REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and entered
into as of ____________, 1997, by and among Apple Orthodontix, Inc., a Delaware
corporation ("Apple"), and each person listed on the signature pages hereto
under the caption "Stockholders" (each a "Stockholder" and, collectively, the
"Stockholders").
WHEREAS, pursuant to various acquisition agreements entered into with
Apple (collectively, the "Acquisition Agreements"), each of the Stockholders has
received on the date hereof shares of common stock, par value $.01 per share, of
Apple ("Common Stock"); and
WHEREAS, in order to induce the Stockholders to enter into their
respective Acquisition Agreements, Apple has agreed to provide registration
rights on the terms set forth in this Agreement for the benefit of the
Stockholders;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements set forth herein, the parties hereto agree as follows:
1 . DEFINITIONS. The following capitalized terms shall have the meanings
assigned to them in this SECTION 1 or in the parts of this Agreement referred to
below:
CODE: the Internal Revenue Code of 1986, as amended, and any successor
thereto.
COMMISSION: the Securities and Exchange Commission, and any successor
thereto.
EXCHANGE ACT: the Securities Exchange Act of 1934, as amended, and any
successor thereto, and the rules and regulations thereunder.
EXEMPT OFFERING: as defined in SECTION 2.
REGISTRABLE COMMON: shares of Common Stock that were issued to the
Stockholders pursuant to the Acquisition Agreements, and any additional shares
of Common Stock issued or distributed in respect of any other shares of
Registrable Common by way of a stock dividend or distribution or stock split or
in connection with a combination of shares, recapitalization, reorganization,
merger, consolidation or otherwise. For purposes of this Agreement, shares of
Registrable Common will cease to be Registrable Common when and to the extent
that (i) a registration statement covering such shares has been declared
effective under the Securities Act and such shares have been disposed of
pursuant to such effective registration statement, (ii) such shares are sold
pursuant to Rule 144 or (iii) such shares have been otherwise transferred to a
person or entity that is not a Stockholder, other than pursuant to SECTION 11
hereof.
REGISTRATION NOTICE: as defined in SECTION 2.
RULE 144: Securities Act Rule 144 (or any similar or successor provision
under the Securities Act).
SECURITIES ACT: the Securities Act of 1933, as amended, and any successor
thereto, and the rules and regulations thereunder.
SELLING STOCKHOLDER: as defined in SECTION 11.
2. PIGGYBACK REGISTRATION RIGHTS. At any time before November 14, 2001, whenever
Apple proposes to register any Common Stock for its own account, or for the
account of any other person holding registration rights, under the Securities
Act for a public offering for cash, other than a registration relating to the
offering or issuance of shares in connection with (i) employee compensation or
benefit plans or (ii) one or more acquisition transactions under a registration
statement on either Form S-1 or Form S-4 under the Securities Act (or a
successor to either Form S-1 or Form S-4) (any such offering or issuance being
an "Exempt Offering"), Apple will give each Stockholder written notice of its
intent to do so (a "Registration Notice") at least 20 days prior to the filing
of the related registration statement with the Commission. Such notice shall
specify the approximate date on which Apple proposes to file such registration
statement and shall contain a statement that the Stockholders are entitled to
participate in such offering and shall set forth the number of shares of
Registrable Common (as hereinafter defined) that represents the best estimate of
the lead managing underwriter (or if not known or applicable, Apple) that will
be available for sale by the holders of Registrable Common in the proposed
offering. If Apple shall have delivered a Registration Notice, each Stockholder
shall be entitled to participate on the same terms and conditions as Apple in
the public offering to which such Registration Notice relates and to offer and
sell shares of Registrable Common therein only to the extent provided in this
SECTION 2. Each Stockholder desiring to participate in such offering shall
notify Apple no later than ten days following receipt of the Registration Notice
of the aggregate number of shares of Registrable Common that such Stockholder
then desires to sell in the offering. Each Stockholder desiring to participate
in such public offering may include shares of Registrable Common in the
registration statement relating to the offering to the extent that the inclusion
of such shares shall not reduce the number of shares of Common Stock to be
offered and sold by Apple to be included therein. If the lead managing
underwriter selected by Apple for a public offering (or, if the offering is not
underwritten, a financial advisor to Apple) determines that marketing factors
require a limitation on the number of shares of Registrable Common to be offered
and sold in such offering, there shall be included in the offering only that
number of shares of Registrable Common, if any, that such lead managing
underwriter or financial advisor, as the case may be, reasonably and in good
faith believes will not jeopardize the success of the offering, PROVIDED that if
the lead managing underwriter or financial advisor, as the case may be,
determines that marketing factors require a limitation on the number of shares
of Registrable Common to be offered and sold as aforesaid and so notifies Apple
in writing, the number of shares of Registrable Common to be offered and sold by
holders desiring to participate in the offering, shall be allocated among such
holders on a pro rata basis based on their holdings of
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Registrable Common. Apple shall have the right at any time to reduce the number
of shares requested by any Stockholder to be included in such registration to
the extent that Apple reasonably concludes that inclusion of such shares is
likely to jeopardize the non-recognition status under the Code of any
acquisition transaction consummated pursuant to any of the Acquisition
Agreements; PROVIDED that any determination to exclude shares from any such
registration pursuant to this provision shall be based on written advice of tax
counsel to Apple or its independent accountants.
3. REGISTRATION PROCEDURES. In connection with registrations under SECTION 2
hereof, and subject to the terms and conditions contained therein, Apple shall
(a) use its best efforts to prepare and file with the Commission as soon as
reasonably practicable, a registration statement with respect to the Registrable
Common and use its best efforts to cause such registration to promptly become
and remain effective for a period of at least 120 days (or such shorter period
during which holders shall have sold all Registrable Common which they requested
to be registered); PROVIDED, HOWEVER, that such 120-day period shall be extended
for a period equal to the period that a Stockholder agrees to refrain from
selling any securities included in such registration in accordance with SECTION
7 hereof; (b) prepare and file with the Commission such amendments (including
post-effective amendments) to such registration statement and supplements to the
related prospectus to appropriately reflect the plan of distribution of the
securities registered thereunder until the completion of the distribution
contemplated by such registration statement or for so long thereafter as a
dealer is required by law to deliver a prospectus in connection with the offer
and sale of the shares of Registrable Common covered by such registration
statement and/or as shall be necessary so that neither such registration
statement nor the related prospectus shall contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and so that such
registration statement and the related prospectus will otherwise comply with
applicable legal requirements; (c) provide to any Stockholder requesting to
include shares of Registrable Common in such registration statement and a single
counsel for all holders of Registrable Common requesting to include shares of
Registrable Common in such registration statement, which counsel shall be
selected by the holders of a majority of shares of Registrable Common requested
to be included in such registration statement and shall be reasonably
satisfactory to Apple, an opportunity to review and provide comments with
respect to such registration statement (and any post-effective amendment
thereto) prior to such registration statement (or post-effective amendment)
becoming effective; (d) use its best efforts to register and qualify the
Registrable Common covered by such registration statement under applicable
securities or "Blue Sky" laws of such jurisdictions as the holders shall
reasonably request for the distribution of the Registrable Common; (e) take such
other actions as are reasonable and necessary to comply with the requirements of
the Securities Act; (f) furnish such number of prospectuses (including
preliminary prospectuses) and documents incident thereto as a Stockholder from
time to time may reasonably request; (g) provide to any Stockholder requesting
to include Registrable Common in such registration statement and any managing
underwriter participating in any distribution thereof, and to any attorney,
accountant or other agent retained by such Stockholder or managing underwriter,
reasonable access to appropriate officers and directors of Apple to ask
questions and to obtain information reasonably requested by any such
Stockholder, managing underwriter, attorney,
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accountant or other agent in connection with such registration statement or any
amendment thereto; PROVIDED, HOWEVER, that (i) in connection with any such
access or request, any such requesting persons shall cooperate to the extent
reasonably practicable to minimize any disruption to the operation by Apple of
its business and (ii) any records, information or documents shall be kept
confidential by such requesting persons, unless (A) such records, information or
documents are in the public domain or otherwise publicly available or (B)
disclosure of such records, information or documents is required by court or
administrative order or by applicable law (including, without limitation, the
Securities Act); (h) notify each Stockholder and the managing underwriters
participating in the distribution pursuant to such registration statement
promptly (i) when Apple is informed that such registration statement or any
post-effective amendment to such registration statement becomes effective, (ii)
of any request by the Commission for an amendment or any supplement to such
registration statement or any related prospectus, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of such registration
statement or of any order preventing or suspending the use of any related
prospectus or the initiation or threat of any proceeding for that purpose, (iv)
of the suspension of the qualification of any shares of Registrable Common
included in such registration statement for sale in any jurisdiction or the
initiation or threat of a proceeding for that purpose, (v) of any determination
by Apple that any event has occurred which makes untrue any statement of a
material fact made in such registration statement or any related prospectus or
which requires the making of a change in such registration statement or any
related prospectus in order that the same will not contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading and (vi) of
the completion of the distribution contemplated by such registration statement
if it relates to an offering by Apple; (i) in the event of the issuance of any
stop order suspending the effectiveness of such registration statement or of any
order suspending or preventing the use of any related prospectus or suspending
the qualification of any shares of Registrable Common included in such
registration statement for sale in any jurisdiction, use its best efforts to
obtain its withdrawal; (j) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make available to its
security holders, as soon as reasonably practicable, but not later than fifteen
months after the effective date of such registration statement, an earnings
statement covering the period of at least twelve months beginning with the first
full fiscal quarter after the effective date of such registration statement,
which earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act (including Rule 158); (k) if requested by the lead managing
underwriter or a Stockholder, promptly incorporate in a prospectus supplement or
post-effective amendment such information as is requested by such person
pertaining to the terms of the sale of Registerable Common and make all required
filings of the prospectus supplement or post-effective amendment promptly after
notification of the matters to be included therein; (l) use reasonable diligence
to cause all shares of Registrable Common included in such registration
statement to be listed on any securities exchange (including, for this purpose,
the Nasdaq National Market) on which the Common Stock is then listed at the
initiation of Apple; (m) use reasonable diligence to obtain an opinion from
legal counsel (which may include the General Counsel of Apple) in customary form
and covering such matters of the type customarily covered by opinions as the
underwriters, if any, may reasonably request; (n) provide a transfer agent and
registrar for all such Registrable Common not later than the effective date of
such registration statement; (o) enter into such
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customary agreements (including an underwriting agreement in customary form) as
the underwriters, if any, may reasonably request in order to expedite or
facilitate the disposition of such shares of Registrable Common; and (p) use
reasonable diligence to obtain a "comfort letter" from Apple's independent
public accountants, dated the effective date of the registration statement and
the effective date of a prospectus supplement or post-effective amendment to the
registration statement, in customary form and covering such matters of the type
customarily covered by comfort letters as the underwriters, if any, may
reasonably request. As used in this SECTION 3 and elsewhere herein, the term
"underwriters" does not include any Stockholder.
4. UNDERWRITING AGREEMENT. In connection with each registration pursuant to
SECTION 2 covering an underwritten registered public offering, Apple and each
participating Stockholder agree to enter into a written agreement with the
managing underwriter in such form and containing such provisions as are
customary in the securities business for such an arrangement between such
underwriter and companies of Apple's size and investment stature, including
provisions for indemnification by Apple and each Selling Stockholder as more
fully described in SECTION 11 hereof.
5. AVAILABILITY OF RULE 144. Notwithstanding anything contained herein to the
contrary, (including SECTION 2 hereof), Apple shall not be obligated to register
shares of Registrable Common held by any Stockholder when the resale provisions
of Rule 144(k) are available to such Stockholder or such Stockholder is
otherwise entitled to sell the shares of Registrable Common held by him or her
in a brokerage transaction without registration under the Securities Act and
without limitation as to volume or manner of sale or both.
6. RULE 144 REPORTING. With a view to making available the benefits of certain
rules and regulations of the Commission which may permit the sale of the shares
of Registrable Common held by the Stockholders to the public without
registration, Apple agrees to:
(a) make and keep public information available (as those terms are
understood and defined in Rule 144) at all times from and after 90 days
following the effective date of the registration statement;
(b) use its best efforts to file with the Commission in a timely manner
all reports and other documents required of Apple under the Securities Act and
the Exchange Act at any time that it is subject to such reporting requirements;
and
(c) so long as a Stockholder owns any shares of Registrable Common,
furnish to the Stockholder forthwith upon request a written statement by Apple
as to its compliance with the reporting requirements of Rule 144, the Securities
Act and the Exchange Act (at any time that it is subject to such reporting
requirements), a copy of the most recent annual or quarterly report of Apple,
and such other reports and documents filed in accordance with such reporting
requirements as a Stockholder may reasonably request in availing itself of any
rule or regulation of the Commission allowing a Stockholder to sell any such
securities without registration; and
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(d) if required by the transfer agent and registrar for the Common Stock,
use reasonable diligence to obtain an opinion from legal counsel (which may
include the General Counsel of Apple) addressed to such transfer agent and
registrar, with respect to any sale of shares of Registerable Common pursuant to
Rule 144 (or, at the option of Apple, pay the reasonable fees and expenses of
legal counsel retained by a Stockholder to provide such an opinion).
7. MARKET STANDOFF. In consideration of the granting to Stockholders of the
registration rights pursuant to this Agreement, each Stockholder agrees that,
for so long as such Stockholder holds shares of Registrable Common, except as
permitted by SECTION 2 hereof, such Stockholder will not sell, transfer or
otherwise dispose of, including without limitation through put or short sale
arrangements, shares of Common Stock in the ten days prior to the effectiveness
of any registration (other than relating to an Exempt Offering) of Common Stock
for sale to the public and for up to 90 days following the effectiveness of such
registration.
8. REGISTRATION EXPENSES. All expenses incurred in connection with any
registration, qualification and compliance under this Agreement (including,
without limitation, all registration, filing, qualification, legal, printing and
accounting fees) shall be borne by Apple. All underwriting commissions and
discounts applicable to shares of Registrable Common included in the
registrations under this Agreement shall be borne by the holders of the
securities so registered pro rata on the basis of the number of shares so
registered. Subject to the foregoing, all expenses incident to Apple's
performance of or compliance with this Agreement, including, without limitation,
all filing fees, fees and expenses of compliance with securities or Blue Sky
laws (including, without limitation, fees and disbursements of counsel in
connection with Blue Sky qualifications of the Registrable Common), printing
expenses, messenger and delivery expenses, internal expenses (including, without
limitation, all salaries and expenses of Apple's officers and employees
performing legal or accounting duties), the fees and expenses applicable to
shares of Registrable Common included in connection with the listing of the
securities to be registered on each securities exchange (including, for this
purpose, the Nasdaq National Market) on which similar securities issued by Apple
are then listed at the initiation of Apple, registrar and transfer agents' fees
and fees and disbursements of counsel for Apple and its independent certified
public accountants, securities act liability insurance of Apple and its officers
and directors (if Apple elects to obtain such insurance), the fees and expenses
of any special experts retained by Apple in connection with such registration
and fees and expenses of other persons retained by Apple and incurred in
connection with each registration hereunder (but not including, without
limitation, any underwriting fees, discounts or commissions attributable to the
sale of Registrable Common, fees and expenses of counsel and any other special
experts retained by the holders of Registrable Common in connection with a
registration required hereunder, and transfer taxes, if any), will be borne by
Apple.
9. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No holder of Registrable Common
may participate in any underwritten registration hereunder unless such holder
(a) agrees to sell such holder's securities on the basis provided in any
underwriting arrangements approved by the persons entitled hereunder to approve
such arrangements and (b) completes and executes all
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questionnaires, powers of attorney, custody agreements, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements.
10. TRANSFER OF REGISTRATION RIGHTS; ADDITIONAL GRANTS OF REGISTRATION RIGHTS.
The registration rights provided to the holders of Registrable Common under
SECTION 2 hereof may not be transferred to any other person or entity, except to
another Stockholder or pursuant to the laws of descent and distribution;
PROVIDED that such transferees are bound by and subject to the terms and
conditions contained herein. The Company may, without the prior consent of the
Stockholders, extend the registration rights provided for in this Agreement to
additional persons or entities who become holders of Common Stock subsequent to
the date of this Agreement by entering into one or more addenda to this
Agreement with any such stockholders, and, upon execution of any such addenda,
any stockholder that is a party thereto shall thereafter be a "Stockholder" for
purposes of this Agreement and any shares of Common Stock referred to therein as
such shall be shares of "Registrable Common" for purposes of this Agreement.
Nothing herein shall limit the ability of Apple to grant to any person or entity
any registration or similar rights in the future with respect to Common Stock or
other securities of Apple (whether pursuant to the foregoing provision or
otherwise).
11. INDEMNIFICATION AND CONTRIBUTION.
(a) INDEMNIFICATION BY THE COMPANY. To the extent permitted by law,
Apple agrees to indemnify and hold harmless each Stockholder who sells shares of
Registrable Common in a registered offering pursuant to either SECTION 2 hereof
(a "Selling Stockholder"), from and against any and all losses, claims, damages,
liabilities and expenses (including reasonable legal expenses) arising out of or
based upon any violation by Apple of any securities laws or any untrue statement
or alleged untrue statement of a material fact contained in any registration
statement or prospectus relating to the Registrable Common or in any amendment
or supplement thereto or in any related preliminary prospectus, or arising out
of or based upon 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, except insofar as such losses, claims, damages, liabilities or
expenses arise out of, or are based upon, any such untrue statement or omission
or allegation thereof based upon information furnished in writing to Apple by
such Selling Stockholder or on such Selling Stockholder's behalf expressly for
use therein. In connection with an underwritten offering of shares of
Registrable Common, Apple will indemnify any underwriters of the Registrable
Common, their partners, officers and directors and each person who controls such
underwriters (within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act) on substantially the same basis as that of the
indemnification of the Selling Stockholders provided in this SECTION 11(A).
Notwithstanding the foregoing, Apple's indemnification obligations with respect
to any preliminary prospectus shall not inure to the benefit of any Selling
Stockholder or underwriter with respect to any loss, claim, damage, liability
(or actions in respect thereof) or expense arising out of or based on any untrue
statement or alleged untrue statement or omission or alleged omission to state a
material fact in such preliminary prospectus, in any case where (i) a copy of
the prospectus used to confirm sales of shares of Registrable Common was not
sent or given to the person asserting such loss, claim,
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damage or liability at or prior to the written confirmation of the sale to such
person and (ii) such untrue statement or alleged untrue statement or omission or
alleged omission was corrected in such prospectus.
(b) CONDUCT OF INDEMNIFICATION PROCEEDINGS. Promptly after receipt
by a Selling Stockholder of notice of any claim or the commencement of any
action or proceeding brought or asserted against such Selling Stockholder in
respect of which indemnity may be sought from Apple, such Selling Stockholder
shall notify Apple in writing of the claim or the commencement of that action or
proceeding; PROVIDED, HOWEVER, that the failure to so notify Apple shall not
relieve Apple from any liability that it may have to the Selling Stockholder
otherwise than pursuant to the indemnification provisions of this Agreement. If
any such claim or action or proceeding shall be brought against a Selling
Stockholder and such Selling Stockholder shall have duly notified Apple thereof,
Apple shall have the right to assume the defense thereof, including the
employment of counsel. Such Selling Stockholder shall have the right to employ
separate counsel in any such action and to participate in the defense thereof,
but the fees and expenses of such counsel shall be at the expense of such
Selling Stockholder unless (i) Apple has agreed to pay such fees and expenses or
(ii) the named parties to any such action or proceeding include both such
Selling Stockholder and Apple, and such Selling Stockholder shall have been
advised by counsel that there may be one or more legal defenses available to
such Selling Stockholder which are different from or additional to those
available to Apple, in which case, if such Selling Stockholder notifies Apple in
writing that it elects to employ separate counsel at the expense of Apple, Apple
shall not have the right to assume the defense of such action or proceeding on
behalf of such Selling Stockholder; it being understood, however, that Apple
shall not, in connection with any one such action or proceeding or separate but
substantially similar or related actions or proceedings in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for the
fees and expenses of more than one separate firm of attorneys (together with
appropriate local counsel) at any time for all Selling Stockholders. Apple shall
not be liable for any settlement of any such action or proceeding effected
without Apple's written consent. No indemnifying party pursuant to this Section
11 will consent to entry of any judgment or enter into any settlement that does
not include as an unconditional term thereof the giving by the claimant or
plaintiff to such indemnified party of a release from all liability in respect
to such claim or litigation.
(c) INDEMNIFICATION BY HOLDERS OF REGISTRABLE COMMON. In connection
with any registration in which a Selling Stockholder is participating, such
Selling Stockholder will furnish to Apple in writing such information and
affidavits as Apple reasonably requests for use in connection with any related
registration statement or prospectus. To the extent permitted by law, each
Selling Stockholder, severally, and not jointly or jointly and severally, agrees
to indemnify and hold harmless Apple, its directors and officers who sign the
registration statement relating to shares of Registrable Common offered by such
Selling Stockholder and each person, if any, who controls Apple within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act to the same extent as the foregoing indemnity from Apple to such Selling
Stockholder, but only with respect to information concerning such Selling
Stockholder furnished in writing by such Selling Stockholder or on such Selling
Stockholder's
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behalf expressly for use in any registration statement or prospectus relating to
shares of Registrable Common offered by such Selling Stockholder, or any
amendment or supplement thereto, or any related preliminary prospectus. In case
any action or proceeding shall be brought against Apple or its directors or
officers, or any such controlling person, in respect of which indemnity may be
sought against such Selling Stockholder, such Selling Stockholder shall have the
rights and duties given to Apple, and Apple or its directors or officers or such
controlling persons shall have the rights and duties given to such Selling
Stockholder, by the preceding paragraph. Each Selling Stockholder also agrees to
indemnify and hold harmless any underwriters of the Registrable Common, their
partners, officers and directors and each person who controls such underwriters
(within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act) on substantially the same basis as that of the indemnification
of Apple provided in this SECTION 11(C). Notwithstanding anything to the
contrary herein, in no event shall the amount paid or payable by any Selling
Stockholder under this SECTION 11(C) exceed the amount of proceeds received by
such Selling Stockholder from the offering of the Registrable Common.
(d) CONTRIBUTION. If the indemnification provided for in this
SECTION 11 is unavailable to any indemnified party in respect of any losses,
claims, damages, liabilities or expenses referred to herein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and expenses in such proportion as
is appropriate to reflect the relative fault of the indemnifying party and the
indemnified parties in connection with the actions that resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative fault of such indemnifying party and
indemnified parties shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact
relates to information supplied by such indemnified party or indemnified parties
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such action. Apple and the Selling
Stockholders agree that it would not be just and equitable if contribution
pursuant to this SECTION 11(D) were determined by pro rata allocation or by any
other method of allocation that does not take account of the equitable
considerations referred to in this SECTION 11(D). No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. If indemnification is available under this SECTION
11, the indemnifying parties shall indemnify each indemnified party to the full
extent provided in SECTIONS 11(A) and (C) without regard to the relative fault
of said indemnifying party or indemnified party or any other equitable
consideration provided for in this SECTION 11(D)
12. MISCELLANEOUS.
(a) AMENDMENTS AND WAIVERS. Except as otherwise provided herein, the
provisions of this Agreement may not be amended, modified or supplemented, and
waivers or consents to
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departures from the provisions hereof may not be given, unless Apple has
obtained the written consent of holders of at least 51% of the shares of
Registrable Common then outstanding.
(b) NOTICES. All notices and other communications provided for or
permitted hereunder shall be in writing and shall be deemed to have been duly
given if delivered personally or sent by telex or telecopy, or registered or
certified mail (return receipt requested), postage prepaid, or courier to the
parties at the following addresses (or at such other address for any party as
shall be specified by like notice), PROVIDED that notices of a change of address
shall be effective only upon receipt thereof. Notices sent by mail shall be
effective when answered back, notices sent by telecopier shall be effective when
receipt is acknowledged, and notices sent by courier guaranteeing next day
delivery shall be effective on the next business day after timely delivery by
the courier. Notices shall be sent to the following addresses:
(i) if to a Stockholder, at the most current address given by such
Stockholder to Apple in a writing making specific reference to this
Agreement;
(ii) if to Apple, at the following address:
Apple Orthodontix, Inc.
Xxx Xxxx Xxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attn: Xxxxxx X. Xxxxxxxx
Telecopy: (000) 000-0000
with copies to: Xxxxxxx & Xxxxxx, L.L.P.
0000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Xxxx, Esq.
Telecopy: (000) 000-0000
(c) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of
and be binding upon the heirs, executors, administrators, successors and assigns
of each of the parties.
(d) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(e) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(f) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS
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APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED WHOLLY WITHIN
THAT STATE.
(g) SEVERABILITY. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions contained herein shall not be in any way impaired
thereby, it being intended that all the rights and privileges of the
Stockholders shall be enforceable to the fullest extent permitted by law.
(h) ENTIRE AGREEMENT; TERMINATION. This Agreement is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such
subject matter. This Agreement, except the provisions of SECTION 11 (which shall
survive until the expiration of the applicable statutes of limitations) and this
SECTION 12, shall terminate and be of no further force or effect on November 14,
2001.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
APPLE:
APPLE ORTHODONTIX, INC.
By:
Xxxxxx X. Xxxxxxxx
President
STOCKHOLDERS:
[Name]
-12-
