1
REGISTRATION RIGHTS AGREEMENT
dated as of August 31, 1997
by and among
XXXXXX-FIELD HEALTH PRODUCTS, INC.,
S.E. (GENE) XXXXX,
XXXXX X. XXXXX,
L.I.P SERVICES, INC.
and
XXXXX XXX
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TABLE OF CONTENTS
THIS TABLE OF CONTENTS IS NOT PART OF THE REGISTRATION RIGHTS
AGREEMENT TO WHICH IT IS ATTACHED BUT IS INSERTED FOR CONVENIENCE ONLY.
Page
No.
1. Registration of Registrable Securities................................. 1
(a) Filing of Shelf Registration Statement.......................... 1
(c) Registration Expenses........................................... 3
(d) Termination of the Reorganization Agreement..................... 3
2. Registration Procedures................................................ 3
3. Holdback Agreement..................................................... 7
4. Indemnification........................................................ 7
(a) Indemnification by the Company.................................. 7
(b) Indemnification by the Shareholders............................. 8
(c) Notices of Claims, etc.......................................... 9
(d) Other Indemnification........................................... 10
(e) Indemnification Payments........................................ 10
5. Covenants Relating to Rule 144......................................... 10
6. Other Registration Rights.............................................. 10
(a) No Existing Agreements.......................................... 10
(b) Future Agreements............................................... 10
7. Definitions............................................................ 11
8. Miscellaneous.......................................................... 13
(a) Notices......................................................... 13
(b) Entire Agreement................................................ 14
(c) Amendment....................................................... 14
(d) Waiver.......................................................... 14
(e) No Third Party Beneficiary...................................... 15
(f) No Assignment; Binding Effect................................... 15
(g) Headings........................................................ 15
(h) Invalid Provisions.............................................. 15
(i) Remedies........................................................ 15
(j) Governing Law................................................... 16
3
(k) Counterparts.................................................... 16
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This REGISTRATION RIGHTS AGREEMENT dated as of August 31, 1997 is
made and entered by and among Xxxxxx-Field Health Products, Inc., a Delaware
corporation (the "Company"), S.E. (Gene) Xxxxx ("Xx. Xxxxx"), Xxxxx X. Xxxxx
("Xx. Xxxxx"), L.I.P Services, Inc., a Georgia corporation ("LIP"), and Xxxxx
Xxx ("Xx. Xxx") (collectively, the "Shareholders" and each individually, a
"Shareholder"). Capitalized terms not otherwise defined herein have the meanings
set forth in Section 7.
WHEREAS, the Company and Xx. Xxxxx and Xx. Xxx have entered into an
Agreement and Plan of Reorganization of even date herewith (the "Reorganization
Agreement"), pursuant to which the Company will, subject to the terms and
conditions of the Reorganization Agreement, purchase all of the issued and
outstanding capital stock of Medical Supplies of America, Inc. from Xx. Xxxxx
and Xx. Xxx, pursuant to which such corporation will become a wholly-owned
subsidiary of the Company; and
WHEREAS, as a condition to Xx. Xxxxx' and Xx. Xxx'x willingness to
enter into the Reorganization Agreement, the Company has agreed to enter into
this Registration Rights Agreement providing for the Company's registration for
sale of Registrable Securities to be acquired by Xx. Xxxxx and Xx. Xxx pursuant
to the Reorganization Agreement; and
WHEREAS, the Company has entered into a Real Estate Agreement of
even date herewith (the "Real Estate Agreement"), pursuant to which the Company
will, subject to the terms and conditions of the Real Estate Agreement, purchase
property located at 0000 Xxxxxxxxxx Xxxx, Xxxxxx, Xxxxxxx, and the improvements
located thereon (the "Property") owned by BBD&M, Ltd., a Georgia limited
partnership ("BBD&M"), of which Xx. Xxxxx, Xx. Xxxxx and LIP are partners; and
WHEREAS, pursuant to the Real Estate Agreement, a portion of the
purchase price for the property will be paid in shares of Common Stock which
will be distributed by BBD&M; and
WHEREAS, the willingness of the partners of BBD&M to cause BBD&M to
sell the Property is conditioned on the Company entering into this Registration
Rights Agreement providing for the Company's registration for sale of
Registrable Securities to be distributed by BBD&M to Xx. Xxxxx, Xx. Xxxxx and
LIP;
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NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Registration Rights Agreement, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Registration of Registrable Securities. (a) Filing of Shelf
Registration Statement. The Company shall, as promptly as practicable after the
Closing, and in no event later than September 4, 1997, prepare and file with the
Commission, and thereafter use its best efforts to cause to be declared
effective, a shelf registration statement on Form S-3 under the Securities Act
registering the Registrable Securities. Such registration statement shall
provide for the offering and sale of the Registrable Securities to or through
dealers, directly to one or more other purchasers, through brokers and agents or
through a combination of any such methods of sale, including but not limited to
a bulk sale to a brokerage firm, but not pursuant to an underwritten Public
Offering.
(b) Registration Expenses. The Company will pay all Registration
Expenses incurred in connection with such registration.
(c) Termination of the Reorganization Agreement. In the event that,
prior to the occurrence of the Closing, the Reorganization Agreement is
terminated pursuant to Article IX thereof, this Registration Rights Agreement
will forthwith become null and void, and there will be no further liability or
obligation on the part of the Company hereunder.
2. Registration Procedures. In connection with its obligations under
Section 1 to effect the registration and sale of the Registrable Securities, the
Company shall:
(a) prepare and file with the Commission the requisite registration
statement to effect such registration and use its best efforts to cause
such registration statement to become effective;
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and any prospectus used in
connection therewith as may be
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necessary to maintain the effectiveness of such registration statement and
to comply with the provisions of the Securities Act with respect to the
disposition of all Registrable Securities covered by such registration
statement, in accordance with the intended methods of disposition thereof,
until the earlier of (i) two (2) years following the date of the Closing
and (ii) such time as the Registrable Securities may be sold in one (1)
transaction pursuant to Rule 144;
(c) promptly notify the Shareholders:
(i) when such registration statement or any prospectus used in
connection therewith, or any amendment or supplement thereto, has
been filed and, with respect to such registration statement or any
post-effective amendment thereto, when the same has become
effective;
(ii) of any written request by the Commission for amendments
or supplements to such registration statement or prospectus;
(iii) of the notification to the Company by the Commission of
its initiation of any proceeding with respect to the issuance by the
Commission of, or of the issuance by the Commission of, any stop
order suspending the effectiveness of such registration statement;
and
(iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of any Registrable
Securities for sale under the applicable securities or blue sky laws
of any jurisdiction;
(d) furnish to the Shareholders such number of conformed copies of
such registration statement and of each amendment and supplement thereto
(in each case including all exhibits and documents incorporated by
reference), such number of copies of the prospectus contained in such
registration statement (including each preliminary prospectus and any
summary prospectus) and any other
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prospectus filed under Rule 424 promulgated under the Securities Act, and
such other documents, as the Shareholders may reasonably request to
facilitate the disposition of the Registrable Securities covered by such
registration statement;
(e) use its best efforts to register or qualify all Registrable
Securities covered by such registration statement under such other
securities or blue sky laws of such jurisdictions as the Shareholders
shall reasonably request, to keep such registration or qualification in
effect for so long as such registration statement remains in effect, and
take any other action which may be reasonably necessary or advisable to
enable the Shareholders to consummate the disposition in such
jurisdictions of their Registrable Securities covered by such registration
statement, except that the Company shall not for any such purpose be
required (i) to qualify generally to do business as a foreign corporation
in any jurisdiction wherein it would not but for the requirements of this
paragraph (e) be obligated to be so qualified, (ii) to subject itself to
taxation in any such jurisdiction or (iii) to consent to general service
of process in any such jurisdiction;
(f) use its best efforts to cause all Registrable Securities covered
by such registration statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary to enable
the Shareholders to consummate the disposition of such Registrable
Securities;
(g) notify the Shareholders, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, of the
happening of any event as a result of which any prospectus included in
such registration statement, as then in effect, includes an untrue
statement of a material fact or omits 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
at the request of the Shareholders promptly prepare and furnish to the
Shareholders a reasonable number of copies of a supplement to or an
amendment of such prospectus as may be necessary so
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that, as thereafter delivered to the purchasers of such securities, such
prospectus shall not include an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(h) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make available to its
securityholders, as soon as reasonably practicable, an earnings statement
covering the period of at least twelve (12) months, but not more than
eighteen (18) months, beginning with the first full calendar month after
the effective date of such registration statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the Securities
Act and Rule 158 promulgated thereunder;
(i) make available for inspection by the Shareholders and any
attorney, accountant or other agent retained by the Shareholders
(collectively, the "Inspectors"), all financial and other records,
pertinent corporate documents and properties of the Company (collectively,
the "Records") as shall be reasonably necessary to enable them to exercise
their due diligence responsibility and cause the Company's officers,
directors and employees to supply all information reasonably requested by
any such Inspector in connection with such registration statement;
provided that records which the Company determines, in good faith, to be
confidential and which it notifies the Inspectors are confidential shall
not be disclosed by the Inspectors unless (i) the disclosure of such
Records is necessary to avoid or correct a misstatement or omission in the
registration statement, (ii) the release of such Records is ordered
pursuant to a subpoena or other order from a court of competent
jurisdiction or (iii) the information in such Records has been made
generally available to the public;
(j) provide a transfer agent and registrar for all Registrable
Securities covered by such registration statement not later than the
effective date of such registration statement; and
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(k) use its best efforts to cause all Registrable Securities covered
by such registration statement to be listed, upon official notice of
issuance, on the NYSE, or if no securities of the same class as the
Registrable Securities are listed on the NYSE, then on any securities
exchange on which any of the securities of the same class as the
Registrable Securities are then listed.
In the event of the issuance of any stop order suspending the
effectiveness of such registration statement, or any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any Registrable Securities included in such registration statement for sale in
any jurisdiction, the Company will use its reasonable best efforts to promptly
obtain the withdrawal of such order.
The Company may require the Shareholders to furnish the Company with
such information and affidavits regarding the Shareholders and the distribution
of such securities as the Company may from time to time reasonably request in
writing in connection with such registration.
The Shareholders agree by acquisition of the Registrable Securities
that upon receipt of any notice from the Company of the happening of any event
of the kind described in paragraph (g), the Shareholders will forthwith
discontinue their disposition of Registrable Securities pursuant to the
registration statement filed pursuant to Section 1 until their receipt of the
copies of the supplemented or amended prospectus contemplated by paragraph (g)
and, if so directed by the Company, will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies, then in their
possession of the prospectus relating to such Registrable Securities current at
the time of receipt of such notice.
3. Intentionally Omitted.
4. Indemnification. (a) Indemnification by the Company. The Company
shall, to the full extent permitted by law, indemnify and hold harmless each
Shareholder against any Losses, claims, damages, expenses or liabilities, joint
or several (together, "Losses"), to which either Shareholder may become subject
under the Securities Act or otherwise, insofar as such
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Losses (or actions or proceedings, whether commenced or threatened, in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in any registration statement filed
pursuant to Section 1, any preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement thereto, or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein (in the case of a
prospectus, in the light of the circumstances under which they were made) not
misleading, and the Company will reimburse such Shareholder for all reasonable
legal or any other expenses reasonably incurred by them in connection with
investigating or defending any such Loss (or action or proceeding in respect
thereof); provided that the Company shall not be liable in any such case to the
extent that any such Loss (or action or proceeding in respect thereof) arises
out of or is based upon (x) an untrue statement or alleged untrue statement or
omission or alleged omission made in any such registration statement,
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement in reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of either Shareholder specifically for
use in the preparation thereof or (y) either Shareholder's failure to send or
give a copy of the final prospectus to the Persons asserting an untrue statement
or alleged untrue statement or omission or alleged omission at or prior to the
written confirmation of the sale of Registrable Securities to such Person if
such statement or omission was corrected in such final prospectus. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of the Shareholders, and shall survive the transfer of such
securities by the Shareholders.
(b) Indemnification by the Shareholders. Each Shareholder, as a
condition to including Registrable Securities in any registration statement
filed pursuant to Section 1, shall, to the full extent permitted by law,
indemnify and hold harmless the Company, its directors and officers, and each
other Person, if any, who controls the Company within the meaning of the
Securities Act, against any Losses to which the Company or any such director or
officer or controlling Person may become subject under the Securities Act or
otherwise, insofar as such Losses (or actions or proceedings, whether commenced
or
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threatened, in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in any such
registration statement, any preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement thereto, or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein (in the case of a
prospectus, in the light of the circumstances under which they were made) not
misleading, if such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of such Shareholder
specifically for use in the preparation of such registration statement,
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement. Such indemnity shall remain in full force and effect regardless of
any investigation made by or on behalf of the Company or any such director,
officer or controlling Person and shall survive the transfer of such securities
by any such Shareholder. The indemnification obligation of each Shareholder set
forth in this Section 4(b) shall be limited to the amount of net proceeds
received by such Shareholder in the offering giving rise to such obligation.
(c) Notices of Claims, etc. Promptly after receipt by an Indemnified
Party of notice of the commencement of any action or proceeding involving a
claim referred to in the preceding paragraph (a) or (b) of this Section 4, such
Indemnified Party will, if a claim in respect thereof is to be made against an
Indemnifying Party pursuant to such paragraphs, give written notice to the
latter of the commencement of such action, provided that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under the preceding paragraphs of this
Section 4, except to the extent that the Indemnifying Party is actually
prejudiced by such failure to give notice. In case any such action is brought
against an Indemnified Party, the Indemnifying Party shall be entitled to
participate in and to assume the defense thereof, with counsel reasonably
satisfactory to such Indemnified Party, and after notice from the Indemnifying
Party to such Indemnified Party of its election so to assume the defense
thereof, the Indemnifying Party shall not be liable to such Indemnified Party
for any legal or other expenses
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subsequently incurred by the latter in connection with the defense thereof;
provided that the Indemnified Party may participate in such defense at the
Indemnified Party's expense. If the Indemnifying Party is not entitled to, or
elects not to, assume the defense of a claim, it will not be obligated to pay
the fees and expenses of more than one counsel for the Indemnified Parties with
respect to such claim, unless the Indemnified Parties shall have been advised by
counsel that representation of any such Indemnified Parties by the same counsel
would be inappropriate under applicable standards of professional conduct due to
actual or potential differing interests between them, in which case such
Indemnified Parties shall have the right to select separate counsel the
reasonable fees and expenses of which shall be paid by the Indemnifying Party.
No Indemnifying Party shall consent to entry of any judgment or enter into any
settlement without the consent of the Indemnified Party, which consent will not
be unreasonably withheld or delayed. No Indemnifying Party shall be subject to
any liability for any settlement made without its consent, which consent shall
not be unreasonably withheld or delayed. The indemnification provided for under
this Registration Rights Agreement will remain in full force and effect
regardless of any investigation made by or on behalf of the Indemnified Party or
any officer, director or controlling Person of such Indemnified Party and will
survive the transfer of securities.
(d) Other Indemnification. Indemnification similar to that specified
in the preceding paragraphs of this Section 4 (with appropriate modifications)
shall be given by the Company and the Shareholders with respect to any required
registration or other qualification of securities under any federal or state law
or regulation of any governmental authority other than the Securities Act. The
provisions of this Section 4 shall be in addition to any other rights to
indemnification or contribution which an Indemnified Party may have pursuant to
law, equity, contract or otherwise.
(e) Indemnification Payments. The indemnification required by this
Section 4 shall be made by periodic payments of the amount thereof during the
course of the investigation or defense, as and when bills are received or Losses
are incurred.
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5. Covenants Relating to Rule 144. In the event that the
registration statement filed pursuant to Section 1(a) is no longer in effect
because of the time limit stated in clause (ii) of Section 2(b), the Company
will for a period of up to two (2) years following the date of the Closing, file
reports in compliance with the Exchange Act, will comply with all rules and
regulations of the Commission applicable in connection with the use of Rule 144
and will take such other actions and furnish the Shareholders with such other
information as the Shareholders may reasonably request to the extent necessary
to permit the Shareholders to sell the Registrable Securities pursuant to Rule
144.
6. Other Registration Rights. (a) No Existing Agreements. The
Company represents and warrants to the Shareholders that there is not in effect
on the date hereof any agreement by the Company pursuant to which any holders of
securities of the Company have a right to cause the Company to register or
qualify such securities under the Securities Act or any securities or blue sky
laws of any jurisdiction that would conflict or be inconsistent with any
provision of this Registration Rights Agreement.
(b) Future Agreements. The Company shall not hereafter agree with
the holders of any securities issued or to be issued by the Company to register
or qualify such securities under the Securities Act or any securities or blue
sky laws of any jurisdiction that would conflict or be inconsistent with any
provision of this Registration Rights Agreement. Nothing contained in this
Registration Rights Agreement is meant to explicitly or implicitly restrict the
Company from granting to any such holder priority with respect to registration
rights over any shares issued to the Shareholders.
7. Definitions. (a) Except as otherwise specifically indicated, the
following terms will have the following meanings for all purposes of this
Registration Rights Agreement:
"Business Day" means a day other than Saturday, Sunday or any other
day on which banks located in the State of New York are authorized or obligated
to close.
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"Closing" has the meaning ascribed to it in the Reorganization
Agreement.
"Commission" means the United States Securities and Exchange
Commission, or any successor governmental agency or authority.
"Common Stock" means shares of common stock, par value $.025 per
share, of the Company, as constituted on the date hereof, and any stock into
which such Common Stock shall have been changed or any stock resulting from any
reclassification of such Common Stock.
"Company" has the meaning ascribed to it in the preamble.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"Indemnified Party" means any party referred to in Section 4 as
being entitled to indemnity in accordance with such Section.
"Indemnifying Party" means a party obligated to provide indemnity in
accordance with Section 4.
"Inspectors" has the meaning ascribed to it in Section 2(i).
"Losses" has the meaning ascribed to it in Section 4(a).
"Managing Underwriter" means, with respect to any Public Offering,
the underwriter or underwriters managing such Public Offering.
"NASD" means the National Association of Securities Dealers.
"NYSE" means The New York Stock Exchange, Inc.
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"Person" means any natural person, corporation, general partnership,
limited partnership, proprietorship, other business organization, trust, union
or association.
"Public Offering" means any offering of Common Stock, or securities
convertible into or exercisable or exchangeable for Common Stock, to the public,
either on behalf of the Company or any of its securityholders, pursuant to an
effective registration statement under the Securities Act.
"Records" has the meaning ascribed to it in Section 2(i).
"Registrable Securities" means (i) the shares of Common Stock
received by Xx. Xxxxx and Xx. Xxx pursuant to Article I of the Reorganization
Agreement, (ii) the shares of Common Stock received by Xx. Xxxxx, Xx. Xxxxx and
LIP from BBD&M and (iii) any additional shares of Common Stock issued or
distributed by way of a dividend, stock split or other distribution in respect
of such shares referred to in clause (i) or (ii) above, or acquired by way of
any rights offering or similar offering made in respect of such shares. As to
any particular Registrable Securities, once issued such securities shall cease
to be Registrable Securities when (i) a registration statement with respect to
the sale of such securities shall have become effective under the Securities Act
and such securities shall have been disposed of in accordance with such
registration statement, (ii) they shall have been distributed to the public
pursuant to Rule 144, or (iii) they shall have ceased to be outstanding.
"Registration Expenses" means all reasonable expenses incident to
the Company's performance of or compliance with its obligations under this
Registration Rights Agreement to effect the registration of Registrable
Securities pursuant to Section 1, including, without limitation, all
registration, filing, securities exchange listing and NASD fees, all
registration, filing, qualification and other reasonable fees and expenses of
complying with securities or blue sky laws, all word processing, duplicating and
printing expenses, messenger and delivery expenses, the fees and disbursements
of legal counsel retained by the Company and of the Company's independent public
accountants, including the expenses of any special audits or "cold comfort"
letters required by or incident to such performance and
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compliance and including the reasonable fees of the Inspectors referred to in
Section 2(i); but excluding transfer taxes, if any, in respect of Registrable
Securities and the fees and disbursements of any legal counsel retained by the
Shareholders to act exclusively for the Shareholders, which shall be payable by
the Shareholders.
"Registration Rights Agreement" means this Registration Rights
Agreement, as the same shall be amended from time to time.
"Reorganization Agreement" has the meaning ascribed to it in the
preamble.
"Rule 144" means Rule 144 promulgated by the Commission under the
Securities Act, and any successor provision thereto.
"Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder.
"Shareholders" has the meaning ascribed to it in the preamble.
(b) Unless the context of this Registration Rights Agreement
otherwise requires, (i) words of any gender include each other gender; (ii)
words using the singular or plural number also include the plural or singular
number, respectively; (iii) the terms "hereof," "herein," "hereby" and
derivative or similar words refer to this entire Registration Rights Agreement;
and (iv) the term "Section" refers to the specified Section of this Registration
Rights Agreement. Whenever this Registration Rights Agreement refers to a number
of days, such number shall refer to calendar days unless Business Days are
specified.
8. Miscellaneous. (a) Notices. All notices, requests and other
communications hereunder must be in writing and will be deemed to have been duly
given only if delivered personally or by facsimile transmission or mailed by
certified or registered mail, return receipt requested, to the parties at the
following addresses or facsimile numbers:
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If to the Shareholders, to:
S.E. (Gene) Xxxxx
0000 Xxxxxxx Xxxxx
Xxxxx Xxxxxxxx, Xxxxxxx 00000
Facsimile No.: (000) 000-0000
Xxxxx X. Xxxxx
0000 Xxxxxxx Xxxxx
Xxxxx Xxxxxxxx, Xxxxxxx 00000
Facsimile No.: (000) 000-0000
L.I.P. Services, Inc.
0000 Xxxxxxx Xxxxx
Xxxxx Xxxxxxxx, Xxxxxxx 00000
Facsimile No.: (000) 000-0000
and
Xxxxx Xxx
0000 Xxxxxxx Xxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
Facsimile No.: (000) 000-0000
with a copy to:
Robins, Kaplan, Xxxxxx & Xxxxxx LLP
0000 Xxx Xxxxxxx Xxxxx
000 Xxxx Xxxxx Xxxxx Xxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Facsimile No.: (000) 000-0000
Attn: Rhys X. Xxxxxx, Esq.
If to the Company, to:
Xxxxxx-Field Health Products, Inc.
000 Xxxxx Xxxxx Xxxx
Xxxxxxxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
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with a copy to:
Milbank, Tweed, Xxxxxx & XxXxxx
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxxx X. Xxxxx, Esq.
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section, be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile number as
provided in this Section, be deemed given upon receipt if received on a Business
Day during normal business hours, and if not then received, on the next Business
Day, and (iii) if delivered by mail in the manner described above to the address
as provided in this Section, be deemed given upon receipt (in each case
regardless of whether such notice, request or other communication is received by
any other Person to whom a copy of such notice is to be delivered pursuant to
this Section). Any party from time to time may change its address, facsimile
number or other information for the purpose of notices to that party by giving
notice specifying such change to the other parties hereto.
(b) Entire Agreement. This Registration Rights Agreement supersedes
all prior discussions and agreements between the parties with respect to the
subject matter hereof, and contains the sole and entire agreement between the
parties hereto with respect to the subject matter hereof.
(c) Amendment. This Registration Rights Agreement may be amended,
supplemented or modified only by a written instrument (which may be executed in
any number of counterparts) duly executed by or on behalf of the Company and the
Shareholders.
(d) Waiver. Any term or condition of this Registration Rights
Agreement may be waived at any time by the party that is entitled to the benefit
thereof, but no such waiver shall be effective unless set forth in a written
instrument duly executed by or on behalf of the party waiving such term or
condition. No waiver by any party of any term or condition of this Registration
Rights Agreement, in any one or more instances, shall be deemed to be or
construed as a waiver of the same term
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or condition of this Registration Rights Agreement on any future occasion.
(e) No Third Party Beneficiary. The terms and provisions of this
Registration Rights Agreement are intended solely for the benefit of each party
hereto and it is not the intention of the parties to confer third-party
beneficiary rights upon any other Person other than any Person entitled to
indemnity under Section 4.
(f) No Assignment; Binding Effect. Neither this Registration Rights
Agreement nor any right, interest or obligation hereunder may be assigned by any
party hereto without the prior written consent of the other parties hereto and
any attempt to do so will be void, provided that each Shareholder may assign its
rights hereunder to his heirs or legal representatives. Subject to the
foregoing, this Registration Rights Agreement is binding upon, inures to the
benefit of and is enforceable by the parties hereto and their respective
successors and assigns.
(g) Headings. The headings used in this Registration Rights
Agreement have been inserted for convenience of reference only and do not define
or limit the provisions hereof.
(h) Invalid Provisions. If any provision of this Registration Rights
Agreement is held to be illegal, invalid or unenforceable under any present or
future law, and if the rights or obligations of any party hereto under this
Registration Rights Agreement will not be materially and adversely affected
thereby, (i) such provision will be fully severable, (ii) this Registration
Rights Agreement will be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part hereof and (iii) the
remaining provisions of this Registration Rights Agreement will remain in full
force and effect and will not be affected by the illegal, invalid or
unenforceable provision or by its severance herefrom.
(i) Remedies. Except as otherwise expressly provided for herein, no
remedy conferred by any of the specific provisions of this Registration Rights
Agreement is intended to be exclusive of any other remedy, and each and every
remedy shall be cumulative and shall be in addition to every other remedy given
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20
hereunder or now or hereafter existing at law or in equity or by statute or
otherwise. The election of any one or more remedies by any party hereto shall
not constitute a waiver by any such party of the right to pursue any other
available remedies.
Damages in the event of breach of this Registration Rights Agreement
by a party hereto would be difficult, if not impossible, to ascertain, and it is
therefore agreed that each such party, in addition to and without limiting any
other remedy or right it may have, will have the right to an injunction or other
equitable relief in any court of competent jurisdiction, enjoining any such
breach, and enforcing specifically the terms and provisions hereof and the
Company and the Shareholders each hereby waives any and all defenses it may have
on the ground of lack of jurisdiction or competence of the court to grant such
an injunction or other equitable relief. The existence of this right will not
preclude any such party from pursuing any other rights and remedies at law or in
equity which such party may have.
(j) Governing Law. This Registration Rights Agreement shall be
governed by and construed in accordance with the laws of the State of New York
applicable to a contract executed and performed in such State, without giving
effect to the conflicts of laws principles thereof.
(k) Counterparts. This Registration Rights Agreement may be executed
in any number of counterparts, each of which will be deemed an original, but all
of which together will constitute one and the same instrument.
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IN WITNESS WHEREOF, this Registration Rights Agreement has been duly
executed and delivered by or on behalf of each party hereto as of the date
first above written.
XXXXXX-FIELD HEALTH PRODUCTS, INC.
By: _____________________________
Name:
Title:
_________________________________
Name: S.E. (Gene) Xxxxx
_________________________________
Name: Xxxxx X. Xxxxx
_________________________________
Name: Xxxxx Xxx
L.I.P. SERVICES, INC.
By: _____________________________
Name:
Title:
