EXECUTION COPY
REGISTRATION RIGHTS
AGREEMENT dated as of August 1, 1997,
among BONE, MUSCLE AND JOINT, INC., a
Delaware corporation (the "Company"),
and COMDISCO, INC., a Delaware
corporation ("Comdisco") and XXXXXXX
CORPORATE SERVICES, INC. a Texas
corporation (collectively with Comdisco
and together with any successors, or
permitted assigns or transferees, the
"Holders").
The Holders own or have the right to purchase or otherwise
acquire shares of the Common Stock, $.001 par value (the "Common Stock"), of the
Company. The Company and the Holders deem it to be in their respective best
interests to set forth the rights of the Holders in connection with public
offerings and sales of the Common Stock.
In consideration of the premises and mutual covenants and
obligations hereinafter set forth, the parties hereto hereby agree as follows:
SECTION 1. Definitions. As used in this Agreement, the following terms
shall have the following meanings:
"Comdisco Warrant Agreements" shall mean, collectively, (i)
that certain Warrant Agreement, dated as of the date hereof, pursuant to which
the Company granted to Comdisco warrants to purchase 125,000 shares of the
Company's Series E Convertible Preferred Stock and (ii) that certain Warrant
Agreement, dated as of the date hereof, pursuant to which the Company granted to
Comdisco warrants to purchase 5,000 shares of the Company's Series E Convertible
Preferred Stock.
"Commission" shall mean the Securities and Exchange Commission
or any other Federal agency at the time administering the Securities Act.
"Exchange Act" shall mean the Securities Exchange Act of 1934
or any successor Federal statute, and the rules and regulations of the
Commission promulgated thereunder, all as the same shall be in effect from time
to time.
"Xxxxxxx Warrant Agreement" shall mean that certain Warrant
Agreement, dated as of August 22, 1997, pursuant to which
the Company granted to Comdisco warrants to purchase 37,500 shares of the
Company's Series E Convertible Preferred Stock.
"Holders" shall have the meaning set forth in the caption
hereof and shall include the Holders that agree in writing to be treated as
Holders pursuant to this Agreement and to be bound by the terms and comply with
all applicable provisions hereof.
"Other Shares" shall mean at any time those shares of Common
Stock that do not constitute Primary Shares or Registrable Shares.
"Primary Shares" shall mean at any time the authorized but
unissued shares of Common Stock or shares of Common Stock held by the Company in
its treasury.
"Registrable Shares" shall mean the shares of Common Stock
held by the Holders that constitute Restricted Shares.
"Registration Date" shall mean the date upon which the
registration statement pursuant to which the Company shall have initially
registered shares of Common Stock under the Securities Act for sale to the
public shall have been declared effective.
"Restricted Shares" shall mean the shares of Common Stock or
any other securities which by their terms are exercisable or exchangeable for or
convertible into Common Stock and any securities received in respect thereof,
which are held by an Holders and which have not theretofore been sold to the
public pursuant to a registration statement under the Securities Act or pursuant
to Rule 144.
"Rule 144" shall mean Rule 144 promulgated under the
Securities Act or any successor rule thereto or any complementary rule thereto
(such as Rule 144A).
"Securities Act" shall mean the Securities Act of 1933, as
amended, or any successor Federal statute, and the rules and regulations of the
Commission promulgated thereunder, all as the same shall be in effect from time
to time.
"Senior Creditor" means a bank, insurance company, pension
fund, or other institutional lender to be determined, or a syndication of such
institutional lenders that provides Senior Debt financing to the Company;
provided that Senior Creditor shall not include any officer, director,
shareholder, venture capital investor, or insider of the Company, or any
affiliate of the foregoing persons, except upon the express written consent of
the Holders.
"Senior Debt" shall mean any and all indebtedness and
obligations for borrowed money (including, without limitation,
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principal, premium (if any) interest, fees, charges, expenses, costs,
professional fees and expenses, and reimbursement obligations) at any time owing
by the Company to a Senior Creditor under any Senior Loan Documents, including,
but not limited to such amounts as may accrue or be incurred before or after
default or workout or the commencement of any liquidation, dissolution,
bankruptcy, receivership or reorganization by or against the Company.
"Senior Loan Documents" shall mean the loan agreement between
the Company any a Senior Creditor any other agreement, security agreement,
documents promissory note, UCC financing statement, or instrument executed by
the Company in favor of a Senior Creditor pursuant to or in connection with the
Senior Debt or the loan agreement, as the same may from time to time be amended,
modified, supplemented, extended, renewed, restated or replaced.
"Senior Debt Shares" shall mean at any time those shares of
Common Stock held by any Senior Creditor that do not constitute Primary Shares
or Registrable Shares.
"Transfer" shall mean any disposition of any Restricted Shares
or of any interest therein that would constitute a sale thereof within the
meaning of the Securities Act other than any such disposition pursuant to an
effective registration statement under the Securities Act and complying with all
applicable state securities and "blue sky" laws.
"Venture Capitalists" means Xxxxxx Xxxxxx and those venture
capital firms that have acquired, prior to the date hereof, and may acquire, at
any time hereafter, securities of the Company and in connection with such
acquisition have obtained or may obtain registration rights.
"Venture Capital Shares" means the shares of Common Stock or
any other securities which by their terms are exercisable or exchangeable for or
convertible into Common Stock and any securities received in respect thereof,
which are held by a Venture Capitalist and which have not theretofore been sold
to the public pursuant to a registration statement under the Securities Act or
pursuant to Rule 144.
SECTION 2. Piggyback Registration. If, at any time during the period
beginning on the date hereof and ending on the earlier to occur of (a) August 1,
2007, and (b) five (5) years after the effective date of the initial public
offering of the Company's Common Stock, the Company proposes for any reason to
register Primary Shares or Other Shares under the Securities Act (other than on
Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms
thereto) (other than in connection with an initial public offering of the
Company's Common Stock), it shall promptly give written notice to all
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holders of outstanding Registrable Shares of its intention so to register the
Primary Shares, Senior Lender Shares or Other Shares and, upon the written
request, given within 30 days after delivery of any such notice by the Company,
of the holders of Registrable Shares to include in such registration Registrable
Shares held by such holders (which request shall specify the number of
Registrable Shares proposed to be included in such registration), the Company
shall use its best efforts to cause all such Registrable Shares to be included
in such registration on the same terms and conditions as the securities
otherwise being sold in such registration; provided, however, that if the
managing underwriter advises the Company that the inclusion of all such
Registrable Shares, Senior Lender Shares or Other Shares proposed to be included
in such registration would interfere with the successful marketing (including
pricing) of Primary Shares proposed to be registered by the Company, then the
number of Primary Shares, Registrable Shares and Other Shares proposed to be
included in such registration shall be included in the following order:
(i) first, the Primary Shares;
(ii) second, the Venture Capital Shares requested to be
included in such registration by the Venture
Capitalists (pro rata based on the number of
Venture Capital Shares held by all Venture
Capitalists requesting inclusion of Venture Capital
Shares in such registration);
(iii) third, the Senior Creditor Shares held by HCFP
Funding, Inc. ("HCFP") and requested by HCFP to be
included in such registration (pro rata based on
the number of Restricted Shares held by HCFP and
its permitted assignees requesting inclusion of
Registrable Shares in such registration); and
(iv) fourth, the Registrable Shares requested to be
included in such registration by the Holders (pro
rata based on the number of Restricted Shares held
by all Holders requesting inclusion of Registrable
Shares in such registration); and
(v) sixth, the Other Shares (other than already
included herein) in such proportion as shall be
determined by the Company.
SECTION 3. Condition to Registration Obligations. The Corporation shall
not be obligated to effect the registration of the Registrable Shares pursuant
to Section 2 unless each of the Holders electing to participate in such
registration executes a power of attorney, custody arrangement and other
documents customary in such transactions and reasonably required by the
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managing underwriter thereof prior to the filing of the registration statement.
SECTION 4. Holdback Agreement. If the Company at any time shall
register shares of Common Stock under the Securities Act (including any
registration pursuant to Section 2) for sale to the public, the Holders shall
not sell publicly, make any short sale of, grant any option for the purchase of,
or otherwise dispose publicly of, any Restricted Shares (other than those shares
of Common Stock included in such registration pursuant to Section 2) without the
prior written consent of the Company for a period designated by the Company in
writing to the holders of Registrable Shares, which period shall not begin more
than 10 days prior to the effectiveness of the registration statement pursuant
to which such public offering shall be made and shall not last more than 180
days after the effective date of such registration statement.
SECTION 5. Preparation and Filing. If and whenever the Company is under
an obligation pursuant to the provisions of this Agreement to use its best
efforts to effect the registration of any Registrable Shares, the Company shall,
as expeditiously as practicable:
(a) use its best efforts to cause a registration statement
that registers such Registrable Shares to become and remain effective
for a period of 90 days (or 12 months for registrations on Form S-3 or
successor form) or until all of such Registrable Shares have been
disposed of (if earlier);
(b) furnish, at least five business days before filing a
registration statement that registers such Registrable Shares, a
prospectus relating thereto or any amendments or supplements relating
to such a registration statement or prospectus, to one counsel selected
by the holders of a majority in interest of Registrable Shares (the
Holders' Counsel"), copies for review and comment during such five days
of all such documents proposed to be filed (it being understood that
such five-business-day period need not apply to successive drafts of
the same document proposed to be filed so long as such successive
drafts are supplied to the Holders' Counsel in advance of the proposed
filing by a period of time that is customary and reasonable under the
circumstances);
(c) 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 at least a period of 90 days (or 12 months for
registrations on Form S-3 or successor form) or until all of such
Registrable Shares have been disposed of (if earlier) and to
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comply with the provisions of the Securities Act with respect to the
sale or other disposition of such Registrable Shares and furnish copies
of all such amendments and supplements to Holders' Counsel;
(d) notify in writing the Holders' Counsel promptly (i) of the
receipt by the Company of any notification with respect to any comments
by the Commission relating to such registration statement or prospectus
or any amendment or supplement thereto or any request by the Commission
for the amendment or supplement thereof or for additional information
with respect thereto, (ii) of the receipt by the Company of any
notification with respect to the issuance by the Commission of any stop
order suspending the effectiveness of such registration statement or
prospectus or any amendment or supplement thereto or the initiation or
threatening of any proceeding for that purpose and (iii) of the receipt
by the Company of any notification with respect to the suspension of
the qualification of such Registrable Shares for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purposes and furnish copies of all such notices to Holders'
Counsel;
(e) use its best efforts to register or qualify such
Registrable Shares under such other securities or "blue sky" laws of
such jurisdictions as the Holders reasonably request and do any and all
other acts and things which may be reasonably necessary or advisable to
enable the holders of Registrable Shares to consummate the disposition
in such jurisdictions of such Registrable Shares; provided, however,
that the Company will not be required to qualify generally to do
business, subject itself to general taxation or consent to general
service of process in any jurisdiction where it would not otherwise be
required to do so but for this paragraph (e);
(f) furnish to the holders of Registrable Shares such number
of copies of a summary prospectus or other prospectus, including a
preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as the holders of Registrable
Shares may reasonably request in order to facilitate the public sale or
other disposition of such Registrable Shares;
(g) use its best efforts to cause such Registrable Shares to
be registered with or approved by such other governmental agencies or
authorities as may be necessary by virtue of the business and
operations of the Company to enable the holders of Registrable Shares
to consummate the disposition of such Registrable Shares;
(h) notify the holders of Registrable Shares on a timely basis
at any time when a prospectus relating to such
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Registrable Shares is required to be delivered under the Securities Act
within the appropriate period mentioned in subparagraph (a) of this
Section 5, of the happening of any event as a result of which the
prospectus included in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then
existing and, at the request of the holders of Registrable Shares,
prepare and furnish to the holders of Registrable Shares a reasonable
number of copies of a supplement to or amendment of such prospectus as
may be necessary so that, as thereafter delivered to the offerees of
such shares, such prospectus shall not include an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in
light of the circumstances then existing;
(i) make available for inspection by the holders of
Registrable Shares, any underwriter participating in any disposition
pursuant to such registration statement and any attorney, accountant or
other agent retained by the holders of Registrable Shares or any
underwriter (collectively, the "Inspectors"), all pertinent financial
and other records, pertinent corporate documents and properties of the
Company (collectively, the "Records"), as shall be reasonably necessary
to enable them to exercise their due diligence responsibility, and
cause the Company's officers, directors and employees to supply all
information (together with the Records, the "Information") reasonably
requested by any such holders of Registrable Shares in connection with
such registration statement. Any of the Information which the Company
determines in good faith to be confidential, and of which determination
the Inspectors are so notified, shall not be disclosed by the
Inspectors unless (i) the disclosure of such Information is necessary
to avoid or correct a misstatement or omission in the registration
statement, (ii) the release of such Information is ordered pursuant to
a subpoena or other order from a court of competent jurisdiction or
(iii) such Information has been made generally available to the public.
The holders of Registrable Shares agree that they will, upon learning
that disclosure of such Information is sought in a court of competent
jurisdiction, give notice to the Company and allow the Company, at the
Company's expense, to undertake appropriate action to prevent
disclosure of the Information deemed confidential;
(j) use its best efforts to obtain from its independent
certified public accountants "cold comfort" letters in customary form
and at customary times and
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covering matters of the type customarily covered by cold comfort
letters;
(k) use its best efforts to obtain from its counsel an opinion
or opinions in customary form;
(l) provide a transfer agent and registrar (which may be the
same entity and which may be the Company) for such Registrable Shares;
(m) issue to any underwriter to which the holders of
Registrable Shares may sell shares in such offering certificates
evidencing such Registrable Shares;
(n) list such Registrable Shares on any national securities
exchange on which any shares of the Common Stock are listed or, if the
Common Stock is not listed on a national securities exchange, use its
best efforts to qualify such Registrable Shares for inclusion on the
automated quotation system of the National Association of Securities
Dealers, Inc. (the "NASD"), or such other national securities exchange
as the holders of a majority of the Registrable Shares shall request;
(o) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission and make available
to its securityholders, as soon as reasonably practicable, earnings
statements (which need not be audited) covering a period of 12 months
beginning within three months after the effective date of the
registration statement, which earnings statements shall satisfy the
provisions of Section 11(a) of the Securities Act; and
(p) use its best efforts to take all other steps necessary to
effect the registration of such Registrable Shares contemplated hereby.
SECTION 6. Expenses. All expenses incurred by the Company in complying
with Section 5, including, without limitation, all registration and filing fees
(including all expenses incident to filing with the NASD), fees and expenses of
complying with securities and "blue sky" laws, printing expenses, and fees and
expenses of the Company's counsel, shall be paid by the Company; provided,
however, that all underwriting discounts and selling commissions applicable to
the Registrable Shares shall not be borne by the Company but shall be borne by
the holders of Registrable Shares in proportion to the number of Registrable
Shares sold by each of them.
SECTION 7. Indemnification. In connection with any registration of any
Registrable Shares under the Securities Act pursuant to this Agreement, the
Company shall indemnify and hold harmless the holders of Registrable Shares,
each underwriter,
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broker or any other person acting on behalf of the holders of Registrable Shares
and each other person, if any, who controls any of the foregoing persons within
the meaning of the Securities Act against any losses, claims, damages or
liabilities, joint or several (or actions in respect thereof), to which any of
the foregoing persons may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in the registration statement under which
such Registrable Shares were registered under the Securities Act, any
preliminary prospectus or final prospectus contained therein or otherwise filed
with the Commission, any amendment or supplement thereto or any document
incident to registration or qualification of any Registrable Shares, or arise
out of or are based upon 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 or, with respect to any prospectus, necessary to make the
statements therein in light of the circumstances under which they were made not
misleading, or any violation by the Company of the Securities Act or state
securities or "blue sky" laws applicable to the Company and relating to action
or inaction required of the Company in connection with such registration or
qualification under such state securities or blue sky laws; and shall reimburse
the holders of Registrable Shares, such underwriter, such broker or such other
person acting on behalf of the holders of Registrable Shares and each such
controlling person for any legal or other expenses reasonably incurred by any of
them in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company shall not be liable in
any such case to the extent that any such loss, claim, damage, liability or
action arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in said registration statement,
preliminary prospectus, final prospectus, amendment, supplement or document
incident to registration or qualification of any Registrable Shares in reliance
upon and in conformity with written information furnished to the Company through
an instrument duly executed by the holders of Registrable Shares or underwriter
specifically for use in the preparation thereof.
In connection with any registration of Registrable Shares
under the Securities Act pursuant to this Agreement, each holder of Registrable
Shares shall indemnify and hold harmless (in the same manner and to the same
extent as set forth in the preceding paragraph of this Section 7) the Company,
each director of the Company, each officer of the Company who shall sign such
registration statement, each underwriter, broker or other person acting on
behalf of the holders of Registrable Shares and each person who controls any of
the foregoing persons within the meaning of the Securities Act with respect to
any statement or omission from such registration statement, any preliminary
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prospectus or final prospectus contained therein or otherwise filed with the
Commission, any amendment or supplement thereto or any document incident to
registration or qualification of any Registrable Shares, if such statement or
omission was made in reliance upon and in conformity with written information
furnished to the Company or such underwriter through an instrument duly executed
by such holder of Registrable Shares specifically for use in connection with the
preparation of such registration statement, preliminary prospectus, final
prospectus, amendment, supplement or document; provided, however, that the
maximum amount of liability in respect of such indemnification shall be limited,
in the case of each seller of Registrable Shares, to an amount equal to the net
proceeds actually received by such seller from the sale of Registrable Shares
effected pursuant to such registration.
Promptly after receipt by an indemnified party of notice of
the commencement of any action involving a claim referred to in the preceding
paragraphs of this Section 7, such indemnified party will, if a claim in respect
thereof is made against an indemnifying party, give written notice to the latter
of the commencement of such action. In case any such action is brought against
an indemnified party, the indemnifying party will be entitled to participate in
and to assume the defense thereof, jointly with any other indemnifying party
similarly notified to the extent that it may wish, with counsel reasonably
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be responsible for any legal or other
expenses subsequently incurred by the indemnified party in connection with the
defense thereof; provided, however, that if any indemnified party shall have
reasonably concluded that there may be one or more legal or equitable defenses
available to such indemnified party which are additional to or conflict with
those available to the indemnifying party, or that such claim or litigation
involves or could have an effect upon matters beyond the scope of the indemnity
agreement provided in this Section 7, the indemnifying party shall not have the
right to assume the defense of such action on behalf of such indemnified party
and such indemnifying party shall reimburse such indemnified party and any
person controlling such indemnified party for that portion of the fees and
expenses of any counsel retained by the indemnified party which is reasonably
related to the matters covered by the indemnity agreement provided in this
Section 7.
If the indemnification provided for in this Section 7 is held
by a court of competent jurisdiction to be unavailable to an indemnified party
with respect to any loss, claim, damage, liability or action referred to herein,
then the indemnifying party, in lieu of indemnifying such indemnified party
hereunder, shall contribute to the amounts paid or payable by such indemnified
party as a result of such loss, claim, damage, liability or action 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, claim, damage,
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liability or action 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.
SECTION 8. Underwriting Agreement. Notwithstanding the provisions of
Sections 4, 5, 6, and 7, to the extent that the holders of Registrable Shares
shall enter into an underwriting or similar agreement, which agreement contains
provisions covering one or more issues addressed in such Sections, the
provisions contained in such Sections addressing such issue or issues shall be
of no force or effect with respect to such registration.
SECTION 9. Information by Holders. Each of the holders of Registrable
Shares proposing to sell the same pursuant to a registration to which this
Agreement relates shall furnish to the Company such written information
regarding the holders of Registrable Shares and the distribution proposed by
such holders of Registrable Shares 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 Agreement.
SECTION 10. Exchange Act Compliance. From the Registration Date or such
earlier date as a registration statement filed by the Company pursuant to the
Exchange Act relating to any class of the Company's securities shall have become
effective, the Company shall comply with all of the reporting requirements of
the Exchange Act (whether or not it shall be required to do so) and shall comply
with all other public information reporting requirements of the Commission which
are conditions to the availability of Rule 144 for the sale of the Common Stock.
The Company shall cooperate with the holders of Registrable Shares in supplying
such information as may be necessary for such holders to complete and file any
information reporting forms presently or hereafter required by the Commission as
a condition to the availability of Rule 144.
SECTION 11. No Conflict of Rights. The Company represents and warrants
to the holders of Registrable Shares that the registration rights granted to the
holders of Registrable Shares hereby do not conflict with any other registration
rights granted by the Company. The Company shall not, after the date hereof,
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grant any registration rights which conflict with or impair the registration
rights granted hereby.
SECTION 12. Termination. This Agreement shall terminate and be of no
further force or effect when there shall not be any Restricted Shares.
SECTION 13. Successors and Assigns. This Agreement shall bind and inure
to the benefit of the Company and the holders of Registrable Shares and, subject
to Section 14, the respective successors and assigns of the Company and holders
of Registrable Shares.
SECTION 14. Assignment. Each holder of Registrable Shares may assign
its rights hereunder to any purchaser or transferee acquiring all of such
holder's Restricted Shares; provided, however, that such purchaser or transferee
shall, as a condition to the effectiveness of such assignment, be required to
execute a counterpart to this Agreement agreeing to be treated as the seller or
transferor hereunder whereupon such purchaser or transferee shall have the
benefits of, and shall be subject to the restrictions contained in, this
Agreement.
SECTION 15. Entire Agreement. This Agreement, the Comdisco Warrant
Agreements, the Xxxxxxx Warrant Agreement, and the other writings referred to
therein or delivered pursuant thereto, contain the entire agreement among the
parties with respect to the subject matter hereof and supersede all prior and
contemporaneous arrangements or understandings with respect thereto.
SECTION 16. Notices. All notices, requests, consents and other
communications hereunder to any party shall be deemed to be sufficient if
contained in a written instrument delivered in person or sent by telecopy,
nationally-recognized overnight courier or first class registered or certified
mail, return receipt requested, postage prepaid, addressed to such party at the
address set forth below or such other address as may hereafter be designated in
writing by such party to the other parties:
(a) if to the Company, to:
Bone, Muscle and Joint, Inc.
0000 X. Xxxxxxx Xxxxxxx
Xxxxx 000X
Xxxx Xxxxx, Xxxxxxx 00000
Attention: President
Telecopier: (000) 000-0000;
with a copy to:
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X'Xxxxxxxx Graev & Karabell, LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxx, Esq.;
Telecopier: (000) 000-0000; and
(b) if to any Holders, to the address of such Holders set
forth on Schedule I hereto.
All such notices, requests, consents and other communications shall be deemed to
have been delivered and received (a) in the case of personal delivery or
delivery by telecopier, on the date of such delivery, (b) in the case of
dispatch by nationally-recognized overnight courier, on the next business day
following such dispatch and (c) in the case of mailing, on the third business
day after the posting thereof.
SECTION 17. Modifications; Amendments; Waivers. The terms and
provisions of this Agreement may not be modified or amended, nor may any
provision be waived, except pursuant to a writing signed by the Company and the
Holders; provided, however, that the Company may amend Schedule I hereto to
reflect any changes to the Holders and the Registrable Shares owned by each such
Holder.
SECTION 18. Counterparts. This Agreement may be executed in any number
of counterparts, and each such counterpart hereof shall be deemed to be an
original instrument, but all such counterparts together shall constitute but one
agreement.
SECTION 19. Headings. The headings of the various sections of this
Agreement have been inserted for convenience of reference only and shall not be
deemed to be a part of this Agreement.
SECTION 20. Governing Law. This Agreement shall be governed by and
construed in accordance with the domestic laws of the State of New York without
giving effect to any choice or conflict of law provision or rule (whether in the
State of New York or any other jurisdiction) that would cause the application of
the laws of any jurisdiction other than the State of New York.
* * * *
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IN WITNESS WHEREOF, the parties hereto have executed this
Registration Rights Agreement as of the date first written above.
BONE, MUSCLE AND JOINT, INC.
By:_______________________________
Name:
Title:
COMDISCO, INC.
By:_______________________________
Name:
Title:
XXXXXXX CORPORATE SERVICES, INC.
By:_______________________________
Name:
Title:
SCHEDULE I
Holders
Comdisco, Inc.
0000 Xxxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxx, Venture Group
Telecopier: (000) 000-0000
with a copy to:
Comdisco, Inc.
0000 Xxxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Telecopier: (000) 000-0000
Galtney Corporate Services, Inc.
000 Xxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
Attention: Xxxxx Xxxxxxx
Telecopier: (000) 000-0000
