EXHIBIT C
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated as of July 14, 1999,
between the investor or investors signatory hereto (each an
"Investor" and together the "Investors"), and MW Medical,
Inc., a Nevada corporation (the "Company").
WHEREAS, simultaneously with the execution and delivery of
this Agreement, the Investors have committed to purchase from the
Company, pursuant to a Convertible Debenture and Warrants Purchase
Agreement dated the date hereof (the "Purchase Agreement"), an
aggregate of $3,500,000 principal amount of Convertibles Debenture
and Warrants to purchase up to 350,000 shares of the Company's
Common Stock (terms not defined herein shall have the meanings
ascribed to them in the Purchase Agreement); and
WHEREAS, the Company desires to grant to the Investors the
registration rights set forth herein with respect to the
Conversion Shares of Common Stock issuable upon conversion of
or as interest upon the Convertible Debentures (or, if the Company
exchanges shares of Convertible Preferred Stock for such Convertible
Debentures pursuant to the terms of the Convertible Debentures,
then issuable upon conversion of or as dividends upon such shares
of Convertible Preferred Stock) purchased pursuant to the Purchase
Agreement and shares of Common Stock issuable upon exercise of the
Warrants (hereinafter referred to as the "Stock" or "Securities"
of the Company).
NOW, THEREFORE, the parties hereto mutually agree as follows:
Section 1. Registrable Securities. As used herein the term
"Registrable Security" means the Securities until (i) the
Registration Statement has been declared effective by the
Commission, and all Securities have been disposed of pursuant
to the Registration Statement, (ii) all Securities have been
sold under circumstances under which all of the applicable
conditions of Rule 144 (or any similar provision then in force)
under the Securities Act ("Rule 144") are met, (iii) all
Securities have been otherwise transferred to holders who may
trade such Securities without restriction under the Securities Act,
and the Company has delivered a new certificate or other evidence
of ownership for such Securities not bearing a restrictive legend
or (iv) such time as, in the opinion of counsel to the Company,
all Securities may be sold without any time, volume or manner
limitations pursuant to Rule 144(k) (or any similar provision
then in effect) under the Securities Act. The term "Registrable
Securities" means any and/or all of the securities falling
within the foregoing definition of a "Registrable Security."
In the event of any merger, reorganization, consolidation,
recapitalization or other change in corporate structure
affecting the Common Stock, such adjustment shall be deemed to
be made in the definition of "Registrable Security" as is
appropriate in order to prevent any dilution or enlargement of
the rights granted pursuant to this Agreement.
Section 2. Restrictions on Transfer. Each Investor
acknowledges and understands that prior to the registration of
the Securities as provided herein, the Securities are "restricted
securities" as defined in Rule 144 promulgated under the Act.
Each Investor understands that no disposition or transfer of the
Securities may be made by Investor in the absence of (i) an opinion
of counsel to the Investor, in form and substance reasonably
satisfactory to the Company, that such transfer may be made without
registration under the Securities Act or (ii) such registration.
With a view to making available to the Investors the benefits of
Rule 144 under the Securities Act or any other similar rule
or regulation of the Commission that may at any time permit the
NY:71731.2
Investors to sell securities of the Company to the public without
registration ("Rule 144"), the Company agrees to:
(a) comply with the provisions of paragraph (c)(1) of
Rule 144 following the filing of the Registration Statement; and
(b) file with the Commission in a timely manner all reports
and other documents required to be filed with the Commission
pursuant to Section 13 or 15(d) under the Exchange Act by
companies subject to either of such sections, irrespective of
whether the Company is then subject to such reporting requirements.
Section 3. Registration Rights With Respect to the Securities.
(a) The Company agrees that it will prepare and file
with the Securities and Exchange Commission ("Commission"), within
forty-five (45) days after the first Closing Date a registration
statement (on Form SB-2 or S-1) under the Securities Act (the
"Registration Statement"), at the sole expense of the Company
(except as provided in Section 3(c) hereof), in respect of the
Investors, so as to permit a public offering and resale of the
Securities under the Act by the Investors as selling stockholders
and not as underwriters.
The Company shall use its best efforts to cause such Registration
Statement to become effective within one hundred five (105) days
from the first Closing Date, or, if earlier, within five (5) days
of SEC clearance to request acceleration of effectiveness. The
number of shares designated in the Registration Statement to be
registered shall include all the Warrant Shares, at least 250% of
the number of shares issuable upon conversion of the Convertible
Debentures based upon the Conversion Price in effect on the first
Closing Date, and a further number of shares equal to 15% of such
number for the purpose of issuing shares of Common Stock as
interest on the Convertible Debentures, and shall include
appropriate language regarding reliance upon Rule 416 to the
extent permitted by the Commission. The Company will notify the
Investors of the effectiveness of the Registration Statement
within one Trading Day of such event. In the event that the
number of shares so registered shall be deemed to be insufficient
to register the resale of all of the Securities in the reasonable
view of any Investor, then the Company shall be obligated to file,
within thirty (30) days of notice from any Investor, a further
Registration Statement registering such remaining shares and shall
use diligent best efforts to prosecute such additional
Registration Statement to effectiveness within ninety (90) days
of the date of such notice.
(b) The Company will maintain the Registration Statement
or post-effective amendment filed under this Section 3 effective
under the Securities Act until the earlier of (i) the date that
none of the Securities covered by such Registration Statement are
or may become issued and outstanding, (ii) the date that all of
the Securities have been sold pursuant to such Registration
Statement, (iii) the date the Investors receive an opinion of
counsel to the Company, which counsel shall be reasonably
acceptable to the Investors, that the Securities may be sold under
the provisions of Rule 144 without limitation as to volume, (iv)
all Securities have been otherwise transferred to persons who may
trade such shares without restriction under the Securities Act,
and the Company has delivered a new certificate or other evidence
of ownership for such securities not bearing a restrictive legend,
or (v) all Securities may be sold without any time, volume or
manner limitations pursuant to Rule 144(k) or any similar
provision then in effect under the Securities Act in the opinion
of counsel to the Company, which counsel shall be reasonably
acceptable to the Investor (the "Effectiveness Period").
NY:71731.2 2
(c) All fees, disbursements and out-of-pocket expenses
and costs incurred by the Company in connection with the
preparation and filing of the Registration Statement under
subparagraph 3(a) and in complying with applicable securities and
Blue Sky laws (including, without limitation, all attorneys' fees
of the Company) shall be borne by the Company. The Investors shall
bear the cost of underwriting and/or brokerage discounts, fees and
commissions, if any, applicable to the Securities being registered
and the fees and expenses of their counsel. The Investors and their
counsel shall have a reasonable period, not to exceed five (5)
Trading Days, to review the proposed Registration Statement or
any amendment thereto, prior to filing with the Commission, and
the Company shall provide each Investor with copies of any comment
letters received from the Commission with respect thereto within
two (2) Trading Days of receipt thereof. The Company shall qualify
any of the securities for sale in such states as any Investor
reasonably designates and shall furnish indemnification in the
manner provided in Section 6 hereof. However, the Company shall
not be required to qualify in any state which will require an
escrow or other restriction relating to the Company and/or the
sellers, or which will require the Company to qualify to do
business in such state or require the Company to file therein
any general consent to service of process. The Company at its
expense will supply the Investors with copies of the applicable
Registration Statement and the prospectus included therein and
other related documents in such quantities as may be reasonably
requested by the Investors.
(d) The Company shall not be required by this Section 3
to include an Investor's Securities in any Registration Statement
which is to be filed if, in the opinion of counsel for both the
Investor and the Company (or, should they not agree, in the opinion
of another counsel experienced in securities law matters acceptable
to counsel for the Investor and the Company) the proposed offering
or other transfer as to which such registration is requested is
exempt from applicable federal and state securities laws and would
result in all purchasers or transferees obtaining securities which
are not "restricted securities", as defined in Rule 144 under the
Securities Act.
(e) In the event that (i) the Registration Statement to
be filed by the Company pursuant to Section 3(a) above is not filed
with the Commission within forty-five (45) days from the first
Closing Date, (ii) such Registration Statement is not declared
effective by the Commission within the earlier of one hundred five
(105) days from the first Closing Date or five (5) days of
clearance by the Commission to request effectiveness, (iii)
such Registration Statement is not maintained as effective by the
Company for the period set forth in Section 3(b) above or (iv) the
additional Registration Statement referred to in Section 3(a) is
not filed within thirty (30) days or declared effective within
ninety (90) days as set forth therein (each a "Registration
Default") then the Company will pay Investor (pro rated on a
daily basis), as liquidated damages for such failure and not as
a penalty three percent (3%) of the aggregate market value of
shares of Common Stock purchased from the Company (including
the Conversion Shares which would be issuable upon conversion of
the Convertible Debentures on any date of determination, and
whether or not the Convertible Debentures are then convertible
pursuant to its terms) and held by the Investor for each month
until such Registration Statement has been filed or if
effectiveness has lapsed (in case of clause (iii) above until
again effective; and in the event of late effectiveness (in case
of clause (ii) above), one percent (1%) (rather than three percent
(3%)) of the aggregate market value of shares of Common Stock
purchased from the Company and held by the Investor (including
the Conversion Shares which would be issuable upon conversion
of the Convertible Debentures on any date of determination, and
whether or not the Convertible Debentures are then convertible
pursuant to its terms) for each month after the first month of
such Registration Default (regardless of whether one or more
such Registration Defaults are then in existence, and without
duplication of liquidated damages) until such Registration
Statement has been declared effective so long as the Company
responds to each Commission staff comment letter with respect
to such registration Statement within two (2) weeks of receipt
thereof, and if not, such liquidated damages shall remain at
three
NY:71731.2 3
percent (3%). Such payment of the liquidated damages shall be
made to the Investors in cash, within five (5) calendar days of
demand, provided, however, that the payment of such liquidated
damages shall not relieve the Company from its obligations to
register the Securities pursuant to this Section. The market
value of the Common Stock for this purpose shall be the closing
price (or last trade, if so reported) on the Principal Market
for each day during such Registration Default.
If the Company does not remit the payment to the Investors as set
forth above, the Company will pay the Investors reasonable costs
of collection, including attorneys' fees, in addition to the
liquidated damages. The registration of the Securities pursuant
to this provision shall not affect or limit the Investors'
other rights or remedies as set forth in this Agreement.
(f) No provision contained herein shall preclude the
Company from selling securities pursuant to any Registration
Statement in which it is required to include Securities pursuant
to this Section 3.
(g) If at any time or from time to time after the
effective date of any Registration Statement, the Company notifies
the Investors in writing of the existence of a Potential Material
Event (as defined in Section 3(h) below), the Investors shall
not offer or sell any Securities or engage in any other
transaction involving or relating to Securities, from the time
of the giving of notice with respect to a Potential Material
Event until the Investors receive written notice from the
Company that such Potential Material Event either has been
disclosed to the public or no longer constitutes a Potential
Material Event; provided, however, that the Company may not so
suspend the right to such holders of Securities for more than
twenty (20) days in the aggregate during any twelve month period,
during the period the Registration Statement is required to be in
effect, and if such period is exceeded, such event shall be a
Registration Default. If a Potential Material Event shall occur
prior to the date a Registration Statement is required to be filed,
then the Company's obligation to file such Registration Statement
shall be delayed without penalty for not more than twenty (20)
days, and such delay or delays shall not constitute a Registration
Default. The Company must, if lawful, give the Investors notice in
writing at least two (2) Trading Days prior to the first day of the
blackout period.
(h) "Potential Material Event" means any of the following:
(a) the possession by the Company of material information not
ripe for disclosure in a registration statement, as determined in
good faith by the Chief Executive Officer or the Board of Directors
of the Company that disclosure of such information in a Registration
Statement would be detrimental to the business and affairs of the
Company; or (b) any material engagement or activity by the Company
which would, in the good faith determination of the Chief Executive
Officer or the Board of Directors of the Company, be adversely
affected by disclosure in a registration statement at such time,
which determination shall be accompanied by a good faith
determination by the Chief Executive Officer or the Board of
Directors of the Company that the applicable Registration Statement
would be materially misleading absent the inclusion of such
information.
Section 4. Cooperation with Company. The Investors will
cooperate with the Company in all respects in connection with this
Agreement, including timely supplying all information reasonably
requested by the Company (which shall include all information
regarding the Investors and proposed manner of sale of the
Registrable Securities required to be disclosed in any Registration
Statement) and executing and returning all documents reasonably
requested in connection with the registration and sale of the
Registrable Securities and entering into and performing their
obligations under any underwriting agreement, if the offering is
an underwritten offering, in usual and customary form, with the
managing underwriter or underwriters of such underwritten offering.
Nothing in this Agreement shall obligate any Investor to consent
NY:71731.2 4
to be named as an underwriter in any Registration Statement. The
obligation of the Company to register the Registrable Securities
shall be absolute and unconditional as to those Securities which
the Commission will permit to be registered without naming the
Investors as underwriters, and with the consent of the Investor to
be named as an underwriter, to all of the Registrable Securities.
Any delay or delays caused by the Investors by failure to cooperate
as required hereunder shall not constitute a Registration Default.
Section 5. Registration Procedures. If and whenever the
Company is required by any of the provisions of this Agreement to
effect the registration of any of the Registrable Securities under
the Act, the Company shall (except as otherwise provided in this
Agreement), as expeditiously as possible, subject to the Investors'
assistance and cooperation as reasonably required with respect to
each Registration Statement:
(a) (i) 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 such Registration Statement effective and to comply with the
provisions of the Act with respect to the sale or other disposition
of all securities covered by such registration statement whenever
the Investors shall desire to sell or otherwise dispose of the same
(including prospectus supplements with respect to the sales of
securities from time to time in connection with a registration
statement pursuant to Rule 415 promulgated under the Act) and (ii)
take all lawful action such that each of (A) the Registration
Statement and any amendment thereto does not, when it becomes
effective, contain 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, in light of the
circumstances under which they were made, not misleading and (B)
the prospectus forming part of the Registration Statement, and
any amendment or supplement thereto, does not at any time during
the Registration Period 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, in light of the
circumstances under which they were made, not misleading;
(b) (i) prior to the filing with the Commission of any
Registration Statement (including any amendments thereto) and the
distribution or delivery of any prospectus (including any
supplements thereto), provide draft copies thereof to the Investors
as required by Section 3(c) and reflect in such documents all such
comments as the Investors (and their counsel) reasonably may propose
respecting the Selling Shareholders and Plan of Distribution
sections (or equivalents) and (ii) furnish to each Investor such
numbers of copies of a prospectus including a preliminary prospectus
or any amendment or supplement to any prospectus, as applicable,
in conformity with the requirements of the Act, and such other
documents, as such Investor may reasonably request in order to
facilitate the public sale or other disposition of the securities
owned by such Investor;
(c) register and qualify the Registrable Securities
covered by the Registration Statement under such other securities
or blue sky laws of such jurisdictions as the Investors shall
reasonably request (subject to the limitations set forth in
Section 3(c) above), and do any and all other acts and things
which may be necessary or advisable to enable each Investor to
consummate the public sale or other disposition in such
jurisdiction of the securities owned by such Investor;
(d) list such Registrable Securities on the Principal
Market, if the listing of such Registrable Securities is then
permitted under the rules of such Principal Market;
(e) notify each Investor at any time when a prospectus
relating thereto covered by the Registration Statement is
required to be delivered under the Act, of the happening of any
event of which it has knowledge as a result of which the
prospectus included in the Registration Statement, as then
in effect,
NY:71731.2 5
includes an untrue statement of a material fact or omits to state
a material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the
circumstances then existing, and the Company shall prepare and
file a curative amendment under Section 5(a) as quickly as
commercially possible;
(f) as promptly as practicable after becoming aware of
such event, notify each Investor who holds Registrable Securities
being sold (or, in the event of an underwritten offering, the
managing underwriters) of the issuance by the Commission of any
stop order or other suspension of the effectiveness of the
Registration Statement at the earliest possible time and take
all lawful action to effect the withdrawal, recession or removal
of such stop order or other suspension;
(g) cooperate with the Investors to facilitate the timely
preparation and delivery of certificates for the Registrable
Securities to be offered pursuant to the Registration Statement
and enable such certificates for the Registrable Securities to
be in such denominations or amounts, as the case may be, as the
Investors reasonably may request and registered in such names as
the Investors may request; and, within three (3) Trading Days
after a Registration Statement which includes Registrable
Securities is declared effective by the Commission, deliver
and cause legal counsel selected by the Company to deliver to
the transfer agent for the Registrable Securities (with copies
to the Investors) an appropriate instruction and, to the extent
necessary, an opinion of such counsel;
(h) take all such other lawful actions reasonably necessary
to expedite and facilitate the disposition by the Investors of
their Registrable Securities in accordance with the intended methods
therefor provided in the prospectus which are customary for issuers
to perform under the circumstances;
(i) in the event of an underwritten offering, promptly
include or incorporate in a prospectus supplement or post-effective
amendment to the Registration Statement such information as the
managers reasonably agree should be included therein and to which
the Company does not reasonably object and make all required filings
of such prospectus supplement or post-effective amendment as soon as
practicable after it is notified of the matters to be included or
incorporated in such Prospectus supplement or post-effective
amendment; and
(j) maintain a transfer agent and registrar for its
Common Stock.
Section 6. Indemnification.
(a) To the maximum extent permitted by law, the Company
agrees to indemnify and hold harmless the Investors and each
person, if any, who controls an Investor within the meaning of the
Securities Act (each a "Distributing Investor") against any losses,
claims, damages or liabilities, joint or several (which shall, for
all purposes of this Agreement, include, but not be limited to,
all reasonable costs of defense and investigation and all reasonable
attorneys' fees and expenses), to which the Distributing Investor
may become subject, under the Securities Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement
NY:71731.2 6
or alleged untrue statement of any material fact contained in
any Registration Statement, or any related final prospectus or
amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that the
Company will not be liable in any such case to the extent, and
only to the extent, that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in such
Registration Statement, preliminary prospectus, final prospectus
or amendment or supplement thereto in reliance upon, and in
conformity with, written information furnished to the Company by
the Distributing Investor, its counsel, affiliates or any
underwriter, specifically for use in the preparation thereof.
This indemnity agreement will be in addition to any liability
which the Company may otherwise have.
(b) To the maximum extent permitted by law, each
Distributing Investor agrees that it will indemnify and hold
harmless the Company, and each officer and director of the
Company or person, if any, who controls the Company within the
meaning of the Securities Act, against any losses, claims,
damages or liabilities (which shall, for all purposes of this
Agreement, include, but not be limited to, all reasonable costs
of defense and investigation and all reasonable attorneys' fees
and expenses) to which the Company or any such officer, director
or controlling person may become subject under the Securities Act
or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of
any material fact contained in any Registration Statement, or
any related final prospectus or amendment or supplement thereto,
or arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not
misleading, but in each case only to the extent that such untrue
statement or alleged untrue statement or omission or alleged
omission was made in such Registration Statement, final prospectus
or amendment or supplement thereto in reliance upon, and in
conformity with, written information furnished to the Company
by such Distributing Investor, its counsel, affiliates or any
underwriter, specifically for use in the preparation thereof. This
indemnity agreement will be in addition to any liability which the
Distributing Investor may otherwise have.
(c) Promptly after receipt by an indemnified party under
this Section 6 of notice of the commencement of any action against
such indemnified party, such indemnified party will, if a claim
in respect thereof is to be made against the indemnifying party
under this Section 6, notify the indemnifying party in writing
of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve the indemnifying party from
any liability which it may have to any indemnified party except
to the extent the failure of the indemnified party to provide
such written notification actually prejudices the ability of
the indemnifying party to defend such action. In case any such
action is brought against any indemnified party, and it notifies
the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate in, and, to
the extent that it may wish, jointly with any other indemnifying
party similarly notified, assume the defense thereof, subject to
the provisions herein stated and after notice from the
indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party will not
be liable to such indemnified party under this Section 6 for
any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other
than reasonable costs of investigation, unless the indemnifying
party shall not pursue the action to its final conclusion. The
indemnified parties as a group shall have the right to employ
one separate counsel in any such action and to participate in
the defense thereof, but the fees and expenses of such counsel
shall not be at the expense of the indemnifying party if the
indemnifying party has assumed the defense of the action with
counsel reasonably satisfactory to the indemnified party unless
(i) the employment of such counsel has been specifically
authorized in writing by the indemnifying party, or (ii) the
named parties to any such action (including any impleaded
parties) include both the indemnified party and the indemnifying
party and the indemnified party shall have been advised by its
counsel that there may be one or more legal defenses available
to the indemnifying party different from or in conflict with
any legal defenses which may be available to the indemnified
party or any other indemnified party (in which case the
indemnifying party shall not have the right to assume the
defense of such action on behalf of such indemnified party, it
being understood, however, that the indemnifying party shall,
in connection with any one such action or separate
NY:71731.2 7
but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances, be liable only for the reasonable fees and
expenses of one separate firm of attorneys for the indemnified
party, which firm shall be designated in writing by the
indemnified party). No settlement of any action against an
indemnified party shall be made without the prior written consent
of the indemnified party, which consent shall not be unreasonably
withheld so long as such settlement includes a full release of
claims against the indemnified party.
Section 7. Contribution. In order to provide for just and
equitable contribution under the Securities Act in any case in
which (i) the indemnified party makes a claim for indemnification
pursuant to Section 6 hereof but 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 the
express provisions of Section 6 hereof provide for indemnification
in such case, or (ii) contribution under the Securities Act
may be required on the part of any indemnified party, then the
Company and the applicable Distributing Investor shall
contribute to the aggregate losses, claims, damages or liabilities
to which they may be subject (which shall, for all purposes of this
Agreement, include, but not be limited to, all reasonable costs of
defense and investigation and all reasonable attorneys' fees and
expenses), in either such case (after contribution from others)
on the basis of relative fault as well as any other relevant
equitable considerations. The relative fault shall be determined
by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information
supplied by the Company on the one hand or the applicable
Distributing Investor on the other hand, and the parties' relative
intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and
the Distributing Investor agree that it would not be just and
equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable
considerations referred to in this Section 7. The amount paid or
payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred
to above in this Section 7 shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or
claim. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
Notwithstanding any other provision of this Section 7, in no
event shall any (i) Investor be required to undertake liability
to any person under this Section 7 for any amounts in excess of
the dollar amount of the proceeds received by such Investor from
the sale of such Investor's Registrable Securities (after
deducting any fees, discounts and commissions applicable thereto)
pursuant to any Registration Statement under which such
Registrable Securities are registered under the Securities Act
and (ii) underwriter be required to undertake liability to any
person hereunder for any amounts in excess of the aggregate
discount, commission or other compensation payable to such
underwriter with respect to the Registrable Securities
underwritten by it and distributed pursuant to such Registration
Statement.
Section 8. Notices. All notices, demands, requests, consents,
approvals, and other communications required or permitted
hereunder shall be in writing and, unless otherwise specified
herein, shall be (i) hand delivered, (ii) deposited in the mail,
registered or certified, return receipt requested, postage
prepaid, (iii) delivered by reputable air courier service with
charges prepaid, or (iv) transmitted by facsimile, addressed as
set forth in the Purchase Agreement or to such other address as
such party shall have specified most recently by written notice.
Any notice or other communication required or permitted to be
given hereunder shall be deemed effective (a) upon hand delivery
or delivery by facsimile, with accurate
NY:71731.2 8
confirmation generated by the transmitting facsimile machine, at
the address or number designated below (if delivered on a
business day during normal business hours where such notice is
to be received), or the first business day following such
delivery (if delivered other than on a business day during normal
business hours where such notice is to be received) or (b) on the
first business day following the date of sending by reputable
courier service, fully prepaid, addressed to such address, or
(c) upon actual receipt of such mailing, if mailed. Either party
hereto may from time to time change its address or facsimile
number for notices under this Section 8 by giving at least ten
(10) days' prior written notice of such changed address or
facsimile number to the other party hereto.
Section 9. Assignment. This Agreement is binding upon and
inures to the benefit of the parties hereto and their respective
heirs, successors and permitted assigns. The rights granted the
Investors under this Agreement may be assigned to any purchaser
of substantially all of the Registrable Securities (or the rights
thereto) from an Investor, as otherwise permitted by the Purchase
Agreement.
Section 10. Additional Covenants of the Company. The Company
agrees that at such time as it otherwise meets the requirements
for the use of Securities Act Registration Statement on Form S-3
for the purpose of registering the Registrable Securities, it
shall file all reports and information required to be filed by
it with the Commission in a timely manner and take all such other
action so as to maintain such eligibility for the use of such form.
Section 11. Counterparts/Facsimile. This Agreement may be
executed in two or more counterparts, each of which shall
constitute an original, but all of which, when together shall
constitute but one and the same instrument, and shall become
effective when one or more counterparts have been signed by each
party hereto and delivered to the other parties. In lieu of the
original, a facsimile transmission or copy of the original shall
be as effective and enforceable as the original.
Section 12. Remedies. The remedies provided in this Agreement
are cumulative and not exclusive of any remedies provided by
law. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be
affected, impaired or invalidated, and the parties hereto shall
use their best efforts to find and employ an alternative means
to achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction.
Section 13. Conflicting Agreements. The Company shall not
enter into any agreement with respect to its securities that is
inconsistent with the rights granted to the holders of Registrable
Securities in this Agreement or otherwise prevents the Company from
complying with all of its obligations hereunder.
Section 14. Headings. The headings in this Agreement are for
reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
Section 15. Governing Law, Arbitration. This Agreement shall
be governed by and construed in accordance with the laws of
the State of New York applicable to contracts made in New York
by persons domiciled in New York City and without regard to its
principles of conflicts of laws. Any dispute under this
Agreement shall be submitted to arbitration under the American
Arbitration Association (the "AAA") in New York City, New York,
and shall be finally and conclusively determined by the decision
of a board of arbitration consisting of three (3) members
(hereinafter referred to as the "Board of Arbitration") selected
as according to the rules governing the AAA. The Board of
Arbitration shall meet on consecutive business days in
NY:71731.2 9
New York City, New York, and shall reach and render a decision in
writing (concurred in by a majority of the members of the Board of
Arbitration) with respect to the amount, if any, which the
losing party is required to pay to the other party in respect of
a claim filed. In connection with rendering its decisions, the
Board of Arbitration shall adopt and follow the laws of the State
of New York. To the extent practical, decisions of the Board of
Arbitration shall be rendered no more than thirty (30) calendar
days following commencement of proceedings with respect thereto.
The Board of Arbitration shall cause its written decision to be
delivered to all parties involved in the dispute. Any decision
made by the Board of Arbitration (either prior to or after the
expiration of such thirty (30) calendar day period) shall be final,
binding and conclusive on the parties to the dispute, and entitled
to be enforced to the fullest extent permitted by law and entered
in any court of competent jurisdiction. The Board of Arbitration
shall be authorized and is hereby directed to enter a default
judgment against any party failing to participate in any proceeding
hereunder within the time periods set forth in the AAA rules.
The non-prevailing party to any arbitration (as determined by
the Board of Arbitration) shall pay the expenses of the
prevailing party, including reasonable attorneys' fees, in
connection with such arbitration. Any party shall be entitled
to obtain injunctive relief from a court in any case where such
relief is available.
NY:71731.2 10
IN WITNESS WHEREOF, the parties hereto have caused this
Registration Rights Agreement to be duly executed, on the day and year
first above written.
MW Medical, Inc.
By: \s\ Xxx Xxxxxxx President CEO
------------------------------------
Roseworth Group, Ltd.
By: \s\ Xxxx Xxxxxxx
------------------------------------
Xxxx Xxxxxxx, Director
Austost Anstalt Xxxxxx
By: \s\ Xxxxxx Xxxxx
-------------------------------------
Xxxxxx Xxxxx, Authorized Signatory
Balmore Funds, S.A.
By: \s\ Francois Morax
-------------------------------------
Francois Morax, Authorized Signatory
Markham Holdings, Ltd.
By: \s\ X.X. Xxxxxx
-------------------------------------
X.X. Xxxxxx, Authorized Signatory
VMR High Octane Fund Ltd.
By: \s\ Xxxxxxx Xxxx
-------------------------------------
Xxxxxxx Xxxx, Authorized Signatory
[signature page continued]
NY:71731.2 11
[MW Medical Registration Rights Agreement signature page, continued]
Strategic Group Ltd.
By: \s\ Xxxxxxx Xxxxx
------------------------------------
Xxxxxxx Xxxxx, Authorized Signatory
\s\ Xxxx X. Xxxxxxx
__________________________________________
Xxxx X. Xxxxxxx
NY:71731.2 12
