Exhibit 4.3
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and
entered into as of August __, 2005, by and among Synova Healthcare Group, Inc.,
a Nevada corporation (the "Company"), and the purchasers signatory hereto (each
such purchaser, a "Purchaser" and collectively, the "Purchasers").
This Agreement is made pursuant to the Securities Purchase Agreement,
dated as of the date hereof among the Company and the Purchasers (the "Purchase
Agreement").
The Company and the Purchasers hereby agree as follows:
1. Definitions. Capitalized terms used and not otherwise defined herein
that are defined in the Purchase Agreement shall have the meanings given such
terms in the Purchase Agreement. As used in this Agreement, the following terms
shall have the following meanings:
"Advice" shall have the meaning set forth in Section 6(d).
"Commission" means the United States Securities and Exchange
Commission or its successor federal agency
"Electing Holder" shall have the meaning set forth in Section
3(a).
"Holder" means any person that is the record owner of
Registrable Securities (and includes any person that has a beneficial interest
in any Registrable Security in book-entry form).
"Holders" mean every Holder collectively.
"Indemnified Party" shall have the meaning set forth in
Section 5(c).
"Indemnifying Party" shall have the meaning set forth in
Section 5(c).
"Losses" shall have the meaning set forth in Section 5(a).
"Proceeding" means an action, claim, suit, investigation or
proceeding (including, without limitation, an investigation or partial
proceeding, such as a deposition), whether commenced or threatened.
"Prospectus" means the prospectus included in the Registration
Statement (including, without limitation, a prospectus that includes any
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any prospectus supplement, with
respect to the terms of the offering of any portion of the Registrable
Securities covered by the Registration Statement, and all other amendments and
supplements to the Prospectus, including post-effective amendments, and all
material incorporated by reference or deemed to be incorporated by reference in
such Prospectus.
"Registrable Securities" means all of the Warrant Shares sold
under the Purchase Agreement, together with any shares of Common Stock issued or
issuable upon any stock split, dividend or other distribution, recapitalization
or similar event with respect to the foregoing.
"Registration Statement" means the registration statements
required to be filed hereunder, including (in each case) the Prospectus,
amendments and supplements to the registration statement or Prospectus,
including pre- and post-effective amendments, all exhibits thereto, and all
material incorporated by reference or deemed to be incorporated by reference in
the registration statement.
"Rule 424" means Rule 424 promulgated by the Commission
pursuant to the Securities Act, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the Commission having
substantially the same purpose and effect as such Rule.
2. Piggyback Registration
(a) Participation. Subject to Section 2(b) below, if at any
time after the expiration of the 120 day period commencing with the date of this
Agreement, the Company proposes to file or files a Registration Statement under
the Securities Act with respect to any offering of securities of the same type
as the Registrable Shares for its own account (other than a Registration
Statement on Form S-8 or Form S-4 or any successor form thereto), or for the
account of any security holder of securities of the same type as the
Registrable, Shares, then. as promptly as practicable, the Company shall give
written notice of such proposed filing to each Holder and such notice shall
offer the Holders the opportunity to include in such registration such number of
Registrable Shares as each such Holder may request (a "Piggyback Registration").
The Company shall include in such Registration Statement all Registrable Shares
requested within 20 days after the receipt of any such notice (which request
shall specify the Registrable Shares intended to be disposed of by such Holder)
to be included in the registration for such offering pursuant to a Piggyback
Registration. Each Holder electing to participate in such Piggyback Registration
shall do so pursuant to the terms of such proposed registration and shall
execute such usual and customary custody agreements, powers of attorney,
underwriting agreements or other documents as are reasonably requested or
required by the Company and any underwriter of such offering; provided however,
that such Holders shall not be required to represent and warrant to, or to
indemnify, any party with respect to any matters other than as to the Holder's
ownership of the Registrable Shares and with respect to any other information
provided by Holder and required to be included in the Registration Statement
pursuant to SEC rules and regulations. Each Holder of Registrable Shares shall
be permitted to withdraw all or part of such Holder's Registrable Shares from a
Piggyback Registration at any time prior to the effective date thereof.
(b) Underwriter's Cutback. The Company shall use its best
efforts to cause the managing underwriter or underwriters of a proposed public
offering to permit the Registrable Shares requested to be included in the
registration for such offering under Section 2(a) above (collectively, the
"Piggyback Securities') to be included on the same terms and conditions as any
similar securities included therein. Notwithstanding the foregoing, if the
managing underwriter or underwriters participating in such offering advises each
of the Holders in writing (with a copy
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to the Company) that the total amount of securities requested to be included in
such Piggyback Registration exceeds the amount which can be sold in (or during
the time of) such offering without delaying or jeopardizing the success of the
offering (including the price per share of the securities to be sold), then,
after including all shares proposed to be sold by the Company in a
Company-initiated registration, the amount of securities to be offered for the
account of the Holders shall be reduced pro rata with all other Holders
participating in such offering on the basis of the number of shares to be
registered by all stockholders participating in such offering, subject to the
provisions of Section 2(e) above.
3. Registration Procedures.
In connection with the Company's registration obligations
hereunder, the Company shall:
(a) Not less than five Trading Days prior to the filing of the
Registration Statement or any related Prospectus or any amendment or supplement
thereto, the Company shall, (i) furnish to the Holders, copies of all such
documents proposed to be filed (including documents incorporated or deemed
incorporated by reference to the extent requested by such Person) which
documents will be subject to the review of such Holders, and (ii) cause its
officers and directors, counsel and independent certified public accountants to
respond to such inquiries as shall be necessary, in the reasonable opinion of
respective counsel to conduct a reasonable investigation within the meaning of
the Securities Act. The Company shall not file the Registration Statement or any
such Prospectus or any amendments or supplements thereto to which the Holders of
a majority of the Registrable Securities shall reasonably object in good faith,
provided that the Company is notified of such objection in writing no later than
four(4) Trading Days after the Holders have been so furnished copies of such
documents. Each Holder agrees to furnish to the Company a signed and completed
Notice and Questionnaire in the form attached to this Agreement as Annex B (a
"Selling Holder Questionnaire") not less than seven Trading Days prior to the
Filing Date or by the end of the fourth Trading Day following the date on which
such Holder receives draft materials in accordance with this Section.
Notwithstanding anything to the contrary contained in this Agreement, no Holder
shall be entitled to be named as a selling securityholder in the Registration
Statement as of the Effective Time, and no Holder shall be entitled to use the
Prospectus forming a part thereof for offers and resales of Registrable
Securities at any time, unless such Holder has returned a properly completed and
signed Selling Holder Questionnaire to the Company by the deadline for response
set forth in the foregoing sentence. Any Holder of Registrable Securities that
has returned a properly completed and signed Selling Holder Questionnaire to the
Company shall be referred to as an "Electing Holder."
(b) (i) Prepare and file with the Commission such amendments,
including post-effective amendments, to the Registration Statement and the
Prospectus used in connection therewith as may be necessary to keep the
Registration Statement continuously effective as to the applicable Registrable
Securities for the Effectiveness Period; (ii) cause the related Prospectus to be
amended or supplemented by any required Prospectus supplement, and as so
supplemented or amended to be filed pursuant to Rule 424; (iii) respond as
promptly as reasonably possible to any comments received from the Commission
with respect to the Registration Statement or any amendment thereto and, as
promptly as reasonably possible, upon request, provide the Holders true and
complete copies of all correspondence from and to the Commission relating to the
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Registration Statement; and (iv) comply in all material respects with the
provisions of the Securities Act and the Exchange Act with respect to the
disposition of all Registrable Securities covered by the Registration Statement
during the applicable period in accordance with the intended methods of
disposition by the Holders thereof set forth in the Registration Statement as so
amended or in such Prospectus as so supplemented.
(c) Notify the Electing Holders as promptly as reasonably
possible (but in any event, within three (3) Trading Days in the case of
subparagraphs (i) and (ii) below, and within one (1) Trading Day in the case of
subparagraphs (iii), (iv) and (v) below) following the day (i)(A) when a
Prospectus or any Prospectus supplement or post-effective amendment to the
Registration Statement is proposed to be filed; (B) when the Commission notifies
the Company whether there will be a "review" of the Registration Statement and
whenever the Commission comments in writing on the Registration Statement (the
Company shall upon request provide true and complete copies thereof and all
written responses thereto to each of the Holders); and (C) with respect to the
Registration Statement or any post-effective amendment, when the same has become
effective; (ii) of any request by the Commission or any other Federal or state
governmental authority during the period of effectiveness of the Registration
Statement for amendments or supplements to the Registration Statement or
Prospectus or for additional information; (iii) of the issuance by the
Commission or any other federal or state governmental authority of any stop
order suspending the effectiveness of the Registration Statement covering any or
all of the Registrable Securities or the initiation of any Proceedings for that
purpose; (iv) of the receipt by the Company of any notification with respect to
the suspension of the qualification or exemption from qualification of any of
the Registrable Securities for sale in any jurisdiction, or the initiation or
threatening of any Proceeding for such purpose; and (v) of the occurrence of any
event or passage of time that makes the financial statements included in the
Registration Statement ineligible for inclusion therein or any statement made in
the Registration Statement or Prospectus or any document incorporated or deemed
to be incorporated therein by reference untrue in any material respect or that
requires any revisions to the Registration Statement, Prospectus or other
documents so that, in the case of the Registration Statement or the Prospectus,
as the case may be, it 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, in light of the circumstances under which they were
made, not misleading.
(d) Use commercially reasonable efforts to avoid the issuance
of, or, if issued, obtain the withdrawal of (i) any order suspending the
effectiveness of the Registration Statement, or (ii) any suspension of the
qualification (or exemption from qualification) of any of the Registrable
Securities for sale in any jurisdiction, at the earliest practicable moment.
(e) Furnish to each Electing Holder, without charge, at least
one conformed copy of the Registration Statement and each amendment thereto,
including financial statements and schedules, all documents incorporated or
deemed to be incorporated therein by reference to the extent requested by such
Person, and all exhibits to the extent requested by such Person (including those
previously furnished or incorporated by reference) promptly after the filing of
such documents with the Commission.
(f) Promptly deliver to each Electing Holder, without charge,
as many copies of the Prospectus or Prospectuses (including each form of
prospectus) and each amendment or supplement thereto as such Persons may
reasonably request in connection with resales by the
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Electing Holder. Subject to the terms of this Agreement, the Company hereby
consents to the use of such Prospectus and each amendment or supplement thereto
by each of the selling Electing Holders in connection with the offering and sale
of the Registrable Securities covered by such Prospectus and any amendment or
supplement thereto, except after the giving on any notice pursuant to Section
3(c).
(g) Prior to any resale of Registrable Securities by an
Electing Holder, use its commercially reasonable efforts to register by
coordination or cooperate with the selling Electing Holders in connection with
the registration (or exemption from the Registration) of such Registrable
Securities for the resale by the Holder under the securities or Blue Sky laws of
such jurisdictions within the United States as any Holder reasonably requests in
writing, to keep the registration (or exemption therefrom) effective during the
Effectiveness Period and to do any and all other acts or things reasonably
necessary to enable the disposition in such jurisdictions of the Registrable
Securities covered by the Registration Statement; provided, that the Company
shall not be required to qualify generally to do business in any jurisdiction
where it is not then so qualified, subject the Company to any material tax in
any such jurisdiction where it is not then so subject or file a general consent
to service of process in any such jurisdiction.
(h) If requested in writing by the Electing Holders, cooperate
with the Electing Holders to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be delivered to a transferee
pursuant to the Registration Statement, which certificates shall be free, to the
extent permitted by the Purchase Agreement, of all restrictive legends, and to
enable such Registrable Securities to be in such denominations and registered in
such names as any such Holders may so request.
The Company understands that a delay in the delivery of the
certificates in the form required in the previous paragraph more than three
Trading Days after request by the Electing Holder in writing could result in
economic loss to an Electing Holder. As compensation to an Electing Holder for
such loss, the Company agrees to pay late payment fees (as liquidated damages
and not as a penalty) to the Electing Holder for late delivery of certificates
in the amount of $100 per business day after such Three Trading Days for each
$10,000 of purchase price of the Registrable Securities subject to such delivery
default. The Company shall pay any payments incurred under this Section in
immediately available funds upon demand.
Upon the occurrence of any event contemplated by Section
3(c)(v), as promptly as reasonably possible, prepare a supplement or amendment,
including a post-effective amendment, to the Registration Statement or a
supplement to the related Prospectus or any document incorporated or deemed to
be incorporated therein by reference, and file any other required document so
that, as thereafter delivered, neither the Registration Statement nor such
Prospectus will contain 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, in light of the circumstances under which they were made,
not misleading.
If the Company notifies the Electing Holders in accordance
with clauses (ii) through (v) of Section 3(c) or clause (ii) of Section 2(b)
above to suspend the use of any Prospectus, then the Electing Holders shall
suspend use of such Prospectus. The Company will use its commercially reasonable
efforts to ensure that the use of the Prospectus may be resumed as promptly as
is practicable.
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(i) Comply with all applicable rules and regulations of the
Commission.
(j) During any periods that the Company is unable to meet its
obligations hereunder with respect to the registration of the Registrable
Securities solely because any Holder fails to timely furnish the Company with
the information reasonably requested and necessary for the Company to meet its
obligations hereunder, any liquidated damages that are accruing at such time as
to such Holder only shall be tolled and any Event that may otherwise occur
solely because of such delay shall be suspended as to such Holder only, until
such information is delivered to the Company. If such Holder fails to furnish
such information to the Company within seven (7) Trading Days after a written
request from the Company, such Holder's name may be removed or excluded from the
Registration Statement or Prospectus forming a part thereof.
4. Registration Expenses. All fees and expenses incident to the
performance of or compliance with this Agreement by the Company shall be borne
by the Company whether or not any Registrable Securities are sold pursuant to
the Registration Statement. The fees and expenses referred to in the foregoing
sentence shall include, without limitation, (i) all registration and filing fees
(including, without limitation, fees and expenses (A) with respect to filings
required to be made with the Trading Market on which the Common Stock is then
listed for trading, and (B) in compliance with applicable state securities or
Blue Sky laws), (ii) printing expenses (including, without limitation, expenses
of printing certificates for Registrable Securities and of printing prospectuses
if the printing of prospectuses is reasonably requested by the holders of a
majority of the Registrable Securities included in the Registration Statement),
(iii) messenger, telephone and delivery expenses, (iv) fees and disbursements of
counsel for the Company, (v) Securities Act liability insurance, if the Company
so desires such insurance, and (vi) fees and expenses of all other Persons
retained by the Company in connection with the consummation of the transactions
contemplated by this Agreement. In addition, the Company shall be responsible
for all of its internal expenses incurred in connection with the consummation of
the transactions contemplated by this Agreement (including, without limitation,
all salaries and expenses of its officers and employees performing legal or
accounting duties), the expense of any annual audit and the fees and expenses
incurred in connection with the listing of the Registrable Securities on any
securities exchange as required hereunder. Except as provided in any of the
Transaction Documents, in no event shall the Company be responsible for any
broker or similar commissions or, except to the extent provided for in the
Transaction Documents, any legal fees or other costs of the Holders.
5. Indemnification.
(a) Indemnification by the Company. The Company shall,
notwithstanding any termination of this Agreement, indemnify and hold harmless
each Holder, the officers, directors, agents and employees of each of them, each
Person who controls any such Holder (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) and the officers, directors,
agents and employees of each such controlling Person, to the fullest extent
permitted by applicable law, from and against any and all losses, claims,
damages, liabilities, costs (including, without limitation, reasonable
attorneys' fees) and expenses (collectively, "Losses"), as incurred, arising out
of or relating to any untrue or alleged untrue statement of a material fact
contained in the Registration Statement, any Prospectus or any form of
prospectus or in any amendment or supplement thereto or in any preliminary
prospectus, or arising out of or
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relating to any omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein (in the case of any
Prospectus or form of prospectus or supplement thereto, in light of the
circumstances under which they were made) not misleading, except to the extent,
but only to the extent, that (i) such untrue statements or omissions are based
solely upon information regarding such Holder furnished in writing to the
Company by such Holder expressly for use therein, or to the extent that such
information relates to such Holder or such Holder's proposed method of
distribution of Registrable Securities and was reviewed and approved by the
Holder for use in the Registration Statement, such Prospectus or such form of
Prospectus or in any amendment or supplement thereto (it being understood that
the Holders have approved Annex A hereto for this purpose) or (ii) in the case
of an occurrence of an event of the type specified in Section 3(c)(ii)-(v) or a
notice pursuant to Section 2(b)(ii), the use by such Holder of a Prospectus
after the Company has notified such Holder in writing of the suspension and
prior to the receipt by such Holder of the Advice contemplated in Section 6(d).
The Company shall notify the Holders promptly of the institution, threat or
assertion of any Proceeding of which the Company is aware in connection with the
transactions contemplated by this Agreement.
(b) Indemnification by Holders. Each Holder shall, severally
and not jointly, indemnify and hold harmless the Company, its directors,
officers, agents and employees, each Person who controls the Company (within the
meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act),
and the directors, officers, agents or employees of such controlling Persons, to
the fullest extent permitted by applicable law, from and against all Losses, as
incurred, to the extent arising out of or based solely upon: (x) such Holder's
failure to comply with the prospectus delivery requirements of the Securities
Act or (y) any untrue or alleged untrue statement of a material fact contained
in any Registration Statement, any Prospectus, or any form of prospectus, or in
any amendment or supplement thereto or in any preliminary prospectus, or arising
out of or relating to any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading (i) to the extent, but only to the extent, that such untrue statement
or omission is contained in any information so furnished in writing to the
Company by the Holder specifically for inclusion in the Registration Statement
or such Prospectus or (ii) to the extent that (1) such untrue statements or
omissions are based solely upon information regarding such Holder furnished in
writing to the Company by such Holder expressly for use therein, or to the
extent that such information relates to such Holder or such Holder's proposed
method of distribution of Registrable Securities and was reviewed and approved
by the Holder for use in the Registration Statement (it being understood that
the Holders have approved Annex A hereto for this purpose), such Prospectus or
such form of Prospectus or in any amendment or supplement thereto or (2) in the
case of an occurrence of an event of the type specified in Section 3(c)(ii)-(v)
or a notice pursuant to Section 2(b)(ii), the use by such Holder of a Prospectus
after the Company has notified such Holder in writing of the suspension and
prior to the receipt by such Holder of the Advice contemplated in Section 6(d).
In no event shall the liability of any selling Holder hereunder be greater in
amount than the dollar amount of the net proceeds received by such Holder upon
the sale of the Registrable Securities giving rise to such indemnification
obligation.
(c) Conduct of Indemnification Proceedings. If any Proceeding
shall be brought or asserted against any Person entitled to indemnity hereunder
(an "Indemnified Party"), such Indemnified Party shall promptly notify the
Person from whom indemnity is sought (the "Indemnifying Party") in writing, and
the Indemnifying Party shall have the right to assume the
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defense thereof, including the employment of counsel reasonably satisfactory to
the Indemnified Party and the payment of all fees and expenses incurred in
connection with defense thereof; provided, that the failure of any Indemnified
Party to give such notice shall not relieve the Indemnifying Party of its
obligations or liabilities pursuant to this Agreement, except (and only) to the
extent that it shall be finally determined by a court of competent jurisdiction
(which determination is not subject to appeal or further review) that such
failure shall have prejudiced the Indemnifying Party.
An Indemnified Party shall have the right to employ separate
counsel in any such Proceeding and to participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of such
Indemnified Party or Parties unless: (1) the Indemnifying Party has agreed in
writing to pay such fees and expenses; (2) the Indemnifying Party shall have
failed promptly to assume the defense of such Proceeding and to employ counsel
reasonably satisfactory to such Indemnified Party in any such Proceeding; or (3)
the named parties to any such Proceeding (including any impleaded parties)
include both such Indemnified Party and the Indemnifying Party, and a material
conflict of interest is likely to exist if the same counsel were to represent
such Indemnified Party and the Indemnifying Party (in which case, if such
Indemnified Party notifies the Indemnifying Party in writing that it elects to
employ separate counsel reasonably satisfactory to the Indemnifying Party at the
expense of the Indemnifying Party, the Indemnifying Party shall not have the
right to assume the defense thereof and the reasonable fees and expenses of one
separate counsel shall be at the expense of the Indemnifying Party). The
Indemnifying Party shall not be liable for any settlement of any such Proceeding
effected without its written consent, which consent shall not be unreasonably
withheld. No Indemnifying Party shall, without the prior written consent of the
Indemnified Party which consent shall not be unreasonably withheld, effect any
settlement of any pending Proceeding in respect of which any Indemnified Party
is a party, unless such settlement includes an unconditional release of such
Indemnified Party from all liability on claims that are the subject matter of
such Proceeding.
(d) Contribution. If a claim for indemnification under Section
5(a) or 5(b) is unavailable to an Indemnified Party (by reason of public policy
or otherwise), then each 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, in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party and
Indemnified Party in connection with the actions, statements or omissions that
resulted in such Losses 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 any action in question,
including any untrue or alleged untrue statement of a material fact or omission
or alleged omission of a material fact, has been taken or made by, or 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 action, statement or omission. The amount paid or
payable by a party as a result of any Losses shall be deemed to include, subject
to the limitations set forth in this Agreement, any reasonable attorneys' or
other reasonable fees or expenses incurred by such party in connection with any
Proceeding to the extent such party would have been indemnified for such fees or
expenses if the indemnification provided for in this Section was available to
such party in accordance with its terms.
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(e) The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 5(e) were determined by pro
rata allocation or by any other method of allocation that does not take into
account the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 5(d), no Holder shall
be required to contribute, in the aggregate, any amount in excess of the amount
by which the proceeds actually received by such Holder from the sale of the
Registrable Securities subject to the Proceeding exceeds the amount of any
damages that such Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission, except in
the case of fraud by such Holder.
(f) The indemnity and contribution agreements contained in
this Section are in addition to any liability that the Indemnifying Parties may
have to the Indemnified Parties.
6. Miscellaneous.
(a) Remedies. In the event of a breach by the Company or by a
Holder, of any of their obligations under this Agreement, each Holder or the
Company, as the case may be, in addition to being entitled to exercise all
rights granted by law and under this Agreement, including recovery of damages,
will be entitled to specific performance of its rights under this Agreement. The
Company and each Holder agree that monetary damages would not provide adequate
compensation for any losses incurred by reason of a breach by it of any of the
provisions of this Agreement and hereby further agrees that, in the event of any
action for specific performance in respect of such breach, it shall waive the
defense that a remedy at law would be adequate.
(b) No Piggyback on Registrations. Neither the Company nor any
of its security holders (other than the Holders in such capacity pursuant
hereto) may include securities of the Company in the Registration Statement
other than the Registrable Securities. Except as provided herein, no Person has
any right to cause the Company to effect the registration under the Securities
Act of any securities of the Company
(c) Compliance. Each Holder covenants and agrees that it will
comply with the prospectus delivery requirements of the Securities Act as
applicable to it in connection with sales of Registrable Securities pursuant to
the Registration Statement.
(d) Discontinued Disposition. Each Electing Holder agrees by
its acquisition of such Registrable Securities that, upon receipt of a notice
from the Company of the occurrence of any event of the kind described in Section
3(c) or a notice pursuant to Section 2(b)(ii), such Electing Holder will
forthwith discontinue disposition of such Registrable Securities under the
Registration Statement until such Electing Holder's receipt of the copies of the
supplemented Prospectus and/or amended Registration Statement or until it is
advised in writing (the "Advice") by the Company that the use of the applicable
Prospectus may be resumed, and, in either case, has received copies of any
additional or supplemental filings that are incorporated or deemed to be
incorporated by reference in such Prospectus or Registration Statement. The
Company will use its commercially reasonable efforts to ensure that the use of
the Prospectus may be resumed as promptly as is practicable.
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(e) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the same shall be in writing and signed by the Company
and Holders of at least 50% of the then-outstanding Registrable Securities,
unless the waiver or consent effects only the waiving or consenting of one or
more particular Holders, in which case such waiver or consent need only be
signed by such Holder or Holders.
(f) Notices. Any and all notices or other communications or
deliveries required or permitted to be provided hereunder shall be made in
accordance with the provisions of the Purchase Agreement.
(g) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and permitted assigns of each of
the parties and shall inure to the benefit of each Holder. Each Holder may
assign their respective rights hereunder in the manner and to the Persons as
permitted under the Purchase Agreement.
(h) Execution and Counterparts. This Agreement may be executed
in any number of counterparts, each of which when so executed shall be deemed to
be an original and, all of which taken together shall constitute one and the
same Agreement. In the event that any signature is delivered by facsimile
transmission, such signature shall create a valid binding obligation of the
party executing (or on whose behalf such signature is executed) the same with
the same force and effect as if such facsimile signature were the original
thereof.
(i) Governing Law. All questions concerning the construction,
validity, enforcement and interpretation of this Agreement shall be determined
with the provisions of the Purchase Agreement.
(j) Cumulative Remedies. The remedies provided herein are
cumulative and not exclusive of any remedies provided by law.
(k) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their commercially reasonable efforts to find and employ an
alternative means to achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction. It is hereby
stipulated and declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and restrictions without
including any of such that may be hereafter declared invalid, illegal, void or
unenforceable.
(l) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(m) Independent Nature of Purchasers' Obligations and Rights.
The obligations of each Holder hereunder are several and not joint with the
obligations of any other Holder hereunder, and no Holder shall be responsible in
any way for the performance of the obligations of any other Holder hereunder.
Nothing contained herein or in any other agreement
10
or document delivered at any closing, and no action taken by any Holder pursuant
hereto or thereto, shall be deemed to constitute the Holders as a partnership,
an association, a joint venture or any other kind of entity, or create a
presumption that the Holders are in any way acting in concert with respect to
such obligations or the transactions contemplated by this Agreement. Each Holder
shall be entitled to protect and enforce its rights, including without
limitation the rights arising out of this Agreement, and it shall not be
necessary for any other Holder to be joined as an additional party in any
proceeding for such purpose.
* * *
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
SYNOVA HEALTHCARE GROUP, INC.
By:
---------------------------------
Name: Xxxxxxx X. Xxxx
Title: Chief Executive Officer
[SIGNATURE PAGE OF HOLDERS FOLLOWS]
11
[PURCHASER'S SIGNATURE PAGE TO RRA]
Name of Investing Entity:
------------------------------------------------------
Signature of Authorized Signatory of Investing entity:
-------------------------
Name of Authorized Signatory:
--------------------------------------------------
Title of Authorized Signatory:
-------------------------------------------------
[SIGNATURE PAGES CONTINUE]
12
ANNEX B
SYNOVA HEALTHCARE GROUP, INC.
SELLING SECURITYHOLDER NOTICE AND QUESTIONNAIRE
The undersigned beneficial owner of common stock, par value $0.001 per
share (the "Common Stock"), of Synova Healthcare Group, Inc., a Nevada
corporation (the "Company"), (the "Registrable Securities") understands that the
Company has filed or intends to file with the Securities and Exchange Commission
(the "Commission") a registration statement (the "Registration Statement") for
the registration and resale under the Securities Act of 1933, as amended (the
"Securities Act"), of the Registrable Securities, in accordance with the terms
of the Registration Rights Agreement, dated as of August ___, 2005 (the
"Registration Rights Agreement"), among the Company and the Purchasers named
therein. A copy of the Registration Rights Agreement is available from the
Company upon request at the address set forth below. All capitalized terms not
otherwise defined herein shall have the meanings ascribed thereto in the
Registration Rights Agreement.
In order to have Registrable Securities included in the Registration
Statement (or a supplement or amendment thereto), this Selling Securityholder
Notice and Questionnaire ("Selling Securityholder Questionnaire") must be
completed, executed and delivered to the Company at the address set forth herein
for receipt ON OR BEFORE THE DATES REQUIRED IN THE REGISTRATION RIGHTS
AGREEMENT. Record or beneficial owners of Registrable Securities who do not
properly complete, execute and return this Selling Securityholder Questionnaire
by such dates (i) will not be named as selling securityholders in the
Registration Statement and (ii) may not use the Prospectus forming a part
thereof for resales of Registrable Securities.
Certain legal consequences arise from being named as a selling
securityholder in the Registration Statement and the related prospectus.
Accordingly, holders and beneficial owners of Registrable Securities are advised
to consult their own securities law counsel regarding the consequences of being
named or not being named as a selling securityholder in the Registration
Statement and the related prospectus.
NOTICE
The undersigned beneficial owner (the "Selling Securityholder") of
Registrable Securities hereby elects to include the Registrable Securities owned
by him/it and listed below in Item 3 (unless otherwise specified under such Item
3) in the Registration Statement. The undersigned, by signing and returning this
Selling Securityholder Questionnaire, agrees to be bound with respect to such
Registrable Securities by the terms and conditions of this Selling
Securityholder Questionnaire and the Registration Rights Agreement, as if the
undersigned Selling Securityholder were an original party thereto.
Upon any sale of Registrable Securities pursuant to the Registration
Statement, the Selling Securityholder will be required to deliver to the Company
the Notice of Transfer (completed and signed) set forth in Exhibit 1 to this
Selling Securityholder Questionnaire.
13
The undersigned hereby provides the following information to the Company and
represents and warrants that such information is accurate and complete:
QUESTIONNAIRE
1. NAME.
(a) Full Legal Name of Selling Securityholder
-----------------------------------------------------
-----------------------------------------------------
(b) Full Legal Name of Registered Holder (if not the same
as (a) above) through which Registrable Securities
Listed in Item 3 below are held:
-----------------------------------------------------
-----------------------------------------------------
(c) Full Legal Name of Natural Control Person (which
means a natural person who directly or indirectly
alone or with others has power to vote or dispose of
the securities covered by the questionnaire):
-----------------------------------------------------
-----------------------------------------------------
2. ADDRESS FOR NOTICES TO SELLING SECURITYHOLDER:
--------------------------------------------------------------
--------------------------------------------------------------
Telephone:
----------------------------------------------------
Email:
--------------------------------------------------------
Fax:
----------------------------------------------------------
Contact Person:
-----------------------------------------------
14
3. BENEFICIAL OWNERSHIP OF SECURITIES:
Except as set forth below in this Item (3), the undersigned
Selling Securityholder does not beneficially own any
securities or shares of Common Stock issued upon conversion of
any securities.
(a) Number of Registrable Securities (as defined in the
Registration Rights Agreement) beneficially owned:
-----------------------------------------------------
-----------------------------------------------------
Number of shares of Common Stock (if any) issued upon
conversion of securities:
(b) Number of securities other than Registrable
Securities beneficially owned:
-----------------------------------------------------
-----------------------------------------------------
Number of shares of Common Stock (if any) issued upon
conversion of such other securities:
-----------------------------------------------------
(c) Number of Registrable Securities to be included in
the Registration Statement:
-----------------------------------------------------
-----------------------------------------------------
Number of shares of Common Stock (if any) issued upon
conversion of Registrable Securities which are to be
included in the Registration Statement:
-----------------------------------------------------
(d) Except as set forth above in this Item (3), the
undersigned Selling Securityholder is not the
beneficial or record owner of any shares of Common
Stock or any other security of the Company.
-----------------------------------------------------
-----------------------------------------------------
15
4. (a) State whether the undersigned Selling Securityholder
has or will enter into "hedging transactions" with
respect to shares of Company Common Stock.
Yes [ ] No [ ]
If yes, you must provide a complete description of
the hedging transactions into which the undersigned
Selling Securityholder has entered or will enter and
the purpose of such hedging transactions, the extent
to which such hedging transactions remain in place.
-----------------------------------------------------
-----------------------------------------------------
Please note that the SEC may deem short sales of securities covered by
a registration statement prior to the effectiveness of such
registration statement as a violation of Section 5 of the Securities
Act.
(b) State whether the undersigned Selling Securityholder
has sold any of the Registrable Securities or shares
of common stock of the Company short since the date
of original issuance of the Registrable Securities.
Yes [ ] No [ ]
If yes, you must provide a complete description of
the short sale, including the number of shares of
common stock of the Company involved and whether the
short position remains in place.
-----------------------------------------------------
-----------------------------------------------------
-----------------------------------------------------
-----------------------------------------------------
5. BROKER-DEALER STATUS:
(a) Are you a broker-dealer?
Yes [ ] No [ ]
NOTE: If yes, the Commission's staff has indicated that you
should be identified as an underwriter in the
Registration Statement.
(b) Are you an affiliate of a broker-dealer?
Yes [ ] No [ ]
16
(c) If you are an affiliate of a broker-dealer, do you
certify that you bought the Registrable Securities in
the ordinary course of business, and at the time of
the purchase of the Registrable Securities to be
resold, you had no agreements or understandings,
directly or indirectly, with any person to distribute
the Registrable Securities?
Yes [ ] No [ ]
NOTE: If no, the Commission's staff has indicated that you
should be identified as an underwriter in the
Registration Statement.
(d) State whether the undersigned Selling Securityholder
received Registrable Securities as compensation for
underwriting activities and p lease explain.
Yes [ ] No [ ]
-----------------------------------------------------
-----------------------------------------------------
-----------------------------------------------------
6. RELATIONSHIPS WITH THE COMPANY:
Except as set forth below, neither the undersigned nor any of
its affiliates, officers, directors or principal equity
holders (owners of 5% of more of the equity securities of the
undersigned) has held any position or office or has had any
other material relationship with the Company (or its
predecessors or affiliates) during the past three years.
State any exceptions here:
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
By signing below, the Selling Securityholder acknowledges that
it understands its obligation to comply, and agrees that it will comply, with
the prospectus delivery and other provisions of the Securities Act and the
Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder, particularly Regulation M.
In the event that the Selling Securityholder transfers all or
any portion of the Registrable Securities listed in Item (3) above after the
date on which such information is provided to the Company, the Selling
Securityholder agrees to notify the transferee(s) of its rights and obligations
under this selling Securityholder Questionnaire and the Registration Rights
Agreement.
17
By signing below, the Selling Securityholder consents to the
disclosure of the information contained herein in its answers to Items (1)
through (6) above and the inclusion of such information in the Registration
Statement and related Prospectus. The Selling Securityholder understands that
such information will be relied upon by the Company in connection with the
preparation of the Registration Statement and related Prospectus.
In accordance with the Selling Securityholder's obligations
under the Registration Rights Agreement to provide such information as may be
required by law for inclusion in the Registration Statement, the Selling
Securityholder agrees to promptly notify the Company of any inaccuracies or
changes in the information provided herein which may occur subsequent to the
date hereof at any time while the Registration Statement remains in effect and
to provide any additional information as the Company reasonably may request.
Except as otherwise provided in the Registration Rights Agreement, all notices
hereunder and pursuant to the Registration Rights Agreement shall be made in
writing, by hand-delivery, first-class mail, or air courier guaranteeing
overnight delivery as follows:
(i) To the Company:
Synova Healthcare Group, Inc.
Rose Tree Corporate Center
0000 X. Xxxxxxxxxx Xxxx
Xxxxx 0000, Xxxxxxxx XX
Xxxxx, XX 00000
Attention: Xxxxxxx Xxxx
(ii) With a copy to:
Blank Rome LLP
Xxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxx, Esquire
Once this Notice and Questionnaire is executed by the Selling
Securityholder and received by the Company, the terms of this Selling
Securityholder Questionnaire, and the representations and warranties contained
herein, shall be binding on, shall inure to the benefit of and shall be
enforceable by the respective successors, heirs, personal representatives, and
assigns of the Company and the Selling Securityholder (with respect to the
Registrable Securities beneficially owned by such Selling Securityholder and
listed in Item (3) above). This Agreement shall be governed in all respects by
the laws of the State of Delaware.
18
IN WITNESS WHEREOF, the undersigned, by authority duly given,
has caused this Selling Securityholder Questionnaire to be executed and
delivered either in person or by its duly authorized agent.
Dated: Selling Securityholder (Print/type full legal
name of beneficial owner of Registrable
Securities)
By:
-----------------------------------------
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED SELLING
SECURITYHOLDER QUESTIONNAIRE FOR RECEIPT ON OR BEFORE February 8, 2005 TO THE
COMPANY AT:
Synova Healthcare Group, Inc.
Rose Tree Corporate Center
0000 X. Xxxxxxxxxx Xxxx
Xxxxx 0000, Xxxxxxxx XX
Xxxxx, XX 00000
Attention: Xxxxxxx Xxxx
With a copy to:
Blank Rome LLP
Xxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx, Esquire
19
EXHIBIT 1 TO APPENDIX B
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
Synova Healthcare Group, Inc.
Rose Tree Corporate Center
0000 X. Xxxxxxxxxx Xxxx
Xxxxx 0000, Xxxxxxxx XX
Xxxxx, XX 00000
Attention: Xxxxxxx Xxxx
Re: Synova Healthcare Group, Inc. (the "Company")
Common Stock, par value $.001 per share (the "Stock")
Dear Sirs:
Please be advised that _____________________ has transferred
___________ shares of the Company's common stock pursuant to an effective
Registration Statement on Form SB-2 (File No. 333-_______) filed by the Company.
We hereby certify that the prospectus delivery requirements, if any, of
the Securities Act of 1933, as amended, have been satisfied with respect to the
transfer described above and that the above-named beneficial owner of the common
stock is named as a selling securityholder in the Prospectus dated
_____________, 2005 or in amendments or supplements thereto, and the number of
shares of common stock transferred are [a portion of] the shares of common stock
listed in such Prospectus, as amended or supplemented, opposite such owner's
name.
Dated:
Very truly yours,
-------------------------------------------
(Name)
By:
----------------------------------------
(Authorized Signature)
