EXHIBIT 10.5
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "AGREEMENT") is made and
entered into as of February ___, 2001 between The Xxxxxx Biomechanics Group,
Inc., a corporation organized under the laws of the State of New York (the
"COMPANY"), and each of the holders indicated on the signature page hereto
(each, a "HOLDER," collectively, the "Holders").
R E C I T A L S
This Agreement is made in connection with the Option Agreements,
dated as of the date hereof (the "OPTION AGREEMENT"), between the Company and
the Holders, pursuant to which the Holders are acquiring options to purchase
up to 1,400,000 shares of the Common Stock of the Company.
Unless otherwise defined herein, capitalized terms so used herein
and not defined shall have the same meaning as provided in the Option
Agreement.
The parties hereby agree as follows:
1. CERTAIN DEFINITIONS.
As used in this Agreement, the following terms shall have the
following respective meanings:
"BUSINESS DAY" means any day, other than a Saturday, Sunday
or legal holiday, on which banks in the State of New York are open for
business.
"COMMON STOCK" means the Common Stock, par value $.02 per
share, of the Company, as constituted on the date hereof, any shares into
which such Common Stock shall have been changed, or any shares resulting from
any reclassification of such Common Stock.
"EXCHANGE ACT" means the Securities Exchange Act of 1934,
as amended, or any successor statute thereto, and the rules and regulations
of the SEC promulgated thereunder, all as the same shall be in effect at the
time.
"HOLDERS" means the Holders referred to in the Preamble,
their respective successors and any other person holding Registrable
Securities to whom these registration rights have been assigned pursuant to
Section 8(f) of this Agreement.
"INCIDENTAL REGISTRATION" has the meaning specified in
Section 2(b) of this Agreement.
"MAJORITY HOLDERS" means as of any time Holders of at least
50% of the Registrable Securities outstanding at such time.
"PERSON" shall mean an individual, partnership,
corporation, association, trust, joint venture, unincorporated organization
and any government, governmental. department or agency or political
subdivision thereof
"REGISTRABLE SECURITIES" means (i) the Common Stock
acquired by any Holder pursuant to the exercise of the Xxxxxx Options; (ii)
any Common Stock or other securities issued or issuable with respect to
Common Stock acquired by any Holder pursuant to the exercise of the Xxxxxx
Options, upon any stock split, stock dividend, recapitalization, or similar
event and (iii) any securities issued in replacement or exchange of any of
the securities issued in clauses (i) or (ii) above.
"REGISTRATION" means an Incidental Registration and a
Requested Registration.
"REGISTRATION EXPENSES" means all expenses incident to the
Company's performance of or compliance with this Agreement, including,
without limitation, all registration, filing, listing and National
Association of Securities Dealers, Inc. ("NASD") fees, all fees and expenses
of complying with securities or blue sky laws of the United States, including
without limitation the Securities Laws, all word processing, duplicating and
printing expenses, all messenger and delivery expenses, any stock exchange
fees, any transfer taxes, the fees and expenses of the Company's legal
counsel and independent public accountants, including the expenses of any
special audits or "cold comfort" letters required by or incident to such
performance and compliance, and any fees and disbursements of underwriters
customarily paid by issuers or sellers of securities; provided, however, that
Registration Expenses shall not include underwriting discounts and
commissions.
"REGISTRATION STATEMENT" has the meaning specified in
Section 3(a) of this Agreement.
"REQUESTED REGISTRATION" has the meaning specified in
Section 2(a) of this Agreement.
"SEC" means the United States Securities and Exchange
Commission.
"SECURITIES ACT" means the Securities Act of 1933, as
amended, or any successor statute thereto, and the rules and regulations of
the SEC promulgated thereunder, all as the same shall be in effect at the
time.
"SECURITIES LAWS" means the Securities Act and the Exchange
Act.
"UNDERWRITER'S MAXIMUM NUMBER" means in connection with an
underwritten registration or offering of Registrable Securities or any shares
of the capital stock or other securities of the Company, a specified maximum
number of securities that, in the written opinion of the managing
underwriters, may successfully be included in such registration or offering
due to the dictates of market conditions.
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2. REGISTRATION.
(a) REQUESTED REGISTRATION. At any time after the date hereof and on
or prior to the third anniversary of the date hereof, upon written request by
the Majority Holders to the Company, that the Company effect the registration
under the Securities Act of all or part of the Registrable Securities (a
"REQUESTED REGISTRATION"), the Company will use its best efforts to effect
the registration under the Securities Act of the Registrable Securities which
the Company has been so requested to register by the Holders within one
hundred twenty (120) days after receipt of such request or within sixty (60)
days after receipt of such request with respect to a Requested Registration,
if the Company is qualified to file a registration statement on SEC Form S-3
or any successor or similar short-form registration statement (collectively,
"SEC Form S-3") and the SEC does not subject such registration to a full
review; provided, however, that the Company shall not be obligated to effect
a Requested Registration pursuant to this subdivision (a), (A) unless with
respect to a Requested Registration, the shares to be registered represent at
least two percent (2%) of the Common Stock then outstanding and the
anticipated aggregate offering price of the Registrable Securities to be sold
is at least $2,000,000, in the case of registration on XXX Xxxx X-0, or at
least $5,000,000 in the case of other registrations, or (B) during the 180
day period immediately following the consummation of any previous Requested
Registration pursuant to this Section. Subject to all limitations in the
preceding sentence, the Company must effect no more than three Requested
Registrations pursuant to this subdivision (a) to the extent such Requested
Registrations may be effected on SEC Form S-3, and no more than two Requested
Registrations hereunder other than on SEC Form S-3. Subject to subdivision
(e), the Company may include in such Requested Registration other securities
of the Company for sale, for the Company's account or for the account of any
other person, if there is no underwriter and, if there is an underwriter, if
and to the extent that the managing underwriter determines that the inclusion
of such additional shares will not interfere with the orderly sale of the
underwritten securities at a price range acceptable to the requesting
Holders. Upon receipt of a written request pursuant to this subdivision (a)
the Company shall promptly give written notice of such request to all
Holders, and all Holders shall be afforded the opportunity to join in such
request. The Company will be obligated to include in the Requested
Registration such number of Registrable Securities of any Holder joining in
such request as are specified in a written request by such Holder received by
the Company within 20 days after receipt of such written notice from the
Company.
(b) INCIDENTAL REGISTRATION. If the Company for itself or any of its
security holders shall at any time or times after the date hereof determine
to register under the Securities Act any shares of its capital stock or other
securities (an "Incidental Registration"), other than: (i) the registration
of an offer, sale or other disposition of securities solely to employees of,
or other persons providing services to, the Company, or any subsidiary
pursuant to an employee or similar benefit plan or where Form S-8, or any
successor form is otherwise available; or (ii) relating to a merger,
acquisition or other transaction of the type described in Rule 145 under the
Securities Act or a comparable or successor rule, registered on XXX Xxxx X-0
or similar or successor forms, the Company will notify each Holder of such
determination at least thirty (30) days prior to the filing of such
registration statement or prospectus, and upon the written request of any
Holder given in writing to the Company within twenty (20) days after the
receipt of such notice, the Company will use its best efforts as soon as
practicable thereafter to cause any of such Holder's Registrable Securities
specified in such
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Holder's request to be included in such registration statement or prospectus
to the extent such registration is permissible under the applicable
Securities Laws and subject to the conditions of such applicable Securities
Laws. Subject to subdivision (e) any Holders may cause Registrable Securities
to be included in a Registration Statement filed on behalf of the Company, if
there is no underwriter and, if there is an underwriter, if and to the extent
that the managing underwriter determines that the inclusion of such
additional securities will not interfere with the orderly sale of the
underwritten securities at a price range acceptable to the Company.
(c) EXPENSES. The Company shall pay all Registration Expenses
incurred in connection with any Incidental Registration and any Requested
Registration.
(d) EFFECTIVE REGISTRATION STATEMENT. A Requested Registration or an
Incidental Registration requested pursuant to Section 2(a) or Section 2(b),
respectively, shall not be deemed to have been effected unless the
Registration Statement relating thereto has become effective with the SEC.
Notwithstanding the foregoing, a Requested Registration or an Incidental
Registration will not be deemed to have been effected if (i) within sixty
(60) days after it has become effective with the SEC, such Requested
Registration or Incidental Registration is interfered with by any stop order,
cease trade order, injunction, or other order or requirement of the SEC or
any other governmental agency or any court proceeding for any reason other
than a misrepresentation or omission by any Holder; or (ii) the conditions to
closing specified in the purchase agreement or underwriting agreement entered
into in connection with such registration are not satisfied, other than
solely by reason of some act or omission by any Holder.
(e) PRIORITY IN REGISTRATION.
(i) If (A) a Requested Registration is an
underwritten registration, (B) the Company proposes to include
other securities of the Company for sale, for the Company's
account or the account of others ("Additional Registrable
Securities"), and (C) the managing underwriters shall give
written advice to the Company of an Underwriter's Maximum
Number with respect to such Requested Registration, which is
less than the aggregate number (the "Proposed Included
Securities") of the Registrable Securities requested for
inclusion by the Holders and such Additional Registrable
Securities, then: (w) first, the number of such Additional
Registrable Securities which may be included in the Requested
Registration shall be reduced by the excess of such Proposed
Included Securities over such Underwriter's Maximum Number
(such excess being herein called the "Excess Securities"),
with the relative priority rights of the Holders of such
Additional Securities determined in accordance with their
respective Agreements with the Company and (x) second, if such
Excess Securities shall exceed the number of such Additional
Registrable Securities, such number of the Registrable
Securities requested for inclusion by the Holders shall be
reduced pro rata among the Holders, on the basis of the number
of shares requested to be included therein by the Holders, by
an aggregate amount equal to the excess of the Excess
Securities over such sum.
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(ii) If an Incidental Registration is an underwritten
registration initiated by the Company for its own account, and
the managing underwriters shall give written advice to the
Company of an Underwriter's Maximum Number with respect to
such Incidental Registration, then: (A) the Company shall be
entitled to include in such registration that number of
securities which the Company proposes to offer and sell for
its own account in such registration which does not exceed the
Underwriter's Maximum Number; and (B) the Company will be
obligated and required to include in such registration that
number of shares of Registrable Securities which shall have
been requested by the Holders thereof and for the account of
others ("ADDITIONAL REGISTRANTS") having registration rights
PARRI PASSU with those of the Holders ("ADDITIONAL REGISTRABLE
SECURITIES") and which does not exceed the difference between
the Underwriter's Maximum Number and that number of securities
which the Company is entitled to include therein pursuant to
clause (A) above and such number of shares shall be allocated
pro rata between the Holders and the Additional Registrants on
the basis of the number of shares requested to be included
therein by the Holders and the Additional Registrants to the
full extent of the remaining portion of the Underwriter's
Maximum Number.
(iii) If an Incidental Registration is an
underwritten registration initiated by the Company pursuant to
an agreement (an "Other Reg Rights Agreement") with securities
holders of the Company ("OTHER HOLDERS") other than the
Holders, and the Holders and/or the Company shall request to
include any securities therein, and the managing underwriters
shall give written advice to the Other Holders of an
Underwriter's Maximum Number with respect to such Incidental
Registration which is less than the aggregate number of
securities requested for inclusion by the Other Holders, the
Holders and the Company, then for purposes of determining the
relative priority of the Holders and the Other Holders, on the
one hand, and the Company, on the other, the Holders shall be
deemed Other Holders and priority shall be determined in
accordance with the provisions of the Other Reg Rights
Agreement and, for purposes of determining the relative
priority between the Holders and the Other Holders, the number
of securities which the Holders and the Other Holders would be
entitled to include in such Incidental Registration pursuant
to such Other Agreements will be allocated among the Holders
and the Other Holders in proportion to the number of shares
requested to be included therein by the Holders and the Other
Holders.
(f) Notwithstanding anything in paragraphs (a) and (b) of this Section
2, the Company shall have the right to delay any registration of Registrable
Securities requested pursuant to paragraph (a) or (b) of this Section 2 for up
to ninety (90) days if such registration would, in the judgment of the Company's
Board of Directors, substantially interfere with any material transaction being
considered at the time of receipt of the request from the Holders. If the
material transaction being considered by the Company is a public offering of its
securities, the Company shall be permitted to delay the requested registration
only if it is actively engaged in seeking to complete such offering,
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3. REGISTRATION AND QUALIFICATION PROCEDURES.
(a) If and whenever the Company is required to effect the
registration of any Registrable Securities under the Securities Laws as
provided in Section 2, the Company, as expeditiously as possible and subject
to the terms and conditions of Section 2, will:
(i) prepare and file in any event within forty-five
(45) days after a request for registration has been delivered
to the Company or, if the Company is then eligible to use XXX
Xxxx X-0, within thirty (30) days after such request has been
so delivered, with the SEC the requisite registration
statement and prospectus related thereto to effect such
Registration (a "Registration Statement") and use its best
efforts to cause such Registration Statement to become and
remain effective; provided, if at the time of such request the
Company does not have available audited financial statements
as as required by the Securities Laws, such period shall be
extended for such time, up to an additional 45 days, as is
required to expeditiously prepare and have audited the
requisite financial statements;
(ii) permit any Holder which, in the reasonable
judgment of the Holder, might be deemed to be an underwriter,
promoter or a controlling person of the Company, to
participate in the preparation of a Registration Statement and
to require the insertion therein of material, reasonably
satisfactory to the Company, which in the reasonable judgment
of such Holder and its counsel should be included;
(iii) prepare and file with the SEC such amendments
and supplements to such Registration Statement pursuant to the
Securities Laws as may be necessary to keep such Registration
Statement effective and to comply with the provisions of the
Securities Laws with respect to the disposition of all
securities covered by such Registration Statement until the
earlier of such time as all of such securities have been
disposed of in accordance with the intended methods of
disposition by the seller or sellers thereof set forth in such
Registration Statement or the expiration of nine months after
such Registration Statement becomes effective;
(iv) furnish to the Holders (A) such number of
conformed copies of such Registration Statement, each
preliminary prospectus and summary prospectus and each
amendment and supplement thereto (in each case including all
exhibits) and any prospectus filed under Rule 424 under the
Securities Act, in conformity with the requirements of the
Securities Act, and (B) such other documents, as any Holder of
Registrable Securities to be sold under such Registration
Statement may reasonably request;
(v) use its best efforts to register or qualify all
Registrable Securities under such other United States state
securities or blue sky laws of such jurisdictions as any
Holder of Registrable Securities, which are to be sold, shall
reasonably request, to keep such registration or qualification
in effect, and take any other action which may be reasonably
necessary or advisable to enable the Holder of Registrable
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Securities, which are to be sold under such Registration
Statement, to consummate the disposition of such Registrable
Securities in such jurisdictions, except that the Company
shall not for any such purpose be required to (A) qualify
generally to do business as a foreign corporation in any
jurisdiction wherein it would not but for the requirements of
this subdivision (v) be obligated to be so qualified, or (B)
subject itself to taxation in any such jurisdiction.
(vi) use its best efforts to cause all Registrable
Securities covered by a Registration Statement to be
registered with or approved by such other United States state
agencies or authorities as may be necessary to enable the
Holders of Registrable Securities to be sold under such
Registration Statement to consummate the intended disposition
of such Registrable Securities;
(vii) in the event of the issuance of any stop, cease
trade or other order suspending the effectiveness of the
Registration Statement, or of any order suspending or
preventing the use of any related prospectus or suspending the
registration of any Registrable Securities included in such
Registration Statement for sale in any jurisdiction, the
Company shall use its best efforts promptly to obtain the
withdrawal of such order;
(viii) use it best efforts to furnish to the Holders
of Registrable Securities to be sold under such Registration
Statement (A) an opinion, dated the effective date of the
Registration Statement, of the independent counsel
representing the Company for the purposes of such
registration, addressed to the underwriters, if any, and to
the Holders making such request, stating that such
Registration Statement has become effective under applicable
Securities Laws and that (1) to the best knowledge of such
counsel, no stop, cease trade or other order suspending the
effectiveness thereof has been issued and no proceedings for
that purpose have been instituted or are pending or
contemplated under applicable Securities Laws; (2) the
Registration Statement, each preliminary or supplementary
prospectus with respect thereto, and each amendment or
supplement thereto, comply as to form in all material respects
with the requirements of applicable Securities Laws (except
that such counsel need express no opinion as to financial
statements contained therein); (3) such counsel has no reason
to believe that either the Registration Statement, each
preliminary or supplementary prospectus with respect thereto,
or any amendment or supplement thereto, contains any untrue
statement of a material fact or omits a material fact
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; (4)
the descriptions in the effective Registration Statement, each
supplementary prospectus with respect thereto, or any
amendment or supplement thereto, of all legal and governmental
matters and contracts and other legal documents or instruments
are accurate and fairly present the information required to be
shown; and (5) such counsel does not know of any legal or
governmental proceedings, pending or contemplated, required to
be described in the effective Registration Statement, each
supplementary prospectus with respect thereto, or any
amendment or supplement thereto, which are not described as
required nor of
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any contracts or documents or instruments of a character
required to be described in the effective Registration
Statement, each supplementary prospectus with respect thereto,
or any amendment or supplement thereto or to be filed as
exhibits to the effective Registration Statement which are not
described and filed as required; and (B) a letter, dated the
effective date of the Registration Statement, from the
independent certified public accountants of the Company,
addressed to the underwriters, if any, and to the Holders
making such request, stating that they are independent
certified public accountants within the meaning of the
Securities Act and that in the opinion of such accountants,
the financial statements and other financial data of the
Company included in the effective Registration Statement, each
supplementary prospectus with respect thereto, or any
amendment or supplement thereto, comply as to form in all
material respects with the applicable accounting requirements
of applicable Securities Laws.
Such opinion of counsel shall additionally
cover such legal matters with respect to the registration or
qualification in respect of which such opinion is being given
as the Holders may reasonably request. Such letter from the
independent certified public accountants shall additionally
cover such other financial matters (including information as
to the period ending not more than five business days prior to
the date of such letter) with respect to the registration or
qualification in respect of which such letter is being given
as the Holders may reasonably request.
(ix) immediately notify the Holders of Registrable
Securities included in such Registration Statement at any time
when a prospectus relating thereto is required to be delivered
under applicable Securities Laws, 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 material fact or omits to state any material fact
required to be stated therein or necessary to make the
statements therein not misleading in the light of the
circumstances under which they were made, and at the request
of the Holders promptly prepare and furnish to the Holders a
reasonable number of copies of a supplement to or an amendment
thereof as may be necessary so that, as thereafter delivered
to the purchasers of such securities, such prospectus shall
not include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the
light of the circumstances under which they were made;
(x) otherwise use its best efforts to comply with all
applicable rules and regulations of the SEC, and make
available to its security holders, as soon as reasonably
practicable, an earnings statement covering a period of at
least twelve months, but not more than eighteen months,
beginning with the first full calendar month after the
effective date of the Registration Statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder,
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(xi) provide a transfer agent for all Registrable
Securities covered by such Registration Statement not later
than the effective date of such Registration Statement; and
(xii) use its best efforts to list all Registrable
Securities covered by such Registration Statement on any
securities exchange on which any of the shares of the capital
stock of the Company are then listed.
(b) The Company may require each Holder of Registrable Securities to
be sold under a Registration Statement, at the Company's expense, to furnish
the Company with such information and undertakings as it may reasonably
request regarding such Holder and the distribution of such securities as the
Company may from time to time reasonably request in writing.
(c) Each Holder, by execution of this Agreement, agrees (A) that
upon receipt of any notice of the Company of the happening of any event of
the kind described in subdivision (a)(ix) of this Section 3, such Holder will
forthwith discontinue its disposition of Registrable Securities pursuant to
the Registration Statement relating thereto until the expiration of any time
limits imposed by applicable Securities Laws and until the receipt by such
Holder of copies of the supplemented or amended prospectus contemplated by
subdivision (a)(ix) of this Section 3 and, if so directed by the Company,
will deliver to the Company all copies other than permanent file copies, then
in possession of the Holder of the prospectus relating to such Registrable
Securities current at the time of receipt of such notice and (B) that Holder
will immediately notify the Company, at any time when a prospectus relating
to the registration or qualification of such Registrable Securities is
required to be delivered under applicable Securities Laws, of the happening
of any event as a result of which information previously furnished by Holder
to the Company for inclusion in such prospectus contains 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 the
light of the circumstances under which they were made. In the event the
Company or any such Holder shall give any such notice, the period referred to
in subdivision (a)(iii) of this Section 3 shall be extended by a number of
days equal to the number of days during the period from and including the
giving of notice pursuant to subdivision (a)(ix) of this Section 3 to and
including the date when such Holder shall have received the copies of the
supplemented or amended prospectus contemplated by subdivision (a)(ix) of
this Section 3.
4. UNDERWRITTEN OFFERINGS.
(a) UNDERWRITTEN OFFERINGS. In connection with any underwritten
offering pursuant to a Registration requested under Section 2(a), the Company
and the Holders will enter into an underwriting agreement with the
underwriters for such offering, such agreement to be in form and substance
reasonably satisfactory to all Holders requesting such Registration and such
Holders' underwriters in their reasonable judgment and to contain such
representations and warranties by the Company and such other terms as are
customarily contained in agreements of that type, including, without
limitation, indemnities to the effect and to the extent provided in Section
6. Each such Holder shall be a party to such underwriting agreement and may,
at his option, require that any or all of the representations and warranties
by, and the other agreements on the part of, the Company
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to and for the benefit of such underwriters shall also be made to and for the
benefit of each such Holder and that any or all of the conditions precedent
to the obligations of such underwriters under such underwriting agreement be
conditions precedent to the obligations of such Holder. No Holder requesting
a Requested Registration or Incidental Registration shall be required to make
any representations or warranties to or agreements with the Company or the
underwriters other than representations, warranties or agreements regarding
such Holder and its intended method of distribution and any other
representation required, or relating to information required, by law.
(b) SELECTION OF UNDERWRITERS. If a Requested Registration pursuant
to Section 2(a) involves an underwritten offering, then the Company shall
select the underwriter from underwriting firms of national reputation,
subject to the approval of the Holders of a majority of the Registrable
Securities to be included in such registration.
(c) HOLDBACK AGREEMENTS. Each Holder agrees, if so reasonably
required by the managing underwriter of any firm commitment registered
offering pursuant to Section 2 or by the managing underwriter of any firm
commitment registered offering by the Company of its securities, not to
effect any public sale or distribution of Registrable Securities or sales of
Registrable Securities pursuant to Rule 144 or Rule 144A under the Securities
Act during the seven (7) days prior to and the 180 days after the effective
date of the related Registration Statement if necessary in order to complete
the orderly sale and distribution of the securities distributed in such
offering, except as part of such underwritten registration or offering,
whether or not such Holder participates in such registration or offering.
5. PREPARATION, REASONABLE INVESTIGATION.
In connection with the preparation and filing of each Registration
Statement under applicable Securities Laws, the Company will give the Holders
of Registrable Securities, to be sold under such Registration Statement, the
underwriters, if any, and their respective counsel and accountants, drafts
and final copies of such Registration Statement, each preliminary or summary
prospectus with respect thereto and each amendment thereof or supplement
thereto, at least 1 business day prior to the filing thereof with the SEC,
and will give each of them such access to its books and records and such
opportunities to discuss the business of the Company with its officers and
the independent public accountants who have certified its financial
statements as shall be necessary, in the opinion of such Holders and such
underwriters' respective counsel, to conduct a reasonable investigation
within the meaning of the Securities Act.
6. INDEMNIFICATION AND CONTRIBUTION.
(a) INDEMNIFICATION BY THE COMPANY. In the event of any registration
under applicable Securities Laws pursuant to Section 2 of any Registrable
Securities, the Company will, and hereby does, indemnify and hold harmless
each Holder of Registrable Securities, to be sold under such Registration
Statement, each such Holder's legal counsel, each other person who
participates as an underwriter in the offering or sale of such securities (if
so required by such underwriter as a condition to including the Registrable
Securities of the Holders in such registration or qualification), such
underwriters' counsel, and each other person, if any, who controls any such
Holder or any such
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underwriter within the meaning of the Securities Act (collectively, the
"Indemnified Parties"), against any losses, claims, damages or liabilities,
joint or several, to which the Holders, or underwriter or controlling person
may become subject under applicable Securities Laws or otherwise, insofar as
such losses, claims, damages or liabilities (or actions or proceedings,
whether commenced or threatened, in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material
fact contained in any Registration Statement under which such securities were
registered or qualified under applicable Securities laws, any preliminary
prospectus, final prospectus or summary prospectus contained therein or any
document incorporated therein by reference, or any amendment or supplement
thereto, or any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, or arise out of any violation by the Company of any rule or
regulation promulgated under applicable Securities Laws and relating to
action or inaction required of the Company in connection with any such
registration or qualification, and the Company will reimburse the Indemnified
Parties for any legal or any other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, liability,
action or proceeding; provided, however, that the Company shall not be liable
to any Indemnified Party in any such case to the extent that any such loss,
claim, damage, liability (or action or proceeding in respect thereof) or
expense arises out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in such Registration
Statement, any such preliminary prospectus, final prospectus, summary
prospectus, amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by such Indemnified Party,
except the Company shall be liable if such untrue statement or omission was
corrected in such Registration Statement, preliminary prospectus, final
prospectus, amendment or supplement and the Company failed to deliver such
corrected document under circumstances in which the obligation to deliver
such corrected document was the responsibility of the Company.
(b) INDEMNIFICATION BY THE HOLDERS. The Company may require, as a
condition to including any securities of the Company held by any person or
entity in any Registration Statement filed pursuant to Section 2, that the
Company shall have received an undertaking reasonably satisfactory to it from
such person or entity to indemnify and hold harmless (in the same manner and
to the same extent as set forth in subdivision (a) of this Section 6) the
Company, each director of the Company, each officer of the Company, counsel
to the Company, each other person, if any, who controls the Company within
the meaning of applicable Securities Laws, and each underwriter or agent
thereof (for purposes of Section 6(c) these parties shall be considered
"INDEMNIFIED PARTIES"), with respect to any statement or alleged statement in
or omission or alleged omission from such Registration Statement, any
preliminary prospectus, final prospectus or summary prospectus contained
therein, or any amendment or supplement thereto, if, and only if, such
statement or alleged statement or omission or alleged omission was made in
reliance upon and in conformity with information furnished in writing to the
Company directly by such person or entity specifically for use therein;
provided, however, that the obligation of any Holder hereunder shall be
limited to an amount equal to the proceeds received by such Holder upon the
sale of Registrable Securities sold in the offering covered by such
registration.
(c) NOTICES OF CLAIMS, ETC. Promptly after receipt by an Indemnified
Party of notice of the commencement of any action or proceeding involving a
claim referred to in the preceding
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subdivisions of this Section 6, such Indemnified Party will, if a claim in
respect thereof is to be made against a party required to provide
indemnification (an "Indemnifying Party"), give written notice to the latter
of the commencement of such action, provided, however, that the failure of
any Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligation under the preceding subdivisions of this
Section 6, except to the extent that the Indemnifying Party is actually
prejudiced by such failure to give notice. In case any such action is brought
against an Indemnified Party, unless in such Indemnified Party's reasonable
judgment a conflict of interest between such Indemnified and Indemnifying
Parties may exist in respect of such claim, the Indemnifying Party shall be
entitled to participate in and to assume the defense thereof, jointly with
any other Indemnifying Party similarly notified to the extent that it may
wish, with counsel reasonably satisfactory to such Indemnified Party, and
after notice from the Indemnifying Party to such Indemnified Party of its
election so to assume the defense thereof, the Indemnifying Party shall not
be liable to such Indemnified Party for any legal or other expenses
subsequently incurred by the latter in connection with the defense thereof
other than reasonable costs of investigation. No Indemnifying Party shall
consent to entry of any judgment or enter into any settlement without the
consent of the Indemnified Party which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such Indemnified
Party of a release from all liability in respect to such claim or litigation.
(d) OTHER INDEMNIFICATION. Indemnification similar to that specified
in the preceding subdivisions of this Section 6 (with appropriate
modifications) shall be given by the Company and each Holder of Registrable
Securities included in any Registration Statement with respect to any
required registration or other qualification of securities under any Federal
or state law or regulation of any governmental authority, other than the
Securities Act.
(e) INDEMNIFICATION PAYMENT. The indemnification required by this
Section 6 shall be made by periodic payments of the amount thereof during the
course of the investigation or defense, as and when bills are received or
expense, loss, damage or liability is incurred.
(f) SURVIVAL OF OBLIGATIONS. The obligations of the Company and the
Holder under this Section 6 shall survive the completion of any offering of
Registrable Securities under this Agreement.
(g) CONTRIBUTION. If the indemnification provided for in this
Section 6 is unavailable or insufficient to hold harmless an Indemnified
Party, then each Indemnifying Party shall contribute to the amount paid or
payable to such Indemnified Party as a result of the losses, claims, damages
or liabilities referred to in this Section 6 an amount or additional amount,
as the case may be, in such proportion as is appropriate to reflect the
relative fault of the Indemnifying Party or parties on the one hand and the
Indemnified Party on the other in connection with the statements or omissions
which resulted in such losses, claims, demands or liabilities 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 parties on the one hand or the Indemnified Party on the other and
the parties' relative, intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The
amount
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paid to an Indemnified Party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this Section 6(g) shall be
deemed to include any legal or other expenses reasonably incurred by such
Indemnified Party in connection with investigating or defending any action or
claim which is the subject of this Section 6. 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.
7. OTHER REGISTRATION RIGHTS.
The Company represents and warrants that it has not granted any
registration rights to any Person. So long as any of the registration rights
under this Agreement remain in effect, the Company shall not grant to any
Person any registration rights, entitling such Person to a priority in
registration superior to or that of the Holders.
8. MISCELLANEOUS.
(a) SPECIFIC PERFORMANCE. The parties hereto acknowledge that there
may be no adequate remedy at law if any party fails to perform any of its
obligations hereunder and that each party may be irreparably harmed by any
such failure, and accordingly agree that each party, in addition to any other
remedy to which it may be entitled at law or in equity, shall be entitled to
compel specific performance of the obligations of any other party under this
Agreement in accordance with the terms and conditions of this Agreement.
(b) NOTICES. All demands, notices, requests, consents and other
communications required or permitted under this Agreement shall be in writing
and shall be personally delivered or sent by facsimile machine (with a
confirmation copy sent by one of the other methods authorized in this
Section), commercial (including UPS), U.S. Postal Service overnight delivery
service, or, deposited with the U.S. or Postal Service mailed first class,
registered or certified mail, postage prepaid, as set forth below:
If to the Company, addressed to:
The Xxxxxx Biomechanics Group, Inc.
000 Xxxxxxx Xxxx
Xxxx Xxxx, Xxx Xxxx 00000
Attn: President
with a copy to:
Xxxxxxx Xxxxxxxx, LLC
Xxxxx 000
00 Xxxxxxx Xxxxxxxxx Xxxxxxxxx
Xxxxxxxx Xxxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxx, Esq.
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If to a Holder, addressed as indicated on the signature page hereto.
Notices shall be deemed given upon the earlier to occur of (i) receipt by the
party to whom such notice is directed; (ii) if sent by facsimile machine, on
the day (other than a Saturday, Sunday or legal holiday in the jurisdiction
to which such notice is directed) such notice is sent if sent (as evidenced
by the facsimile confirmed receipt) prior to 5:00 p.m. Eastern Time and, if
sent after 5:00 p.m. Eastern Time, on the day (other than a Saturday, Sunday
or legal holiday in the jurisdiction to which such notice is directed) after
which such notice is sent; (iii) on the first business day (other than a
Saturday, Sunday or legal holiday in the jurisdiction to which such notice is
directed) following the day the same is deposited with the commercial carrier
if sent by commercial overnight delivery service; or (iv) the fifth day
(other than a Saturday, Sunday or legal holiday in the jurisdiction to which
such notice is directed) following deposit thereof with the U.S. Postal
Service as aforesaid. Each party, by notice duly given in accordance
therewith may specify a different address for the giving of any notice
hereunder.
(c) GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York, without regard
to conflicts of law principles thereof.
(d) HEADINGS. The descriptive headings of the several sections and
paragraphs of this Agreement are inserted for convenience only, and do not
constitute a part of this Agreement and shall not affect in any way the
meaning or interpretation of this Agreement.
(e) ENTIRE AGREEMENT; AMENDMENTS. This Agreement and the other
writings referred to herein or delivered pursuant hereto which form a part
hereof contain the entire understanding of the parties with respect to its
subject matter. This Agreement supersedes all prior agreements and
understandings between the parties with respect to its subject matter. This
Agreement may be amended and the observance of any term of this Agreement may
be waived (either generally or in a particular instance and either
retroactively or prospectively) only by a written instrument duly executed by
the Company and those Holders holding a majority of Registrable Securities.
Each Holder of any Registrable Securities at the time or thereafter
outstanding shall be bound by an amendment or waiver authorized by this
Section 9(e), whether or not any such Registrable Securities shall have been
marked to indicate such consent.
(f) ASSIGNABILITY. This Agreement and all of the provisions hereof
will be assigned, without the consent of the Company, by any Holder to, and
shall inure to the benefit of, any purchaser, transferee or assignee of any
Registrable Security, unless the Holder specifies otherwise in connection
with particular transfers of Registrable Securities. However, the Company
shall not be required to recognize any such purchaser, transferee or assignee
as a Holder under this Agreement unless and until either (i) such person
becomes the holder of record of Registrable Securities or (ii) the Company
receives written notice of such purchase, transfer or assignment.
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(g) COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
THE XXXXXX BIOMECHANICS GROUP, INC.
By:
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Name:
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Title:
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HOLDERS:
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