EXHIBIT 10.5
REGISTRATION RIGHTS AGREEMENT
BY AND AMONG
ALLIED HEALTHCARE INTERNATIONAL INC.
AND
THE HOLDERS NAMED HEREIN
DATED AS OF JULY 25, 2002
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is entered into as of
July 25, 2002, by and among Allied Healthcare International Inc. (f/k/a
Transworld Healthcare, Inc.), a New York corporation ("TWUS"), the holders of
ordinary shares of Transworld Healthcare (UK) Limited, a company incorporated in
England and Wales with registered number 3370146 ("TWUK"), named in Exhibit A
attached hereto (the "Ordinary Shareholders," and each individually, an
"Ordinary Shareholder"), Triumph Partners III, L.P. and Triumph III Investors,
L.P. (together "Triumph"), the holders of redeemable shares of TWUK named in
Exhibit B attached hereto (the "Redeemable Shareholders," and, each
individually, a "Redeemable Shareholder"), the holders of equity warrants of
TWUK named in Exhibit C attached hereto (the "Equity Warrant Holders," and each
individually, an "Equity Warrant Holder"), the holders of mezzanine warrants of
TWUK named in Exhibit D attached hereto (the "Mezzanine Warrant Holders," and
each individually, a "Mezzanine Warrant Holder"), Hyperion Partners II L.P.,
Hyperion TW Fund L.P., Hyperion TWH Fund LLC, and Hyperion TWH Fund II LLC
(collectively, "Hyperion"), Xxxxxxx X. Xxxxxx and Xxxxx X. Xxxxx (together, the
"Employees") and BNP Paribas ("Paribas"). The Ordinary Shareholders, Triumph,
the Redeemable Shareholders, the Equity Warrant Holders and the Mezzanine
Warrant Holders shall be referred to collectively herein as the "Investors." The
Investors, Hyperion, Triumph, the Employees and Paribas, collectively, the
"Holders" and each individually a "Holder."
RECITALS
WHEREAS, the Investors are to receive an aggregate of up to 2,358,930
shares (the "Investor Shares") of TWUS common stock, par value $.01 per share
("TWUS Common Stock"), and the Equity Warrant Holders are to receive an
aggregate of up to 7,773,660 shares of TWUS preferred stock, par value $.01 per
share ("TWUS Preferred Stock"), which are convertible into shares of common
stock of TWUS (the "Conversion Shares"), pursuant to the terms of that certain
Master Reorganization Agreement, dated as of April 24, 2002 by and among TWUS,
TWUK, Allied Healthcare Group (UK) Ltd., a company incorporated in England and
Wales with registered number 3890177 ("AHG," and, together with TWUS and TWUK,
the "Corporate Group") and the Investors (as subsequently amended, the
"Reorganization Agreement");
WHEREAS, dividends on the TWUS Preferred Stock may under certain
circumstances be paid through the delivery of additional shares of TWUS Common
Stock (the "Dividend Shares");
WHEREAS, it is a condition to the obligations of the Investors that TWUS
grant certain registration rights to the Investors with respect to the Investor
Shares, the Conversion Shares and the Dividend Shares to be received by the
Investors;
WHEREAS, TWUS has agreed to grant certain registration rights to Hyperion
in connection with the shares of TWUS Common Stock held by Hyperion as of the
date hereof (the "Hyperion Shares");
WHEREAS, TWUS has agreed to grant certain registration rights to Triumph in
connection with the 370,500 shares of TWUS Common Stock purchased by Triumph
Partners III, L.P. on April 22, 2002 and the 4,500 shares of TWUS Common Stock
purchased by Triumph III Investors, L.P. on April 22, 2002 (together, but not
including the Paribas Shares, the "Triumph Shares");
WHEREAS, TWUS has agreed to grant certain registration rights to Paribas in
connection with the 75,000 of the Triumph Shares purchased from Triumph by
Paribas on June 7, 2002 (the "Paribas Shares"); and
WHEREAS, TWUS has agreed to grant certain registration rights to the
Employees in connection with the 684,258 shares of TWUS Common Stock issued to
Xxxxxxx Xxxxxx on April 22, 2002 and the 487,099 shares of TWUS Common Stock
issued to Xxxxx Xxxxx on April 22, 2002 (the "Compensatory Shares");
NOW, THEREFORE, in consideration of the foregoing, the mutual promises and
agreements set forth herein, and other valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. CERTAIN DEFINITIONS.
As used in this Agreement, the following terms shall have the following
respective meanings:
"Affiliate" of a Person shall mean any person or entity which directly or
indirectly controls, is controlled by, or is under common control with such
person or entity.
"Affiliate Registration Statement" shall have the meaning set forth in
Section 2(b) hereof.
"Agreement" shall have the meaning set forth in the preamble hereof.
"AHG" shall have the meaning set forth in the recitals hereof.
"AMEX" shall have the meaning set forth in Section 4 hereof.
"Arbitrator" shall have the meaning set forth in Section 17(a) hereof.
"Closing" shall have the meaning ascribed thereto in the Reorganization
Agreement.
"Commission" shall mean the United States Securities and Exchange
Commission, or any other federal agency administering the Securities Act and the
Exchange Act at the time.
"Compensatory Shares" shall have the meaning set forth in the recitals
hereof.
"Conversion Shares" shall have the meaning set forth in the recitals
hereof.
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"Corporate Group" shall have the meaning set forth in the recitals hereof.
"Demand Notice" shall have the meaning set forth in Section 2(d) hereof.
"Demand Registration" shall have the meaning set forth in Section 2(d)
hereof.
"Dividend Shares" shall have the meaning set forth in the recitals hereof.
"Employees" shall have the meaning set forth in the recitals hereof.
"Equity Warrant Holder(s)" shall have the meaning set forth in the preamble
hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended
from time to time, or any similar successor federal statute, and the rules and
regulations promulgated thereunder.
"Fair Market Value" shall mean the closing sales price, or the closing
sales bid if no sales were reported, of the TWUS Common Stock as quoted on AMEX
on the date immediately preceding the date of calculation or if there are no
sales or bids for such date, then for the last preceding business day for such
sales or bids, as reported in The Wall Street Journal or similar publication.
"Holder(s)" shall have the meaning set forth in the preamble hereof.
"Hyperion" shall have the meaning set forth in the preamble hereof.
"Hyperion Shares" shall have the meaning set forth in the recitals hereof.
"Indemnified Person" shall have the meaning set forth in Sections 6(a) and
6(b) hereof.
"Indemnifying Person" shall have the meaning set forth in Section 6(d)
hereof.
"Indemnitee" shall have the meaning set forth in Section 6 hereof.
"Inspectors" shall have the meaning set forth in Section 3(k) hereof.
"Investors" shall have the meaning set forth in the preamble hereof.
"Investors' Shares" shall have the meaning set forth in the recitals
hereof. For purposes of clarity, "Investor Shares" shall include those shares of
TWUS Common Stock delivered in exchange for the Unpaid PIK Interest (as defined
in the Reorganization Agreement) of the Triumph Investors (as defined in the
Reorganization Agreement) pursuant to Section 1.1(g)(iii) of the Reorganization
Agreement.
"Liability" shall have the meaning set forth in Section 6(a) hereof.
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"Majority in Interest" shall mean, (i) subject to clause (ii) hereof, with
respect to the registrations subject to Section 2(a) (or a demand registration
in lieu thereof) and with respect to Section 9(i), the meaning ascribed thereto
in the Reorganization Agreement, (ii) with respect to a registration pursuant to
the last sentence of Section 2(b), both a Majority in Interest of the Investors
(as defined in the Reorganization Agreement) and a majority in interest of the
Hyperion Shares, Compensatory Shares, Triumph Shares and Paribas Shares proposed
to be registered under such Registration Statement and (iii) with respect to any
other registration, a majority of the Registrable Shares proposed to be
registered under such Registration Statement.
"Mezzanine Warrant Holder(s)" shall have the meaning set forth in the
preamble hereof.
"NASD" shall have the meaning set forth in the Section 3(q) hereof.
"Offering Blackout Period" shall have the meaning set forth in the Section
10(c) hereof.
"Ordinary Shareholder(s)" shall have the meaning set forth in the preamble
hereof.
"Paribas" shall have the meaning set forth in the preamble hereof.
"Paribas Shares" shall have the meaning set forth in the recitals hereof.
"Person" shall mean an individual, a corporation, a partnership, a joint
venture, a trust, an unincorporated organization, a limited liability company or
partnership, a government and any agency or political subdivision thereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, as amended or supplemented by
any prospectus supplement with respect to the terms of the offering of any
portion of the Registrable Shares covered by such Registration Statement, and by
all other amendments and supplements to such prospectus, including
post-effective amendments, and in each case including all material incorporated
by reference therein.
"Qualified Offering" shall have the meaning set forth in Section 2(e)(ii)
hereof.
"Records" shall have the meaning set forth in Section 3(k) hereof
"Redeemable Shareholder(s)" shall have the meaning set forth in the
preamble hereof.
"Registrable Shares" shall mean the Shares, excluding (i) Shares for which
a Registration Statement relating to the resale thereof by the holder thereof
shall have become effective under the Securities Act and which have been
disposed of under such Registration Statement, (ii) Shares actually sold
pursuant to Rule 144, or (iii) the Shares of any holder that (x) owns Shares
equal to less than one percent (1%) of the outstanding voting stock of the
Company (on an as converted basis) and (y) is able to offer for sale all of its
Shares within a given three month period pursuant to Rule 144 (or any successor
provision) without giving effect to paragraph (k) thereof.
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"Registration Expenses" shall mean the expenses so described in Section 5
hereof.
"Registration Statement" shall mean any registration statement of TWUS
which covers the offer and sale of any of the Registrable Shares under the
Securities Act on an appropriate form, and all amendments and supplements to
such registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
materials incorporated by reference therein.
"Reorganization" shall have the meaning set forth in Section 2(a) hereof.
"Reorganization Agreement" shall have the meaning set forth in the recitals
hereof.
"Resale Registration Statement" shall have the meaning set forth in Section
2(a) hereof.
"Rule 144" means Rule 144 under the Securities Act (or any successor
provision).
"Securities Act" shall mean the Securities Act of 1933, as amended from
time to time, or any similar successor federal statute, and the rules and
regulations of the Commission thereunder.
"Shares" shall mean collectively the Investors' Shares, the Conversion
Shares, the Dividend Shares, the Hyperion Shares, the Compensatory Shares, the
Triumph Shares and the Paribas Shares.
"Suspension Event" shall have the meaning set forth in Section 10(b)
hereof.
"Triumph" shall have the meaning set forth in the preamble hereof.
"Triumph Shares" shall have the meaning set forth in the recitals hereof.
"TWUK" shall have the meaning set forth in the preamble hereof.
"TWUS" shall have the meaning set forth in the preamble hereof.
"TWUS Common Stock" shall have the meaning set forth in the recitals
hereof.
"TWUS Offering" shall have the meaning set forth in the Section 10(c)
hereof.
"TWUS Preferred Stock" shall have the meaning set forth in the recitals
hereof.
All other capitalized terms not defined herein shall have the meaning set
forth in the Reorganization Agreement unless otherwise indicated.
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2. REGISTRATION.
(a) Amendment of Registration Statement. Subject to the provisions of
Section 2(c) below, TWUS shall (i) originally file with the Commission its
Registration Statement on Form S-4 covering the issuance of Shares in the
reorganization of the Corporate Group pursuant to which TWUK will become a
wholly-owned subsidiary of AHG, which is a wholly-owned subsidiary of TWUS (the
"Reorganization"), to also serve after the consummation of the Reorganization as
a resale registration statement under Rule 415 covering the sale by the
Investors of all or any portion of their Registrable Shares (other than the
Compensatory Shares, the Triumph Shares and the Paribas Shares), or (ii) if TWUS
is unable to comply with clause (i) above for any reason, prepare and file a
resale registration statement on Form S-3, or such other applicable forms, with
the Commission, under Rule 415 under the Securities Act, covering the sale by
the Investors of all or any portion of their Registrable Shares in accordance
with the terms hereof (each of the registration statement(s) described in
clauses (i) and (ii) above hereafter a "Resale Registration Statement"). A
filing described in clause (ii) above shall be made on a date reasonably
designed to allow TWUS to have such Registration Statement declared effective by
the date of the Closing of the Reorganization, but in any event such Resale
Registration Statement shall be declared effective not later than thirty (30)
calendar days after the Closing of the Reorganization. TWUS shall use its
reasonable best efforts to cause the Resale Registration Statement to be
declared effective by the Commission for all of the Registrable Shares covered
thereby by the earliest practicable date after filing with the Commission. In
the event that TWUS is unable to cause such Resale Registration Statement to be
declared effective by the Commission within thirty (30) calendar days following
the Closing of the Reorganization, then the provisions of Section 2(c) shall
apply. TWUS agrees to use its reasonable efforts to keep the Resale Registration
Statement continuously effective until no shares of TWUS Preferred Stock remain
outstanding and no Investors' Shares, Conversion Shares or Dividend Shares that
constitute Registrable Shares remain outstanding. In the event that a Person not
named in a Resale Registration Statement as a potential selling stockholder
becomes a Holder of Registrable Shares, TWUS will make such changes to the then
effective Resale Registration Statement as are necessary to include such Person
as a potential selling stockholder with respect to its Registrable Shares under
the Resale Registration Statement, unless the inclusion of such Person is
prohibited by the Commission or applicable law.
(b) Registration Statement Covering Resale of Hyperion Shares,
Compensatory Shares, Triumph Shares and Paribas Shares. TWUS shall prepare and
file a registration statement on Form S-3 (the "Affiliate Registration
Statement"), or such other applicable forms, with the Commission, under Rule 415
under the Securities Act, in connection with the sale by Hyperion, the
Employees, Triumph and Paribas at the time of such filing of all of the Hyperion
Shares, the Compensatory Shares, the Triumph Shares and the Paribas Shares in
accordance with the terms hereof (and, in the event that a Person not named in
an Affiliate Registration Statement as a potential selling stockholder becomes a
Holder of Hyperion Shares, Compensatory Shares, Triumph Shares or Paribas
Shares, TWUS will make such changes to the then effective Affiliate Registration
Statement as are necessary to include such Person as a potential selling
stockholder with respect to its Hyperion Shares, Compensatory Shares, Triumph
Shares or Paribas Shares under the Affiliate Registration Statement, unless the
inclusion of such
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Person is prohibited by the Commission or applicable law), such filing to be
made on a date reasonably designed to allow TWUS to have such Affiliate
Registration Statement declared effective by the date of the Closing of the
Reorganization, but in any event such Affiliate Registration Statement shall be
declared effective not later than thirty (30) calendar days after the Closing of
the Reorganization. TWUS shall use its reasonable best efforts to cause the
Affiliate Registration Statement to be declared effective by the Commission for
all of the Registrable Shares covered thereby by the earliest practicable date
after filing with the Commission. In the event that TWUS is unable to cause such
Affiliate Registration Statement to be declared effective by the Commission
within thirty (30) calendar days following the Closing of the Reorganization,
then the provisions of Section 2(c) shall apply. TWUS agrees to use its
reasonable efforts to keep the Affiliate Registration Statement continuously
effective until no Hyperion Shares, Compensatory Shares, Triumph Shares or
Paribas Shares that constitute Registrable Shares remain outstanding.
Notwithstanding anything to the contrary contained in this Agreement, TWUS shall
be entitled to satisfy its obligation to file a Resale Registration Statement
pursuant to Section 2(a) and its obligation to file an Affiliate Registration
Statement pursuant to this Section 2(b) by filing a single registration
statement that otherwise complies with the requirements of Sections 2(a) and
2(b).
(c) Demand Registration. In the event that, for any reason, TWUS is
unable to cause a Resale Registration Statement or an Affiliate Registration
Statement to be declared effective by the Commission within thirty (30) days
following the Closing of the Reorganization or is unable or it is impracticable
to keep such Resale Registration Statement or Affiliate Registration Statement
continuously effective for the period set forth in Section 2(a) or 2(b), as
applicable, TWUS shall, within ten (10) days after TWUS makes such determination
or such shorter period as the Commission may provide to TWUS in the event such
event involves an action or determination by the Commission (in which case TWUS
shall immediately forward to the Investors, Hyperion, Triumph, the Employees and
Paribas copies of all relevant correspondence to and from the Commission), give
notice to the Investors, Hyperion, Triumph, the Employees and Paribas, as the
case may be, of such fact and of the circumstances giving rise to such inability
or impracticability, so as to enable the Investors, Hyperion, Triumph, the
Employees and Paribas to exercise their rights as set for in this Section 2(c).
At any time any shares of TWUS Preferred Stock or Registrable Shares are
outstanding and a Resale Registration Statement or an Affiliate Registration
Statement, as applicable, covering the resale of their respective Registrable
Shares is not effective, TWUS shall, at the written request of any Investor,
Hyperion, Triumph, the Employees or Paribas (and their permitted transferees and
assigns), as the case may be (a "Demand Notice"), cause to be filed as soon as
practicable after the date of such request a Registration Statement in
accordance with Rule 415 under the Securities Act (or such other rule as is
applicable to the proposed sale) relating to the resale by such Investor,
Hyperion, Triumph, the Employees or Paribas (and their permitted transferees and
assigns) of all or any portion of the Registrable Shares held by such Investor
(including Conversion Shares and/or Dividend Shares issuable to such Investor),
Hyperion, Triumph, the Employees or Paribas (and their permitted transferees and
assigns) in accordance with the terms hereof, and shall use its reasonable best
efforts to cause such Registration Statement to be declared effective by the
Commission as soon as practicable thereafter (a "Demand Registration");
provided, however, that TWUS shall not be required to file such Registration
Statement unless the number of Registrable Shares included in such Demand Notice
have a Fair Market Value in excess of
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$1,000,000. TWUS agrees to use its reasonable best efforts to keep the Demand
Registration continuously effective, after its date of effectiveness, with
respect to the Registrable Shares of the requesting Investor, Hyperion, Triumph,
the Employees or Paribas (and their permitted transferees and assigns) until the
date on which such Investor, Hyperion, Triumph, the Employees or Paribas (and
their permitted transferees and assigns) no longer holds any Registrable Shares.
(d) Underwritten Offering. If one or more Holders shall propose to
sell Registrable Shares in an underwritten offering pursuant to a
Registration Statement filed under Section 2 hereof, such Holders
shall be entitled to select one (1) lead underwriter for such offering
(selected by a Majority in Interest of the Holders of the Registrable
Shares proposed to be included in such underwritten offering), which
selection shall be reasonably satisfactory to TWUS. At TWUS' option,
following such selection and approval of a lead underwriter by the
Holders, TWUS shall be entitled to select a co-lead underwriter with
respect to such underwritten offering (and both such underwriters
shall accordingly be co-leads; provided that the underwriter
designated by the Holders shall be responsible for maintaining the
order book with respect to such offering).
(ii) If one or more Holders propose to sell in an underwritten
offering Registrable Shares which have an aggregate Fair Market Value
of $5,000,000 or more (a "Qualified Offering"), then TWUS shall make
available members of the management of TWUS and its Affiliates for
reasonable assistance in selling efforts related to such offering
(including, without limitation, senior management attendance at due
diligence meetings with underwriters and their counsel and road shows)
and shall enter into underwriting agreements containing usual and
customary terms and conditions for such types of offerings (including,
but not limited to, indemnification terms customary therein) and take
all such other reasonable actions in connection therewith in order to
expedite or facilitate the disposition of such Registrable Shares,
including without limitation: (A) make such representations and
warranties to the underwriters with respect to the business of TWUS,
the Registration Statement, the Prospectus and any documents, if any,
incorporated or deemed to be incorporated by reference therein, as may
reasonably be required by the underwriters; (B) obtain opinions of
counsel to TWUS and updates thereof, addressed to the Holders and each
of the underwriters; (C) obtain "cold comfort" letters and updates
thereof from the independent certified public accountants of TWUS
addressed to the Holders and each of the underwriters; (D) ensure
that, if an underwriting agreement is entered into, such agreement
shall contain indemnification provisions and procedures that are usual
and customary for an offering of such size; and (E) deliver such
documents and certificates as may be reasonably requested by the
underwriters and their respective counsel to evidence the continued
validity of the representations and warranties made pursuant to clause
(A) of this Section 2(d)(ii).
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3. Registration Procedures. When TWUS is required pursuant to the
provisions of this Agreement to effect the registration of any of the Shares
under the Securities Act, TWUS will:
(a) prepare and file with the Commission a Registration Statement on
the appropriate form under the Securities Act with respect to such securities,
which form shall comply 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 use its reasonable best efforts to cause such
Registration Statement to become and remain effective until completion of the
proposed offering;
(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
until the Holders shall have completed the sales described in such Registration
Statement and to comply with the provisions of the Securities Act with respect
to the sale or other disposition of all securities covered by such Registration
Statement whenever the seller or sellers of such securities shall desire to sell
or otherwise dispose of the same, but only to the extent provided in this
Agreement
(c) furnish to the Holders and the underwriters, if any, such number of
copies of any Registration Statement, any amendments thereto, any documents
incorporated by reference therein, the Prospectus, including a preliminary
prospectus in conformity with the requirements of the Securities Act, and such
other documents as the Holders or underwriters may reasonably request in order
to facilitate the public sale or other disposition of the Shares owned by the
Holders or underwriters;
(d) file and use its reasonable best efforts to register or qualify the
Shares covered by such Registration Statement under such other securities or
state securities or "blue sky" laws of such jurisdictions as the Holders shall
request, and do any and all other acts and things that may be necessary under
such state securities or "blue sky" laws to enable the Holders to consummate the
public sale or other disposition in such jurisdictions of the Shares owned by
such Holder, except that TWUS shall not for any such purpose be required to
qualify to do business as a foreign corporation in any jurisdiction wherein it
is not so qualified;
(e) within a reasonable time before each filing of a Registration
Statement or Prospectus or amendments or supplements thereto with the
Commission, furnish to counsel selected by the Holders of a Majority in Interest
of the Registrable Shares participating in such registration, copies of such
documents proposed to be filed, which documents shall be subject to the
reasonable approval of such counsel; provided, however, in the event that any of
the Registrable Shares participating include Hyperion Shares and/or Triumph
Shares, counsel to Hyperion and/or Triumph, as applicable, shall also be
furnished copies of such documents proposed to be filed, which documents shall
also be subject to the reasonable approval of such counsel(s);
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(f) immediately notify the Holders, their respective counsel and any
underwriter and (if requested by any such Person) confirm such notice in
writing, of the happening of any event which makes any statement made in a
Registration Statement or related Prospectus untrue or that requires the making
of any changes in such Registration Statement or Prospectus so that they will
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein in the light of the circumstances under which they were made not
misleading; and, as promptly as practicable thereafter, prepare and file with
the Commission and furnish a supplement or amendment to such Registration
Statement or Prospectus so that, as thereafter deliverable to the purchasers of
such Registrable Shares, such Registration Statement or Prospectus will not
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(g) make generally available to the Holders an earnings statement
satisfying the provisions of Section 11(a) of the Securities Act no later than
sixty (60) days after the end of the 12-month period beginning with the first
day of TWUS' first fiscal quarter commencing after the effective date of a
Registration Statement, which earnings statement shall cover said 12-month
period, and which requirement will be deemed to be satisfied if TWUS satisfies
the requirements of Rule 158 under the Securities Act and otherwise complies
with all applicable rules and regulations of the Commission;
(h) use its reasonable best efforts to prevent the issuance of any
order suspending the effectiveness of a Registration Statement, and if one is
issued, use its reasonable best efforts to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement at the earliest
possible moment; provided, however, that TWUS may postpone the filing or
effectiveness of any Registration Statement required to be filed hereunder for a
reasonable period of time, not to exceed ninety (90) days in the aggregate
during any 12-month period, if the TWUS has been advised by legal counsel that
such filing or effectiveness would require a special audit or the disclosure of
a material impending transaction or other matter and TWUS' Board of Directors
determines reasonably and in good faith that such disclosure would have a
material adverse effect on TWUS;
(i) use its reasonable best efforts to cause, to the extent applicable,
the Registrable Shares covered by a Registration Statement to be registered with
or approved by such other governmental agencies or authorities and to obtain
such approvals, consents and make such filings as may be necessary by virtue of
the business and operations of TWUS to enable the Holders to consummate the
disposition of such Registrable Shares in accordance with their intended method
of distribution thereof;
(j) if requested by the managing underwriter or underwriters (if any),
a Holder or their respective counsel, promptly incorporate into a Prospectus
supplement or post-effective amendment such information as such Person requests
to be included therein, including, without limitation, with respect to the
Shares being sold by such Holder to such
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underwriter or underwriters, the purchase price being paid therefor by such
underwriter or underwriters and any other terms of an underwritten offering of
the Shares to be sold in such offering, and promptly make all required filings
of such prospectus supplement or post-effective amendment;
(k) subject to appropriate confidentiality agreements, make available
to each Holder, any underwriter participating in any disposition pursuant to a
Registration Statement, and any attorney, accountant or other agent or
representative retained by any such Holder or underwriter (collectively, the
"Inspectors"), all financial and other records, pertinent corporate documents
and properties of TWUS (collectively, the "Records") reasonably necessary to
enable them to exercise their due diligence responsibility, and cause TWUS'
officers, directors and employees to supply all information requested by any
such Inspector in connection with such Registration Statement;
(l) enter into such customary agreements (including, if applicable, an
underwriting agreement in customary form) and take such other actions as the
Holders or the underwriters retained by the Holders participating in an
underwritten public offering, if any, may reasonably request in order to
expedite or facilitate the disposition of Registrable Shares (and the Holders
may, at their option, require that any or all of the representations, warranties
and covenants of TWUS to or for the benefit of any underwriters also be made to
and for the benefit of the Holders);
(m) furnish to each prospective selling Holder a signed counterpart,
addressed to the prospective selling Holder, of (i) an opinion of counsel for
TWUS, dated the effective date of the Registration Statement, and (ii) a
"comfort" letter signed by the independent public accountants who have certified
TWUS' financial statements included in the Registration Statement, covering
substantially the same matters with respect to the Registration Statement (and
the Prospectus included therein) and (in the case of the accountants' letter)
with respect to events subsequent to the date of the financial statements, as
are customarily covered (at the time of such registration) in opinions of TWUS'
counsel and in accountants' letters delivered to the underwriters in
underwritten public offerings of securities;
(n) cause the Shares covered by such Registration Statement to be
listed on the national securities exchange or quoted on the quotation system on
which the TWUS Common Stock is then listed or quoted;
(o) in connection with an underwritten offering, participate, to the
extent reasonably requested by the managing underwriter for the offering or the
Holders, in customary efforts to sell the Shares being offered, and cause such
steps to be taken as to ensure such good faith participation of senior
management officers of TWUS in "road shows" as is customary;
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(p) if the Registrable Shares are of a class of securities that is
listed on a national securities exchange, file copies of any Prospectus with
such exchange in compliance with Rule 153 under the Securities Act so that the
holders of Registrable Shares benefit from the Prospectus delivery procedures
described therein;
(q) cooperate with each Holder and each underwriter participating in
the disposition of Registrable Shares and their respective counsel in connection
with any filings required to be made with the National Association of Securities
Dealers, Inc. ("NASD"), including, if appropriate, the pre-filing of a
Prospectus as part of a shelf registration statement in advance of an
underwritten offering;
(r) otherwise cooperate with the underwriter(s), the Commission and
other regulatory agencies and take all actions and execute and deliver or cause
to be executed and delivered all documents necessary to effect the registration
and sale of any Registrable Shares under this Agreement;
(s) correct any deficiency (in the judgment of either TWUS or the
Holders of Registrable Shares acting reasonably) between the preliminary
Prospectus and the final Prospectus, and pay any expenses associated with the
recirculation of the final Prospectus following the correction of such
deficiency, if required;
(t) during the period when the Prospectus is required to be delivered
under the Securities Act, promptly file all documents required to be filed with
the Commission, including pursuant to Sections 13(a), 13(c), 14, or 15(d) of the
Exchange Act; and
(u) provide a transfer agent and registrar for all Registrable Shares
registered pursuant hereunder and a CUSIP number for all such Registrable
Shares, in each case no later than the effective date of such registration.
If any Registration Statement refers to any Holder by name or otherwise as
the holder of any securities of TWUS, then such Holder shall have the right to
require (i) the insertion therein of language, in form and substance reasonably
satisfactory to such Holder, to the effect that the holding by such Holder of
such securities is not to be construed as a recommendation by such Holder of the
investment quality of TWUS' securities covered thereby and that such holding
does not imply that such Holder will assist in meeting any future financial
requirements of TWUS, or (ii) in the event that such reference to such Holder by
name or otherwise is not required by the Securities Act or any similar Federal
or state securities or "blue sky" statute and the rules and regulations
thereunder then in force, deletion of the reference to such Holder.
4. LISTING. TWUS will use reasonable efforts to cause all Registrable
Shares to be listed or otherwise eligible for full trading privileges on the
principal national securities exchange (currently the American Stock Exchange
("AMEX")) on which the TWUS Common
12
Stock are then listed, in each case not later than the date on which a
Registration Statement covering the Registrable Shares becomes effective or the
Registrable Shares are issued by TWUS to a Holder, whichever is later. TWUS will
use reasonable efforts to continue the listing or trading privilege for all
Registrable Shares on such exchange. TWUS will promptly notify the Holders of,
and confirm in writing, the delisting of TWUS Common Stock by such exchange.
5. EXPENSES. All expenses incurred by TWUS or the Holders in effecting the
registrations provided for in Section 2, including, without limitation, all
registration and filing fees, printing expenses, fees and disbursements of
counsel for TWUS and of a single counsel for the Holders participating in such
registration as a group (selected by, in the case of a registration under
Section 2(c) (other than a registration pursuant to the last sentence of Section
2(b)), the Holders of a Majority in Interest of the Registrable Shares who
initiate the registration under such Section 2(c), and, in the case of all other
registrations hereunder, the Holders of a Majority in Interest of the
Registrable Shares participating in the registration), expenses of any audits
incident to or required by any such registration and expenses of complying with
the state securities or "blue sky" laws of any jurisdictions (all of such
expenses referred to as "Registration Expenses"), shall be paid by TWUS whether
or not the registration statement to which such Registration Expenses relate
becomes effective. Notwithstanding the foregoing, in the event of a registration
pursuant to the last sentence of Section 2(b), TWUS shall, in addition to its
other obligations hereunder, pay all fees and disbursements of counsel selected
by a Majority in Interest of the Investors (as defined in the Reorganization
Agreement) and counsel selected by a majority in interest of the Hyperion
Shares, Compensatory Shares, Triumph Shares and Paribas Shares intended to be
covered by such registration statement.
6. INDEMNIFICATION.
(a) TWUS shall indemnify and hold harmless each selling Holder of
Registrable Shares, and directors, officers, partners, shareholders, members,
employees and agents of any of them, and each Person who participates in the
offering of such securities and each Affiliate of such seller or participating
Person (individually and collectively, the "Indemnified Person") against any
losses, claims, damages or liabilities, including reasonable legal fees,
disbursements and expenses of counsel (including any such fees, disbursements
and expenses incurred as a result of a third party action or as a result of the
Indemnified Person enforcing its rights under this Section 6(a) against TWUS)
(collectively, "Liability"), joint or several, to which such Indemnified Person
may become subject under the Securities Act or any other statute or at common
law, insofar as the Liability (or action in respect thereof) arises out of, is
based upon or relates to (i) any untrue statement or alleged untrue statement of
any material fact contained, on the effective date thereof, in any Registration
Statement under which such securities were registered under the Securities Act,
any preliminary Prospectus or final Prospectus contained therein, or any
amendment or supplement thereto or any documents filed under state securities
laws or "blue sky" laws, (ii) 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 (iii) any violation or alleged violation
by TWUS of the Securities Act, any state securities or "blue sky" laws or any
sale or regulation thereunder in connection with such
13
registration. Except as otherwise provided in Section 6(c), TWUS shall reimburse
each such Indemnified Person for all reasonable legal and other expenses
incurred in connection with investigating or defending any Liability; provided,
however, that TWUS shall not be liable to any Indemnified Person in any such
case to the extent that the Liability arises out of, is based upon or relates to
any untrue statement or alleged untrue statement or omission or alleged omission
made in such Registration Statement, preliminary or final Prospectus, or
amendment or supplement thereto in reliance upon and in conformity with
information furnished in writing to TWUS by such Person specifically for use
therein; and provided further, that TWUS shall not be required to indemnify any
Person against Liability that arises out of the failure of any Person to deliver
a Prospectus as required by the Securities Act regardless of any investigation
made by or on behalf of such Indemnified Person and TWUS' indemnification
obligations shall survive transfer of such securities by such seller.
(b) Each Holder of Registrable Shares holding any securities included
in such registration being effected shall indemnify and hold harmless each other
selling Holder of Registrable Shares (including to the extent applicable its
partners, members and shareholders (including partners of partners and
shareholders of such partners)), TWUS, and directors, officers, employees and
agents of each of them, and each Affiliate of such seller and directors,
officers, employees and agents of any of them (individually and collectively
also the "Indemnified Person"), against any liability, joint or several, to
which the Indemnified Person may become subject under the Securities Act or any
other statute or at common law, insofar as such liability (or actions in respect
thereof) arises out of or is based upon (i) any untrue statement or alleged
untrue statement of any material fact contained, on the effective date thereof,
in any Registration Statement under which securities were registered under the
Securities Act at the request of such selling Holder, any preliminary Prospectus
or final Prospectus contained therein, or any amendment or supplement thereto,
(ii) any omission or alleged omission by such selling Holder to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or (iii) any violation or alleged violation by such
selling Holder of the Securities Act, any state securities or "blue sky" laws or
any sale or regulation thereunder in connection with such registration; in the
case of subclause (i) and (ii) to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission was
made in such Registration Statement, preliminary or final Prospectus, amendment
or supplement thereto in reliance upon and in conformity with information
furnished in writing to TWUS by such selling Holder specifically for use
therein. The liability of any Holder for indemnification under this Section 6 in
its capacity as a seller of Registrable Shares shall not exceed the lesser of
(i) that proportion of the total of such losses, claims, damages, expenses or
liabilities indemnified against equal to the proportion of the total securities
sold under such Registration Statement held by such Holder, and (ii) the amount
equal to the net proceeds to such Holder of the securities sold in any such
registration; provided that no selling Holder shall be required to indemnify any
Person against any liability arising from any untrue or misleading statement or
omission contained in any preliminary Prospectus if such deficiency is corrected
in the final Prospectus or for any liability which arises out of the failure of
any Person to deliver a Prospectus as required by the Securities Act.
14
(c) In the event TWUS, any selling Holder or other Person receives a
complaint, claim or other notice of any liability or action, giving rise to a
claim for indemnification under Sections 6(a) or (b) above, the Person claiming
indemnification under such paragraphs shall promptly notify the Person against
whom indemnification is sought (the "Indemnifying Person") of such complaint,
notice, claim or action, and the Indemnifying Person shall have the right to
investigate and defend any such loss, claim, damage, liability or action;
provided that the failure to promptly give notice shall not relieve the
Indemnifying Person from any Liability except to the extent that it is
materially prejudiced by the failure or delay of the Indemnified Person in
giving such notice. If any such complaint, claim or other notice of any
Liability or action is brought against any Indemnified Person and it notifies
the Indemnifying Person of its commencement, the Indemnifying Person will be
entitled to participate in and, to the extent that it elects by delivering
written notice to the Indemnified Person promptly after receiving notice of the
commencement of the action from the Indemnified Person, jointly with any other
Indemnifying Person similarly notified, to assume the defense of the action,
with counsel reasonably satisfactory to the Indemnified Person, and after notice
from the Indemnifying Person to the Indemnified Person of its election to assume
the defense, the Indemnifying Person shall not be liable to the Indemnified
Person for any legal or other expenses except as provided below and except for
the reasonable costs of investigation subsequently incurred by the Indemnified
Person in connection with the defense. The Indemnified Person shall have the
right to employ its own counsel in any such action, but the fees, expenses and
other charges of such counsel shall be at the expense of the Indemnified Person
unless (i) the employment of counsel by the Indemnified Person has been
authorized in writing by the Indemnifying Person, (ii) the Indemnified Person
has reasonably concluded (based on advice of counsel) that there may be legal
defenses available to it or other Indemnified Persons different from or in
addition to those available to the Indemnifying Person or Persons, (iii) a
conflict or potential conflict exists (based on advice of counsel to the
Indemnified Person) between the Indemnified Person and the Indemnifying Person
(in which case the Indemnifying Person shall not have the right to direct the
defense of such action on behalf of the Indemnified Person), or (iv) the
Indemnifying Person has not in fact employed counsel to assume the defense of
such action within a reasonable time after receiving notice of the commencement
of the action or has failed to employ counsel reasonably satisfactory to such
Indemnified Person, in each of which cases the reasonable fees, disbursements
and other charges of counsel will be at the expense of the Indemnifying Person
or Persons. The Indemnifying Person or Persons shall not, unless there exists a
conflict of interest among the Indemnified Persons, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
reasonable fees, disbursements and other charges of more than one separate firm
admitted to practice in such jurisdiction at any time for all such Indemnified
Persons. All such fees, disbursements and other charges shall be reimbursed by
the Indemnifying Person promptly as they are incurred. An Indemnifying Person
shall not be liable for any settlement of any action or claim effected without
its written consent (which consent will not be unreasonably withheld). No
Indemnifying Person shall, without the prior written consent of each Indemnified
Person, settle or compromise or consent to the entry of any judgment in any
pending or threatened claim, action or proceeding relating to the matters
contemplated by this Section 6 (whether or not any Indemnified Person is a party
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each Indemnified Person from all liability arising or
that may arise out of such claim, action or proceeding, (ii) does not include a
statement as to or an admission of fault, culpability or a
15
failure to act by or on behalf of any Indemnified Person, and (iii) does not
commit the Indemnified Person to take, or to forbear to take, any action. If a
settlement is reached with such consent or if a final judgment is entered for
the plaintiff, the Indemnifying Person agrees to indemnify any Indemnified
Person from and against any loss or liability by reason of such settlement or
judgment.
(d) If the indemnification provided for in this Section 6 for any
reason is held by a court of competent jurisdiction to be unavailable to an
Indemnified Person in respect of any losses, claims, damages expenses or
liabilities referred to therein, then each Indemnifying Person under this
Section 6, in lieu of indemnifying the Indemnified Person thereunder, shall
contribute to the amount paid or payable by the Indemnified Person as a result
of such losses, claims, damages, expenses or liabilities (i) in such proportion
as is appropriate to reflect the relative benefits received by TWUS and the
Holder or Holders of Registrable Shares from the offering of Registrable Shares
or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
TWUS, the other Holders of Registrable Shares in connection with the statements
or omissions that resulted in such losses, claims, damages expenses or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by TWUS and the Holders of Registrable Shares shall
be deemed to be in the same respective proportions that the net proceeds from
the offering (before deducting expenses) received by TWUS and the Holders of
Registrable Shares, in each case as set forth in the table on the cover page of
the applicable prospectus, bear to the aggregate public offering price of the
Registrable Shares. The relative fault of TWUS and the Holders of Registrable
Shares 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 TWUS or the
Holders of Registrable Shares, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
TWUS and the Holders of Registrable Shares agree that it would not be just
and equitable if contribution pursuant to this Section 6(d) were determined by a
method of allocation that does not take account the equitable considerations
referred to in the immediately preceding paragraph, provided that a Holder of
Registrable Shares shall not be required to contribute under this Section 6(d)
in excess of the lesser of (i) that proportion of the total Liability
indemnified against equal to the proportion of the total Registrable Shares sold
under such Registration Statement by such Holder and (ii) the net proceeds
received by such Holder from its sale of Registrable Shares under such
Registration Statement. No Person found guilty of fraudulent representation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person not found guilty of such fraudulent
misrepresentation.
(e) The amount paid by an Indemnifying Person or payable to an
Indemnified Person as a result of the losses, claims, damages, expenses and
liabilities referred to in this Section 6 shall be deemed to include, subject to
limitations set forth above, any legal or other expenses reasonably incurred by
such Indemnified Person in connection with investigating or defending any such
action or claim, payable as the same are incurred. The indemnification and
16
contribution provided for in this Section 6 shall remain in full force and
effect regardless of any investigation made by or on behalf of the indemnified
parties or any other officer, director, employee, agent or controlling person of
the indemnified parties.
7. COMPLIANCE WITH RULE 144. TWUS shall use its reasonable best efforts to
file with the Commission such information as is required under the Exchange Act
for so long as there are holders of Registrable Shares; and in such event, TWUS
shall use its reasonable best efforts to take all action as may be required as a
condition to the availability of Rule 144 under the Securities Act (or any
comparable successor rules). TWUS shall furnish to any holder of Registrable
Shares upon request a written statement executed by TWUS as to the steps it has
taken to comply with the current public information requirement of Rule 144 (or
such comparable successor rules). So long as there are holders of Registrable
Shares, TWUS shall furnish to any Holder upon request (i) a copy of the most
recent annual or quarterly report of TWUS and such other reports and documents
filed by TWUS with the Securities and Exchange Commission as are reasonably
requested and (ii) such information as may be reasonably requested in availing
any Holder of any rule or regulation of the Securities and Exchange Commission
which permits the selling or offering of any TWUS securities by such Holder.
TWUS shall use its reasonable best efforts to facilitate and expedite transfers
of Registrable Shares pursuant to Rule 144 under the Securities Act, which
efforts shall include timely notice to its transfer agent to expedite such
transfers of Registrable Shares.
8. INTENTIONALLY OMITTED.
9. AMENDMENTS. This Agreement may be amended, and TWUS may take any action
herein prohibited or omit to perform any act herein required to be performed by
it, only if TWUS has obtained the written consent of (i) a Majority in Interest
with respect to the rights of the Investors, (ii) Hyperion with respect to the
rights of Hyperion, (iii) Triumph with respect to the rights of Triumph, (iv)
each of the Employees with respect to the rights of such Employee or (v) Paribas
with respect to the rights of Paribas. For the purposes of this Agreement and
all agreements executed pursuant hereto, no course of dealing between or among
any of the parties hereto and no delay on the part of any party hereto in
exercising any rights hereunder or thereunder shall operate as a waiver of the
rights hereof and thereof.
10. SUSPENSION OF REGISTRATION REQUIREMENT; RESTRICTION ON SALES.
(a) TWUS shall promptly notify each Holder of, and confirm in writing,
(i) the receipt of any oral or written communication that could reasonably lead
TWUS to be unable to keep a Resale Registration Statement or Affiliate
Registration Statement continuously effective for the period set forth in
Section 2 hereof, or (ii) the issuance by the Commission of any stop order
suspending the effectiveness of a Registration Statement with respect to such
holder's Registrable Shares or the initiation of any proceedings for that
purpose. TWUS shall use its reasonable best efforts to obtain the withdrawal of
any order suspending the effectiveness
17
of such a Registration Statement at the earliest possible moment and in any
event within thirty (30) days from the initial date of such suspension.
(b) Notwithstanding anything to the contrary set forth in this
Agreement, TWUS' obligations under this Agreement to file, amend or supplement a
Registration Statement, or to cause a Registration Statement, or any filings
with any state securities commission, to become effective shall be suspended,
for one or more periods not to exceed the period described in Section 11 below,
in the event of pending negotiations relating to, or consummation of, a
transaction or the occurrence of an event that (i) would require additional
disclosure of material information by the TWUS in the Registration Statement or
such filing, as to which TWUS has a bona fide business purpose for preserving
confidentiality, or (ii) render TWUS unable to comply with the Commission
requirements (any such circumstances being hereinafter referred to as a
"Suspension Event"). TWUS shall notify the Holders of the Shares of the
existence of any Suspension Event by promptly delivering to each Holder a
certificate signed by an executive officer of TWUS stating that a Suspension
Event has occurred and is continuing.
(c) Subject to the terms of Section 11 below, so long as all officers
and directors of TWUS are bound by similar restrictions, each Holder of
Registrable Shares agrees, if requested by TWUS in the case of a TWUS-initiated
non-underwritten offering of TWUS Common Stock by TWUS registered under the
Securities Act or if requested by the managing underwriter or underwriters in a
TWUS-initiated underwritten offering of TWUS Common Stock by TWUS (each, a "TWUS
Offering"), not to directly or indirectly offer, sell, contract to sell, sell
any option or contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant for the sale of or otherwise dispose of or
transfer any Shares held by it during the period (other than to donees or
partners who agree to be similarly bound) (the "Offering Blackout Period")
beginning upon receipt by such Holder of written notice from TWUS, but in any
event no earlier than the tenth (10th) day preceding the anticipated date of
pricing of such TWUS Offering, and ending on the earlier to occur of:
(i) sixty (60) days after the closing date of such TWUS
Offering; or
(ii) one (1) day after the date on which the Fair Market
Value of the TWUS Common Stock shall have averaged for
a period of twenty (20) consecutive trading days at
least one-hundred-five percent (105%) of the initial
price to the public of such security in such TWUS
Offering, but in any event not earlier than forty-five
(45) days after the closing date of such TWUS Offering;
or
(iii) the date on which TWUS may begin to effect any public
sale or distribution of any TWUS Common Stock following
such TWUS Offering pursuant to any contractual lock-up
or similar restrictions on the sale of such securities;
or
(iv) the date on which all directors and executive officers
who have been required to enter into contractual
lock-up or similar
18
restrictions on the sale of TWUS Common Stock owned by
them may begin to effect public sales of such shares
following such TWUS Offering, including pursuant to
waivers of the restrictions by the managing underwriter
or underwriters; or
(v) the date TWUS or managing underwriter or underwriters
withdraws such request in writing.
(d) Subject to the terms of Section 11 below, each Holder of
Registrable Shares agrees that, following the effectiveness of any Registration
Statement relating to Registrable Shares of such Holder, such Holder will not
effect any sales of the Shares pursuant to such Registration Statement or any
filings with any state securities commission at any time after such Holder has
received notice from TWUS to suspend sales as a result of the occurrence or
existence of any Suspension Event or so that TWUS may correct or update the
Registration Statement or such filing. The Holders may recommence effecting
sales of the Shares pursuant to the Registration Statement or such filings, and
all other obligations which are suspended as a result of a Suspension Event
shall no longer be so suspended, following further notice to such effect from
TWUS, which notice shall be given by TWUS not later than one (1) business day
after the conclusion of any such Suspension Event.
11. LIMITATIONS ON SUSPENSION/BLACKOUT PERIODS. Notwithstanding anything
herein to the contrary, TWUS covenants and agrees that (a) TWUS' rights to
suspend its obligation under this Agreement to file, amend or supplement a
Registration Statement and maintain the effectiveness of any Registration
Statement during the pendency of any Suspension Event, (b) the Holders'
obligation to suspend public sales of Shares during one or more Offering
Blackout Periods and (c) the Holders' obligations to suspend sales of Shares
pursuant to a Registration Statement during the pendency of any Suspension
Event, shall not (i) be exercised or triggered by TWUS pursuant to Section 10 or
otherwise more than two (2) times during any 12-month period or (ii) in the
aggregate, cause the Holders to be required to suspend sales of Shares or
relieve TWUS of its obligation to file, amend or supplement and maintain the
effectiveness of a Registration Statement for longer than ninety (90) days
during any 12-month period.
12. TRANSFERABILITY OF REGISTRATION RIGHTS. The registration rights set
forth in this Agreement are transferable to each transferee of Registrable
Shares, who shall thereafter be deemed a "Holder" for purposes of this
Agreement. Each subsequent Holder of Registrable Shares must consent in writing
to be bound by the terms and conditions of this Agreement in order to acquire
the rights granted pursuant to this Agreement. This Agreement shall inure to the
benefit of and be binding on the successors and assigns of each of the parties
hereto. If any transferee of any Holder shall acquire Registrable Shares in any
manner, whether by operation of law or otherwise, such Registrable Shares shall
be held subject to all of the terms of this Agreement, and by taking and holding
such Registrable Shares such Person shall be conclusively deemed to have agreed
to be bound by and to perform all of the terms and provisions of this Agreement
and such Person shall be entitled to receive the benefits hereof.
19
13. ATTORNEYS' FEES. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorney's fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled.
14. DAMAGES. TWUS stipulates that each Holder of Registrable Shares shall
not have an adequate remedy if TWUS fails to comply with this Agreement and that
damages shall not be readily ascertainable, and accordingly, TWUS shall not
oppose an application by any Holder of Registrable Shares or any other Person
entitled to the benefits of this Agreement to require specific performance of
any and all provisions hereof or enjoining TWUS from continuing to commit any
such breach of this Agreement.
15. MISCELLANEOUS.
(a) Notices. Any notice or demand which is required or provided to be
given under this Agreement shall be deemed to have been sufficiently given and
received for all purposes when delivered in writing by hand, telecopy, telex or
other method of facsimile, or five (5) days after being sent by certified or
registered mail, postage and charges prepaid, return receipt requested, or two
(2) days after being sent by overnight delivery providing receipt of delivery,
to the following addresses:
If to TWUS:
Allied Healthcare International Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxx
Telecopy No.: (000) 000-0000
With a copy to:
Xxxxx Raysman Xxxxxxxxx Xxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Telecopy No.: (000) 000-0000
If to the Investors or Triumph:
Triumph Partners III, L.P.
Triumph III Investors, L.P.
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxxxx X. Xxxxxxx XX
Telecopy No.: (000) 000-0000
20
With a copy to:
Xxxxxxx Procter LLP
Exchange Place
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx, P.C.
Telecopy No.: (000) 000-0000
If to Hyperion:
Hyperion Partners II L.P.
00 Xxxxxxx Xxxxxxxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxx
Telecopy No.: (000) 000-0000
With a copy to:
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxx, Esq.
Telecopy No.: (000) 000-0000
If to the Employees:
Allied Healthcare International Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxx and Xxxxx Xxxxx
Telecopy No.: (000) 000-0000
With a copy to:
Xxxxx Raysman Xxxxxxxxx Xxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Telecopy No.: (000) 000-0000
21
If to Paribas:
BNP Paribas
00 Xxxxxxxx Xxxxxx
Xxxxxx XX0 0XX
Xxxxxx Xxxxxxx
Attention: Xxx Xxxxxx
Telecopy No.: 44 20 7595 5596
With a copy to the attention of Xxxxxxx Xxx, at the same address
If to any other Holder of Registrable Shares:
at such Person's address for notice as set forth in the books and
records of TWUS or, as to each of the foregoing, at such other address as shall
be designated by such Person in a written notice to other parties complying as
to delivery with the terms of this subsection (a).
16. GOVERNING LAW. This Agreement shall be deemed to be a contract made
under and shall be construed in accordance with the laws of the state of New
York, without giving effect to conflict of laws principles thereof.
17. CHOICE OF LAW/CONSENT TO JURISDICTION. All disputes, claims or
controversies arising out of this Agreement, or the negotiation, validity or
performance of this Agreement shall be governed by and construed in accordance
with the laws of the State of New York without regard to its rules of conflict
of laws. Each of TWUS and the Holders hereby irrevocably and unconditionally
consents to submit to the sole and exclusive jurisdiction of the courts of the
State of New York and of the United States of America located in the State of
New York (the "New York Courts") for any litigation arising out of or relating
to this Agreement, or the negotiation, validity or performance of this Agreement
(and agrees not to commence any litigation relating thereto except in such
courts), waives any objection to the laying of venue of any such litigation in
the New York Courts and agrees not to plead or claim in any New York Court that
such litigation brought therein has been brought in any inconvenient forum. Each
of the parties hereto agrees, (a) to the extent such party is not otherwise
subject to service of process in the State of New York, to appoint and maintain
an agent in the State of New York as such party's agent for acceptance of legal
process, and (b) that service of process may also be made on such party by
prepaid certified mail with a proof of mailing receipt validated by the United
States Postal Service constituting evidence of valid service. Service made
pursuant to (a) or (b) above shall have the same legal force and effect as if
served upon such party personally within the State of New York. For purposes of
implementing the parties' agreement to appoint and maintain an agent for service
of process in the State of New York, each party shall appoint an agent that is
reasonably acceptable to the Holders and TWUS.
18. COUNTERPARTS. This Agreement may be executed simultaneously in any
number of counterparts, each of which when so executed and delivered shall be
taken to be an original, but such counterparts shall together constitute but one
and the same document.
22
19. SEVERABILITY. Whenever possible, each provision of this Agreement shall
be interpreted in such a manner as to be effective and valid under applicable
law, but if any provision of this Agreement shall be deemed prohibited or
invalid under such applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, and such prohibition or invalidity
shall not invalidate the remainder of such provision or the other provisions of
this Agreement.
20. INTEGRATION. This Agreement, including the exhibits, the Reorganization
Agreement and instruments referred to herein or therein, constitutes the entire
agreement, and supersedes all other prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof.
23
IN WITNESS WHEREOF, the parties hereto have caused this Registration Rights
Agreement to be duly executed as of the date first set forth above.
TWUS:
-----
ALLIED HEALTHCARE INTERNATIONAL INC.
(F/K/A TRANSWORLD HEALTHCARE, INC.)
By: /s/ Xxxx X. Xxxxx
------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
S-1
HOLDERS:
TRIUMPH PARTNERS III, L.P.
By: Triumph III Advisors, L.P., its general
partner
By: /s/ Xxxxxxxxx X. Xxxxxxx, XX
-----------------------------------------
Name: Xxxxxxxxx X. Xxxxxxx, XX
Title: President
TRIUMPH III INVESTORS, L.P.
By: Triumph III Investors, Inc., its general
partner
By: /s/ Xxxxxxxxx X. Xxxxxxx, XX
-----------------------------------------
Name: Xxxxxxxxx X. Xxxxxxx, XX
Title: President
S-2
HYPERION PARTNERS II L.P.
By: Hyperion Ventures II L.P.
its general partner
By: Hyperion Funding II Corp.
its general partner
By: /s/ Xxxxx X. Xxxx
------------------------------------
Name: Xxxxx X. Xxxx
Title: Executive Vice President
HYPERION TW FUND L.P.
By: Hyperion TW LLC
its general partner
By: Hyperion Partners II L.P.,
its managing member
By: Hyperion Ventures II L.P.,
its general partner
By: Hyperion Funding II Corp.,
its general partner
By: /s/ Xxxxx X. Xxxx
------------------------------------
Name: Xxxxx X. Xxxx
Title: Executive Vice President
HYPERION TWH FUND LLC
By: /s/ Xxxxx X. Xxxx
------------------------------------
Name: Xxxxx X. Xxxx
Title: Managing Member
HYPERION TWH FUND II LLC
By: /s/ Xxxxx X. Xxxx
------------------------------------
Name: Xxxxx X. Xxxx
Title: Managing Member
S-3
ORDINARY SHAREHOLDERS:
----------------------
/s/ Xxxxxxx Xxxxxx
------------------------------------
Xxxxx Xxxx Xxxxxxxx, by her duly
authorized Attorney
/s/ Xxxxxxx Xxxxxx
------------------------------------
Xxxxxxx Xxxxxxx , by her duly
authorized Xxxxxxxx
X-0
REDEEMABLE SHAREHOLDERS:
------------------------
MLS INVESTMENTS LIMITED, by its duly XXXXXXX XXXXX and XXXXX XXXXX,
authorized Attorney JOINTLY
By: /s/ Xxxxxxx Xxxxxx By: /s/ Xxxxxxx Xxxxxx
--------------------------------------- -------------------------------------------
Name: Xxxxxxx Xxxxxx Xxxxxxx Xxxxx, by his duly authorized Attorney
Title: Group Finance Director
By: /s/ Xxxxxxx Xxxxxx
-------------------------------------------
Xxxxx Xxxxx, by her duly authorized Attorney
/s/ Xxxxxxx Xxxxxx /s/ Xxxxxxx Xxxxxx
--------------------------------------- -----------------------------------------------
Xxxxx Xxxxxxx, by his duly authorized Xxxxxxx Xxxxxxxx, by his duly authorized
Attorney Attorney
/s/ Xxxxxxx Xxxxxx /s/ Xxxxxxx Xxxxxx
--------------------------------------- -----------------------------------------------
Xxxxxxx Xxxxxx Xxxxxx Xxxxxxxx, by his duly authorized
Attorney
/s/ Xxxxxxx Xxxxxx /s/ Xxxxxxx Xxxxxx
--------------------------------------- -----------------------------------------------
Xxxxxx Xxxxxxx, by his duly authorized Xxx Xxxx, by his duly authorized
Attorney Attorney
/s/ Xxxxxxx Xxxxxx /s/ Xxxxxxx Xxxxxx
--------------------------------------- -----------------------------------------------
Xxxxxx Xxxx, by her duly authorized Xxxxx Xxxxxx, by his duly authorized Attorney
Attorney
/s/ Xxxxxxx Xxxxxx /s/ Xxxxxxx Xxxxxx
--------------------------------------- -----------------------------------------------
Xxxxxxx Xxxxxx, by her duly authorized Xxxxx Xxxxxxxx, by her duly authorized Attorney
Attorney
/s/ Xxxxxxx Xxxxxx /s/ Xxxxxxx Xxxxxx
--------------------------------------- -----------------------------------------------
Xxx Faun, by his duly authorized Xxxx Xxxxxxx, by his duly authorized Attorney
Attorney
/s/ Xxxxxxx Xxxxxx /s/ Xxxxxxx Xxxxxx
--------------------------------------- -----------------------------------------------
Xxxxxx Xxx, by his duly authorized Xxxxx Xxxx, by her duly authorized Attorney
Attorney
/s/ Xxxxxxx Xxxxxx /s/ Xxxxxxx Xxxxxx
--------------------------------------- -----------------------------------------------
Xxxxx Xxxxxx, by his duly authorized Xxxxx Xxxxxxx, by his duly authorized Attorney
Xxxxxxxx
X-0
/s/ Xxxxxxx Xxxxxx /s/ Xxxxxxx Xxxxxx
---------------------------------------- ----------------------------------------
Xxxxxxxx Xxxxx, by her duly authorized Xxxxxx Xxxxxxx, by her duly authorized
Attorney Attorney
/s/ Xxxxxxx Xxxxxx /s/ Xxxxxxx Xxxxxx
---------------------------------------- ----------------------------------------
Xxxxxx Xxxx, by her duly authorized Xxxxx Balls, by her duly authorized
Attorney Attorney
/s/ Xxxxxxx Xxxxxx /s/ Xxxxxxx Xxxxxx
---------------------------------------- ----------------------------------------
Xxxxxxx Xxxx, by her duly authorized Xxx Xxxxxx, by his duly authorized
Attorney Attorney
/s/ Xxxxxxx Xxxxxx /s/ Xxxxxxx Xxxxxx
---------------------------------------- ----------------------------------------
Xxxxxx Xxxxxxx, by her duly authorized Xxxxx Xxxx, by her duly authorized
Attorney Attorney
/s/ Xxxxxxx Xxxxxx /s/ Xxxxxxx Xxxxxx
---------------------------------------- ----------------------------------------
Xxxx Xxxxx, by her duly authorized Xxxxx Xxxxx, by her duly authorized
Attorney Attorney
/s/ Xxxxxxx Xxxxxx /s/ Xxxxxxx Xxxxxx
---------------------------------------- ----------------------------------------
Xxxxxxx Xxxxxxx Newens, by her duly Xxxxxx Xxxxxxx, by her duly authorized
authorized Attorney Attorney
/s/ Xxxxxxx Xxxxxx /s/ Xxxxxxx Xxxxxx
---------------------------------------- ----------------------------------------
Xxxxxxx Xxxxx, by her duly authorized Xxxxx Xxxxxxxxxx, by her duly authorized
Attorney Attorney
/s/ Xxxxxxx Xxxxxx /s/ Xxxxxxx Xxxxxx
---------------------------------------- ----------------------------------------
Xxxxxxx Xxxxxxxxx, by her duly authorized Xxxxxx Xxxxxxxxx, by her duly authorized
Attorney Attorney
/s/ Xxxxxxx Xxxxxx
----------------------------------------
Xxxxxxxx Xxxxx, by her duly authorized
Xxxxxxxx
X-0
/s/ Xxxxxxx Xxxxxx
----------------------------------------
Fiona Key, by her duly authorized
Xxxxxxxx
X-0
EQUITY WARRANT HOLDERS:
TRIUMPH PARTNERS III, L.P.
By: Triumph III Advisors, L.P., its general
partner
By: /s/ Xxxxxxxxx X. Xxxxxxx, XX
-------------------------------------------
Name: Xxxxxxxxx X. Xxxxxxx, XX
Title: President
TRIUMPH III INVESTORS, L.P.
By: Triumph III Investors, Inc., its general
partner
By: /s/ Xxxxxxxxx X. Xxxxxxx, XX
-------------------------------------------
Name: Xxxxxxxxx X. Xxxxxxx, XX
Title: President
BNP PARIBAS
By: /s/ Xxx Xxxxxx /s/ Xxx Xxxxxx
-------------------------------------------
Name: Xxx Xxxxxx Xxx Xxxxxx
------------------------------------------
Title:
-----------------------------------------
XXXXXX (ENGLISH) COMPANY LIMITED
By: /s/ Xxx Xxxxxx
-------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
S-8
/s/ Xxx Xxxxxx
--------------------------------------------
Xxxxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxx
--------------------------------------------
Xxxxx X. Xxxxx
/s/ Xxxxxxx Xxxxxx
--------------------------------------------
Xxxxxxx Xxxxxxxx, by his duly authorized
Attorney
/s/ Xxxxxxx Xxxxxx
--------------------------------------------
Xxxxx Xxxxxxx, by his duly authorized
Attorney
/s/ Xxxxxxx Xxxxxx
--------------------------------------------
Xxxxxxx Xxxxxx
/s/ Xxxxxxx Xxxxxx
--------------------------------------------
Xxxxx Xxxxxxxxx, by his duly authorized
Attorney
/s/ Xxxxxxx Xxxxxx
--------------------------------------------
Xxxxxx Xxxxxxx, by his duly authorized
Xxxxxxxx
X-0
ZRH Nominees (0051) Limited, acting by its
duly authorized Attorney
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Group Finance Director
Orion Nominees Limited, acting by its duly
authorized Attorney
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Group Finance Director
THE EMPLOYEES:
--------------
/s/ Xxx Xxxxxx
---------------------------------------------
Xxxxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxx
---------------------------------------------
Xxxxx X. Xxxxx
BNP PARIBAS
-----------
By: /s/ Xxx Xxxxxx /s/ Xxx Xxxxxx
-----------------------------------------
Name: Xxx Xxxxxx Xxx Xxxxxx
----------------------------------------
Title:
---------------------------------------
S-10
MEZZANINE WARRANT HOLDERS:
--------------------------
BNP PARIBAS
By: /s/ Xxx Xxxxxx /s/ Xxx Xxxxxx
------------------------------------------
Name: Xxx Xxxxxx Xxx Xxxxxx
-----------------------------------------
Title:
----------------------------------------
BAYERISCHE HYPO-UND
VEIRENSBANK AG
By: /s/ Xxx Xxxx /s/ Guy Beeston
------------------------------------------
Name: Xxx Xxxx Guy Beeston
-----------------------------------------
Title: VP VP
----------------------------------------
NMB XXXXXX
By: /s/ J.P. Onslow
----------------------------------------
Name: J.P. Onslow
Title: Director
S-11
EXHIBIT A
ORDINARY SHAREHOLDERS
---------------------
Xxxxx Xxxx Xxxxxxxx
Xxxxxxx Xxxxxxx
EXHIBIT B
REDEEMABLE SHAREHOLDERS
-----------------------
MLS Investments Limited
Xxxxxxx Xxxxx and Xxxxx Xxxxx (jointly)
Xxxxx Xxxxxxx
Xxxxxxx Xxxxxx
Xxxxxx Xxxxxxx
Xxxxxx Xxxx
Xxxxxxx Xxxxxx
Xxx Faun
Xxxxxx Xxx
Xxxxx Xxxxxx
Xxxxxxx Xxxxxxxx
Xxxxxx Xxxxxxxx
Xxx Xxxx
Xxxxx Xxxxxx
Xxxxx Xxxxxxxx
Xxxx Xxxxxxx
Xxxxx Xxxx
Xxxxx Xxxxxxx
Xxxxxxx Xxxxxx
Xxxxxxxx Xxxxx
Xxxxxx Xxxx
Xxxxxxx Xxxx
Xxxxxx Xxxxxxx
Xxxx Xxxxx
Xxxxxxx Xxxxxxx Xxxxxx
Xxxxxxx Xxxxx
Xxxxxxx Xxxxxxxxx
Xxxxx Key
Xxxxxx Xxxxxxx
Xxxxx Balls
Xxx Xxxxxx
Xxxxx Xxxx
Xxxxx Xxxxx
Xxxxxx Xxxxxxx
Xxxxx Xxxxxxxxxx
Xxxxxx Xxxxxxxxx
Xxxxxxxx Xxxxx
EXHIBIT C
EQUITY WARRANT HOLDERS
----------------------
Triumph Partners III, L.P.
Triumph III Investors, L.P.
BNP Paribas
Xxxxxx (English) Company Limited
Xxxxxxx X. Xxxxxx
ZRH Nominees (0051) Limted
Xxxxx X. Xxxxx
Orion Nominees Limited
Xxxxxxx Xxxxxxxx
Xxxxx Xxxxxxx
Xxxxxxx Xxxxxx
Xxxxx Xxxxxxxxx
Xxxxxx Xxxxxxx
EXHIBIT D
---------
MEZZANINE WARRANT HOLDERS
-------------------------
BNP Paribas
Bayerische Hypo-Und Veirensbank AG
NMB Xxxxxx
