EXHIBIT 10.19
REGISTRATION RIGHTS AGREEMENT
BY AND AMONG
TRANSWORLD HEALTHCARE, INC.,
AND
THE HOLDERS NAMED HEREIN
DATED AS OF ____________, 2002
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is entered into
as of __________, 2002 by and among Transworld Healthcare, Inc., a New York
corporation ("TWUS"), the holders of ordinary shares of Transworld Healthcare
(UK) Limited, a company incorporated in England and Wales with registered number
3370146 ("TWUK"), named in Exhibit A attached hereto (the "Ordinary
Shareholders," and each individually, an "Ordinary Shareholder"), Triumph
Partners III, L.P. and Triumph III Investors, L.P. (together "Triumph"), the
holders of redeemable shares of TWUK named in Exhibit B attached hereto (the
"Redeemable Shareholders," and, each individually, a "Redeemable Shareholder"),
the holders of equity warrants of TWUK named in Exhibit C attached hereto (the
"Equity Warrant Holders," and each individually, an "Equity Warrant Holder"),
the holders of mezzanine warrants of TWUK named in Exhibit D attached hereto
(the "Mezzanine Warrant Holders," and each individually, a "Mezzanine Warrant
Holder"), Hyperion Partners II L.P., Hyperion TW Fund L.P., Hyperion TWH Fund
LLC, and Hyperion TWH Fund II LLC (collectively, "Hyperion") and Xxxxxxx X.
Xxxxxx and Xxxxx X. Xxxxx (together, the "Employees"). The Ordinary
Shareholders, Triumph, the Redeemable Shareholders, the Equity Warrant Holders
and the Mezzanine Warrant Holders shall be referred to collectively herein as
the "Investors." The Investors, Hyperion, Triumph and the Employees
collectively, the "Holders" and individually a "Holder."
RECITALS
WHEREAS, the Investors are to receive an aggregate of up to
[__________] shares (the "Investor Shares") of TWUS common stock, par value $.01
per share ("TWUS Common Stock"), and the Equity Warrant Holders are to receive
an aggregate of up to [_________] shares of TWUS preferred stock, par value $.01
per share ("TWUS Preferred Stock"), which is convertible into up to [__________]
shares of common stock of TWUS (the "Conversion Shares"), pursuant to the terms
of that certain Master Reorganization Agreement, dated as of April 24, 2002 by
and among TWUS, TWUK, Allied Healthcare Group (UK) Ltd., a company incorporated
in England and Wales with registered number 3890177 ("AHG," and, together with
TWUS and TWUK, the "Corporate Group") and the Investors (the "Reorganization
Agreement");
WHEREAS, dividends on the TWUS Preferred Stock may under certain
circumstances be paid through the delivery of additional shares of TWUS Common
Stock (the "Dividend Shares");
WHEREAS, it is a condition to the obligations of the Investors that
TWUS grant certain registration rights to the Investors with respect to the
Investor Shares, the Conversion Shares and the Dividend Shares to be received by
the Investors;
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WHEREAS, TWUS has agreed to grant certain registration rights to
Hyperion in connection with the shares of TWUS Common Stock held by Hyperion as
of the date hereof (the "Hyperion Shares");
WHEREAS, TWUS has agreed to grant certain registration rights to
Triumph in connection with the 370,500 shares of TWUS Common Stock purchased by
Triumph Partners III, L.P. on April 22, 2002 and the 4,500 shares of TWUS Common
Stock purchased by Triumph III Investors, L.P. on April 22, 2002 (together, the
"Triumph Shares");
WHEREAS, TWUS has agreed to grant certain registration rights to the
Employees in connection with the 684,258 shares of TWUS Common Stock issued to
Xxxxxxx Xxxxxx on April 22, 2002 and the 487,099 shares of TWUS Common Stock
issued to Xxxxx Xxxxx on April 22, 2002 (the "Compensatory Shares");
NOW, THEREFORE, in consideration of the foregoing, the mutual promises
and agreements set forth herein, and other valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto hereby
agree as follows:
1. Certain Definitions.
As used in this Agreement, the following terms shall have the following
respective meanings:
"Affiliate" of a Person shall mean any person or entity which directly
or indirectly controls, is controlled by, or is under common control with such
person or entity.
"Affiliate Registration Statement" shall have the meaning set forth in
Section 2(b) hereof.
"Agreement" shall have the meaning set forth in the preamble hereof.
"AHG" shall have the meaning set forth in the recitals hereof.
"AMEX" shall have the meaning set forth in Section 4 hereof.
"Arbitrator" shall have the meaning set forth in Section 17(a) hereof.
"Closing" shall have the meaning ascribed thereto in the Reorganization
Agreement.
"Commission" shall mean the United States Securities and Exchange
Commission, or any other federal agency administering the Securities Act and the
Exchange Act at the time.
"Compensatory Shares" shall have the meaning set forth in the recitals
hereof.
"Conversion Shares" shall have the meaning set forth in the recitals
hereof.
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"Corporate Group" shall have the meaning set forth in the recitals
hereof.
"Demand Notice" shall have the meaning set forth in Section 2(d)
hereof.
"Demand Registration" shall have the meaning set forth in Section 2(d)
hereof.
"Dividend Shares" shall have the meaning set forth in the recitals
hereof.
"Employees" shall have the meaning set forth in the recitals hereof.
"Equity Warrant Holder(s)" shall have the meaning set forth in the
preamble hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time, or any similar successor federal statute, and the
rules and regulations promulgated thereunder.
"Fair Market Value" shall mean the closing sales price, or the closing
sales bid if no sales were reported, of the TWUS Common Stock as quoted on AMEX
on the date immediately preceding the date of calculation or if there are no
sales or bids for such date, then for the last preceding business day for such
sales or bids, as reported in The Wall Street Journal or similar publication.
"Holder(s)" shall have the meaning set forth in the preamble hereof.
"Hyperion" shall have the meaning set forth in the preamble hereof.
"Hyperion Shares" shall have the meaning set forth in the recitals
hereof.
"Indemnified Person" shall have the meaning set forth in Sections 6(a)
and 6(b) hereof.
"Indemnifying Person" shall have the meaning set forth in Section 6(d)
hereof.
"Indemnitee" shall have the meaning set forth in Section 6 hereof.
"Inspectors" shall have the meaning set forth in Section 3(k) hereof.
"Investors" shall have the meaning set forth in the preamble hereof.
"Investors' Shares" shall have the meaning set forth in the recitals
hereof.
"Liability" shall have the meaning set forth in Section 6(a) hereof.
"Majority in Interest" shall mean, with respect to the registrations
subject to Section 2(a) (or a demand registration in lieu thereof), the meaning
ascribed thereto in the Reorganization
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Agreement and, with respect to any other registrations a majority of the
Registrable Shares proposed to be registered under such Registration Satement.
"Mezzanine Warrant Holder(s)" shall have the meaning set forth in the
preamble hereof.
"NASD" shall have the meaning set forth in the Section 3(q) hereof.
"Offering Blackout Period" shall have the meaning set forth in the
Section 10(c) hereof.
"Ordinary Shareholder(s)" shall have the meaning set forth in the
preamble hereof.
"Person" shall mean an individual, a corporation, a partnership, a
joint venture, a trust, an unincorporated organization, a limited liability
company or partnership, a government and any agency or political subdivision
thereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, as amended or supplemented by
any prospectus supplement with respect to the terms of the offering of any
portion of the Registrable Shares covered by such Registration Statement, and by
all other amendments and supplements to such prospectus, including
post-effective amendments, and in each case including all material incorporated
by reference therein.
"Qualified Offering" shall have the meaning set forth in Section
2(e)(ii) hereof.
"Records" shall have the meaning set forth in Section 3(k) hereof
"Redeemable Shareholder(s)" shall have the meaning set forth in the
preamble hereof.
"Registrable Shares" shall mean the Shares, excluding (i) Shares for
which a Registration Statement relating to the resale thereof by the holder
thereof shall have become effective under the Securities Act and which have been
disposed of under such Registration Statement, (ii) Shares actually sold
pursuant to Rule 144, or (iii) Shares eligible for sale pursuant to Rule 144(k)
(or any successor provision).
"Registration Expenses" shall mean the expenses so described in Section
5 hereof.
"Registration Statement" shall mean any registration statement of TWUS
which covers the offer and sale of any of the Registrable Shares under the
Securities Act on an appropriate form, and all amendments and supplements to
such registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
materials incorporated by reference therein.
"Reorganization" shall have the meaning set forth in Section 2(a)
hereof.
"Reorganization Agreement" shall have the meaning set forth in the
recitals hereof.
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"Resale Registration Statement" shall have the meaning set forth in
Section 2(a) hereof.
"Rule 144" means Rule 144 under the Securities Act (or any successor
provision).
"Securities Act" shall mean the Securities Act of 1933, as amended from
time to time, or any similar successor federal statute, and the rules and
regulations of the Commission thereunder.
"Shares" shall mean collectively the Investors' Shares, the Conversion
Shares, the Dividend Shares, the Hyperion Shares, the Compensatory Shares and
the Triumph Shares.
"Suspension Event" shall have the meaning set forth in Section 10(b)
hereof.
"Triumph" shall have the meaning set forth in the preamble hereof.
"Triumph Shares" shall have the meaning set forth in the recitals
hereof.
"TWUK" shall have the meaning set forth in the preamble hereof.
"TWUS" shall have the meaning set forth in the preamble hereof.
"TWUS Common Stock" shall have the meaning set forth in the recitals
hereof.
"TWUS Offering" shall have the meaning set forth in the Section 10(c)
hereof.
"TWUS Preferred Stock" shall have the meaning set forth in the recitals
hereof.
All other capitalized terms not defined herein shall have the meaning
set forth in the Reorganization Agreement unless otherwise indicated.
2. Registration.
(a) Amendment of Registration Statement. Subject to the provisions
of Section 2(c) below, TWUS shall (i) originally file with the Commission its
Registration Statement on Form S-4 covering the issuance of Shares in the
reorganization of the Corporate Group pursuant to which TWUK will become a
wholly-owned subsidiary of AHG, which is a wholly-owned subsidiary of TWUS (the
"Reorganization"), to also serve after the consummation of the Reorganization as
a resale registration statement under Rule 415 covering the sale by the
Investors of all or any portion of their Registrable Shares (other than the
Compensatory Shares and the Triumph Shares), or (ii) if TWUS is unable to comply
with clause (i) above for any reason, prepare and file a resale registration
statement on Form S-3, or such other applicable forms, with the Commission,
under Rule 415 under the Securities Act, covering the sale by the Investors of
all or any portion of their Registrable Shares in accordance with the terms
hereof
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(each of the registration statement(s) described in clauses (i) and (ii) above
hereafter a "Resale Registration Statement"). A filing described in clause (ii)
above shall be made on a date reasonably designed to allow TWUS to have such
Registration Statement declared effective by the date of the Closing of the
Reorganization, but in any event such Resale Registration Statement shall be
declared effective not later than thirty (30) calendar days after the Closing of
the Reorganization. TWUS shall use its reasonable best efforts to cause the
Resale Registration Statement to be declared effective by the Commission for all
of the Registrable Shares covered thereby by the earliest practicable date after
filing with the Commission. In the event that TWUS is unable to cause such
Resale Registration Statement to be declared effective by the Commission within
thirty (30) calendar days following the Closing of the Reorganization, then the
provisions of Section 2(c) shall apply. TWUS agrees to use its reasonable
efforts to keep the Resale Registration Statement continuously effective until
no shares of TWUS Preferred Stock remain outstanding and no Investors' Shares,
Conversion Shares or Dividend Shares that constitute Registrable Shares remain
outstanding. In the event that a Person not named in a Resale Registration
Statement as a potential selling stockholder becomes a Holder of Registrable
Shares, TWUS will make such changes to the then effective Resale Registration
Statement as are necessary to include such Person as a potential selling
stockholder with respect to its Registrable Shares under the Resale Registration
Statement, unless the inclusion of such Person is prohibited by the Commission
or applicable law.
(b) Registration Statement Covering Resale of Hyperion Shares,
Compensatory Shares and Triumph Shares. TWUS shall prepare and file a
registration statement on Form S-3 (the "Affiliate Registration Statement"), or
such other applicable forms, with the Commission, under Rule 415 under the
Securities Act, in connection with the sale by Hyperion, the Employees and
Triumph at the time of such filing of all of the Hyperion Shares, the
Compensatory Shares and the Triumph Shares in accordance with the terms hereof
(and, in the event that a Person not named in an Affiliate Registration
Statement as a potential selling stockholder becomes a Holder of Hyperion
Shares, Compensatory Shares or Triumph Shares, TWUS will make such changes to
the then effective Affiliate Registration Statement as are necessary to include
such Person as a potential selling stockholder with respect to its Hyperion
Shares, Compensatory Shares or Triumph Shares under the Affiliate Registration
Statement, unless the inclusion of such Person is prohibited by the Commission
or applicable law), such filing to be made on a date reasonably designed to
allow TWUS to have such Affiliate Registration Statement declared effective by
the date of the Closing of the Reorganization, but in any event such Affiliate
Registration Statement shall be declared effective not later than thirty (30)
calendar days after the Closing of the Reorganization. TWUS shall use its
reasonable best efforts to cause the Affiliate Registration Statement to be
declared effective by the Commission for all of the Registrable Shares covered
thereby by the earliest practicable date after filing with the Commission. In
the event that TWUS is unable to cause such Affiliate Registration Statement to
be declared effective by the Commission within thirty (30) calendar days
following the Closing of the Reorganization, then the provisions of Section 2(c)
shall apply. TWUS agrees to use its reasonable efforts to keep the Affiliate
Registration Statement continuously effective until no Hyperion Shares,
Compensatory Shares or Triumph Shares that constitute Registrable Shares remain
outstanding.
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(c) Demand Registration. In the event that, for any reason, TWUS
is unable to cause a Resale Registration Statement or an Affiliate Registration
Statement to be declared effective by the Commission within thirty (30) days
following the Closing of the Reorganization or is unable or it is impracticable
to keep such Resale Registration Statement or Affiliate Registration Statement
continuously effective for the period set forth in Section 2(a) or 2(b), as
applicable, TWUS shall, within ten (10) days after TWUS makes such determination
or such shorter period as the Commission may provide to TWUS in the event such
event involves an action or determination by the Commission (in which case TWUS
shall immediately forward to the Investors, Hyperion, Triumph and the Employees
copies of all relevant correspondence to and from the Commission), give notice
to the Investors, Hyperion, Triumph and the Employees, as the case may be, of
such fact and of the circumstances giving rise to such inability or
impracticability, so as to enable the Investors, Hyperion, Triumph and the
Employees to exercise their rights as set for in this Section 2(c). At any time
any shares of TWUS Preferred Stock or Registrable Shares are outstanding and a
Resale Registration Statement or an Affiliate Registration Statement, as
applicable, covering the resale of their respective Registrable Shares is not
effective, TWUS shall, at the written request of any Investor, Hyperion, Triumph
or the Employees, as the case may be (a "Demand Notice"), cause to be filed as
soon as practicable after the date of such request a Registration Statement in
accordance with Rule 415 under the Securities Act (or such other rule as is
applicable to the proposed sale) relating to the resale by such Investor,
Hyperion, Triumph or the Employees of all or any portion of the Registrable
Shares held by such Investor (including Conversion Shares and/or Dividend Shares
issuable to such Investor), Hyperion, Triumph or the Employees in accordance
with the terms hereof, and shall use its reasonable best efforts to cause such
Registration Statement to be declared effective by the Commission as soon as
practicable thereafter (a "Demand Registration"); provided, however, that TWUS
shall not be required to file such Registration Statement unless the number of
Registrable Shares included in such Demand Notice have a Fair Market Value in
excess of $1,000,000. TWUS agrees to use its reasonable best efforts to keep the
Demand Registration continuously effective, after its date of effectiveness,
with respect to the Registrable Shares of the requesting Investor, Hyperion,
Triumph or the Employees until the date on which such Investor, Hyperion,
Triumph or the Employees no longer holds any Registrable Shares.
(d) Underwritten Offering.
(i) If one or more Holders shall propose to sell Registrable
Shares in an underwritten offering pursuant to a Registration
Statement filed under Section 2 hereof, such Holders shall be
entitled to select one (1) lead underwriter for such offering
(selected by a Majority in Interest of the Holders of the
Registrable Shares proposed to be included in such underwritten
offering), which selection shall be subject to the reasonable
approval of TWUS. At TWUS' option, following such selection and
approval of a lead underwriter by the Holders, TWUS shall be
entitled to select a co-lead underwriter with respect to such
underwritten offering (and both such underwriters shall
accordingly be co-leads; provided that the underwriter designated
by the Holders shall be responsible for maintaining the order book
with respect to such offering).
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(ii) If one or more Holders propose to sell in an
underwritten offering Registrable Shares which have an aggregate
Fair Market Value of $5,000,000 or more (a "Qualified Offering"),
then TWUS shall make available members of the management of TWUS
and its Affiliates for reasonable assistance in selling efforts
related to such offering (including, without limitation, senior
management attendance at due diligence meetings with underwriters
and their counsel and road shows) and shall enter into
underwriting agreements containing usual and customary terms and
conditions for such types of offerings (including, but not limited
to, indemnification terms customary therein) and take all such
other reasonable actions in connection therewith in order to
expedite or facilitate the disposition of such Registrable Shares,
including without limitation: (A) make such representations and
warranties to the underwriters with respect to the business of
TWUS, the Registration Statement, the Prospectus and any
documents, if any, incorporated or deemed to be incorporated by
reference therein, as may reasonably be required by the
underwriters; (B) obtain opinions of counsel to TWUS and updates
thereof, addressed to the Holders and each of the underwriters;
(C) obtain "cold comfort" letters and updates thereof from the
independent certified public accountants of TWUS addressed to the
Holders and each of the underwriters; (D) ensure that, if an
underwriting agreement is entered into, such agreement shall
contain indemnification provisions and procedures that are usual
and customary for an offering of such size; and (E) deliver such
documents and certificates as may be reasonably requested by the
underwriters and their respective counsel to evidence the
continued validity of the representations and warranties made
pursuant to clause (A) of this Section 2(d)(ii).
3. Registration Procedures. When TWUS is required pursuant to the
provisions of this Agreement to effect the registration of any of the Shares
under the Securities Act, TWUS will:
(a) prepare and file with the Commission a Registration Statement
on the appropriate form under the Securities Act with respect to such
securities, which form shall comply in all material respects with the
requirements of the applicable form and include all financial statements
required by the Commission to be filed therewith, and use its reasonable best
efforts to cause such Registration Statement to become and remain effective
until completion of the proposed offering;
(b) prepare and file with the Commission such amendments and
supplements to such Registration Statement and the Prospectus used in connection
therewith as may be necessary to keep such Registration Statement effective
until the Holders shall have completed the sales described in such Registration
Statement and to comply with the provisions of the Securities Act with respect
to the sale or other disposition of all securities covered by such
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Registration Statement whenever the seller or sellers of such securities shall
desire to sell or otherwise dispose of the same, but only to the extent provided
in this Agreement
(c) furnish to the Holders and the underwriters, if any, such
number of copies of any Registration Statement, any amendments thereto, any
documents incorporated by reference therein, the Prospectus, including a
preliminary prospectus in conformity with the requirements of the Securities
Act, and such other documents as the Holders or underwriters may reasonably
request in order to facilitate the public sale or other disposition of the
Shares owned by the Holders or underwriters;
(d) file and use its reasonable best efforts to register or
qualify the Shares covered by such Registration Statement under such other
securities or state securities or "blue sky" laws of such jurisdictions as the
Holders shall request, and do any and all other acts and things that may be
necessary under such state securities or "blue sky" laws to enable the Holders
to consummate the public sale or other disposition in such jurisdictions of the
Shares owned by such Holder, except that TWUS shall not for any such purpose be
required to qualify to do business as a foreign corporation in any jurisdiction
wherein it is not so qualified;
(e) within a reasonable time before each filing of a Registration
Statement or Prospectus or amendments or supplements thereto with the
Commission, furnish to counsel selected by the Holders of a Majority in Interest
of the Registrable Shares participating in such registration, copies of such
documents proposed to be filed, which documents shall be subject to the approval
of such counsel;
(f) immediately notify the Holders, their respective counsel and
any underwriter and (if requested by any such Person) confirm such notice in
writing, of the happening of any event which makes any statement made in a
Registration Statement or related Prospectus untrue or that requires the making
of any changes in such Registration Statement or Prospectus so that they will
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein in the light of the circumstances under which they were made not
misleading; and, as promptly as practicable thereafter, prepare and file with
the Commission and furnish a supplement or amendment to such Registration
Statement or Prospectus so that, as thereafter deliverable to the purchasers of
such Registrable Shares, such Registration Statement or Prospectus will not
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(g) make generally available to the Holders an earnings statement
satisfying the provisions of Section 11(a) of the Securities Act no later than
sixty (60) days after the end of the 12-month period beginning with the first
day of TWUS' first fiscal quarter commencing after
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the effective date of a Registration Statement, which earnings statement shall
cover said 12-month period, and which requirement will be deemed to be satisfied
if TWUS satisfies the requirements of Rule 158 under the Securities Act and
otherwise complies with all applicable rules and regulations of the Commission;
(h) use its reasonable best efforts to prevent the issuance of any
order suspending the effectiveness of a Registration Statement, and if one is
issued, use its reasonable best efforts to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement at the earliest
possible moment; provided, however, that TWUS may postpone the filing or
effectiveness of any Registration Statement required to be filed hereunder for a
reasonable period of time, not to exceed ninety (90) days in the aggregate
during any 12-month period, if the TWUS has been advised by legal counsel that
such filing or effectiveness would require a special audit or the disclosure of
a material impending transaction or other matter and TWUS' Board of Directors
determines reasonably and in good faith that such disclosure would have a
material adverse effect on TWUS;
(i) use its reasonable best efforts to cause, to the extent
applicable, the Registrable Shares covered by a Registration Statement to be
registered with or approved by such other governmental agencies or authorities
and to obtain such approvals, consents and make such filings as may be necessary
by virtue of the business and operations of TWUS to enable the Holders to
consummate the disposition of such Registrable Shares in accordance with their
intended method of distribution thereof;
(j) if requested by the managing underwriter or underwriters (if
any), a Holder or their respective counsel, promptly incorporate into a
Prospectus supplement or post-effective amendment such information as such
Person requests to be included therein, including, without limitation, with
respect to the Shares being sold by such Holder to such underwriter or
underwriters, the purchase price being paid therefor by such underwriter or
underwriters and any other terms of an underwritten offering of the Shares to be
sold in such offering, and promptly make all required filings of such prospectus
supplement or post-effective amendment;
(k) subject to appropriate confidentiality agreements, make
available to each Holder, any underwriter participating in any disposition
pursuant to a Registration Statement, and any attorney, accountant or other
agent or representative retained by any such Holder or underwriter
(collectively, the "Inspectors"), all financial and other records, pertinent
corporate documents and properties of TWUS (collectively, the "Records")
reasonably necessary to enable them to exercise their due diligence
responsibility, and cause TWUS' officers, directors and employees to supply all
information requested by any such Inspector in connection with such Registration
Statement;
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(l) enter into such customary agreements (including, if
applicable, an underwriting agreement in customary form) and take such other
actions as the Holders or the underwriters retained by the Holders participating
in an underwritten public offering, if any, may reasonably request in order to
expedite or facilitate the disposition of Registrable Shares (and the Holders
may, at their option, require that any or all of the representations, warranties
and covenants of TWUS to or for the benefit of any underwriters also be made to
and for the benefit of the Holders);
(m) furnish to each prospective selling Holder a signed
counterpart, addressed to the prospective selling Holder, of (i) an opinion of
counsel for TWUS, dated the effective date of the Registration Statement, and
(ii) a "comfort" letter signed by the independent public accountants who have
certified TWUS' financial statements included in the Registration Statement,
covering substantially the same matters with respect to the Registration
Statement (and the Prospectus included therein) and (in the case of the
accountants' letter) with respect to events subsequent to the date of the
financial statements, as are customarily covered (at the time of such
registration) in opinions of TWUS' counsel and in accountants' letters delivered
to the underwriters in underwritten public offerings of securities;
(n) cause the Shares covered by such Registration Statement to be
listed on the national securities exchange or quoted on the quotation system on
which the TWUS Common Stock is then listed or quoted;
(o) in connection with an underwritten offering, participate, to
the extent reasonably requested by the managing underwriter for the offering or
the Holders, in customary efforts to sell the Shares being offered, and cause
such steps to be taken as to ensure such good faith participation of senior
management officers of TWUS in "road shows" as is customary;
(p) if the Registrable Shares are of a class of securities that is
listed on a national securities exchange, file copies of any Prospectus with
such exchange in compliance with Rule 153 under the Securities Act so that the
holders of Registrable Shares benefit from the Prospectus delivery procedures
described therein;
(q) cooperate with each Holder and each underwriter participating
in the disposition of Registrable Shares and their respective counsel in
connection with any filings required to be made with the National Association of
Securities Dealers, Inc. ("NASD"), including, if appropriate, the pre-filing of
a Prospectus as part of a shelf registration statement in advance of an
underwritten offering;
(r) otherwise cooperate with the underwriter(s), the Commission
and other regulatory agencies and take all actions and execute and deliver or
cause to be executed and
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delivered all documents necessary to effect the registration and sale of any
Registrable Shares under this Agreement;
(s) correct any deficiency (in the judgment of either TWUS or the
Holders of Registrable Shares acting reasonably) between the preliminary
Prospectus and the final Prospectus, and pay any expenses associated with the
recirculation of the final Prospectus following the correction of such
deficiency, if required;
(t) during the period when the Prospectus is required to be
delivered under the Securities Act, promptly file all documents required to be
filed with the Commission, including pursuant to Sections 13(a), 13(c), 14, or
15(d) of the Exchange Act; and
(u) provide a transfer agent and registrar for all Registrable
Shares registered pursuant hereunder and a CUSIP number for all such Registrable
Shares, in each case no later than the effective date of such registration.
If any Registration Statement refers to any Holder by name or otherwise
as the holder of any securities of TWUS, then such Holder shall have the right
to require (i) the insertion therein of language, in form and substance
reasonably satisfactory to such Holder, to the effect that the holding by such
Holder of such securities is not to be construed as a recommendation by such
Holder of the investment quality of TWUS' securities covered thereby and that
such holding does not imply that such Holder will assist in meeting any future
financial requirements of TWUS, or (ii) in the event that such reference to such
Holder by name or otherwise is not required by the Securities Act or any similar
Federal or state securities or "blue sky" statute and the rules and regulations
thereunder then in force, deletion of the reference to such Holder.
4. Listing. TWUS will use reasonable efforts to cause all Registrable
Shares to be listed or otherwise eligible for full trading privileges on the
principal national securities exchange (currently the American Stock Exchange
("AMEX")) on which the TWUS Common Stock are then listed, in each case not later
than the date on which a Registration Statement covering the Registrable Shares
becomes effective or the Registrable Shares are issued by TWUS to a Holder,
whichever is later. TWUS will use reasonable efforts to continue the listing or
trading privilege for all Registrable Shares on such exchange. TWUS will
promptly notify the Holders of, and confirm in writing, the delisting of TWUS
Common Stock by such exchange.
5. Expenses. All expenses incurred by TWUS or the Holders in effecting
the registrations provided for in Section 2, including, without limitation, all
registration and filing fees, printing expenses, fees and disbursements of
counsel for TWUS and of a single counsel for the Holders participating in such
registration as a group (selected by, in the case of a registration under
Section 2(c), the Holders of a Majority in Interest of the Registrable Shares
who initiate the registration under such Section 2(c), and, in the case of all
other registrations hereunder, the
12
Holders of a Majority in Interest of the Registrable Shares participating in the
registration), expenses of any audits incident to or required by any such
registration and expenses of complying with the state securities or "blue sky"
laws of any jurisdictions (all of such expenses referred to as "Registration
Expenses"), shall be paid by TWUS whether or not the registration statement to
which such Registration Expenses relate becomes effective.
6. Indemnification.
(a) TWUS shall indemnify and hold harmless each selling Holder of
Registrable Shares, and directors, officers, partners, shareholders, members,
employees and agents of any of them, and each Person who participates in the
offering of such securities and each Affiliate of such seller or participating
Person (individually and collectively, the "Indemnified Person") against any
losses, claims, damages or liabilities, including reasonable legal fees,
disbursements and expenses of counsel (including any such fees, disbursements
and expenses incurred as a result of a third party action or as a result of the
Indemnified Person enforcing its rights under this Section 6(a) against TWUS)
(collectively, "Liability"), joint or several, to which such Indemnified Person
may become subject under the Securities Act or any other statute or at common
law, insofar as the Liability (or action in respect thereof) arises out of, is
based upon or relates to (i) any untrue statement or alleged untrue statement of
any material fact contained, on the effective date thereof, in any Registration
Statement under which such securities were registered under the Securities Act,
any preliminary Prospectus or final Prospectus contained therein, or any
amendment or supplement thereto, (ii) any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, or (iii) any violation or alleged violation
by TWUS of the Securities Act, any state securities or "blue sky" laws or any
sale or regulation thereunder in connection with such registration. Except as
otherwise provided in Section 6(c), TWUS shall reimburse each such Indemnified
Person for all reasonable legal and other expenses incurred in connection with
investigating or defending any Liability; provided, however, that TWUS shall not
be liable to any Indemnified Person in any such case to the extent that the
Liability arises out of, is based upon or relates to any untrue statement or
alleged untrue statement or omission or alleged omission made in such
Registration Statement, preliminary or final Prospectus, or amendment or
supplement thereto in reliance upon and in conformity with information furnished
in writing to TWUS by such Person specifically for use therein; and provided
further, that TWUS shall not be required to indemnify any Person against
Liability that arises out of the failure of any Person to deliver a Prospectus
as required by the Securities Act regardless of any investigation made by or on
behalf of such Indemnified Person and TWUS' indemnification obligations shall
survive transfer of such securities by such seller.
(b) Each Holder of Registrable Shares holding any securities
included in such registration being effected shall indemnify and hold harmless
each other selling Holder of Registrable Shares (including to the extent
applicable its partners, members and shareholders (including partners of
partners and shareholders of such partners)), TWUS, and directors, officers,
employees and agents of each of them, and each Affiliate of such seller and
directors,
13
officers, employees and agents of any of them (individually and collectively
also the "Indemnified Person"), against any liability, joint or several, to
which the Indemnified Person may become subject under the Securities Act or any
other statute or at common law, insofar as such liability (or actions in respect
thereof) arises out of or is based upon (i) any untrue statement or alleged
untrue statement of any material fact contained, on the effective date thereof,
in any Registration Statement under which securities were registered under the
Securities Act at the request of such selling Holder, any preliminary Prospectus
or final Prospectus contained therein, or any amendment or supplement thereto,
(ii) any omission or alleged omission by such selling Holder to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or (iii) any violation or alleged violation by such
selling Holder of the Securities Act, any state securities or "blue sky" laws or
any sale or regulation thereunder in connection with such registration; in the
case of subclause (i) and (ii) to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission was
made in such Registration Statement, preliminary or final Prospectus, amendment
or supplement thereto in reliance upon and in conformity with information
furnished in writing to TWUS by such selling Holder specifically for use
therein. The liability of any Holder for indemnification under this Section 6 in
its capacity as a seller of Registrable Shares shall not exceed the lesser of
(i) that proportion of the total of such losses, claims, damages, expenses or
liabilities indemnified against equal to the proportion of the total securities
sold under such Registration Statement held by such Holder, and (ii) the amount
equal to the net proceeds to such Holder of the securities sold in any such
registration; provided that no selling Holder shall be required to indemnify any
Person against any liability arising from any untrue or misleading statement or
omission contained in any preliminary Prospectus if such deficiency is corrected
in the final Prospectus or for any liability which arises out of the failure of
any Person to deliver a Prospectus as required by the Securities Act.
(c) In the event TWUS, any selling Holder or other Person receives
a complaint, claim or other notice of any liability or action, giving rise to a
claim for indemnification under Sections 6(a) or (b) above, the Person claiming
indemnification under such paragraphs shall promptly notify the Person against
whom indemnification is sought (the "Indemnifying Person") of such complaint,
notice, claim or action, and the Indemnifying Person shall have the right to
investigate and defend any such loss, claim, damage, liability or action;
provided that the failure to promptly give notice shall not relieve the
Indemnifying Person from any Liability except to the extent that it is
materially prejudiced by the failure or delay of the Indemnified Person in
giving such notice. If any such complaint, claim or other notice of any
Liability or action is brought against any Indemnified Person and it notifies
the Indemnifying Person of its commencement, the Indemnifying Person will be
entitled to participate in and, to the extent that it elects by delivering
written notice to the Indemnified Person promptly after receiving notice of the
commencement of the action from the Indemnified Person, jointly with any other
Indemnifying Person similarly notified, to assume the defense of the action,
with counsel reasonably satisfactory to the Indemnified Person, and after notice
from the Indemnifying Person to the Indemnified Person of its election to assume
the defense, the Indemnifying Person shall not be liable to the Indemnified
Person for any legal or other expenses except as provided below and except for
the reasonable costs of investigation subsequently
14
incurred by the Indemnified Person in connection with the defense. The
Indemnified Person shall have the right to employ its own counsel in any such
action, but the fees, expenses and other charges of such counsel shall be at the
expense of the Indemnified Person unless (i) the employment of counsel by the
Indemnified Person has been authorized in writing by the Indemnifying Person,
(ii) the Indemnified Person has reasonably concluded (based on advice of
counsel) that there may be legal defenses available to it or other Indemnified
Persons different from or in addition to those available to the Indemnifying
Person or Persons, (iii) a conflict or potential conflict exists (based on
advice of counsel to the Indemnified Person) between the Indemnified Person and
the Indemnifying Person (in which case the Indemnifying Person shall not have
the right to direct the defense of such action on behalf of the Indemnified
Person), or (iv) the Indemnifying Person has not in fact employed counsel to
assume the defense of such action within a reasonable time after receiving
notice of the commencement of the action or has failed to employ counsel
reasonably satisfactory to such Indemnified Person, in each of which cases the
reasonable fees, disbursements and other charges of counsel will be at the
expense of the Indemnifying Person or Persons. The Indemnifying Person or
Persons shall not, unless there exists a conflict of interest among the
Indemnified Persons, in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the reasonable fees, disbursements and
other charges of more than one separate firm admitted to practice in such
jurisdiction at any time for all such Indemnified Persons. All such fees,
disbursements and other charges shall be reimbursed by the Indemnifying Person
promptly as they are incurred. An Indemnifying Person shall not be liable for
any settlement of any action or claim effected without its written consent
(which consent will not be unreasonably withheld). No Indemnifying Person shall,
without the prior written consent of each Indemnified Person, settle or
compromise or consent to the entry of any judgment in any pending or threatened
claim, action or proceeding relating to the matters contemplated by this Section
6 (whether or not any Indemnified Person is a party thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of each
Indemnified Person from all liability arising or that may arise out of such
claim, action or proceeding, (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act by or on behalf of any
Indemnified Person, and (iii) does not commit the Indemnified Person to take, or
to forbear to take, any action. If a settlement is reached with such consent or
if a final judgment is entered for the plaintiff, the Indemnifying Person agrees
to indemnify any Indemnified Person from and against any loss or liability by
reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 6 for any
reason is held by a court of competent jurisdiction to be unavailable to an
Indemnified Person in respect of any losses, claims, damages expenses or
liabilities referred to therein, then each Indemnifying Person under this
Section 6, in lieu of indemnifying the Indemnified Person thereunder, shall
contribute to the amount paid or payable by the Indemnified Person as a result
of such losses, claims, damages, expenses or liabilities (i) in such proportion
as is appropriate to reflect the relative benefits received by TWUS and the
Holder or Holders of Registrable Shares from the offering of Registrable Shares
or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
TWUS, the other Holders of
15
Registrable Shares in connection with the statements or omissions that resulted
in such losses, claims, damages expenses or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by TWUS and
the Holders of Registrable Shares shall be deemed to be in the same respective
proportions that the net proceeds from the offering (before deducting expenses)
received by TWUS and the Holders of Registrable Shares, in each case as set
forth in the table on the cover page of the applicable prospectus, bear to the
aggregate public offering price of the Registrable Shares. The relative fault of
TWUS and the Holders of Registrable Shares 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 TWUS or the Holders of Registrable Shares, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
TWUS and the Holders of Registrable Shares agree that it would not be
just and equitable if contribution pursuant to this Section 6(d) were determined
by a method of allocation that does not take account the equitable
considerations referred to in the immediately preceding paragraph, provided that
a Holder of Registrable Shares shall not be required to contribute under this
Section 6(d) in excess of the lesser of (i) that proportion of the total
Liability indemnified against equal to the proportion of the total Registrable
Shares sold under such Registration Statement by such Holder and (ii) the net
proceeds received by such Holder from its sale of Registrable Shares under such
Registration Statement. No Person found guilty of fraudulent representation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person not found guilty of such fraudulent
misrepresentation.
(e) The amount paid by an Indemnifying Person or payable to an
Indemnified Person as a result of the losses, claims, damages, expenses and
liabilities referred to in this Section 6 shall be deemed to include, subject to
limitations set forth above, any legal or other expenses reasonably incurred by
such Indemnified Person in connection with investigating or defending any such
action or claim, payable as the same are incurred. The indemnification and
contribution provided for in this Section 6 shall remain in full force and
effect regardless of any investigation made by or on behalf of the indemnified
parties or any other officer, director, employee, agent or controlling person of
the indemnified parties.
7. Compliance with Rule 144. TWUS shall use its reasonable best efforts
to file with the Commission such information as is required under the Exchange
Act for so long as there are holders of Registrable Shares; and in such event,
TWUS shall use its reasonable best efforts to take all action as may be required
as a condition to the availability of Rule 144 under the Securities Act (or any
comparable successor rules). TWUS shall furnish to any holder of Registrable
Shares upon request a written statement executed by TWUS as to the steps it has
taken to comply with the current public information requirement of Rule 144 (or
such comparable successor rules). TWUS shall use its reasonable best efforts to
facilitate and expedite transfers of Registrable Shares pursuant to Rule 144
under the Securities Act, which
16
efforts shall include timely notice to its transfer agent to expedite such
transfers of Registrable Shares.
8. Intentionally Omitted.
9. Amendments. This Agreement may be amended, and TWUS may take any
action herein prohibited or omit to perform any act herein required to be
performed by it, only if TWUS has obtained the written consent of (i) a Majority
in Interest with respect to the rights of the Investors, (ii) Hyperion with
respect to the rights of Hyperion, (iii) Triumph with respect to the rights of
Triumph, or (iv) each of the Employees with respect to the rights of such
Employee. For the purposes of this Agreement and all agreements executed
pursuant hereto, no course of dealing between or among any of the parties hereto
and no delay on the part of any party hereto in exercising any rights hereunder
or thereunder shall operate as a waiver of the rights hereof and thereof.
10. Suspension of Registration Requirement; Restriction on Sales.
(a) TWUS shall promptly notify each Holder of, and confirm in
writing, (i) the receipt of any oral or written communication that could
reasonably lead TWUS to be unable to keep a Resale Registration Statement or
Affiliate Registration Statement continuously effective for the period set forth
in Section 2 hereof, or (ii) the issuance by the Commission of any stop order
suspending the effectiveness of a Registration Statement with respect to such
holder's Registrable Shares or the initiation of any proceedings for that
purpose. TWUS shall use its reasonable best efforts to obtain the withdrawal of
any order suspending the effectiveness of such a Registration Statement at the
earliest possible moment and in any event within thirty (30) days from the
initial date of such suspension.
(b) Notwithstanding anything to the contrary set forth in this
Agreement, TWUS' obligations under this Agreement to file, amend or supplement a
Registration Statement, or to cause a Registration Statement, or any filings
with any state securities commission, to become effective shall be suspended,
for one or more periods not to exceed the period described in Section 11 below,
in the event of pending negotiations relating to, or consummation of, a
transaction or the occurrence of an event that (i) would require additional
disclosure of material information by the TWUS in the Registration Statement or
such filing, as to which TWUS has a bona fide business purpose for preserving
confidentiality, or (ii) render TWUS unable to comply with the Commission
requirements (any such circumstances being hereinafter referred to as a
"Suspension Event"). TWUS shall notify the Holders of the Shares of the
existence of any Suspension Event by promptly delivering to each Holder a
certificate signed by an executive officer of TWUS stating that a Suspension
Event has occurred and is continuing.
17
(c) Subject to the terms of Section 11 below, so long as all
officers and directors of TWUS are bound by similar restrictions, each Holder of
Registrable Shares agrees, if requested by TWUS in the case of a TWUS-initiated
non-underwritten offering of TWUS Common Stock registered under the Securities
Act or if requested by the managing underwriter or underwriters in a
TWUS-initiated underwritten offering of TWUS Common Stock (each, a "TWUS
Offering"), not to directly or indirectly offer, sell, contract to sell, sell
any option or contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant for the sale of or otherwise dispose of or
transfer any Shares held by it during the period (the "Offering Blackout
Period") beginning upon receipt by such Holder of written notice from TWUS, but
in any event no earlier than the tenth (10th) day preceding the anticipated date
of pricing of such TWUS Offering, and ending on the earlier to occur of:
(i) sixty (60) days after the closing date of such TWUS
Offering; or
(ii) one (1) day after the date on which the Fair Market
Value of the TWUS Common Stock shall have averaged for
a period of twenty (20) consecutive trading days at
least one-hundred-five percent (105%) of the initial
price to the public of such security in such TWUS
Offering, but in any event not earlier than forty-five
(45) days after the closing date of such TWUS
Offering; or
(iii) the date on which TWUS may begin to effect any public
sale or distribution of any TWUS Common Stock
following such TWUS Offering pursuant to any
contractual lock-up or similar restrictions on the
sale of such securities; or
(iv) the date on which all directors and executive officers
who have been required to enter into contractual
lock-up or similar restrictions on the sale of TWUS
Common Stock owned by them may begin to effect public
sales of such shares following such TWUS Offering,
including pursuant to waivers of the restrictions by
the managing underwriter or underwriters; or
(v) the date TWUS or managing underwriter or underwriters
withdraws such request in writing.
(d) Subject to the terms of Section 11 below, each Holder of
Registrable Shares agrees that, following the effectiveness of any Registration
Statement relating to Registrable Shares of such Holder, such Holder will not
effect any sales of the Shares pursuant to such Registration Statement or any
filings with any state securities commission at any time after such Holder has
received notice from TWUS to suspend sales as a result of the occurrence or
existence of any Suspension Event or so that TWUS may correct or update the
Registration Statement or such filing. The Holders may recommence effecting
sales of the Shares pursuant to the Registration Statement or such filings, and
all other obligations which are suspended as a result of a Suspension Event
shall no longer be so suspended, following further notice to such
18
effect from TWUS, which notice shall be given by TWUS not later than one (1)
business day after the conclusion of any such Suspension Event.
11. Limitations on Suspension/Blackout Periods. Notwithstanding
anything herein to the contrary, TWUS covenants and agrees that (a) TWUS' rights
to suspend its obligation under this Agreement to file, amend or supplement a
Registration Statement and maintain the effectiveness of any Registration
Statement during the pendency of any Suspension Event, (b) the Holders'
obligation to suspend public sales of Shares during one or more Offering
Blackout Periods and (c) the Holders' obligations to suspend sales of Shares
pursuant to a Registration Statement during the pendency of any Suspension
Event, shall not (i) be exercised or triggered by TWUS pursuant to Section 10 or
otherwise more than two (2) times during any 12-month period or (ii) in the
aggregate, cause the Holders to be required to suspend sales of Shares or
relieve TWUS of its obligation to file, amend or supplement and maintain the
effectiveness of a Registration Statement for longer than ninety (90) days
during any 12-month period.
12. Transferability of Registration Rights. The registration rights set
forth in this Agreement are transferable to each transferee of Registrable
Shares, who shall thereafter be deemed a "Holder" for purposes of this
Agreement. Each subsequent Holder of Registrable Shares must consent in writing
to be bound by the terms and conditions of this Agreement in order to acquire
the rights granted pursuant to this Agreement. This Agreement shall inure to the
benefit of and be binding on the successors and assigns of each of the parties
hereto. If any transferee of any Holder shall acquire Registrable Shares in any
manner, whether by operation of law or otherwise, such Registrable Shares shall
be held subject to all of the terms of this Agreement, and by taking and holding
such Registrable Shares such Person shall be conclusively deemed to have agreed
to be bound by and to perform all of the terms and provisions of this Agreement
and such Person shall be entitled to receive the benefits hereof.
13. Intentionally Omitted.
14. Damages. TWUS stipulates that each Holder of Registrable Shares
shall not have an adequate remedy if TWUS fails to comply with this Agreement
and that damages shall not be readily ascertainable, and accordingly, TWUS shall
not oppose an application by any Holder of Registrable Shares or any other
Person entitled to the benefits of this Agreement to require specific
performance of any and all provisions hereof or enjoining TWUS from continuing
to commit any such breach of this Agreement.
15. Miscellaneous.
19
(a) Notices. Any notice or demand which is required or provided to
be given under this Agreement shall be deemed to have been sufficiently given
and received for all purposes when delivered in writing by hand, telecopy, telex
or other method of facsimile, or five (5) days after being sent by certified or
registered mail, postage and charges prepaid, return receipt requested, or two
(2) days after being sent by overnight delivery providing receipt of delivery,
to the following addresses:
If to TWUS:
Transworld Healthcare, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxx
Telecopy No.: (000) 000-0000
With a copy to:
Xxxxx Raysman Xxxxxxxxx Xxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Telecopy No.: (000) 000-0000
If to the Investors or Triumph:
Triumph Partners III, L.P.
Triumph III Investors, L.P.
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxxxx X. Xxxxxxx XX
Telecopy No.: (___) ___-____
With a copy to:
Xxxxxxx Procter LLP
Exchange Place
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx, P.C.
Telecopy No.: (000) 000-0000
20
If to Hyperion:
Hyperion Partners II L.P.,
00 Xxxxxxx Xxxxxxxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxx
Telecopy No.: (000) 000-0000
With a copy to:
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxx, Esq.
Telecopy No.: (000) 000-0000
If to the Employees:
Transworld Healthcare, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxx and Xxxxx Xxxxx
Telecopy No.: (000) 000-0000
With a copy to:
Xxxxx Raysman Xxxxxxxxx Xxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Telecopy No.: (000) 000-0000
If to any other Holder of Registrable Shares:
At such Person's address for notice as set forth in the books and
records of TWUS or, as to each of the foregoing, at such other address as shall
be designated by such Person in a written notice to other parties complying as
to delivery with the terms of this subsection (a).
16. Governing Law. This Agreement shall be deemed to be a contract made
under and shall be construed in accordance with the laws of the state of New
York, without giving effect to conflict of laws principles thereof.
17. Choice of Law/Consent to Jurisdiction. All disputes, claims or
controversies arising out of this Agreement, or the negotiation, validity or
performance of this Agreement shall be governed by and construed in accordance
with the laws of the State of New York without
21
regard to its rules of conflict of laws. Each of TWUS and the Holders hereby
irrevocably and unconditionally consents to submit to the sole and exclusive
jurisdiction of the courts of the State of New York and of the United States of
America located in the State of New York (the "New York Courts") for any
litigation arising out of or relating to this Agreement, or the negotiation,
validity or performance of this Agreement (and agrees not to commence any
litigation relating thereto except in such courts), waives any objection to the
laying of venue of any such litigation in the New York Courts and agrees not to
plead or claim in any New York Court that such litigation brought therein has
been brought in any inconvenient forum. Each of the parties hereto agrees, (a)
to the extent such party is not otherwise subject to service of process in the
State of New York, to appoint and maintain an agent in the State of New York as
such party's agent for acceptance of legal process, and (b) that service of
process may also be made on such party by prepaid certified mail with a proof of
mailing receipt validated by the United States Postal Service constituting
evidence of valid service. Service made pursuant to (a) or (b) above shall have
the same legal force and effect as if served upon such party personally within
the State of New York. For purposes of implementing the parties' agreement to
appoint and maintain an agent for service of process in the State of New York,
each party shall appoint an agent that is reasonably acceptable to the Holders
and TWUS.
18. Counterparts. This Agreement may be executed simultaneously in any
number of counterparts, each of which when so executed and delivered shall be
taken to be an original, but such counterparts shall together constitute but one
and the same document.
19. Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such a manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be deemed
prohibited or invalid under such applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, and such
prohibition or invalidity shall not invalidate the remainder of such provision
or the other provisions of this Agreement.
20. Integration. This Agreement, including the exhibits, the
Reorganization Agreement and instruments referred to herein or therein,
constitutes the entire agreement, and supersedes all other prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof.
22
IN WITNESS WHEREOF, the parties hereto have caused this Registration
Rights Agreement to be duly executed as of the date first set forth above.
TWUS:
TRANSWORLD HEALTHCARE, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
S-1
HOLDERS:
TRIUMPH PARTNERS III, L.P.
By: Triumph III Advisors, L.P., its
general partner
By: Triumph III Advisors, Inc., its
general partner
By:
-------------------------------------
Name: Xxxxxxxxx X. Xxxxxxx, XX
Title: President
TRIUMPH III INVESTORS, L.P.
By: Triumph III Investors, Inc., its
general partner
By:
-------------------------------------
Name: Xxxxxxxxx X. Xxxxxxx, XX
Title: President
S-2
HYPERION PARTNERS II L.P.
By: Hyperion Ventures II L.P.
its general partner
By: Hyperion Funding II Corp.
its general partner
By:
-------------------------------------
Name: Xxxxx X. Xxxx
Title: Executive Vice President
HYPERION TW FUND L.P.
By: Hyperion TW LLC
its general partner
By:
-------------------------------------
Name: Xxxxx X. Xxxx
Title: Executive Vice President
HYPERION TWH FUND LLC
By:
-------------------------------------
Name: Xxxxx X. Xxxx
Title: Managing Member
HYPERION TWH FUND II LLC
By:
-------------------------------------
Name: [Xxxxx X. Xxxx]
Title: [Managing Member]
S-3
THE EMPLOYEES
By:
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
By:
-------------------------------------
Name: Xxxxx X. Xxxxx
S-4
EQUITY WARRANT HOLDERS
TRIUMPH PARTNERS III, L.P.
By: Triumph III Advisors, L.P., its
general partner
By: Triumph III Advisors, Inc., its
general partner
By:
-------------------------------------
Name: Xxxxxxxxx X. Xxxxxxx, XX
Title: President
TRIUMPH III INVESTORS, L.P.
By: Triumph III Investors, Inc., its
general partner
By:
-------------------------------------
Name: Xxxxxxxxx X. Xxxxxxx, XX
Title: President
XXXXXX ENGLISH COMPANY
By:
-------------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
S-5
-------------------------------------
Xxxxxxx X. Xxxxxx
-------------------------------------
Xxxxx X. Xxxxx
S-6
