Exhibit 10.12
REGISTRATION RIGHTS AGREEMENT
Agreement dated as of August 29, 1997 by and among Vista Hospice Care,
Inc., a Delaware corporation (the "Company"), and the holders of capital stock
of the Company listed on Exhibit A hereto (the "Purchasers").
Recitals:
A. Certain of the Purchasers (the "Bessemer Purchasers") purchased
common stock of the Company pursuant to a Stock Purchase Agreement dated
November 22, 1995 (the "Bessemer Purchase Agreement") and, in connection
therewith, were granted certain registration rights;
B. Lighthouse Capital Partners II, L.P. ("Lighthouse"), one of the
Purchasers, purchased common stock of the Company pursuant to Amendment No. 1 to
the Bessemer Purchase Agreement dated March 20, 1997 (the "Lighthouse
Agreement") and, in connection therewith, was granted certain registration
rights;
C. Certain of the Purchasers are purchasing Series B preferred stock of
the Company ("Series B Shares") and common stock of the Company pursuant to a
Stock Purchase Agreement of this date (the "HCCP Purchase Agreement"); and
D. The parties desire that all the Purchasers have common registration
rights with respect to their shares of capital stock of the Company.
In consideration of the foregoing and the covenants set forth herein,
the parties hereto agree as follows:
1. Amendment of Bessemer Purchase Agreement and Amendment of Lighthouse
Agreement. The Bessemer Purchase Agreement is hereby amended so that Sections
7.1 and 7.4 through 7.13 are deleted in their entirety and superseded (as to the
Company and the Bessemer Purchasers) by the subsequent provisions hereof. The
Lighthouse Agreement is hereby amended so that Sections 2 and 3 are deleted in
their entirety and superseded by the subsequent provisions hereof.
2. Definitions. For purposes of this agreement, the following terms
shall have the following respective meanings:
"Commission" shall mean the Securities and Exchange
Commission.
"Common Shares" shall mean shares of common stock of the
Company (i) purchased by a Purchaser pursuant to the Bessemer Purchase
Agreement, (ii) purchased by Lighthouse pursuant to the Lighthouse
Agreement, (iii) into which the Series B Shares purchased by a
Purchaser at any time pursuant to the HCCP Purchase Agreement
(including the Additional Shares as defined therein) have been
converted or are convertible, (iv) purchased by a Purchaser pursuant to
the HCCP Purchase Agreement, (v) acquired by a Purchaser, or their
assigns, pursuant to preemptive, first refusal or similar rights or
upon conversion or exercise of securities acquired pursuant to said
rights, and (vi) acquired in respect of the foregoing upon stock
dividends, subdivisions, combinations or other capital changes.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission thereunder,
and as the same may be amended and in effect from time to time.
"Holders" shall mean (i) the Purchasers, (ii) any successor or
assignee of a Purchaser who is an affiliate, partner or retired partner
of such Purchaser, the estate or any immediate family member of (A) any
such partner or retired partner or (B) any such partner's spouse, or a
trust for the benefit of any such person and (iii) any other successor
or assign of a Purchaser (other than a successor or assign who acquires
Common Shares pursuant to a registered public offering or pursuant to a
transaction covered by Rule 144 under the Securities Act) who holds at
least 5% of the Common Shares then existing (including Common Shares
which may be acquired upon conversion or exercise of outstanding
securities) and has agreed in writing with the Company to acquire and
hold the Common Shares subject to all the restrictions applicable to
the transferor. For purposes of this Agreement, "immediate
family" shall mean one's spouse, lineal descendants, father, mother,
brother or sister.
"Registration Expenses" and "Selling Expenses" shall mean the
expenses so described in Section 8.
"Registration Statement" shall mean a registration statement
filed by the Company with the Commission for a public offering and sale
of common stock of the Company (other than a registration statement or
Form S-8 or S-4, or their successors, or any other form for a similar
limited purpose, or any registration statement covering only securities
proposed to be issued in exchange for securities or assets of another
corporation).
"Securities Act" shall mean the Securities Act of 1933, and
the rules and regulations of the Commission thereunder, all as the same
shall be amended and in effect from time to time.
3. Required Registration.
3.1 At any time after the earlier of August 29, 2000 or six
months after the closing of the first underwritten public offering of shares of
common stock of the Company pursuant to a Registration Statement, a Holder or
Holders holding in the aggregate at least 10% of the total Common Shares then
existing (including Common Shares which may be acquired upon conversion or
exercise of outstanding securities) may request in writing that the Company
effect the registration on Form S-1 or SB-2 (or successor form) of shares of
common stock which are Common Shares owned by such Holders having an aggregate
offering price of at least $3,000,000 (based on the then current market price or
fair value). If the Holders initiating the registration intend to distribute the
Common Shares by means of an underwriting, they shall so advise the Company in
their request, provided that the designation of the managing underwriter shall
be subject to the approval of the Company, which shall not be unreasonably
withheld or delayed.
3.2 Upon receipt of any such request, the Company shall promptly
give written notice of such proposed registration to
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all Holders. Such Holders shall have the right, by giving written notice to the
Company within twenty (20) days after the Company provides its notice, to elect
to have included in such registration such of their shares of common stock which
are Common Shares as such Holders may request in such notice of election
provided that if the underwriter(s), if any, managing the offering determine(s)
that, because of marketing factors, all of the Common Shares requested to be
registered by all Holders may not be included in the offering, then all Holders
who have requested registration shall participate in the registration pro rata
based on the number of existing Common Shares held by each (including Common
Shares which may be acquired upon conversion or exercise of outstanding
securities). If the registration is underwritten, the right of other Holders to
participate shall be conditioned upon their participation in such underwriting.
3.3 The Company shall, as expeditiously as possible, use its
best efforts to effect the registration of all Common Shares which the Company
has been requested to so register. The Company shall not be required, pursuant
to this Section 3, to effect more than three such registrations nor to file a
Registration Statement within 270 days of the effective date of a previous
registration on Form S-1 or SB-2 (or successor form). A registration shall not
be deemed to have been effected unless it shall have been declared effective.
3.4 The Company may include in any such registration shares of
common stock for its own account, except as and to the extent that the managing
underwriter(s) determine(s) that such inclusion would materially adversely
effect the offering.
4. Incidental Registration. Whenever the Company proposes to file a
Registration Statement (other than pursuant to Section 3), it will notify each
Holder in writing of its intention to do so and of the proposed method of
distribution at least twenty (20) days prior to such filing, and upon the
request of a Holder given in writing within ten (10) days after the date of such
notice, the Company will use its best efforts as soon as practicable thereafter
to cause all of the shares of common stock which are Common Shares specified by
such Holder to be included in such Registration Statement, provided that, if the
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offering is to be underwritten, the right of inclusion shall be subject to the
Holder's participation in such underwriting. In addition, if the offering is to
be underwritten, in the event the managing underwriter determines and advises in
writing that the inclusion of all Common Shares of such requesting Holders and
all other shares of the Company's common stock to be offered by the Company
would interfere with the marketing of such securities, then the number of Common
Shares to be included in the Registration Statement by Holders shall be allotted
pro rata based on the number of existing Common Shares (including shares which
may be acquired upon conversion or exercise of outstanding securities) then
owned by each.
5. Registration on Form S-3.
5.1 If the first anniversary of the closing of the first
underwritten public offering of shares of common stock of the Company occurs
within the two-year period following the date of this Agreement, the Company
shall use its best efforts to file and cause to become effective a so-called
"shelf" registration statement on Form S-3, or successor form, covering all
shares of common stock which are Common Shares held by Holders. The Company
shall keep such registration statement effective until the fifth anniversary of
the date of this Agreement or until all the Common Shares covered thereunder
have been sold, whichever is earlier.
5.2 At any time after the Company becomes eligible to file a
registration statement on Form S-3, or successor form, relating to secondary
offerings, if the shelf registration pursuant to 5.1 above is not required or
has ceased to be effective, any Holder may notify the Company in writing that
such Holder intends to offer or cause to be offered for sale its shares of
common stock which are Common Shares having an aggregate offering price of not
less than $500,000 (based on the then current public market price of the
Company's common stock) and request the Company to cause such Common Shares to
be registered on Form S-3, or successor form, under the Securities Act for sale
in accordance with the method of distribution specified in such notice. Upon any
such request, the Company will use its best efforts as soon as practicable
thereafter to prepare and file a registration statement on the appropriate
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form covering such Common Shares. Neither the Company nor any other Holder or
Other Holder may include any securities in any such registration statement which
relates to an underwritten offering unless the underwriter or underwriters
managing the offering shall determine and advise in writing that such inclusion
will not interfere with the marketing of the securities to be offered by the
requesting Holder or Holders. The managing underwriter(s) of any such offering
shall be chosen by the Holder exercising its rights hereunder, or if more than
one such Holder is exercising such rights, by the Holder of the greatest number
of Common Shares to be so included, provided that such managing underwriter(s)
shall be reasonably satisfactory to the Company. Any Holder or Holders intending
to request a registration pursuant to hereto shall notify each other Holder of
such request at least 20 days prior to making the request and shall permit each
such other Holder to join such request provided that such other Holder, within
10 days of receipt of such notification, so indicates its intention in writing
to the Holder or Holders from which such notification was received. The Company,
if requested, shall provide reasonable assistance in such notification process.
If the underwriter managing such an offering shall determine that the number of
Common Shares proposed to be included would interfere with the marketing of the
same, then the number of Common Shares proposed to be included in such
registration statement shall be reduced to the extent deemed appropriate by such
managing underwriter pro rata among the Holders joining such request in
proportion to the number of existing Common Shares then held by each, including
shares which may be acquired upon conversion or exercise of outstanding
securities.
5.3 The Company shall not be required, pursuant to Section
5.2, to file a Registration Statement within 90 days of the effective date of a
previous registration on Form S-3 (or successor form).
6. Conditions of Obligations to Register Shares. As conditions to the
Company's obligation hereunder to cause a Registration Statement to be filed or
Common Shares to be included in a Registration Statement, the Holder shall
provide such information and execute such documents as may reasonably be
required in connection with such registration.
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7. Registration Procedures. If and whenever the Company is required by
the provisions hereof to use its best efforts to include any of the Common
Shares in a Registration Statement filed under the Securities Act, the Company
shall, as expeditiously as possible:
(a) Prepare and file with the Commission a registration statement with
respect to such Common Shares and use its best efforts to cause such
Registration Statement to become effective.
(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 until the third anniversary of the date of this
Agreement, in the case of a shelf registration pursuant to Section 5.1,
or for 120 days from the date of its effectiveness, in the case of any
other registration.
(c) Furnish to each Holder such number of copies of the prospectus
contained in such Registration Statement (including each preliminary
prospectus), in conformity with the requirements of the Securities Act,
and such other documents as such Holder may reasonably request in order
to facilitate the disposition of the Common Shares owned by such
Holder.
(d) Use its best efforts to register or qualify the Common Shares
covered by such registration statement under the securities or blue sky
laws of such jurisdictions as each selling Holder shall reasonably
request, and do any and all other acts and things which may be
necessary or advisable to enable such Holder to consummate the
disposition of the Common Shares owned by such Holder in such
jurisdictions during the period specified in Section 7(b), provided
that the Company shall not be required in connection herewith to
execute a general consent to service of process in any jurisdiction.
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(e) Notify each Holder of any Common Shares covered by 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 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 any material fact required to be
stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing. Each Holder
agrees, upon receipt of such notice, forthwith to cease making offers
and sales of the Common Shares pursuant to such registration statement
or deliveries of the prospectus contained therein for any purpose and
to return to the Company, for modification and exchange, the copies of
such prospectus not theretofore delivered by such Holder, provided that
the Company shall forthwith prepare and furnish, after securing such
approvals as may be necessary, to such Holder a reasonable number of
copies of any supplement to or amendment of such prospectus that may be
necessary so that, as thereafter delivered to the purchasers of such
Common Shares, 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
the light of the circumstances then existing.
(f) Provide an institutional transfer agent for the Common Shares at
least by the effective date of the first registration of any of such
Common Shares.
(g) Promptly notify all selling Holders of any stop order or similar
proceeding initiated by state or federal regulatory bodies and use its
best efforts to take all necessary steps expeditiously to remove such
stop order or similar proceeding.
8. Allocation of Expenses. All expenses incurred by the Company in
complying with any of the foregoing provisions hereof, including, without
limitation, all federal and state registration, qualification and filing fees,
printing expenses, any premium or other expenses involved in securing a policy
or
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policies of registration insurance (but only if the Company in its sole
discretion shall choose to secure such a policy or policies, such policy or
policies hereinafter referred to as "registration insurance"), reasonable fees
and disbursements of counsel for the Company and the selling Holders, and
reasonable accountants' fees and expenses incident to or required by any such
registration, are herein called "Registration Expenses." All underwriting
discounts and selling commissions applicable to the sale of Shares hereunder are
herein called "Selling Expenses." If the Company is required by the provisions
hereof to use its best efforts to effect the registration of any of the Common
Shares under the Securities Act, the Registration Expenses and Selling Expenses
in connection with such registration shall be borne as follows:
(a) Except as specifically provided herein, all Registration Expenses
incurred in connection with any registration pursuant to Section 3, 4
or 5 shall be borne by the Company. The Company shall not, however, be
required to pay the Registration Expenses relating to any registration
pursuant to Section 3, the request for which has been subsequently
withdrawn by the Holders unless (i) the withdrawal is based upon
material adverse information concerning the Company of which the
Holders were not aware at the time of such request, or (ii) a majority
in interest of the Holders agree to forfeit their right to one
requested registration pursuant to Section 3, in which event such right
shall be forfeited by all Holders.
(b) Selling Expenses shall be borne respectively by the Holders
including Common Shares in the registration.
9. Indemnification and Contribution.
9.1 In the event of any registration of any of the Common
Shares under the Securities Act pursuant hereto, the Company will indemnify and
hold harmless each Holder, each underwriter of such Common Shares, and each
other person, if any, who controls such Holder or underwriter within the meaning
of the Securities Act or the Exchange Act against any losses, claims, damages or
liabilities, joint or several, to which such Holder, underwriter or controlling
person may become subject under the
9
Securities Act, the Exchange Act, state securities or Blue Sky laws 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 Common Shares were registered under the Securities Act, any
preliminary prospectus or final prospectus contained in the registration
statement, or any amendment or supplement to such registration statement, or
arise out of or are based upon the omission or alleged omission to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading; and the Company will reimburse such Holder, underwriter
and each such controlling person for any legal or any other expenses reasonably
incurred by such Holder, underwriter or controlling person in connection with
investigating or defending any such loss, claim, damage, liability or action,
provided that the Company will not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon any
untrue statement or omission made in such registration statement, preliminary
prospectus or final prospectus, or any such amendment or supplement, in reliance
upon and in conformity with information furnished to the Company, in writing, by
or on behalf of such Holder, underwriter or controlling person specifically for
use in the preparation thereof.
9.2 In the event of any registration of any of the Common
Shares under the Securities Act pursuant hereto, each selling Holder thereof,
severally and not jointly, will indemnify and hold harmless the Company, each of
its directors and officers and each underwriter (if any) and each person, if
any, who controls the Company or any such underwriter within the meaning of the
Securities Act or the Exchange Act, against any losses, claims, damages or
liabilities, joint or several, to which the Company, such directors and
officers, underwriter or controlling person may become subject under the
Securities Act, Exchange Act, state securities or Blue Sky laws 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 a material fact contained in any registration statement under which
such Common Shares were registered under the Securities Act, any preliminary
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prospectus or final prospectus contained in the registration statement, or any
amendment or supplement to the registration statement, or arise out of or are
based upon any omission or alleged omission to state a material fact required to
be stated therein or necessary to make the statements therein not misleading, if
the statement or omission was made in reliance upon and in conformity with
information relating to such selling Holder furnished in writing to the Company
by or on behalf of such selling Holder specifically for use in connection with
the preparation of such registration statement, prospectus, amendment or
supplement, provided that the obligations of such selling Holders hereunder
shall be limited to an amount equal to the net proceeds to each selling Holder
of Common Shares sold in connection with such registration.
9.3 Each party entitled to indemnification under this Section 9
(the "Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom; provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not be unreasonably
withheld); and provided further that the failure of any Indemnified Party to
give notice as provided herein shall not relieve the Indemnifying Party of its
obligations under this Section 7. The Indemnified Party may participate in such
defense at such party's expense, provided that the Indemnifying Party shall pay
such expense if representation of such Indemnified Party by the counsel retained
by the Indemnifying Party would be inappropriate due to actual or potential
differing interests between the Indemnified Party and any other party
represented by such counsel in such proceeding. 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 of such claim or litigation, and no Indemnified Party shall consent
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to entry of any judgment or settle such claim or litigation without the prior
written consent of the Indemnifying Party.
9.4 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 exercising rights under this Section 9, 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,
in each such case, the Company and such selling Holder will contribute to the
aggregate losses, claims, damages or liabilities to which they may be subject
(after contribution from others) in such proportions so that such selling Holder
is responsible for the portion represented by the percentage that the public
offering price of its Common Shares 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
that, in any such case, (A) no such selling Holder will be required to
contribute any amount in excess of the net proceeds to it of all Common Shares
sold 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, shall be entitled to contribution from any person or entity
who is not guilty of such fraudulent misrepresentation.
9.5 In the event that Common Shares are sold pursuant to a
Registration Statement in an underwritten offering pursuant to Sections 3 or 5,
the Company agrees to enter into an underwriting agreement containing customary
representations and warranties with respect to the business and operations of an
issuer of the securities being registered and customary covenants and agreements
to be performed by such issuer, including without limitation customary
provisions with respect
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to indemnification by the Company of the underwriters of such offering.
9.6 To the extent not prohibited by law and in addition to any
other rights granted by the Company's Certificate of Incorporation, By-laws or
otherwise, in the event that a Purchaser or any representative of a Purchaser
who is a director of the Company shall be made or threatened to be made a party
to any action, suit or proceeding with respect to which such Purchaser or
director shall be entitled to indemnification by the Company pursuant to this
Agreement or its Certificate of Incorporation, By-laws, or otherwise, the
Purchaser or any director who is a representative of the Purchaser shall be
entitled to be represented in such action, suit or proceeding by counsel of its
choice and the reasonable expenses of such representation shall be reimbursed by
the Company as provided in or authorized under this Agreement or said
Certificate of Incorporation, By-laws or other provisions, as presently in
effect (whether or not said Certificate of Incorporation or By-laws or other
provisions are hereafter amended).
10. Limitations on Subsequent Registration Rights. The Company shall
not, without the prior written consent of Holders of at least 75% of the Common
Shares, enter into any agreement (other than this Agreement) with any holder or
prospective holder of any securities of the Company which would allow such
holder or prospective holder to (a) include securities of the Company in any
Registration Statement, unless under the terms of such agreement, such holder or
prospective holder may include such securities in any such registration on terms
substantially similar to the terms on which Holders of Common Shares may include
shares in such registration or (b) make a request for a demand registration
prior to the earlier of August 29, 2000 or six months after the first
underwritten public offering of shares of common stock by the Company.
11. Certain Allocation Matters. For purposes of making any allocations
hereunder,
(a) Each Holder which is a partnership, together with the affiliates,
partners and retired partners of such Holder, the estates and immediate
family members of any such
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partners and retired partners and of their spouses, and any trusts for
the benefit of any of the foregoing persons shall be deemed to be a
single Holder and any pro-rata reduced inclusion with respect to such
Holder shall be based upon the aggregate amount of common stock owned
by all entities and individuals so included in such Holder, and the
aggregate inclusion so allocated to such Holder shall be allocated
among the entities and individuals included in such Holder in such
manner as such partnership may reasonably determine.
(b) The Holders of Series B Shares shall be deemed to hold the number
of Common Shares into which their Series B Shares are then convertible
pursuant to the provisions of the Company's Certificate of
Incorporation.
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12. Miscellaneous.
12.1 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 Common Shares), whether so expressed or
not, provided, however, that registration rights conferred herein on the Holders
shall only inure to the benefit of a transferee who qualifies as a Holder.
12.2 All notices, requests, demands and other communications
hereunder must be in writing and shall be delivered in person, mailed by prepaid
certified or registered mail, return receipt requested, or sent by facsimile
transmission, addressed as follows:
(a) if to any Bessemer x/x Xxxxxxxx Xxxxxxx Partners
Purchaser, other 0000 Xxx Xxxxxxx Xxxx
than Xxxxx X. Xxxxx: Xxxxx 000
Xxxxxxxx, XX 00000
Telecopier No.(000) 000-0000
Attn: Xxxxxx X. Xxxxxxxx
with a copy to: Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxx, Hall & Xxxxxxx
Exchange Place
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
(b) if to Health Care c/o Ferrer Xxxxxxx Xxxxxxxx
Capital Partners, & Co. LLC
L.P. or Health Care The Mill
Executive Partners, 00 Xxxxxxxxx Xxxxxx
L.P.: Xxxxxxxxx, XX 00000
Telecopier No. (000) 000-0000
Attn: Xxxxxx X. Xxxxxxxx
with a copy to: Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxx, Hall & Xxxxxxx
Exchange Place
00 Xxxxx Xxxxxx
00
Xxxxxx, XX 00000
(c) if to Lighthouse: Lighthouse Capital
Partners II, L.P.
000 Xxxxxx Xxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Contract Administrator
(d) if to the Company Vista Hospice Care, Inc.
or Xxxxx X. Xxxxx: 0000 Xxxx Xxxxxxxxx Xxxx
Xxxxx X-000
Xxxxxxxxxx, XX 00000
Telecopier No. (000) 000-0000
Attn: Chief Executive Officer
with a copy to: Xxxxx X. Xxxxxx, Esq.
Xxxxxx Godward LLP
0000 Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
or, in any case, at such other address or addresses as shall have been furnished
in writing to the other parties in accordance with the provisions of this
Section 12.2.
12.3 This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
12.4 This Agreement constitutes the entire agreement of the
parties with respect to the subject matter hereof and may not be amended or
modified, and no provision hereof may be waived, without the written consent of
the Company and of the holders of at least ninety percent (90%) of the Common
Shares held by all Holders.
12.5 This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. In proving this Agreement
it shall not be necessary to produce
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or account for more than one such counterpart executed by the party against whom
enforcement is sought.
12.6 If requested in writing by the underwriters for the first
underwritten public offering of securities of the Company, each Holder shall
agree not to effect any sale or distribution (including any sale pursuant to
Rule 144 or Rule 701 under the Securities Act) of any Common Shares or any other
equity securities of the Company or any securities convertible into or
exchangeable or exercisable for any equity security of the Company (other than
as part of such underwritten public offering) during the seven days prior to, or
180 days after, the effective date of such registration statement unless the
underwriter of such offering otherwise agrees; provided, however, that all
persons entitled to registration rights with respect to shares of the Company's
Common Stock who are not parties to this Agreement, all other persons selling
shares of Common Stock in such offering and all executive officers and directors
of the Company shall also have agreed not to sell securities of the Company
under the same circumstances and pursuant to the terms set forth in this Section
12.6.
12.7 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 unless the effect thereof would be to alter materially the effect of
this Agreement, and this Agreement (if not so altered) shall be carried out as
if any such illegal, invalid or unenforceable provision were not contained
herein.
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IN WITNESS WHEREOF, this Agreement has been executed as of the date
first above written.
VISTA HOSPICE CARE, INC.
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Xxxxx X. Xxxxx, President
BESSEMER VENTURE PARTNERS III L.P.
By: Deer III & Co., general partner
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxx X. Xxxxxxxx,
general partner
BVP III SPECIAL SITUATIONS L.P.
By: Deer III & Co., general partner
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxx X. Xxxxxxxx,
general partner
*
---------------------------------------
Xxxxxxx X. Xxxxxx
BRIMSTONE ISLAND CO. L.P.
By: *
------------------------------------
*
---------------------------------------
Neill X. Xxxxxxxxxx
/s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxxx
*
---------------------------------------
G. Xxxxx Xxxxxxxx
*
---------------------------------------
Xxxxxxxxxxx F. O. Gabrieli
GABRIELI FAMILY FOUNDATION
By: *
------------------------------------
*
---------------------------------------
Xxxxxxx X. Xxxxxx
*
---------------------------------------
Xxxxx X. Xxxxx
*
---------------------------------------
Xxxxx X. XxXxxxxxx
*
---------------------------------------
Xxxxxx X. Xxxxxxx
*
---------------------------------------
Xxxx X. Xxxx
*
---------------------------------------
Xxxxxx X. Xxxxx
*
---------------------------------------
Xxxxxxx X. Xxxxx
*
---------------------------------------
Xxxx X. Xxxxxxx
BELISARIUS CORPORATION
By: *
------------------------------------
*
---------------------------------------
Xxxxxxxx Xxxxx
*
---------------------------------------
Xxxxxx X. X. Xxxxxxxx
*
---------------------------------------
Xxxxxx X. Xxxx
*
---------------------------------------
Xxxxxxx X. Xxxxxxxxxx
XXXXXXX CORPORATION
By: *
------------------------------------
*
---------------------------------------
Xxxxxxx X. Xxxxxxx
*By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxx X. Xxxxxxxx,
attorney-in-fact
/s/ Xxxxx X. Xxxxx
----------------------------------------
Xxxxx X. Xxxxx
20
LIGHTHOUSE CAPITAL PARTNERS, II, L.P.
By: Lighthouse Management Partners, II,
L.P. its general partner
By: Lighthouse Capital Partners, Inc.,
its general partner
By: /s/ Gwill E. York
------------------------------------
Title: Gwill E. York
---------------------------------
21
HEALTH CARE CAPITAL PARTNERS, L.P.
By Xxxxxx Xxxxxxx Xxxxxxxx & Co.
LLC, its General Partner
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Manager
---------------------------------
HEALTH CARE EXECUTIVE PARTNERS, L.P.
By Xxxxxx Xxxxxxx Xxxxxxxx & Co.
LLC, its General Partner
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Manager
---------------------------------
22
Exhibit A
Bessemer Venture Partners III L.P.
BVP III Special Situations L.P.
Xxxxxxx X. Xxxxxx
Brimstone Island Co. X. X.
Xxxxx X. Xxxxxxxxxx
Xxxxxx X. Xxxxxxxx
X. Xxxxx Xxxxxxxx
Xxxxxxxxxxx F.O. Gabrieli
Gabrieli Family Foundation
Xxxxxxx X. Xxxxxx
Xxxxx X. Xxxxx
Xxxxx X. XxXxxxxxx
Xxxxxx X. Xxxxxxx
Xxxx X. Xxxx
Xxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Xxxx X. Xxxxxxx
Belisarius Corporation
Xxxxxxxx Xxxxx
Xxxxxx X. X. Xxxxxxxx
Xxxxxx X. Xxxx
Xxxxxxx X. Xxxxxxxxxx
Xxxxxxx Corporation
Xxxxxxx X. Xxxxxxx
Xxxxx X. Xxxxx
Lighthouse Capital Partners II, L.P.
Health Care Capital Partners, L.P.
Health Care Executive Partners, L.P.
23
