EXHIBIT 10.29
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of June 27,
2000, is made by and among BRITESMILE, INC., a Utah corporation with
headquarters located at 000 Xxxxx Xxxxx Xxxx, Xxxxxx Xxxxx, Xxxxxxxxxx 00000
(the "Company"), the undersigned Purchasers (individually a "Purchaser" and
collectively the "Purchasers"), and FLEETBOSTON XXXXXXXXX XXXXXXXX, INC. with
its principal place of business at 000 Xxxxxxxxxx Xxxxxx, 00/xx/ Xxxxx, Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000 ("Placement Agent").
Recitals
A. In connection with the Securities Purchase Agreement by and among the
parties hereto of even date herewith (the "Purchase Agreement"), the Company has
agreed, upon the terms and subject to the conditions of the Purchase Agreement,
to issue and sell to the Purchasers (i) $15,583,333 aggregate principal amount
of the Company's 5% Convertible Subordinated Notes Due 2005 (the "Notes"), which
will be convertible into shares (as converted, the "Conversion Shares") of the
Company's common stock, par value $0.001 per share (the "Common Stock"), in
accordance with the terms of the Notes and (ii) warrants to purchase shares of
Common Stock (the "Warrants" and, as exercised, the "Warrant Shares").
B. In connection with the closing of the transactions contemplated by the
Purchase Agreement, and as compensation to the Placement Agent, the Company has
agreed to issue a warrant to the Placement Agent (the "Placement Agent Warrant"
and, as exercised, the "Placement Agent Warrant Shares").
C. To induce the Purchasers to execute and deliver the Purchase Agreement,
and the Placement Agent to perform its services in connection with the Purchase
Agreement, the Company has agreed to provide certain registration rights under
the Securities Act of 1933, as amended, and the rules and regulations
thereunder, or any similar successor statute (collectively, the "Securities
Act"), and applicable state securities laws.
Agreement
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and each of the
Purchasers hereby agree as follows:
1. Definitions. As used in this Agreement, the following terms shall have
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the following meanings:
a. "Investor" means a Purchaser, the Placement Agent and any
transferee or assignee thereof about whom the Purchaser or the Placement Agent
provides notice to the Company in accordance with Section 9 and to whom a
Purchaser or the Placement Agent assigns its rights under this Agreement and who
agrees to become bound by the provisions of this Agreement in accordance with
Section 9 and any transferee or assignee thereof to whom a transferee or
assignee assigns its rights under this Agreement and who agrees to become bound
by the provisions of this Agreement in accordance with Section 9.
b. "Person" means a corporation, a limited liability company, an
association, a partnership, an organization, a business, an individual, a
governmental or political subdivision thereof or a governmental agency.
c. "Register," "registered," and "registration" refer to a
registration effected by preparing and filing one or more Registration
Statements (as defined below) in compliance with the Securities Act and pursuant
to Rule 415 under the Securities Act or any successor rule providing for
offering securities on a continuous or delayed basis ("Rule 415"), and the
declaration or ordering of effectiveness of such Registration Statement(s) by
the United States Securities and Exchange Commission (the "SEC").
d. "Registrable Securities" means (i) the Conversion Shares issued
or issuable upon conversion of the Notes, (ii) the Warrant Shares issued or
issuable upon exercise of the Warrants, (iii) the Placement Agent Warrant Shares
issued or issuable upon exercise of the Placement Agent Warrant and (iv) any
shares of capital stock issued or issuable with respect to the Conversion
Shares, the Notes, the Warrant Shares, the Placement Agent Warrant Shares, the
Warrants or the Placement Agent Warrant as a result of any stock split, stock
dividend, recapitalization, exchange or similar event or otherwise, without
regard to any limitations on conversions of the Notes or exercises of Warrants.
e. "Registration Statement" means a registration statement or
registration statements of the Company filed under the Securities Act covering
the Registrable Securities.
Capitalized terms used herein and not otherwise defined herein shall have
the respective meanings set forth in the Purchase Agreement and its exhibits,
schedules and attachments.
2. Registration.
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a. Mandatory Registration. The Company shall prepare, and, as soon
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as practicable, but in no event later than the first Business Day after the date
which is forty-five (45) days after the Closing Date (as defined in the Purchase
Agreement) (the "Filing Deadline") file with the SEC a Registration Statement or
Registration Statements (as necessary) on Form S-3 covering the resale of the
Registrable Securities as provided for in this Section 2(a). In the event that
Form S-3 is unavailable for such a registration,
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the Company shall use such other form as is available for such a registration,
subject to the provisions of Section 2(d). The initial Registration Statement
prepared pursuant hereto shall register for resale at least that number of
shares of Common Stock equal to the sum of (A) (i) $23,375,000 divided by (ii)
the product of (y) 75% and (z) the Market Price (as defined in the Notes) on the
Pricing Date (as defined in the Notes) plus (B) 100% of the number of Warrant
Shares issuable upon exercise of the Warrants (without regard to any limitations
on exercise) as of the trading day immediately preceding the date the
Registration Statement is initially filed with the SEC. The Company shall use
its best efforts to cause such Registration Statement to be declared effective
by the SEC as soon as practicable, but in no event later than the date which is
One Hundred Twenty (120) days after the Closing Date (the "Effectiveness
Deadline")
b. Allocation of Registrable Securities. The initial number of
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Registrable Securities included in any Registration Statement and each increase
in the number of Registrable Securities included therein shall be allocated pro
rata among the Investors based on the number of Registrable Securities held by
each Investor at the time the Registration Statement covering such initial
number of Registrable Securities or increase thereof is declared effective by
the SEC. In the event that an Investor sells or otherwise transfers any of such
Investor's Registrable Securities, each transferee shall be allocated a pro rata
portion of the then remaining number of Registrable Securities included in such
Registration Statement for such transferor. Any shares of Common Stock included
in a Registration Statement and which remain allocated to any Person which
ceases to hold any Registrable Securities covered by such Registration Statement
shall be allocated to the remaining Investors, pro rata based on the number of
Registrable Securities then held by such Investors which are covered by such
Registration Statement.
c. Legal Counsel. Subject to Section 5 hereof, the Purchasers
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holding at least two thirds (2/3) of the Registrable Securities shall have the
right to select one legal counsel to review and oversee any offering pursuant to
this Section 2 ("Legal Counsel"). The Company shall reasonably cooperate with
Legal Counsel in performing the Company's obligations under this Agreement.
d. Ineligibility for Form S-3. In the event that Form S-3 is not
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available for any registration of Registrable Securities hereunder, the Company
shall (i) register the sale of the Registrable Securities on another appropriate
form and (ii) undertake to register the Registrable Securities on Form S-3 as
soon as such form is available, provided that the Company shall maintain the
effectiveness of the Registration Statement then in effect until such time as a
Registration Statement on Form S-3 covering the Registrable Securities has been
declared effective by the SEC.
e. Sufficient Number of Shares Registered. In the event the number
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of shares available under a Registration Statement filed pursuant to Section
2(a) is insufficient to cover all of the Registrable Securities required to be
covered by such Registration Statement or an Investor's allocated portion of the
Registrable Securities pursuant to Section 2(b), the Company shall amend the
Registration Statement, or file a new Registration Statement (on the short form
available therefor, if applicable), or both,
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so as to cover at least 200% of the number of such Registrable Securities as of
the trading day immediately preceding the date of the filing of such amendment
or new Registration Statement, in each case, as soon as practicable, but in any
event not later than fifteen (15) days after the necessity therefor arises. The
Company shall use it best efforts to cause such amendment and/or new
Registration Statement to become effective as soon as practicable following the
filing thereof. For purposes of the foregoing provision, the number of shares
available under a Registration Statement shall be deemed "insufficient to cover
all of the Registrable Securities" if at any time after (i) an adjustment to the
Conversion Price (as defined in the Notes) pursuant to Section 2(f)(i) of the
Notes or (ii) an adjustment to the Exercise Price (as defined in the Warrants)
pursuant to Section 8(a) of the Warrants, the number of Registrable Securities
issued or issuable upon conversion of the Notes and exercise of the Warrants
covered by such Registration Statement is greater than the quotient determined
by dividing (i) the number of shares of Common Stock available for resale under
such Registration Statement by (ii) 1.5. The calculation set forth in the
foregoing sentence shall be made without regard to any limitations on the
conversion of the Notes or exercise of the Warrants and such calculation shall
assume that the Notes and the Warrants are then convertible and exercisable,
respectively, into shares of Common Stock at the then prevailing Conversion Rate
(as defined in the Notes) and Exercise Price (as defined in the Warrants),
respectively, if applicable.
f. Effect of Failure to File and Obtain and Maintain Effectiveness
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of Registration Statement.
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(i) Failure to File and Obtain Effectiveness. If a
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Registration Statement covering all the applicable Registrable Securities and
required to be filed by the Company pursuant to this Agreement is not (A) filed
with the SEC on or before the Filing Deadline or (B) declared effective by the
SEC on or before the Effectiveness Deadline, then, as partial relief for the
damages to any holder (which remedy shall not be exclusive of any other remedies
available at law or in equity), the Company shall pay to each holder of the
Notes an amount in cash equal to the product of (i) the aggregate Conversion
Amount of Notes held by such holder of Notes multiplied by (ii) the sum of (A)
0.01, if the Registration Statement is not filed by the Filing Deadline, plus
(B) 0.01, if the Registration Statement is not declared effective by the
Effectiveness Deadline, plus (C) the product of (I) 0.0005 multiplied by (II)
the sum of (x) the number of days after the Filing Deadline that such
Registration Statement is not filed with the SEC, plus (y) the number of days
after the Effectiveness Deadline that such Registration Statement is not
declared effective by the SEC.
(ii) Failure to Maintain Effectiveness. If on any day after a
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Registration Statement has been declared effective by the SEC, sales of all the
Registrable Securities required to be included on such Registration Statement
cannot be made pursuant to such Registration Statement for any reason
(including, without limitation, because of a failure to keep the Registration
Statement effective, to disclose such information as is necessary for sales to
be made (other than during an Allowable Grace Period (as defined below))
pursuant to such Registration Statement or to have registered a sufficient
number of shares of Common Stock), then, as partial relief for the
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damages to any holder (which remedy shall not be exclusive of any other remedies
available at law or in equity), the Company shall pay to each holder of the
Notes an amount in cash equal to: (A) the product of (i) the aggregate
Conversion Amount of Notes held by such holder of Notes and (ii) the product of
(I) 0.01 and (II) the number of days after effectiveness of a Registration
Statement that it has lapsed or is unavailable (as described above) (other than
during an Allowable Grace Period).
(iii) Date of Payment. The payments to which a holder shall be
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entitled pursuant to this Section 2(d) are referred to herein as "Registration
Delay Payments." Registration Delay Payments shall be paid on the earlier of (I)
the last day of the calendar month during which such Registration Delay Payments
are incurred and (II) the third business day after the event or failure giving
rise to the Registration Delayed Payments is cured. In the event the Company
fails to make Registration Delay Payments in a timely manner, such Registration
Delay Payments shall bear interest at the rate of 1.5% per month (prorated for
partial months) until paid in full.
3. Related Obligations. At such time as the Company is obligated to file
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a Registration Statement with the SEC pursuant to Section 2(a) or 2(e), the
Company will use its best efforts to effect the registration of the Registrable
Securities in accordance with the intended method of disposition thereof and,
pursuant thereto, the Company shall have the following obligations:
a. The Company shall promptly prepare and file with the SEC a
Registration Statement with respect to the Registrable Securities (but in no
event later than the Filing Deadline) and use its best efforts to cause such
Registration Statement relating to the Registrable Securities to become
effective as soon as possible after such filing (but in no event later than the
Effectiveness Deadline) and keep such Registration Statement effective pursuant
to Rule 415 at all times until the earlier of (i) the date as of which the
Investors may sell all of the Registrable Securities without restriction
pursuant to Rule 144(k) promulgated under the Securities Act (or successor
thereto) or (ii) the date on which (A) the Investors shall have sold all the
Registrable Securities and (B) none of the Notes or Warrants or the Placement
Agent Warrant is outstanding (the "Registration Period"), which Registration
Statement (including any amendments or supplements thereto and prospectuses
contained therein) shall not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein, or necessary to
make the statements therein, in light of the circumstances in which they were
made, not misleading. The term "best efforts" as used in the first sentence of
this Section 3(a) shall mean, among other things, that the Company shall submit
to the SEC, within three (3) business days after the Company learns that no
review of a particular Registration Statement will be made by the staff of the
SEC or that the staff has no further comments on the Registration Statement, as
the case may be, a request for acceleration of effectiveness of such
Registration Statement to a time and date not later than forty-eight (48) hours
after the submission of such request.
b. The Company shall prepare and file with the SEC such amendments
(including post-effective amendments) and supplements to a Registration
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Statement and the prospectus used in connection with such Registration
Statement, which prospectus is to be filed pursuant to Rule 424 promulgated
under the Securities Act, as may be necessary to keep such Registration
Statement effective at all times during the Registration Period, and, during
such period, comply with the provisions of the Securities Act with respect to
the disposition of all Registrable Securities of the Company covered by such
Registration Statement until such time as all of such Registrable Securities
shall have been disposed of in accordance with the intended methods of
disposition by the seller or sellers thereof as set forth in such Registration
Statement. In the case of amendments and supplements to a Registration
Statement which are required to be filed pursuant to this Agreement (including
pursuant to this Section 3(b)) by reason of the Company filing a report on Form
10-K, Form 10-Q or Form 8-K or any analogous report under the Securities
Exchange Act of 1934, as amended (the "1934 Act"), the Company shall file such
amendments or supplements with the SEC on the same day on which the 1934 Act
report is filed which created the requirement for the Company to amend or
supplement the Registration Statement.
c. The Company shall (a) permit Legal Counsel to review and comment
upon a Registration Statement and all amendments and supplements thereto at
least five (5) Business Days prior to their filing with the SEC and (b) not file
any document in a form to which Legal Counsel reasonably objects, provided that
notwithstanding anything to the contrary in this Agreement, the Company shall
suffer no adverse consequence from any delay in the filing of a Registration
Statement if such delay is caused by any delay in review of or comment on such
Registration Statement by Legal Counsel. The Company shall not submit a request
for acceleration of the effectiveness of a Registration Statement or any
amendment or supplement thereto without the prior approval of Legal Counsel,
which consent shall not be unreasonably withheld. The Company shall promptly
furnish to Legal Counsel, without charge, (i) any correspondence from the SEC or
the staff of the SEC to the Company or its representatives relating to any
Registration Statement, (ii) promptly after the same is prepared and filed with
the SEC, one copy of any Registration Statement and any amendment(s) thereto,
including financial statements and schedules, and all exhibits and (iii) upon
the effectiveness of any Registration Statement, one copy of the prospectus
included in such Registration Statement and all amendments and supplements
thereto. The Company shall reasonably cooperate with Legal Counsel in performing
the Company's obligations pursuant to this Section 3.
d. The Company shall furnish to each Investor whose Registrable
Securities are included in any Registration Statement, without charge, (i)
promptly after the same is prepared and filed with the SEC, at least one copy of
such Registration Statement and any amendment(s) thereto, including financial
statements and schedules, and all exhibits, (ii) upon the effectiveness of any
Registration Statement, ten (10) copies of the prospectus included in such
Registration Statement and all amendments and supplements thereto (or such other
number of copies as such Investor may reasonably request) and (iii) such other
documents, including copies of any preliminary or final prospectus, as such
Investor may reasonably request from time to time in order to facilitate the
disposition of the Registrable Securities owned by such Investor.
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e. The Company shall use reasonable efforts to (i) register and
qualify the Registrable Securities covered by a Registration Statement under
such other securities or "blue sky" laws of such jurisdictions in the United
States as Legal Counsel or any Investor reasonably requests, (ii) prepare and
file in those jurisdictions such amendments (including post- effective
amendments) and supplements to such registrations and qualifications as may be
necessary to maintain the effectiveness thereof during the Registration Period,
(iii) take such other actions as may be necessary to maintain such registrations
and qualifications in effect at all times during the Registration Period, and
(iv) take all other actions reasonably necessary or advisable to qualify the
Registrable Securities for sale in such jurisdictions; provided, however, that
the Company shall not be required in connection therewith or as a condition
thereto to (x) qualify to do business in any jurisdiction where it would not
otherwise be required to qualify but for this Section 3(e), (y) subject itself
to general taxation in any such jurisdiction, or (z) file a general consent to
service of process in any such jurisdiction. The Company shall promptly notify
Legal Counsel and each Investor who holds Registrable Securities of the receipt
by the Company of any notification with respect to the suspension of the
registration or qualification of any of the Registrable Securities for sale
under the securities or "blue sky" laws of any jurisdiction in the United States
or its receipt of actual notice of the initiation or threat of any proceeding
for such purpose.
f. As promptly as practicable after becoming aware of such event or
development, the Company shall notify Legal Counsel and each Investor in writing
of the happening of any event as a result of which the prospectus included in a
Registration Statement, as then in effect, includes an untrue statement of a
material fact or omission to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading (provided that such notice shall not
contain any material, nonpublic information), and promptly prepare a supplement
or amendment to such Registration Statement to correct such untrue statement or
omission, and deliver ten (10) copies of such supplement or amendment to Legal
Counsel and each Investor (or such other number of copies as Legal Counsel or
such Investor may reasonably request). The Company shall also promptly notify
Legal Counsel and each Investor in writing (i) when a prospectus or any
prospectus supplement or post-effective amendment has been filed, and when a
Registration Statement or any post-effective amendment has become effective
(notification of such effectiveness shall be delivered to Legal Counsel and each
Investor by facsimile on the same day of such effectiveness and by overnight
mail), (ii) of any request by the SEC for amendments or supplements to a
Registration Statement or related prospectus or related information, and (iii)
of the Company's reasonable determination that a post-effective amendment to a
Registration Statement would be appropriate.
g. The Company shall use its best efforts to prevent the issuance of
any stop order or other suspension of effectiveness of a Registration Statement,
or the suspension of the qualification of any of the Registrable Securities for
sale in any jurisdiction and, if such an order or suspension is issued, to
obtain the withdrawal of such order or suspension at the earliest possible
moment and to notify Legal Counsel and each
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Investor who holds Registrable Securities being sold of the issuance of such
order and the resolution thereof or its receipt of actual notice of the
initiation or threat of any proceeding for such purpose.
h. At the reasonable request of any Purchaser, the Company shall
furnish to such Purchaser, on the date of the effectiveness of the Registration
Statement and thereafter from time to time upon any change or addition
(including by way of incorporation by reference) to the financial statements or
financial information included in the Registration Statement (i) a letter, dated
such date, from the Company's independent certified public accountants in form
and substance as is customarily given by independent certified public
accountants to underwriters in an underwritten public offering, addressed to
such Purchaser and the Company, and (ii) an opinion, dated as of such date, of
counsel representing the Company for purposes of such Registration Statement, in
form, scope and substance as is customarily given in an underwritten public
offering, addressed to such Purchaser.
i. The Company shall make available for inspection by (i) any
Investor, (ii) Legal Counsel and (iii) accountants or other agents retained by
the Investors (collectively, the "Inspectors") all pertinent financial and other
records, and pertinent corporate documents and properties of the Company
(collectively, the "Records"), as shall be reasonably deemed necessary by each
Inspector, and cause the Company's officers, directors and employees to supply
all information which any Inspector may reasonably request; provided, however,
that each Inspector shall hold in strict confidence and shall not make any
disclosure (except to an Investor) or use of any Record or other information
which the Company determines in good faith to be confidential, and of which
determination the Inspectors are so notified, unless (a) the disclosure of such
Records is necessary to avoid or correct a misstatement or omission in any
Registration Statement or is otherwise required under the Securities Act, (b)
the release of such Records is ordered pursuant to a final, non-appealable
subpoena or order from a court or government body of competent jurisdiction, or
(c) the information in such Records has been made generally available to the
public other than by disclosure in violation of this or any other agreement of
which the Inspector has knowledge. Each Investor agrees that it shall, upon
learning that disclosure of such Records is sought in or by a court or
governmental body of competent jurisdiction or through other means, give prompt
notice to the Company and allow the Company, at its expense, to undertake
appropriate action to seek to prevent disclosure of, or to seek to obtain a
protective order for, the Records deemed confidential.
j. The Company shall hold in confidence and not make any disclosure
of information concerning an Investor provided to the Company unless (i)
disclosure of such information is necessary to comply with federal or state
securities laws, (ii) the disclosure of such information is necessary to avoid
or correct a misstatement or omission in any Registration Statement, (iii) the
release of such information is ordered pursuant to a subpoena or other final,
non-appealable order from a court or governmental body of competent
jurisdiction, or (iv) such information has been made generally available to the
public other than by disclosure in violation of this Agreement or any other
agreement. The Company agrees that it shall, upon learning that
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disclosure of such information concerning an Investor is sought in or by a court
or governmental body of competent jurisdiction or through other means, give
prompt written notice to such Investor and allow such Investor, at the
Investor's expense, to undertake appropriate action to seek to prevent
disclosure of, or to seek to obtain a protective order for, such information.
k. The Company shall use its best efforts either to (i) cause all
the Registrable Securities covered by a Registration Statement to be listed on
each securities exchange on which securities of the same class or series issued
by the Company are then listed, if any, if the listing of such Registrable
Securities is then permitted under the rules of such exchange, or (ii) secure
designation and quotation of all the Registrable Securities covered by the
Registration Statement on the Nasdaq National Market, The American Stock
Exchange, Inc., or The New York Stock Exchange, Inc., or (iii) if, despite the
Company's best efforts to satisfy the preceding clause (i) or (ii), the Company
is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the
inclusion for quotation on The Nasdaq SmallCap Market for such Registrable
Securities and, without limiting the generality of the foregoing, to arrange for
at least two market makers to register with the National Association of
Securities Dealers, Inc. (the "NASD") as such with respect to such Registrable
Securities. The Company shall pay all fees and expenses in connection with
satisfying its obligation under this Section 3(k).
l. The Company shall cooperate with the Investors who hold
Registrable Securities being offered and, to the extent applicable, to
facilitate the timely preparation and delivery of certificates (not bearing any
restrictive legend, provided that the Investors shall have provided reasonably
sufficient representations to the Company that they have satisfied any
prospectus delivery requirement applicable under the Securities Act or under
applicable state securities laws) representing the Registrable Securities to be
offered pursuant to a Registration Statement and enable such certificates to be
in such denominations or amounts, as the case may be, as the Investors may
reasonably request and registered in such names as the Investors may request.
m. The Company shall provide a transfer agent and registrar of all
such Registrable Securities not later than the effective date of such
Registration Statement.
n. If requested by an Investor, the Company shall (i) immediately
incorporate in a prospectus supplement or post-effective amendment such
information as an Investor requests to be included therein relating to the sale
and distribution of Registrable Securities, including, without limitation,
information with respect to the number of Registrable Securities being offered
or sold, the purchase price being paid therefor and any other terms of the
offering of the Registrable Securities; (ii) make all required filings of such
prospectus supplement or post-effective amendment as soon as notified of the
matters to be incorporated in such prospectus supplement or post-effective
amendment; and (iii) supplement or make amendments to any Registration Statement
if requested by an Investor of such Registrable Securities.
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o. The Company shall use its best efforts to cause the Registrable
Securities covered by the applicable Registration Statement to be registered
with or approved by such other governmental agencies or authorities as may be
necessary to consummate the disposition of such Registrable Securities.
p. The Company shall make generally available to its security
holders as soon as practical, but not later than ninety (90) days after the
close of the period covered thereby, an earnings statement (in form complying
with the provisions of Rule 158 under the Securities Act) covering a twelve-
month period beginning not later than the first day of the Company's fiscal
quarter next following the effective date of the Registration Statement.
q. The Company shall otherwise use its best efforts to comply with
all applicable rules and regulations of the SEC in connection with any
registration hereunder.
r. Within two (2) business days after a Registration Statement which
includes the Registrable Securities is ordered effective by the SEC, the Company
shall deliver, and shall cause legal counsel for the Company to deliver, to the
transfer agent for such Registrable Securities (with copies to the Investors
whose Registrable Securities are included in such Registration Statement)
confirmation that such Registration Statement has been declared effective by the
SEC in the form attached hereto as Exhibit A.
s. The Company shall take all other reasonable actions necessary to
expedite and facilitate disposition by the Investors of Registrable Securities
pursuant to a Registration Statement.
t. Notwithstanding anything to the contrary in this Agreement, at
any time after the applicable Registration Statement has been declared effective
by the SEC, the Company may delay the disclosure of material non-public
information concerning the Company the disclosure of which at the time is not,
in the good faith opinion of the Board of Directors of the Company, in the best
interest of the Company and, in the opinion of counsel to the Company, otherwise
required (a "Grace Period"); provided, that the Company shall promptly (i)
notify the Investors in writing of the existence of material non-public
information giving rise to a Grace Period (provided that in each notice the
Company will not disclose the content of such material non- public information
to the Investors) and the date on which the Grace Period will begin, and (ii)
notify the Investors in writing of the date on which the Grace Period ends; and,
provided further, that no Grace Period shall exceed 15 consecutive days and
during any consecutive 365 day period, such Grace Periods shall not exceed an
aggregate of 30 days and the first day of any Grace Period must be at least two
trading days after the last day of any prior Grace Period (an "Allowable Grace
Period"). For purposes of determining the length of a Grace Period above, the
Grace Period shall begin on and include the date the holders receive the notice
referred to in clause (i) and shall end on and include the later of the date the
holders receive the notice referred to in clause (ii) and the date referred to
in such notice. The provisions of Section 3(f) hereof shall not be applicable
during the period of
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any Allowable Grace Period. Upon expiration of the Grace Period, the Company
shall again be bound by the first sentence of Section 3(f) with respect to the
information giving rise thereto unless such material non-public information is
no longer applicable.
4. Obligations Of The Investors.
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a. At least seven (7) days prior to the first anticipated filing date of
a Registration Statement, the Company shall notify each Investor in writing of
the information the Company requires from each such Investor if such Investor
elects to have any of such Investor's Registrable Securities included in such
Registration Statement. It shall be a condition precedent to the obligations of
the Company to complete the registration pursuant to this Agreement with respect
to the Registrable Securities of a particular Investor that such Investor shall
furnish to the Company such information regarding itself, the Registrable
Securities held by it and the intended method of disposition of the Registrable
Securities held by it as shall be reasonably required to effect the registration
of such Registrable Securities and shall execute such documents in connection
with such registration as the Company may reasonably request.
b. Each Investor by such Investor's acceptance of the Registrable
Securities agrees to cooperate with the Company as reasonably requested by the
Company in connection with the preparation and filing of any Registration
Statement hereunder, unless such Investor has notified the Company in writing of
such Investor's election to exclude all of such Investor's Registrable
Securities from such Registration Statement.
c. Each Investor agrees that, upon receipt of any notice from the Company
of the happening of any event of the kind described in Section 3(g) or the first
sentence of 3(f), such Investor will immediately discontinue disposition of
Registrable Securities pursuant to any Registration Statement(s) covering such
Registrable Securities until such Investor's receipt of the copies of the
supplemented or amended prospectus contemplated by Section 3(g) or the first
sentence of 3(f) or receipt of notice that no supplement or amendment is
required. Notwithstanding anything to the contrary, the Company shall cause its
transfer agent to deliver unlegended shares of Common Stock to a transferee of
an Investor in accordance with the terms of the Purchase Agreement in connection
with any sale of Registrable Securities with respect to which an Investor has
entered into a contract for sale prior to the Investor's receipt of a notice
from the Company of the happening of any event of the kind described in Section
3(f) or the first sentence of 3(h) and for which the Investor has not yet
settled.
5. Expenses Of Registration. All reasonable expenses, other than
------------------------
underwriting discounts and brokerage commissions, incurred in connection with
registrations, filings or qualifications pursuant to Sections 2 and 3,
including, without limitation, all registration, listing and qualifications
fees, printers, legal and accounting fees shall be paid by the Company. In
addition, the Company shall reimburse the Investors for the reasonable fees and
disbursements of Legal Counsel in connection with registrations, filings or
qualifications pursuant to Sections 2 and 3 of this Agreement
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(other than Section 3(h)) which amount combined with expenses incurred by the
Purchasers pursuant to Section 3.7 of the Purchase Agreement shall not exceed
$50,000.
6. Indemnification. In the event any Registrable Securities are included
---------------
in a Registration Statement under this Agreement:
a. Indemnification by the Company. The Company shall,
------------------------------
notwithstanding any termination of this Agreement and without limitation as to
time, indemnify and hold harmless each Investor, the officers, directors,
partners, members, agents (including any underwriters retained by such Investor
in connection with the offer and sale of Registrable Securities), each Person
who controls any such Investor (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) and the officers, directors,
agents and employees of each such controlling Person, to the fullest extent
permitted by applicable law, from and against any and all losses, claims,
damages, liabilities, costs (including, without limitation, costs of preparation
and attorneys' fees) and expenses (collectively, "Losses"), as incurred, arising
out of or relating to any untrue or alleged untrue statement of a material fact
contained in a Registration Statement, any Prospectus or any form of prospectus
or in any amendment or supplement thereto or in any preliminary prospectus, or
arising out of or relating to any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein
(in the case of any Prospectus or form of prospectus or supplement thereto, in
light of the circumstances under which they were made) not misleading, except to
the extent, but only to the extent, that such untrue statements or omissions are
based solely upon information regarding such Investor furnished in writing to
the Company by or on behalf of such Investor expressly for use therein, which
information was reasonably relied on by the Company for use therein or to the
extent that such information relates to such Investor or such Investor's
proposed method of distribution of Registrable Securities and was reviewed and
expressly approved in writing by such Investor expressly for use in the
Registration Statement, such Prospectus or such form of Prospectus or in any
amendment or supplement thereto.
b. Indemnification by Investors. In connection with any Registration
----------------------------
Statement in which an Investor is identified as a selling shareholder, each such
Investor shall, severally and not jointly, indemnify and hold harmless the
Company, the directors, officers, agents and employees, each Person who controls
the Company (within the meaning of Section 15 of the Securities Act and Section
20 of the Exchange Act), and the directors, officers, agents or employees of
such controlling Persons, to the fullest extent permitted by applicable law,
from and against all Losses (as determined by a court of competent jurisdiction
in a final judgment not subject to appeal or review) arising solely out of or
based solely upon any untrue statement of a material fact or alleged untrue
statement of material fact contained in the Registration Statement, any
Prospectus, or any form of prospectus, or arising solely out of or based solely
upon any omission or alleged omission of a material fact required to be stated
therein or necessary to make the statements therein not misleading to the
extent, but only to the extent, that such untrue statement or omission is
contained in any information so furnished in writing by such Investor to the
Company specifically for inclusion in the Registration Statement or such
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Prospectus and that such information was reasonably relied upon by the Company
for use in the Registration Statement, such Prospectus or such form of
prospectus or to the extent that such information relates to such Investor or
such Investor's proposed method of distribution of Registrable Securities and
was reviewed and expressly approved in writing by such Investor expressly for
use in the Registration Statement, such Prospectus or such form of Prospectus.
Notwithstanding anything to the contrary in this Agreement, in no event shall
the liability of any selling Investor hereunder be greater in amount than the
dollar amount of the net proceeds received by such Investor upon the sale of the
Registrable Securities giving rise to such indemnification obligation.
c. Conduct of Indemnification Proceedings.
--------------------------------------
(i) If any Proceeding shall be brought or asserted against any
Person entitled to indemnity hereunder (an "Indemnified Party"), such
Indemnified Party promptly shall notify the Person from whom indemnity is sought
(the "Indemnifying Party") in writing, and the Indemnifying Party shall assume
the defense thereof, including the employment of counsel reasonably satisfactory
to the Indemnified Party and the payment of all fees and expenses incurred in
connection with defense thereof; provided, that the failure of any Indemnified
Party to give such notice shall not relieve the Indemnifying Party of its
obligations or liabilities pursuant to this Agreement, except (and only) to the
extent that it shall be finally determined by a court of competent jurisdiction
(which determination is not subject to appeal or further review) that such
failure shall have proximately and materially adversely prejudiced the
Indemnifying Party.
(ii) An Indemnified Party shall have the right to employ
separate counsel in any such Proceeding and to participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Party or Parties unless: (1) the Indemnifying Party has agreed
to pay such fees and expenses; or (2) the Indemnifying Party shall have failed
promptly to assume the defense of such Proceeding and to employ counsel
reasonably satisfactory to such Indemnified Party in any such Proceeding; or (3)
the named parties to any such Proceeding (including any impleaded parties)
include both such Indemnified Party and the Indemnifying Party, and such
Indemnified Party shall have been advised by counsel that a conflict of interest
is likely to exist if the same counsel were to represent such Indemnified Party
and the Indemnifying Party (in which case, if such Indemnified Party notifies
the Indemnifying Party in writing that it elects to employ separate counsel at
the expense of the Indemnifying Party, the Indemnifying Party shall not have the
right to assume the defense thereof and such counsel shall be at the expense of
the Indemnifying Party). The Indemnifying Party shall not be liable for any
settlement of any such Proceeding effected without its written consent, which
consent shall not be unreasonably withheld. No Indemnifying Party shall, without
the prior written consent of the Indemnified Party, effect any settlement of any
pending Proceeding in respect of which any Indemnified Party is a party, unless
such settlement includes an unconditional release of such Indemnified Party from
all liability on claims that are the subject matter of such Proceeding.
-13-
(iii) All fees and expenses of the Indemnified Party (including
reasonable fees and expenses to the extent incurred in connection with
investigating or preparing to defend such Proceeding in a manner not
inconsistent with this Section) shall be paid to the Indemnified Party, as
incurred, within ten (10) Business Days after written notice thereof to the
Indemnifying Party (regardless of whether it is ultimately determined that an
Indemnified Party is not entitled to indemnification hereunder; provided, that
the Indemnifying Party may require such Indemnified Party to undertake to
reimburse all such fees and expenses to the extent it is finally judicially
determined that such Indemnified Party is not entitled to indemnification
hereunder).
(iv) The Indemnified Party shall notify the Indemnifying Party
promptly of any Proceeding of which the Indemnified Party shall have been
notified in writing in connection with the transactions contemplated by this
Agreement and as to which the Indemnified Party believes it may be entitled to
indemnification hereunder. The failure of the Indemnified Party to so notify the
Indemnifying Party of such a Proceeding shall not impair or affect the
Indemnified Party's rights to indemnification hereunder except and only to the
extent that such failure is shown to be the proximate cause of additional Loss.
d. Contribution. If a claim for indemnification under Section 6(a)
------------
or 6(b) is unavailable to an Indemnified Party because of a failure or refusal
of a governmental authority to enforce such indemnification in accordance with
its terms (by reason of public policy or otherwise), 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, in
such proportion as is appropriate to reflect the relative fault of the
Indemnifying Party and Indemnified Party in connection with the actions,
statements or omissions that resulted in such Losses as well as any other
relevant equitable considerations. The relative fault of such Indemnifying Party
and Indemnified Party 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 of a material fact, has been
taken or made by, or relates to information supplied by, such Indemnifying Party
or Indemnified Party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action, statement or
omission. The amount paid or payable by a party as a result of any Losses shall
be deemed to include, subject to the limitations set forth in Section 6(c), any
attorneys' or other fees or expenses incurred by such party in connection with
any Proceeding to the extent such party would have been indemnified for such
fees or expenses if the indemnification provided for in this Section was
available to such party in accordance with its terms. The parties hereto agree
that it would not be just and equitable if contribution pursuant to this Section
6(d) were determined by pro rata allocation or by any other method of allocation
that does not take into account the equitable considerations referred to in the
immediately preceding paragraph. Notwithstanding the provisions of this Section
6(d), the Purchaser shall not be required to contribute, in the aggregate, any
amount in excess of the amount by which the proceeds actually received by the
Purchaser from the sale of the Registrable Securities subject to the Proceeding
-14-
exceeds the amount of any damages that the Purchaser has otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Per-son who was not guilty of such fraudulent
misrepresentation.
e. Cumulative. The indemnity and contribution agreements contained
----------
in this Section are in addition to any liability that the Indemnifying Parties
may have to the Indemnified Parties.
7. Reports Under The 1934 Act. With a view to making available to the
--------------------------
Investors the benefits of Rule 144 promulgated under the Securities Act or any
other similar rule or regulation of the SEC that may at any time permit the
Investors to sell securities of the Company to the public without registration
("Rule 144"), the Company agrees to:
a. make and keep public information available, as those terms are
understood and defined in Rule 144;
b. file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the 1934 Act so
long as the Company remains subject to such requirements (it being understood
that nothing herein shall limit the Company's obligations under Section 3.3 of
the Purchase Agreement) and the filing of such reports and other documents is
required for the applicable provisions of Rule 144; and
c. furnish to each Investor so long as such Investor owns
Registrable Securities, promptly upon request, (i) a written statement by the
Company that it has complied with the reporting requirements of the 1934 Act or,
if applicable, that there is publicly available the information concerning the
Company described in Rule 144(C)(2), (ii) unless available on the XXXXX system,
a copy of the most recent annual or quarterly report of the Company and such
other reports and documents so filed by the Company, and (iii) such other
information as may be reasonably requested to permit the investors to sell such
securities pursuant to Rule 144 without registration.
9. Assignment Of Registration Rights. The rights under this Agreement
---------------------------------
shall be automatically assignable by the Investors to any transferee of all or
any portion of Registrable Securities if: (i) the Investor agrees in writing
with the transferee or assignee to assign such rights, and a copy of such
agreement is furnished to the Company within a reasonable time after such
assignment; (ii) the Company is, within a reasonable time after such transfer or
assignment, furnished with written notice of (a) the name and address of such
transferee or assignee, and (b) the securities with respect to which such
registration rights are being transferred or assigned; (iii) immediately
following such transfer or assignment the further disposition of such securities
by the transferee or assignee is restricted under the Securities Act and
applicable state securities laws; (iv) at or before the time the Company
receives the written notice contemplated by clause (ii) of this
-15-
sentence the transferee or assignee agrees in writing with the Company to be
bound by all of the provisions contained herein; and (v) such transfer shall
have been made in accordance with the applicable requirements of the Purchase
Agreement.
10. Amendment Of Registration Rights. Provisions of this Agreement may be
--------------------------------
amended and the observance thereof may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with the
written consent of the Company and Investors who then hold two-thirds (2/3) of
the Registrable Securities. Any amendment or waiver effected in accordance with
this Section 10 shall be binding upon each Investor and the Company. No such
amendment shall be effective to the extent that it applies to less than all of
the holders of the Registrable Securities. No consideration shall be offered or
paid to any Person to amend or consent to a waiver or modification of any
provision of any of this Agreement unless the same consideration also is offered
to all of the parties to this Agreement.
11. No Inconsistent Agreements. Except as and to the extent specifically
--------------------------
set forth in Schedule 11 attached hereto, the Company has not, as of the date
-----------
hereof, nor shall the Company, on or after the date of this Agreement, enter
into any agreement with respect to its securities that is inconsistent with the
rights granted to the Investors in this Agreement or otherwise conflicts with
the provisions hereof. Except and to the extent specifically set forth on
Schedule 11 attached hereto, neither the Company nor any of its subsidiaries has
-----------
previously entered into any agreement, which is still in effect, granting any
registration rights with respect to any of its securities to any Person.
12. Miscellaneous.
-------------
a. A Person is deemed to be a holder of Registrable Securities
whenever such Person owns or is deemed to own of record such Registrable
Securities. If the Company receives conflicting instructions, notices or
elections from two or more Persons with respect to the same Registrable
Securities, the Company shall act upon the basis of instructions, notice or
election received from the registered owner of such Registrable Securities.
b. Any notices, consents, waivers or other communications required
or permitted to be given under the terms of this Agreement must be in writing
and will be deemed to have been delivered: (i) upon receipt, when delivered
personally; (ii) upon receipt, when sent by facsimile (provided confirmation of
transmission is mechanically or electronically generated and kept on file by the
sending party); or (iii) one business day after deposit with a nationally
recognized overnight delivery service, in each case properly addressed to the
party to receive the same. The addresses and facsimile numbers for such
communications shall be:
If to the Company:
BRITESMILE, INC.
000 Xxxxx Xxxxx Xxxx
-00-
Xxxxxx Xxxxx, Xxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attn: Xxxx X. Xxxxx, Chief Financial Officer
With copies to:
DURHAM XXXXX & XXXXXXX, P.C.
Broadway Centre, Suite 900
000 Xxxx Xxxxxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxxxx X. Xxxxx
If to a Purchaser, to it at the address and facsimile number set forth below
adjacent to their names on Exhibit A hereto, with copies to such Purchaser's
---------
representatives as set forth on Exhibit A, or at such other address and/or
---------
facsimile number and/or to the attention of such other person as the recipient
party has specified by written notice given to each other party five days prior
to the effectiveness of such change. Written confirmation of receipt (A) given
by the recipient of such notice, consent, waiver or other communication, (B)
mechanically or electronically generated by the sender's facsimile machine
containing the time, date, recipient facsimile number and an image of the first
page of such transmission or (C) provided by a nationally recognized overnight
delivery service shall be rebuttable evidence of personal service, receipt by
facsimile or receipt from a nationally recognized overnight delivery service in
accordance with clause (i), (ii) or (iii) above, respectively.
c. Failure of any party to exercise any right or remedy under this
Agreement or otherwise, or delay by a party in exercising such right or remedy,
shall not operate as a waiver thereof.
d. All questions concerning the construction, validity, enforcement
and interpretation of this Agreement shall be governed by the internal laws of
the State of New York, without giving effect to any choice of law or conflict of
law provision or rule (whether of the State of New York or any other
jurisdictions) that would cause the application of the laws of any jurisdictions
other than the State of New York. Each party hereby irrevocably submits to the
non-exclusive jurisdiction of the state and federal courts sitting in New York
City, Borough of Manhattan, State of New York, for the adjudication of any
dispute hereunder or in connection herewith or with any transaction contemplated
hereby or discussed herein, and hereby irrevocably waives, and agrees not to
assert in any suit, action or proceeding, any claim that it is not personally
subject to the jurisdiction of any such court, that such suit, action or
proceeding is brought in an inconvenient forum or that the venue of such suit,
action or proceeding is improper. Each party hereby irrevocably waives personal
service of process and consents to process being served in any such suit, action
or proceeding by mailing a copy thereof to such party at the address for such
notices to it under this Agreement and agrees that such service shall constitute
good and sufficient service of process and notice thereof. Nothing
-17-
contained herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law. If any provision of this Agreement shall be
invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall not affect the validity or enforceability of the
remainder of this Agreement in that jurisdiction or the validity or
enforceability of any provision of this Agreement in any other jurisdiction.
EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO
REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN
CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION
CONTEMPLATED HEREBY.
e. This Agreement, the Purchase Agreement, the Warrants, the Notes
and the Placement Agent Warrant are the entire agreement among the parties
hereto with respect to the subject matter hereof and thereof. There are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein and therein. This Agreement, the Purchase Agreement, the
Warrants, the Placement Agent Warrant and the Notes supersede all prior
agreements and understandings among the parties hereto with respect to the
subject matter hereof and thereof.
f. Subject to the requirements of Section 9, this Agreement shall
inure to the benefit of and be binding upon the permitted successors and assigns
of each of the parties hereto.
g. The headings in this Agreement are for convenience of reference
only and shall not limit or otherwise affect the meaning hereof.
h. This Agreement may be executed in identical counterparts, each of
which shall be deemed an original but all of which shall constitute one and the
same agreement. This Agreement, once executed by a party, may be delivered to
the other party hereto by facsimile transmission of a copy of this Agreement
bearing the signature of the party so delivering this Agreement.
i. Each party shall do and perform, or cause to be done and
performed, all such further acts and things, and shall execute and deliver all
such other agreements, certificates, instruments and documents, as the other
party may reasonably request in order to carry out the intent and accomplish the
purposes of this Agreement and the consummation of the transactions contemplated
hereby.
j. All consents and other determinations to be made by the Investors
pursuant to this Agreement shall be made, unless otherwise specified in this
Agreement, by Investors holding a majority of the Registrable Securities,
determined as if all of the Notes and the Warrants then outstanding have been
converted into or exercised for Registrable Securities without regard to any
limitation on conversions of the Notes or exercises of the Warrants.
-18-
k. The language used in this Agreement will be deemed to be the
language chosen by the parties to express their mutual intent and no rules of
strict construction will be applied against any party.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
[SIGNATURE PAGE FOLLOWS]
-19-
IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be duly executed as of day and year first above written.
COMPANY: PLACEMENT AGENT:
BRITESMILE, INC. FLEETBOSTON XXXXXXXXX
XXXXXXXX
By: ____________________________ By: _________________________
Name: Name:
Title: Title:
Purchasers:
LCO INVESTMENTS LIMITED
By: ____________________________
Its:_______________________
________________________________
XXXXXX XxXXXXXX
PEQUOT PRIVATE EQUITY FUND II, L.P.
BY: PEQUOT CAPITAL MANAGEMENT, INC.
ITS: INVESTMENT MANAGER
By: ________________________________________
Xxxxx X. X'Xxxxx, General Counsel
PEQUOT PARTNERS FUND, L.P.
BY: PEQUOT CAPITAL MANAGEMENT, INC.
ITS: INVESTMENT MANAGER
By: ________________________________________
Xxxxx X. X'Xxxxx, General Counsel
PEQUOT INTERNATIONAL FUND, INC.
BY: PEQUOT CAPITAL MANAGEMENT, INC.
ITS: INVESTMENT ADVISOR
By: ________________________________________
Xxxxx X. X'Xxxxx, General Counsel
__________________________________
XXXX XXXX
__________________________________
XXXXXX XXXXXXX, XX., D.D.S.
-00-
XXXXX, X.X.
By RBP, LLC
Its General Partner
By: ______________________________
Xxxx Xxxxxx
Managing Partner
PACIFIC MEZZANINE FUND
By PACIFIC PRIVATE CAPITAL
By: ____________________________________
Xxxxxx X. Xxxx, Managing Partner
-22-
Schedule 11
Other Registration Rights
-------------------------
REGISTRATION RIGHTS AGREEMENTS
1. Registration Rights Agreement dated as of January 18, 2000 between the
Company and the Pequot Capital investment funds (incorporated by reference
to the Company's Current Report on Form 8-K dated January 18, 2000).
2. Amendment No. 1 dated February 1, 2000 to Registration Rights Agreement
dated as of June 3, 1999 between the Company and Quota Rabbico II, Ltd.,
Xxxxx X. Xxxxxxxxxxxx and Argonaut Partnership, L.P., and between the
Company and Xxxxxx XxXxxxxx.
3. Registration Rights Agreement dated as of June 3, 1999 between the Company
and certain non-management purchasers in the June 1999 Private Placement
(incorporated by reference to the Company's Current Report on Form 8-K
dated June 4, 1999).
4. Amended and Restated Registration Rights Agreement dated as of June 3, 1999
between the Company and certain management purchasers (incorporated by
reference to the Company's Current Report on Form 8-K as filed June 4,
1999).
5. Amendment dated 12-7-98 to Registration Rights Agreement dated May 4, 1998
between the Company and LCO Investments Limited (incorporated by reference
to the Company's Current Report on Form 8-K filed December 22, 1998).
6. Registration Rights Agreement dated as of May 4, 1998 between the Company
and LCO Investments Limited (incorporated by reference to the Company's
Annual Report on Form 10-KSB for the fiscal year ended March 31, 1998).
7. Registration Rights Agreement dated May 8, 1997 among the Company, LCO
Investments Limited, and Xxxxxxx X. Xxxxxxxx (incorporated by reference to
the Company's Annual Report on Form 10-KSB for the fiscal year ended March
31, 1997).
8. Registration Rights Agreement dated April 1, 1996 between the Company, LCO
Investments Limited, Xxxxxxx X. Xxxxxxxx, and Pinnacle Fund, L.P.
(incorporated by reference to the Current Report on Form 8-K of the Company
dated April 1, 1996).
-23-
