EXHIBIT 4.1
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as of
September 22, 2003 by and among Crdentia Corp., a Delaware corporation (the
"Company"), and the investors listed on Schedule A hereto (individually, an
"Investor" and collectively, the "Investors").
RECITALS:
A. The Company, NAS Acquisition Corporation, a Delaware corporation
and a wholly-owned subsidiary of the Company, and New Age Staffing, Inc., a
Texas corporation, are parties to an Agreement and Plan of Reorganization
dated September 15, 2003 (the "Merger Agreement"); and
B. In order to induce the parties to the Merger Agreement to consummate
the transactions contemplated thereby, the Investors and the Company hereby
agree that this Agreement, among other things, shall govern the rights of
the Investors to cause the Company to register shares of Common Stock of
the Company issuable to the Investors.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants and conditions set forth in this
Agreement and the Merger Agreement, the parties hereto agree as follows:
1. Registration Rights. The Company covenants and agrees as follows:
1.1 Definitions. For purposes of this Agreement:
(a) The term "Act" means the Securities Act of 1933, as amended.
(b) The term "Form S 3" means such form under the Act as in
effect on the date hereof or any registration form under the Act
subsequently adopted by the SEC which permits inclusion or incorporation of
substantial information by reference to other documents filed by the
Company with the SEC.
(c) The term "Holder" means any person owning or having the
right to acquire Registrable Securities or any assignee thereof in
accordance with Section 1.10 hereof.
(d) The term "1934 Act" shall mean the Securities Exchange Act
of 1934, as amended.
(e) The term "register," "registered," and "registration" refer
to a registration effected by preparing and filing a registration statement
or similar document in compliance with the Act, and the declaration or
ordering of effectiveness of such registration statement or document.
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(f) The term "Registrable Securities" means (i) the Common Stock
of the Company issued to the Investors as a result of the consummation of
the transactions contemplated by the Merger Agreement and (ii) any Common
Stock of the Company issued as (or issuable upon the conversion or exercise
of any warrant, right or other security which is issued as) a dividend or
other distribution with respect to, or in exchange for or in replacement of
the shares referenced in (i) above, excluding in all cases, however, any
Registrable Securities sold by a person in a transaction in which his rights
under this Section 1 are not assigned pursuant to the terms of this
Agreement.
(g) The number of shares of "Registrable Securities then
outstanding" shall be determined by the number of shares of Common Stock
outstanding which are, and the number of shares of Common Stock issuable
pursuant to then exercisable or convertible securities which are,
Registrable Securities.
(h) The term "SEC" shall mean the Securities and Exchange
Commission.
1.2 Company Registration. If (but without any obligation to do so)
the Company proposes to register any of its stock or other securities under
the Act in connection with the public offering of such securities solely
for cash (other than a registration under Section 1.3 or relating solely to
the sale of securities to participants in a Company employee benefit plan
or corporate reorganization or other transaction covered by Rule 145
promulgated under the Act, or a registration on any form which does not
permit secondary sales or include substantially the same information as
would be required to be included in a registration statement covering the
sale of the Registrable Securities), the Company shall, at such time,
promptly give each Holder written notice of such registration. Upon the
written request of each Holder given within twenty (20) days after mailing
of such notice by the Company in accordance with Section 2.6 hereof, the
Company shall, subject to the provisions of Section 1.7 hereof, cause to
be registered under the Act all of the Registrable Securities that each
such Holder has requested to be registered.
1.3 Form S-3 Registration. In case the Company shall receive from
any Holder or Holders a written request or requests that the Company effect
a registration on Form S-3 and any related qualification or compliance with
respect to all or a part of the Registrable Securities owned by such Holder
or Holders, the Company will:
(a) promptly give written notice of the proposed registration,
and any related qualification or compliance, to all other Holders; and
(b) as soon as practicable, effect such registration and all
such qualifications and compliances as may be so requested and as would
permit or facilitate the sale and distribution of all or such portion of
such Holder's or Holders' Registrable Securities as are specified in such
request, together with all or such portion of the Registrable Securities of
any other Holder or Holders joining in such request as are specified in a
written request given within fifteen (15) days after receipt of such written
notice from the Company; provided, however, that the Company shall not be
obligated to effect any such registration, qualification or compliance,
pursuant to this Section 1.3: (i) if Form S-3 is not available for such
offering by the Holders; (ii)
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if the Holders propose to sell Registrable Securities and such other
securities (if any) at an aggregate price to the public (net of any
underwriters' discounts or commissions) of less than $2,000,000; (iii) if
the Company shall furnish to the Holders a certificate signed by the
President or Chief Executive Officer of the Company stating that in the
good faith judgment of the Board of Directors of the Company, it would be
seriously detrimental to the Company and its stockholders for such Form S-3
Registration to be effected at such time, in which event the Company shall
have the right to defer the filing of the Form S-3 registration statement
for a period of not more than ninety (90) days after receipt of the request
of the Holder under this Section 1.3; provided, however, that (a) the
Company shall not utilize this right more than once in any twelve (12)
month period and (b) downward pressure on the Company's stock price
resulting from the filing of the Form S-3 registration statement shall not
be deemed to be seriously detrimental to the Company and its stockholders
for purposes of this Section 1.3; or (iv) in any particular jurisdiction in
which the Company would be required to qualify to do business or to execute
a general consent to service of process in effecting such registration,
qualification or compliance.
(c) Subject to the foregoing, the Company shall file a
registration statement covering the Registrable Securities and other
securities so requested to be registered as soon as practicable after
receipt of the request or requests of the Holders.
1.4 Obligations of the Company. Whenever required under this
Section 1 to effect the registration of any Registrable Securities, the
Company shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its reasonable best efforts
to cause such registration statement to become effective, and, upon the
request of the Holders of a majority of the Registrable Securities
registered thereunder, keep such registration statement effective for up to
one hundred twenty (120) days or, if earlier, the date on which the
distribution contemplated in the registration statement has been completed.
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection with such registration statement as may be necessary to comply
with the provisions of the Act with respect to the disposition of all
securities covered by such registration statement.
(c) Furnish to the Holders such number of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Act, and such other documents as they may reasonably
request in order to facilitate the disposition of Registrable Securities
owned by them that are included in such registration.
(d) Use its reasonable best efforts to register and qualify the
securities covered by such registration statement under such other
securities or Blue Sky laws of such jurisdictions as shall be reasonably
requested by the Holders; provided, however, that the Company shall not be
required in connection therewith or as a condition thereto to qualify to do
business or to file a general consent to service of process in any such
states or jurisdictions.
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(e) In the event of any underwritten public offering, enter into
and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering. Each
Holder participating in such underwriting shall also enter into and perform
its obligations under such agreement.
(f) Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Act of the happening of any event the
result of which causes the prospectus included in such registration
statement, as then in effect, to 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; and thereafter, the Company will use reasonable
efforts to amend or supplement such prospectus in order to cause such
prospectus not to include any 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 circumstances then
existing; provided, however, that upon such notification by the Company,
the Holders will not offer or sell Registrable Securities until the Company
has notified the Holders that it has prepared a supplement or amendment to
such prospectus and delivered copies of such supplement or amendment to the
Holders (it being understood and agreed by the Company that the foregoing
proviso shall in no way diminish or otherwise impair the Company's
obligations to prepare a prospectus amendment or supplement as above
provided in this Section 1.4(f)).
(g) Cause all such Registrable Securities registered pursuant
hereunder to be listed on each securities exchange on which similar
securities issued by the Company are then listed.
(h) Provide a transfer agent and registrar for all Registrable
Securities registered pursuant hereunder and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of
such registration.
(i) Use its reasonable best efforts to furnish, at the request
of any Holder requesting registration of Registrable Securities pursuant to
this Section 1, on the date that such Registrable Securities are delivered
to the underwriters for sale in connection with a registration statement
pursuant to this Section 1, if such securities are being sold through
underwriters, or, if such securities are not being sold through
underwriters, on the date that the registration statement with respect to
such securities becomes effective, (i) an opinion, dated such date, of the
counsel representing the Company for the purposes of such registration, in
form and substance as is customarily given to underwriters in an
underwritten public offering, addressed to the underwriters, if any, and to
the Holders requesting registration of the Registrable Securities, and (ii)
a letter dated such date, from the independent certified public accountants
of the Company, in form and substance as is customarily given by independent
certified public accountants to underwriters in an underwritten public
offering, addressed to the underwriters, if any, and to the Holders
requesting registration of Registrable Securities.
(j) Notify each seller of Registrable Securities under such
registration statement of (i) the effectiveness of such registration
statement, (ii) the filing of any post-
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effective amendments to such registration statement, or (iii) the filing of
a supplement to such registration statement.
1.5 Furnish Information.
(a) It shall be a condition precedent to the obligations of the
Company to take any action pursuant to this Section 1 with respect to the
Registrable Securities of any selling Holder that such Holder shall furnish
to the Company such information regarding itself, the Registrable Securities
held by it, and the intended method of disposition of such securities as
shall be required to effect the registration of such Holder's Registrable
Securities.
(b) The Company shall have no obligation with respect to any
registration requested pursuant to Section 1.3 hereof if, as a result of
the application of subsection 1.5(a), the number of shares or the
anticipated aggregate offering price of the Registrable Securities to be
included in the registration does not equal or exceed the number of shares
or the anticipated aggregate offering price required to originally trigger
the Company's obligation to initiate such registration as specified in
Section 1.3 hereof.
1.6 Expenses of Registration. All expenses (other than underwriting
discounts and commissions) incurred in connection with any registrations,
filings or qualifications of Registrable Securities pursuant to Sections 1.2
or 1.3, including (without limitation) all federal or state registration,
filing and qualification fees, printers' and accounting fees and fees and
disbursements of counsel for the Company shall be borne by the Company.
Notwithstanding the foregoing, the Company shall not be required to pay for
any expenses of any registration proceeding begun pursuant to Section 1.3
if the registration request is subsequently withdrawn at the request of the
Holders of a majority of the Registrable Securities to be registered, unless
the withdrawal is based upon a material adverse development concerning the
Company and the Holders have withdrawn the request with reasonable
promptness following disclosure by the Company of such material adverse
change.
1.7 Underwriting Requirements. In connection with any offering
involving an underwriting of shares of the Company's capital stock, the
Company shall not be required under Section 1.2 hereof to include any of
the Holders' securities in such underwriting unless they accept the terms
of the underwriting as agreed upon between the Company and the underwriters
selected by it (or by other persons entitled to select the underwriters),
and then only in such quantity as the underwriters determine in their sole
discretion will not jeopardize the success of the offering by the Company.
If the total amount of securities, including Registrable Securities,
requested by stockholders to be included in such offering exceeds the amount
of securities sold other than by the Company that the underwriters
determine in their sole discretion is compatible with the success of the
offering, then the Company shall be required to include in the offering only
that number of such securities, including Registrable Securities, which the
underwriters determine in their sole discretion will not jeopardize the
success of the offering (the securities so included to be apportioned pro
rata among the selling stockholders according to the total amount of
securities entitled to be included therein owned by each selling stockholder,
or in such other proportions as shall mutually be agreed to by such selling
stockholders). For purposes of the preceding parenthetical concerning
apportionment, for any selling stockholder which is a holder of Registrable
Securities and which is a limited liability company, partnership or
corporation, the members, partners, retired partners and stockholders of
such holder, or the estates and family members of any such members, partners
and retired partners and any trusts for the benefit of any of the foregoing
persons shall be deemed to be a single "selling stockholder," and any pro-
rata reduction with respect to such "selling stockholder" shall be based
upon the aggregate amount of shares carrying registration rights owned by
all entities and individuals included in such "selling stockholder," as
defined in this sentence.
1.8 Delay of Registration. No Holder shall have any right to
obtain or seek an injunction restraining or otherwise delaying any such
registration as the result of any controversy that might arise with respect
to the interpretation or implementation of this Section 1.
1.9 Indemnification. In the event any Registrable Securities are
included in a registration statement under this Section 1:
(a) To the maximum extent permitted by law, the Company will
indemnify and hold harmless each Holder, the partners, officers, and
directors of each Holder, any underwriter (as defined in the Act) for such
Holder and each person, if any, who controls such Holder or underwriter
within the meaning of the Act or the 1934 Act, against any losses, claims,
damages or liabilities (joint or several) to which they may become subject
under the Act, the 1934 Act or any state securities law, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any of the following statements, omissions
or violations (collectively a "Violation"): (i) any untrue statement or
alleged untrue statement of a material fact contained in such registration
statement, including any preliminary prospectus or final prospectus
contained therein or any amendments or supplements thereto, (ii) 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 (iii) any violation or alleged violation by the Company of
the Act, the 1934 Act, or any rule or regulation promulgated under the Act
or the 1934 Act or any state securities law in connection with the offering
covered by such Registration Statement; and the Company will pay to each
such Holder, partner, officer, director, underwriter or controlling person,
as incurred, any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the indemnity agreement
contained in this subsection 1.9(a) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability, or action if such
settlement is effected without the consent of the Company (which consent
shall not be unreasonably withheld or delayed), nor shall the Company be
liable to any Holder, underwriter or controlling person for any such loss,
claim, damage, liability or action to the extent that it arises out of or
is based upon a Violation which occurs in reliance upon and in conformity
with written information furnished expressly for use in connection with
such registration by any such Holder, partner, officer, director,
underwriter or controlling person.
(b) To the maximum extent permitted by law, each selling Holder
will, if Registrable Securities held by such Holder are included in the
applicable registration statement, indemnify and hold harmless the Company,
each of its directors, each of its officers who has signed the registration
statement, each person, if any, who controls the Company within the meaning
of the Act, any underwriter, any other Holder selling securities in such
registration statement and any controlling person of any such underwriter
or other Holder, against any losses, claims, damages or liabilities (joint
or several) to which any of the foregoing persons may
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become subject under the Act or the 1934 Act or any state securities law in
connection with the offering covered by such registration statement
insofar as such losses, claims, damages or liabilities (or actions in
respect thereto) arise out of or are based upon any Violation, in each
case to the extent (and only to the extent) that such Violation occurs in
reliance upon and in conformity with written information furnished by such
Holder expressly for use in connection with such registration; and each
such Holder will pay any legal or other expenses reasonably incurred by any
person intended to be indemnified pursuant to this subsection 1.9(b), in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the indemnity agreement
contained in this subsection 1.9(b) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Holder (which consent
shall not be unreasonably withheld or delayed); provided further, that in
no event shall any indemnity under this subsection 1.9(b) exceed the net
proceeds from the offering received by such Holder, except in the case of
willful misconduct or fraud by such Holder.
(c) Promptly after receipt by an indemnified party under this
Section 1.9 of notice of the commencement of any action (including any
governmental action) as to which indemnity may be sought hereunder, such
indemnified party will, if a claim in respect thereof is to be made against
any indemnifying party under this Section 1.9, deliver to the indemnifying
party a written notice of the commencement thereof. The indemnifying party
shall have the right to participate in, and, to the extent the indemnifying
party so desires, jointly with any other indemnifying party similarly
noticed, to assume the defense thereof with counsel mutually satisfactory
to the parties; provided, however, that an indemnified party (together with
all other indemnified parties which may be represented without conflict by
one counsel) shall have the right to retain one separate counsel, with the
reasonable fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential
differing interests between such indemnified party and any other party
represented by such counsel in such proceeding. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action, if materially prejudicial to its ability
to defend such action, shall relieve such indemnifying party of any
liability to the indemnified party under this Section 1.9, but the omission
to so deliver written notice to the indemnifying party will not relieve the
indemnifying party of any liability that it may have to any indemnified
party otherwise than under this Section 1.9. No indemnifying party, in the
defense of any such claim or litigation, shall, except upon the consent of
each indemnified party, consent to entry of any judgment or enter into any
settlement that does not include as an unconditional term thereof the giving
by the claimant or plaintiff to such indemnified party of a full and
unconditional release from all liability in respect to such claim or
litigation.
(d) The foregoing indemnity agreements of the Company and
Holders are subject to the condition that, insofar as they related to any
Violation made in a preliminary prospectus but eliminated or remedied in
the amended prospectus on file with the SEC at the time the registration
statement in question becomes effective or the amended prospectus filed
with the SEC pursuant to SEC Rule 424(b) (the "Final Prospectus"), such
indemnity agreement shall not inure to the benefit of any person if a copy
of the Final Prospectus was furnished to the indemnified party and was not
furnished to the person asserting the loss, liability, claim or damage at
or prior to the time such action is required by the Act. If the
indemnification provided
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for in this Section 1.9 is held by a court of competent jurisdiction to be
unavailable to an indemnified party with respect to any loss, claim, damage
or liability referred to herein, then the indemnifying party, in lieu of
indemnifying such indemnified party hereunder, shall contribute to the
amount paid or payable by such indemnified party as a result of such loss,
claim, damage or liability 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 that resulted in such loss, claim, damage or liability, as well
as any other relevant equitable considerations; provided, however, that in
no event shall (i) any contribution by a Holder under this subsection 1.9(d)
exceed the net proceeds from the offering received by such Holder, except
in the case of willful fraud by such Holder, and (ii) any person or entity
guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Act) be entitled to contribution from any person or entity who was
not guilty of such fraudulent misrepresentation. 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 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.
(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public offering
are in conflict with the foregoing provisions, the provisions in the
underwriting agreement shall control.
(f) The obligations of the Company and Holders under this
Section 1.9 shall survive the completion of any offering of Registrable
Securities in a registration statement under this Section 1, and otherwise.
1.10 Assignment of Registration Rights. The rights to cause the
Company to register Registrable Securities pursuant to this Section 1 may
be assigned (but only with all related obligations) by a Holder to a
transferee or assignee of such securities who, is approved in writing by
the Company or who, after such assignment or transfer, holds at least fifty
percent (50%) of the then outstanding shares of Registrable Securities,
provided: (a) the Company is, within a reasonable time after such transfer,
furnished with written notice of the name and address of such transferee or
assignee and the securities with respect to which such registration rights
are being assigned; (b) such transferee or assignee agrees in writing to be
bound by and subject to the terms and conditions of this Agreement; and (c)
such assignment of rights hereunder shall be effective only if immediately
following such transfer the further disposition of such securities by the
transferee or assignee is restricted under the Act.
1.11 Reports Under the 0000 Xxx. The Company agrees to (a) use
commercially reasonable efforts to make and keep public information
available, as those terms are understood and defined in the General
Instructions to Form S-3, or any successor or substitute form, and in Rule
144, (b) to use commercially reasonable efforts to file with the SEC in a
timely manner all reports and other documents required to be filed by an
issuer of securities registered under the Securities Act or the Exchange
Act, (c) as long as any Holder owns any Registrable Securities, to furnish
in writing upon such Holder's request a written statement by the Company
that it has complied with the reporting requirements of Rule 144 and of
the Act and
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the 1934 Act, and to furnish to such Holder a copy of the most recent
annual or quarterly report of the Company, and such other reports and
documents so filed by the Company with the SEC as may be reasonably
requested.
1.12 Deferral. Notwithstanding anything in this Agreement to the
contrary, if the Company shall furnish to the Holders a certificate signed
by the President or Chief Executive Officer of the Company stating that the
Board of Directors of the Company has made the good faith determination (a)
that continued use by the Holders of an effective registration statement
for purposes of effecting offers or sales of Registrable Securities pursuant
thereto would require, under the Act, premature disclosure in the
registration statement (or the prospectus relating thereto) of material,
nonpublic information concerning the Company, its business or prospects or
any proposed material transaction involving the Company, (b) that such
premature disclosure would be materially adverse to the Company, its
business or prospects or any such proposed material transaction or would
make the successful consummation by the Company of any such material
transaction significantly less likely and (c) that it is therefore
essential to suspend the use by the Holders of any such registration
statement (and the prospectus relating thereto) for purposes of effecting
offers or sales of Registrable Securities pursuant thereto, then the right
of the Holders to use any such registration statement (and the prospectus
relating thereto) for purposes of effecting offers or sales of Registrable
Securities pursuant thereto shall be suspended until further notice by the
Company (the "Suspension Period"); provided, however, that (i) the
Suspension Period shall not exceed ninety (90) days following the delivery
by the Company of the certificate referred to above in this Section 1.12
and (ii) the Company will use its reasonable best efforts to notify the
Holders at such time that it is no longer essential to suspend the use by
the Holders of any such registration statement (and the prospectus relating
thereto) pursuant to this Section 1.12. During the Suspension Period, none
of the Holders shall offer or sell any Registrable Securities pursuant to
or in reliance upon any such registration statement (or the prospectus
relating thereto).
2. Miscellaneous.
2.1 Successors and Assigns. Except as otherwise provided herein,
the terms and conditions of this Agreement shall inure to the benefit of
and be binding upon the respective successors and assigns of the parties
(including transferees of any shares of Registrable Securities). Nothing
in this Agreement, express or implied, is intended to confer upon any party
other than the parties hereto or their respective successors and assigns
any rights, remedies, obligations, or liabilities under or by reason of
this Agreement, except as expressly provided in this Agreement.
2.2 Governing Law. This Agreement shall be governed by and
construed under the laws of the State of Delaware as applied to agreements
among Delaware residents entered into and to be performed entirely within
Delaware.
2.3 Submission to Jurisdiction; Waivers. Each of the parties
hereto irrevocably agrees that any legal action or proceeding with respect
to this Agreement or for the recognition and enforcement of any judgment in
respect hereof brought by the other party hereto or its successors or assigns
will be brought and determined in the Chancery or other courts of the State
of Delaware, and each of the parties hereby irrevocably submits with regard
to any such
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action or proceeding for itself and in respect to its property, generally
and unconditionally, to the exclusive jurisdiction of the aforesaid courts.
Each of the parties hereto hereby irrevocably waives, and agrees not to
assert, by way of motion, as a defense, counterclaim or otherwise, in any
action or proceeding with respect to this Agreement, (a) any claim that it
is not personally subject to the jurisdiction of the above-named courts for
any reason other than the failure to lawfully serve process, (b) that it or
its property is exempt or immune from jurisdiction of any such court or
from any legal process commenced in such courts (whether through service of
notice, attachment prior to judgment, attachment in aid of execution of
judgement, execution of judgment or otherwise), (c) to the fullest extent
permitted by applicable law, that (i) the suit, action or proceeding in any
such court is brought in an inconvenient forum, (ii) the venue of such suit,
action, or proceeding is improper and (iii) this Agreement, or the subject
matter hereof, may not be enforced in or by such courts and (d) any right
to trial by jury.
2.4 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
2.5 Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
2.6 Notices. All notices and other communications required or
permitted hereunder shall be in writing and shall be deemed effectively
given: (a) upon personal delivery to the party to be notified, (b) when sent
by confirmed facsimile if sent during normal business hours of the
recipient or, if not sent during normal business hours, then on the next
business day, (c) three days after having been sent by registered or
certified mail, return receipt requested, postage prepaid, or (d) one day
after deposit with a nationally recognized overnight courier, specifying
next day delivery, with written verification of receipt. All communications
shall be sent to the address as set forth on the signature page hereof or
at such other address as such party may designate by 10 days advance written
notice to the other parties hereto.
2.7 Expenses. 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 attorneys' fees, costs and necessary disbursements
in addition to any other relief to which such party may be entitled.
2.8 Amendments and Waivers. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the holders
of a majority of the Registrable Securities then outstanding. Any amendment
or waiver effected in accordance with this paragraph shall be binding upon
each holder of any Registrable Securities then outstanding, each future
holder of all such Registrable Securities, and the Company.
2.9 Severability. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, such provision shall be
excluded from this Agreement and
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the balance of the Agreement shall be interpreted as if such provision were
so excluded and shall be enforceable in accordance with its terms.
2.10 Aggregation of Stock. All shares of Registrable Securities
held or acquired by affiliated entities or persons shall be aggregated
together for the purpose of determining the availability of any rights
under this Agreement.
2.11 Entire Agreement; Amendment; Waiver. This Agreement (including
Schedule A hereto) constitutes the full and entire understanding and
agreement between the parties with regard to the subjects hereof and thereof.
[Remainder of page intentionally left blank.]
11
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
CRDENTIA CORP.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Chief Executive Officer
Address: 000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
INVESTORS:
By: /s/ Xxxx Xxxxxx, Xx.
Name: Xxxx Xxxxxx, Xx.
Address: 0000 00xx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
By: /s/ Xxxx Xxxxxx, Xx.
Name: Xxxx Xxxxxx, Xx.
Address: 0000 00xx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
(SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT)
12
SCHEDULE A
SCHEDULE OF INVESTORS
Xxxx Xxxxxx, Xx.
Xxxx Xxxxxx, Xx.
A-1
