REGISTRATION RIGHTS AGREEMENT
Exhibit
10.2
This
Registration
Rights Agreement
(this
“Agreement”) is made and entered into as of _______, 2006 (the “Effective
Date”), among Zynex
Medical Holdings Inc.,
a
Nevada corporation (the “Company”) and ________ or his designees (the
“Purchaser”). Capitalized terms not otherwise herein defined shall have the
meanings ascribed to them in the Securities Purchase Agreement between the
Company and the Purchaser dated _______, 2006, as may be amended from time
to
time (the “Purchase Agreement”).
RECITALS
WHEREAS,
the
Purchaser has entered into the Purchase Agreement with the Company pursuant
to
which the Purchaser has agreed to purchase Common Stock in the amount set forth
in such Purchase Agreement (the “Shares”). Pursuant to the Purchase Agreement,
the Company has also agreed to issue Warrants to the Purchaser to purchase
Common Stock in the amount set forth in the Purchase Agreement (the “Warrant
Shares”).
WHEREAS,
as a
condition to the purchase of the Common Stock and the potential exercise of
Warrants by the Purchaser, the parties have agreed to enter into this
Agreement.
AGREEMENT
THEREFORE,
the parties hereto, in consideration of the foregoing, the mutual covenants
and
agreements hereinafter set forth, and other good and valuable consideration,
the
receipt and sufficiency of which are hereby acknowledged, agree as
follows:
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1.
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Definitions
and Interpretation
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a. Certain
Definitions
As
used
in this Agreement, the following capitalized terms shall have the following
meanings:
(i) “1933
Act” means the Securities Act of 1933, as amended.
(ii) “1934
Act” means the Securities Exchange Act of 1934, as amended.
(iii) “Common
Stock” means shares of the Company’s Common Stock, $.001 par value.
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(iv) “Other
Purchasers” means other parties that purchased Securities from the Company on
substantially the same terms and in the same offering by the Company and Broker
as the Securities are being purchased by the Purchaser.
(v) “Registrable
Securities” means (i) the Shares, (ii) the Warrant Shares and (iii) any shares
or other securities of the Company issued or issuable with respect thereto
upon
any stock split, stock dividend, recapitalization or similar event, excluding
shares or other securities sold or transferred pursuant to an effective
registration statement, sold or otherwise transferred pursuant to Rule 144
under
the 1933 Act, sold or otherwise transferred pursuant to a transfer not requiring
registration under the 1933 Act, held by Purchaser or an Other Purchaser who
at
such time is not an Affiliate of the Company and that are eligible for sale
pursuant to Rule 144(k) under the 1933 Act, and held by Purchaser or an Other
Purchaser who at such time is an Affiliate of the Company if all of such shares
or other securities are eligible for sale pursuant to Rule 144 under the 1933
Act and could be sold in one transaction in accordance with the volume
limitations contained in Rule 144(e)(1)(i) under the 1933 Act.
(vi) “Registration
Expenses” means any and all expenses incident to performance of or compliance
with this Agreement, including all applicable registration and filing fees
imposed by the SEC and any securities exchange or market on which the
Registrable Securities are required to be listed and/or quoted, as the case
may
be, all fees and expenses incurred in connection with compliance with state
securities or “blue sky” laws (including reasonable fees and disbursements of
counsel) in connection with qualification of any of the Registrable Securities
under any state securities or blue sky laws, all expenses of any Persons in
preparing or assisting in preparing, word processing, printing and distributing
the Registration Statement, any Prospectus, certificates and other documents
relating to the performance of and compliance with this Agreement, all fees
and
expenses incurred in connection with the listing, if any, of any of the
Registrable Securities on any securities exchange or exchanges, and the fees
and
disbursements of counsel for the Company and of the independent public
accountants of the Company. Registration Expenses shall specifically exclude
underwriting discounts and commissions, the fees and disbursements of counsel
representing Purchaser or any underwriter or agent acting on behalf of Purchaser
(other than the Broker), and transfer taxes, if any, relating to the sale or
disposition of Registrable Securities by Purchaser, all of which shall be borne
by Purchaser in all cases.
(vii) “Registration
Statement” means a registration statement of the Company (and any other entity
required to be a registrant pursuant to the requirements of the 0000 Xxx)
covering all or a part of the Registrable Securities under the 1933 Act for
which the Company is eligible, including all amendments (including
post-effective amendments), exhibits and materials incorporated by reference
therein.
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(viii) “SEC”
means the United States Securities and Exchange Commission.
(ix) “Selling
Expenses” shall mean all underwriting discounts and selling commissions
applicable to the sale of Registrable Securities and all fees and disbursements
of counsel for the Purchaser.
(x) “Shelf
Registration Statement” shall mean a Registration Statement on Form SB-2 (or any
successor form) filed pursuant to Rule 415 of Regulation C promulgated under
the
1933 Act (or any successor rule) covering the Shares and the Warrant
Shares.
b. Rules
of
Interpretation
(i) Each
term
defined in the singular form in Section 1.a or elsewhere in this Agreement
means
the plural thereof whenever the plural form is used, and each term defined
in
the plural form means the singular thereof whenever the singular form is used.
The use of a pronoun of any gender is applicable to all genders.
(ii) Unless
otherwise specified therein, all terms defined in this Agreement have the
meanings as so defined herein when used in any other certificate, report or
document made or delivered pursuant hereto.
(iii) A
reference to any agreement, document or instrument refers to the agreement,
document or instrument as amended or modified and in effect from time to time
in
accordance with the terms thereof and as permitted herein.
(iv) Except
as
otherwise specified, a reference to any applicable law refers to the law as
amended, modified, codified, replaced or reenacted, in whole or in part, and
in
effect from time to time, and to any rules and regulations promulgated
thereunder; and a reference to any section or other provision of any applicable
law refers to that provision of the law from time to time in effect and
constituting the substantive amendment, modification, codification, replacement
or reenactment of the referenced section or other provision.
c. Construction
The
headings preceding the text of the sections of this Agreement and the exhibits
hereto are for convenience only and shall not be deemed part of this Agreement.
The language used in this Agreement shall be deemed to be the language chosen
by
the parties to this Agreement to express their mutual intent, and no rule of
strict construction shall be applied against any party.
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2. Registration
Rights
a. Agreement
to Register Registrable Securities
(i) The
Company shall use its commercially reasonable efforts to (a) file within ninety
(90) days of the Closing Date a Shelf Registration Statement to register 100%
of
the Registrable Securities issued to the Purchaser in connection with the
Purchase Agreement and the Registrable Securities issued to the Other
Purchasers, and thereafter to cause the Shelf Registration Statement to be
declared effective by the SEC as to resales by the Purchasers and the Other
Purchasers; and (b) cause the Shelf Registration Statement to remain
effective for the shorter of the period expiring (A) twenty-four (24) months
following the Closing Date or (B) the date on which all shares comprising the
Registrable Securities of the Purchaser and the other Purchasers may be sold
pursuant to Rule 144 under the 1933 Act in any three-month period in one
transaction in accordance with the volume limitations contained in Rule
144(e)(1)(i). The Company shall promptly: (x) notify the Purchaser after it
has received notice of the time when the Shelf Registration Statement has been
declared effective or any supplement to any prospectus forming a part of the
Shelf Registration Statement has been filed; (y) notify the Purchaser of
any request by the SEC for the amending or supplementing of the Shelf
Registration Statement or prospectus or if additional information is required
to
be filed in connection with the Shelf Registration Statement, and shall use
its
commercially reasonable efforts to prepare and file with the SEC such amendment
or supplement or such additional information; and (z) notify the Purchaser
of
the Company’s receipt of, or knowledge of the issuance of, any stop order by the
SEC suspending the effectiveness of any the Shelf Registration Statement and
use
the Company’s commercially reasonable efforts to prevent the issuance of any
stop order or to obtain its withdrawal if such stop order has been issued.
The
Purchaser shall not, nor shall the Purchaser be entitled to, resell any such
shares in reliance upon the Shelf Registration Statement after the Shelf
Registration Statement is no longer effective.
(ii) Notwithstanding
subsection (i) above, the Company shall not be required to take any action
with
respect to the registration or the declaration or continuation of effectiveness
of the Shelf Registration Statement for a period not to exceed sixty (60) days
(a “Suspension Period”) following notice to the Purchaser and the Other
Purchasers from the Company (a “Suspension Notice”) of the Company’s
determination in good faith of the existence of any state of facts or the
happening of any event (including without limitation pending negotiations
relating to, or the consummation of a transaction, or the occurrence of any
event which in the opinion of the Company might require additional disclosure
of
material, non-public information by the Company in the Shelf Registration
Statement as to which the Company believes it has a bona fide business purpose
for preserving confidentiality or which renders the Company unable to comply
with the published rules and regulations of the SEC promulgated under the
Securities Act or the Exchange Act, as in effect at any relevant time) which
might reasonably result in (a) the Shelf Registration Statement, any
amendment or post-effective amendment thereto, or any document
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incorporated
therein by reference containing an untrue statement of a material fact or
omitting to state a material fact required to be stated therein or necessary
to
make the statements therein not misleading, or (b) the prospectus issued
under the Shelf Registration Statement, any prospectus supplement, or any
document incorporated therein by reference including an untrue statement of
material fact or omitting to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were
made, not misleading. Upon receipt of a Suspension Notice from the Company,
the
Purchaser will forthwith discontinue disposition of all such shares pursuant
to
the Shelf Registration Statement until receipt from the Company of copies of
prospectus supplements or amendments prepared by or on behalf of the Company,
together with a notification that the Suspension Notice is no longer in effect,
and, if so directed by the Company, the Purchaser will deliver to the Company
all copies in their possession of the prospectus covering such shares current
at
the time of receipt of any Suspension Notice. No more than two (2) such
Suspension Periods shall occur in any twelve (12) month period. In the event
that the Company shall exercise its right to delay or suspend the filing or
effectiveness of the Shelf Registration hereunder, the applicable time period
during which the Shelf Registration Statement is to remain effective shall
be
extended by a period of time equal to the duration of the Suspension
Period.
(iii) The
Purchaser shall complete the Selling Security Holder Notice and Questionnaire
to
be distributed after the Closing Date. The Purchaser shall notify the Company
as
promptly as practicable of any inaccuracy or change in information previously
furnished by the Purchaser to the Company or of the occurrence of any event
as a
result of which any prospectus included in the Registration Statement contains
or would contain an untrue statement of a material fact regarding the
Purchaser’s intended method of distribution of shares of the Company Stock or
omits to state any material fact regarding the Purchaser’s intended method of
distribution of shares of the Company Stock necessary to make the statements
therein, in light of the circumstances then existing, not misleading, and
promptly to furnish to the Company any additional information required to
correct and update any previously furnished information or required so that
such
prospectus shall not contain, with respect to the Purchaser or the distribution
of such shares, an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances then existing, not misleading.
b. All
Registration Expenses incurred in connection with any registration,
qualification or compliance pursuant to this Section 2 shall be borne by the
Company, and all Selling Expenses shall be borne by the Purchaser and the Other
Purchasers pro rata on the basis of the number of their Registrable Securities
so registered.
c. At
its
expense, for two years after the Closing Date the Company will:
(i) Prepare
and file with the SEC such amendments and supplements to the Shelf Registration
Statement and the
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prospectus
used in connection with such registration statement as may be necessary to
comply with the provisions of the 1933 Act with respect to the disposition
of
all securities covered by such Shelf Registration Statement for the period
set
forth in subsection (a) above.
(ii) Furnish
such number of prospectuses and other documents incident thereto, including
any
amendment of or supplement to the prospectus, as a Purchaser from time to time
may reasonably request;
(iii) Cause
all
such Registrable Securities to be listed on each securities exchange on which
similar securities issued by the Company are then listed;
(iv) Provide
a
transfer agent and registrar for all Registrable Securities and a CUSIP number
for all such Registrable Securities, in each case not later than the effective
date of such registration;
d. With
a
view to making available the benefits of certain rules and regulations of the
SEC which may permit the sale of the Restricted Securities to the public without
registration, so long as the Purchaser owns any Registrable Securities, the
Company agrees to:
(i) Use
its
commercially reasonable efforts to make and keep public information available
as
those terms are understood and defined in Rule 144 under the 1933 Act, as
provided in Section 4(d) of the Purchase Agreement;
(ii) Use
its
commercially reasonable efforts to file with the SEC in a timely manner all
reports and other documents required of the Company under the 1933 Act and
the
1934 Act;
(iii) Furnish
forthwith upon request by the Purchaser or its assignees a written statement
by
the Company as to its compliance with the reporting requirements of Rule 144
(at
any time from and after ninety (90) days following the effective date of the
first registration statement filed by the Company for an offering of its
securities to the general public), and of the 1933 Act and the 1934 Act (at
any
time after it has become subject to such reporting requirements), a copy of
the
most recent annual or quarterly report of the Company, and such other reports
and documents so filed as a Purchaser may reasonably request in availing itself
of any rule or regulation of the SEC allowing a Purchaser to sell any such
securities without registration.
e. The
rights to have the Company register Registrable Securities under this Section
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may be transferred or assigned by Purchaser to a transferee or assignee of
Registrable Securities, provided that the transferee or assignee (i) is a
family member of the Purchaser or trust or other entity for the benefit of
the
Purchaser or its family or (ii) is acquiring a majority of the Purchaser’s
Registrable Securities, and, provided, further, that the Company is
given
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written
notice at the time of or within a reasonable time after said transfer or
assignment, stating the name and address of said transferee or assignee and
identifying the securities with respect to which such registration rights are
being transferred or assigned.
f. Duties
of
Purchaser.
In
connection with and as a condition to the Company’s obligations with respect to
the Shelf Registration Statement, each Purchaser covenants and agrees
that:
(i) it
will
not offer or sell any Registrable Securities under the Shelf Registration
Statement until it has received notice from the Company that the Shelf
Registration Statement and any post-effective amendments thereto have become
effective;
(ii) upon
receipt of any notice from the Company contemplated by Section 2a(ii), Purchaser
shall not offer or sell any Registrable Securities pursuant to the Registration
Statement until, in the sole discretion of the Company, the event no longer
precludes sale or Purchaser receives copies of the supplemented or amended
Prospectus contemplated by Section 2a(ii) and receives notice that any
post-effective amendment has become effective, and, if so directed by the
Company, such Purchaser will deliver to the Company (at the expense of the
Company) all copies in its possession, other than permanent file copies then
in
such Purchaser’s possession, of the Prospectus as amended or supplemented at the
time of receipt of such notice; and
(iii) the
Purchaser and any of its officers, directors or affiliates, if any, shall comply
with the provisions of Regulation M under the 1934 Act, or any successor
regulations, as applicable to them in connection with sales of Registrable
Securities pursuant to the Registration Statement and shall enter into such
written agreements as the Company shall request to ensure compliance with this
Section.
g.
The
Company may immediately terminate any Registration Statement as to the
Purchaser, and this Agreement shall cease to be in effect, if the Purchaser
has
engaged in any hedging transactions or shorting transactions in violation of
Section 2 of the Purchase Agreement or Section 4(b) of this
Agreement.
h.
The
Purchaser hereby agrees and acknowledges that the Shelf Registration Statement
may cover securities of the Company to be resold by any other persons or
entities, including Other Purchasers.
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3. Indemnification;
Contribution
a. Indemnification
by the Company
The
Company agrees to indemnify and hold harmless each Purchaser and its officers
and directors and each Person, if any, who controls any Purchaser within the
meaning of Section 15 of the 1933 Act as follows:
(i) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred,
to which such Purchaser, officer, director or controlling Person may become
subject under the 1933 Act or otherwise that arise out of or are based upon
any
untrue statement or alleged untrue statement of a material fact contained in
any
Registration Statement or any amendment thereto, or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading or that arise out of
or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in any Prospectus or any amendment or supplement thereto, or
the
omission or alleged omission to state therein a material fact necessary in
order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading;
(ii) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred,
to the extent of the aggregate amount paid in settlement of any litigation,
or
incurred in connection with any investigation or proceeding by any governmental
agency or body, commenced or threatened, or of any claim whatsoever based upon
any such untrue statement or alleged untrue statement or any omission or alleged
omission contained in any Registration Statement; and
(iii) subject
to the limitations set forth in Section 4.01(e), against any and all expense
whatsoever, as incurred (including reasonable fees and disbursements of
counsel), reasonably incurred in investigating, preparing or defending against
any litigation, or investigation or proceeding by any governmental agency or
body, commenced or threatened, in each case whether or not a party, or any
claim
whatsoever based upon any such untrue statement or alleged untrue statement
or
omission or alleged omission, to the extent that any such expense is not paid
under Sections or;
(iv) any
violation by the Company of any rule or regulation promulgated under the 1933
Act applicable to the Company in connection with any registration,
qualification, or compliance of the Registrable Securities or any other capital
stock of the Company;
(v) provided,
however, that the indemnity provided pursuant to this Section shall not apply
to
any amounts paid in settlement of any such loss, liability, claim, damage or
expense if such settlement is effected without the consent of the Company (which
consent shall not be unreasonably
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delayed
or withheld), or to any Purchaser with respect to any of the foregoing in this
Section that arises out of or is based upon any untrue statement or alleged
untrue statement or omission or alleged omission made in reliance upon and
in
conformity with written information furnished to the Company by such Purchaser
expressly for use in any Registration Statement or any amendment thereto or
the
prospectus or any amendment or supplement thereto, or the Purchaser’s or an
underwriter’s failure to deliver a copy of any Registration Statement or
prospectus or any amendments or supplements thereto after the Company has
furnished the Purchaser or underwriter with the requested number of copies
of
the same.
b. Indemnification
by Purchaser
Each
Purchaser severally agrees to indemnify and hold harmless the Company and the
other selling Purchaser, and each of their respective directors and officers
(including each director and officer of the Company who signed the Registration
Statement), and each Person, if any, who controls the Company or any other
selling Purchaser within the meaning of Section 15 of the 1933 Act, to the
same
extent as the indemnity contained in Section 3(a), but only insofar as such
loss, liability, claim, damage or expense arises out of or is based upon any
untrue statement or alleged untrue statement or omission or alleged omission
made in any Registration Statement or any amendment thereto or the prospectus
or
any amendment or supplement thereto in reliance upon and in conformity with
written information furnished to the Company by such selling Purchaser for
use
therein relating to the Purchaser’s status as a selling security Purchaser,
Purchaser’s failure to deliver a copy of any Registration Statement or
prospectus or any amendments or supplements thereto, to the extent such delivery
is required to be made by Purchaser and after the Company has furnished
Purchaser with the requested number of copies of the same, or the breach of
any
covenant contained in Section 2(a)(iii) or 2(f) hereof.
c. Conduct
of Indemnification Proceedings
Each
indemnified party shall give reasonably prompt notice to each indemnifying
party
of any action or proceeding commenced against the indemnified party in respect
of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve it from any liability which it may have
under the indemnity agreement provided in Sections 3a or 3b, unless and to
the
extent it did not otherwise learn of such action and the lack of notice by
the
indemnified party materially prejudices the indemnifying party or results in
the
forfeiture by the indemnifying party of substantial rights and defenses and
shall not, in any event, relieve the indemnifying party from any obligations
to
any indemnified party other than the indemnification obligation provided under
Sections 3a or b above. After receipt of such notice, the indemnifying party
shall be entitled to participate in and, at its option, jointly with any other
indemnifying party so notified, to assume the defense of such action or
proceeding at such indemnifying party’s own expense with counsel chosen by such
indemnifying party and approved by the indemnified party, which approval shall
not be unreasonably withheld; provided, however, that, if the defendants in
any
such action or
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proceeding
include both the indemnified party and the indemnifying party and the
indemnified party reasonably determines, upon advice of counsel, that a conflict
of interest exists or that there may be legal defenses available to it or other
indemnified parties that are different from or in addition to those available
to
the indemnifying party, then the indemnified party shall be entitled to one
separate counsel, the reasonable fees and expenses of which shall be paid by
the
indemnifying party. If the indemnifying party does not assume the defense of
any
such action or proceeding, after having received the notice referred to in
the
first sentence of this paragraph, the indemnifying party will pay the reasonable
fees and expenses of counsel (which shall be limited to a single law firm)
for
the indemnified party. Notwithstanding the foregoing, in no event shall the
Company be obligated to pay or otherwise be responsible for the fees and
expenses of more than one legal counsel that represents one Purchaser as the
indemnified party and any Other Purchasers. In such event, however, the
indemnifying party will not be liable for any settlement effected without the
written consent of such indemnifying party. If the indemnifying party assumes
the defense of any such action or proceeding in accordance with this paragraph,
such indemnifying party shall not be liable for any fees and expenses of counsel
for the indem¬nified party incurred thereafter in connection with such action or
proceeding except as set forth in the proviso in the second sentence of this
Section.
d. Contribution
(i) In
order
to provide for just and equitable contribution in circumstances in which the
indemnity agreement provided for in this Section 3 is for any reason held to
be
unenforceable although applicable in accordance with its terms, the Company
and
the selling Purchaser shall contribute to the aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by such indemnity
agreement incurred by the Company and the selling Purchaser, in such proportion
as is appropriate to reflect the relative fault of and benefits to the Company
on the one hand and the selling Purchaser on the other (in such proportions
that
the selling Purchaser are severally, not jointly, responsible for the balance),
in connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits to the indemnifying party and
indemnified parties shall be determined by reference to, among other things,
the
total proceeds received by the indemnifying party and indemnified parties in
connection with the offering to which such losses, claims, damages, liabilities
or expenses relate. The relative fault of the indemnifying party and indemnified
parties shall be determined by reference to, among other things, whether the
action in question, including any untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact, has
been
made by, or relates to information supplied by, such indemnifying party or
the
indemnified parties, and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such action.
(ii) Notwithstanding
the foregoing, no Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 0000 Xxx) shall be entitled to contribution
from
any Person who
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was
not
guilty of such fraudulent misrepresentation. For purposes of this Section
3(d)(ii), each Person, if any, who controls a Purchaser within the meaning
of
Section 15 of the 1933 Act and directors and officers of a Purchaser shall
have
the same rights to contribution as such Purchaser, and each director of the
Company, each officer of the Company who signed the Registration Statement
and
each Person, if any, who controls the Company within the meaning of Section
15
of the 1933 Act shall have the same rights to contribution as the
Company.
e. Survival
of Provisions
The
obligations of the Company and Purchaser under this Section shall survive
completion of any offering of Registrable Securities in a Registration Statement
and the termination of this agreement. No indemnifying party, in the defense
of
any such claim or litigation, shall, except with the consent of each indemnified
party, consent to entry of any judgment or enter into any settlement which
does
not include as an unconditional term thereof the giving by the claimant or
plaintiff to such indemnified party of a release from all liability in respect
to such claim or litigation.
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4.
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Transfer
of Shares
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a. Purchaser
agrees not to make any disposition of all or any portion of the Common Stock
or
Registrable Securities unless and until:
(i) there
is
then in effect a registration statement under the 1933 Act covering such
proposed disposition and such disposition is made in accordance with such
registration statement; or
(ii) the
Purchaser shall have notified the Company of the proposed disposition and
furnished the Company with a statement of the circumstances surrounding the
proposed disposition, and if reasonably requested by the Company, an opinion
of
counsel reasonably satisfactory to the Company and its counsel that such
disposition will not require registration of such Registrable Securities under
the 0000 Xxx.
b. The
Purchaser agrees to not engage in hedging activities or engage in short sales
of
the Company’s Common Stock for so long as Purchaser owns any Registrable
Securities.
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5.
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General
Provisions
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a. Amendments
and Waivers
The
provisions of this Agreement, including the provisions of this sentence, may
not
be amended, modified, supplemented or waived, nor may consent to departures
therefrom be given, without the written consent of the Company and the Purchaser
of a majority of the outstanding Registrable Securities (treating for the
purpose of such computation the Purchaser of Warrants as the Purchaser of
Registrable Securities
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issuable
upon exercise of the Warrants). Notice of any such amendment, modification,
supplement, waiver or consent adopted in accordance with this Section shall
be
provided by the Company to each Purchaser of Registrable Securities at least
1
day prior to the effective date of such amendment, modification, supplement,
waiver or consent.
b. Successors
and Assigns
This
Agreement shall inure to the benefit of and be binding upon the successors,
assigns and transferees of each of the parties, including subsequent Purchaser
without the need for an express assignment. If any successor, assignee or
transferee of any Purchaser shall acquire Registrable Securities, in any manner,
whether by operation of law or otherwise, such Registrable Securities shall
be
held subject to all of the terms of this Agreement, and by taking and holding
Registrable Securities such Person shall be conclusively deemed to have agreed
to be bound by all of the terms and provisions hereof.
c. Specific
Performance
The
parties hereto acknowledge that there would be no adequate remedy at law if
any
party fails to perform any of its obligations hereunder, and accordingly agree
that each party, in addition to any other remedy to which it may be entitled
at
law or in equity, shall be entitled to compel specific performance of the
obligations of any other party under this Agreement in accordance with the
terms
and conditions of this Agreement.
d. Notices
All
notices, requests, consents and other communications hereunder shall be in
writing and shall be deemed to have been made (x) upon actual receipt, when
given by hand or confirmed facsimile or electronic mail transmission, (y) one
day after delivery to the carrier, when given by overnight delivery service
or
(z) two days after mailing, when given by first-class registered or certified
mail, postage prepaid, return receipt requested; in any case to the following
address, or to such other address as a party, by notice to the other parties
given pursuant to this Section , may designate from time to time:
|
(i)
|
If
to Purchaser, to the addresses set forth in Exhibit
A
attached hereto, with a copy to the Purchaser, at the address set
forth in
the Purchase Agreement.
|
|
|
(ii)
|
If
to the Company, to:
Zynex
Medical Holdings, Inc.
0000
Xxxxxxxxx, Xxxxx X-0
Xxxxxxxxx,
XX 00000
Attention:
Xxxxx X. Xxxxxxx
Facsimile:
(000) 000-0000
|
|
|
with
a copy to:
Holland
& Xxxx LLP
000
Xxxxxxxxxxx Xxxxxx
Xxxxx
0000
Xxxxxx,
XX 00000
Attn:
Xxxx X. Xxxx
Facsimile:
(000) 000-0000
|
e. Governing
Law; Venue of Actions
(i) This
Agreement shall be governed and construed in accordance with the internal laws
of the State of Colorado as applied to contracts made and performed within
the
State of Colorado, without regard to the principles thereof regarding resolution
of conflicts of law.
(ii) The
Company and each Purchaser hereby submit to the jurisdiction of any state court
of competent jurisdiction in and for Denver, Colorado, or in the United States
District Court for the District of Colorado sitting at Arapahoe County, Colorado
in any action or proceeding arising out of or relating to this Agreement and
agree that all claims in respect of the action or proceeding may be heard and
determined in any such court; agree not to bring any action or proceeding
arising out of or relating to this Agreement in any other court; waive any
defense of inconvenient forum to the maintenance of any action or proceeding
so
brought and waive any bond, surety, or other security that might be required
of
any other Party with respect thereto; and agree that a final judgment in any
action or proceeding so brought shall be conclusive and may be enforced by
suit
on the judgment or in any other manner provided by law or in
equity.
f. Entire
Agreement
This
Agreement is intended by the parties as a final expression of their agreement
and intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
g. Severability
-
12
-
In
the
event one or more of the provisions of this Agreement should, for any reason,
be
held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality, or unenforceability shall not affect any other provisions of this
Agreement, and this Agreement shall be construed as if such invalid, illegal
or
unenforceable provision had never been contained herein.
h. Counterparts
This
Agreement may be executed in any number of counterparts and by the parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute one and
the
same agreement.
* signatures
appear on following page *
-
13
-
SIGNATURES
IN
WITNESS WHEREOF,
the
Company and the Purchaser have executed this Agreement to be as of the Effective
Date.
Zynex
Medical Holdings, Inc., Nevada
corporation
By:
___________________________
Name:_________________________
Title:__________________________
IN
WITNESS WHEREOF, this
Registration Rights Agreement has been duly executed by the
Purchaser.
___________________________
By:
___________________________
Name:
_________________________
Title:
__________________________
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