EXHIBIT 4(h)
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (the "Agreement"), dated as of November 25,
1997, between Clinicor, Inc., a Nevada corporation (the "Company") and Sirrom
Capital Corporation d/b/a Tandem Capital, a Tennessee corporation ("Tandem").
Capitalized terms used herein not defined shall have the meanings ascribed to
them in the Stock Purchase Agreement (as hereafter defined).
WHEREAS, the Company and Tandem have entered into a Preferred Stock
Purchase Agreement, dated November 7, 1997 (the "Stock Purchase Agreement"),
pursuant to which the Company has agreed to (i) issue and sell to Tandem, and
its designated assigns (the "Holder") and, subject to the conditions set forth
in the Stock Purchase Agreement, the Holder has agreed to purchase, 50,000
shares of the Company's Class B Convertible Preferred Stock, no par value (the
"Class B Preferred Stock"), which shares of Class B Preferred Stock are
convertible into shares of the Company's Common Stock par value $.001 per share
(the "Common Stock") (such shares of Common Stock issuable upon conversion of
the Class B Preferred Stock, together with any shares of Common Stock issued as
a dividend or other distribution with respect to, or in exchange for, or in
replacement of such shares of Common Stock, the "Registrable Securities"), and
(ii) grant certain registration rights to the Holder as more fully set forth
below.
NOW, THEREFORE, the parties hereto, for good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, hereby agree as
follows:
Section 1. Covenant to Register. At any time on or after the
date one (1) year after the date hereof, upon the request in writing by the
Holder, or if more than one Holder, by the Holders holding at least a majority
of the Registrable Securities, the Company shall file a registration statement
with the Securities and Exchange Commission (the "Commission") to register all
Registrable Securities of the Holder(s) requesting such registration for an
offering to be made on a continuous or delayed basis pursuant to Rule 415 under
the Securities Act of 1933, as amended (the "Securities Act"), covering all of
such Registrable Securities. Such registration statement shall be on Form S-3
under the Securities Act, if such Form is then available for use by the Company,
or another appropriate form that is available to the Company permitting
registration of such Registrable Securities for resale by the Holder(s) in the
manner or manners reasonably designated by the Holder(s) (including, without
limitation, one or more underwritten offerings). The Company shall use its best
efforts to prosecute the registration (the "Registration") of such Registrable
Securities pursuant to the Securities Act. The Company shall use its best
efforts to cause such Registrable Securities to be registered as soon as
practicable after the filing of the registration statement relating to such
Registrable Securities, but in no event later than 180 days after the filing of
such registration statement. The Holder(s) shall cooperate with the Company to
provide all such necessary information as shall be required by the Company to
file the registration statement relating to the Registration. In addition, the
Company shall use its best efforts to list, the Registrable Securities on NASDAQ
or on such other securities exchange as the shares of Registrable Securities may
then be listed. The Company shall maintain the prospectus relating to such
Registrable Securities effective for so long as the Holder(s) desires to dispose
of such Registrable Securities, not to exceed a period of five years from the
date that the registration statement was declared effective by the Commission.
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Section 2. Demand and "Piggyback" Registration Rights.
(a) Beginning on the date one (1) year from the date hereof, if at
any time during which there is no effective registration statement relating to
the Registrable Securities, the Company shall be requested in writing by the
Holder, or if more than one Holder, by the Holders holding at least a majority
of the Registrable Securities (the "Initiating Holders"), to effect the
registration under the Securities Act of Registrable Securities, the Company
shall, as expeditiously as possible, use its best efforts to effect the
registration, on a form of general use under the Securities Act, of all
Registrable Securities which the Company has been requested to register;
provided, however, that the Company shall not be obligated to effect such
registration if (i) such Registrable Securities are to be registered on Form S-
1, Form SB-1 or Form SB-2 for use under the Securities Act and (ii) the
Initiating Holders cannot reasonable expect the sale of such Registrable
Securities to result in gross aggregate proceeds of at least $4,000,000. The
Company shall not be obligated to cause to become effective more than three (3)
registration statements pursuant to which Registrable Securities are registered
under this Section 2(a), provided that in the event the Company effects a
Registration pursuant to Section 1 above, such number of registration statements
under this Section 2(a) shall not exceed two (2) and further provided that in
the event the Holder(s) elects to join a demand registration pursuant to Section
2(c) of that certain Amended and Restated Registration Rights Agreement (the
"Class A Amended and Restated Registration Rights Agreement"), dated as of the
date hereof, by and among the Company, Oracle Partners, L.P. and certain
affiliates thereof (together with their designated assigns, the "Class A
Holders"), and the Registrable Securities requested to be included in such
registration statement are sold pursuant to such registration statement (a
"Joined Registration"), then each such Joined Registration shall constitute one
(1) registration statement required to be effected by the Company under this
Section 2(a). Notwithstanding the foregoing, if the Company shall furnish to the
Initiating Holder(s) in response to a request for registration under this
Section 2(a) a certificate signed by the Chief Executive Officer of the Company
stating that in the good faith judgment of the Board of Directors of the Company
it would be detrimental to the Company and its shareholders for such
registration statement to be filed and it is therefore essential to defer the
filing of such registration statement, the Company shall have the right to defer
taking action with respect to such filing for a period of not more than 90 days
after receipt of the request by the Initiating Holder(s); provided, however,
that the Company may not utilize this right more than once in any 12-month
period. In addition, the Company shall not be obligated to effect, or to take
any action to effect, any registration pursuant to this Section 2(a):
(i) During the period starting with the date 30 days prior to
the Company's good faith estimate of the date of filing of, and ending on a date
120 days after the effective date of, a registration subject to Section 2(b)
hereto; provided that the Company is actively employing in good faith its best
efforts to cause such registration statement to be filed and thereafter to
become effective; or
(ii) With respect to Registrable Securities in a Registration
that may be immediately registered or that are registered on Form S-3 pursuant
to a request made pursuant to Section 1 above.
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(b) At any time after the date hereof, the Company shall, at least
thirty (30) days prior to the filing of any registration statement under the
Securities Act (other than a registration statement on Form S-8 or Form S-4 or
any successor forms) relating to the public offering of its Common Stock by the
Company or any of its security holders, give written notice of such proposed
filing and of the proposed date thereof to each Holder, and if, on or before the
twentieth (20th) day following the date on which such notice is given, the
Company shall receive a written request from a Holder requesting that the
Company include among the securities covered by such registration statement some
or all of the Registrable Securities held by or to be held after conversion of
the shares of Class B Preferred Stock by such Holder, the Company shall include
such Registrable Securities in such registration statement, if filed, so as to
permit such Registrable Securities to be sold or disposed of in the manner and
on the terms of the offering thereof set forth in such request. Notwithstanding
anything in this Section 2(b) to the contrary, the Holders of Registrable
Securities shall not be permitted to include any Registrable Securities among
the securities covered by any registration statement filed by the Company
pursuant to Section 1 of the Class A Amended and Restated Registration Rights
Agreement.
(c) Upon receipt by the Company of a request for registration under
Section 2(a), the Company promptly shall give written notice of such request to
the Class A Holders. If, on or before the fifteenth (15/th/) day following the
date on which such notice is given, the Company shall receive a written request
from the Class A Holders to join in the registration pursuant to Section 2(a),
then the Company shall deliver a copy of such request to the Initiating
Holder(s), in which event such joining holder(s) shall be deemed to be
"Initiating Holders" for the purposes of this Agreement, provided however, that
if the Common Stock requested to be included by such joining holder(s) in the
Initiating Holder's registration under Section 2(a) hereof are sold thereunder,
then such joined registration shall constitute one (1) of the permitted
registration statements under Section 2(a) of the Class A Amended and Restated
Registration Rights Agreement, and further provided that the number of shares of
Common Stock requested by the joining holder(s) to be included in such
registration shall not exceed the result obtained by multiplying the aggregate
number of shares of Common Stock with unexercised registration rights granted by
the Company pursuant to the Class A Amended and Restated Registration Rights
Agreement then owned by all Class A Holders times a fraction, the numerator of
which is the number of shares of Common Stock for which the actual Initiating
Holder(s) are then requesting registration under Section 2(a) hereof and the
denominator of which is the aggregate number of Registrable Securities with
unexercised registration rights granted by the Company pursuant to this
Agreement then owned by all Holders.
Section 3. Terms and Conditions of Registration. Except as
otherwise provided herein, in connection with any registration statement filed
pursuant to Sections 1 or 2 herein, the following provisions shall apply:
(a) If such registration statement shall be filed pursuant to
Section 2(b) hereof and if the managing underwriter advises the Company in
writing that the inclusion in such registration of some or all of the
Registrable Securities sought to be registered by the Holder creates a
substantial risk that the proceeds or price per share that will be derived from
such registration will be reduced or that the number of shares of Registrable
Securities to be registered at the insistence of the Holder, plus the number of
shares of Common Stock sought to be registered by the Company and any other
shareholders of the Company is too large a number to be reasonably sold, then,
in such
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event, the number of Registrable Securities to be included in the registration
and underwriting (but, in any registration initiated by the Company, not the
number of securities to be sold by the Company unless the Company has otherwise
agreed) may be limited by the managing underwriter, on a pro rata basis based on
the total number of securities (including, without limitation, Registrable
Securities) proposed to be included in the registration by participating Holders
or any other shareholders having "piggyback" registration rights granted by the
Company to such other shareholder not later than the date hereof; provided, that
the number of securities proposed to be included in the registration by any
other shareholder having "piggyback" registration rights granted by the Company
to such other shareholder after the date hereof shall be limited or to the
extent necessary excluded from such registration before any securities
(including, without limitation, Registrable Securities) proposed to be included
in the registration by participating Holders or other shareholders having
"piggyback" registration rights granted by the Company to any such other
shareholder not later than the date hereof shall be limited, unless the
Holder(s) and the Class A Holders shall have consented to the granting of more
favorable "piggyback" rights after the date hereof as provided in Section 8. The
number of securities includable by any Holder or other person may, in the
discretion of the managing underwriter, be rounded to the nearest one hundred
(100) shares. No securities excluded from the underwriting by reason of the
managing underwriter's marketing limitation shall be included in such
registration. Notwithstanding anything in this Agreement to the contrary, prior
to the date one (1) year from the date hereof, in the event that the number of
shares of Common Stock owned by any Class A Holder and included in any
registration and underwriting pursuant to Section 2(b) of the Class A Amended
and Restated Registration Rights Agreement is less than the number of shares
sought to be registered thereby by operation of the provisions of Section 3(a)
thereof, the number of Registrable Securities to be included in such
registration and underwriting pursuant to Section 2(b) and Section 3(a) hereof
shall not exceed two-thirds (2/3) of the aggregate number of shares of Common
Stock included in such registration and underwriting by the Class A Holders.
(b) If requested by the Holder in connection with a registration
statement filed pursuant to Section 1 or Section 2(a), the Company will enter
into an underwriting agreement with the underwriters for such offering, such
agreement to be reasonably satisfactory in form and substance to the Company,
the Holder and the underwriters, and to contain such representations, warranties
and covenants by the Company and such other terms as are customarily contained
in such agreements used by the managing underwriter, including, without
limitation, restrictions of sales of Registrable Securities or other securities
by the Company as may be reasonably agreed to between the Company and such
underwriters, and indemnities and rights to contributions to the effect and to
the extent provided in Sections 4 and 5 hereof. The Holder shall be a party to
any underwriting agreement relating to an underwritten sale of its Common Stock
and may, at its option, require that any or all of the representations,
warranties and covenants of the Company to or for the benefit of such
underwriters, shall also be made to and for the benefit of the Holder. All
representations and warranties of the Holder shall be made to or for the benefit
of the Company.
(c) The Company shall provide a transfer agent and registrar (which
may be the same entity) for the Common Stock, not later than the effective date
of such registration.
(d) All expenses in connection with the preparation and filing of a
registration statement filed pursuant to Sections 1, 2(a) or 2(b) shall be borne
solely by the Company, except for
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any transfer taxes payable with respect to the disposition of such Registrable
Securities, and any underwriting discounts and selling commissions applicable
solely to such sales of Registrable Securities, which shall be paid by the
Holder of the Registrable Securities being registered.
(e) The Company shall use its best efforts to cause all of the
shares covered by such registration statement to be listed on NASDAQ or on such
other securities exchange as such shares may then be listed, on which similar
shares are listed for trading, if the listing of such registered shares is
permitted by such exchange.
(f) Following the effective date of such registration statement,
the Company shall, upon the request of the Holder, forthwith supply such number
of prospectuses (including exhibits thereto and preliminary prospectuses and
amendments and supplements thereto) meeting the requirements of the Securities
Act and such other documents as are referred to in the prospectus as shall be
reasonably requested by the Holder to permit the Holder to make a public
distribution of its Registrable Securities.
(g) (i) Each Holder agrees that it will not effect any sales of
Registrable Securities pursuant to a Registration described in Section 1 after
such Holder has received notice from the Company to suspend sales as a result of
the occurrence or existence of any Suspension Event (as defined in Section
3(g)(ii) below) until the Company provides notice to such Holder that all
Suspension Events have ceased to exist. In addition, each Holder agrees that it
will not effect any sales of Registrable Securities pursuant to the Registration
described in Section 1 after such Holder has received notice from the Company to
suspend sales because the registration statement pursuant to which such sale is
to be effected, and the related prospectus or any supplement thereto contains an
untrue statement of a material fact or omits to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, until the Company notifies such Holder
that the misstatement or omission has been corrected. The Company hereby
covenants and agrees that it will use its best efforts to promptly correct any
such misstatement or omission, or to cure any Suspension Event, and that it will
give immediate notice to the Holder of such correction or cure.
(ii) Notwithstanding anything to the contrary set forth in this
Agreement, the Company's obligation to file a registration statement pursuant to
Section 1 hereof and make any filings with any state securities authority, to
use its best efforts to cause a registration statement or any state securities
filings to become effective, or to amend or supplement such a registration
statement or any state securities filings shall be temporarily suspended in the
event of and during a Suspension Event. A "Suspension Event" shall exist at such
times that (A) the Company is not eligible to use Form S-3 for the registration
contemplated by Section 1 hereof, or (B) the Company is conducting an
underwritten primary offering and is advised by the underwriters therein that
sale of Registrable Securities under the registration statement filed pursuant
to Section 1 hereof would have a material adverse effect on the Company's
offering, or (C) negotiations and/or consummation are pending relating to a
transaction or the occurrence of some other event (x) where any of the foregoing
would require disclosure under applicable securities laws of material
information in a registration statement (or any other document incorporated into
a registration statement by reference) or such state securities filings and (y)
as to which the Company has a bona fide business purpose, as determined in good
faith by its Board of Directors, for preserving confidentiality or
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which renders the Company unable to comply with the Commission's requirements.
Suspension of the Company's obligations pursuant to this Section 3(g)(ii) shall
continue only for so long as a Suspension Event is continuing. The Company shall
notify each Holder immediately after any Suspension Event occurs or ceases to
exist.
(h) The Holder may select the managing underwriter or underwriters,
if any, who are to undertake any offering and distribution of the Registrable
Securities to be included in a registration statement filed under the provisions
of Section 1 or 2(a) hereof, subject to the Company's prior approval of the
managing underwriter, which approval shall not be unreasonably withheld;
provided, however, that in the event there is a Joined Registration, the
Initiating Holders shall mutually select the managing underwriter(s), except
that in the event the Initiating Holders are unable to mutually agree on a
managing underwriter(s), the actual Initiating Holder shall have the right to
select the managing underwriter(s) which shall be reasonably acceptable to the
joining Initiating Holder, and further provided that in the event there is a
subsequent Joined Registration for which Initiating Holders are unable to
mutually agree on the selection of a managing underwriter(s), the other
Initiating Holder shall have the right to select the managing underwriter(s),
which managing underwriter(s), irrespective of who was the actual Initiating
Holder in such subsequent Joined Registration, shall be reasonably acceptable to
the Initiating Holder.
(i) The Company shall use its best efforts to register the
Registrable Securities covered by any such registration statements filed
pursuant to Section 1 or 2 under such securities or Blue Sky laws in addition to
those in which the Company would otherwise sell shares, as the Holder shall
request, except that neither the Company nor the Holder shall for any such
purpose be required to execute a general consent to service of process or to
qualify to do business as a foreign corporation in any jurisdiction where it is
not so qualified. The fees and expenses incurred in connection with such
registration shall be borne by the Company.
(j) The Holder shall cooperate fully with the Company and provide
the Company with all information reasonably requested by the Company for
inclusion in the registration statement or as necessary to comply with the
Securities Act. The Company shall cooperate fully with any underwriters selected
by the Holder and counsel to such underwriters, and shall provide reasonable and
customary access to the Company's books and records (upon receipt from such
underwriters of customary confidentiality agreements) in order to facilitate
such underwriters' review and examination of the Company in connection with such
underwriting.
(k) The Company shall notify the Holder, at any time after
effectiveness 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 any material fact
required to be stated therein or necessary to make the statements therein not
misleading in light of circumstances then existing (and upon receipt of such
notice and until a supplemented or amended prospectus as set forth below is
available, the Holder shall not offer or sell any securities covered by such
registration statement and shall return all copies of such prospectus to the
Company if requested to do so by it), and at the request of the Holder prepare
and furnish the Holder as promptly as practicable, but in any event within 90
days, 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 shares, such
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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 not misleading in light of the circumstances then existing.
(l) The Company shall furnish to the Holder at the time of the
disposition of the Registrable Securities, a signed copy of an opinion of the
Company's regular in-house or outside general counsel, or other counsel of the
Company's selection reasonably acceptable to, and which opinion shall be
reasonably satisfactory in form and substance to, the Holder to the effect that:
(i) a registration statement covering such Registrable Securities has been filed
with the Commission under the Securities Act and has been declared effective by
order of the Commission, (ii) said registration statement and prospectus
contained therein comply as to form in all material respects with the
requirements of the Securities Act, and nothing has come to such counsel's
attention (after due inquiry) which would cause such counsel to believe that
either said registration statement or such prospectus (other than the financial
statements contained therein, as to which such counsel need not express any
opinion) contains any 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 (in the case of such prospectus, in light of the circumstances under
which they were made) not misleading, (iii) after due inquiry such counsel knows
of no legal or governmental proceedings required to be described in such
registration statement or prospectus which are not described as required, or of
any contracts or documents of a character required to be described in such
registration statement or such prospectus to be filed as an exhibit to such
registration statement or to be incorporated by reference therein which are not
described and filed as required and (iv) to such counsel's knowledge, no stop
order has been issued by the Commission suspending the effectiveness of such
registration statement; it being understood that such opinion may contain such
qualifications and assumptions as are customary in the rendering of similar
opinions, and that such counsel may rely, as to all factual matters treated
therein, on certificates of the Company (copies of which shall be delivered to
the Holder).
(m) The Company will use its best efforts to comply with the
reporting requirements of Sections 13 and 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), to the extent it shall be required to
do so pursuant to such sections, and at all times while so required shall use
its best efforts to comply with all other public information reporting
requirements of the Commission (including reporting requirements which serve as
a condition to utilization of Rule 144 promulgated by the Commission under the
Securities Act) from time to time in effect and relating to the availability of
an exemption from the Securities Act for the sale of any of the Registrable
Securities held by the Holder. The Company will also cooperate with the Holder
in supplying such information and documentation as may be necessary for the
Holder to complete and file any information reporting forms presently or
hereafter required by the Commission as a condition to the availability of an
exemption from the Securities Act for the sale of any of the Registrable
Securities held by the Holder.
(n) If the managing underwriter of a Joined Registration advises
the Initiating Holders in writing that, after the exclusion of all shares sought
to be registered in such registration by the Company and other shareholders with
"piggyback" rights, that the inclusion in such registration of some or all of
the securities sought to be registered by the Initiating Holders creates a
substantial risk that the proceeds or price per share that will be derived from
such registration will be reduced or that the number of shares of Common Stock
sought to be registered by the Initiating
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Holders is too large a number to be reasonably sold, then, in such event, the
number of shares to be included in the Joined Registration and underwriting may
be limited by the managing underwriter, on a pro rata basis based on the total
number of securities (including, without limitation, Registrable Securities)
proposed to be included in the Joined Registration by the actual Initiating
Holders and the deemed Initiating Holders.
Section 4. Indemnification.
(a) In the event of the registration of any Registrable Securities
by the Company under the Securities Act pursuant to the provisions of Sections 1
or 2, the Company agrees to indemnify and hold harmless the Holder of such
Registrable Securities, each underwriter, broker or dealer, if any, and their
respective directors, officers and employees, and each other person, if any, who
controls the holders of the Registrable Securities (or a permitted assignee
thereof), such underwriter, broker or dealer within the meaning of the
Securities Act, from and against any and all losses, claims, damages or
liabilities (or actions in respect thereof), joint or several, to which the
Holder (and as applicable) its directors, officers or employees, or such
underwriter, broker or dealer or controlling person may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any registration statement under which such Registrable Securities were
registered under the Securities Act, any preliminary prospectus or final
prospectus relating to such Registrable Securities, or any amendment or
supplement thereto, or arise out of or are based upon 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 any violation by the
Company of any rule or regulation under the Securities Act applicable to the
Company or relating to any action or inaction required by the Company in
connection with any such registration and will reimburse the Holder, each such
underwriter, broker or dealer and controlling person, and their respective
directors, officers or employees, for any legal or other expenses reasonably
incurred by the Holder or such underwriter, broker or dealer or controlling
person in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the Company will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in such registration statement,
such preliminary prospectus, such final prospectus or such amendment or
supplement thereto in reliance upon and in conformity with written information
furnished to the Company by the Holder and as applicable, such Holder'
directors, officers or employees, or such underwriter, broker, dealer or
controlling person designated in writing for use in the preparation thereof.
Such indemnity shall remain in full effect irrespective of any investigation by
any person indemnified above.
(b) In the event of the registration of any Registrable Securities
of the Holder under the Securities Act for sale pursuant to the provisions of
this Agreement, the Holder agrees to indemnify and hold harmless the Company,
its directors, officers and employees, from and against any losses, claims,
damages or liabilities, joint or several, to which the Company, its directors,
officers or employees, may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in any registration statement under
which such Registrable Securities were registered under the Securities Act, any
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preliminary prospectus or final prospectus relating to such Registrable
Securities, or any amendment or supplement thereto, or arise out of or are based
upon omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
which untrue statement or alleged untrue statement or omission or alleged
omission was made therein in reliance upon and in conformity with written
information furnished to the Company by the Holder and designated in writing for
use in the preparation thereof. Such indemnity shall remain in full effect
irrespective of any investigation by any person indemnified above.
(c) Promptly after receipt by a person entitled to indemnification
under this Section 4 (an "Indemnified Party") of notice of the commencement of
any action or claim relating to any registration statement filed under Sections
1 or 2 or as to which indemnity may be sought hereunder, such Indemnified Party
will, if a claim for indemnification hereunder in respect thereof is to be made
against any other party hereto (an "Indemnifying Party"), give written notice to
such Indemnifying Party of the commencement of such action or claim, but the
failure to so notify the Indemnifying Party will not relieve it from any
liability which it may have to any Indemnified Party otherwise than pursuant to
the provisions of this Section 4 and shall also not relieve the Indemnifying
Party of its obligations under this Section 4, except to the extent that the
Indemnifying Party is damaged solely as a result of the failure to give timely
notice. In case any such action is brought against an Indemnified Party, and it
notifies an Indemnifying Party of the commencement thereof, the Indemnifying
Party will be entitled (at its own expense) to participate in and, to the extent
that it may wish, jointly with any other Indemnifying Party similarly notified,
to assume the defense with counsel satisfactory to such Indemnified Party, of
such action and/or to settle such action and, after notice from the Indemnifying
Party to such Indemnified Party of its election so to assume the defense
thereof, the Indemnifying Party will not be liable to such Indemnified Party for
any legal or other expenses subsequently incurred by such Indemnified Party in
connection with the defense thereof, other than the reasonable cost of
investigation; provided, however, that no Indemnifying Party and no Indemnified
Party shall enter into any settlement agreement which would impose any liability
on such other party or parties without the prior written consent of such other
party or parties.
Section 5. Contribution. If the indemnification provided for in
Section 4 hereof is unavailable to the Indemnified Party in respect of any
losses, claims, damages or liabilities referred to herein, then each such
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such losses, claims, damages or liabilities (i) as between the Company and
the Holder on the one hand and the underwriters on the other, in such proportion
as is appropriate to reflect the relative benefits received by the Company and
the Holder on the one hand and the underwriters on the other from the offering
of the Registrable Securities, or if such allocation is not permitted by
applicable law, in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company and the Holder on
the one hand and of the underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations and (ii) as
between the Company on the one hand and each Holder on the other, in such
proportion as is appropriate to reflect the relative fault of the Company and of
each Holder in connection with such statements or omissions, as well as any
other relevant equitable considerations.
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In no event shall the obligation of any Indemnifying Party to
contribute under this Section 5 exceed the amount that such Indemnifying Party
would have been obligated to pay by way of indemnification if the
indemnification provided for under Section 4 hereof had been available under the
circumstances.
The amount paid or payable by an Indemnified Party as a result of the
losses, claims, damages and liabilities referred to in the next preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses incurred by such Indemnified Party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 5, no Holder or underwriter shall
be required to contribute any amount in excess of the amount by which (i) in the
case of a Holder, the net proceeds received by such Holder from the sale of
Registrable Securities or (ii) in the case of an underwriter, the total price at
which the Registrable Securities purchased by it and distributed to the public
were offered to the public exceeds, in any such case, the amount of any damages
that such Holder or underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
Section 6. Survival. The indemnity and contribution agreements
contained herein shall remain operative and in full force and effect regardless
of (i) any termination of this Agreement or any underwriting agreement, (ii) any
investigation made by or on behalf of any Indemnified Party or by or on behalf
of the Company and (iii) the consummation of the sale or successive resales of
the Registrable Securities.
Section 7. Remedies. Each Holder of Registrable Securities, in
addition to being entitled to exercise all rights hereto and all other rights
granted by law, including recovery of damages, will be entitled to specific
performance of its rights under this Agreement. The Company agrees that monetary
damages would not be adequate compensation for any loss incurred by reason of a
breach by it of the provisions of this Agreement and hereby agrees to waive the
defense in any action for specific performance that a remedy at law would be
adequate.
Section 8. Future Registration Rights. Until such time as the
Registration has been declared effective by the Commission, the Company shall
not grant to any third party any registration rights equal to or more favorable
than those contained herein; provided, however, that the foregoing prohibition
shall not prevent the Company from granting to a third party specific
registration rights that are equal to certain of those contained herein, as long
as all of the registration rights granted to such third party, taken as a whole,
are less favorable to the third party that those granted to the Holder herein.
In the event that the Registration shall fail to remain effective (or a stop
order shall be entered with respect thereto) while any of the Registrable
Securities remain unsold, the provisions of this Section 8 shall become
applicable once again. Notwithstanding anything in this Section 8 to the
contrary, after the date hereof the Company shall not, without the prior written
consent of the Holder(s) and the Class A Holders, grant "piggyback" registration
rights to the holder of any securities which shall entitle such holder in the
event of an underwriter's cutback to the preferred right of inclusion as
described in Section 3(a) of (i) the Holder(s) and (ii) other shareholders
having "piggyback" registration rights granted not later than the date hereof.
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Section 9. Modification and Waiver. No modification or waiver of
any provision of this Agreement and no consent by the Holder to any departure
therefrom by the Company shall be effective unless such modification or waiver
shall be in writing and signed by a duly authorized officer of the Holder, and
the same shall then be effective only for the period and on the conditions and
for the specific instances and purposes specified in such writing. No notice to
or demand on the Company in any case shall entitle the Company to any other or
further notice or demand in similar or other circumstances.
Section 10. Governing Law. This Agreement and the transactions
contemplated hereby shall be deemed to be consummated in the State of Texas and
shall be governed by and interpreted in accordance with the local laws of the
State of Texas without regard to the provisions thereof relating to conflict of
laws.
Section 11. Notices. All notices, requests, demands or other
communications provided for herein shall be in writing and shall be deemed to
have been given three days after being sent by registered or certified mail,
return receipt requested, or when personally delivered, or successfully sent by
facsimile transmission as evidenced by a fax machine generated confirmation
report thereof, addressed as the case may be, to the Holder at Sirrom Capital
Corporation, 000 Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx Xxxxxx; with a copy to Xxxxxx I.N. XxXxxxxx, Xxxxxxxx & Xxx,
PLC, 000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx, Xxxxxxxxx 00000; or the Company
at Clinicor, Inc., 0000 Xxxx Xxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000,
Attention: Xxxxxx Xxxxxx, Facsimile No. (000) 000-0000; with a copy to Graves,
Dougherty, Xxxxxx & Xxxxx, 000 Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx,
Attention: Xxxxx Xxxxxxxxxx, Esq., Facsimile No. (000) 000-0000, or to such
other person or address as either party shall designate to the other from time
to time in writing forwarded in like manner.
Section 12. Stamp or Other Tax. Should any stamp or excise tax
become payable in respect of this Agreement, or any modification hereof, the
Company shall pay the same (including interest and penalties, if any) and shall
hold the Holder harmless with respect thereto.
Section 13. Waiver of Jury Trial and Setoff. The Company hereby
waives trial by jury in any litigation in any court with respect to, in
connection with, or arising out of this Agreement, or any instrument or document
delivered pursuant to this Agreement; and the Company hereby waives the right to
interpose any setoff or noncompulsory counterclaim or cross-claim in connection
with any such litigation, irrespective of the nature of such setoff,
counterclaim or cross-claim.
Section 14. Service of Process. The Company hereby irrevocably
consents to the jurisdiction of the United States District Court located in
Nashville, Tennessee in connection with any action or proceeding arising out of
or relating to this Agreement. In any such litigation the Company waives
personal service of any summons, complaint or other process and agrees that the
service thereof may be made certified or registered mail directed to the Company
at its address set forth in Section 11. Within 30 days after such mailing, the
Company so served shall appear or answer to such summons, complaint or other
process. Should the Company so served fail to appear or answer within said 30-
day period, the Company shall be deemed in default and judgment may be
11
entered by the Holder against the Company for the amount as demanded in any
summons, complaint or other process so served.
Section 15. Benefit of Agreement. This Agreement shall be binding
upon and inure to the benefit of the Company and Tandem and their respective
successors and assigns.
Section 16. Counterparts. This Agreement may be executed by the
parties hereto in one or more counterparts, each of which shall be an original
and all of which shall together constitute one and the same agreement.
Section 17. Severability. Wherever possible, each provision of
this Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be prohibited
by or invalid under applicable law, such provision shall be modified to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Agreement.
IN WITNESS WHEREOF, the Company and the Holder have caused this
Agreement to be duly executed by their respective officers thereunto duly
authorized as of the day and year first above written.
CLINICOR, INC.
By: /s/ XXXXX X. XXXXX, XX.
-------------------------------------
Name: Xxxxx X. Xxxxx, Xx.
-------------------------------------
Title: VP Finance, Treasurer & CFO
------------------------------------
SIRROM CAPITAL CORPORATION
d/b/a Tandem Capital, Inc.
By: /s/ XXXXX XXXXXX
-------------------------------------
Xxxxx Xxxxxx
Vice President
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