EXHIBIT 4.3
EXHIBIT C
FORM OF
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
entered into as of _________, 1998 by and among Xxxxxx Healthcare, Inc. a Texas
corporation (the "Company"), and, the undersigned Purchasers of the Company's
Series A Convertible Preferred Stock (the "Investors").
A. Pursuant to the terms of a Private Securities Subscription Agreement, dated
as of ________, 1998 (as the same may be amended, the "Subscription Agreement"),
by and between the Company and the Investors, the Investors shall purchase the
$_____________ aggregate principal amount of 4% Series A Convertible Preferred
(the "Preferred"), of the Company, which may be converted into shares of the
$.01 par value per share common stock of the company (the "Common Stock").
B. Pursuant to the Subscription Agreement, the Investors shall acquire warrants
to purchase up to __________ shares of the Common Stock (the "Warrants").
C. The Company has agreed, as a condition precedent to the Investors obligations
under the Subscription Agreement, to grant the Investors certain registration
rights.
D. The Company and the Investors desire to define such registration rights on
the terms and subject to the conditions herein set forth.
In consideration of the foregoing premises and for other good and valuable
consideration, the parties hereby agree as follows:
1. DEFINITIONS
As used in this Agreement, the following terms have the respective meanings set
forth below:
COMMISSION: shall mean the Securities and Exchange Commission or any other
federal agency at the time administering the federal Securities laws;
CLOSING DATE: shall mean the Closing Date, as defined by the Subscription
Agreement;
EXCHANGE ACT: shall mean the Securities Exchange Act of 1934, as amended;
HOLDER: shall mean any holder of Registrable Securities;
PERSON: shall mean an individual, partnership, joint stock company, corporation,
trust or unincorporated organization, and a government or agency or political
subdivision thereof;
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REGISTER, REGISTERED AND REGISTRATION: shall mean a registration effected by
preparing and filing a registration statement in compliance with the Securities
Act (and any post-effective amendments filed or required to be filed) and the
declaration or ordering of effectiveness of such registration statement;
REGISTRABLE SECURITIES: shall mean (A) an unlimited number of shares of Common
Stock into which the Preferred are convertible, or for which the Warrants are
exercisable, (B) any securities of the Company issued as a dividend or other
distribution with respect to, or in exchange for or in replacement of, the
shares of Common Stock referred to in clause (A), and (C) the shares of Common
Stock issuable to the Placement Agent upon the exercise of Warrants pursuant to
the Engagement Letter; provided, that Registrable Securities shall not include
(i) securities with respect to which a registration statement with respect to
the sale of such securities has become effective under the Securities Act and
all such securities have been disposed of in accordance with such registration
statement, (ii) such securities as may be sold without limitations on volume
pursuant to Rule 144K (or any successor provision thereto) under the Securities
Act ("Rule 144"), (iii) such securities as are acquired by the Company or any of
its subsidiaries or (iv) Common Stock into which Preferred are convertible or
for which Warrants are exercisable, if such Preferred have not been converted or
such Warrants exercised, and such Preferred or Warrants cease to be outstanding;
REGISTRATION EXPENSES: shall mean all expenses incurred by the Company in
compliance with Sections 2(a), (b) and (c) hereof, including, without
limitation, all registration and filing fees, printing expenses, fees and
disbursements of counsel for the Company, fees and expenses of one counsel for
the Holders, blue sky fees and expenses and the expense of any special audits
incident to or required by any such registration (but excluding the compensation
of regular employees of the Company, which shall be paid in any event by the
Company);
SECURITY, SECURITIES: shall have the meaning set forth in Section 2(1) of the
Securities Act;
SECURITIES ACT: shall mean the Securities Act of 1933, as amended; and
SELLING EXPENSES: shall mean all underwriting discounts and selling commissions
applicable to the sale of Registrable Securities and all fees and disbursements
of counsel for each of the Holders other than fees and expenses of one counsel
for all the Holders.
2. SHELF REGISTRATION
(a) Within 30 days after the Closing Date, the Company shall file a "shelf"
registration statement pursuant to Rule 415 under the Securities Act (the "Shelf
Registration") with respect to the Registrable Securities to be issued under the
Subscription Agreement. The Shelf Registration shall be on Form S-3 under the
Securities Act or such other appropriate form selected by the Company, and
approved by Investors legal counsel, which allows resales of Registrable
Securities. The Company shall use its reasonable best efforts to cause the Shelf
Registration to become effective within 100 days of the Closing Date, and shall
use its reasonable best efforts to keep the Shelf
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Registration continuously effective from the date such Shelf Registration is
effective until the earlier to occur of (i) the second anniversary of the
Closing Date, or (ii) the date on which all Registrable Securities have been
sold, in order to permit the prospectus forming a part thereof to be usable by
Holders during such period. The Shelf Registration may include securities of the
Company other than Registrable Securities. If the Shelf Registration has not
been filed with the Commission with 30 days, (default) or is not declared
effective by the Commission on or before the 100th day after the Closing Date
(default), then the Company shall accrue to each Investor, as liquidated
damages, an amount in cash equal to two percent (2%) of the liquidation value of
the Preferred then held by such Investors for each thirty (30) days thereafter
until the Shelf Registration is declared effective by the Commission. The
liquidated damages shall be paid within 30 days of the Company's default, and
shall increase to three percent (3%) for all defaults of 60 days or more.
(b) The Company shall supplement or amend the Shelf Registration only as it
relates to the Investors or placement agent, (i) as required by the registration
form utilized by the Company or by the instructions applicable to such
registration form or by the Securities Act or the rules and regulations
promulgated thereunder, (ii) to include in such Shelf Registration any
additional securities that become Registrable Securities by operation of the
definition thereof, and (iii) following the written request of a Holder pursuant
to Section 2(c) below, to cover offers and sales of all or a part of the
Registrable Securities by means of an underwriting including the incorporation
of any information required pursuant to Section 2(e)(ix) below. The Company
shall furnish to the Holders of the Registrable Securities to which the Shelf
Registration relates copies of any such supplement or amendment sufficiently in
advance (but in no event less than two business days in advance) of its use
and/or filing with the Commission to allow the Holders a meaningful opportunity
to comment thereon.
(c) The Holders may, at their election and upon written notice by the Holders to
the Company, effect offers and sales under the Shelf Registration by means of
one or more underwritten offerings. If the Holders intend to distribute the
Registrable Securities by means of an underwriting, they shall so advise the
Company. An underwritten registration under this Section 2(c) may include other
Securities of the Company held by Persons who, by virtue of agreements with the
Company, are entitled to include their Securities in any such registration
("Other Stockholders"). If Other Stockholders request inclusion in any such
registration, the Holders shall offer to include the Securities of such Other
Stockholders in the underwriting and may condition such offer on their
acceptance of the further applicable provisions of this Section 2. The Holders
whose shares are to be included in such underwriting and the Company shall
(together with all Other Stockholders proposing to distribute their securities
through such underwriting) enter into underwriting and related agreements in
customary form with the representative of the underwriter or underwriters
selected for such underwriting by the Company and reasonably acceptable to the
Holders. Such underwriting agreement will contain such representations and
warranties by the Company and such other terms and provisions as are customarily
contained in underwriting agreements with respect to secondary distributions,
including, without limitation, indemnities and contribution to the effect and to
the extent provided in Section 2(f) hereof and the provision of customary
opinions of counsel and accountants' letters, and the representations and
warranties by, and the other agreements on the part of, the
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Company to and for the benefit of such underwriters shall also be made to and
for the benefit of the Holders. The Company shall cooperate fully with the
Holders and the underwriters in connection with any underwritten offering.
Notwithstanding any other provision of this Section 2(c), if the underwriter
advises the Holders in writing that marketing factors require a limitation on
the number of shares to be underwritten, the Securities of the Company held by
Other Stockholders shall be excluded from such registration to the extend so
required by such limitation. If, after the exclusion of such shares, still
further reductions are required, the number of shares included in the
registration by each Holder shall be reduced on a pro rata basis (based on the
number of shares held by such Holder), by such minimum number of shares as is
necessary to comply with such request. No Registrable Securities or any other
securities excluded from the underwriting by reason of the underwriter's
marketing limitation shall be included in such underwriting. If any Other
Stockholder who has requested inclusion in such registration as provided above
disapproves of the terms of the underwriting, such person may elect to withdraw
therefrom by written notice to the Company, the underwriter and the Holders. If
the underwriter has not limited the number of Registrable Securities or other
securities to be underwritten, the Company and officers and directors of the
Company may include its or their securities for its or their own account in such
registration if the underwriter so agrees and if the number of Registrable
Securities and other securities which would otherwise have been included in such
registration and underwriting will not thereby be limited.
(d) EXPENSES OF REGISTRATION. All Registration Expenses incurred in connection
with any registration, qualification or compliance pursuant to this Section 2
shall be borne by the Company, and all Selling Expenses shall be borne by the
Holders of the securities so registered pro rata on the basis of the number of
their shares so registered.
(e) REGISTRATION PROCEDURES. In the case of each registration effected by the
Company pursuant to this Section 2, the Company will keep the Holders, as
applicable, advised in writing as to the initiation of each registration and as
to the completion thereof. At its expense, the Company will:
(i) furnish to each Holder, and to any underwriter before filing with
the Commission, copies of any registration statement (including all exhibits)
and any prospectus forming a part thereof and any amendments and supplements
thereto (including all documents incorporated or deemed incorporated by
reference therein prior to the effectiveness of such registration statement and
including each preliminary prospectus, any summary prospectus or any term sheet
(as such term is used in Rule 434 under the Securities Act)) and any other
prospectus filed under Rule 424 under the Securities Act, which documents, other
than documents incorporated or deemed incorporated by reference, will be subject
to the review of the Holders and any such underwriter for a period of at least
two (2) business days, and the Company shall not file any such registration
statement or such prospectus or any amendment or supplement to such registration
statement or prospectus to which any Holder or any such underwriter shall
reasonably object within two (2) business days after the receipt thereof. A
Holder or such underwriters, if any, shall be deemed to have reasonably objected
to such filing only if the registration statement, amendment, prospectus or
supplement, as applicable, as proposed to be filed, contains a material
misstatement or omission;
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(ii) furnish to each Holder and to any underwriter, such number of
conformed copies of the applicable registration statement and of each amendment
and supplement thereto (in each case including all exhibits) and such number of
copies of the prospectus forming a part of such registration statement
(including each preliminary prospectus, any summary prospectus or any term sheet
(as such term is used in Rule 434 under the Securities Act)) and any other
prospectus filed under Rule 424 under the Securities Act, in conformity with the
requirements of the Securities Act, and such other documents, including without
limitation documents incorporated or deemed to be incorporated by reference
prior to the effectiveness of such registration, as each of the Holders or any
such underwriter, from time to time may reasonably request;
(iii) make available at reasonable times for inspection by the Holders,
any underwriter participating in any disposition pursuant to such registration
and any attorney or accountant retained by the Holders or any such underwriter,
all financial and other records, pertinent corporate documents and properties of
the Company and cause the officers, directors and employees of the Company to
supply all information reasonably requested by the Holders and any such
underwriters, attorneys or accountants in connection with such registration
subsequent to the filing of the applicable registration statement and prior to
the effectiveness of the applicable registration statement;
(iv) use its commercially reasonable best efforts (x) to register or
qualify all Registrable Securities and other securities covered by such
registration under such other securities or blue sky laws of such States of the
United States of America where an exemption is not available and as the sellers
of Registrable Securities covered by such registration shall reasonably request,
(y) to keep such registration or qualification in effect for so long as the
applicable registration statement remains in effect, and (z) to take any other
action which may be reasonably necessary or advisable to enable such sellers to
consummate the disposition in such jurisdictions of the securities to be sold by
such sellers, except that the Company shall not for any such purpose be required
to qualify generally to do business as a foreign corporation in any jurisdiction
where it is not so qualified, or to subject itself to taxation in any such
jurisdiction, or to execute a general consent to service of process in effecting
such registration, qualification or compliance, unless the Company is already
subject to service in such jurisdiction and except as may be required by the
Securities Act or applicable rules or regulations thereunder;
(v) subject to Section 2(h) hereof, promptly notify each Holder of
Registrable Securities covered by a registration statement (A) upon discovery
that, or upon the happening of any event as a result of which, the prospectus
forming a part of such registration statement, as then in effect, includes an
untrue statement of a material fact or omits to state any material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, (B) of the
issuance by the Commission of any stop order suspending the effectiveness of
such registration statement or the initiation of proceedings for that purpose,
(C) of any request by the Commission for (1) amendments to such registration
statement or any document incorporated or deemed to be incorporated by reference
in any such registration statement, (2) supplements to the prospectus forming a
part of such registration statement or (3) additional information, or (D) of the
receipt by the Company of any notification with respect to the suspension
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of the qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction or the initiation of any proceeding for
such purpose, and at the request of any such Holder promptly prepare and furnish
to it a reasonable number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such 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, in the light of the
circumstances under which they were made, not misleading;
(vi) use its commercially reasonable best efforts to obtain the
withdrawal of any order suspending the effectiveness of any such registration,
or the lifting of any suspension of the qualification (or exemption from
qualification) of any of the Registrable Securities for sale in any
jurisdiction;
(vii) if requested by the initiating Holders, or any underwriter,
promptly incorporate in such registration statement or prospectus, pursuant to a
supplement or post effective amendment if necessary, such information as the
Holders and any underwriter may reasonably request to have included therein,
including, without limitation, information relating to the "plan of
distribution" of the Registrable Securities, information with respect to the
principal amount or number of shares of Registrable Securities being sold to
such underwriter, the purchase price being paid therefor and any other terms of
the offering of the Registrable Securities to be sold in such offering and make
all required filings of any such prospectus supplement or post-effective
amendment as soon as practicable after the Company is notified of the matters to
be incorporated in such prospectus supplement or post effective amendment;
(viii) in the event of an underwritten offering of Registrable
Securities, furnish to the underwriters, addressed to them, an opinion of
counsel for the Company, dated the date of the closing under the underwriting
agreement, and use its reasonable best efforts to furnish to the underwriters,
addressed to them, a "cold comfort" letter signed by the independent certified
public accountants who have certified the Company's financial statements
included in such registration, covering substantially the same matters with
respect to such registration (and the prospectus included therein) and, in the
case of such accountants' letter, with respect to events subsequent to the date
of such financial statements, as are customarily covered in opinions of issuer's
counsel and in accountants' letters delivered to underwriters in underwritten
public offerings of securities and such other matters as the underwriters may
reasonably request;
(ix) otherwise use its commercially reasonable best efforts to comply
with all applicable rules and regulations of the Commission, and make available
to its security holders, as soon as reasonably practicable, an earnings
statement covering the period of at least 12 months, but not more than 18
months, beginning with the first full calendar month after the effective date of
such registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 promulgated
thereunder;
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(x) provide promptly to the Holders upon request any document filed by
the Company with the Commission pursuant to the requirements of Section 13 and
Section 15 of the Exchange Act; and
(xi) use its commercially reasonable best efforts to cause all
Registrable Securities included in any registration pursuant hereto to be listed
on each securities exchange on which securities of the same class are then
listed, or, if not then listed on any securities exchange, to be eligible for
trading in any over-the-counter market or trading system in which securities of
the same class are then traded.
(f) INDEMNIFICATION.
(i) The Company will indemnify each of the Holders, and as applicable,
each of their respective officers, directors, members and partners, and each
person controlling each of the Holders, with respect to each registration which
has been effected pursuant to this Section 2, and each underwriter, if any, and
each person who controls any underwriter, against all claims, losses, damages
and liabilities (or actions in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in
any prospectus, offering circular or other document (including any related
registration statement, notification or the like) incident to any such
registration, qualification or compliance, or based on 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 any violation by the
Company of the Securities Act or the Exchange Act or any rule or regulation
thereunder applicable to the Company and relating to action or inaction required
of the Company in connection with any such registration, qualification or
compliance, and will reimburse each of the Holders, each of its officers,
directors, members and partners, and each person controlling each of the
Holders, each such underwriter and each person who controls any such
underwriter, for any legal and any other expenses reasonably incurred in
connection with investigating and defending any such claim, loss, damage,
liability or action. provided that the Company will not be liable in any such
case to the extent that any such claim loss, damage, liability or expense arises
out of or is based on any untrue statement or omission based upon written
information furnished to the Company by the Holders or underwriter and stated to
be specifically for use therein. PROVIDED, FURTHER, that the Company shall not
be liable to any Holder or underwriter in respect of any Prospectus to the
extent that (i) the Prospectus did not contain the untrue statement or alleged
untrue statement or omission or alleged omission giving rise to such loss,
claim, damage, liability or action, and (ii) the Prospectus was not sent or
given to the purchaser of the Registrable Securities in question at or prior to
the time at which the written confirmation of the sale of such Registrable
Securities was sent or given to such person.
(ii) Each of the Holders will, if Registrable Securities held by it are
included in the securities as to which such registration, qualification or
compliance is being effected, indemnify the Company, each of its directors and
officers and each underwriter, if any, of the Company's securities covered by
such a registration statement and each person who controls the Company or such
underwriter, each Other Stockholder and each of their officers, directors,
members and partners, and each person controlling such Other Stockholder against
all claims, losses, damages and liabilities (or
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actions in respect thereof) arising out of or based on any untrue statement (or
alleged untrue statement) of a material fact contained in any such registration
statement, prospectus, offering circular or other document made by such Holder,
or any omission (or alleged omission) to state therein a material fact required
to be stated therein or necessary to make the statements by such Holder therein
not misleading, and will reimburse the Company and such Other Stockholders,
directors, officers, partners, members, persons, underwriters or control persons
for any legal or any other expenses reasonably incurred in connection with
investigating or defending any such claim, loss, damage, liability or action, in
each case to the extent, but only to the extent, that such untrue statement (or
alleged untrue statement) or omission (or alleged omission) is made in such
registration statement, prospectus, offering circular or other document in
reliance upon and in conformity with written information furnished to the
Company by such Holder and stated to be specifically for use therein; provided,
however, that the obligations of each of the Holders hereunder and under clause
(vi) below shall be limited to an amount equal to the net proceeds to such
Holder of securities sold as contemplated herein.
(iii) Each party entitled to indemnification under this Section 2(f)
(the "Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom; provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or any litigation resulting
therefrom, shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld) and the Indemnified Party may participate in such
defense at such party's expense (unless the Indemnified Party shall have
reasonably concluded that there may be a conflict of interest between the
Indemnifying Party and the Indemnified Xxxxx in such action, in which case the
fees and expenses of one such counsel for all Indemnified Parties shall be at
the expense of the Indemnifying Party), and provided further that the failure of
any Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Section 2 unless the
Indemnifying Party is materially prejudiced thereby. No Indemnifying Party, in
the defense of any such claim or litigation shall, except with the consent of
each Indemnified Party (which consent shall not be unreasonably withheld or
delayed), consent to entry of any judgment or enter into any settlement 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. Each Indemnified Party shall furnish such
information regarding itself or the claim in question as an Indemnifying Party
may reasonably request in writing and as shall be reasonably required in
connection with the defense of such claim and litigation resulting therefrom.
(iv) If the indemnification provided for in this Section 2(f) is held by
a court of competent jurisdiction to be unavailable to an Indemnified Party with
respect to any loss, liability, claim, damage or expense referred to herein,
then the Indemnifying Party, in lieu of indemnifying such Indemnified Party
hereunder, shall contribute to the amount paid or payable by such Indemnified
Party as a result of such loss, liability, claim, damage or expense in such
proportion as is appropriate to reflect the relative fault of the Indemnifying
Party on the one hand and of the Indemnified Party on the other in connection
with the statements or omissions which resulted in such loss, liability, claim,
damage or
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expense, as well as any other relevant equitable considerations. The relative
fault of the Indemnifying Party and of the Indemnified Party 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 by
the Indemnified Party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
(v) Notwithstanding the foregoing, to the extent that the provisions on
indemnification and contribution contained in the underwriting agreement entered
into in connection with any underwritten public offering contemplated by this
Agreement are in conflict with the foregoing provisions, the provisions in such
underwriting agreement shall be controlling.
(g) INFORMATION BY THE HOLDERS. Each of the Holders holding securities included
in any registration shall furnish to the Company such information regarding such
Holder and the distribution proposed by such Holder as the Company may
reasonably request in writing and as shall be reasonably required in connection
with any registration, qualification or compliance referred to in this Section
2.
(h) ASSIGNMENT. The registration rights set forth in Section 2 hereof may be
assigned, in whole or in part, to any transferee of Registrable Securities (i)
who is an affiliate of the Investors, or (ii) who is a purchaser of at least 25%
of the then outstanding Registrable Securities. Any such transferee shall be
considered thereafter to be a Holder (provided that any transferee who is not an
affiliate of Investors shall be a Holder only with respect to such Registrable
Securities so acquired and any stock of the Company issued as a dividend or
other distribution with respect to, or in exchange for or in replacement of,
such Registrable Securities) and shall be bound by all obligations and
limitations of this Agreement.
(i) ACTION TO SUSPEND EFFECTIVENESS; SUPPLEMENT TO REGISTRATION STATEMENT.
Immediately upon receipt of any notice from the Company pursuant to Section
2(e)(v), each Holder shall cease to offer or sell any Registrable Securities
pursuant to the Shelf Registration and, if so requested by the Company, return
to the Company, at the Company's expense, all copies (other than permanent file
copies) of such registration statement. As soon as possible after any such
notice from the Company, the Company will notify each Holder of the date on
which the Holder of the date on which the Holders may offer and sell pursuant to
the Shelf Registration.
(j) HOLDBACK AGREEMENT - RESTRICTIONS ON PUBLIC SALE BY HOLDER. To the extent
not inconsistent with applicable law, each Holder whose Registrable Securities
are included in the Shelf Registration or any other registration statement
agrees not to effect any public sale or distribution of the issue being
registered or a similar security of the Company, or any securities convertible
into or exchangeable or exercisable for such securities, including a sale
pursuant to Rule 144 under the Securities Act, during the thirty (30) days prior
to, and during the ninety (90) day period beginning on, the effective date of
any such other registration statement filed by the Company (except as part of
the registration), if and to the extent requested by the Company in the case of
a nonunderwritten
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public offering or if and to the extent requested by the managing underwriter or
underwriters in the case of an underwritten public offering.
3. RULE 144 REPORTING
With a view to making available the benefits of certain rules and regulations of
the Commission which may permit the sale of restricted securities to the public
without registration, the Company agrees to:
(i) make and keep public information available (as those terms are
understood and defined in Rule 144) at all times;
(ii) use its reasonable best efforts to file with the Commission in a
timely manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act; and
(iii) so long as there are outstanding any Registrable Securities,
furnish to each Holder, upon request, a written statement by the Company as to
its compliance with the reporting requirements of Rule 144 and of the Securities
Act and the Exchange Act, a copy of the most recent annual or quarterly report
of the Company, and such other reports and documents so filed as such Holder may
reasonably request in availing itself of any rule or regulation of the
Commission allowing such Holder to sell any such securities without
registration.
4. INTERPRETATION OF THIS AGREEMENT
(a) DIRECTLY OR INDIRECTLY. Where any provision in this Agreement refers
to action to be taken by any Person, or which such Person is prohibited from
taking, such provision shall be applicable whether such action is taken directly
or indirectly by such Person.
(b) GOVERNING LAW. This Agreement shall be governed by and construed
accordance with the laws of the State of Texas.
(c) SECTION HEADINGS. The headings of the sections and subsections of
this Agreement are inserted for convenience only and shall not be deemed to
constitute a part thereof.
(d) ARBITRATION. All disputes arising under this Agreement (other than
claims in equity) shall be resolved by arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration Association.
Arbitration shall be by a single arbitrator experienced in the matters at issue
and selected by the Company and the Investors in accordance with the Commercial
Arbitration Rules of the American Arbitration Association. If the Company and
Investors cannot agree on an arbitrator within twenty (20) days, an arbitrator
shall be appointed by the American Arbitration Association. The arbitration
shall be held in such place in New York, New York, as may be specified by the
arbitrator (or any place agreed to by the Company, the Investors and the
arbitrator). The decision of the arbitrator shall be final and binding as to any
matters submitted under this Agreement; provided,
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however, if necessary, such decision and satisfaction procedure may be enforced
by either the Company or the Investors in any court of record having
jurisdiction over the subject matter or over any of the parties to this
Agreement. All reasonable out of pocket costs and expenses incurred in
connection with any such arbitration proceeding (including reasonable attorneys
fees) shall be become by the party against which the decision is rendered, or,
if no decision is rendered, each party shall bear its respective costs and
expenses. If the arbitrator's decision is a compromise, the determination of
which party or parties bears the costs and expenses incurred in connection with
any such arbitration proceeding shall be made by the arbitrator on the basis of
the arbitrator's assessment of the relative merits of the parties' positions.
5. MISCELLANEOUS
(a) Notices.
(i) All communications under this Agreement shall be in writing
and shall be delivered by facsimile or by hand or mailed by overnight courier or
by registered or certified mail, postage prepaid:
(A) if to the company, to Xxxxxx Healthcare Inc.,
Attention: Chief Executive Officer, or at such other address as it may have
furnished in writing to the Investors;
(B) if to the Investors, at the address listed on the
signature page hereto, or at such other address as may have been furnished the
Company in writing.
(ii) Any notice so addressed shall be deemed to be given: if
delivered by hand, on the date of such delivery; if mailed by courier, on the
first business day following the date of such mailing; and if mailed by
registered or certified mail, on the third business day after the date of such
mailing.
(b) REPRODUCTION OF DOCUMENTS. This Agreement and all documents relating
thereto, including, without limitation, any consents, waivers and modifications
which may hereafter be executed may be reproduced by the lnvestors by any
photographic, photostatic, microfilm, microcard, miniature photographic or other
similar process and the Investors may destroy any original document so
reproduced. The parties hereto agree and stipulate that any such reproduction
shall be admissible in evidence as the original itself in any judicial or
administrative proceeding (whether or not the original is in existence and
whether or not such reproduction was made by the Investors in the regular course
of business) and that any enlargement, facsimile or further reproduction of such
reproduction shall likewise be admissible in evidence.
(c) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties.
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(d) ENTIRE AGREEMENT: AMENDMENT AND WAIVER. This Agreement constitutes
the entire understanding of the parties hereto and supersedes all prior
understanding among such parties. This Agreement may be amended, and the
observance of any term of this Agreement may be waived, with (and only with) the
written consent of the Company and the Holders of a majority of the then
outstanding Registrable Securities.
(e) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
together shall be considered one and the same agreement.
(f) NO INCONSISTENT AGREEMENTS. The Company will not hereafter enter
into any agreement with respect to its securities which is inconsistent with the
rights granted to the Holders of Registrable Securities in this Agreement.
(g) REMEDIES. Each Holder of Registrable Securities, in addition to
being entitled to exercise all rights granted by law, including recovery of
damages, will be entitled to specific performance of its rights under this
Agreement. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions
of this Agreement and hereby agrees to waive the defense in any action for
specific performance that a remedy at law would be adequate.
(h) SEVERABILITY. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is 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 of
the remaining provisions contained herein shall not be in any way impaired
thereby, it being intended and understood that all of the rights and privileges
of each of the Holders shall be enforceable to the fullest extent permitted by
law.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first set forth above.
XXXXXX HEALTHCARE, INC.
By:___________________________
Name:_________________________
Title:________________________
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INVESTOR:
By:___________________________
Name:_________________________
Title:________________________
ADDRESS:
_________________________________
_________________________________
_________________________________
_________________________________
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