Exhibit 10.3
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is made and
entered into as of September 30, 1999, by and among ECONOMETRICS, INC., a
Colorado corporation ("ECONOMETRICS"), and XXXXXXX HEALTHCARE, INC., a Delaware
corporation ("XXXXXXX").
WHEREAS:
A. Econometrics has authorized the issuance of $2,000,000 aggregate
principal amount of its 8% Convertible Debentures due 2004 (the "DEBENTURE"),
with terms, rights and privileges set forth in EXHIBIT A to the Purchase
Agreement.
B. Econometrics and Xxxxxxx have entered into an 8% Convertible
Debenture Purchase Agreement, dated as of September 30, 1999 (the "PURCHASE
AGREEMENT"), pursuant to which Econometrics sold the Debenture to Xxxxxxx, and
Xxxxxxx purchased the Debenture from Econometrics, on the terms and subject to
the conditions set forth in the Purchase Agreement.
C. Econometrics, Xxxxxxx and certain stockholders of Econometrics have
entered into a Stockholders Agreement, dated as of September 30, 1999 (the
"STOCKHOLDERS AGREEMENT").
D. Pursuant to the terms of the Debenture, Xxxxxxx has the right to
convert all or part of the outstanding principal balance of the Debenture, plus
interest accrued thereon, into shares of common stock, no par value, of
Econometrics (the "COMMON STOCK"). The Common Stock issuable upon conversion of
the Debenture is referred to hereinafter as the "CONVERSION SECURITIES."
E. To induce Xxxxxxx to execute and deliver the Purchase Agreement,
Econometrics has agreed to provide certain registration rights under the
Securities Act of 1933, as amended, and the rules and regulations thereunder, or
any similar successor statute (collectively, the "1933 ACT"), and applicable
state securities laws;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Econometrics and
Xxxxxxx hereby agree as follows:
1. DEFINITIONS.
a. As used in this Agreement, the following terms shall
have the following meanings:
i. "INVESTOR" means Xxxxxxx and any transferee
or assignee thereof who agrees to become bound by the provisions of this
Agreement in accordance with Section 9 hereof.
ii. "REGISTER," "REGISTERED," and "REGISTRATION"
refer to a registration effected by preparing and filing a Registration
Statement or Registration Statements in compliance with the 1933 Act, and the
declaration or ordering of effectiveness of such Registration Statement by the
United States Securities and Exchange Commission (the "SEC").
iii. "REGISTRABLE SECURITIES" means (A) the
Conversion Securities and (B) any other shares of Common Stock now held or
hereafter acquired by Xxxxxxx or any other entity that controls, is controlled
by or is under common control with Xxxxxxx, and (C) any Common Stock issued or
issuable with respect to Registrable Securities by reason of a stock dividend or
stock split or in connection with a confirmation of shares, recapitalization,
merger, consolidation or other reorganization.
iv. "REGISTRATION STATEMENT" means a
registration statement of Econometrics under the 0000 Xxx.
b. Capitalized terms used herein and not otherwise defined
herein shall have the respective meanings set forth in the Purchase Agreement.
2. REGISTRATION.
a. PIGGY-BACK REGISTRATIONS.
i. If at any time Econometrics shall file with
the SEC a Registration Statement relating to an offering for its own account or
the account of others under the 1933 Act of any of its Common Stock (other than
on Form S-4 or Form S-8 or their then equivalents relating to Common Stock to be
issued solely in connection with any acquisition of any entity or business or
Common Stock issuable in connection with stock options or other employee benefit
plans), Econometrics shall promptly send to the Investors written notice of such
determination (which shall include a list of the jurisdictions in which
Econometrics intends to qualify such Common Stock under the applicable "blue
sky" or other state securities laws). If, within fifteen (15) days after receipt
of such notice, the Investors shall so request in writing, Econometrics shall
include in such Registration Statement all of the Registrable Securities such
Investors request to be registered, subject to Section 2(a)(ii) hereto.
ii. If, in connection with any underwritten
public offering for the account of Econometrics, the managing underwriter(s)
thereof advise Econometrics and the holders of Registrable Securities in writing
of the need to impose a limitation on the number of shares of Registrable
Securities which may be included in the Registration Statement because, in such
underwriter(s)' judgment, marketing factors (including, without limitation, the
aggregate number of shares of Common Stock requested to be registered and the
general condition of the market) dictate such limitation is necessary to
facilitate public distribution, then Econometrics shall be obligated to include
in such Registration Statement only such limited portion of the Registrable
Securities with respect to which the Investors have requested inclusion
hereunder; PROVIDED, HOWEVER, that, except in the case of Econometric's initial
registered public offering, the number of shares of Registrable Securities to be
included in such Registration Statement may be limited to not less than fifteen
percent (15%) of the Registrable Securities requested to be
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registered in such Registration Statement. Any exclusion of Registrable
Securities shall be made pro rata among the Investors seeking to include
Registrable Securities, in proportion to the number of Registrable Securities
held by such Investors; PROVIDED, HOWEVER, that Econometrics shall not exclude
any Registrable Securities unless Econometrics has first excluded all
outstanding securities, the holders of which are not contractually entitled to
inclusion of such securities in such Registration Statement or are not
contractually entitled to pro rata inclusion with the Registrable Securities;
and PROVIDED, FURTHER, HOWEVER, that, after giving effect to the immediately
preceding proviso, any exclusion of Registrable Securities shall be made pro
rata with holders of other securities having the right hereunder to include such
securities in the Registration Statement.
iii. The obligations of Econometrics under this
Section 2(a) may be waived by Xxxxxxx. If an offering in connection with which
Investors are entitled to registration under this Section 2(a) is an
underwritten offering, then the Investors who include Registrable Securities in
the offering (each a "PARTICIPATING INVESTOR") shall, unless otherwise agreed by
Econometrics, offer and sell such Registrable Securities in an underwritten
offering using the same underwriter or underwriters and, subject to the
provisions of this Agreement, on the same terms and conditions as other shares
of Common Stock included in such underwritten offering.
iv. If an Investor disapproves of the terms of
any underwritten offering, it may elect to withdraw therefrom by written notice
to Econometrics and the underwriter(s) delivered on or prior to the effective
date of the Registration Statement. Any Registrable Securities excluded or
withdrawn from such underwritten offering shall be withdrawn from such
registration.
b. ELIGIBILITY FOR FORM S-3. From and after December 31, 1999,
Econometrics shall file all reports required to be filed by Econometrics with
the SEC in a timely manner so as to establish eligibility for the use of Form
S-3.
3. OBLIGATIONS OF ECONOMETRICS.
In connection with the registration of the Registrable Securities,
Econometrics shall have the following obligations:
a. After the date notice is given to the Investors pursuant to
Section 2(a), Econometrics shall prepare promptly, and file with the SEC, a
Registration Statement with respect to the number of Registrable Securities
specified as provided in Section 2(a) as soon as practicable and thereafter
shall use its best efforts to cause such Registration Statement relating to
Registrable Securities to become effective as soon as possible after such
filing, which Registration Statement (including any amendments or supplements
thereto and prospectuses contained therein) shall not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein, or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading.
b. Econometrics shall prepare and file with the SEC such
amendments (including post-effective amendments) and supplements to the
Registration Statement and the
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prospectus used in connection with the Registration Statement as may be
necessary to keep the Registration Statement effective for such period as to
permit the distribution of the Registrable Securities in accordance with the
plan of distribution set forth in the Registration Statement, and, during such
period, comply with the provisions of the 1933 Act with respect to the
disposition of all Registrable Securities of Econometrics covered by the
Registration Statement until such time as all of such Registrable Securities
have been disposed of in accordance with the intended methods of disposition by
the seller or sellers thereof as set forth in the Registration Statement.
c. Econometrics shall furnish to each Participating Investor
and its legal counsel (i) promptly after the same is prepared and publicly
distributed, filed with the SEC, or received by Econometrics, one copy of the
Registration Statement and any amendment thereto, each preliminary prospectus
and prospectus and each amendment or supplement thereto, and (ii) such number of
copies of a prospectus, including a preliminary prospectus, and all amendments
and supplements thereto and such other documents as each Participating Investor
may reasonably request in order to facilitate the disposition of the Registrable
Securities owned by such Investor.
d. Econometrics shall furnish to the counsel of each
Participating Investor each letter written by or on behalf of Econometrics to,
and each item of correspondence from, the SEC or the staff of the SEC, or to any
other governmental agency or self-regulatory body or other body having
jurisdiction (including any domestic or foreign securities exchange), in each
case relating to such Registration Statement (other than any portion of any
thereof which contains information for which Econometrics has sought
confidential treatment).
e. Econometrics shall use reasonable efforts to (i) register
and qualify the Registrable Securities covered by the Registration Statement
under such other securities or "blue sky" laws of such jurisdictions in the
United States as the Participating Investors reasonably request, (ii) prepare
and file in those jurisdictions such amendments (including post-effective
amendments) and supplements to such registrations and qualifications as may be
necessary to maintain the effectiveness thereof for such period as to permit the
distribution of the Registrable Securities in accordance with the plan of
distribution set forth in the Registration Statement, (iii) take such other
actions as may be necessary to maintain such registrations and qualifications in
effect as necessary to permit the distribution of the Registrable Securities in
accordance with the plan of distribution described in the Registration
Statement, and (iv) take all other actions reasonably necessary or advisable to
qualify the Registrable Securities for sale in such jurisdictions; PROVIDED,
HOWEVER, that Econometrics shall not be required in connection therewith or as a
condition thereto to (x) qualify to do business in any jurisdiction where it
would not otherwise be required to qualify but for this Section 3(e), (y)
subject itself to general taxation in any such jurisdiction, or (z) file a
general consent to service of process in any such jurisdiction.
f. As promptly as practicable after becoming aware of such
event, Econometrics shall notify each Participating Investor of the happening of
any event of which Econometrics has knowledge, as a result of which the
prospectus included in the Registration Statement, as then in effect, includes
an untrue statement of a material fact or omission to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, and use
its best efforts promptly to prepare a supplement or amendment to the
Registration Statement to correct such untrue
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statement or omission, and deliver such number of copies of such supplement or
amendment to each Participating Investor as it may reasonably request.
g. Econometrics shall use its best efforts to prevent the
issuance of any stop order or other suspension of effectiveness of a
Registration Statement, and, if such an order is issued, to obtain the
withdrawal of such order at the earliest possible moment and to notify each
Participating Investor (or, in the event of an underwritten offering, the
managing underwriters) of the issuance of such order and the resolution thereof.
h. Econometrics shall permit a single firm of counsel,
designated as selling stockholders' counsel by Xxxxxxx, to review the
Registration Statement and all amendments and supplements thereto a reasonable
period of time prior to their filing with the SEC, and not file any document in
a form to which such counsel reasonably objects.
i. Econometrics shall make generally available to its security
holders as soon as practicable, but not later than ninety (90) days after the
close of the period covered thereby, an earnings statement (in form complying
with the provisions of Rule 158 under the 0000 Xxx) covering a twelve-month
period beginning not later than the first day of Econometrics's fiscal quarter
next following the effective date of the Registration Statement.
j. At the request of a Participating Investor, Econometrics
shall use reasonable efforts to cause to be furnished, on the date that
Registrable Securities are delivered to an underwriter, if any, for sale in
connection with the Registration Statement (i) if required by an underwriter, a
"comfort" letter, dated such date, from Econometrics's independent certified
public accountants in form and substance as is customarily given by independent
certified public accountants to underwriters in an underwritten public offering,
addressed to the underwriters, and (ii) an opinion, dated as of such date, from
counsel representing Econometrics for purposes of such Registration Statement
and the underwriting agreement, in form, scope and substance as is customarily
given in an underwritten public offering, addressed to the underwriters and the
Participating Investors.
k. Econometrics shall make available for inspection by (i)
each Participating Investor, (ii) any underwriter participating in any
disposition pursuant to the Registration Statement, (iii) one firm of attorneys
and one firm of accountants or other agents retained by the Participating
Investors (and designated by Xxxxxxx), and (iv) one firm of attorneys retained
by all such underwriters (collectively, the "INSPECTORS") all pertinent
financial and other records, and pertinent corporate documents and properties of
Econometrics (collectively, the "RECORDS"), as shall be reasonably deemed
necessary by each Inspector to enable each Inspector to exercise its due
diligence responsibility, and cause Econometrics's officers, directors and
employees to supply all information which any Inspector may reasonably request
for purposes of such due diligence; PROVIDED, HOWEVER, that each Inspector shall
hold in confidence and shall not make any disclosure (except to Xxxxxxx and to
other Inspectors) of any Record or other information which Econometrics
determines in good faith to be confidential, and of which determination the
Inspectors are so notified, unless (x) the disclosure of such Records is
necessary to avoid or correct a misstatement or omission in any Registration
Statement, (y) the release of such Records is ordered pursuant to a subpoena or
other order from a court or government body of competent
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jurisdiction, or (z) the information in such Records has been made generally
available to the public other than by disclosure in violation of this or any
other agreement. Econometrics shall not be required to disclose any confidential
information in such Records to any Inspector until and unless such Inspector
shall have entered into confidentiality agreements (in form and substance
satisfactory to Econometrics) with Econometrics with respect thereto,
substantially in the form of this Section 3(k). Each Participating Investor
agrees that it shall, upon learning that disclosure of such Records is sought in
or by a court or governmental body of competent jurisdiction or through other
means, give prompt notice to Econometrics and allow Econometrics, at its
expense, to undertake appropriate action to prevent disclosure of, or to obtain
a protective order for, the Records deemed confidential.
l. Econometrics shall hold in confidence and not make any
disclosure of information concerning any Participating Investor provided to
Econometrics unless (i) disclosure of such information is necessary to comply
with federal or state securities laws, (ii) the disclosure of such information
is necessary to avoid or correct a misstatement or omission in any Registration
Statement, (iii) the release of such information is ordered pursuant to a
subpoena or other order from a court or governmental body of competent
jurisdiction, or (iv) such information has been made generally available to the
public other than by disclosure in violation of this or any other agreement.
Econometrics agrees that it shall, upon learning that disclosure of such
information concerning a Participating Investor is sought in or by a court or
governmental body of competent jurisdiction or through other means, give prompt
notice to the Participating Investor and allow the Participating Investor, at
its expense, to undertake appropriate action to prevent disclosure of, or to
obtain a protective order for, such information.
m. Econometrics shall use its best efforts to cause all the
Registrable Securities covered by the Registration Statement to be listed on
each national securities exchange and United Stated inter-dealer quotation
system on which Common Stock of Econometrics is then listed, with expenses in
connection therewith to be paid in accordance with Section 5 hereof.
n. Econometrics shall provide a transfer agent and registrar,
which may be a single entity, for the Registrable Securities, and shall provide
CUSIP numbers for the Registrable Securities, not later than the effective date
of the Registration Statement.
o. Econometrics shall cooperate with the Participating
Investors and the managing underwriter or underwriters, if any, to facilitate
the timely preparation and delivery of certificates representing the Registrable
Securities to be offered pursuant to the Registration Statement and enable such
certificates to be in such denominations or amounts, as the case may be, as the
managing underwriter or underwriters, if any, or the Participating Investors may
reasonably request and registered in such names as the managing underwriter or
underwriters, if any, or the Participating Investors may request. No later than
the effective date of any Registration Statement registering the resale of
Registrable Securities, Econometrics shall deliver to its transfer agent
instructions, accompanied by any reasonably required opinion of counsel, that
permit sales of legended securities in a timely fashion that complies with then
mandated securities settlement procedures for regular way market transactions.
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p. Econometrics shall take all other reasonable actions
necessary to expedite and facilitate disposition by the Participating Investors
of Registrable Securities pursuant to the Registration Statement.
4. OBLIGATIONS OF THE PARTICIPATING INVESTORS.
In connection with the registration of the Registrable Securities, each
Participating Investor shall have the following obligations:
a. It shall be a condition precedent to the obligations of
Econometrics to complete the registration pursuant to this Agreement with
respect to the Registrable Securities of a Participating Investor that such
Participating Investor shall furnish to Econometrics such information regarding
itself, the Registrable Securities held by it and the intended method of
disposition of the Registrable Securities held by it as shall be reasonably
required to effect the registration of such Registrable Securities and shall
execute such documents in connection with such registration as Econometrics may
reasonably request. At least five (5) days prior to the first anticipated filing
date of the Registration Statement, Econometrics shall notify each Participating
Investor in writing of the information Econometrics requires from such
Participating Investor if it elects to have any of its Registrable Securities
included in the Registration Statement.
b. Each Participating Investor, by its acceptance of the
Registrable Securities, agrees to cooperate with Econometrics as reasonably
requested by Econometrics in connection with the preparation and filing of the
Registration Statement hereunder.
c. In the event Econometrics determines to engage the services
of an underwriter, each Participating Investor agrees to enter into and perform
its obligations under an underwriting agreement, in usual and customary form,
including, without limitation, customary indemnification and contribution
obligations, with the managing underwriter of such offering and take such other
actions as are reasonably required in order to expedite or facilitate the
disposition of the Registrable Securities.
d. Each Participating Investor agrees that, upon receipt of
any notice from Econometrics of the happening of any event of the kind described
in Section 3(f) or 3(g), such Participating Investor will immediately
discontinue disposition of Registrable Securities pursuant to the Registration
Statement covering such Registrable Securities until such Participating
Investor's receipt of the copies of the supplemented or amended prospectus
contemplated by Section 3(f) or 3(g) and, if so directed by Econometrics, such
Participating Investor shall deliver to Econometrics (at the expense of
Econometrics) or destroy (and deliver to Econometrics a certificate of
destruction) all copies in such Participating Investor's possession, of the
prospectus covering such Registrable Securities current at the time of receipt
of such notice.
e. A Participating Investor may not participate in any
underwritten registration hereunder unless such Participating Investor (i)
agrees to sell its Registrable Securities on the basis provided in any
underwriting arrangements approved by such Participating Investor, (ii)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
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of such underwriting arrangements, and (iii) agrees to pay its pro rata share of
all underwriting discounts and commissions.
5. EXPENSES OF REGISTRATION.
All reasonable expenses (other than underwriting discounts, selling
concessions and discounts) incurred in connection with registrations, filings or
qualifications pursuant to this Agreement, including, without limitation, all
registration, listing and qualifications fees, printers and accounting fees, the
fees and disbursements of counsel for Econometrics, the fees and disbursements
of counsel to the Participating Investors designated by Xxxxxxx, and the costs
incident to an underwritten offering shall be borne by Econometrics.
Notwithstanding anything in this Agreement to the contrary, in the event any
jurisdiction in which the securities shall be qualified imposes a nonwaivable
requirement that expenses incurred in connection with the qualification of the
securities be borne by selling stockholders, such expenses shall be payable pro
rata by selling stockholders.
6. INDEMNIFICATION.
In the event any Registrable Securities are included in a Registration
Statement under this Agreement:
a. To the extent permitted by law, Econometrics will
indemnify, hold harmless and defend (i) each Participating Investor, (ii) the
directors, officers, legal counsel, accountants and each person who controls
such Participating Investor within the meaning of the 1933 Act or the Securities
Exchange Act of 1934, as amended (the "1934 ACT"), if any, and (iii) any
underwriter (as defined in the 1933 Act); and the directors, officers and each
person who controls any such underwriter within the meaning of the 1933 Act or
the 1934 Act, if any, (each, an "INDEMNIFIED PERSON"), against any losses,
claims, damages, liabilities or expenses (joint or several) (collectively,
"CLAIMS") to which any of them may become subject insofar as such Claims (or
actions or proceedings, whether commenced or threatened, in respect thereof)
arise out of or are based upon: (i) any untrue statement or alleged untrue
statement of a material fact in a Registration Statement or the omission or
alleged omission to state a material fact therein required to be stated or
necessary to make the statements therein not misleading, (ii) any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary prospectus if used prior to the effective date of such Registration
Statement, or contained in the final prospectus (as amended or supplemented, if
Econometrics files any amendment thereof or supplement thereto with the SEC) or
the omission or alleged omission to state therein any material fact necessary to
make the statements made therein, in light of the circumstances under which the
statements therein were made, not misleading, or (iii) any violation or alleged
violation by Econometrics of the 1933 Act, the 1934 Act, any other law,
including, without limitation, any state securities law, or any rule or
regulation thereunder relating to the offer or sale of the Registrable
Securities pursuant to a Registration Statement (the matters in the foregoing
clauses (i) through (iii) being, collectively, "VIOLATIONS"). Subject to the
restrictions set forth in Section 6(d) with respect to the number of legal
counsel, Econometrics shall reimburse each Indemnified Person, promptly as such
expenses are incurred and are due and payable, for any legal fees or other
reasonable expenses incurred by it in connection with
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investigating or defending any such Claim. Notwithstanding anything to the
contrary contained herein, the indemnification agreement contained in this
Section 6(a): (i) shall not apply as to a particular Indemnified Person with
respect to a Claim arising out of or based upon a Violation which occurs in
reliance upon and in conformity with information furnished in writing to
Econometrics by such Indemnified Person expressly for use in connection with the
preparation of the Registration Statement or any such amendment thereof or
supplement thereto; (ii) with respect to any preliminary prospectus, shall not
inure to the benefit of any such person from whom the person asserting any such
Claim purchased the Registrable Securities that are the subject thereof (or to
the benefit of any person controlling such person) if the untrue statement or
omission of material fact contained in the preliminary prospectus was corrected
in the prospectus, as then amended or supplemented; (iii) shall not be available
as to a particular Indemnified Person with respect to the extent such Claim is
based on a failure of such Indemnified Person to deliver or to cause to be
delivered the prospectus made available by Econometrics; and (iv) shall not
apply to amounts paid in settlement of any Claim if such settlement is effected
without the prior written consent of Econometrics, which consent shall not be
unreasonably withheld. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of the Indemnified Person
and shall survive the transfer of the Registrable Securities by the Investors
pursuant to Section 9.
b. In connection with any Registration Statement in which a
Participating Investor is participating, each Participating Investor, severally
and not jointly, agrees to indemnify, hold harmless and defend, to the same
extent and in the same manner set forth in Section 6(a), Econometrics, each of
its directors, legal counsel and accountants, each of its officers who signs the
Registration Statement, each person, if any, who controls Econometrics within
the meaning of the 1933 Act or the 1934 Act, any underwriter and any other
stockholder selling securities pursuant to the Registration Statement or any of
its directors or officers or any person who controls such stockholder or
underwriter within the meaning of the 1933 Act or the 1934 Act (collectively and
together with an Indemnified Person, an "INDEMNIFIED PARTY"), against any Claim
to which any of them may become subject, under the 1933 Act, the 1934 Act or
otherwise, insofar as such Claim arises out of or is based upon any Violation,
in each case to the extent (and only to the extent) that such violation occurs
in reliance upon and in conformity with written information furnished to
Econometrics by such Participating Investor expressly for use in connection with
such Registration Statement; and such Participating Investor will reimburse any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such Claim; PROVIDED, HOWEVER, that the indemnity
agreement contained in this Section 6(b) shall not apply to amounts paid in
settlement of any Claim if such settlement is effected without the prior written
consent of such Participating Investor, which consent shall not be unreasonably
withheld; PROVIDED, FURTHER, HOWEVER, that such Participating Investor shall be
liable under this Section 6(b) for only that amount of a Claim as does not
exceed the net proceeds to such Participating Investor as a result of the sale
of Registrable Securities pursuant to such Registration Statement. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of such Indemnified Party and shall survive the transfer of
the Registrable Securities by such Participating Investor pursuant to Section 9.
Notwithstanding anything to the contrary contained herein, the indemnification
agreement contained in this Section 6(b) with respect to any preliminary
prospectus shall not inure to the benefit of any Indemnified Party if the untrue
statement or omission of material fact
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contained in the preliminary prospectus was corrected on a timely basis in the
prospectus, as then amended or supplemented.
c. Promptly after receipt by an Indemnified Person or
Indemnified Party under this Section 6 of notice of the commencement of any
action (including any governmental action), such Indemnified Person or
Indemnified Party shall, if a Claim in respect thereof is made against any
indemnifying party under this Section 6, deliver to the indemnifying party a
written notice of the commencement thereof, and the indemnifying party shall
have the right to participate in, and, to the extent the indemnifying party so
desires, jointly with any other indemnifying party similarly noticed, to assume
control of the defense thereof with counsel mutually satisfactory to the
indemnifying party and the Indemnified Person or the Indemnified Party, as the
case may be; PROVIDED, HOWEVER, that an Indemnified Person or Indemnified Party
shall have the right to retain its own counsel with the fees and expenses to be
paid by the indemnifying party, if, in the reasonable opinion of counsel
retained by the indemnifying party, the representation by such counsel of the
Indemnified Person or Indemnified Party and the indemnifying party would be
inappropriate due to actual or potential differing interests between such
Indemnified Person or Indemnified Party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action shall not relieve such indemnifying party of any liability to the
Indemnified Person or Indemnified Party under this Section 6, except to the
extent that the indemnifying party is prejudiced in its ability to defend such
action. The indemnification required by this Section 6 shall be made by periodic
payments of the amount thereof during the course of the investigation or
defense, as such expense, loss, damage or liability is incurred and is due and
payable.
7. CONTRIBUTION.
To the extent any indemnification by an indemnifying party is
prohibited or limited by law, the indemnifying party agrees to make the maximum
contribution with respect to any amounts for which it would otherwise be liable
under Section 6 to the fullest extent permitted by law; PROVIDED, HOWEVER, that
(i) no contribution shall be made under circumstances where the maker would not
have been liable for indemnification under the fault standards set forth in
Section 6, (ii) no seller of Registrable Securities guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) shall be
entitled to contribution from any seller of Registrable Securities who was not
guilty of such fraudulent misrepresentation, and (iii) contribution by any
seller of Registrable Securities shall be limited in amount to the net amount of
proceeds received by such seller from the sale of such Registrable Securities.
8. REPORTS UNDER THE 1934 ACT.
With a view to making available to holders of Registrable Securities
the benefits of Rule 144 promulgated under the 1933 Act ("RULE 144") or any
other similar rule or regulation of the SEC that may at any time permit the
Investors to sell securities of Econometrics to the public without registration,
Econometrics agrees to:
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a. make and keep public information available, as those terms
are understood and defined in Rule 144;
b. file with the SEC in a timely manner all reports and other
documents required of Econometrics under the 1933 Act and the 1934 Act so long
as Econometrics remains subject to such requirements (it being understood that
nothing herein shall limit Econometrics's obligations under the Purchase
Agreement or the Debenture) and the filing of such reports and other documents
is required for the applicable provisions of Rule 144; and
c. furnish to the Investors so long as they own Registrable
Securities, promptly upon request, (i) a written statement by Econometrics that
it has complied with the reporting requirements of Rule 144, the 1933 Act and
the 1934 Act, (ii) a copy of the most recent annual or quarterly report of
Econometrics and such other reports and documents so filed by Econometrics, and
(iii) such other information as may be reasonably requested to permit the
Investors to sell such securities pursuant to Rule 144 without registration.
9. ASSIGNMENT OF REGISTRATION RIGHTS.
The rights to have Econometrics register Registrable Securities
pursuant to this Agreement shall be automatically assignable by Xxxxxxx to any
transferee of all or any portion of the Debenture or the Registrable Securities
if: (i) Xxxxxxx agrees in writing with the transferee or assignee to assign such
rights, and a copy of such agreement is furnished to Econometrics within a
reasonable time after such assignment, (ii) Econometrics is, within a reasonable
time after such transfer or assignment, furnished with written notice of (a) the
name and address of such transferee or assignee, and (b) the securities with
respect to which such registration rights are being transferred or assigned, and
(iii) at or before the time Econometrics receives the written notice
contemplated by clause (ii) of this sentence the transferee or assignee agrees
in writing with Econometrics to be bound by all of the provisions contained
herein.
10. AMENDMENT OF REGISTRATION RIGHTS.
Provisions of this Agreement may be amended and the observance thereof
may be waived (either generally or in a particular instance and either
retroactively or prospectively), only with the written consent of Econometrics
and Xxxxxxx. Any amendment or waiver effected in accordance with this Section 10
shall be binding upon Xxxxxxx, Econometrics and the Investors.
11. MISCELLANEOUS.
a. A person or entity is deemed to be a holder of Registrable
Securities whenever such person or entity owns of record such Registrable
Securities. If Econometrics receives conflicting instructions, notices or
elections from two or more persons or entities with respect to the same
Registrable Securities, Econometrics shall act upon the basis of instructions,
notice or election received from the registered owner of such Registrable
Securities.
b. NOTICES. All notices, claims, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if
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personally delivered or if sent by nationally-recognized overnight
courier, by telecopy, or by registered or certified mail, return receipt
requested and postage prepaid, addressed as follows:
If to Econometrics: Econometrics, Inc.
One Illinois Center
000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Chairman and Chief Executive Officer
With copy to:
Xxxx & Xxxxxxx
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxxx
If to Xxxxxxx: Xxxxxxx Healthcare, Inc.
000 Xxxxxxxxxx Xxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, Xx., Chairman of the Board,
President and Chief Executive Officer
With copy to:
Xxxxxx, Xxxxxxx & Xxxxxx, L.L.P.
1600 Atlanta Financial Center
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Telecopy: (000) 000-0000
Telephone (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
or to such other address as the party to whom notice is to be given may have
furnished to the other parties in writing in accordance herewith. Any such
notice or communication shall be deemed to have been received (a) in the case of
personal delivery, on the date of such delivery, (b) in the case of
nationally-recognized overnight courier, on the next business day after the date
when sent, (c) in the case of telecopy transmission, when received, and (d) in
the case of mailing, on the fifth business day following that on which the piece
of mail containing such communication is posted.
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c. Failure of any party to exercise any right or remedy under
this Agreement or otherwise, or delay by a party in exercising such right or
remedy, shall not operate as a waiver thereof.
d. This Agreement shall be enforced, governed by and construed
in accordance with the laws of the State of Illinois without giving effect to
any choice or conflict of law provision or rule (whether of the State of
Illinois or any other jurisdiction) that would cause the application of the laws
of any jurisdiction other than the State of Illinois. In the event that any
provision of this Agreement is invalid or unenforceable under any applicable
statute or rule of law, then such provision shall be deemed inoperative to the
extent that it may conflict therewith and shall be deemed modified to conform
with such statute or rule of law. Any provision hereof which may prove invalid
or unenforceable under any law shall not affect the validity or enforceability
of any other provision hereof.
e. This Agreement, the Purchase Agreement, the Stockholders
Agreement and the Debenture constitute the entire agreement among the parties
hereto with respect to the subject matter hereof and thereof. There are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein and therein. This Agreement, the Purchase Agreement, the
Stockholders Agreement and the Debenture supersede all prior agreements and
understandings among the parties hereto with respect to the subject matter
hereof and thereof.
f. Subject to the requirements of Section 9 hereof, this
Agreement shall inure to the benefit of and be binding upon the successors and
assigns of each of the parties hereto.
g. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
h. This Agreement may be executed in two or more identical
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same agreement. This Agreement, once executed by a party,
may be delivered to the other party hereto by facsimile transmission of a copy
of this Agreement bearing the signature of the party so delivering this
Agreement.
i. Each party shall do and perform, or cause to be done and
performed, all such further acts and things, and shall execute and deliver all
such other agreements, certificates, instruments and documents, as the other
party may reasonably request in order to carry out the intent and accomplish the
purposes of this Agreement and the consummation of the transactions contemplated
hereby.
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IN WITNESS WHEREOF, the parties have caused this Registration Rights Agreement
to be duly executed as of day and year first above written.
ECONOMETRICS, INC.
By: /s/ Xxxxxx X. XxXxxxx
---------------------------------
Name: Xxxxxx X. XxXxxxx
Title: Chairman/CEO
------------------------------
XXXXXXX HEALTHCARE, INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
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