EXHIBIT 10.7
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated as of June 25, 2002
(this "Agreement"), is made by and between WOMEN FIRST HEALTHCARE, INC., a
Delaware corporation (the "Company"), and the purchasers named on the signature
page hereto (the "Purchasers").
W I T N E S S E T H:
WHEREAS, in connection with the Note and Warrant Purchase
Agreement, dated as of June 25, 2002, between the Purchasers and the Company
(the "Securities Purchase Agreement"), the Company has agreed, upon the terms
and subject to the conditions of the Securities Purchase Agreement, to issue and
sell to the Purchasers senior secured notes due 2005 (the "Notes"), together
with warrants (the "Warrants") to purchase an aggregate of 1,699,437 shares of
Common Stock (the "Warrant Shares"); and
WHEREAS, to induce the Purchasers to execute and deliver the
Securities Purchase Agreement, the Company 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 with respect to the
Registrable Securities (as defined below) issuable to or for the account of the
Purchasers pursuant to the Securities Purchase Agreement;
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, the Company and the
Purchasers hereby agree as follows:
1. Definitions.
(a) As used in this Agreement, the following terms shall
have the following meanings:
"Nasdaq" means the Nasdaq National Market.
"1934 Act" means the Securities Exchange Act of 1934, as
amended.
"Person" means any individual, corporation, limited liability
company, association, partnership, trust, or any other entity or organization,
including any government entity.
"Purchasers" means the Purchasers and any transferee or
assignee who agrees to become bound by the provisions of this Agreement in
accordance with Section 9 hereof.
"register," "registered," and "registration" refer to a
registration effected by preparing and filing a Registration Statement or
Statements in compliance with the 1933 Act and pursuant to Rule 415 under the
1933 Act or any successor rule providing for offering securities on a continuous
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basis ("Rule 415"), and the declaration or ordering of effectiveness of such
Registration Statement by the United States Securities and Exchange Commission
(the "SEC").
"Registrable Securities" means the Warrant Shares.
"Registration Period" means the period from the Date of
Closing to the earlier of (i) the date which is three years after the date on
which the Notes are issued to the Purchasers pursuant to the Securities Purchase
Agreement, (ii) the date on which each Purchaser may sell all of its Registrable
Securities without registration under the 1933 Act pursuant to Rule 144, without
restriction on the manner of sale or the volume of securities which may be sold
in any period and without the requirement for giving of any notice to, or the
making of any filing with, the SEC and (iii) the date on which the Purchasers no
longer beneficially own any Registrable Securities.
"Registration Statement" means a registration statement of the
Company under the 1933 Act, including any amendment thereto.
"Rule 144" means Rule 144 promulgated under the 1933 Act or
any other similar rule or regulation of the SEC that may at any time permit a
holder of any securities to sell securities of the Company to the public without
registration under the 1933 Act.
"SEC Effective Date" means the date the Registration Statement
is first declared effective by the SEC.
"SEC Filing Date" means the date the Registration Statement is
first filed with the SEC pursuant to Section 2(a).
(b) Capitalized terms defined in the introductory paragraph
or the recitals to this Agreement shall have the respective meanings therein
provided. Capitalized terms used herein and not otherwise defined herein shall
have the respective meanings set forth in the Securities Purchase Agreement.
2. Registration.
(a) Mandatory Registration. The Company shall prepare and
file with, and cause to be declared effective by, the SEC a Registration
Statement on Form S-3, which, on the date of filing with the SEC, covers the
resale by the Purchasers or their permitted assignees of a number of shares of
Common Stock at least equal to the number of Warrant Shares, and thereafter to
cause such Registration Statement relating to Registrable Securities to be
declared effective as soon as possible after such filing but in any event, not
later than 180 days after the Date of Closing. If at any time the number of
shares of Common Stock included in the Registration Statement required to be
filed as provided in the first sentence of this Section 2(a) shall be
insufficient to cover the number of shares of Common Stock issuable upon
exercise of the unexercised portions of Warrants, then promptly, but in no event
later than 20 days after such insufficiency shall occur, the Company shall file
with the SEC an additional Registration Statement on Form S-3 (which shall not
constitute a post-effective amendment to the Registration Statement filed
pursuant to the first sentence of this Section 2(a)), covering such number of
shares of Common Stock as shall be sufficient to permit such exercises. For all
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purposes of this Agreement, such additional Registration Statement shall be
deemed to be the Registration Statement required to be filed by the Company
pursuant to Section 2(a) of this Agreement, and the Company and the Purchasers
shall have the same rights and obligations with respect to such additional
Registration Statement as they shall have with respect to the initial
Registration Statement required to be filed by the Company pursuant to this
Section 2(a). Except to the extent required under the agreements set forth under
Schedule 1, the Registration Statement shall not, without the Purchasers'
consent which shall not be unreasonably withheld, include securities to be sold
for the account of any other selling securityholder.
(b) Priority on Mandatory Registration. If the Mandatory
Registration is an underwritten offering and the managing underwriter or
underwriters advise the Company in writing that in their opinion the number of
Registrable Securities and, if permitted hereunder, other securities requested
to be included in such offering, exceeds the number of Registrable Securities
and other securities, if any, which can be sold in such offering without
adversely affecting the marketability of the offering, the Company will include
in such registration:
(i) first, the Registrable Securities requested to be
included in such registration by the Purchasers and any securities
requested to be included in such registration by other Person that is
entitled to piggyback registration rights that are not subordinate to
the rights of the Purchasers (allocated, if necessary, pro rata among
the Purchasers and such other Persons based upon the number of shares
owned by each of them);
(ii) second, any securities requested to be included in
such registration by any Person that is entitled to Piggyback
Registration Rights that are subordinate to the rights of the
Purchasers;
(iii) third, to the Company; and
(ivv) thereafter, other securities requested to be included
in such registration.
(c) Selection of Underwriters. The Company will have the
right to select the investment banker(s) and manager(s), if any, to administer
an offering pursuant to the Mandatory Registration, subject to the Holders'
approval, which will not be unreasonably withheld.
(d) Other Registrations. The Company will not file another
registration statement with the SEC covering shares of Common Stock prior to the
SEC Effective Date, other than registration statements on Form S-4 or S-8.
(e) Holdback Agreements. (i) The Company agrees (A) not to
effect any public sale or distribution for its own account of its equity
securities, or any securities convertible into or exchangeable or exercisable
for such securities, during the seven days prior to and during the 90-day period
beginning on the effective date of the underwritten Mandatory Registration
(except as part of such underwritten registration or pursuant to registrations
on Form S-8 or any successor form), unless the underwriter(s) managing the
registered public offering otherwise agree, and (B) to use reasonable efforts to
cause each purchaser of at least 5% (on a fully-diluted basis) of its Common
Stock, or any securities convertible into or exchangeable or exercisable for
Common Stock, purchased from the
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Company at any time after the date of this Agreement (other than in a registered
public offering) to agree not to effect any public sale or distribution
(including sales pursuant to Rule 144) of any such securities during such
periods (except as part of such underwritten registration, if otherwise
permitted), unless the underwriter(s) managing the registered public offering
otherwise agree.
(ii) Each Holder of Registrable Securities whose Registrable
Securities are eligible for inclusion in a Registration Statement filed pursuant
to Section 2 hereof agrees, if requested by the managing underwriter(s) in an
underwritten offering of any Registrable Securities, not to effect any public
sale or distribution of Registrable Securities, including a sale pursuant to
Rule 144 (or any similar provision then effect) under the Securities Act (except
as part of such underwritten registration), during the seven-day period prior
to, and during the 90-day period (or such shorter period as may be agreed to by
the managing underwriter(s)) following the effective date of such Registration
Statement to the extent timely notified in writing by the Company or the
managing underwriter or underwriters.
(f) Piggy-Back Registrations. If at any time the Company
shall determine to prepare and 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 equity securities, other than on Form S-4 or Form S-8 or
their then equivalents relating to equity securities to be issued solely in
connection with any acquisition of any entity or business or equity securities
issuable in connection with stock option or other employee benefit plans, the
Company shall send to each Purchaser who is entitled to registration rights
under this Section 2(f) written notice of such determination and, if within ten
(10) days after receipt of such notice, such Purchaser shall so request in
writing, the Company shall include in such Registration Statement all or any
part of the Registrable Securities such Purchaser requests to be registered,
except that if, in connection with any underwritten public offering for the
account of the Company, the managing underwriter(s) thereof shall impose a
limitation on the number of Registrable Securities which may be included in the
Registration Statement because, in such underwriter(s)' judgment, such
limitation is necessary to effect an orderly public distribution, then the
Company shall be obligated to include in such Registration Statement only such
limited portion of the Registrable Securities with respect to which such
Purchaser has requested inclusion hereunder. Any exclusion of Registrable
Securities shall be made pro rata among the Purchasers seeking to include
Registrable Securities, in proportion to the number of Registrable Securities
sought to be included by such Purchasers; provided, however, that the Company
shall not exclude any Registrable Securities unless the Company has first
excluded all outstanding securities the holders of which are not entitled by
right to inclusion of securities in such Registration Statement; 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 to include such securities in the
Registration Statement, based on the number of securities for which registration
is requested except to the extent such pro rata exclusion of such other
securities is prohibited under any written agreement entered into by the Company
with the holder of such other securities prior to the date of this Agreement, in
which case such other securities shall be excluded, if at all, in accordance
with the terms of such agreement. No right to registration of Registrable
Securities under this Section 2(f) shall be construed to limit any registration
required under Section 2(a) hereof. Notwithstanding any other provision of this
Agreement, if the Registration Statement required to be filed pursuant to
Section 2(a) of this Agreement shall have been ordered effective by the SEC and
the Company shall have maintained the effectiveness of such Registration
Statement as required by this Agreement and if the Company shall otherwise have
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complied in all material respects with its obligations under this Agreement,
then the Company shall not be obligated to register any Registrable Securities
on such Registration Statement referred to in this Section 2(f).
(g) Eligibility for Registration Statement Forms. The Company
meets the requirements for the use of Form S-3 for registration of the
Registrable Securities for resale by the Purchasers. The Company shall file all
reports required to be filed by the Company with the SEC in a timely manner so
as to maintain such eligibility for the use of Form S-3.
3. Obligations of the Company. In connection with the
registration of the Registrable Securities, the Company shall:
(a) prepare promptly, and file with the SEC not later than 30
days after the Date of Closing, a Registration Statement with respect
to the number of Registrable Securities provided in Section 2(a), and
thereafter to cause each Registration Statement relating to Registrable
Securities to be declared effective as soon as possible after such
filing and in the case of the initial Registration Statement filed
pursuant to Section 2(a), in any event within 180 days after the Date
of Closing, and keep the Registration Statement effective pursuant to
Rule 415 at all times during the Registration Period; submit to the
SEC, within two Trading Days after the Company learns that no review of
the Registration Statement will be made by the staff of the SEC or that
the staff of the SEC has no further comments on the Registration
Statement, as the case may be, a request for acceleration of
effectiveness of the Registration Statement to the earliest time and
date permitted by the staff of the SEC after the submission of such
request; notify the Purchasers of the effectiveness of the Registration
Statement on the date the Registration Statement is declared effective;
and the Company represents and warrants to, and covenants and agrees
with, the Purchasers that the Registration Statement (including any
amendments or supplements thereto and prospectuses contained therein),
at the time it is first filed with the SEC, at the time it is ordered
effective by the SEC and at all times during which it is required to be
effective hereunder (and each such amendment and supplement at the time
it is filed with the SEC and at all times during which it is available
for use in connection with the offer and sale of the Registrable
Securities) 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) prepare and file with the SEC such amendments (including
post-effective amendments) and supplements to the Registration
Statement and the prospectus used in connection with the Registration
Statement as may be necessary to keep the Registration Statement
effective at all times during the Registration Period, and, during the
Registration Period, comply with the provisions of the 1933 Act with
respect to the disposition of all Registrable Securities of the Company
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) furnish to each Purchaser whose Registrable Securities
are included in the Registration Statement and its legal counsel, (1)
promptly after the same is prepared and
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publicly distributed, filed with the SEC or received by the Company,
one copy of the Registration Statement and any amendment thereto, each
preliminary prospectus and prospectus and each amendment or supplement
thereto, each letter written by or on behalf of the Company to the SEC
or the staff of the SEC and each item of correspondence from the SEC or
the staff of the SEC relating to such Registration Statement (other
than any portion of any thereof which contains information for which
the Company has sought confidential treatment) and (2) such number of
copies of a prospectus, including a preliminary prospectus, and all
amendments and supplements thereto and such other documents, as such
Purchaser may reasonably request in order to facilitate the disposition
of the Registrable Securities owned by such Purchaser;
(d) use reasonable efforts to (i) register and qualify the
Registrable Securities covered by the Registration Statement under such
securities or blue sky laws of such jurisdictions as the Purchasers who
hold a majority in interest of the Registrable Securities being offered
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 at all times until the end of the
Registration Period, (iii) take such other actions as may be necessary
to maintain such registrations and qualifications in effect at all
times during the Registration Period and (iv) take all other actions
reasonably necessary or advisable to qualify the Registrable Securities
for sale in such jurisdictions; provided, however, that the Company
shall not be required in connection therewith or as a condition thereto
(I) to qualify to do business in any jurisdiction where it would not
otherwise be required to qualify but for this Section 3(d), (II) to
subject itself to general taxation in any such jurisdiction, (III) to
file a general consent to service of process in any such jurisdiction,
(IV) to provide any undertakings that cause more than nominal expense
or burden to the Company or (V) to make any change in its Certificate
of Incorporation or By-laws, which in each case the Board of Directors
of the Company determines to be contrary to the best interests of the
Company and its shareholders;
(e) as promptly as practicable after becoming aware of such
event or circumstance, notify each Purchaser of any event or
circumstance of which the Company 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 omits 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 reasonable best efforts
promptly to prepare a supplement or amendment to the Registration
Statement to correct such untrue statement or omission, file such
supplement or amendment with the SEC at such time as shall permit the
Purchasers to sell Registrable Securities pursuant to the Registration
Statement as promptly as practical, and deliver a number of copies of
such supplement or amendment to each Purchaser as such Purchaser may
reasonably request; provided that the parties hereto understand and
agree that if an event or circumstance requiring an amendment of or
supplement to the Registration Statement would require the Company to
file financial statements in order to keep the Registration Statement
current in accordance with Rule 3-05(b)(4) of Regulation S-X, the
Company shall have no more than 75 days to make an appropriate SEC
filing incorporating such financial statements to update the
Registration Statement;
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(f) as promptly as practicable after becoming aware of such
event, notify each Purchaser who holds Registrable Securities being
sold of the issuance by the SEC of any stop order or other suspension
of effectiveness of the Registration Statement at the earliest possible
time;
(g) permit a single firm of counsel designated as selling
shareholders' counsel by the Purchasers who hold a majority in interest
of the Registrable Securities being sold to review and comment on the
Registration Statement and all amendments and supplements thereto a
reasonable period of time prior to their filing with the SEC;
(h) make generally available to its security holders as soon
as practical, 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 the
Company's fiscal quarter next following the effective date of the
Registration Statement;
(i) make available for inspection by any Purchaser, and any
attorney, any underwriter, accountant or other agent retained by any
such Purchaser (collectively, the "Inspectors"), all pertinent
financial and other records, pertinent corporate documents and
properties of the Company (collectively, the "Records"), as shall be
reasonably necessary to enable each Inspector to exercise its due
diligence responsibility, and cause the Company'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 a Purchaser) of any Record or other
information which the Company determines in good faith to be
confidential, and of which determination the Inspectors are so
notified, unless (i) the disclosure of such Records is necessary to
avoid or correct a misstatement or omission in any Registration
Statement, (ii) the release of such Records is ordered pursuant to a
subpoena or other order from a court or government body of competent
jurisdiction or (iii) 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. The Company 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 the Company) with the
Company with respect thereto, substantially in the form of this Section
3(i). Each Purchaser 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 the Company and allow the Company, at the Company's own
expense, to undertake appropriate action to prevent disclosure of, or
to obtain a protective order for, the Records deemed confidential. The
Company shall hold in confidence and shall not make any disclosure of
information concerning a Purchaser provided to the Company pursuant to
Section 4 hereof 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
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any other agreement. The Company agrees that it shall, upon learning
that disclosure of such information concerning a Purchaser is sought in
or by a court or governmental body of competent jurisdiction or through
other means, give prompt notice to such Purchaser, at such Purchaser's
own expense, to undertake appropriate action to prevent disclosure of,
or to obtain a protective order for, such information;
(j) use its reasonable best efforts (i) to cause all the
Registrable Securities covered by the Registration Statement to be
listed on the Nasdaq or such other principal securities market on which
securities of the same class or series issued by the Company are then
listed or traded or (ii) if securities of the same class or series as
the Registrable Securities are not then listed on Nasdaq or any such
other securities market, to cause all of the Registrable Securities
covered by the Registration Statement to be listed on the New York
Stock Exchange, the American Stock Exchange or the Nasdaq National
Market;
(k) provide a transfer agent and registrar, which may be
a single entity, for the Registrable Securities not later than the
effective date of the Registration Statement;
(l) cooperate with the Purchasers who hold Registrable
Securities being offered to facilitate the timely preparation and
delivery of certificates (not bearing any restrictive legends)
representing 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 Purchasers may
reasonably request and registered in such names as the Purchasers may
request; and, within three Trading Days after a Registration Statement
which includes Registrable Securities is ordered effective by the SEC,
the Company shall deliver to the transfer agent for the Registrable
Securities (with copies to the Purchasers whose Registrable Securities
are included in such Registration Statement) an instruction
substantially in the form attached hereto as Exhibit 1 and shall use
all reasonable efforts to cause Xxxxxx & Xxxxxxx, counsel to the
Company, to deliver to the Purchasers an opinion of such counsel in the
form attached hereto as Exhibit 2 (with a copy to the Company's
transfer agent);
(m) during the period the Company is required to maintain
effectiveness of the Registration Statement pursuant to Section 3(a),
the Company shall not bid for or purchase any Common Stock or any right
to purchase Common Stock or attempt to induce any person to purchase
any such security or right if such bid, purchase or attempt would in
any way limit the right of the Purchasers to sell Registrable
Securities by reason of the limitations set forth in Regulation M under
the 1934 Act;
(n) if the registration is an underwritten offering, use all
reasonable efforts to obtain a so-called "comfort" letter from the
Company's independent public accountants in customary form and covering
such matters of the type customarily covered by comfort letters; and
(o) take all other reasonable actions necessary to expedite
and facilitate disposition by the Purchasers of the Registrable
Securities pursuant to the Registration Statement.
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4. Obligations of the Purchasers. In connection with the
registration of the Registrable Securities, the Purchasers shall have the
following obligations:
(a) It shall be a condition precedent to the obligations of
the Company to complete the registration pursuant to this Agreement
with respect to the Registrable Securities of a particular Purchaser
that such Purchaser shall furnish to the Company 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 the Company may reasonably request. At least
ten (10) days prior to the first anticipated filing date of the
Registration Statement, the Company shall notify each Purchaser of the
information the Company requires from each such Purchaser (the
"Requested Information") if any of such Purchaser's Registrable
Securities are eligible for inclusion in the Registration Statement. If
at least one (1) Trading Day prior to the filing date the Company has
not received the Requested Information from a Purchaser (a
"Non-Responsive Purchaser"), then the Company may file the Registration
Statement without including Registrable Securities of such
Non-Responsive Purchaser;
(b) Each Purchaser by such Purchaser's acceptance of the
Registrable Securities agrees to cooperate with the Company as
reasonably requested by the Company in connection with the preparation
and filing of the Registration Statement hereunder, unless such
Purchaser has notified the Company in writing of such Purchaser's
election to exclude all of such Purchaser's Registrable Securities from
the Registration Statement;
(c) Each Purchaser agrees that, upon receipt of any notice
from the Company of the happening of any event of the kind described in
Section 3(e) or 3(f), such Purchaser will immediately discontinue
disposition of Registrable Securities pursuant to the Registration
Statement covering such Registrable Securities until such Purchaser's
receipt of the copies of the supplemented or amended prospectus
contemplated by Section 3(e) or 3(f) and, if so directed by the
Company, such Purchaser shall deliver to the Company (at the expense of
the Company) or destroy (and deliver to the Company a certificate of
destruction) all copies in such Purchaser's possession of the
prospectus covering such Registrable Securities current at the time of
receipt of such notice; and
(d) Each Purchaser agrees that it will not sell Registrable
Securities other than pursuant to an effective registration statement
(or an exemption from registration) and will comply with any applicable
prospectus delivery requirements.
5. Expenses of Registration. All expenses, other than
underwriting discounts and commissions and other fees and expenses of investment
bankers and other than brokerage commissions, incurred in connection with
registrations, filings or qualifications pursuant to Section 3, including,
without limitation, all registration, listing and qualifications fees, printers
and accounting fees and the fees and disbursements of counsel for the Company
and reasonable fees of one firm of counsel for the Purchasers, shall be borne by
the Company.
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6. Indemnification. In the event any Registrable Securities
are included in a Registration Statement under this Agreement:
(a) To the extent permitted by law, the Company will indemnify
and hold harmless each Purchaser who holds such Registrable Securities,
the directors, if any, of such Purchaser, the officers, if any, of such
Purchaser, each person, if any, who controls any Purchaser within the
meaning of the 1933 Act or the 1934 Act (each, an "Indemnified
Person"), against any losses, claims, damages, liabilities or expenses
(joint or several) incurred (collectively, "Claims") to which any of
them may become subject under the 1933 Act, the 1934 Act or otherwise,
insofar as such Claims (or actions or proceedings, whether commenced or
threatened, in respect thereof) arise out of or are based upon any of
the following statements, omissions or violations in the Registration
Statement, or any post-effective amendment thereof, or any prospectus
included therein: (i) any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or any
post-effective amendment thereof or 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, (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 the Company 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 the Company of the 1933 Act, the 1934
Act, any state securities law or any rule or regulation under the 1933
Act, the 1934 Act or any state securities law (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, the Company shall reimburse the Purchasers
and each such controlling person, promptly as such expenses are
incurred and are due and payable, for any legal fees or other
reasonable expenses incurred by them in connection with 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 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 the Company by any Indemnified
Person expressly for use in connection with the preparation of the
Registration Statement, the prospectus or any such amendment thereof or
supplement thereto, if such prospectus was timely made available by the
Company pursuant to Section 3(c) hereof; (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, if such
prospectus was timely made available by the Company pursuant to Section
3(c) hereof; and (III) shall not apply to amounts paid in settlement of
any Claim if such settlement is effected without the prior written
consent of the Company, 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 Purchasers pursuant to Section 9.
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(b) In connection with any Registration Statement in which a
Purchaser is participating, each such Purchaser agrees to indemnify and
hold harmless, to the same extent and in the same manner set forth in
Section 6(a), the Company, each of its directors, each of its officers
who signs the Registration Statement, each person, if any, who controls
the Company within the meaning of the 1933 Act or the 1934 Act, any
underwriter and any other shareholder selling securities pursuant to
the Registration Statement or any of its directors or officers or any
person who controls such shareholder 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 the Company by such Purchaser expressly for
use in connection with such Registration Statement; and such Purchaser
will reimburse any legal or other expenses reasonably incurred by any
Indemnified Party 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 Purchaser, which consent shall not be unreasonably
withheld; provided, further, however, that the Purchaser shall be
liable under this Section 6(b) for only that amount of a Claim as does
not exceed the amount by which the net proceeds to such Purchaser from
the sale of Registrable Securities pursuant to such Registration
Statement exceeds the cost of such Registrable Securities to such
Purchaser. 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 rights to have
the Company register Registrable Securities 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
contained in the preliminary prospectus was corrected on a timely basis
in the prospectus, as then amended or supplemented, and such
Indemnified Party failed to satisfy an obligation to deliver such final
prospectus.
(c) The Company shall be entitled to receive indemnities from
underwriters, selling brokers, dealer managers and similar securities
industry professionals participating in any distribution, to the same
extent as provided above, with respect to information so furnished in
writing by such persons expressly for inclusion in the Registration
Statement.
(d) 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 to be 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 selected by the indemnifying party but reasonably
acceptable to 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 reasonable fees and
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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. In such event, the Company shall pay for only one
separate legal counsel for the Purchasers; such legal counsel shall be
selected by the Purchasers holding a majority in interest of the
Registrable Securities included in the Registration Statement to which
the Claim relates. 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 (a) 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, (b) 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 (c) contribution by any seller of Registrable Securities shall be limited in
amount to the amount by which the net amount of proceeds received by such seller
from the sale of such Registrable Securities exceeds the purchase price paid by
such seller for such Registrable Securities.
8. Reports under 1934 Act. With a view to making available to
the Purchasers the benefits of Rule 144, the Company agrees to:
(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 the Company under the 1933 Act and the 1934 Act;
and
(c) furnish to each Purchaser so long as such Purchaser owns
Registrable Securities, promptly upon request, (i) a written statement
by the Company that it has complied with the reporting requirements of
Rule 144 and the 1934 Act, (ii) a copy of the most recent annual or
quarterly report of the Company and such other reports and documents so
filed by the Company and (iii) such other information as may be
reasonably requested to permit the Purchasers to sell such securities
pursuant to Rule 144 without registration.
9. Assignment of Registration Rights. The rights to have the
Company register Registrable Securities pursuant to this Agreement shall be
automatically assigned by the Purchasers
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to any permitted transferee of all or any portion of such securities (or all or
any portion of the Warrants) only if: (a) the Purchaser agrees in writing with
the permitted transferee to assign such rights, and a copy of such agreement is
furnished to the Company within a reasonable time after such assignment, (b) the
Company is, within a reasonable time after such transfer or assignment,
furnished with written notice of (i) the name and address of such permitted
transferee and (ii) the securities with respect to which such registration
rights are being transferred or assigned, (c) immediately following such
transfer or assignment the further disposition of such securities by the
permitted transferee is restricted under the 1933 Act and applicable state
securities laws, and (d) at or before the time the Company receives the written
notice contemplated by clause (b) of this sentence the permitted transferee
agrees in writing with the Company to be bound by all of the provisions
contained herein. In connection with any such transfer the Company shall, at its
sole cost and expense, promptly after such assignment take such reasonable
actions as shall be reasonably acceptable to the Purchasers and such permitted
transferee to assure that the Registration Statement and related prospectus are
available for use by such permitted transferee for sales of the Registrable
Securities in respect of which the rights to registration have been so assigned.
10. Amendment of Registration Rights. Any provision 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 the Company and Purchasers who
hold a majority in interest of the Registrable Securities. Any amendment or
waiver effected in- accordance with this Section 10 shall be binding upon each
Purchaser and the Company.
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 the Company receives conflicting instructions, notices or
elections from two or more persons or entities with respect to the same
Registrable Securities, the Company shall act upon the basis of instructions,
notice or election received from the registered owner of such Registrable
Securities.
(b) Notices required or permitted to be given hereunder shall
be in writing and shall be deemed to be sufficiently given when personally
delivered (by hand, by courier, by telephone line facsimile transmission or
other means) (i) if to the Company, at 00000 Xx Xxxxxx Xxxx, Xxxxx 000, Xxx
Xxxxx, Xxxxxxxxxx 00000, Attention: Legal Department, (ii) if to the Purchasers,
c/o CIBC Capital Partners, 000 Xxxxxxxxx Xxx., Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxxx Phoenix and Whitney & Co. LLC, 000 Xxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxxxxx 00000, Attention: Xxxxxx X. X'Xxxxx and (iii) if to any other
Purchaser, at such address as such Purchaser shall have provided in writing to
the Company, or at such other address as each such party furnishes by notice
given in accordance with this Section 11(b).
(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 New York applicable to
agreements made and to be performed entirely
-14-
within such State. 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 constitutes the entire agreement among the
parties hereto with respect to the subject matter hereof. There are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein. This Agreement supersedes all prior agreements and
understandings among the parties hereto with respect to the subject matter
hereof.
(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) All pronouns and any variations thereof refer to the
masculine, feminine or neuter, singular or plural, as the context may require.
(h) The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) The Company acknowledges that any failure by the Company
to perform its obligations under this Agreement, including, without limitation,
the Company's obligations under Section 3(l), or any delay in such performance
could result in damages to the Purchasers and the Company agrees that, in
addition to any other liability the Company may have by reason of any such
failure or delay, the Company shall be liable for all direct and consequential
damages caused by any such failure or delay.
(j) This Agreement may be executed in two or more
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 telephone line facsimile
transmission of a copy of this Agreement bearing the signature of the party so
delivering this Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed by their respective officers thereunto duly authorized as of
day and year first above written.
WOMEN FIRST HEALTHCARE, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Chief Financial Officer
-16-
IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed by their respective officers thereunto duly authorized as of
day and year first above written.
CIBC WMC INC.
By: /s/ X. Xxxxxxx
--------------------------------------------
Name: Xxxx Xxxxxxx
Title: Managing Director
-17-
IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed by their respective officers thereunto duly authorized as of
day and year first above written.
WHITNEY PRIVATE DEBT FUND
By: Whitney Private Debt GP, LLC
its General Partner
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Attorney-in-Fact
X.X.XXXXXXX MEZZANINE FUND, L.P.
By: Xxxxxxx XX, L.L.C.
its General Partner
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Attorney-in-Fact
