EXHIBIT 4(g)
CLINICOR, INC.
PREEMPTIVE RIGHTS AGREEMENT
THIS PREEMPTIVE RIGHTS AGREEMENT is entered into effective as of February
27, 1995 by and among CLINICOR, INC., Nevada corporation, formerly PEGASUS TAX
AND FINANCIAL PLANNING SERVICES, INC., a Nevada corporation (the "Corporation")
on the one hand, and those shareholders of the Corporation whose signatures are
set forth on Schedule 1 attached hereto and incorporated herein by reference on
the other (collectively the "Shareholders" and individually a "Shareholder").
R E C I T A L S :
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A. On even date herewith the Corporation merged with a Texas health care
research services company known as Clinicor, Inc. (the "Merger").
B. As a material consideration for the Shareholders providing additional
capital to the Corporation and facilitating the Merger, the Corporation has
agreed to provide certain preemptive rights to the Shareholders on the terms and
conditions hereinafter set forth.
A G R E E M E N T :
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NOW, THEREFORE, in consideration of the mutual agreements, covenants,
representations and warranties contained in this Agreement, the parties hereby
agree as follows:
1. RIGHT OF FIRST REFUSAL. The Corporation hereby grants to each
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Shareholder, the right of first refusal to purchase that portion of all new
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securities issued by the Corporation (the "New Securities" as defined below)
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within three years after the date hereof (the date hereof referred to as the
"Closing") as the number of shares held by such Shareholder on the date that it
receives the "Offer" (as defined below) bears to the total number of shares of
the Corporation issued and outstanding on the date of the Offer on the following
terms and conditions (the "Preemptive Rights"):
A. DEFINITION. "New Securities" shall mean any capital stock of the
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Corporation issued after the Closing, whether now authorized or not, and rights,
options, or warrants to purchase said capital stock, and securities of any type
whatsoever that are, or may become, convertible into said common stock or
preferred stock of the Corporation issued after the Closing; provided, however,
that "New Securities" shall not include (i) the 50,000 options or the shares
issuable thereunder to purchase Common Stock issued in the aggregate to Xxxxx
Xxxxx and Xxxxxx Xxxx pursuant to the Merger; (ii) up to 400,000 new options and
the shares issuable thereunder to employees and consultants of the Corporation
under any employee benefit plan at exercise prices no less than fair market
value on date of grant, inclusive
of no more than up to 300,000 new options or the shares issuable thereunder to
Messrs. Xxxxxx Xxxxxx or Xxxxxx X'Xxxxxxx and/or their affiliates and inclusive
of an additional 30,000 options issued to three certain medical directors
pursuant to the Merger; (iii) after the first anniversary date of the Closing,
up to 500,000 stock options (inclusive of any of the 400,000 options referenced
above) at exercise prices no less than fair market value on date of grant issued
under any employee benefit plans to employees or consultants other than to
Messrs. Xxxxxx or X'Xxxxxxx and/or their affiliates; (iv) after the second
anniversary date following the Closing, any additional securities issued at
exercise prices no less than fair market value on date of grant under any
employee benefit plans to employees or consultants other than to Messrs. Xxxxxx
or X'Xxxxxxx and/or their affiliates; (v) shares of the Corporation's common
stock issued in connection with any stock split, stock dividend, or
recapitalization of the Corporation; or (vi) any shares issued by the
Corporation in connection with a Form S-1 or Form S-3 (or any successor in
interest form) public registration of such shares, whereby in connection with
such registration the Corporation is included on the NASDAQ National Market
System or a national stock exchange and which is declared effective by the
Securities and Exchange Commission.
B. EXERCISE OF RIGHT. If the Corporation intends to issue New
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Securities after the Closing, it shall give each Shareholder written notice of
its intention, describing the type of New Securities, the price, and the terms
upon which the Corporation proposes to issue the same (the "Offer"). With
respect to any New Securities proposed to be issued for assets or property other
than cash, the price set forth in the notice shall be based upon the fair market
value of such assets or property as determined by the Board of Directors of the
Corporation in its reasonable good faith judgment. Such determination shall be
final and binding on all parties. Each Shareholder shall have thirty (30) days
from the effective date of such notice to agree to purchase its portion of the
New Securities for the cash equivalent price and upon the other general terms
specified in the Offer by giving written notice to the Corporation and stating
therein the quantity of New Securities to be purchased, accompanied by the cash
equivalent purchase price as set forth in the Offer. Each Shareholder entitled
to such a notice shall have a right of overallotment such that by giving written
notice to the Corporation within such thirty (30) day period it may purchase
that number of securities for which Preemptive Rights are not exercised, pro
rata based upon the number of shares held by all of the Shareholders seeking to
exercise their overallotment rights.
C. FAILURE TO EXERCISE. If a Shareholder fails to notify the
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Corporation during such thirty (30) day notice period of its election to
exercise its Preemptive Rights, its right to participate in such Offer will
terminate. If the Corporation fails to sell the New Securities on the terms set
forth in the Offer within ninety (90) days after the termination of such thirty
(30) day notice period, it must once again comply with the Preemptive Rights.
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2. MISCELLANEOUS.
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A. SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided
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herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto.
B. ENTIRE AGREEMENT. This Agreement constitutes the full and entire
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understanding and agreement between and among the parties with regard to the
subjects hereof and thereof.
C. NOTICES. All notices, requests, demands, instructions or other
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communications required or permitted to be given under this Agreement shall be
in writing and (i) shall be deemed to have been duly given upon delivery, if
delivered personally or by one-day courier, or by facsimile transmission where
receipt is acknowledged by the receiving machine or if given by prepaid
telegram, or (ii) if mailed first-class, postage prepaid, registered or
certified mail, return receipt requested, shall be deemed to have been delivered
three (3) business days after deposit in the United States mails, to the
applicable party's address set forth on the signature page. Either party hereto
may change the address to which such communications are to be directed by giving
written notice to the other parties hereto of such change in the manner provided
above.
D. DELAYS OR OMISSIONS. No delay or omission to exercise any right,
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power or remedy accruing to each Shareholder upon any breach or default of the
Corporation under this Agreement shall impair any such right, power or remedy of
each Shareholder nor shall it be construed to be a waiver of any such breach or
default, or an acquiescence therein, or in any similar breach or default
thereafter occurring, nor shall any waiver of any single breach or default be
deemed a waiver of any other breach or default theretofore or thereafter
occurring. Any waiver, permit, consent or approval of any kind or character on
the part of any Shareholder of any breach or default under this Agreement, or
any waiver on the part of any Shareholder of any provisions or conditions of
this Agreement, must be in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either under this
Agreement or by law or otherwise afforded to the Shareholders, shall be
cumulative and not alternative.
E. TITLES AND SUBTITLES. The titles of the paragraphs and
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subparagraphs of this Agreement are for the convenience of reference only and
are not to be considered in construing this Agreement.
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F. COUNTERPARTS. This Agreement may be executed in any number of
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counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
G. ATTORNEYS' FEES, COSTS. In the event a party breaches this
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Agreement, the prevailing party shall pay all costs and attorney's fees incurred
by any other party in connection with such breach, whether or not any litigation
is commenced.
H. APPLICABLE LAW. This Agreement shall be governed by and
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construed in accordance with the laws of the State of Texas.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year hereinabove first written.
CLINICOR, INC., FORMERLY
PEGASUS TAX AND FINANCIAL SERVICES, INC.
000 Xxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000
by /s/ XXXXXX X. XXXXXX
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(Signature)
Xxxxxx X. Xxxxxx, Vice President
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(Print Name & Title)
SCHEDULE 1
/s/ XXXXXXXX XXXX /s/ IRAWAN ONGGARA
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XXXXXXXX XXXX IRAWAN ONGGARA
[TEXT ILLEGIBLE]
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(Address) (Address)
/s/ XXXXXXX XXXXXXXXX
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XXXXXXX XXXXXXXXX
0000 Xxxxxxxx Xxxx., 0xx Xxxxx
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Xxxxxxx Xxxxx, XX 00000
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(Address)
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