EXHIBIT 4.9.3
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement ("Agreement") is entered into as of this
30th day of December, 1996, by and between GREENBRIAR CORPORATION, a Nevada
corporation (the "Company"), and Xxxxx X. Xxxxxxx (the "Shareholder") and
evidences that for good and valuable consideration, the receipt and sufficiency
of which is acknowledged, the parties hereto agree as follows:
ARTICLE I.
INTRODUCTION
Section 1.1. Recitals. The Company and Shareholder (among others) have
entered into an Agreement and Plan of Merger dated November 21, 1996 (the
"Merger Agreement"), pursuant to which the Company will issue 870,520 shares of
the Company's common stock, par value $0.01 per share, to Shareholder, in
connection with the acquisition of American Care Communities, Inc. This
Agreement shall become effective upon the issuance of such securities to
Shareholder. Certain capitalized terms used in this Agreement are defined in
Article VI hereof; references to sections shall be to sections of this
Agreement.
ARTICLE II.
DEMAND REGISTRATION
Section 2.1. Request. At any time after two years from the closing of the
Merger Agreement, upon the written request of a Shareholder, requesting that the
Company effect the registration under the Securities Act of all or part of such
Shareholders' Registrable Securities and specifying the intended method of
disposition thereof, the Company will use its best efforts to effect the
registration under the Securities Act of the Registrable Securities which the
Company has been so requested to be registered by such Shareholder for
disposition in accordance with the intended method of disposition stated in such
request; provided, that, the provisions of this Article II shall not require the
Company to effect more than two registrations of Registrable Securities.
Section 2.2. Registration Statement Form. Registrations under this Article
II shall be on an appropriate registration form of the Commission (i) as shall
be selected by the Company and shall be reasonably acceptable to the Shareholder
and (ii) as shall permit the disposition of such Registrable Securities in
accordance with the intended method or methods of disposition specified in their
request for such registration. The Company agrees to include in any such
registration statement all information which holders of Registrable Securities
being registered shall reasonably request.
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Section 2.3. Expenses. The Company will pay all Registration Expenses in
connection with any registrations requested pursuant to this Article II.
Section 2.4. Selection of Underwriters. If a requested registration
pursuant to this Article II involves an underwritten offering, the underwriter
or underwriters thereof shall be selected by the Company and shall be reasonably
acceptable to a majority of the shareholders included in the offering.
Section 2.5. Priority in Requested Registrations. If a requested
registration pursuant to this Article II involves an underwritten offering, and
the managing underwriter shall advise the Company in writing (with a copy to
each holder of Registrable Securities requesting registration) that, in its
opinion, the number of securities requested to be included in such registration
(including securities of the Company which are not Registrable Securities)
exceeds the number which can be sold in such offering within a price range
reasonably acceptable to the Company and to the holders of a majority (by number
of shares) of the Registrable Securities requested to be included in such
registration, the Company will include in such registration, to the extent of
the number which the Company is so advised can be sold in such offering, the
Registrable Securities, and other securities of the Company to be included in
such registration in proportion to the amounts of each originally proposed to be
included.
Section 2.6. Not a Requested Registration if Company Participates. If the
Company registers any of its securities on its own behalf in a Registration
initiated as a requested registration pursuant to this Article II, such
requested registration shall not count for the purposes of determining the
number of requested registrations which holders of Registrable Securities are
entitled to under this Article II; provided, however, that the registration
shall continue to be a requested registration for all other purposes.
ARTICLE III.
"PIGGY BACK" REGISTRATION
Section 3.1. Right to Include Registrable Securities. If the Company at any
time proposes to file a registration statement under the Securities Act covering
any of its securities (other than a registration on Form S-8 or S-4, or any
successor or similar forms, other than pursuant to Article II, and other than in
the currently planned Company registration statement on Form S-1), whether or
not for sale on its own account, it will each such time give prompt written
notice to all holders of Registrable Securities of its intention to do so and of
such holders' rights under this Article III. Upon the written request of any
such holder made within 30 days after the receipt of any such notice (which
request shall specify the Registrable Securities intended to be disposed of by
such holder and the intended method of disposition thereof), the Company will
use its best efforts to effect the registration under the Securities Act of all
Registrable Securities which the Company has been so requested to register by
the holders thereof, to the extent requisite to permit the disposition (in
accordance with the intended methods thereof as aforesaid) of the Registrable
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Securities so to be registered, by inclusion of such Registrable Securities in
the registration statement which covers the securities which the Company
proposes to register; provided, that if, at any time after giving written notice
of its intention to register any securities and prior to the effective date of
the registration statement filed in connection with such registration, the
Company shall determine for any reason either not to register or to delay
registration of such securities, the Company may, at its election, give written
notice of such determination to each holder of Registrable Securities and,
thereupon, (i) in the case of a determination not to register, shall be relieved
of its obligation to register any Registrable Securities in connection with such
registration (but not from its obligation to pay the Registration Expenses in
connection therewith), without prejudice, however, to the rights of any holder
or holders of Registrable Securities entitled to do so to request that such
registration be effected as a registration under Article II and (ii) in the case
of a determination to delay registering, shall be permitted to delay registering
any Registrable Securities, for the same period as the delay in registering such
other securities. No registration effected under this Article III shall relieve
the Company of its obligation to effect any registration upon request under
Article II. The Company will pay all Registration Expenses incurred by holders
by Registrable Securities in connection with each registration of Registrable
Securities requested pursuant to this Article III.
Section 3.2. Priority in Piggy-Back Registrations. If (i) a registration
pursuant to this Article III involves an underwritten offering of the securities
being registered, whether or not for sale for the account of the Company, to be
distributed (on a firm commitment basis) by or through one or more underwriters
of recognized standing under underwriting terms appropriate for such a
transaction, and (ii) the managing underwriter of such underwritten offering
shall inform the Company and holders of the Registrable Securities requesting
such registration by letter of its belief that the distribution of all or a
specified number of such Registrable Securities concurrently with the securities
being distributed by such underwriters would interfere with the successful
marketing of the securities being distributed by such underwriters (such writing
to state the basis of such belief and the approximate number of such Registrable
Securities which may be distributed without such effect), then the Company may,
upon written notice to all holders of such Registrable Securities, reduce pro
rata (if and to the extent stated by such managing underwriter to be necessary
to eliminate such effect) the number of such Registrable Securities and
securities proposed to be sold by any person other than the Company the
registration of which shall have been requested by each holder of Registrable
Securities and each person other than the Company so that the resultant
aggregate number of such Registrable Securities so included in such registration
shall be equal to the number of shares stated in such managing underwriter's
letter.
ARTICLE IV.
REGISTRATION PROCEDURES
Section 4.1. Preparation of Filings. If and whenever the Company is
required to use its best efforts to effect the registration of any Registrable
Securities under the Securities Act as provided in Articles II or III, the
following shall apply:
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(a) Registration Statement. The Company shall promptly prepare and file
(in the case of a registration pursuant to Article II, such filing to be
made within 90 days after the initial request of the holder of Registrable
Securities or in any event as soon after such request as possible) with the
Commission the requisite registration statement to effect such registration
(including such audited financial statements as may be required by the
Securities Act or the rules and regulations promulgated thereunder) and
thereafter use its best efforts to cause such registration statement to
become and remain effective.
(b) Amendments. The Company shall prepare and file with the Commission
such amendments, post effective amendments and supplements to such
registration statement and the prospectus used in connection therewith as
may be necessary to keep such registration statement effective and to comply
with the provisions of the Securities Act with respect to the disposition of
all securities covered by such registration statement for nine months or
such shorter period as all Registerable Securities have been sold in
accordance with the intended methods of disposition specified by the holders
thereof; and in the case of a registration under Article III, such period of
time as the Company determines.
(c) Copies of Documents. The Company shall furnish to each seller of
Registrable Securities covered by such registration statement and each
underwriter, if any, of the securities being sold by such seller such number
of conformed copies of such registration statement and of each amendment and
supplement thereto (in each case including all exhibits to such Registration
Statement), such number of copies of the prospectus contained in such
registration statement (including each preliminary prospectus and any
summary prospectus) and any other prospectus filed pursuant to Rule 424
under the Securities Act and such other documents, as such seller and
underwriter, if any, may reasonably request in order to facilitate the
public sale or other disposition of the Registrable Securities owned by such
Seller (it being understood that the Company consents to the use of the
prospectus and any amendments or supplement thereto by each holder of
Registrable Securities covered by the Registration Statement and the
underwriter or underwriters, if any, in connection with the offering and
sale of Registrable Securities covered by the prospectus or any amendment or
supplement thereto).
(d) Blue-Sky. The Company will use its best efforts to register or
qualify all Registrable Securities under the securities laws or blue sky
laws of the jurisdictions as any seller thereof and any underwriter of the
securities being sold by such seller and any Requesting Holder shall
reasonably request, to keep such registrations or qualifications in effect
for so long as such registration statement remains in effect, and take any
other action which may be reasonably necessary or advisable to enable such
seller and underwriter to consummate the disposition in such jurisdictions
of the securities owned by such seller, except that the Company shall not
for any such purpose be required to qualify generally to do business as a
foreign corporation in
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any jurisdiction wherein it would not but for the requirements of this
subsection (d) be obligated to be so qualified, or to consent to general
service of process in any such jurisdiction.
(e) Other Approvals. The Company will use its best efforts to cause all
Registrable Securities covered by such registration statement to be
registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the seller or sellers thereof to
consummate the intended disposition of such Registrable Securities.
(f) Opinions; Comfort Letters. The Company shall furnish to each seller
of Registrable Securities a signed counterpart, addressed to such seller,
(and the underwriters, if any) of
(i) an opinion of counsel for the Company, dated the effective date of
such registration statement (and, if such registration includes an
underwritten public offering, an opinion dated the date of the closing
under the underwriting agreement), reasonably satisfactory in form and
substance to such seller, and
(ii) a "comfort" letter, dated the effective date of such registration
statement (and, if such registration includes an underwritten public
offering, a letter dated the date of the closing under the underwriting
agreement), signed by the independent public accountants who have
certified the Company's financial statements included in such
registration statement,
covering substantially the same matters with respect to such registration
statement (and the prospectus included therein) and, in the case of the
accountants' letter, with respect to events subsequent to the date of such
financial statements, as are customarily covered in opinions of issuer's
counsel and in accountants' letters delivered to the underwriters in
underwritten public offerings of securities and, in the case of the
accountants' letter, such other financial matters, and, in the case of the
legal opinion, such other legal matters, as such seller or such Requesting
Holder (or the underwriters, if any) may reasonably request.
(g) Notice of Events. The Company will notify each seller of Registrable
Securities covered by such registration statement at any time when a
prospectus relating thereto is required to be delivered under the Securities
Act, upon the Company's discovery that, or upon the happening of any event
as a result of which, the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material
fact or omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the
circumstances under which they were made, and at the request of any such
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seller promptly prepare and furnish to such seller and each underwriter, if
any, a reasonable number of copies of a supplement to or an amendment of
such prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such securities, such prospectus shall not include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in
the light of the circumstances under which they were made.
(h) Earnings Statement. The Company will otherwise use its best efforts
to comply with all applicable rules and regulations of the Commission, and
make available to its security holders, as soon as reasonably practicable,
an earnings statement covering the period of at least twelve months, but not
more than eighteen months, beginning with the first full calendar month
after the effective date of such registration statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the Securities
Act, and will furnish to each such seller and each Requesting Holder at
least five business days prior to the filing thereof a copy of any amendment
or supplement to such registration statement or prospectus and shall not
file any thereof to which any such seller or any Requesting Holder shall
have reasonably objected on the grounds that such amendment or supplement
does not comply in all material respects with the requirements of the
Securities Act or of the rules or regulations thereunder.
(i) Listing. The Company will cause all Registrable Securities covered
by the registration statement to be listed on each securities exchange or
traded or quoted on each market on which the same class of securities issued
by the Company are then listed, traded or quoted.
(j) Transfer Agent. The Company will provide a transfer agent, registrar
and a CUSIP number for all Registrable Securities no later than the
effective date of such Registration Statement.
(k) Access. The Company will make available for inspection by any holder
of Registrable Securities included in such registration statement, any
underwriter participating in any disposition pursuant to such registration
statement, and any attorney, accountant or other agent retained by any such
seller or underwriter (collectively, the "Inspectors"), all financial and
other records, pertinent corporate documents and properties of the Company
(collectively, the "Records"), as shall be reasonably necessary to enable
them to exercise their due diligence responsibility, and cause the Company's
officers, directors and employees to supply all information reasonably
requested by any such Inspector in connection with such registration
statement; provided that records which the Company determines, in good
faith, to be confidential and which it notifies the Inspectors are
confidential shall not be disclosed to the Inspectors unless (i) the
disclosure of such Records is necessary to avoid or correct a misstatement
or omission in the registration statement or (ii) the
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release of such Records is ordered pursuant to a subpoena or other order
from a court of competent jurisdiction; provided, further, that any decision
not to disclose information pursuant to clause (i) shall be made after
consultation with counsel for the Company and counsel for such holders; and
each holder of Registrable Securities agrees that it will, upon learning
that disclosure of such Records is sought in a court of competent
jurisdiction, give notice to the Company and allow the Company at its
expense, to undertake appropriate action and to prevent disclosure of the
Records deemed confidential.
Section 4.2. Data from Holders of Registerable Securities. The Company may
require each seller of Registrable Securities as to which any registration is
being effected to furnish the Company such information regarding such seller and
the distribution of such securities as the Company may from time to time
reasonably request in writing.
Section 4.3. Discontinuance of Use of Prospectus. Each holder of
Registrable Securities agrees by acquisition of such Registrable Securities
that, upon receipt of any written notice from the Company of the occurrence of
any event of the kind described in Section 4.1(g), such holder will forthwith
discontinue such holder's offer of Registrable Securities pursuant to the
registration statement relating to such Registrable Securities until such
holder's receipt of the copies of the supplemented or amended prospectus
contemplated by Section 4.1(g) and, if so directed by the Company, will deliver
to the Company (at the Company's expense) all copies, other than permanent file
copies, then in such holder's possession of the prospectus relating to such
Registrable Securities current at the time of receipt of such notice. In the
event the Company shall give any such notice, the period mentioned in Section
4.1(b) shall be extended by the length of the period from and including the date
when each seller of any Registrable Securities covered by such registration
statement shall have received such notice to the date on which each such seller
has received the copies of the supplemented or amended prospectus contemplated
by Section 4.1(g).
Section 4.4. References to Holders in Registration Statements. If any
registration or comparable statement refers to any holder of Registrable
Securities by name or otherwise as the holder of any securities of the Company
then such holder shall have the right to require (i) the insertion therein of
language, in form and substance 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 the Company's
securities covered thereby and that such holding does not imply that such holder
will assist in meeting any future financial requirements of the Company, 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 statute then in force, the
deletion of the reference to such holder.
Section 4.5. Underwritten Offerings. If requested by the underwriters for
any underwritten offering by holders of Registerable Securities pursuant to a
registration requested under Article II, the Company will enter into an
underwriting agreement with such underwriters for such offering, such agreement
to be reasonably satisfactory in form and
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substance to the Company, each such holder and the underwriters, and to contain
such representations and warranties by the Company and such other terms as are
generally prevailing in agreements of this type, including, without limitation,
indemnities to the effect and to the extent provided in Section 5.1. The holders
of the Registrable Securities will cooperate with the Company in the negotiation
of the underwriting agreement and will give consideration to the reasonable
suggestions of the Company regarding the form thereof; provided, that nothing
herein contained shall diminish the foregoing obligations of the Company. The
holders of Registrable Securities to be distributed by such underwriters shall
be parties to such underwriting agreement and may, at their option, require that
any or all of the representations and warranties by, and the other agreements on
the part of, the Company to and for the benefit of such underwriters shall also
be made to and for the benefit of such holders of Registrable Securities and
that any or all of the conditions precedent to the obligations of such
underwriters under such underwriting agreement be conditions precedent to the
obligations of such holders of Registrable Securities. Any such holder of
Registrable Securities shall not be required to make any representations or
warranties to or agreements with the Company or the underwriters other than
representations, warranties or agreements regarding such holder, such holder's
Registrable Securities and such holder's intended method of distribution and any
other representation required by law.
Section 4.6. Holdback Agreements. The Company agrees (i) if so required by
a managing underwriter of an offering of Registerable Securities not to effect
any public sale or distribution of its equity securities or securities
convertible into or exchangeable or exercisable for any of such securities
during the seven days prior to and the 90 days after any underwritten
registration pursuant to Articles II or III has become effective, except as part
of such underwritten registration and except pursuant to registrations on Form
S-8, or any successor or similar forms thereto, and (ii) to cause each holder of
its securities or any securities convertible into or exchangeable or exercisable
for any of such securities, in each case purchased directly from the Company at
any time after the date of this Agreement (other than in a public offering) to
agree not to effect any such public sale or distribution of such securities
during such period except as part of such underwritten registration.
Section 4.7. Preparation; Reasonable Investigation. In connection with the
preparation and filing of each registration statement under the Securities Act
pursuant to this Agreement, the Company will give the holders of Registrable
Securities registered under such registration statement, their underwriters, if
any, and their respective counsel and accountants, the opportunity to
participate in the preparation of such registration statement, each prospectus
included therein or filed with the Commission, and each amendment thereof or
supplement thereto, and will give each of them such access to its books and
records and such opportunities to discuss the business of the Company with its
officers and the independent public accountants who have certified its financial
statements as shall be necessary, in the opinion of such holders' and such
underwriters' respective counsel, to conduct a reasonable investigation within
the meaning of the Securities Act.
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Section 4.8. Rights of Requesting Holders. The Company will not file any
registration statement under the Securities Act (other than by a registration on
Form S-8), unless it shall first have given to each holder of Registrable
Securities at the time outstanding at least thirty days prior written notice
thereof. The Company shall provide any Person who requests, within thirty days
after such notice (a "Requesting Holder"), the following: (i) all information,
documents and other materials such Requesting Holder would be entitled to if
such Requesting Holder were a seller of Registerable Securities; and (ii) the
rights to participate and access provided to sellers of Registerable Securities.
In addition, if any such registration statement refers to any Requesting Holder
by name or otherwise then such holder shall have the right to require (i) the
insertion therein of language, in form and substance satisfactory to such
holder, to the effect that the holding by such holder of such securities does
not necessarily make such holder a "controlling person" of the Company within
the meaning of the Securities Act and is not to be construed as a recommendation
by such holder of the investment quality of the Company's debt or equity
securities covered thereby and that such holding does not imply that such holder
will assist in meeting any future financial requirements of the Company, or (ii)
in the event that such reference to such holder by name or otherwise is not
required by the Securities Act or any rules and regulations promulgated
thereunder, the deletion of the reference to such holder.
ARTICLE V.
INDEMNIFICATION
The Company and the Shareholder agree to enter into typical and customary
indemnification and contribution agreements with the underwriters, if any, and
each other, regarding the actions of and information supplied by each in
connection with a registration of securities pursuant to this Agreement.
ARTICLE VI.
DEFINITIONS
As used herein, unless the context otherwise requires, the following terms
have the following respective meanings:
Commission: The Securities and Exchange Commission or any other Federal
agency at the time administering the Securities Act.
Common Stock: The common stock, par value $.01, of the Company.
Company: As defined in the introductory paragraph of this Agreement.
Exchange Act: The Securities Exchange Act of 1934, or any similar federal
statute, and the rules and regulations of the Commission thereunder, all as the
same shall be in effect at the time.
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Reference to a particular section of the Exchange Act shall include a reference
to the comparable section, if any, of any such similar federal statute.
Merger Agreement: As defined in Section 1 of this Agreement.
Person: A corporation, association, partnership, organization, business,
individual, governmental agency or political subdivision thereof.
Registrable Securities: (a) any shares of Common Stock issued pursuant to the
Merger Agreement, (b) any securities issued or issuable pursuant to the Merger
Agreement or any Common Stock referred to in the foregoing subdivision by way of
stock dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization or otherwise.
As to any particular Registrable Securities, once issued such securities shall
cease to be Registrable Securities when (a) a registration statement with
respect to the sale of such securities shall have become effective under the
Securities Act and such securities shall have been disposed of in accordance
with such registration statement, (b) they shall have been distributed to the
public pursuant to Rule 144 (or any successor provision) under the Securities
Act, (c) they shall have been otherwise transferred, new certificates for them
not bearing a legend restricting further transfer shall have been delivered by
the Company and subsequent disposition of them shall not require registration or
qualification of them under the Securities Act or any similar state law then in
force, or (d) they shall have ceased to be outstanding.
Registration Expenses: All costs, fees and expenses of attorneys,
accountants, experts, printers and all filing fees with the Commission, the
American Stock Exchange or such other stock exchange on which the Company's
common stock is traded, or other applicable governmental authority, but not
including the discounts and commissions payable to underwriters, brokers or
dealers.
Requesting Holder: As defined in Section 4.8 of this Agreement.
Securities Act: The Securities Act of 1933, or any similar Federal statute,
and the rules and regulations of the Commission thereunder, all as of the same
shall be in effect at the time. References to a particular section of the
Securities Act of 1933 shall include a reference to the comparable section, if
any, of any such similar Federal statute.
Shareholder. As defined in Section 1 of this Agreement.
ARTICLE VII.
RULE 144
Section 7.1. Rule 144. The Company shall timely file the reports required
to be filed by it under the Securities Act and the Exchange Act (including but
not limited to the reports under
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Sections 13 and 15(d) of the Exchange Act referred to in subparagraph (c)(1) of
Rule 144 adopted by the Commission under the Securities Act) and the rules and
regulations adopted by the Commission thereunder (or, if the Company is not
required to file such reports, will, upon the request of any holder of
Registrable Securities, make publicly available other information) and will take
such further action as any holder of Registrable Securities may reasonably
request, all to the extent required from time to time to enable such holder to
sell Registrable Securities without registration under the Securities Act within
the limitation of the exemptions provided by (a) Rule 144 under the Securities
Act, as such Rule may be amended from time to time, or (b) any similar rule or
regulation hereafter adopted by the Commission. Upon the request of any holder
of Registrable Securities, the Company will deliver to such holder a written
statement as to whether it has complied with such requirements.
ARTICLE VIII.
MISCELLANEOUS
Section 8.1. Remedies. The Company agrees that monetary damages would not
be adequate compensation for any loss incurred by reason of a breach of any
representation or covenant in this Agreement and hereby agrees to waive the
defense in any action for specific performance of such an obligation that a
remedy at law would be adequate.
Section 8.2. Adjustments Affecting Registrable Securities. The Company
will not take any action, or permit any change to occur, with respect to the
Registrable Securities which would adversely affect the ability of the holders
of Registrable Securities to include such Registrable Securities in a
registration undertaken pursuant to this Agreement.
Section 8.3. Assignment. This Agreement shall be binding upon and inure to
the benefit of and be enforceable by the parties hereto and their respective
successors and assigns. In addition, and whether or not any express assignment
shall have been made, the provisions of this Agreement which are for the benefit
of the parties hereto other than the Company shall also be for the benefit of
and enforceable by any subsequent holder of any Registrable Securities.
Section 8.4. Descriptive Headings. The descriptive headings of the several
sections and paragraphs of this Agreement are inserted for reference only and
shall not limit or otherwise affect the meaning hereof.
Section 8.5. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAWS
OF THE STATE OF TEXAS WITHOUT REFERENCE TO THE PRINCIPLES OF CONFLICTS OF LAWS.
Section 8.6. Entire Agreement. This Agreement embodies the entire agreement
and understanding between the Company and each other party hereto and supersedes
all prior agreements and understandings relating to the subject matter hereof.
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Section 8.7. Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
Section 8.8. Notices. Except as otherwise provided in this Agreement, all
communications provided for hereunder shall be in writing and sent by first-
class mail, postage prepaid, and (a) if addressed to a party to the Merger
Agreement other than the Company, addressed to such party in the manner set
forth in the Merger Agreement or at such other address as such party shall have
furnished to the Company in writing, or (b) if addressed to any other holder of
Registrable Securities, at the address that such holder shall have furnished to
the Company in writing, or, until any such other holder so furnishes to the
Company an address, then to and at the address of the last holder of such
Registrable Securities who has furnished an address to the Company, or (c) if
addressed to the Company, to the attention of its President, or at such other
address, or to the attention of such other officer, as the Company shall have
furnished to each holder of Registrable Securities at the time outstanding.
Section 8.9. No Implied Waiver. No course of dealing between the Company
and the Shareholder or any other holder of Registrable Securities and no delay
in exercising any right, power or remedy conferred hereby or now or hereafter
existing at law or in equity, by statute or otherwise, shall operate as a waiver
of, or otherwise prejudice, any such right, power or remedy.
Section 8.10. No Inconsistent Agreements. Without the written consent of
the holders of a majority of the then outstanding Registrable Securities, the
Company will not on or after the date of this Agreement enter into any agreement
with respect to its securities which is inconsistent with the rights granted to
the holders of Registrable Securities in this Agreement or otherwise conflicts
with the provisions hereof. The Company has not previously entered into any
agreement with respect to its securities granting any registration rights to any
Person. The rights granted to the holders of Registrable Securities hereunder
do not in any way conflict with and are not inconsistent with the rights granted
to the holders of the Company's securities under any agreements previously
entered into by the Company.
Section 8.11. Counterparts. This Agreement may be executed simultaneously
in any number of counterparts, each of which shall be deemed an original, but
all such counterparts shall together constitute one and the same instrument.
Section 8.12. Amendments and Waivers. This Agreement may be amended and the
Company may take any action herein prohibited, or omit to perform any act herein
required to be performed by it, only if the Company shall have obtained the
written consent to such amendment, action or omission to act, of the holder or
holders of 51% or more of the shares of Registrable Securities. Each holder of
any Registrable Securities at the time or thereafter outstanding shall be bound
by any consent authorized by this section 5, whether or not such Registrable
Securities shall have been marked to indicate such consent.
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Section 8.13. Nominees for Beneficial Owners. In the event that any
Registrable Securities are held by a nominee for the beneficial owner thereof,
the beneficial owner thereof may, at its election, be treated as the holder of
such Registrable Securities for purposes of any request or other action by any
holder or holders of Registrable Securities pursuant to this Agreement or any
determination of any number or percentage of shares of Registrable Securities
held by any holder or holders of Registrable Securities contemplated by this
Agreement. If the beneficial owner of any Registrable Securities so elects, the
Company may require assurances reasonably satisfactory to it of such owner's
beneficial ownership of such Registrable Securities.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed and
delivered by their respective officers thereunto duly authorized as of the date
first above written.
GREENBRIAR CORPORATION
By:________________________________
Xxxxx Xxxxx, Vice President
___________________________________
Xxxxx X. Xxxxxxx
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