NATIONAL HEALTHCARE TECHNOLOGY, INC.
INVESTOR RIGHTS AGREEMENT
This Investor Rights Agreement (this "Agreement") is made and entered into
as of June 30, 2005, (the "Effective Date") by and among National Healthcare
Technology, Inc., a Colorado California corporation (the "Company") and Crown
Partners, Inc., a Nevada corporation ("Crown").
RECITALS
A. This Agreement is made and entered into in connection with that certain
Exchange Agreement, dated as of June __, 2005 (the "Exchange Agreement") between
the Company, Crown, Special Stone Surfaces Es3, a Nevada corporation ("Es3") and
certain shareholders of Es3.
B. Under the Exchange Agreement, the Company has acquired all or
substantially all of the outstanding Common Stock of Es3, with the shareholders
of Es3 acquiring a controlling interest in the Company.
C. The Company has agreed to provide certain piggyback registration and
anti-dilution protection rights to Crown in connection with 905,438 shares of
the Company's Common Stock (the "Shares") issued as the Crown Shares to Crown
under the Exchange Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
promises hereinafter set forth, the parties hereto agree as follows:
AGREEMENT
1. REGISTRATION RIGHTS.
1.1 Definitions. For purposes of this Section 1:
(a) Registration. The terms "register," "registered," and
"registration" refer to a registration effected by preparing and filing a
registration statement in compliance with the Securities Act of 1933, as amended
(the "Securities Act"), and the declaration or ordering of effectiveness of such
registration statement.
(b) Registrable Securities. The term "Registrable Securities"
means: (i) the Shares and (ii) any shares of Common Stock 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, in exchange for or
in replacement of the Shares. The term "Registrable Securities" shall exclude in
all cases, however, any shares sold by a person in a transaction in which rights
under this Section 1 are not assigned in accordance with this Agreement or any
shares sold to the public or sold pursuant to Rule 144 promulgated under the
Securities Act.
(c) Registrable Securities Then Outstanding. The term
"Registrable Securities Then Outstanding" shall mean those shares of Common
Stock which are Registrable Securities and (1) are then issued and outstanding
or (2) are then issuable pursuant to the exercise or conversion of
then-outstanding and then-exercisable options, warrants or convertible
securities.
(d) Holder. For purposes of this Section 1 and Section 2
hereof, the term "Holder" or "Holders" means any person or persons owning
Registrable Securities.
(e) SEC. The term "SEC" means the United States Securities and
Exchange Commission.
1.2 Piggyback Registrations. The Company shall notify all Holders of
Registrable Securities in writing at least thirty (30) days prior to filing any
registration statement under the Securities Act for purposes of effecting a
public offering of securities of the Company (including, but not limited to,
registration statements relating to secondary offerings of securities of the
Company, but excluding registration statements relating to any employee benefit
plan or a corporate reorganization) and will afford each such Holder an
opportunity to include in such registration statement all or any part of the
Registrable Securities then held by such Holder. Each Holder desiring to include
in any such registration statement all or any part of the Registrable Securities
held by such Holder shall, within twenty (20) days after receipt of the
above-described notice from the Company, so notify the Company in writing, and
in such notice shall inform the Company of the number of Registrable Securities
such Holder wishes to include in such registration statement. If a Holder
decides not to include all of its Registrable Securities in any registration
statement thereafter filed by the Company, such Holder shall nevertheless
continue to have the right to include any Registrable Securities in any
subsequent registration statement or registration statements as may be filed by
the Company with respect to offerings of its securities, all upon the terms and
conditions set forth herein.
(a) Underwriting. If a registration statement under which the
Company gives notice under this Section 1.3 is for an underwritten offering,
then the Company shall so advise the Holders of Registrable Securities. In such
event, the right of any such Holder to include Registrable Securities in a
registration pursuant to this Section 1.3 shall be conditioned upon such
Holder's participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent provided herein. All
Holders proposing to distribute their Registrable Securities through such
underwriting shall enter into an underwriting agreement in customary form with
the managing underwriter or underwriter(s) selected for such underwriting by the
Company. Notwithstanding any other provision of this Agreement, if the managing
underwriter(s) determine(s) in good faith that marketing factors require a
limitation of the number of shares to be underwritten, then the managing
underwriter(s) may exclude shares (including Registrable Securities) from the
registration and the underwriting, and the number of shares that may be included
in the registration and the underwriting shall be allocated, first, to the
Company, and second, to each of the Holders requesting inclusion of their
Registrable Securities in such registration statement on a pro rata basis based
on the total number of Registrable Securities then held by each such Holder;
provided, however, that the Company shall not reduce the number of Registrable
Securities to be included in such registration and underwriting to less than
thirty-three percent (33%) of the total number of shares to be underwritten;
provided further, that no shares shall be included in such registration other
than shares for the account of the Company or the Holders. In the event of a
limitation by the Company of the number of Registrable Securities to be included
2
in such registration and underwriting, the Company shall so advise all Holders
requesting registration, and the number of shares or securities that are
entitled to be included in the registration and underwriting shall be allocated
among all Holders in proportion, as nearly as practicable, to the respective
amounts of Registrable Securities held by each Holder at the time of filing of
the registration statement. If any Holder disapproves of the terms of any such
underwriting, such Holder may elect to withdraw therefrom by written notice to
the Company and the underwriter, delivered at least ten (10) business days prior
to the effective date of the registration statement. Any Registrable Securities
excluded or withdrawn from such underwriting shall be excluded and withdrawn
from the registration. For any Holder which is a partnership, limited liability
company or corporation, the partners, retired partners, members and shareholders
of such Holder, or the estates and family members of any such partners, retired
partners and members and any trusts for the benefit of any of the foregoing
persons shall be deemed to be a single "Holder," and any pro rata reduction with
respect to such "Holder" shall be based upon the aggregate number of Registrable
Securities owned by all entities and individuals included in such "Holder," as
defined in this sentence.
(b) Expenses. All Registration Expenses incurred in connection
with a registration pursuant to this Section 1.2 shall be borne by the Company.
Each Holder participating in a registration pursuant to this Section 1.2 shall
bear such Holder's proportionate share (based on the total number of shares sold
in such registration other than for the account of the Company) of all Selling
Expenses incurred in connection with a registration pursuant to this Section
1.2.
1.3 Obligations of the Company. Whenever required to affect the
registration of any Registrable Securities under this Agreement, 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 registered thereunder, keep
such registration statement effective for up to one hundred twenty (120) days.
(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 a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as they may
reasonably request in order to facilitate the disposition of the Registrable
Securities owned by them that are included in such registration;
(d) use its best efforts to register and qualify the
securities covered by such registration statement under such other securities or
Blue Sky laws of such 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 to qualify to do business or to file a general consent
to service of process in any such states or jurisdictions;
3
(e) 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(s) of such offering (it being
understood and agreed that, as a condition to the Company's obligations under
this clause (e), each Holder participating in such underwriting shall also enter
into and perform its obligations under such an agreement);
(f) 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 in light of the circumstances then existing;
(g) furnish, at the request of any Holder requesting
registration of Registrable Securities, on the date that such Registrable
Securities are delivered to the underwriters for sale, 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, (i) an opinion, dated as of such date, of
the counsel representing the Company for the purposes of such registration, in
form and substance as is customarily given to underwriters in an underwritten
public offering and reasonably satisfactory to a majority in interest of the
Holders requesting registration, addressed to the underwriters, if any, and to
the Holders requesting registration of Registrable Securities and (ii) a
"comfort" letter dated as of 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 and reasonably satisfactory to a majority in interest of the
Holders requesting registration, addressed to the underwriters, if any, and to
the Holders requesting registration of Registrable Securities;
(h) cause all such Registrable Securities registered hereunder
to be listed on each securities exchange on which similar securities issued by
the Company are then listed; and
(i) provide a transfer agent and registrar for all Registrable
Securities registered pursuant hereunder and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of such
registration.
1.4 Furnish Information. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to Section 1.2 hereof
that the selling Holders shall furnish to the Company such information regarding
themselves, the Registrable Securities held by them and the intended method of
disposition of such securities as shall be required to timely effect the
registration of their Registrable Securities.
4
1.5 Delay of Registration. No Holder shall have any right to obtain
or seek an injunction restraining or otherwise delaying any such registration as
the result of any controversy that might arise with respect to the
interpretation or implementation of this Section 1.
1.6 Indemnification. In the event any Registrable Securities are
included in a registration statement under Section 1.2 hereof:
(a) By the Company. To the extent permitted by law, the
Company will indemnify and hold harmless each Holder, the partners, members,
officers, directors and attorneys of each Holder, 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 any
of the following statements, omissions or violations (each a "Violation"):
(i) any untrue statement or alleged untrue statement of
a material fact contained in such registration statement, including any
preliminary prospectus or final prospectus contained therein or any amendments
or supplements thereto;
(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 federal or state securities law or
any rule or regulation promulgated under the Securities Act, the Exchange Act or
any federal or state securities law in connection with the offering covered by
such registration statement;
and the Company will reimburse each such Holder, partner, member, officer or
director, underwriter or controlling person for any legal or other expenses
reasonably incurred by them, as incurred, in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the indemnity agreement contained in this subsection 1.8(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 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 Holder, partner, member,
officer, director, underwriter or controlling person of such Holder.
(b) By Selling Holders. 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 have signed the registration statement, each
of its attorneys, each person, if any, who controls the Company within the
meaning of the Securities Act, any underwriter and any other Holder selling
securities under such registration statement or any of such other Holder's
partners, members, directors or officers or any person who controls such Holder
within the meaning of the Securities Act or the Exchange Act, against any
losses, claims, damages or liabilities (joint or several) to which the Company
5
or any such director, officer, attorney, controlling person, underwriter or
other such Holder, partner, member or director, officer or controlling person of
such other Holder 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 reimburse any legal or other expenses reasonably
incurred by the Company or any such director, officer, attorney, controlling
person, underwriter or other Holder, partner, member, officer, director or
controlling person of such other Holder in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the indemnity agreement contained in this subsection 1.8(b) 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 Holder, which
consent shall not be unreasonably withheld; and provided further, that the total
amounts payable in indemnity by a Holder under this Section 1.8(b) in respect of
any Violation shall not exceed the net proceeds received by such Holder in the
registered offering out of which such Violation arises.
(c) Notice. Promptly after receipt by an indemnified party
under this Section 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, 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 conflict of 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, if prejudicial to its ability to defend such
action, shall relieve such indemnifying party of any liability to the
indemnified party to the extent of such prejudice under this Section, but the
omission so 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.
(d) Defect Eliminated in Final Prospectus. The foregoing
indemnity agreements of the Company and Holders are subject to the condition
that, insofar as they relate to any Violation made in a preliminary prospectus
but eliminated or remedied in the amended prospectus on file with the SEC at the
time the registration statement in question becomes effective or the amended
prospectus filed with the SEC pursuant to SEC Rule 424(b) (the "Final
Prospectus"), such indemnity agreement shall not inure to the benefit of any
person if a copy of the Final Prospectus (i) was furnished to the indemnified
party, (ii) would have cured the Violation, and (iii) was not furnished to the
person asserting the loss, liability, claim or damage at or prior to the time
such action is required by the Securities Act.
6
(e) Contribution. In order to provide for just and equitable
contribution to joint liability under the Securities Act in any case in which
either (i) any Holder exercising rights under this Agreement, or any controlling
person of any such Holder, makes a claim for indemnification pursuant to this
Section but it is judicially determined (by the entry of a final judgment or
decree by a court of competent jurisdiction and the expiration of time to appeal
or the denial of the last right of appeal) that such indemnification may not be
enforced in such case notwithstanding the fact that this Section provides for
indemnification in such case, or (ii) contribution under the Securities Act may
be required on the part of any such selling Holder or any such controlling
person in circumstances for which indemnification is provided under this
Section; then, and in each such case, the Company and such Holder will
contribute to the aggregate losses, claims, damages or liabilities to which they
may be subject (after contribution from others) in such proportion so that such
Holder is responsible for the portion represented by the percentage that the
public offering price of its Registrable Securities offered by and sold under
the registration statement bears to the net proceeds of all securities offered
by and sold under such registration statement, and the Company and other selling
Holders are responsible for the remaining portion; provided, however, that, in
any such case, (A) no such Holder will be required to contribute any amount in
excess of the public offering price of all such Registrable Securities offered
and sold by such Holder pursuant to such registration statement and (B) no
person or entity guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) will be entitled to contribution from any
person or entity who was not guilty of such fraudulent misrepresentation.
(f) Survival. The obligations of the Company and Holders under
this Section shall survive the completion of any offering of Registrable
Securities in a registration statement, and otherwise.
1.7 "Market Stand-Off" Agreement. Each Holder hereby agrees that it
shall not, to the extent requested by the Company or an underwriter of
securities of the Company, sell or otherwise transfer or dispose of or engage in
any other transaction regarding any Registrable Securities or other shares of
stock of the Company then owned by such Holder (other than to donees or partners
of the Holder who agree to be similarly bound) for a period (a "Lock-Up Period")
equal to the lesser of (i) the period beginning upon the effective date of a
registration statement of the Company filed under the Securities Act and ending
up to one hundred eighty (180) days thereafter or (ii) the period beginning upon
the effective date of a registration statement of the Company filed under the
Securities Act and ending on the first date thereafter that the closing price of
the Common Stock as quoted on the Nasdaq Stock Market or such other exchange on
which the Common Stock is then traded has been equal to or greater than 150% of
the price that the Common Stock is sold by the Company to the public in the
Initial Public Offering (as adjusted to reflect the effect on the outstanding
shares of Common Stock by subdivision, combination or stock dividend) on five
consecutive trading days; provided, however, that the Lock-Up Period shall be
the period specified by item (i) if the Board of Directors in good faith
determines that it is in the best interests of the Company and its shareholders
for the Lock-Up Period to be that period; provided, further, that:
7
(a) such agreement shall be applicable only to the first such
registration statement of the Company which covers securities to be sold on its
behalf to the public in an underwritten offering but not to Registrable
Securities sold pursuant to such registration statement; and
(b) all executive officers and directors of the Company, and
each shareholder of the Company holding in the aggregate at least 1% of the
outstanding capital stock of the Company (on a fully-diluted basis), enter into
similar agreements.
In order to enforce the foregoing covenant, the Company shall have the
right to place restrictive legends on the certificates representing the shares
subject to this Section 1.9 and to impose stop transfer instructions with
respect to the Registrable Securities and such other shares of stock of each
Holder (and the shares or securities of every other person subject to the
foregoing restriction) until the end of such period. The obligations described
in this Section 1.9 shall not apply to a registration statement relating solely
to employee benefit plans on Form S-1 or Form S-8 or similar forms that may be
promulgated in the future, or a registration statement relating solely to a Rule
145 transaction on Form S-4 or similar forms that may be promulgated in the
future.
1.8 Rule 144 Reporting. With a view to making available the benefits
of certain rules and regulations of the SEC, which may at any time permit the
sale of the Registrable Securities to the public without registration or
pursuant to a registration on Form S-3, the Company agrees to:
(a) make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act, at all times
after the effective date of the first registration under the Securities Act
filed by the Company for an offering of its securities to the general public;
(b) 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
(at any time after it has become subject to such reporting requirements); and
(c) as long as a Holder owns any Registrable Securities, to
furnish to the Holder forthwith upon request a written statement by the Company
as to its compliance with the reporting requirements of said Rule 144 (at any
time after ninety (90) days after the effective date of the first registration
statement filed by the Company for an offering of its securities to the general
public), and of the Securities Act and the Exchange Act (at any time after it
has become subject to the reporting requirements of the Exchange Act), or that
it qualifies as a registrant whose securities may be resold pursuant to Form S-3
(at any time after it so qualifies), a copy of the most recent annual or
quarterly report of the Company and such other reports and documents of the
Company as a Holder may reasonably request in availing itself of any rule or
regulation of the SEC allowing a Holder to sell any such securities without
registration (at any time after the Company has become subject to the reporting
requirements of the Exchange Act).
1.9 Termination of the Company's Obligations Under this Section 1.
The Company shall have no obligations pursuant to Sections 1.2, with respect to
any Registrable Securities proposed to be sold by a Holder in a registration
pursuant to Section 1.2 if, in the opinion of counsel to the Company, all such
Registrable Securities proposed to be sold by such Holder may be sold
continuously throughout any three-month period without registration under the
Securities Act pursuant to Rule 144 under the Securities Act.
8
2. ANTI-DILUTION PROTECTION.
2.1 Anti-Dilution Protection. In the event that on or prior to the
anniversary of this Agreement, the Company shall issue additional shares of
Common Stock for any purpose, the Company shall issue to the Holders an
additional amount of Common Stock (the "Additional Shares") such that the Shares
originally issued to the Holders and the Additional Shares will continue to
represent 5% of the Company's outstanding Common Stock. For the purposes of this
paragraph, the number of shares of Common Stock outstanding shall be deemed to
include the Common Stock issuable upon full exercise and conversion of all then
outstanding options and convertible Securities.
3. ASSIGNMENT AND AMENDMENT.
3.1 Assignment. Notwithstanding anything herein to the contrary, the
registration rights of a Holder under Section 1, and the anti-dilution rights
under Section 2 may be assigned only to (i) a direct (or indirect through
another entity or entities) shareholder, partner, former partner, member, former
member, or beneficiary of such Holder; (ii) a spouse, child, parent or
beneficiary of the estate of such Holder or (iii) a trust for the benefit of the
persons set forth in (i) or (ii); provided, however, that no party may be
assigned any of the foregoing rights unless the Company is given written notice
by the assigning party at the time of such assignment stating the name, address
and tax identification number of the assignee and identifying the securities of
the Company as to which the rights in question are being assigned; and provided
further that any such assignee shall receive such assigned rights subject to all
the terms and conditions of this Agreement, including without limitation the
provisions of this Section 3.
3.2 Amendment of Rights; Waiver. Any provision 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 the Holders holding a majority in interest of
the Registrable Securities Then Outstanding. Any amendment or waiver affected in
accordance with this Section 3.2 shall be binding upon each Holder, each
permitted successor or assignee of such Holder and the Company.
4. GENERAL PROVISIONS.
4.1 Notices. All notices and other communications required or
permitted hereunder shall be in writing and shall be deemed effectively given
(i) upon actual delivery to the party to be notified, (ii) 24 hours after being
sent by confirmed facsimile if sent during normal business hours of the receipt;
if not, then on the second business day, or (iii) one business day after deposit
with a recognized overnight courier, specifying next day delivery, with written
notification of receipt addressed (a) if to the Investor, at the Investor's
address set forth on the Schedule of Purchasers to the Purchase Agreement, or at
such other address as the Investor shall have furnished to the Company in
writing upon 10 days' notice, or (b) if to any other Holder of Registrable
Securities, at such address as such Holder shall have furnished the Company in
writing on 10 days' notice or, until such Holder so furnishes an address to the
Company, to and at the address of the last Holder of such Registrable Securities
who has so furnished an address to the Company, or (c) if to the Company, at the
following address or at such other address as the Company shall have furnished
to the Investor upon 10 days' notice:
9
National Healthcare Technology, Inc.
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attention: Xxxx Xxxxxx-Xxxxx
Fax: (000) 000-0000
4.2 Entire Agreement. This Agreement, together with all the exhibits
hereto, constitutes and contains the entire agreement and understanding of the
parties with respect to the subject matter hereof and supersedes any and all
prior negotiations, correspondence, agreements, understandings, duties or
obligations between the parties respecting the subject matter hereof.
4.3 Governing Law. This Agreement shall be governed by and construed
exclusively in accordance with the internal laws of the State of California as
applied to agreements among California residents entered into and to be
performed entirely within California, excluding that body of law relating to
conflict of laws and choice of law.
4.4 Severability. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, then such provision(s) shall be
excluded from this Agreement and the balance of this Agreement shall be
interpreted as if such provision(s) were so excluded and shall be enforceable in
accordance with its terms.
4.5 Third Parties. Nothing in this Agreement, express or implied, is
intended to confer upon any person, other than the parties hereto and their
successors and assigns, any rights or remedies under or by reason of this
Agreement.
4.6 Successors and Assigns. Subject to the provisions of Section
3.1, the provisions of this Agreement shall inure to the benefit of, and shall
be binding upon, the successors and permitted assigns of the parties hereto.
4.7 Captions. The captions to sections of this Agreement have been
inserted for identification and reference purposes only and shall not be used to
construe or interpret this Agreement.
4.8 Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
4.9 Costs and Attorneys' Fees. In the event that any action, suit or
other proceeding is instituted concerning or arising out of this Agreement or
any transaction contemplated hereunder, the prevailing party shall recover all
of such party's costs and attorneys' fees incurred in each such action, suit or
other proceeding, including any and all appeals or petitions therefrom.
10
4.10 Adjustments for Stock Splits and Certain Other Changes.
Wherever in this Agreement there is a reference to a specific number of shares
of Common Stock or Preferred Stock of the Company of any class or series, then,
upon the occurrence of any subdivision, combination or stock dividend of such
class or series of stock, the specific number of shares so referenced in this
Agreement shall automatically be proportionally adjusted to reflect the affect
on the outstanding shares of such class or series of stock by such subdivision,
combination or stock dividend.
4.11 Termination. This Agreement shall terminate on the later of (i)
the one year anniversary of this Agreement, the termination of the Company's
obligations under Section 1.9.
4.12 Delays and Omissions. No delay or omission to exercise any
right, power or remedy accruing to any party under this Agreement, upon any
breach or default of any other party under this Agreement, shall impair any such
right, power or remedy of such non-breaching or non-defaulting party nor shall
it be construed to be a waiver of any such breach or default, or an acquiescence
thereof, or of or in 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. Any waiver, consent or
approval on the part of any party must be in writing and shall be effective only
to the extent specifically set forth in such writing. All remedies, either under
this Agreement or by law or otherwise afforded to any party, shall be cumulative
and not alternative.
[The remainder of this page is intentionally left blank]
11
IN WITNESS WHEREOF, the parties hereto have executed this Investor Rights
Agreement as of the date and year first above written.
CROWN PARTNERS, INC. NATIONAL HEALTHCARE TECHNOLOGY, INC.
By: By:
--------------------------------- ---------------------------------
Xxxxxxx Xxxxx Xxxxxxx Xxxxx
Chief Executive Officer Chief Executive Officer
A-1
