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Exhibit 4(a)
REGISTRATION RIGHTS AGREEMENT
dated as of June 25, 1997
by and among
XXXXXX-FIELD HEALTH PRODUCTS, INC.,
XXXXXXX X. XXXX,
and
XXXXXXX X. XXXX
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TABLE OF CONTENTS
THIS TABLE OF CONTENTS IS NOT PART OF THE REGISTRATION RIGHTS
AGREEMENT TO WHICH IT IS ATTACHED BUT IS INSERTED FOR CONVENIENCE ONLY.
Page
No.
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1. Registration of Registrable Securities...................................................................... 1
(a) Filing of Shelf Registration Statement............................................................ 1
(b) Participation in Underwritten Public Offerings.................................................... 1
(c) Registration Expenses............................................................................. 3
(d) Termination of the Merger Agreement............................................................... 3
2. Registration Procedures..................................................................................... 3
3. Holdback Agreement.......................................................................................... 7
4. Indemnification............................................................................................. 7
(a) Indemnification by the Company.................................................................... 7
(b) Indemnification by the Shareholders............................................................... 8
(c) Notices of Claims, etc............................................................................ 9
(d) Contribution...................................................................................... 10
(e) Other Indemnification............................................................................. 10
(f) Indemnification Payments.......................................................................... 11
5. Covenants Relating to Rule 144.............................................................................. 11
6. Other Registration Rights................................................................................... 11
(a) No Existing Agreements............................................................................ 11
(b) Future Agreements................................................................................. 11
7. Definitions................................................................................................. 11
8. Miscellaneous............................................................................................... 14
(a) Notices........................................................................................... 14
(b) Entire Agreement.................................................................................. 15
(c) Amendment......................................................................................... 15
(d) Waiver............................................................................................ 15
(e) No Third Party Beneficiary........................................................................ 15
(f) No Assignment; Binding Effect..................................................................... 16
(g) Headings.......................................................................................... 16
(h) Invalid Provisions................................................................................ 16
(i) Remedies; Legal Expenses.......................................................................... 16
(j) Governing Law..................................................................................... 17
(k) Counterparts...................................................................................... 17
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This REGISTRATION RIGHTS AGREEMENT dated as of June 25, 1997
is made and entered by and among Xxxxxx-Field Health Products, Inc., a Delaware
corporation (the "Company"), Xxxxxxx X. Xxxx and Xxxxxxx X. Xxxx (collectively,
the "Shareholders" and each individually, a "Shareholder"). Capitalized terms
not otherwise defined herein have the meanings set forth in Section 7.
WHEREAS, the Company, LaBac Systems, Inc., a Colorado
corporation wholly-owned by the Shareholders ("LaBac"), and the Shareholders
have entered into an Agreement and Plan of Merger of even date herewith (the
"Merger Agreement"), pursuant to which a wholly-owned subsidiary of the Company
will, subject to the terms and conditions of the Merger Agreement, merge with
and into LaBac, pursuant to which LaBac will become a wholly-owned subsidiary of
the Company; and
WHEREAS, as a condition to the Shareholders' willingness to
enter into the Merger Agreement, the Company has agreed to enter into this
Registration Rights Agreement providing for the Company's registration for sale
of Registrable Securities to be acquired by the Shareholders pursuant to the
Merger Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Registration Rights Agreement, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Registration of Registrable Securities. (a) Filing of Shelf
Registration Statement. The Company shall, prior to the Closing, prepare and
file with the Commission, and use its best efforts to cause to be declared
effective, a registration statement on Form S-3 under the Securities Act
registering the Registrable Securities. Such registration statement shall
provide for the offering and sale of such Registrable Securities to or through
dealers, directly to one or more other purchasers, through brokers and agents or
through a combination of any such methods of sale, including but not limited to
a bulk sale to a brokerage firm, but not pursuant to an underwritten Public
Offering.
(b) Participation in Underwritten Public Offerings.
(i) If the Company at any time proposes after the date hereof
to effect a registration of shares of Common Stock under the Securities
Act in connection with an underwritten Public Offering with respect to
which the restrictions set forth in Section 3 on sales of Registrable
Securities by the Shareholders will be applicable, the Company will
each such time give written notice (a "Notice of Registration") at
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least ten (10) Business Days prior to the anticipated filing date to
the Shareholders of its intention to do so and of the Shareholders'
rights under this paragraph (b). Upon the written request of either
Shareholder made within ten (10) Business Days after receipt of a
Notice of Registration (which request shall specify the number of
Registrable Securities intended to be disposed of by such Shareholder),
the Company will include in the Registration Statement relating to such
underwritten Public Offering all Registrable Securities which the
Company has been so requested to register. Notwithstanding the
foregoing, if, at any time after giving a Notice of Registration and
prior to the effective date of the registration statement filed in
connection therewith, the Company shall determine for any reason not to
register or to delay registration of all securities included therein,
the Company may give written notice of such determination to each
Shareholder and, thereupon, (x) in the case of a determination not to
register, shall be relieved of its obligations to register any
Registrable Securities in connection with such registration, and (y) in
the case of a determination to delay registering, shall be permitted to
delay registering any Registrable Securities for the same period as the
delay in registering such other securities.
(ii) In connection with any registration of Registrable Securities
pursuant to the paragraph (b)(i) above, the Company will use its best
efforts to arrange for the underwriters in such underwritten Public
Offering to include the Registrable Securities requested to be included
in such registration by the Shareholders among the shares of Common
Stock to be distributed by such underwriters, and the Shareholders
shall be entitled to sell their Registrable Securities in such
underwritten Public Offering through such underwriters on the same
terms and conditions as apply to the other shares of Common Stock to be
sold by such underwriters in connection with such underwritten Public
Offering. The Shareholders, if their Registrable Securities are to be
offered in such underwritten Public Offering, shall be parties to the
underwriting agreement between the Company and such underwriters and
may, at their option, require that any or all of the representations
and warranties by, and the other agreements on the part of, the Company
to and for the benefit of such underwriters also be made to and for
their benefit, and that any or all of the conditions precedent to the
obligations of such underwriters under such underwriting agreement also
be conditions precedent to their obligations. Neither Shareholder shall
be required to make any representations or warranties to or agreements
with the Company or the underwriters other than representations,
warranties or agreements regarding such Shareholder and his ownership
of the Registrable Securities being registered on its behalf and any
other representation
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required by law. Neither Shareholder may participate in such
underwritten Public Offering unless such Shareholder agrees to sell its
Registrable Securities on the basis provided in such underwriting
agreement and completes and executes all questionnaires, powers of
attorney, indemnities and other documents reasonably required under the
terms of such underwriting agreement. If either Shareholder disapproves
of the terms of an underwriting, such Shareholder may elect to withdraw
therefrom and from such registration by notice to the Company and the
Managing Underwriter.
(iii) Notwithstanding anything to the contrary contained in this
Registration Rights Agreement, the number of Registrable Securities
that the Shareholders shall be entitled to offer and sell pursuant to
an underwritten Public Offering in accordance with this Section 1(b)
shall be limited to an amount equal to one-tenth (1/10th) of the number
of other shares of Common Stock sold in connection with such
underwritten Public Offering (the "Proportionate Amount"). Without
limiting the foregoing, and not withstanding clause "ii" of this
Section 1(b) the Company covenants and agrees with the Shareholders
that if any shares are sold in any such underwritten Public Offering,
the Shareholders will be entitled to sell their Proportionate Amount in
such underwritten Public Offering.
(c) Registration Expenses. The Company will pay all
Registration Expenses incurred in connection with a registration
of Registrable Securities pursuant to paragraph (a) or (b) above.
(d) Termination of the Merger Agreement. In the event that,
prior to the Effective Time, the Merger Agreement is terminated pursuant to
Article XII thereof, this Registration Rights Agreement will forthwith become
null and void, and there will be no further liability or obligation on the part
of the Company hereunder.
2. Registration Procedures. In connection with its obligations
under Section 1 to effect the registration and sale of the Registrable
Securities, the Company shall:
(a) prepare and file with the Commission the requisite
registration statement to effect such registration and use its best
efforts to cause such registration statement to become effective;
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and any prospectus used in
connection therewith as may be necessary to maintain the effectiveness
of such registration statement and to comply with the provisions of the
Securities Act with respect to the disposition of all Registrable
Securities covered by such registration
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statement, in accordance with the intended methods of disposition
thereof, until (A) in the case of a registration described in Section
1(a), the earlier of (i) two (2) years following the date of the
Closing and (ii) such time as the Registrable Securities may be sold in
one (1) transaction pursuant to Rule 144, and (B) in the case of a
registration described in Section 1(b), such time as the Company in its
sole discretion shall determine;
(c) promptly notify the Shareholders:
(i) when such registration statement or any
prospectus used in connection therewith, or any amendment or
supplement thereto, has been filed and, with respect to such
registration statement or any post-effective amendment
thereto, when the same has become effective;
(ii) of any written request by the Commission for
amendments or supplements to such registration
statement or prospectus;
(iii) of the notification to the Company by the Commission
of its initiation of any proceeding with respect to the
issuance by the Commission of, or of the issuance by the
Commission of, any stop order suspending the effectiveness of
such registration statement; and
(iv) of the receipt by the Company of any notification
with respect to the suspension of the qualification of any
Registrable Securities for sale under the applicable
securities or blue sky laws of any jurisdiction.
(d) furnish to the Shareholders such number of conformed
copies of such registration statement and of each amendment and
supplement thereto (in each case including all exhibits and documents
incorporated by reference), such number of copies of the prospectus
contained in such registration statement (including each preliminary
prospectus and any summary prospectus) and any other prospectus filed
under Rule 424 promulgated under the Securities Act, and such other
documents, as the Shareholders may reasonably request to facilitate the
disposition of the Registrable Securities covered by such registration
statement;
(e) use its best efforts to register or qualify all
Registrable Securities covered by such registration statement under
such other securities or blue sky laws of such jurisdictions as the
Shareholders shall reasonably request, to keep such registration or
qualification in
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effect for so long as such registration statement remains in effect,
and take any other action which may be reasonably necessary or
advisable to enable the Shareholders to consummate the disposition in
such jurisdictions of their Registrable Securities covered by such
registration statement, except that the Company shall not for any such
purpose be required (i) to qualify generally to do business as a
foreign corporation in any jurisdiction wherein it would not but for
the requirements of this paragraph (e) be obligated to be so qualified,
(ii) to subject itself to taxation in any such jurisdiction or (iii) to
consent to general service of process in any such jurisdiction;
(f) use its best efforts to cause all Registrable Securities
covered by such registration statement to be registered with or
approved by such other governmental agencies or authorities as may be
necessary to enable the Shareholders to consummate the disposition of
such Registrable Securities;
(g) notify the Shareholders, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act,
of the happening of any event as a result of which any prospectus
included in such registration statement, as then in effect, includes an
untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, and at the request of the Shareholders promptly prepare
and furnish to the Shareholders a reasonable number of copies of a
supplement to or an amendment of such prospectus as may be necessary so
that, as thereafter delivered to the purchasers of such securities,
such prospectus shall not include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(h) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make available
to its securityholders, as soon as reasonably practicable, an earnings
statement covering the period of at least twelve (12) months, but not
more than eighteen (18) months, beginning with the first full calendar
month after the effective date of such registration statement, which
earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 promulgated thereunder;
(i) make available for inspection by the Shareholders and any
attorney, accountant or other agent retained by the Shareholders
(collectively, the "Inspectors"), all financial
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and other records, pertinent corporate documents and properties of the
Company (collectively, the "Records") as shall be reasonably necessary
to enable them to exercise their due diligence responsibility and cause
the Company's officers, directors and employees to supply all
information reasonably requested by any such Inspector in connection
with such registration statement; provided that records which the
Company determines, in good faith, to be confidential and which it
notifies the Inspectors are confidential shall not be disclosed by the
Inspectors unless (i) the disclosure of such Records is necessary to
avoid or correct a misstatement or omission in the registration
statement, (ii) the release of such Records is ordered pursuant to a
subpoena or other order from a court of competent jurisdiction or (iii)
the information in such Records has been made generally available to
the public;
(j) provide a transfer agent and registrar for all Registrable
Securities covered by such registration statement not later than the
effective date of such registration statement; and
(k) use its best efforts to cause all Registrable Securities
covered by such registration statement to be listed, upon official
notice of issuance, on any securities exchange on which any of the
securities of the same class as the Registrable Securities are then
listed.
In the event of the issuance of any stop order suspending the
effectiveness of a registration statement which includes Registrable Securities,
or any order suspending or preventing the use of any related prospectus or
suspending the qualification of any Registrable Securities included in such
registration statement for sale in any jurisdiction the Company will use its
reasonable best efforts to promptly obtain the withdrawal of such order.
The Company may require the Shareholders to furnish the
Company with such information and affidavits regarding the Shareholders and the
distribution of such securities as the Company may from time to time reasonably
request in writing in connection with such registration.
The Shareholders agree by acquisition of such Registrable
Securities that upon receipt of any notice from the Company of the happening of
any event of the kind described in paragraph (g), the Shareholders will
forthwith discontinue their disposition of Registrable Securities pursuant to
the registration statement relating to such Registrable Securities until their
receipt of the copies of the supplemented or amended prospectus contemplated by
paragraph (g) and, if so directed by the Company, will deliver to the Company
(at the Company's expense) all copies, other than permanent file copies, then in
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their possession of the prospectus relating to such Registrable Securities
current at the time of receipt of such notice.
3. Holdback Agreement. In the case of an underwritten Public
Offering by the Company, unless the Managing Underwriter otherwise agrees, each
Shareholder, by acquisition of its Registrable Securities, agrees not to effect
any public sale or distribution (including a sale under Rule 144) of such
securities, or any securities convertible into or exchangeable or exercisable
for such securities, other than in connection with an underwritten Public
Offering to the extent permitted by Section 1(b), during the seven (7) days
prior to and the ninety (90) days after the effective date of any registration
statement filed by the Company in connection with such Public Offering (or for
such shorter period of time as is sufficient and appropriate, in the opinion of
the Managing Underwriter, in order to complete the sale and distribution of the
securities included in such registration); provided that (a) the Shareholders'
obligations under this Section 3 shall not be operative prior to September 1,
1997 and shall cease to be of any force or effect on September 1, 1999 and (b)
the restrictions set forth in this Section 3 shall not apply (i) to any
Shareholder who owns than less than one percent (1%) of the shares of Common
Stock then outstanding and (ii) to more than one underwritten Public Offering in
any twelve month period.
4. Indemnification. (a) Indemnification by the Company. The
Company shall, to the full extent permitted by law, indemnify and hold harmless
each Shareholder against any Losses, claims, damages, expenses or liabilities,
joint or several (together, "Losses"), to which either Shareholder may become
subject under the Securities Act or otherwise, insofar as such Losses (or
actions or proceedings, whether commenced or threatened, in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in a registration statement filed pursuant to
Section 1(a) or (b), any preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement thereto, or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein (in the case of a
prospectus, in the light of the circumstances under which they were made) not
misleading, and the Company will reimburse such Shareholder for all reasonable
legal or any other expenses reasonably incurred by them in connection with
investigating or defending any such Loss (or action or proceeding in respect
thereof); provided that the Company shall not be liable in any such case to the
extent that any such Loss (or action or proceeding in respect thereof) arises
out of or is based upon (x) an untrue statement or alleged untrue statement or
omission or alleged omission made in any such registration statement,
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement in reliance upon and in conformity with
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information furnished in writing to the Company by or on behalf of either
Shareholder specifically for use in the preparation thereof or (y) either
Shareholder's failure to send or give a copy of the final prospectus to the
Persons asserting an untrue statement or alleged untrue statement or omission or
alleged omission at or prior to the written confirmation of the sale of
Registrable Securities to such Person if such statement or omission was
corrected in such final prospectus. Such indemnity shall remain in full force
and effect regardless of any investigation made by or on behalf of the
Shareholders, and shall survive the transfer of such securities by the
Shareholders. The Company shall also indemnify each underwriter in the offering
or sale of Registrable Securities pursuant to Section 1(b), their officers and
directors and each other Person, if any, who controls any such underwriter
within the meaning of the Securities Act to the same extent as provided above
with respect to the Shareholders.
(b) Indemnification by the Shareholders. Each Shareholder, as
a condition to including Registrable Securities in a registration statement
filed pursuant to Section 1(a) or (b), shall, to the full extent permitted by
law, indemnify and hold harmless the Company, its directors and officers, and
each other Person, if any, who controls the Company within the meaning of the
Securities Act, against any Losses to which the Company or any such director or
officer or controlling Person may become subject under the Securities Act or
otherwise, insofar as such Losses (or actions or proceedings, whether commenced
or threatened, in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in any such
registration statement, any preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement thereto, or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein (in the case of a
prospectus, in the light of the circumstances under which they were made) not
misleading, if such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of such Shareholder
specifically for use in the preparation of such registration statement,
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement. Such indemnity shall remain in full force and effect regardless of
any investigation made by or on behalf of the Company or any such director,
officer or controlling Person and shall survive the transfer of such securities
by any such Shareholder. The Shareholders shall also indemnify each underwriter
in the offering or sale of Registrable Securities pursuant to Section 1(b),
their officers and directors and each other Person, if any, who controls any
such underwriter within the meaning of the Securities Act to the same extent as
provided above with respect to the Company. The indemnification obligation of
each
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Shareholder set forth in this Section 4(b) shall be limited to the amount of net
proceeds received by such Shareholder in the offering giving rise to such
obligation.
(c) Notices of Claims, etc. Promptly after receipt by an
Indemnified Party of notice of the commencement of any action or proceeding
involving a claim referred to in the preceding paragraph (a) or (b) of this
Section 4, such Indemnified Party will, if a claim in respect thereof is to be
made against an Indemnifying Party pursuant to such paragraphs, give written
notice to the latter of the commencement of such action, provided that the
failure of any Indemnified Party to give notice as provided herein shall not
relieve the Indemnifying Party of its obligations under the preceding paragraphs
of this Section 4, except to the extent that the Indemnifying Party is actually
prejudiced by such failure to give notice. In case any such action is brought
against an Indemnified Party, the Indemnifying Party shall be entitled to
participate in and, unless in the reasonable judgment of the Indemnified Party a
conflict may exist between the Indemnifying Party and the Indemnified Party in
respect of such action, to assume the defense thereof, with counsel reasonably
satisfactory to such Indemnified Party, and after notice from the Indemnifying
Party to such Indemnified Party of its election so to assume the defense
thereof, the Indemnifying Party shall not be liable to such Indemnified Party
for any legal or other expenses subsequently incurred by the latter in
connection with the defense thereof; provided that the Indemnified Party may
participate in such defense at the Indemnified Party's expense. If (i) the
Indemnifying Party is not entitled to, or elects not to, assume the defense of a
claim, (ii) the Indemnifying Party fails to take reasonable steps necessary to
defend diligently the claim within twenty (20) days after receiving notice from
the Indemnified Party that the Indemnified Party believes it has failed to do
so, (iii) the Indemnified Party who is the defendant in any action which is also
brought against the Indemnifying Party reasonably shall have concluded that
there shall be one or more legal defenses available to the Indemnified Party
which are not available to the Indemnifying Party, or (iv) representation by
both parties by the same counsel is otherwise inappropriate under applicable
standards of professional conduct, the Indemnified Party shall have the right to
assume or continue its own defense as set forth above (but with no more than one
firm of counsel for all Indemnified Parties in each jurisdiction except to the
extent any Indemnified Party reasonably shall have concluded that there may be
legal defenses available to such Indemnified Party which are not available to
other Indemnified Parties or to the extent representation of all Indemnified
Parties by the same counsel is otherwise inappropriate under applicable
standards of professional conduct) and the Indemnifying Party shall be liable
for any reasonable expenses therefor. No Indemnifying Party shall consent to
entry of any judgment or enter into any settlement without the consent of the
Indemnified Party, which consent will not be unreasonably withheld or delayed.
No Indemnifying Party shall be subject to any liability for any
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settlement made without its consent, which consent shall not be unreasonably
withheld or delayed. The indemnification provided for under this Registration
Rights Agreement will remain in full force and effect regardless of any
investigation made by or on behalf of the Indemnified Party or any officer,
director or controlling Person of such Indemnified Party and will survive the
transfer of securities.
(d) Contribution. If the indemnity and reimbursement
obligation provided for in any paragraph of this Section 4 is unavailable or
insufficient to hold harmless an Indemnified Party in respect of any Losses (or
actions or proceedings in respect thereof) referred to therein, then the
Indemnifying Party shall contribute to the amount paid or payable by the
Indemnified Party as a result of such Losses (or actions or proceedings in
respect thereof) in such proportion as is appropriate to reflect the relative
fault of the Indemnifying Party on the one hand and the Indemnified Party on the
other hand in connection with statements or omissions which resulted in such
Losses, as well as any other relevant equitable considerations, including the
relative benefits received in connection with the transaction. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Indemnifying Party or the Indemnified Party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The parties hereto agree that it would not be just
and equitable if contributions pursuant to this paragraph were to be determined
by pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in the first sentence of
this paragraph. The amount paid by an Indemnified Party as a result of the
Losses referred to in the first sentence of this paragraph shall be deemed to
include any legal and other expenses reasonably incurred by such Indemnified
Party in connection with investigating or defending any Loss which is the
subject of this paragraph. The contribution obligation of each Shareholder set
forth in this Section 4(d) shall be limited to the amount of net proceeds
received by such Shareholder in the offering giving rise to such obligation.
No Indemnified Party guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from the Indemnifying Party if the Indemnifying Party was not
guilty of such fraudulent misrepresentation.
(e) Other Indemnification. Indemnification similar to that
specified in the preceding paragraphs of this Section 4 (with appropriate
modifications) shall be given by the Company and the Shareholders with respect
to any required registration or other qualification of securities under any
federal or state law
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or regulation of any governmental authority other than the Securities Act. The
provisions of this Section 4 shall be in addition to any other rights to
indemnification or contribution which an Indemnified Party may have pursuant to
law, equity, contract or otherwise.
(f) Indemnification Payments. The indemnification required by
this Section 4 shall be made by periodic payments of the amount thereof during
the course of the investigation or defense, as and when bills are received or
Losses are incurred.
5. Covenants Relating to Rule 144. In the event that the
registration statement filed pursuant to Section 1 is no longer in effect
because of the time limit stated in clause (ii) of Section 2(b), the Company
will, for a period of up to two (2) years following the date of the Closing,
file reports in compliance with the Exchange Act, will comply with all rules and
regulations of the Commission applicable in connection with the use of Rule 144
and will take such other actions and furnish the Shareholders with such other
information as the Shareholders may reasonably request to the extent necessary
to permit the Shareholders to sell the Registrable Securities pursuant to Rule
144.
6. Other Registration Rights. (a) No Existing Agreements. The
Company represents and warrants to the Shareholders that there is not in effect
on the date hereof any agreement by the Company pursuant to which any holders of
securities of the Company have a right to cause the Company to register or
qualify such securities under the Securities Act or any securities or blue sky
laws of any jurisdiction that would conflict or be inconsistent with any
provision of this Registration Rights Agreement.
(b) Future Agreements. The Company shall not hereafter agree
with the holders of any securities issued or to be issued by the Company to
register or qualify such securities under the Securities Act or any securities
or blue sky laws of any jurisdiction that would conflict or be inconsistent with
any provision of this Registration Rights Agreement. Nothing contained in this
Registration Rights Agreement is meant to explicitly or implicitly restrict the
Company from granting to any such holder priority with respect to registration
rights over any shares issued to the Shareholders.
7. Definitions. (a) Except as otherwise specifically
indicated, the following terms will have the following meanings
for all purposes of this Registration Rights Agreement:
"Business Day" means a day other than Saturday, Sunday or any
other day on which banks located in the State of New York are authorized or
obligated to close.
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"Closing" has the meaning ascribed to it in the Merger
Agreement.
"Commission" means the United States Securities and Exchange
Commission, or any successor governmental agency or authority.
"Common Stock" means shares of common stock, par value $.025
per share, of the Company, as constituted on the date hereof, and any stock into
which such Common Stock shall have been changed or any stock resulting from any
reclassification of such Common Stock.
"Company" has the meaning ascribed to it in the preamble.
"Effective Time" means the date and time of the filing of the
certificate of merger with the Secretary of State of the State of Colorado
pursuant to the Section 1.03 of the Merger Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"Indemnified Party" means any party referred to in Section 4
as being entitled to indemnity in accordance with such Section.
"Indemnifying Party" means a party obligated to provide
indemnity in accordance with Section 4.
"Inspectors" has the meaning ascribed to it in Section 2(i).
"Losses" has the meaning ascribed to it in Section 4(a).
"Managing Underwriter" means, with respect to any Public
Offering, the underwriter or underwriters managing such Public Offering.
"Merger Agreement" has the meaning ascribed to it in the
preamble.
"NASD" means the National Association of Securities Dealers.
"NYSE" means The New York Stock Exchange, Inc.
"Person" means any natural person, corporation, general
partnership, limited partnership, proprietorship, other business organization,
trust, union or association.
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"Public Offering" means any offering of Common Stock to the
public, either on behalf of the Company or any of its securityholders, pursuant
to an effective registration statement under the Securities Act.
"Records" has the meaning ascribed to it in Section 2(i).
"Registrable Securities" means (i) the shares of Common Stock
received by the Shareholders pursuant to Article II of the Merger Agreement, and
(ii) any additional shares of Common Stock issued or distributed by way of a
dividend, stock split or other distribution in respect of such shares, or
acquired by way of any rights offering or similar offering made in respect of
such shares. As to any particular Registrable Securities, once issued such
securities shall cease to be Registrable Securities when (i) a registration
statement with respect to the sale of such securities shall have become
effective under the Securities Act and such securities shall have been disposed
of in accordance with such registration statement, (ii) they shall have been
distributed to the public pursuant to Rule 144, or (iii) they shall have ceased
to be outstanding.
"Registration Expenses" means all reasonable expenses incident
to the Company's performance of or compliance with its obligations under this
Registration Rights Agreement to effect the registration of Registrable
Securities pursuant to Section 1(a) or (b), including, without limitation, all
registration, filing, securities exchange listing and NASD fees, all
registration, filing, qualification and other reasonable fees and expenses of
complying with securities or blue sky laws, all word processing, duplicating and
printing expenses, messenger and delivery expenses, the fees and disbursements
of legal counsel retained by the Company to act for the Company and for the
Shareholders and of the Company's independent public accountants, including the
expenses of any special audits or "cold comfort" letters required by or incident
to such performance and compliance and including the reasonable fees of the
Inspectors referred to in Section 2(i); but excluding transfer taxes, if any, in
respect of Registrable Securities and the fees and disbursements of any legal
counsel retained by the Shareholders to act exclusively for the Shareholders,
which shall be payable by the Shareholders.
"Registration Rights Agreement" means this Registration Rights
Agreement, as the same shall be amended from time to time.
"Rule 144" means Rule 144 promulgated by the Commission under
the Securities Act, and any successor provision thereto.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
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"Shareholders" has the meaning ascribed to it in the preamble.
(b) Unless the context of this Registration Rights Agreement
otherwise requires, (i) words of any gender include each other gender; (ii)
words using the singular or plural number also include the plural or singular
number, respectively; (iii) the terms "hereof," "herein," "hereby" and
derivative or similar words refer to this entire Registration Rights Agreement;
and (iv) the term "Section" refers to the specified Section of this Registration
Rights Agreement. Whenever this Registration Rights Agreement refers to a number
of days, such number shall refer to calendar days unless Business Days are
specified.
8. Miscellaneous. (a) Notices. All notices, requests and other
communications hereunder must be in writing and will be deemed to have been duly
given only if delivered personally or by facsimile transmission or mailed by
certified or registered mail, return receipt requested, to the parties at the
following addresses or facsimile numbers:
If to the Shareholders, to:
Xxxxxxx X. Xxxx
000 X. Xxxxxxx Xxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
and
Xxxxxxx X. Xxxx
0000 Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
with a copy to:
Holland & Xxxx, LLP
000 Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000-0000
Facsimile No.: (000) 000-0000
Attn: Xxxx Xxxx, Esq.
If to the Company, to:
Xxxxxx-Field Health Products, Inc.
000 Xxxxx Xxxxx Xxxx
Xxxxxxxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
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with a copy to:
Milbank, Tweed, Xxxxxx & XxXxxx
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxxx X. Xxxxx, Esq.
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section, be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile number as
provided in this Section, be deemed given upon receipt if received on a Business
Day during normal business hours, and if not then received, on the next Business
Day, and (iii) if delivered by mail in the manner described above to the address
as provided in this Section, be deemed given upon receipt (in each case
regardless of whether such notice, request or other communication is received by
any other Person to whom a copy of such notice is to be delivered pursuant to
this Section). Any party from time to time may change its address, facsimile
number or other information for the purpose of notices to that party by giving
notice specifying such change to the other parties hereto.
(b) Entire Agreement. This Registration Rights Agreement
supersedes all prior discussions and agreements between the parties with respect
to the subject matter hereof, and contains the sole and entire agreement between
the parties hereto with respect to the subject matter hereof.
(c) Amendment. This Registration Rights Agreement may be
amended, supplemented or modified only by a written instrument (which may be
executed in any number of counterparts) duly executed by or on behalf of the
Company and the Shareholders.
(d) Waiver. Any term or condition of this Registration Rights
Agreement may be waived at any time by the party that is entitled to the benefit
thereof, but no such waiver shall be effective unless set forth in a written
instrument duly executed by or on behalf of the party waiving such term or
condition. No waiver by any party of any term or condition of this Registration
Rights Agreement, in any one or more instances, shall be deemed to be or
construed as a waiver of the same term or condition of this Registration Rights
Agreement on any future occasion.
(e) No Third Party Beneficiary. The terms and provisions of
this Registration Rights Agreement are intended solely for the benefit of each
party hereto and it is not the intention of the parties to confer third-party
beneficiary rights upon any other Person other than any Person entitled to
indemnity under Section 4.
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(f) No Assignment; Binding Effect. Neither this Registration
Rights Agreement nor any right, interest or obligation hereunder may be assigned
by any party hereto without the prior written consent of the other parties
hereto and any attempt to do so will be void, provided that each Shareholder may
assign its rights hereunder to his heirs or legal representatives, and provided
further that any Shareholder may assign all or part of his rights under this
Agreement (subject to an appropriate assumption of related obligations under
this Agreement) to any person or entity to whom or which a Shareholder sells,
transfers or pledges any Registrable Securities, and such transferees or
pledgees may similarly assign such rights. Subject to the foregoing, this
Registration Rights Agreement is binding upon, inures to the benefit of and is
enforceable by the parties hereto and their respective successors and assigns.
(g) Headings. The headings used in this Registration Rights
Agreement have been inserted for convenience of reference only and do not define
or limit the provisions hereof.
(h) Invalid Provisions. If any provision of this Registration
Rights Agreement is held to be illegal, invalid or unenforceable under any
present or future law, and if the rights or obligations of any party hereto
under this Registration Rights Agreement will not be materially and adversely
affected thereby, (i) such provision will be fully severable, (ii) this
Registration Rights Agreement will be construed and enforced as if such illegal,
invalid or unenforceable provision had never comprised a part hereof and (iii)
the remaining provisions of this Registration Rights Agreement will remain in
full force and effect and will not be affected by the illegal, invalid or
unenforceable provision or by its severance herefrom.
(i) Remedies; Legal Expenses. Except as otherwise expressly
provided for herein, no remedy conferred by any of the specific provisions of
this Registration Rights Agreement is intended to be exclusive of any other
remedy, and each and every remedy shall be cumulative and shall be in addition
to every other remedy given hereunder or now or hereafter existing at law or in
equity or by statute or otherwise. The election of any one or more remedies by
any party hereto shall not constitute a waiver by any such party of the right to
pursue any other available remedies.
Damages in the event of breach of this Registration Rights
Agreement by a party hereto would be difficult, if not impossible, to ascertain,
and it is therefore agreed that each such party, in addition to and without
limiting any other remedy or right it may have, will have the right to an
injunction or other equitable relief in any court of competent jurisdiction,
enjoining any such breach, and enforcing specifically the terms and provisions
hereof and the Company and the Shareholders each hereby waives any and all
defenses it may have on the ground of
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lack of jurisdiction or competence of the court to grant such an injunction or
other equitable relief. The existence of this right will not preclude any such
party from pursuing any other rights and remedies at law or in equity which such
party may have.
The parties hereto agree that, in the event that any party to
this Registration Rights Agreement shall bring any legal action or proceeding to
enforce or to seek damages or other relief arising from an alleged breach of any
term or provision of this Registration Rights Agreement by the other party, the
prevailing party in any such action or proceeding shall be entitled to an award
of, and the other party to such action or proceeding shall pay, the reasonable
fees and expenses of legal counsel to the prevailing party.
(j) Governing Law. This Registration Rights Agreement shall be
governed by and construed in accordance with the laws of the State of New York
applicable to a contract executed and performed in such State, without giving
effect to the conflicts of laws principles thereof.
(k) Counterparts. This Registration Rights Agreement may be
executed in any number of counterparts, each of which will be deemed an
original, but all of which together will constitute one and the same instrument.
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IN WITNESS WHEREOF, this Registration Rights Agreement has
been duly executed and delivered by the duly authorized officer of each party
hereto as of the date first above written.
XXXXXX-FIELD HEALTH PRODUCTS, INC.
By:
---------------------------
Name:
Title:
---------------------------
Name: Xxxxxxx X. Xxxx
---------------------------
Name: Xxxxxxx X. Xxxx
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