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EXHIBIT 2.12
THE COMPANY DOCTOR
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is entered into
as of September 20, 1996, by XXXXXX X. XXXXXXXXXXXX, M.D., an individual,
("Duchouquette") and THE COMPANY DOCTOR, a Delaware corporation, ("TCD").
Pursuant to that one certain Stock Purchase Agreement (the "Stock
Purchase Agreement") entered into on September 20, 1996, by Duchouquette, The
Physician Group, P.A. ("Group") and Xxxxxx X. Xxxxxxxxxxxx, M.D., P.A., a Texas
professional association ("Duchouquette P.A."), Group acquired 1,000 shares of
the issued and outstanding capital stock, par value $0.10 per share, of
Duchouquette P.A., which represents all of the issued and outstanding shares of
stock of Duchouquette P.A. (the "Duchouquette Stock").
As part of the consideration for the Duchouquette Stock acquired by
Group, pursuant to the Stock Purchase Agreement, Group caused 63,380 shares of
unregistered Common Stock, par value $0.01 per share, of TCD to be delivered to
Duchouquette (the "TCD Shares").
Pursuant to the provisions of Section 4(e) of the Stock Purchase
Agreement, Group agreed to cause TCD to execute and deliver this Agreement to
Duchouquette whereby upon Duchouquette's written request made to TCD at any
time after the Closing of the Stock Purchase Agreement and before December 15,
1996, TCD shall file a registration statement under the Securities Act relating
to, and shall cause to be effective, the registration of the TCD Shares under
the Securities Act not later than February 28, 1997.
The execution of this Agreement was a condition to the Closing of the
Stock Purchase Agreement and the transactions contemplated by it.
In consideration of the mutual covenants and agreements set forth in
this Agreement and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties, intending to be
legally bound by this Agreement, agree as follows:
1. DEFINITIONS. The following terms shall have the following
respective meanings for purposes of this Agreement:
"Commission" shall mean the United States Securities and
Exchange Commission.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission thereunder, all as
the same shall be in effect from time to time.
"Registration Date" shall mean, with respect to each registration of
Registrable Securities hereunder (or any portion thereof), the date or dates on
which the registration statement including
REGISTRATION RIGHTS AGREEMENT
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such Registrable Securities shall have become effective under the Securities
Act; provided, however, that if any Registrable Securities are included in a
"shelf" registration statement under Rule 415 under the Securities Act, the
"Registration Date" shall mean the date on which the final prospectus covering
such Registrable Securities (or any portion thereof) is transmitted for filing
with the Commission pursuant to Rule 424(b) under the Securities Act.
"Securities Act" shall mean the Securities Act of 1933, as amended,
and the rules and regulations of the Commission thereunder, all as the same
shall be in effect from time to time.
2. AGREEMENT TO REGISTER TCD SHARES. Pursuant to the provisions
of Section 4(d) of the Stock Purchase Agreement, TCD hereby agrees that
Duchouquette may make a written request to TCD (the "Registration Request") at
any time after the Closing of the Stock Purchase Agreement and before December
15, 1996, to register the TCD Shares then held by him pursuant to (i) the
Securities Act and (ii) the securities or "blue sky" laws of any jurisdiction
designated by him (the "Registration").
3. AGREED EFFECTIVE DATE OF THE REGISTRATION. TCD hereby further
agrees to cause the Registration to be effective not later than February 28,
1997, provided the Registration Request is not withdrawn by Duchouquette prior
to the effective date of the Registration.
4. RIGHT TO "PUT" THE TCD SHARES TO TCD.
(a) If TCD fails to cause the Registration to be
effective by February 28, 1997, Duchouquette shall have the right to rescind
the transfer of the TCD Shares made to him by TCD, pursuant to the Stock
Purchase Agreement, and "put" the TCD Shares back to TCD by requiring TCD to
purchase the TCD Shares from him (the "Put").
(b) The Put shall be exercisable by Duchouquette giving
written notice to TCD, subsequent to February 28, 1997, but prior to April 28,
1997, that he is rescinding the transfer of the TCD Shares and putting them
back to TCD (the "Rescission Notice").
(c) Within 21 calendar days of its receipt of the
Rescission Notice, TCD shall pay Duchouquette the greater of (i) $562,500.00 or
(ii) the fair market value of the TCD Shares.
(d) For purposes of this section, the fair market value
of the TCD Shares shall be equal to the number of TCD Shares then held by
Duchouquette multiplied by the average NASDAQ closing price of the Common Stock
of TCD for the five trading days immediately after TCD's receipt of the
Rescission Notice.
(e) Upon TCD's tender of the payment for the TCD Shares
to him, Duchouquette shall immediately transfer and deliver the TCD Shares,
endorsed in blank, to TCD free and clear of any liens, liabilities, security
interests, claims or encumbrances.
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5. REGISTRATION PROCEDURES. Whenever TCD is required by this
Agreement to effect the registration of any of the TCD Shares, TCD will,
subject to Section 3, as expeditiously as reasonably possible:
(a) Prepare and file with the Commission the requisite
registration statement with respect to the TCD Shares and use its best efforts
to cause the registration statement to become and remain effective for a period
of time required for the disposition of the TCD Shares by Duchouquette.
(b) Prepare and file with the Commission such amendments
and supplements to the registration statement and the prospectus used in
connection therewith as may be necessary to keep the registration statement
effective and to comply with the provisions of the Securities Act and the
Exchange Act with respect to the sale or other disposition of the TCD Shares
covered by the registration statement until the earlier of such time as all of
the TCD Shares have been disposed of by Duchouquette.
(c) As soon as available, furnish to Duchouquette the
number of copies of the applicable registration statement and of each amendment
or supplement to it, and of each prospectus (including each preliminary
prospectus or summary prospectus) and such other documents, as Duchouquette may
reasonably request.
(d) Use its best efforts to register or qualify the TCD
Shares covered by such registration statement under the securities or blue sky
laws of up to twelve (12) jurisdictions within the United States as
Duchouquette shall request and do such other reasonable acts and things as may
be required of it to enable Duchouquette to consummate the disposition in the
jurisdictions of the TCD Shares included in such registration statement.
(e) TCD shall not be obligated to qualify as a foreign
corporation to do business under the laws of any jurisdiction in which it is
not then qualified or to file any general consent to service of process.
(f) Otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make available to its
security holders, as soon as reasonably practicable, but no later than 18
months after the Registration Date, an earnings statement which shall satisfy
the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder.
(g) It shall be a condition precedent to the obligation
of TCD to take any action pursuant to this Agreement in respect of the TCD
Shares which are to be registered that Duchouquette shall furnish to TCD such
information regarding the securities held by him and the intended method of
disposition thereof as TCD shall reasonably request and as shall be required in
connection with such registration by TCD.
6. EXPENSES. All expenses incident to performance of or
compliance with this Agreement, including, without limitation, all registration
and filing fees (including all filing fees
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incident to filing with the National Association of Securities Dealers, Inc.),
listing fees and expenses, printing expenses, fees and disbursements of counsel
and accountants for TCD, expenses of any audits incident to or required by any
such registration and expenses of complying with the securities or blue sky
laws of any jurisdictions, shall be paid by TCD, provided, that TCD shall not
be liable for the fees and disbursements of counsel for Duchouquette or any
transfer taxes, fees, discounts or commissions in respect of the TCD Shares
sold by Duchouquette.
7. INDEMNIFICATION.
(a) In the event of any registration of any TCD Shares
under the Securities Act pursuant to this Agreement, TCD shall indemnify and
hold harmless Duchouquette against any losses, claims, damages or liabilities,
joint or several, to which Duchouquette may become subject under the Securities
Act or any other statute or at common law, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon:
(1) any alleged untrue statement of any material fact
contained, as of the Registration Date, in any Registration Statement
under which such securities were registered under the Securities Act,
any preliminary prospectus or final prospectus contained therein, or
any amendment or supplement thereto, or
(2) any alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading.
(b) TCD shall reimburse Duchouquette for any legal or any
other expenses reasonably incurred by Duchouquette in connection with
investigating or defending any such loss, claim, damage, liability or action
described in subsection (a) of this section.
(c) TCD shall not be liable in any case described in
subsection (a) of this section to the extent that any such loss, claim, damage
or liability arises out of or is based upon any alleged untrue statement or
alleged omission made in such Registration Statement, preliminary prospectus,
prospectus or amendment or supplement in reliance upon and in conformity with
written information furnished to TCD by Duchouquette specifically for use
therein or (in the case of any registration if TCD is not a party to the
underwriting agreement) so furnished for such purpose by any underwriter.
(d) This indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of Duchouquette and shall
survive the transfer of the TCD Shares by Duchouquette.
(e) In the event of any registration of any TCD Shares
under the Securities Act pursuant to this Agreement, Duchouquette agrees to
indemnify and hold harmless TCD and its directors and officers and each other
person, if any, who controls TCD within the meaning of the Securities Act
against any losses, claims, damages or liabilities, joint or several, to which
TCD
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or any such director or officer or any such person may become subject under
the Securities Act or any other statute or at common law, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon information provided in writing to TCD by Duchouquette
for use in connection with such registration and which is contained, on the
Registration Date, in any Registration Statement under which TCD Shares were
registered under the Securities Act at the request of Duchouquette, any
preliminary prospectus or final prospectus contained therein, or any amendment
or supplement thereto.
8. MISCELLANEOUS.
(a) No Inconsistent Agreements. TCD has not and will not
hereafter enter into any agreement with respect to its securities which is
inconsistent with the rights granted to Duchouquette in this Agreement.
(b) Attorney's Fees. In any action or proceeding brought
to enforce any provision of this Agreement or where any provision hereof is
validly asserted as a defense, the successful party shall be entitled to
recovery reasonable attorney's fees in addition to any other available remedy.
(c) Amendments and Waivers. Except as otherwise provided
herein, the provisions of this Agreement may not be amended, modified or
supplemented, and waiver or consents to departure from the provisions hereof
may not be given unless in writing signed by TCD and Duchouquette.
(d) Notices. Any notices, consents, demands, requests,
approvals, and other communications to be given under this Agreement by any
party to the other shall be deemed to have been duly given if given in writing
and personally delivered, sent by telegram, telex, or telecopy, or sent by
mail, registered or certified, postage prepaid with return receipt requested,
at the address specified beside each party's signature at the end of this
Agreement. Notices delivered personally or by telegram, telex, or telecopy
shall be deemed communicated as of actual receipt; mailed notices shall be
deemed communicated as of 10:00 a.m. on the third business day after mailing.
Any party may change its or his address for notice hereunder by giving notice
of such change in the manner provided in this paragraph.
(e) Applicable Law. THIS AGREEMENT IS BEING EXECUTED AND
DELIVERED, AND IS INTENDED TO BE PERFORMED, IN THE STATE OF TEXAS AND THE LAWS
OF TEXAS SHALL GOVERN THE VALIDITY, CONSTRUCTION, ENFORCEMENT, AND
INTERPRETATION OF THIS AGREEMENT, EXCEPT TO THE EXTENT FEDERAL LAWS OTHERWISE
GOVERN THE VALIDITY, CONSTRUCTION, ENFORCEMENT, AND INTERPRETATION OF ALL OR
ANY PART OF THIS AGREEMENT.
(f) Jurisdiction. THE PARTIES CONSENT AND AGREE TO THE
JURISDICTION OF ANY STATE COURT SITTING IN DALLAS COUNTY, STATE OF
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TEXAS, AND TO THE JURISDICTION OF ANY FEDERAL COURT SITTING IN THE NORTHERN
DISTRICT OF TEXAS, AND WAIVE ANY OBJECTION BASED ON VENUE OR FORUM NON
CONVENIENS WITH RESPECT TO ANY ACTION INSTITUTED THEREIN, AND AGREE THAT ANY
DISPUTE CONCERNING THE RELATIONSHIP BETWEEN DUCHOUQUETTE, ON THE ONE HAND, AND
TCD, ON THE OTHER HAND, OR THE CONDUCT OF ANY PARTY IN CONNECTION WITH THIS
AGREEMENT OR OTHERWISE SHALL BE HEARD ONLY IN THE COURTS DESCRIBED ABOVE.
(g) Successors and Assigns. This Agreement shall inure
to the benefit of and be binding upon the successors and assigns of each of the
parties hereto.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(i) Severability. Wherever possible, each provision of
this Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be
prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of
this Agreement.
(j) Entire Agreement. This Agreement represents the
entire agreement and understanding of the parties hereto in respect of the
subject matter hereof.
(k) Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
TCD and Duchouquette have duly executed and delivered this Agreement
as of the date first above written.
THE COMPANY DOCTOR
By: /s/ Xxx Xxxxx
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Xxx Xxxxx, Vice President
0000 Xxxxx X'Xxxxxx Xxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
(000) 000-0000
REGISTRATION RIGHTS AGREEMENT
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/s/ Xxxxxx X. Xxxxxxxxxxxx, M.D.
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Xxxxxx X. Xxxxxxxxxxxx, M.D.
0000 Xxxxx Xxxx
Xxxxxx, Xxxxx 00000
(000) 000-0000
REGISTRATION RIGHTS AGREEMENT
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