REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT ("Registration Rights Agreement")
dated as of March 14, 2000, is entered into by and between Xxxxxxxx.xxx, Inc., a
Florida corporation (the "Holder"), and HORIZON Pharmacies, Inc., a Delaware
corporation (the "Company").
Pursuant to that certain Stock Purchase Agreement, dated as of the date
hereof (the "Purchase Agreement"), by and between the Company and the Holder,
the Holder is acquiring (the "Acquisition") the capital stock of
XxxxxxxxXxxxxxx.xxx, Inc., a Delaware corporation and wholly-owned subsidiary of
the Company, as further described in the Purchase Agreement.
As part of the Acquisition, the Holder is receiving two warrants to
purchase an aggregate of 700,000 shares of common stock, par value $.01 per
share (the "Common Stock"), of the Company under the terms of the respective
warrants (the "Registrable Shares").
In consideration of the premises, mutual covenants and agreements
hereinafter contained and for other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE 1
REGISTRATION RIGHTS
Section 1.1 INTENTIONALLY OMITTED.
Section 1.2 PIGGYBACK REGISTRATIONS.
1.2.1 RIGHT TO PIGGYBACK. Each time the Company proposes to register
any of its equity securities under the Securities Act for sale to the public,
whether for the account of the Company or otherwise for the account of any
securityholder of the Company, and the form of registration statement to be used
permits the registration of Registrable Shares, the Company shall give prompt
written notice to the Holder of Registrable Shares (which notice shall be given
not less than 30 days prior to the effective date of the Company's registration
statement), which notice shall offer the Holder the opportunity to include any
or all of its Registrable Shares in such registration statement, subject to the
limitations contained in Section 1.2.2 hereof. If the Holder desires to have its
Registrable Shares included in such registration statement, it shall so advise
the Company in writing (stating the number of shares desired to be registered)
within 20 days after the date of such notice from the Company. The Holder shall
have the right to withdraw its request for inclusion of its Registrable Shares
in any registration statement pursuant to this Section 1.2.1 by giving written
notice to the Company of such withdrawal. Subject to Section 1.2.2 below, the
Company shall include in such registration statement all such Registrable Shares
so requested to be included therein; provided, however, that the Company may at
any time withdraw or cease proceeding with any such registration if it shall at
the same time withdraw or cease proceeding with the registration of all other
equity securities originally proposed to be registered.
1.2.2 PRIORITY ON REGISTRATIONS. If the Registrable Shares requested to
be included in the registration statement by the Holder differ from the type of
securities proposed to be registered by the Company and the managing underwriter
advises the Company that due to such differences the inclusion of such
Registrable Shares would have a Material Adverse Effect, then (i) the number of
the Holder's
Registrable Shares to be included in the registration statement shall be reduced
to an amount which, in the judgment of the managing underwriter, would eliminate
such Material Adverse Effect or (ii) if no such reduction would, in the judgment
of the managing underwriter, eliminate such Material Adverse Effect, then the
Company shall have the right to exclude all such Registrable Shares from such
registration statement provided no other securities of such type are included
and offered for the account of any other person in such registration statement.
Any partial reduction in the number of Registrable Shares to be included in the
registration statement pursuant to clause (i) of the immediately preceding
sentence shall be effected PRO RATA based on the ratio which the Holder's
requested shares bears to the total number of shares requested to be included in
such registration statement by all persons who have requested that their shares
be included in such registration statement. If the Registrable Shares requested
to be included in the registration statement are of the same type as the
securities being registered by the Company and the managing underwriter advises
the Company that the inclusion of such Registrable Shares would cause a Material
Adverse Effect, the Company will be obligated to include in such registration
statement, as to the Holder, only a portion of the shares the Holder has
requested be registered equal to the ratio which the Holder's requested shares
bears to the total number of shares requested to be included in such
registration statement by all persons (other than the Company, if such
registration has been initiated by the Company for securities to be offered by
the Company who have requested that their shares be included in such
registration statement. It is acknowledged by the Company and the Holder, that
pursuant to the foregoing provision, the securities to be included in such
registration shall be allocated (x) first, to the Company, if such registration
has been initiated by the Company for securities to be offered by the Company,
(y) second, to securities offered by persons exercising their right to cause a
demand registration, if such registration is a demand registration and (z)
third, to the Holder and all other persons requesting securities to be included
therein in accordance with the above described ratio. If as a result of the
provisions of this Section 1.2.2 the Holder shall not be entitled to include all
Registrable Securities in a registration that the Holder has requested to be so
included, the Holder may withdraw its request to include Registrable Shares in
such registration statement. No person may participate in any registration
statement hereunder unless such person (x) agrees to sell such person's
Registrable Shares on the basis provided in any underwriting arrangements
approved by the Company and (y) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements, and other documents
reasonably required under the terms of such underwriting arrangements; provided,
however, that no such person shall be required to make any representations or
warranties in connection with any such registration other than representations
and warranties as to (i) such person's ownership of its Registrable Shares to be
sold or transferred free and clear of all liens, claims, and encumbrances, (ii)
such person's power and authority to effect such transfer, and (iii) such
matters pertaining to compliance with securities laws as may be reasonably
requested; provided further, however, that the obligation of such person to
indemnify pursuant to any such underwriting arrangements shall be several, not
joint and several, among such persons selling Registrable Shares, and the
liability of each such person will be in proportion to, and provided further
that such liability will be limited to, the net amount received by such person
from the sale of its Registrable Shares pursuant to such registration. The
Holder shall be entitled to exercise its right to have its Registrable Shares
included in a registration statement only on two separate occasions and
thereafter the Holder shall no longer have any rights, and the Company shall no
longer have any obligations to the Holder, under Section 1.2.
1.3 HOLDBACK AGREEMENT. Unless the managing underwriter otherwise
agrees, the Holder agrees that, in connection with any underwritten
registration, it will not effect any public sale or private offer or
distribution of any Common Stock during the ten business days prior to the
effectiveness under the Securities Act of any underwritten registration and
during such time period after the effectiveness under the Securities Act of any
underwritten registration (not to exceed 180 days) (except, if applicable, as
part of such underwritten registration) as the Company and the managing
underwriter may agree.
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1.4 REGISTRATION PROCEDURES. Whenever the Holder has requested that any
Registrable Shares be registered pursuant to this Registration Rights Agreement,
the Company will use its commercially reasonable efforts to effect the
registration and the sale of such Registrable Shares in accordance with the
intended method of disposition thereof, and pursuant thereto the Company will as
expeditiously as possible:
(i) prepare and file with the SEC a registration statement on
any appropriate form under the Securities Act with respect to such Registrable
Shares and use its commercially reasonable efforts to cause such registration
statement to become effective;
(ii) prepare and file with the SEC such amendments,
post-effective amendments, and supplements to such registration statement and
the prospectus used in connection therewith as may be necessary to keep such
registration statement effective for a period of not less than 180 days (or such
lesser period as is necessary for the underwriters in an underwritten offering
to sell unsold allotments) and comply with the provisions of the Securities Act
with respect to the disposition of all securities covered by such registration
statement during such period in accordance with the intended methods of
disposition by the sellers thereof set forth in such registration statement;
(iii) furnish to each seller of Registrable Shares and the
underwriters of the securities being registered such number of copies of such
registration statement, each amendment and supplement thereto, the prospectus
included in such registration statement (including each preliminary prospectus),
any documents incorporated by reference therein and such other documents as such
seller or underwriters may reasonably request in order to facilitate the
disposition of the Registrable Shares owned by such seller or the sale of such
securities by such underwriters (it being understood that, subject to Section
1.5 and the requirements of the Securities Act and applicable State securities
laws, the Company consents to the use of the prospectus and any amendment or
supplement thereto by each seller and the underwriters in connection with the
offering and sale of the Registrable Shares covered by the registration
statement of which such prospectus, amendment or supplement is a part);
(iv) use its commercially reasonable efforts to register or
qualify such Registrable Shares under such other securities or blue sky laws of
such jurisdictions as the managing underwriter reasonably requests; use its
commercially reasonable efforts to keep each such registration or qualification
(or exemption therefrom) effective during the period in which such registration
statement is required to be kept effective; and do any and all other acts and
things which may be reasonably necessary or advisable to enable each seller to
consummate the disposition of the Registrable Shares owned by such seller in
such jurisdictions (provided, however, that the Company will not be required to
(A) qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this subparagraph or (B) consent to
general service of process in any such jurisdiction);
(v) promptly notify each seller and each underwriter and (if
requested by any such Person) confirm such notice in writing (A) when a
prospectus or any prospectus supplement or post-effective amendment has been
filed and, with respect to a registration statement or any post-effective
amendment, when the same has become effective, (B) of the issuance by any state
securities or other regulatory authority of any order suspending the
qualification or exemption from qualification of any of the Registrable Shares
under state securities or "blue sky" laws or the initiation of any proceedings
for that purpose, and (C) of the happening of any event which makes any
statement made in a registration statement or related prospectus untrue or which
requires the making of any changes in such registration statement, prospectus or
documents so that they will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, and, as promptly as practicable
thereafter, prepare and file with the SEC and furnish a supplement or amendment
to such
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prospectus so that, as thereafter deliverable to the purchasers of such
Registrable Shares, such prospectus will not contain any untrue statement of a
material fact or omit a material fact necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading;
(vi) make generally available to the Company's securityholders
an earnings statement satisfying the provisions of Section 11(a) of the
Securities Act no later than 30 days after the end of the 12-month period
beginning with the first day of the Company's first fiscal quarter commencing
after the effective date of a registration statement, which earnings statement
shall cover said 12-month period, and which requirement will be deemed to be
satisfied if the Company timely files complete and accurate information on Forms
10-Q, 10-K and 8-K under the Securities Exchange Act of 1934 (the "Exchange
Act") and otherwise complies with Rule 158 under the Securities Act;
(vii) if requested by the managing underwriter or any seller,
promptly incorporate in a prospectus supplement or post-effective amendment such
information as the managing underwriter or any seller reasonably requests to be
included therein, including, without limitation, with respect to the Registrable
Shares being sold by such seller, the purchase price being paid therefor by the
underwriters and, with respect to any other terms of the underwritten offering
of the Registrable Shares to be sold in such offering, and promptly make all
required filings of such prospectus supplement or post-effective amendment;
(viii) as promptly as practicable after filing with the SEC of
any document which is incorporated by reference into a registration statement
(in the form in which it was incorporated), deliver a copy of each such document
to each seller;
(ix) cooperate with the sellers and the managing underwriter
to facilitate the timely preparation and delivery of certificates (which shall
not bear any restrictive legends unless required under applicable law)
representing securities sold under any registration statement, and enable such
securities to be in such denominations and registered in such names as the
managing underwriter or such sellers may request and keep available and make
available to the Company's transfer agent prior to the effectiveness of such
registration statement a supply of such certificates;
(x) promptly make available for inspection by any seller, any
underwriter participating in any disposition pursuant to any registration
statement, and any attorney, accountant or other agent or representative
retained by any such seller or underwriter (collectively, the "Inspectors"), all
financial and other records, pertinent corporate documents and properties of the
Company (collectively, the "Records"), as shall be reasonably necessary to
enable them to exercise their due diligence responsibility, and cause the
Company's officers, directors and employees to supply all information requested
by any such Inspector in connection with such registration statement; provided,
that, unless the disclosure of such Records is necessary to avoid or correct a
misstatement or omission in the registration statement or the release of such
Records is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction, the Company shall not be required to provide any
information under this subparagraph (x) if (A) the Company believes, after
consultation with counsel for the Company, that to do so would cause the Company
to forfeit an attorney-client privilege that was applicable to such information
or (B) if either (1) the Company has requested and been granted from the SEC
confidential treatment of such information contained in any filing with the SEC
or documents provided supplementally or otherwise or (2) the Company reasonably
determines in good faith that such Records are confidential and so notifies the
Inspectors in writing unless prior to furnishing any such information with
respect to (A) or (B) the Holder of Registrable Securities requesting such
information agrees to enter into a confidentiality agreement in customary form
and subject to customary exceptions; and provided, further that the Holder of
Registrable Securities agrees that it will, upon learning that disclosure of
such Records is sought in a court of competent jurisdiction, give notice to the
Company and allow the
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Company at its expense, to undertake appropriate action and to prevent
disclosure of the Records deemed confidential;
(xi) furnish to each seller underwriter a signed counterpart
of (A) an opinion or opinions of counsel to the Company, and (B) a comfort
letter or comfort letters from the Company's independent public accountants,
each in customary form and covering such matters of the type customarily covered
by opinions or comfort letters, as the case may be, as the sellers or managing
underwriter reasonably requests;
(xii) cause the Registrable Shares included in any
registration statement to be (A) listed on each securities exchange, if any, on
which similar securities issued by the Company are then listed, or (B)
authorized to be quoted and/or listed (to the extent applicable) on the National
Association of Securities Dealers, Inc. Automated Quotation ("NASDAQ") or the
NASDAQ National Market System if the Registrable Shares so qualify;
(xiii) provide a CUSIP number for the Registrable Shares
included in any registration statement not later than the effective date of such
registration statement;
(xiv) cooperate with each seller and each underwriter
participating in the disposition of such Registrable Shares and their respective
counsel in connection with any filings required to be made with the National
Association of Securities Dealers, Inc. ("NASD");
(xv) during the period when the prospectus is required to be
delivered under the Securities Act, promptly file all documents required to be
filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act;
(xvi) notify each seller of Registrable Shares promptly of any
request by the SEC for the amending or supplementing of such registration
statement or prospectus or for additional information;
(xvii) prepare and file with the SEC promptly any amendments
or supplements to such registration statement or prospectus which, in the
opinion of counsel for the Company or the managing underwriter, is required in
connection with the distribution of the Registrable Shares;
(xviii) enter into such agreements (including underwriting
agreements in the managing underwriter's customary form) as are customary in
connection with an underwritten registration; and
(xix) advise each seller of such Registrable Shares, promptly
after it shall receive notice or obtain knowledge thereof, of the issuance of
any stop order by the SEC suspending the effectiveness of such registration
statement or the initiation or threatening of any proceeding for such purpose
and promptly use its best efforts to prevent the issuance of any stop order or
to obtain its withdrawal at the earliest possible moment if such stop order
should be issued.
1.5 SUSPENSION OF DISPOSITIONS. The Holder agrees that, upon receipt of
any notice (a "Suspension Notice") from the Company of the happening of any
event of the kind described in Section 1.4(v)(C), the Holder will forthwith
discontinue disposition of Registrable Shares until the Holder's receipt of the
copies of the supplemented or amended prospectus, or until it is advised in
writing (the "Advice") by the Company that the use of the prospectus may be
resumed, and has received copies of any additional or supplemental filings which
are incorporated by reference in the prospectus, and, if so directed by the
Company, the Holder will deliver to the Company all copies, other than permanent
file copies then in the Holder's possession, of the prospectus covering such
Registrable Shares current at the time of receipt of
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such notice. In the event the Company shall give any such notice, the time
period regarding the effectiveness of registration statements set forth in
Section 1.4(ii) hereof shall be extended by the number of days during the period
from and including the date of the giving of the Suspension Notice to and
including the date when each seller of Registrable Shares covered by such
registration statement shall have received the copies of the supplemented or
amended prospectus or the Advice. The Company shall use its commercially
reasonable efforts and take such actions as are reasonably necessary to render
the Advice as promptly as practicable.
1.6 REGISTRATION EXPENSES. All expenses incident to the Company's
performance of or compliance with this Article 1 including, without limitation,
all registration and filing fees, all fees and expenses associated with filings
required to be made with the NASD (including, if applicable, the fees and
expenses of any "qualified independent underwriter" as such term is defined in
Schedule E of the By-Laws of the NASD, and of its counsel), as may be required
by the rules and regulations of the NASD, fees and expenses of compliance with
securities or "blue sky" laws (including reasonable fees and disbursements of
counsel in connection with "blue sky" qualifications of the Registrable Shares),
rating agency fees, printing expenses (including expenses of printing
certificates for the Registrable Shares in a form eligible for deposit with
Depository Trust Company and of printing prospectuses if the printing of
prospectuses is requested by a holder of Registrable Shares), messenger and
delivery expenses, the Company's internal expenses (including without limitation
all salaries and expenses of its officers and employees performing legal or
accounting duties), the fees and expenses incurred in connection with any
listing of the Registrable Shares, fees and expenses of counsel for the Company
and its independent certified public accountants (including the expenses of any
special audit or "cold comfort" letters required by or incident to such
performance), securities acts liability insurance (if the Company elects to
obtain such insurance), the fees and expenses of any special experts retained by
the Company in connection with such registration, and the fees and expenses of
other persons retained by the Company and reasonable fees and expenses of one
firm of counsel for the sellers (which shall be selected by the holders of a
majority of the Registrable Shares being included in any particular registration
statement) (all such expenses being herein called "Registration Expenses") will
be borne by the Company whether or not any registration statement becomes
effective; provided that, except as expressly otherwise provided above, in no
event shall Registration Expenses include any underwriting discounts,
commissions, or fees attributable to the sale of the Registrable Shares or any
counsel, accountants, or other persons retained or employed by the Holder.
1.7 INDEMNIFICATION.
1.7.1 The Company agrees to indemnify and reimburse, to the fullest
extent permitted by law, each seller of Registrable Shares, and each of its
employees, advisors, agents, representatives, partners, officers, and directors
and each Person who controls such seller (within the meaning of the Securities
Act or the Exchange Act) and any agent or investment advisor thereof
(collectively, the "Seller Affiliates") (A) against any and all losses, claims,
damages, liabilities, and expenses, joint or several (including, without
limitation, attorneys' fees and disbursements except as limited by Section
1.7.3) based upon, arising out of, related to or resulting from any untrue or
alleged untrue statement of a material fact contained in any registration
statement, prospectus, or preliminary prospectus or any amendment thereof or
supplement thereto, or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading, (B) against any and all loss, liability, claim, damage, and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation or investigation or proceeding by any governmental
agency or body, commenced or threatened, or of any claim whatsoever based upon,
arising out of, related to or resulting from any such untrue statement or
omission or alleged untrue statement or omission, and (C) against any and all
costs and expenses (including reasonable fees and disbursements of counsel) as
may be reasonably incurred in investigating, preparing, or defending against any
litigation, or investigation or proceeding by any governmental agency or body,
commenced or
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threatened, or any claim whatsoever based upon, arising out of, related to or
resulting from any such untrue statement or omission or alleged untrue statement
or omission, to the extent that any such expense or cost is not paid under
subparagraph (A) or (B) above; except insofar as the same are made in reliance
upon and in strict conformity with information furnished in writing to the
Company by such seller or any Seller Affiliate for use therein or arise from
such seller's or any Seller Affiliate's failure to deliver a copy of the
registration statement or prospectus or any amendments or supplements thereto
after the Company has furnished such seller or Seller Affiliate with a
sufficient number of copies of the same. The reimbursements required by this
Section 1.7.1 will be made by periodic payments during the course of the
investigation or defense, as and when bills are received or expenses incurred.
1.7.2 In connection with any registration statement in which a seller
of Registrable Shares is participating, each such seller will furnish to the
Company in writing such information and affidavits as the Company reasonably
requests for use in connection with any such registration statement or
prospectus and, to the fullest extent permitted by law, each such seller will
indemnify the Company and its directors and officers and each Person who
controls the Company (within the meaning of the Securities Act or the Exchange
Act) against any and all losses, claims, damages, liabilities, and expenses
(including, without limitation, reasonable attorneys' fees and disbursements
except as limited by Section 1.7.3) resulting from any untrue statement or
alleged untrue statement of a material fact contained in the registration
statement, prospectus, or any preliminary prospectus or any amendment thereof or
supplement thereto or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading, but only to the extent that such untrue statement or alleged untrue
statement or omission or alleged omission is contained in any information or
affidavit so furnished in writing by such seller or any of its Seller Affiliates
specifically for inclusion in the registration statement; provided that the
obligation to indemnify will be several, not joint and several, among such
sellers of Registrable Shares, and the liability of each such seller of
Registrable Shares will be in proportion to, and provided further that such
liability will be limited to, the net amount received by such seller from the
sale of Registrable Shares pursuant to such registration statement; provided,
however, that such seller of Registrable Shares shall not be liable in any such
case to the extent that prior to the filing of any such registration statement
or prospectus or amendment thereof or supplement thereto, such seller has
furnished in writing to the Company information expressly for use in such
registration statement or prospectus or any amendment thereof or supplement
thereto which corrected or made not misleading information previously furnished
to the Company.
1.7.3 Any Person entitled to indemnification hereunder will (A) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification (provided that the failure to give such notice
shall not limit the rights of such Person) and (B) unless in such indemnified
party's reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party; provided, however, that any person
entitled to indemnification hereunder shall have the right to employ separate
counsel and to participate in the defense of such claim, but the fees and
expenses of such counsel shall be at the expense of such person unless (x) the
indemnifying party has agreed to pay such fees or expenses, or (y) the
indemnifying party shall have failed to assume the defense of such claim and
employ counsel reasonably satisfactory to such person. If such defense is not
assumed by the indemnifying party as permitted hereunder, the indemnifying party
will not be subject to any liability for any settlement made by the indemnified
party without its consent (but such consent will not be unreasonably withheld).
If such defense is assumed by the indemnifying party pursuant to the provisions
hereof, such indemnifying party shall not settle or otherwise compromise the
applicable claim unless (1) such settlement or compromise contains a full and
unconditional release of the indemnified party or (2) the indemnified party
otherwise consents in writing. An indemnifying party who is not entitled to, or
elects not to, assume the defense of a claim will not be obligated to pay the
fees and expenses of more
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than one counsel for all parties indemnified by such indemnifying party with
respect to such claim, unless in the reasonable judgment of any indemnified
party, a conflict of interest may exist between such indemnified party and any
other of such indemnified parties with respect to such claim, in which event the
indemnifying party shall be obligated to pay the reasonable fees and
disbursements of such additional counsel or counsels.
1.7.4 Each party hereto agrees that, if for any reason the
indemnification provisions contemplated by Section 1.7.1 or Section 1.7.2 are
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, claims, damages, liabilities, or expenses (or actions in respect
thereof) referred to therein, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of such losses,
claims, liabilities, or expenses (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party and the indemnified party in connection with the actions which resulted in
the losses, claims, damages, liabilities or expenses as well as any other
relevant equitable considerations. The relative fault of such indemnifying party
and indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by
such indemnifying party or indemnified party, and the parties relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 1.7.4 were determined by pro
rata allocation (even if the Holders or any underwriters or all of them were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to in this
Section 1.7.4. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages, liabilities, or expenses (or actions in respect
thereof) referred to above shall be deemed to include any legal or other fees or
expenses reasonably incurred by such indemnified party in connection with
investigating or, except as provided in Section 1.7.3, defending any such action
or claim. Notwithstanding the provisions of this Section 1.7.4, the Holder shall
not be required to contribute an amount greater than the dollar amount by which
the proceeds received by the Holder with respect to the sale of any Registrable
Shares exceeds the amount of damages which the Holder has otherwise been
required to pay by reason of such statement or omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Holder's obligations in this
Section 1.7.4 to contribute shall be several in proportion to the amount of
Registrable Shares registered by them and not joint.
If indemnification is available under this Section 1.7, the
indemnifying parties shall indemnify each indemnified party to the full extent
provided in Section 1.7.1 and Section 1.7.2 without regard to the relative fault
of said indemnifying party or indemnified party or any other equitable
consideration provided for in this Section 1.7.4.
1.7.5 The indemnification and contribution provided for under this
Section 1.7 will remain in full force and effect regardless of any investigation
made by or on behalf of the indemnified party or any officer, director, or
controlling Person of such indemnified party and will survive the transfer of
securities.
ARTICLE 2
TERMINATION
The provisions of this Agreement shall terminate on the availability of
Holder to transfer, without limitation, shares pursuant to Rule 144 of the
Securities Act.
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ARTICLE 3
MISCELLANEOUS
Section 3.1 NOTICES. Any notices or other communications required or
permitted hereunder shall be in writing, and shall be sufficiently given if made
by hand delivery, by telex, by telecopier or registered or certified mail,
postage prepaid, return receipt requested, addressed as follows (or at such
other address as may be substituted by notice given as herein provided):
If to the Holder:
Xxxxxxxx.xxx, Inc.
0000 Xxx Xxxxxxx II
Xxxxx 000 Xxxx
Xxxxxxxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
Copies to:
Akerman Xxxxxxxxxx
Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxxxxxx
If to the Company:
HORIZON Pharmacies, Inc.
000 Xxxx Xxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxx XxXxxx
Copies to:
Xxxxxx & Xxxxxx L.L.P.
0000 Xxxxxxxx Xxxx Xxxxxx
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxx X. Xxxxxx
Any notice or communication hereunder shall be deemed to have been
given or made as of the date so delivered if personally delivered; when answered
back, if telexed; when receipt is acknowledged, if telecopied; and five calendar
days after mailing if sent by registered or certified mail (except that a notice
of change of address shall not be deemed to have been given until actually
received by the addressee).
If a notice or communication is mailed in the manner provided above, it
is duly given whether or not the addressee receives it.
9
Section 3.2 GOVERNING LAW; JURISDICTION. THIS REGISTRATION AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
TEXAS, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
Section 3.3 SUCCESSORS AND ASSIGNS. Whether or not an express
assignment has been made, provisions of this Registration Rights Agreement that
are for the Holder's benefit as the holder of any Registrable Shares are also
for the benefit of, and enforceable by, all subsequent holders of Registrable
Shares, except as otherwise expressly provided herein. This Registration Rights
Agreement shall be binding upon the Company, the Holder, and their respective
successors and assigns.
Section 3.4 DUPLICATE ORIGINALS. All parties may sign any number of
copies of this Registration Rights Agreement. Each signed copy shall be an
original, but all of them together shall represent the same agreement.
Section 3.5 SEVERABILITY. In case any provision in this Registration
Rights Agreement shall be held invalid, illegal or unenforceable in any respect
for any reason, the validity, legality and enforceability of any such provision
in every other respect and the remaining provisions shall not in any way be
affected or impaired thereby.
Section 3.6 NO WAIVERS; AMENDMENTS.
3.6.1 No failure or delay on the part of the Company or the Holder in
exercising any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or
remedy preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. The remedies provided for herein are cumulative
and are not exclusive of any remedies that may be available to the Company or
the Holder at law or in equity or otherwise.
3.6.2 Any provision of this Registration Rights Agreement may be
amended or waived if, but only if, such amendment or waiver is in writing and is
signed by the Company and the Holder.
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10
SIGNATURES TO REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Registration
Rights Agreement to be duly executed, all as of the date first written above.
HOLDER:
XXXXXXXX.XXX, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxx
President
COMPANY:
HORIZON PHARMACIES, INC.
By: /s/ Xxxxx X. XxXxxx
-----------------------------------
Xxxxx X. XxXxxx
President
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