EXHIBIT 10.25
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as of
April 30, 2002 among Transworld Healthcare, Inc., a New York corporation (the
"Company"), Xxxxxxx X. Xxxxxx and Xxxxx X. Xxxxx (together, the "Holders," and
each individually, a "Holder").
RECITALS:
The Holders were issued Common Shares by the Company on April 22, 2002
(the "Issuance");
NOW, THEREFORE, in consideration of the foregoing, the parties agree as
follows:
1. Definitions: For purposes of this Agreement:
(a) "Acquisition Agreement" has the meaning set forth in the
Recitals hereto.
(b) "Common Shares" means shares of common stock, par value $.01
per share, of the Company.
(c) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(d) "Form S-3" means such form under the Securities Act as in
effect on the date hereof or any registration form under the Securities Act
subsequently adopted by the SEC which permits inclusion or incorporation of
substantial information by reference to other documents filed by the Company
with the SEC.
(e) "Holder" means any Person owning or having the right to
acquire Registrable Securities, or any assignee thereof in accordance with
Section 11.
(f) "Initiating Holders" means the Holder(s) initiating a
registration request under Section 2.
(g) "majority in interest of the Initiating Holders" means
Initiating Holders holding a majority of the Registrable Securities held by all
Initiating Holders.
(h) "Person" means any individual, partnership, joint venture,
corporation, association, trust or any other entity or organization.
(i) "Qualifying Request" means a request from a Holder or Holders
that in the aggregate possess at least fifty percent (50%) of the Registrable
Securities outstanding as of the date of such request.
(j) "Register," "registered," and "registration" refer to a
registration effected by preparing and filing a registration statement or
similar document in compliance with the Securities Act, and the declaration or
ordering of effectiveness of such registration statement or document.
(k) "Registrable Securities" means (1) any Common Shares acquired
by the Holder in question in the Issuance, and (2) any Common Shares issued as
(or issuable upon the conversion or exercise of any warrant, right or other
security which is issued as) a dividend or other distribution with respect to,
or in exchange for or in replacement of, or upon conversion of, such Common
Shares; except, in the case of (1) or (2), (a) Common Shares for which a
registration statement relating to the resale thereof by the Holder thereof
shall have become effective under the Securities Act and which have been
disposed of under such registration statement, (b) Common Shares actually sold
pursuant to Rule 144 and (c) Common Shares eligible for sale pursuant to Rule
144(k) (or any successor).
(l) The number of shares of "Registrable Securities then
outstanding" shall be determined by the number of Common Shares outstanding that
are Registrable Securities.
(m) "SEC" means the Securities and Exchange Commission.
(n) "Securities Act" means the Securities Act of 1933, as amended.
(o) "Violation" means any of the following statements, omissions
or violations: (i) any untrue statement or alleged untrue statement of a
material fact contained in a registration statement under this Agreement,
including any preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto or any documents filed under state
securities or "blue sky" laws in connection therewith, (ii) the omission or
alleged omission to state therein a material fact required to be stated therein,
or necessary to make the statements therein not misleading, or (iii) any
violation or alleged violation by the Company of the Securities Act, the
Exchange Act, any state securities law or any rule or regulation promulgated
under the Securities Act, the Exchange Act or any state securities law.
2. Request for Registration.
(a) If the Company shall receive a written Qualifying Request that
the Company file a registration statement under the Securities Act, then the
Company shall, within ten (10) days of the receipt thereof, give written notice
of such request to all Holders and shall, subject to the limitations of Section
2(b) below, use its best efforts to effect as soon as practicable, and in any
event within sixty (60) days of the receipt of such request, the registration
under the Securities Act of all Registrable Securities which the Holders request
to be registered within twenty (20) days of the mailing of such notice by the
Company in accordance with Section 19 below.
(b) If Initiating Holders intend to distribute the Registrable
Securities covered by their request by means of an underwriting, they shall so
advise the Company as a part of their request made pursuant to this Section 2
and the Company shall include such information in the written notice referred to
in Section 2(a). In such event, the right of any Holder to include such Holder's
Registrable Securities in such registration shall be conditioned upon such
Holder's
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participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting (unless otherwise mutually agreed by
a majority in interest of the Initiating Holders and such Holder) to the extent
provided herein. A majority in interest of the Initiating Holders shall, after
consultation with the Board of Directors of the Company, select the managing
underwriter or underwriters in such underwriting, such underwriter(s) to be
reasonably satisfactory to the Company. All Holders proposing to distribute
their securities through such underwriting shall (together with the Company as
provided in Section 4(f)) enter into an underwriting agreement in customary form
with the underwriter or underwriters so selected for such underwriting by a
majority in interest of the Initiating Holders; provided, however, that no such
Holder shall be required to make any representations or warranties except as
they relate to such Holder's ownership of shares and authority to enter into the
underwriting agreement and to such Holder's intended method of distribution, and
the liability of such Holder shall be limited to an amount equal to the net
proceeds from the offering received by such Holder. Notwithstanding any other
provision of this Section 2, if the underwriter advises the Initiating Holders
in writing that marketing factors require a limitation of the number of shares
to be underwritten, then the Initiating Holders shall so advise the Company and
the Company shall so advise all Holders of Registrable Securities which would
otherwise be underwritten pursuant hereto, and the number of shares of
Registrable Securities that may be included in the underwriting shall be
allocated among all Holders thereof, including the Initiating Holders, in
proportion (as nearly as practicable) to the amount of Registrable Securities of
the Company owned by each such Holder.
(c) The Company shall be obligated to effect only three (3)
registrations pursuant to this Section 2 (except as otherwise provided in
Section 6 hereof, registrations which are not consummated shall not be counted
for this purpose); provided, however, that the Company shall be obligated to
effect as many registrations as may be requested by Holders in the event and so
long as a registration pursuant to Form S-3 or any similar "short-form"
registration statement is available. Any Qualifying Request made after three (3)
registrations have been consummated pursuant to this Section 2 shall cover
Registrable Securities which, together with other securities of the Company
entitled to inclusion in such registration, are proposed to be sold at an
aggregate price to the public of not less than one million dollars ($1,000,000).
The Company shall not be obligated to effect more than two (2) registrations
pursuant to this Section 2 in any twelve (12) month period.
(d) Notwithstanding the foregoing, if the Company shall furnish to
Holders requesting a registration statement pursuant to this Section 2, a
certificate signed by the President of the Company stating that in the good
faith judgment of the Board of Directors of the Company, it would be seriously
detrimental to the Company and its shareholders for such registration statement
to be filed by reason of a material pending transaction and it is therefore
essential to defer the filing of such registration statement, the Company shall
have the right to defer such filing for a period of not more than ninety (90)
days after receipt of the request of the Initiating Holders; provided, however,
that the Company may not utilize this right more than once in any twelve (12)
month period.
3. Company Registration. If (but without any obligation to do so) the
Company proposes to register (including for this purpose a registration effected
by the Company for shareholders other than the Holders) any of its stock or
other securities under the Securities Act in connection with the public offering
of such securities solely for cash (other than a registration
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on Form S-8 relating solely to the sale of securities to participants in a
Company stock plan or to other compensatory arrangements to the extent
includable on Form S-8, or a registration on Form S-4), the Company shall, at
such time, promptly give each Holder written notice of such registration. Upon
the written request of each Holder given within twenty (20) days after mailing
of such notice by the Company in accordance with Section 19, the Company shall,
subject to the provisions of Section 8, use its best efforts to cause to be
registered under the Securities Act all of the Registrable Securities that each
such Holder has requested to be registered. The Company shall have no obligation
under this Section 3 to make any offering of its securities, or to complete an
offering of its securities that it proposes to make, and shall incur no
liability to any Holder for its failure to do so.
4. Obligations of the Company. Whenever required under this Agreement
to effect the registration of any Registrable Securities, the Company shall, as
expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best efforts to cause such
registration statement to become effective, and, upon the request of the Holders
of a majority of the Registrable Securities being registered thereunder, keep
such registration statement effective for up to one hundred twenty (120) days or
until the Holders have completed the distribution referred to in such
registration statement, whichever occurs first (but in any event for at least
any period required under the Securities Act); provided that before filing such
registration statement or any amendments thereto, the Company will furnish to
the Holders copies of all such documents proposed to be filed.
(b) Prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement.
(c) Furnish to the Holders such number of copies of such
registration statement and of each amendment and supplement thereto (in each
case including all exhibits), 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 under the
Securities Act, in conformity with the requirements of the Securities Act, and
such other documents as Holders may reasonably request in order to facilitate
the disposition of Registrable Securities owned by them.
(d) Use diligent efforts to register and qualify the securities
covered by such registration statement under such other securities or "blue sky"
laws of such states or jurisdictions as shall be reasonably requested by the
Holders, provided that the Company shall not be required in connection therewith
or as a condition thereto (i) to qualify to do business in any state or
jurisdiction where it would not otherwise be required to qualify but for the
requirements of this clause (d), or (ii) to file a general consent to service of
process in any such state or jurisdiction.
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(e) Use diligent 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 by virtue of the
Company's business or operations to enable the seller or sellers thereof to
consummate the disposition of such Registrable Securities.
(f) In the event of any underwritten public offering, enter into
and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering.
(g) Notify each Holder of Registrable Securities covered by such
registration statement 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 the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading into the light of the circumstances then
existing.
(h) Notify each Holder of Registrable Securities covered by such
registration statement and such Holder's underwriters, if any, and confirm such
advice in writing: (i) when the registration statement has become effective,
(ii) when any post-effective amendment to the registration statement becomes
effective and (iii) of any request by the SEC for any amendment or supplement to
the registration statement or prospectus for additional information.
(i) Notify each Holder of Registrable Securities if at any time
the SEC should institute or threaten to institute any proceedings for the
purpose of issuing, or should issue, a stop order suspending the effectiveness
of the Registration Statement. Upon the occurrence of any of the events
mentioned in the preceding sentence, the Company will use diligent efforts to
prevent the issuance of any such stop order or to obtain the withdrawal thereof
as soon as possible. The Company will advise each Holder of Registrable
Securities promptly of any order or communication of any public board or body
addressed to the Company suspending or threatening to suspend the qualification
of any Registrable Securities for sale in any jurisdiction.
(j) Furnish, at the request of any Holder requesting registration
of Registrable Securities pursuant to this Agreement, (i) on the date that such
Registrable Securities are delivered to the underwriters for sale in connection
with a registration pursuant to this Agreement, if such securities are being
sold through underwriters, or, if such securities are not being sold through
underwriters, on the date that the registration statement with respect to such
securities becomes effective, an opinion, dated such date, of counsel to the
Company in form and substance as is customarily given to underwriters in an
underwritten public offering, addressed to the underwriters, if any, and to the
Holders requesting registration of Registrable Securities and (ii) on the date
that the registration statement with respect to such securities becomes
effective, a "comfort" letter dated such date, from the independent certified
public accountants of the Company, in form and substance as is customarily given
by independent certified public accountants to underwriters in an underwritten
public offering, addressed to the underwriters, if any, and to the Holders
requesting registration of Registrable Securities, and, if such securities are
being sold through underwriters, a reaffirmation of such letter on the date that
such Registrable Securities are delivered to the underwriters for sale.
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(k) As soon as practicable after the effective date of the
registration statement, and in any event within sixteen (16) months thereafter,
have "made generally available to its security holders" (within the meaning of
Rule 158 under the Securities Act) an earnings statement (which need not be
audited) covering a period of at least twelve (12) months beginning after the
effective date of the registration statement and otherwise complying with
Section 11(a) of the Securities Act.
5. Furnish Information. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Agreement with
respect to the Registrable Securities of any selling Holder that such Holder
shall furnish to the Company such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such securities
as shall be required to effect the registration of such Holder's Registrable
Securities. If any registration statement or comparable statement under the
Securities Act refers to any of the Holders or any of its affiliates, by name or
otherwise, as the holder of any securities of the Company then, unless counsel
to the Company advises the Company that the Securities Act requires that such
reference be included in any such statement, each such Holder shall have the
right to require the deletion of such reference to itself and its affiliates.
6. Expenses of Demand Registration. All expenses, other than
underwriting discounts and commissions, incurred in connection with
registrations, filings or qualifications pursuant to Section 2, including
without limitation all registration, filing and qualification fees, printers'
and accounting fees, fees and disbursements of counsel for the Company, and the
reasonable fees and disbursements of one counsel (selected by the Holders of a
majority of the Registrable Securities being registered) for the selling Holders
shall be borne by the Company; provided, however, that the Company shall not be
required to bear such expenses in connection with any registration begun
pursuant to Section 2 if the registration request subsequently is withdrawn at
the request of the Holders of a majority of Registrable Securities to be
registered (in which case all participating Holders shall bear such expenses pro
rata), unless the Holders of a majority of Registrable Securities then
outstanding agree to forfeit one (1) demand registration pursuant to Section 2;
provided, further, however, that if at the time of such withdrawal, (a) the
Holders have learned of a material adverse change in the condition (financial or
otherwise), business or prospects of the Company from that known to the Holders
at the time of their request or (b) there has occurred a material adverse change
in marketing factors related to the sale of Registrable Securities to the public
from those existing at the time of the Holders' request, then the Holders shall
not be required to pay any such expenses and shall retain their rights pursuant
to Section 2.
7. Expenses of Company Registration. The Company shall bear and pay all
expenses incurred in connection with any registration, filing or qualification
of Registrable Securities with respect to the registrations pursuant to Section
3 for each Holder, including without limitation all registration, filing and
qualification fees, printers' and accounting fees relating or apportionable
thereto and the fees and disbursements of one counsel for the selling Holders
(selected by the Holders of a majority of the Registrable Securities being
registered), but excluding underwriting discounts and commissions relating to
Registrable Securities.
8. Underwriting Requirements. In connection with any offering involving
an underwriting of shares being issued by the Company, the Company shall not be
required under
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Section 3 to include any of the Holders' securities in such underwriting unless
they accept the terms of the underwriting as agreed upon between the Company and
the underwriters selected by it, and then only in such quantity as will not, in
the opinion of the underwriters, jeopardize the success of the offering by the
Company; provided, however, that no Holder participating in such underwriting
shall be required to make any representations or warranties except as they
relate to such Holder's ownership of shares and authority to enter into the
underwriting agreement and to such Holder's intended method of distribution, and
the liability of such Holder shall be limited to an amount equal to the net
proceeds from the offering received by such Holder. If the total amount of
securities, including Registrable Securities, requested by shareholders to be
included in such offering exceeds the amount of securities sold other than by
the Company that the underwriters reasonably believe compatible with the success
of the offering, then the Company shall be required to include in the offering
only that number of such securities, including Registrable Securities, which the
underwriters believe will not jeopardize the success of the offering (the
securities so included to be apportioned pro rata among the selling shareholders
according to the total amount of securities entitled to be included therein
owned by each selling shareholder or in such other proportions as shall mutually
be agreed to by such selling shareholders); provided that, if any selling
shareholder has the right to include its shares in such offering on terms or in
an amount more favorable than provided herein, then each Holder shall have the
right to participate along with such selling shareholder(s) in such offering on
such more favorable terms (i) pro rata based upon the total amount of securities
entitled to be included therein owned by each such selling shareholder and the
aggregate number of Registrable Securities held by such Holder or (ii) in such
other proportions as shall mutually be agreed to by such selling shareholders
and the Holders of a majority of the Registrable Securities requested to be
included in such offering and any holders of securities whose securities are
included in such offering pursuant to Existing Registration Rights Agreements).
9. Indemnification. In the event any Registrable Securities are
included in a registration statement under this Agreement:
(a) To the extent permitted by law, the Company will indemnify and
hold harmless each Holder, its heirs, personal representatives and assigns, each
of such Holder's general and limited partners, each of such Holder's, and each
of such Holder's general and limited partners, officers, directors, employees
and affiliates, any underwriter (as defined in the Securities Act) for such
Holder and each Person, if any, who controls such Holder or underwriter within
the meaning of the Securities Act or the Exchange Act against any losses,
claims, damages or liabilities (joint or several) to which they may become
subject under the Securities Act, the Exchange Act or other federal or state
law, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon a Violation (provided, however,
that the Company will not be required to indemnify any of the foregoing Persons
on account of any losses, claims, damages or liabilities arising from a
Violation if and to the extent that such Violation was made in a preliminary
prospectus and was corrected in a subsequent prospectus that was required by law
to be delivered to the Person making the claim with respect to which
indemnification is sought hereunder (and such subsequent prospectus was made
available by the Company to permit delivery of such prospectus in a timely
manner) and such subsequent prospectus was not so delivered to such Person); and
the Company will pay to each such indemnified party, as incurred, any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability, or action;
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provided, however, that the indemnity agreement contained in this Section 9(a)
shall not apply to amounts paid in settlement of any such loss, claim, damage,
liability, or action if such settlement is effected without the consent of the
Company (which consent shall not be unreasonably withheld), nor shall the
Company be liable in any such case to a particular indemnified party for any
such loss, claim, damage, liability or action to the extent that it arises out
of or is based upon a Violation which occurs in reliance upon and in conformity
with written information furnished expressly for use in connection with such
registration by such indemnified party.
(b) To the extent permitted by law, each selling Holder will
indemnify and hold harmless the Company, each of its directors, each of its
officers who has signed the registration statement, each Person, if any, who
controls the Company within the meaning of the Securities Act, any underwriter,
any other Holder selling securities in such registration statement and any
controlling Person of any such underwriter or other Holder, against any losses,
claims, damages or liabilities (joint or several) to which any of the foregoing
Persons may become subject, under the Securities Act, the Exchange Act or other
federal or state law, insofar as such losses, claims, damages or liabilities (or
actions in respect thereto) arise out of or are based upon any Violation, in
each case to the extent (and only to the extent) that such Violation occurs in
reliance upon and in conformity with written information furnished by such
Holder expressly for use in connection with such registration; and each such
Holder will pay, as incurred, any legal or other expenses reasonably incurred by
any Person intended to be indemnified pursuant to this Section 9(b), in
connection with investigating or defending any such loss, claim, damage,
liability, or action; provided, however, that the indemnity agreement contained
in this Section 9(b) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement is effected without
consent of the Holder, which consent shall not be unreasonably withheld; and
provided, further, that, in no event shall the liability of any Holder under
this Section 9(b) exceed the net proceeds from the offering received by such
Holder.
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 9, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party shall
have the right to retain its own counsel, with the fees and expenses to be paid
by the indemnifying party, if representation of such indemnified party by the
counsel retained by the indemnifying party would be inappropriate due to actual
or potential differing interests between such indemnified party and any other
party represented by such counsel in such proceeding. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action shall not relieve such indemnifying party of any
liability to the indemnified party under this Section 9 except if, and only to
the extent that, the indemnifying party is actually prejudiced; and such failure
to deliver written notice to the indemnifying party will not relieve it of any
liability that it may have to any indemnified party otherwise than under this
Section 9.
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(d) The obligations of the Company and Holders under this Section
9 shall survive the completion of any offerings of Registrable Securities in a
registration statement under this Agreement, and otherwise.
(e) Any indemnity agreements contained herein shall be in addition
to any other rights to indemnification or contribution which any indemnified
party may have pursuant to law or contract and shall remain operative and in
full force and effect regardless of any investigation made or omitted by or on
behalf of any indemnified party.
(f) If for any reason the foregoing indemnity is unavailable, then
the indemnifying party shall contribute to the amount paid or payable by the
indemnified party as a result of such losses, claims, damages, liabilities or
expenses (i) in such proportion as is appropriate to reflect the relative
benefits received by the indemnifying party on the one hand and the indemnified
party on the other (taking into consideration the fact that the provision of the
registration rights and indemnification hereunder is a material inducement to
the Holders to enter into this Agreement); or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law or provides a lesser sum to
the indemnified party than the amount hereinafter calculated, in such proportion
as is appropriate to reflect not only the relative benefits received by the
indemnifying party on the one hand (taking into consideration the fact that the
provision of the registration rights and indemnification hereunder is a material
inducement to the Holders to enter into this Agreement) and the indemnified
party on the other but also the relative fault of the indemnifying party and the
indemnified party as well as any other relevant equitable considerations. 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. No Person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation. Notwithstanding anything to the contrary in this Section 9,
no Holder shall be required, pursuant to this Section 9, to contribute any
amount in excess of the net proceeds received by such indemnifying party from
the sale of Common Shares in the offering to which the losses, claims, damages,
liabilities or expenses of the indemnified party relate.
10. Reports Under the Exchange Act. With a view to making available to
the Holders the benefits of Rule 144 under the Securities Act and any other rule
or regulation of the SEC that may at any time permit a Holder to sell securities
of the Company to the public without registration or pursuant to a registration
on Form S-3, the Company agrees to:
(a) use diligent efforts to make and keep public information
available, as those terms are understood and defined in Rule 144 under the
Securities Act, at all times;
(b) take such action as necessary to enable the Holders to utilize
Form S-3 for the sale of their Registrable Securities;
(c) use diligent efforts to file with the SEC in a timely manner
all reports and other documents required of the Company under the Securities Act
and the Exchange Act; and
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(d) furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request, (i) a written statement by the
Company that it has complied with the reporting requirements of Rule 144 under
the Securities Act or that it qualifies as a registrant whose securities may be
resold pursuant to Form S-3 (at any time it so qualifies), (ii) 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 in availing any Holder of any rule or regulation of the SEC
which permits the selling of any such securities without registration or
pursuant to such form.
11. Assignment of Registration Rights. The rights to cause the Company
to register Registrable Securities pursuant to this Agreement may be assigned in
whole or in part by a Holder to one or more of its partners or affiliates or to
one or more transferees or assignees of not less than twenty-five percent (25%)
of all Registrable Securities acquired by the Holder in the Issuance and then
held by the Holder; provided that such transferee or assignee delivers to the
Company a written instrument by which such transferee or assignee agrees to be
bound by the obligations imposed on Holders under this Agreement to the same
extent as if such transferee or assignee was a party hereto.
12. "Market Stand-Off" Agreement. Each Holder hereby agrees that,
during the period of ninety (90) days following the effective date of a
registration statement of the Company filed under the Securities Act in
connection with an underwritten offering, it shall not, to the extent requested
by the Company and such underwriter, sell or otherwise transfer or dispose of
(other than to donees or partners who agree to be similarly bound) any Common
Shares of the Company held by it except Common Shares included in such
registration; provided, however, that:
(a) such agreement shall be applicable only to a registration
statement initiated by the Company which covers Common Shares (or other
securities) to be sold on its behalf to the public in an underwritten offering;
and
(b) all officers and directors of the Company and all other
Persons with registration rights (whether or not pursuant to this Agreement)
enter into similar agreements.
13. Amendment; Waiver. Any provision of this Agreement may be amended
only with the written consent of the Company and the Holders of a majority of
the Registrable Securities then outstanding. The observance of any provision of
this Agreement may be waived (either generally or in a particular instance and
either retroactively or prospectively) only with the written consent of the
party to be charged, provided that the holders of a majority of the Registrable
Securities then outstanding may act on behalf of all such holders. Any amendment
or waiver effected in accordance with this Section 13 shall be binding upon each
holder of Registrable Securities at the time outstanding, each future holder of
all such securities, and the Company.
14. Changes in Registrable Securities. If, and as often as, there are
any changes in the Registrable Securities by way of stock split, stock dividend,
combination or reclassification, or through merger, consolidation,
reorganization or recapitalization, or by any other means, appropriate
adjustment shall be made in the provisions of this Agreement, as may be
required, so
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that the rights and privileges granted hereby shall continue with respect to the
Registrable Securities as so changed. Without limiting the generality of the
foregoing, the Company will require any successor by merger or consolidation to
assume and agree to be bound by the terms of this Agreement, as a condition to
any such merger or consolidation; provided, that in the event of any such
transaction described in this sentence, in the event that Hyperion TWH Fund II
LLC and Hyperion Partners II L.P. ("HPII") waive their rights under any
corresponding provision of the Registration Rights Agreement between the Company
and HPII, dated May 29, 1996, the Holders agree to waive their rights under this
sentence.
15. Entire Agreement. This Agreement constitutes the full and entire
understanding and agreement among the parties with regard to the subject matter
hereof. Nothing in this Agreement, express or implied, is intended to confer
upon any Person, other than the parties hereto and their respective successors
and assigns, any rights, remedies, obligations, or liabilities under or by
reason of this Agreement, except as expressly provided herein.
16. Governing Law. This Agreement shall be governed in all respects by
the laws of the State of New York as such laws are applied to agreements between
New York residents entered into and to be performed entirely within New York,
whether or not all parties hereto are residents of New York.
17. Successors and Assigns. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto.
18. Notices. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon receipt by the party to be notified or three (3) days
after deposit with the United States Post Office, by registered or certified
mail, postage prepaid and addressed to the party to be notified (a) if to a
party other than the Company, at such party's address set forth at the end of
this Agreement or at such other address as such party shall have furnished the
Company in writing, or, until any such party so furnishes an address to the
Company, then to and at the address of the last holder of the shares covered by
this Agreement who has so furnished an address to the Company, or (b) if to the
Company, at its address set forth at the end of this Agreement, or at such other
address as the Company shall have furnished to the parties in writing.
19. Severability. Any invalidity, illegality or limitation on the
enforceability of this Agreement or any part thereof, by any party whether
arising by reason of the law of the respective party's domicile or otherwise,
shall in no way affect or impair the validity, legality or enforceability of
this Agreement with respect to other parties. If any provision of this Agreement
shall be judicially determined to be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
20. Titles and Subtitles. The tiles of the Sections of this Agreement
are for convenience of reference only and are not to be considered in construing
this Agreement.
21. Delays or Omissions; Remedies Cumulative. It is agreed that no
delay or omission to exercise any right, power or remedy accruing to the
parties, upon any breach or
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default of the Company under this Agreement, shall impair any such right, power
or remedy, nor shall it be construed to be a waiver of any such breach or
default, or any acquiescence therein, or of any similar breach or default
thereafter occurring; nor shall any waiver of any single breach or default be
deemed a waiver of any other breach or default theretofore or thereafter
occurring. It is further agreed that any waiver, permit, consent or approval of
any kind or character by a party of any breach or default under this Agreement,
or any waiver by a party of any provisions or conditions of this Agreement must
be in writing and shall be effective only to the extent specifically set forth
in writing and that all remedies, either under this Agreement, or by law or
otherwise afforded to a party, shall be cumulative and not alternative.
22. Attorneys' Fees. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorney's fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled.
23. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
[END OF TEXT]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
"COMPANY"
TRANSWORLD HEALTHCARE, INC.
Address:
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000 By: /s/ Xxx Xxxxxx
--------------------------------------
Name:
Title:
"HOLDERS"
/s/ Xxx Xxxxxx
Address: -----------------------------------------
000 Xxxxxxx Xxxxxx Xxxxxxx X. Xxxxxx
Xxx Xxxx, XX 00000
/s/ Xxxxx X. Xxxxx
Address: -----------------------------------------
5 Westwood Court Xxxxx X. Xxxxx
Xxxxxxxx, XX 00000
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