereof.
(d) This Agreement may be amended or modified, and any
provision hereof may be waived in whole or in part, but only by the written
consent of the Company and the holders of a majority of the aggregate number of
outstanding shares of Restricted Stock held of record by the Holders or their
permitted successors and assigns. This Agreement may be terminated by written
agreement of the Company and the holders of at least a majority of the aggregate
number of outstanding shares of Restricted Stock held of record by the Holders
or their permitted successors and assigns.
(e) This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(f) Except as otherwise expressly provided herein, the
obligations of the Company to register shares of Restricted Stock under Section
4, 5 or 6 as provided herein shall terminate on November 6, 2001.
(g) If requested by the underwriter or underwriters for an
underwritten public offering of securities of the Company which offering is by
the Company, each Holder of Restricted Stock who is a party to this Agreement
(including, without limitation, a successor or permitted assignee of a party)
shall agree not to sell, make any short sale of, loan, grant any option for the
purchase of, or otherwise dispose of any shares of Restricted Stock or any other
shares of Common Stock (other than shares being registered in such offering),
without the consent of such underwriter or underwriters, for a period of not
more than 90 days following the effective date of the registration statement
relating to such offering (unless in any event such underwriter or underwriters
shall, based on then current market conditions, agree to a shorter period),
provided, with respect to each such offering, that all persons entitled to
registration rights in such offering who are not parties to this Agreement, all
other persons selling shares of Common Stock in such offering and all executive
officers of the Company shall also have agreed to be bound by provisions
pertaining to the sale of their shares of Common Stock following such offering
which provisions are substantially similar to the provisions binding upon the
Holders of Restricted Stock obligated under this Agreement with respect to the
sale of their shares following such offering.
(h) The Company shall be permitted to require any Holders
requesting registration under Section 4, 5 or 6 to delay any request for
registration or to cease sales under any effective registration statement if the
Company is then contemplating a transaction that could reasonably be expected to
be adversely affected or the Company would be required to make public disclosure
of information, the disclosure of which at such time could reasonably be
expected to cause a material adverse effect upon the Company's business.
In addition, if at the time of any request to register Registrable
Shares pursuant to Section 4 or Section 6 hereof, the Company is engaged or has
fixed plans to engage within ninety (90) days of the time of the request in a
registered public offering as to which such Holders may include Registrable
Shares pursuant to Section 5 hereof, then the Company may at its option direct
that such request be delayed.
(i) If any provision of this Agreement shall be held to be
illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall not in any manner
affect or render illegal, invalid or unenforceable any other provision of this
Agreement, and this Agreement shall be carried out as if any such illegal,
invalid or unenforceable provision were not contained herein.
In the event that any court of competent jurisdiction shall determine
that any provision, or any portion thereof, contained in this Agreement shall be
unreasonable or unenforceable in any respect, then such provision shall be
deemed limited to the extent that such court deems it reasonable and
enforceable, and as so limited shall remain in full force and effect.
(j) The headings and captions of the various subdivisions of
this Agreement are for convenience of reference only and shall in no way modify,
or affect the meaning or construction of any of the terms or provisions hereof.
14. Entire Agreement.
This Agreement embodies the entire agreement and understanding among
the parties hereto with respect to the subject matter hereof and supersedes all
prior oral or written agreements and understandings related to the subject
matter hereof; except that certain Holders are also parties to the Registration
Rights Agreement of the Company dated as of June 6, 1996, as amended on the date
hereof.
IN WITNESS WHEREOF, the undersigned have executed this Registration
Rights Agreement as a sealed instrument as of the day and year first written
above.
THE COMPANY: INVESTORS:
OCCUPATIONAL HEALTH + ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ STRATEGIC
REHABILITATION INC. PARTNERS FUND, L.P.
By: ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Strategic Partners, L.P.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------- ----------------------------------------
Title: Title: General Partner
--------------------------------- --------------------------------------
STRATEGIC ASSOCIATES, L.P.
By: ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Managing Member
------------------------------------
AXA U.S. GROWTH FUND, LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Title: Managing Member
------------------------------------
U.S. GROWTH FUND PARTNERS, C.V.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Title: General Partner
------------------------------------
DOUBLE BLACK DIAMOND II, LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Managing Member
------------------------------------
ALMANORI LIMITED
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Attorney-in-Fact
------------------------------------
THE VENTURE CAPITAL FUND OF
NEW ENGLAND III, L.P.
By: FH & Co. III, L.P., Its General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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BANCBOSTON VENTURES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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VENROCK ASSOCIATES
By: /s/ ▇▇▇▇▇▇▇ Sun
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VENROCK ASSOCIATES II, L.P.
By: /s/ ▇▇▇▇▇▇▇ Sun
--------------------------------------
ASSET MANAGEMENT ASSOCIATES,
1989, L.P.
By: AMC Partners 89, L.P., General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
SCHEDULE A
INVESTORS
---------
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Strategic Partners Fund, L.P.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Strategic Associates, L.P.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Axa U.S. Growth Fund, LLC
c/o Partech International
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▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
U.S. Growth Fund Partners, C.V.
c/o Partech International
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▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Double Black Diamond II, LLC
c/o Partech International
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▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Almanori Limited
c/o Partech International
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Asset Management Associates, 1989, L.P.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Venrock Associates
Room 5508, ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Messrs. ▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Venrock Associates II, L.P.
Room 5508, ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Messrs. ▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
The Venture Capital Fund of New England, III, L.P.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
BancBoston Ventures, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
