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EXHIBIT 10.5
REGISTRATION RIGHTS AGREEMENT
BY AND BETWEEN
EDUCATIONAL MEDICAL, INC.
AND
THE XXXXXXX X. XXXXXXXX REVOCABLE TRUST OF 1997
AND
XXXXXXX X. XXXXXXXX
DATED AS OF MARCH 13, 1998
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TABLE OF CONTENTS
PAGE
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1. Certain Definitions............................................................................................1
a. "Commission".............................................................................................1
b. "Exchange Act"...........................................................................................1
c. "Holders" or.............................................................................................1
d. "Holders' Shares"........................................................................................1
e. "Person".................................................................................................1
f. "Registrable Securities".................................................................................1
g. "Securities Act".........................................................................................2
2. Registration Rights............................................................................................2
3. Registration Procedures........................................................................................3
4. Registration Expenses..........................................................................................6
5. No Required Sale...............................................................................................7
6. Indemnification................................................................................................7
7. General.......................................................................................................10
8. Miscellaneous.................................................................................................12
9. No Inconsistent Agreements....................................................................................13
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REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of March __, 1998 (the
"Agreement"), by and between Educational Medical, Inc., a Delaware corporation
(the "Company"), and The Xxxxxxx X. Xxxxxxxx, a revocable trust organized under
the laws of the State of New Hampshire, and Xxxxxxx X. Xxxxxxxx, an individual
residing within the State of New Hampshire, (collectively, the "Holders").
The Company, New Hampshire Acquisition Corp., a Delaware corporation
(the "Buyer") and the Holders, have entered into a Stock Purchase Agreement
dated March 13, 1998 (the "Stock Purchase Agreement") pursuant to which the
Buyer shall purchase all of the issued and outstanding shares of Common Stock of
Xxxxxx, Inc., and certain Real Estate owned by Hardwood Properties Limited
Partnership, in consideration for the Purchase Price as more particularly set
forth in the Agreement, including, without limitation, a certain number of
shares of the Company's Common Stock (the "Holders' Shares").
The parties hereto desire to provide certain registration rights with
respect to the Holders' Shares.
Accordingly, the parties hereto agree as follows:
1. Certain Definitions. As used in this Agreement, the following
terms shall have the meanings ascribed to them below:
a. "Commission": the Securities and Exchange Commission.
b. "Exchange Act": the Securities Exchange Act of 1934, as
amended.
c. "Holders": As defined in the recitals above.
d. "Holders' Shares": As defined in the recitals above.
e. "Person": any natural person, corporation, partnership,
firm, association, trust, government, governmental agency or other entity,
whether acting in an individual, fiduciary or other capacity.
f. "Registrable Securities": the Holders' Shares (and any
shares issued upon any subdivision, combination or reclassification of such
shares or any stock dividend in respect of any of the foregoing shares). As to
any particular Registrable Securities, such securities shall cease to be
Registrable Securities when (i) a registration statement with respect to the
sale of such securities shall have been declared effective under the Securities
Act and such securities shall have been disposed of in accordance with such
registration statement, or (ii) such securities shall have been sold or become
salable (other than in a privately negotiated sale) pursuant
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to Rule 144 (or any successor provision) under the Securities Act and in
compliance with the requirements of paragraphs (c), (e), (f) and (g) of Rule 144
(notwithstanding the provisions of paragraph (k) of such Rule).
g. "Securities Act": the Securities Act of 1933, as
amended.
2. Registration Rights.
a. Within sixty (60) days following the consummation of the
transaction contemplated by the Stock Purchase Agreement, the Company shall file
a registration statement under the Securities Act covering all of the
Registrable Securities and use its best efforts to (x) effect such registration
under the Securities Act (including, without limitation, by means of a shelf
registration pursuant to Rule 415 under the Securities Act if the Company is
then eligible to use such a registration) of the Registrable Securities, and (y)
if requested by the Holders, obtain acceleration of the effective date of the
registration statement relating to such registration.
b. If (i) the Board of Directors of the Company, in its good
faith judgment, determines that any registration of Registrable Securities
should not be made or continued because it would materially interfere with any
material financing, acquisition, corporate reorganization or merger or other
transaction involving the Company or any of its subsidiaries (a "Valid Business
Reason"), and (ii) the Valid Business Reason has not resulted from actions taken
by the Company, the Company may cause such registration statement to be
withdrawn and its effectiveness terminated or may postpone amending or
supplementing such registration statement; and the Company shall give written
notice of its determination to postpone or withdraw a registration statement and
of the fact that the Valid Business Reason for such postponement or withdrawal
no longer exists, in each case, promptly after the occurrence thereof.
If the Company shall give any notice of postponement or withdrawal of
any registration statement, the Company shall not, during the period of
postponement or withdrawal, register any Common Stock, other than pursuant to a
registration statement on Form S-4 or S-8 (or an equivalent registration form
then in effect). Each Holders of Registrable Securities agrees that, upon
receipt of any notice from the Company that the Company has determined to
withdraw any registration statement pursuant to clause 2b. above, such Holders
will discontinue its disposition of Registrable Securities pursuant to such
registration statement and, if so directed by the Company, will deliver to the
Company (at the Company's expense) all copies, other than permanent file copies,
then in such Holders' possession of the prospectus covering such Registrable
Securities that was in effect at the time of receipt of such notice. If the
Company shall have withdrawn or prematurely terminated a registration statement
filed under Section 2.a, (whether pursuant to clause 2b. above or as a result of
any stop order, injunction or other order or requirement of the Commission or
any other governmental agency or court), the Company shall not be considered to
have effected an effective registration for the purposes of this Agreement until
the Company shall have filed a new registration
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statement covering the Registrable Securities covered by the withdrawn
registration statement and such registration statement shall have been declared
effective and shall not have been withdrawn. If the Company shall give any
notice of withdrawal or postponement of a registration statement, the Company
shall, at such time as the Valid Business Reason that caused such withdrawal or
postponement no longer exists (but in no event later than two months alter the
date of the postponement), use its best efforts to effect the registration under
the Securities Act of the Registrable Securities covered by the withdrawn or
postponed registration statement in accordance with this Section (unless the
Holders shall have consented otherwise).
c. The Company, may elect to include in any registration statement
and offering made pursuant to Section 1(a), authorized but unissued shares of
Common Stock or shares of Common Stock held by the Company as treasury shares or
any other shares of Common Stock as to which it has granted registration rights.
3. Registration Procedures. With respect to the Company's obligation
provided for in Section of this Agreement, the Company shall, as expeditiously
as possible but no later than sixty (60) days from the date first above written:
a. prepare and file with the Commission a registration statement
on an appropriate registration form of the Commission for the disposition of
such Registrable Securities in accordance with the intended method of
disposition thereof, and such registration statement shall comply as to form in
all material respects with the requirements of the applicable form and include
all financial statements required by the Commission to be filed therewith, and
the Company shall use its best efforts to cause such registration statement to
become and remain effective.
b. prepare and file with the Commission such 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
such period as any seller of Registrable Securities pursuant to such
registration statement shall request and to comply with the provisions of the
Securities Act with respect to the sale or other disposition of all Registrable
Securities covered by such registration statement;
c. furnish, without charge, to each seller of such Registrable
Securities and each underwriter, if any, of the securities covered by such
registration statement such number of copies of such registration statement,
each amendment and supplement thereto (in each case including all exhibits), and
the prospectus included in such registration statement (including each
preliminary prospectus) in conformity with the requirements of the Securities
Act, and other documents, as such seller and underwriter may reasonably request
in order to facilitate the public sale or other disposition of the Registrable
Securities owned by such seller (the Company hereby consenting to the use in
accordance with all applicable law of each such registration statement (or
amendment or post-effective amendment thereto) and each such prospectus (or
preliminary prospectus or supplement thereto) by each such seller of
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Registrable Securities and the underwriters, if any, in connection with the
offering and sale of the Registrable Securities covered by such registration
statement or prospectus);
d. use its best efforts to register or qualify the
Registrable Securities covered by such registration statement under such other
securities or "blue sky" laws of such jurisdictions as any sellers of
Registrable Securities shall reasonably request, and do any and all other acts
and things which may be reasonably necessary or advisable to enable such sellers
or underwriter, if any, to consummate the disposition of the Registrable
Securities in such jurisdictions, except that in no event shall the Company be
required to qualify to do business as a foreign corporation in any jurisdiction
where it would not, but for the requirements of this clause d, be required to be
so qualified, to subject itself to taxation in any such jurisdiction or to
consent to general service of process in any such jurisdiction;
e. promptly notify each Holders selling Registrable
Securities covered by such registration statement: (i) when the registration
statement, any pre-effective amendment, the prospectus or any prospectus
supplement related thereto or post-effective amendment to the registration
statement has been filed and, 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 state securities authority for amendments or
supplements to the registration statement or the prospectus related thereto or
for additional information; (iii) of the issuance by the Commission of any stop
order suspending the effectiveness of the registration statement 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
of any Registrable Securities for sale under the securities or blue sky laws of
any jurisdiction or the initiation of any proceeding for such purpose; (v) of
the existence of any fact of which the Company becomes aware which results in
the registration statement, the prospectus related thereto or any document
incorporated therein by reference containing an untrue statement of a material
fact or omitting to state a material fact required to be stated therein or
necessary to make any statement therein not misleading; and (vi) if at any time
the representations and warranties contemplated below cease to be true and
correct in all material respects; and, if the notification relates to an event
described in clause (v), the Company shall promptly prepare and furnish to each
such seller and each underwriter, if any, a reasonable number of copies of a
prospectus supplemented or amended so that, as thereafter delivered to the
purchasers of such Registrable 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;
f. comply with all applicable rules and regulations of the
Commission
g. cause all such Registrable Securities covered by such
registration statement to be listed on the principal securities exchange on
which similar securities
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issued by the Company are then listed (if any) and, without limiting the
generality of the foregoing, take all actions that may be required by the
Company as the issuer of such Registrable Securities in order to facilitate the
registration of at least two market makers as such with respect to such shares
with the National Association of Securities Dealers, Inc. (the "NASD");
h. provide and cause to be maintained a transfer agent and
registrar for all such Registrable Securities covered by such registration
statement not later than the effective date of such registration statement;
i. deliver promptly to each Holders copies of all
correspondence between the Commission and the Company, its counsel or auditors
and all memoranda relating to discussions with the Commission or its staff with
respect to the registration statement, other than those portions of any such
correspondence and memoranda which contain information subject to
attorney-client privilege with respect to the Company, and, upon receipt of such
confidentiality agreements as the Company may reasonably request, make
reasonably available for inspection by any seller of such Registrable Securities
covered by such registration statement, and by any attorney, accountant or other
agent retained by any such Holders all pertinent financial and other records,
pertinent corporate documents and properties of the Company, and cause all of
the Company's officers, directors and employees to supply all information
reasonably requested by any such seller, attorney, accountant or agent in
connection with such registration statement;
j. use its best efforts to obtain the withdrawal of any
order suspending the effectiveness of the registration statement;
k. provide a CUSIP number for all Registrable Securities,
not later than the effective date of the registration statement; and
l. take all such other commercially reasonable actions as
are necessary or advisable in order to expedite or facilitate the disposition of
such Registrable Securities.
The Company may require as a condition precedent to the Company's
obligations under this Agreement that each seller of Registrable Securities as
to which any registration is being effected furnish the Company such information
regarding such seller and the distribution of such securities as the Company may
from time to time reasonably request provided that such information shall be
used only in connection with such registration.
The Holders agrees that upon receipt of any notice from the Company of
the happening of any event of the kind described in clause (v) of paragraph (e)
of this Section 3 the Holders will discontinue his disposition of Registrable
Securities pursuant to the registration statement covering such Registrable
Securities until Holders' receipt of the copies of the supplemented or amended
prospectus contemplated by paragraph
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(e) of this Section 3 and, if so directed by the Company, will deliver to the
Company (at the Company's expense) all copies, other than permanent file copies,
then in Holders' possession of the prospectus covering such Registrable
Securities that was in effect at the time of receipt of such notice. In the
event the Company shall give any such notice, the applicable period mentioned in
paragraph (b) of this Section 3 shall be extended by the number of days during
such period from and including the date of the giving of such notice to and
including the date when each seller of any Registrable Securities covered by
such registration statement shall have received the copies of the supplemented
or amended prospectus contemplated by paragraph (e) of this Section 3
If any such registration statement or comparable statement under "blue
sky" laws refers to Holders by name or otherwise as the Holders of any
securities of the Company, then Holders shall have the right to require (i) the
insertion therein of language, in form and substance satisfactory to Holders and
the Company, to the effect that the holding by Holders of such securities is not
to be construed as a recommendation by Holders of the investment quality of the
Company's securities covered thereby and that such holding does not imply that
Holders will assist in meeting any future financial requirements of the Company,
or (ii) in the event that such reference to Holders by name or otherwise is not
in the judgment of the Company, as advised by counsel, required by the
Securities Act or any similar federal statute or any state "blue sky" or
securities law then in force, the deletion of the reference to Holders.
4. Registration Expenses.
a. "Expenses" shall mean any and all fees and expenses incident
to the Company's performance of or compliance with Section 3, including, without
limitation: (i) Commission, stock exchange or NASD registration and filing fees
and all listing fees and fees with respect to the inclusion of securities in
NASDAQ, (ii) fees and expenses of compliance with state securities or "blue sky"
laws and in connection with the preparation of a "blue sky" survey, including,
without limitation, reasonable fees and expenses of blue sky counsel, (iii)
printing expenses, (iv) messenger and delivery expenses, and (v) fees and
disbursements of counsel for the Company. All such Expenses shall be borne by
the Company.
b. Notwithstanding the foregoing, (x) the provisions of this
Section 4 shall be deemed amended to the extent necessary to cause these expense
provisions to comply with "blue sky" laws of each state in which the offering is
made and (y) the Company shall be responsible for all its internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties).
5. No Required Sale. Nothing in this Agreement shall be deemed to
create an independent obligation on the part of the Holders to sell any
Registrable Securities pursuant to any effective registration statement.
6. Indemnification.
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a. In the event of any registration of the Registrable Securities
of the Company under the Securities Act pursuant to this Agreement, the Company
will, and hereby does, indemnify and hold harmless, to the fullest extent
permitted by law, the seller of any Registrable Securities covered by such
registration statement, its directors, officers, fiduciaries, employees and
stockholders or general and limited partners (and the directors, officers,
employees and stockholders thereof, each other individual, partnership, joint
venture, corporation, trust, unincorporated organization or government or any
department or agency thereof (each, a "Person") who participates as an
underwriter, if any, in the offering or sale of such securities, each officer,
director, employee, stockholders or partner of such underwriter, and each other
Person, if any, who controls such seller or any such underwriter within the
meaning of the Securities Act, against any and all losses, claims, damages or
liabilities, joint or several, actions or proceedings (whether commenced or
threatened) in respect thereof ("Claims") and expenses (including reasonable
fees of counsel and any amounts paid in any settlement effected with the
Company's consent, which consent shall not be unreasonably withheld or delayed)
to which each such indemnified party may become subject under the Securities Act
or otherwise, insofar as such Claims or expenses arise out of or are based upon
(i) any untrue statement or alleged untrue statement of a material fact
contained in any registration statement under which such securities were
registered under the Securities Act or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, (ii) any untrue statement or alleged untrue
statement of a material fact contained in any preliminary, final or summary
prospectus or any amendment or supplement thereto, together with the documents
incorporated by reference therein, or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, or (iii) any violation by the Company of any federal,
state or common law rule or regulation applicable to the Company and relating to
action required of or inaction by the Company in connection with any such
registration, and the Company will reimburse any such indemnified party for any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such Claim as such expenses are
incurred; provided, that the Company shall not be liable to any such indemnified
party in any such case to the extent such Claim or expense arises out of or is
based upon any untrue statement or alleged untrue statement of a material fact
or omission or alleged omission of a material fact made in such registration
statement or amendment thereof or supplement thereto or in any such prospectus
or any preliminary, final or summary prospectus in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
such indemnified party specifically for use therein. Such indemnity and
reimbursement of expenses shall remain in full force and effect regardless of
any investigation made by or on behalf of such indemnified party and shall
survive the transfer of such securities by such seller.
b. Each Holders of Registrable Securities that are included in the
securities as to which any registration is being effected shall, severally and
not jointly, indemnify
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and hold harmless (in the same manner and to the same extent as set forth in
paragraph (a) of this Section to the extent permitted by law the Company, its
officers and directors, each Person controlling the Company within the meaning
of the Securities Act. and all other prospective sellers and their directors,
officers, general and limited partners and respective controlling Persons with
respect to any untrue statement or alleged untrue statement of any material fact
in, or omission or alleged omission of any material fact from, such registration
statement, any preliminary, final or summary prospectus contained therein, or
any amendment or supplement thereto, if such statement or alleged statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company or its representatives by or on
behalf of such Holders or underwriter, if any, specifically for use therein and
reimburse such indemnified party for any legal or other expenses reasonably
incurred in connection with investigating or defending any such Claim as such
expenses are incurred, provided, however, that the aggregate amount which any
such Holders shall be required to pay pursuant to this Agreement shall in no
case be greater than the amount of the net proceeds received by such person upon
the sale of the Registrable Securities pursuant to the registration statement
giving rise to such claim. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of such indemnified party
and shall survive the transfer of such securities by such Holders.
c. Indemnification similar to that specified in the preceding
paragraphs (a) and (b) (with appropriate modifications) shall be given by the
Company and each seller of Registrable Securities with respect to any required
registration or other qualification of securities under any state securities and
"blue sky" laws.
d. Any person entitled to indemnification under this Agreement shall
notify promptly the indemnifying party in writing of the commencement of any
action or proceeding with respect to which a claim for indemnification may be
made pursuant to this Section but the failure of any indemnified party to
provide such notice shall not relieve the indemnifying party of its obligations
under the preceding paragraphs of this Section except to the extent the
indemnifying party is materially prejudiced thereby and shall not relieve the
indemnifying party from any liability which it may have to any indemnified party
otherwise than under this Section. In case any action or proceeding is brought
against an indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, unless in the reasonable opinion of outside counsel to the
indemnified party a conflict of interest between such indemnified and
indemnifying parties may exist in respect of such claim, to assume the defense
there of jointly with any other indemnifying party similarly notified, to the
extent that it chooses, with counsel reasonably satisfactory to such indemnified
party (who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and after notice from the indemnifying party
to such indemnified party that it so chooses, the indemnifying party shall not
be liable to such indemnified party for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense thereof other
than reasonable costs of investigation; provided, however, that (i)
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if the indemnifying party fails to take reasonable steps necessary to defend
diligently the action or proceeding within 20 days after receiving notice from
such indemnified party that the indemnified party believes it has failed to do
so; or (ii) if such indemnified party who is a defendant in any action or
proceeding which is also brought against the indemnifying party reasonably shall
have concluded that there may be one or more legal defenses available to such
indemnified party which are not available to the indemnifying party; or (iii) if
representation of both parties by the same counsel is otherwise inappropriate
under applicable standards of professional conduct, then, in any such case, the
indemnified party shall have the right to assume or continue its own defense as
set forth above (but with no more than one firm of counsel for all indemnified
parties in each jurisdiction, except to the extent any indemnified party or
parties reasonably shall have concluded that there may be legal defenses
available to such party or parties which are not available to the other
indemnified parties or to the extent representation of all indemnified parties
by the same counsel is otherwise inappropriate under applicable standards of
professional conduct) and the indemnifying party shall be liable for any
expenses therefor. No indemnifying party shall, without the written consent of
the indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (A) includes an
unconditional release of the indemnified party from all liability arising out of
such action or claim and (B) does not include a statement as to or an admission
of fault, culpability or a failure to act, by or on behalf of any indemnified
party.
e. If for any reason the previous sections is unavailable or is
insufficient to hold harmless an indemnified party under the previous Sections
then each indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of any Claim in such proportion as is
appropriate to reflect the relative fault of the indemnifying party, on the one
hand, and the indemnified party, on the other hand, with respect to such
offering of securities. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the indemnifying party or the indemnified party and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. If, however, the
allocation provided in the second preceding sentence is not permitted by
applicable law, then each indemnifying party shall contribute to the amount paid
or payable by such indemnified party in such proportion as is appropriate to
reflect not only such relative faults but also the relative benefits of the
indemnifying party and the indemnified party as well as any other relevant
equitable considerations. The parties hereto agree that it would not be just and
equitable if contributions pursuant to this Section were to be determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the preceding sentences of this
Section. The amount paid or payable in respect of any Claim shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with
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investigating or defending any such Claim. 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. Notwithstanding anything in this Section to the
contrary, no indemnifying party (other than the Company) shall be required
pursuant to this Section to contribute any amount in excess of the net proceeds
received by such indemnifying party from the sale of Registrable Securities in
the offering to which the losses, claims, damages or liabilities of the
indemnified parties relate, less the amount of any indemnification payment made
pursuant to this Sections.
f. The indemnity agreements contained herein shall be in
addition to any other rights to indemnification or contribution which any
indemnified party may have pursuant to law or contract and shall remain
operative and in full force and effect regardless of any investigation made or
omitted by or on behalf of any indemnified party and shall survive the transfer
of the Registrable Securities by any such party.
g. The indemnification and contribution required by this
Section shall be made by periodic payments of the amount thereof during the
course of the investigation or defense, as and when bills are received or
expense, loss, damage or liability is incurred.
7. General.
a. Adjustments Affecting Registrable Securities. The Company
agrees that it shall not effect or permit to occur any combination or
subdivision of shares which would adversely affect the ability of the Holders of
any Registrable Securities to include such Registrable Securities in any
registration contemplated by this Agreement or the marketability of such
Registrable Securities in any such registration.
b. Rule 144. The Company represents that the Holders will be
able to sell the Registrable Securities under the applicable provisions of Rule
144 of the Securities Act, as currently in effect, subsequent to April 15, 1999,
subject to applicable volume limitations. The Company covenants that it will
timely file the reports required to be filed by it under the Securities Act or
the Exchange Act (including, but not limited to, the reports under Sections 13
and 15(d) of the Exchange Act referred to in subparagraph (c)(1) of Rule 144
under the Securities Act), and will take such further action as any Holders of
Registrable Securities may reasonably request, all to the extent required from
time to time to enable such Holders to sell Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by (i) Rule 144 under the Securities Act, as such Rule may be amended
from time to time, or (ii) any similar rule or regulation hereafter adopted by
the Commission. Upon the request of any Holders of Registrable Securities, the
Company will deliver to such Holders a written statement as to whether it has
complied with such requirements.
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c. Nominees for Beneficial Owners. If Registrable Securities
are held by a nominee for the beneficial owner thereof, the beneficial owner
thereof may, at its option, be treated as the Holders of such Registrable
Securities for purposes of any request or other action by the Holders of
Registrable Securities pursuant to this Agreement (or any determination of any
number or percentage of shares constituting Registrable Securities held by the
Holders of Registrable Securities contemplated by this Agreement); provided that
the Company shall have received assurances reasonably satisfactory to it of such
beneficial ownership.
d. Amendments and Waivers. This Agreement may be amended,
modified, supplemented or waived only upon the written agreement of the party
against whom enforcement of such amendment, modification, supplement or waiver
is sought.
e. Notices. Except as otherwise provided in this Agreement,
notices and other communications under this Agreement shall be in writing and
delivered personally, by telecopy (with confirmation sent within three business
days by overnight courier) or by overnight courier, addressed to such party at
the address set forth below:
If to EMI: Educational Medical, Inc.
0000 Xxxxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, XX, 00000
Attn: President
With a copy to: Xxxxxxxxx Xxxxxxx
000 Xxxxx Xxxxxxx Xxxxx
Xxxxx 000 - Xxxx
Xxxx Xxxx Xxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx, Esq.
If to Holders: The Xxxxxxx X. Xxxxxxxx Revocable
Trust of 1997
Attention: Xxxxxxx X. Xxxxxxxx
c/o Hesser College
0 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
With a copy to: Xxxxxxx X. Xxxxxx, Esq.
000 Xxxxx Xxxx
X.X. Xxx 0000
Xxxxxxxxxx, XX 00000-0000
Xxxxxxx X. Xxxxxxxx
c/o Hesser College
0 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
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With a copy to: Xxxxxxx X. Xxxxxx, Esq. Lawfirm
000 Xxxxx Xxxx
X.X. Xxx 0000
Xxxxxxxxxx, XX 00000-0000
The Holders, by written notice given to the Company in
accordance with this Section 4.5 may change the address to which such notice or
other communications is to be sent to Holders. All such notices and
communications shall be deemed to have been received on the date of delivery
thereof if delivered by hand, on the fifth day after the mailing thereof, if
mailed, on the next day after the sending thereof if by overnight courier, when
answered back if telexed and when receipt is acknowledged, if telecopied.
8. Miscellaneous.
a. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and the respective
successors and assigns of the parties hereto, whether so expressed or not. No
Person other than the Holders shall be entitled to any benefits under this
Agreement, except as otherwise expressly provided herein. This Agreement and the
rights of the parties hereunder may be assigned by any of the parties hereto to
any transferee of Registrable Securities.
b. This Agreement (with the documents referred to herein or
delivered pursuant hereto) embodies the entire agreement and understanding
between the parties hereto and supersedes all prior agreements and
understandings relating to the subject matter hereof.
c. This Agreement shall be construed and enforced in
accordance with and governed by the laws of the State of Delaware without giving
effect to the conflicts of law principles thereof.
d. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof. All
section references are to this Agreement unless otherwise expressly provided.
e. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
f. Any term or provision of this Agreement which is invalid
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction.
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g. It is hereby agreed and acknowledged that it will be
impossible to measure in money the damages that would be suffered if the parties
fail to comply with any of the obligations herein imposed on them and that in
the event of any such failure, an aggrieved person will be irreparably damaged
and will not have an adequate remedy at law. Any such person shall, therefore,
be entitled to injunctive relief including specific performance, to enforce such
obligations, without the posting of any bond and if any action should be brought
in equity to enforce any of the provisions of this Agreement, none of the
parties hereto shall raise the defense that there is an adequate remedy at law.
h. Each party hereto shall do and perform or cause to be
done and performed all such further acts and things and shall execute and
deliver all such other agreements, certificates, instruments, and documents as
any other party hereto reasonably may request in order to carry out the intent
and accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
9. No Inconsistent Agreements. Without the prior written consent
of each of the parties to this Agreement, neither the Company nor the Holders
will, on or after the date of this Agreement, enter into any agreement with
respect to its securities which is inconsistent with the rights granted in this
Agreement or otherwise conflicts with the provisions hereof.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date set forth above.
EDUCATIONAL MEDICAL, INC.
By:
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Authorized Signatory
THE XXXXXXX X. XXXXXXXX REVOCABLE
TRUST OF 1997
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By: Xxxxxxx X. Xxxxxxxx, Trustee
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XXXXXXX X. XXXXXXXX
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