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EXHIBIT 4.4
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of November 19,
1998, is made and entered into by and between The Female Health Company, a
Wisconsin corporation (the "Company"), and KINGSBRIDGE CAPITAL LIMITED (the
"Investor").
WHEREAS, the Company and the Investor have entered into that certain Private
Equity Line Agreement, dated as of the date hereof (the "Equity Line
Agreement"), pursuant to which the Company will issue, from time to time, to
the Investor up to $6,000,000 worth of shares of Common Stock, par value $.01
per share, of the Company (the "Common Stock");
WHEREAS, pursuant to the terms of, and in partial consideration for, the
Investor entering into the Investment Agreement, the Company has issued to the
Investor a warrant dated as of the date hereof, exercisable from time to time
within three (3) years following the six-month anniversary of the date of
issuance (the "Warrant") for the purchase of an aggregate of up to 200,000
shares of Common Stock at a price specified in such Warrant;
WHEREAS, pursuant to the terms of, and in partial consideration for, the
Investor's agreement to enter into the Investment Agreement, the Company has
agreed to provide the Investor with certain registration rights with respect to
the Registrable Securities;
NOW, THEREFORE, in consideration of the premises, the representations,
warranties, covenants and agreements contained herein, in the Warrant, and in
the Investment Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, intending to be
legally bound hereby, the parties hereto agree as follows (capitalized terms
used herein and not defined herein shall have the respective meanings ascribed
to them in the Investment Agreement):
ARTICLE I
REGISTRATION RIGHTS
Section 1.1. REGISTRATION STATEMENTS 1.1. REGISTRATION STATEMENTS 1.1.
REGISTRATION STATEMENTS.
(a) Filing of Registration Statement. Subject to the terms and conditions
of this Agreement, the Company shall file with the SEC within sixty (60) days
following the Subscription Date a registration statement on Form SB-2 or other
appropriate form under the Securities Act (the "Registration Statement") for
the registration of the resale by the Investor of the Registrable Securities.
(b) Effectiveness of the Registration Statement. The Company shall use its
reasonable best efforts to have the Registration Statement declared effective
by the SEC by no later than one hundred twenty (120) days after Subscription
Date and to insure that the Registration Statement remains in effect throughout
the term of this Agreement as set forth in Section 4.2, subject to the terms
and conditions of this Agreement.
(c) Failure to Obtain Effectiveness of Registration Statement. In the
event the Company fails for any reason (other than the Investor's failure to
satisfy the conditions set forth in Section 7.1 of the Equity Line Agreement)
to obtain the effectiveness of a Registration Statement within the time period
set forth in Section 1.1(b), the Company shall pay to the Investor, within
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three (3) Trading Days of the date by which such Registration Statement was
required to have been declared effective, $15,000 in immediately available
funds into an account designated by the Investor; provided, however, that such
amount shall not be payable with respect to the postponement of the
effectiveness of a Registration Statement (or use of the underlying prospectus)
pursuant to Section 1.1(e). Such payment shall be made by wire transfer of
immediately available funds to an account designated by the Investor.
(d) Failure to Maintain Effectiveness of Registration Statement. In the
event the Company fails to maintain the effectiveness of a Registration
Statement (or the underlying prospectus) throughout the period set forth in
Section 4.2, other than temporary suspensions as set forth in Section 1.1(e),
and the Investor holds any Registrable Securities at any time during the period
of such ineffectiveness (an "Ineffective Period"), the Company shall pay to the
Investor in immediately available funds into an account designated by the
Investor an amount equal to one percent (1%) of the aggregate Purchase Price of
all of the Registrable Securities then held by the Investor for each full
calendar month (or pro rata portion thereof for any partial month) of an
Ineffective Period. Such amounts shall not be payable with respect to
suspensions of the effectiveness of a Registration Statement (or use of the
underlying prospectus), in accordance with Section 1.1(e). Such payments shall
be made on the first Trading Day after the earliest to occur of (i) the
expiration of the Commitment Period, (ii) the expiration of an Ineffective
Period, (iii) the expiration of the first month of an Ineffective Period and
(iv) the expiration of each additional month during an Ineffective Period.
(e) Deferral or Suspension During a Blackout Period. Sections 1.1 (c) and
(d) notwithstanding, if the Company shall furnish to the Investor notice signed
by the Chairman and Chief Executive Officer of the Company stating that the
Board of Directors of the Company has, by duly authorized resolution,
determined in good faith that it would be seriously detrimental to the Company
and its shareholders for the Registration Statement to be filed (or remain in
effect) and it is therefore essential to defer the filing of such Registration
Statement (or temporarily suspend the effectiveness of such Registration
Statement or use of the related prospectus) (a "Blackout Notice"), the Company
shall have the right (i) immediately to defer such filing for a period of not
more than thirty (30) days beyond the date by which such Registration Statement
was otherwise required hereunder to be filed or (ii) suspend such effectiveness
for a period of not more than thirty (30) (any such deferral or suspension
period of up to thirty days, a "Blackout Period"). The Investor acknowledges
that it would be seriously detrimental to the Company and its shareholders for
such Registration Statement to be filed (or remain in effect) during a Blackout
Period and therefore essential to defer such filing (or suspend such
effectiveness) during such Blackout Period and agrees to cease any disposition
of the Registrable Securities during such Blackout Period. The Company may not
utilize any of its rights under this Section 1.1(e) to defer the filing of a
Registration Statement (or suspend its effectiveness) more than twice in any
twelve (12) month period. Following such deferral or suspension, the Investor
shall be entitled to such additional number of shares of Common Stock as set
forth in Section 2.6 of the Investment Agreement.
(f) Liquidated Damages. The Company and the Investor hereto acknowledge
and agree that the sums payable under subsections 1(c) or 1(d) above shall
constitute liquidated damages and not penalties. The parties further
acknowledge that (i) the amount of loss or damages likely to be incurred is
incapable or is difficult to precisely estimate, (ii) the amounts
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specified in such subsections bear a reasonable proportion and are not plainly
or grossly disproportionate to the probable loss likely to be incurred in
connection with any failure by the Company to obtain or maintain the
effectiveness of a Registration Statement, (iii) one of the reasons for the
Company and the Investor reaching an agreement as to such amounts was the
uncertainty and cost of litigation regarding the question of actual damages,
and (iv) the Company and the Investor are sophisticated business parties and
have been represented by sophisticated and able legal and financial counsel and
negotiated this Agreement at arm's length.
ARTICLE II
REGISTRATION PROCEDURES
Section 2.1. FILINGS; INFORMATION 2.1. FILINGS; INFORMATION 2.1. FILINGS;
INFORMATION. The Company will effect the registration and sale of such
Registrable Securities in accordance with the intended methods of
disposition thereof. Without limiting the foregoing, the Company in each
such case will do the following as expeditiously as possible, but in no
event later than the deadline, if any, prescribed therefor in this
Agreement:
(a) The Company shall (i) prepare and file with the SEC a Registration
Statement on Form SB-2 (if use of such form is then available to the Company
pursuant to the rules of the SEC and, if not, on such other form promulgated by
the SEC for which the Company then qualifies, that counsel for the Company
shall deem appropriate and which form shall be available for the sale of the
Registrable Securities to be registered thereunder in accordance with the
provisions of this Agreement and in accordance with the intended method of
distribution of such Registrable Securities); (ii) use reasonable best efforts
to cause such filed Registration Statement to become and remain effective
(pursuant to Rule 415 under the Securities Act or otherwise); (iii) prepare and
file with the SEC such amendments and supplements to such Registration
Statement and the prospectus used in connection therewith as may be necessary
to keep such Registration Statement effective for the time period prescribed by
Section 1.1(b); and (iv) comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such Registration
Statement during such period in accordance with the intended methods of
disposition by the Investor set forth in such Registration Statement.
(b) The Company shall file all necessary amendments to the Registration
Statement in order to effectuate the purpose of this Agreement, the Investment
Agreement, and the Warrant.
(c) If so requested by the managing underwriters, if any, or the holders
of a majority in aggregate principal amount of the Registrable Securities being
sold in connection with the filing of a Registration Statement under the
Securities Act for the offering on a continuous or delayed basis in the future
of all of the Registrable Securities (a "Shelf Registration"), the Company
shall (i) promptly incorporate in a prospectus supplement or post-effective
amendment such information as the managing underwriters, if any, and such
holders agree should be included therein, and (ii) make all required filings of
such prospectus supplement or post-effective amendment as soon as practicable
after the Company has received notification of the matters to be incorporated
in such prospectus supplement or post-effective amendment; provided, however,
that the Company shall not be required to take any action pursuant to this
Section 2.1(c)(ii) that would, in the opinion of counsel for the Company,
violate applicable law.
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(d) In connection with the filing of a Shelf Registration, the Company
shall enter into such agreements and take all such other reasonable actions in
connection therewith (including those reasonably requested by the managing
underwriters, if any, or the holders of a majority in aggregate principal
amount of the Registrable Securities being sold) in order to expedite or
facilitate the disposition of such Registrable Securities, and in such
connection, whether or not an underwriting agreement is entered into and
whether or not the registration is an underwritten registration, the Company
shall (i) make such representations and warranties to the holders of such
Registrable Securities and the underwriters, if any, with respect to the
business of the Company (including with respect to businesses or assets
acquired or to be acquired by the Company), and the Registration Statement,
prospectus and documents, if any, incorporated or deemed to be incorporated by
reference therein, in each case, in form, substance and scope as are
customarily made by issuers to underwriters in underwritten offerings, and
confirm such representations and warranties if and when requested; (ii) if an
underwriting agreement is entered into, it shall contain indemnification
provision and procedures no less favorable to the selling holders of such
Registrable Securities and the underwriters, if any, than those set forth
herein (or such other provisions and procedures acceptable to the holders of a
majority in aggregate principal amount of Registrable Securities covered by
such Registration Statement and the managing underwriters, if any); and (iii)
deliver such documents and certificates as may be reasonably requested by the
holders of a majority in aggregate principal amount of the Registrable
Securities being sold, their counsel and the managing underwriters, if any, to
evidence the continued validity of their representations and warranties made
pursuant to clause (i) above and to evidence compliance with any customary
conditions contained in the underwriting agreement or other agreement entered
into by the Company.
(e) Five (5) Trading Days prior to filing the Registration Statement or
prospectus, or any amendment or supplement thereto (excluding amendments deemed
to result from the filing of documents incorporated by reference therein), the
Company shall deliver to the Investor and one firm of counsel representing the
Investor, in accordance with the notice provisions of Section 4.8, copies of
the Registration Statement as proposed to be filed, together with exhibits
thereto, which documents will be subject to review by the Investor and such
counsel, and thereafter deliver to the Investor and such counsel, in accordance
with the notice provisions of Section 4.8, such number of copies of the
Registration Statement, each amendment and supplement thereto (in each case
including all exhibits thereto), the prospectus included in the Registration
Statement (including each preliminary prospectus) and such other documents or
information as the Investor or counsel may reasonably request in order to
facilitate the disposition of the Registrable Securities.
(f) The Company shall deliver, in accordance with the notice provisions of
Section 4.8, to each seller of Registrable Securities covered by the
Registration Statement such number of conformed copies of the Registration
Statement and of each amendment and supplement thereto (in each case including
all exhibits and documents incorporated by reference), such number of copies of
the prospectus contained in the Registration Statement (including each
preliminary prospectus and any summary prospectus) and any other prospectus
filed under Rule 424 promulgated under the Securities Act relating to such
seller's Registrable Securities, and such other documents, as such seller may
reasonably request to facilitate the disposition of its Registrable Securities.
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(g) After the filing of the Registration Statement, the Company shall
promptly notify the Investor of any stop order issued or threatened by the SEC
in connection therewith and take all reasonable actions required to prevent the
entry of such stop order or to remove it if entered.
(h) The Company shall use its reasonable best efforts to (i) register or
qualify the Registrable Securities under such other securities or blue sky laws
of such jurisdictions in the United States as the Investor may reasonably (in
light of its intended plan of distribution) request, and (ii) cause the
Registrable Securities to be registered with or approved by such other
governmental agencies or authorities in the United States as may be necessary
by virtue of the business and operations of the Company and do any and all
other acts and things that may be reasonably necessary or advisable to enable
the Investor to consummate the disposition of the Registrable Securities;
provided, however, that the Company will not be required to qualify generally
to do business in any jurisdiction where it would not otherwise be required to
qualify but for this paragraph (h), subject itself to taxation in any such
jurisdiction, or consent or subject itself to general service of process in any
such jurisdiction.
(i) The Company shall immediately notify the Investor upon the occurrence
of any of the following events in respect of the Registration Statement or
related prospectus in respect of an offering of Registrable Securities: (i)
receipt of any request by the SEC or any other federal or state governmental
authority for additional information, amendments or supplements to the
Registration Statement or related prospectus; (ii) the issuance by the SEC or
any other federal or state governmental authority of any stop order suspending
the effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose; (iii) receipt of any notification with respect to
the suspension of the qualification or exemption from qualification of any of
the Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; (iv) the happening of any event
that makes any statement made in the Registration Statement or related
prospectus or any document incorporated or deemed to be incorporated therein by
reference untrue in any material respect or that requires the making of any
changes in the Registration Statement, related prospectus or documents so that,
in the case of the Registration Statement, it will not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading, and
that in the case of the related prospectus, it will not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and (v) the Company's
reasonable determination that a post-effective amendment to the Registration
Statement would be appropriate, and the Company will promptly make available to
the Investor any such supplement or amendment to the related prospectus.
(j) The Company shall enter into customary agreements and take such other
actions as are reasonably required in order to expedite or facilitate the
disposition of such Registrable Securities (whereupon the Investor may, at its
option, require that any or all of the representations, warranties and
covenants of the Company also be made to and for the benefit of the Investor).
(k) The Company shall make available to the Investor (and will deliver to
Investor's counsel), subject to restrictions imposed by the United States
federal government or
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any agency or instrumentality thereof, copies of all correspondence between the
SEC and the Company, its counsel or its auditors concerning the Registration
Statement and will also make available for inspection by the Investor and any
attorney, accountant or other professional retained by the Investor
(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 and employees to supply all
information reasonably requested by any Inspectors in connection with the
Registration Statement. Records that the Company determines, in good faith, to
be confidential and that it notifies the Inspectors are confidential shall not
be disclosed by 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 disclosure or release of such Records is requested or
required pursuant to oral questions, interrogatories, requests for information
or documents or a subpoena or other order from a court of competent
jurisdiction or other process; provided, however, that prior to any disclosure
or release pursuant to clause (ii), the Inspectors shall provide the Company
with prompt notice of any such request or requirement so that the Company may
seek an appropriate protective order or waive such Inspectors' obligation not
to disclose such Records; and, provided, further, that if failing the entry of
a protective order or the waiver by the Company permitting the disclosure or
release of such Records, the Inspectors, upon advice of counsel, are compelled
to disclose such Records, the Inspectors may disclose that portion of the
Records that counsel has advised the Inspectors that the Inspectors are
compelled to disclose. The Investor agrees that information obtained by it
solely as a result of such inspections (not including any information obtained
from a third party who, insofar as is known to the Investor after reasonable
inquiry, is not prohibited from providing such information by a contractual,
legal or fiduciary obligation to the Company) shall be deemed confidential and
shall not be used by it as the basis for any market transactions in the
securities of the Company or its affiliates unless and until such information
is made generally available to the public. The Investor further 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 to prevent disclosure of the
Records deemed confidential.
(l) To the extent required by law or reasonably necessary to effect a sale
of Registrable Securities in accordance with prevailing business practices at
the time of any sale of Registrable Securities pursuant to a Registration
Statement, the Company shall deliver to the Investor a signed counterpart,
addressed to the Investor, of (1) an opinion or opinions of counsel to the
Company, and (2) a comfort letter or comfort letters from the Company's
independent public accountants, each in customary form and covering such
matters of the type customarily covered by opinions or comfort letters, as the
case may be, as the Investor therefor reasonably requests.
(m) The Company shall otherwise comply with all applicable rules and
regulations of the SEC, including, without limitation, compliance with
applicable reporting requirements under the Exchange Act.
(n) The Company shall appoint a transfer agent and registrar for all of
the Registrable Securities covered by such Registration Statement not later
than the effective date of such Registration Statement.
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(o) The Company may require the Investor to promptly furnish in writing to
the Company such information as may be legally required in connection with such
registration including, without limitation, all such information as may be
requested by the SEC or the National Association of Securities Dealers. The
Investor agrees to provide such information requested in connection with such
registration promptly and in any event within ten (10) business days after
receiving such written request and the Company shall not be responsible for any
delays in obtaining or maintaining the effectiveness of the Registration
Statement caused by the Investor's failure to timely provide such information.
Section 2.2. REGISTRATION EXPENSES 2.2. REGISTRATION EXPENSES 2.2.
REGISTRATION EXPENSES. In connection with each Registration Statement, the
Company shall pay all registration expenses incurred in connection with the
registration thereunder (the "Registration Expenses"), including, without
limitation: (i) all registration, filing, securities exchange listing and
fees required by the National Association of Securities Dealers, (ii) all
registration, filing, qualification and other fees and expenses of
compliance with securities or blue sky laws (including reasonable fees and
disbursements of counsel in connection with blue sky qualifications of the
Registrable Securities), (iii) all word processing, duplicating, printing,
messenger and delivery expenses, (iv) the Company's internal expenses
(including, without limitation, all salaries and expenses of its officers
and employees performing legal or accounting duties), (v) the fees and
expenses incurred by the Company in connection with the listing of the
Registrable Securities, (vi) reasonable fees and disbursements of counsel
for the Company and customary fees and expenses for independent certified
public accountants retained by the Company (including the expenses of any
special audits or comfort letters or costs associated with the delivery by
independent certified public accountants of such special audit(s) or comfort
letter(s) requested pursuant to Section 2.1(l) hereof), (vii) the fees and
expenses of any special experts retained by the Company in connection with
such registration, (viii) all reasonable fees and expenses of one firm of
counsel for the Investor retained as the Investor's counsel with respect to
such Registration Statement up to an amount of $5,000, unless a greater
amount is required due the nature of the review performed by Investor's
counsel (an estimate of such greater fees and expenses of such firm of
counsel to be provided to the Company prior to the undertaking of such
counsel's review), (ix) premiums and other costs of policies of insurance
against liabilities arising out of any public offering of the Registrable
Securities being registered, and (x) any fees and disbursements of
underwriters customarily paid by issuers or sellers of securities, but
excluding underwriting fees, discounts, transfer taxes or commissions, if
any, attributable to the sale of Registrable Securities, which shall be
payable by each holder of Registrable Securities pro rata on the basis of
the number of Registrable Securities of each such holder that are included
in a registration under this Agreement.
ARTICLE III
INDEMNIFICATION AND CONTRIBUTION
Section 3.1. INDEMNIFICATION BY THE COMPANY 3.1. INDEMNIFICATION BY THE
COMPANY 3.1. INDEMNIFICATION BY THE COMPANY. The Company agrees to
indemnify and hold harmless the Investor, its partners, Affiliates,
officers, directors, employees and duly authorized agents, and each Person
or entity, if any, who controls the Investor within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act, together with
the partners, Affiliates, officers,
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directors, employees and duly authorized agents of such controlling Person
or entity (collectively, the "Controlling Persons"), from and against any
loss, claim, damage, liability, costs and expenses (including, without
limitation, reasonable attorneys' fees and disbursements and costs and
expenses of investigating and defending any such claim) (collectively,
"Damages"), joint or several, and any action or proceeding in respect
thereof to which the Investor, its partners, affiliates, officers,
directors, employees and duly authorized agents, and any Controlling Person,
may become subject under the Securities Act or otherwise, as incurred,
insofar as such Damages (or actions or proceedings in respect thereof) arise
out of, or are based upon, any untrue statement or alleged untrue statement
of a material fact contained in any Registration Statement, or in any
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement relating to the Registrable Securities or arises out of, or are
based upon, any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, and shall reimburse the Investor, its partners,
affiliates, officers, directors, employees and duly authorized agents, and
each such Controlling Person, for any legal and other expenses reasonably
incurred by the Investor, its partners, affiliates, officers, directors,
employees and duly authorized agents, or any such Controlling Person, as
incurred, in investigating or defending or preparing to defend against any
such Damages or actions or proceedings; provided, however, that the Company
shall not be liable to the extent that any such Damages arise out of the
Investor's failure to send or give a copy of the final prospectus or
supplement to the persons asserting an untrue statement or alleged untrue
statement or omission or alleged omission at or prior to the written
confirmation of the sale of Registrable Securities to such person if such
statement or omission was corrected in such final prospectus or supplement;
provided, further, that the Company shall not be liable to the extent that
any such Damages arise out of or are based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in such
Registration Statement, or any such preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement in reliance upon and
in conformity with written information furnished to the Company by the
Investor or any other person who participates as an underwriter in the
offering or sale of such securities, in either case, specifically stating
that it is for use in the preparation thereof; provided, further, that the
Company shall not be liable to the extent that any such Damages arise out of
or are based upon the gross negligence or willful misconduct of the
Investor.
Section 3.2. INDEMNIFICATION BY THE INVESTOR. The Investor agrees to
indemnify and hold harmless the Company and each of its Controlling Persons
from and against any Damages suffered by the Company and/or each of its
Controlling Persons insofar as such Damages arise directly from the gross
negligence or willful misconduct of the Xxxxxxxx.xx such Damages arise
directly from the gross negligence or willful misconduct of the
Investor.such Damages arise directly from the gross negligence or willful
misconduct of the Investor.
Section 3.3. CONDUCT OF INDEMNIFICATION PROCEEDINGS. Promptly after receipt
by any person or entity in respect of which indemnity may be sought pursuant
to Section 3.1 (an "Indemnified Party") of notice of any claim or the
commencement of any action, the Indemnified Party shall, if a claim in
respect thereof is to be made against the person or entity against whom such
indemnity may be sought (the "Indemnifying Party"), notify the Indemnifying
Party in writing of the claim or the commencement of such action. In
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the event an Indemnified Party shall fail to give such notice as provided in
this Section 3.2 and the Indemnifying Party to whom notice was not given was
unaware of the proceeding to which such notice would have related and was
materially prejudiced by the failure to give such notice, the
indemnification provided for in Section 3.1 shall be reduced to the extent
of any actual prejudice resulting from such failure to so notify the
Indemnifying Party; provided, however, that the failure to notify the
Indemnifying Party shall not relieve the Indemnifying Party from any
liability that it may have to an Indemnified Party otherwise than under
Section 3.1. If any such claim or action shall be brought against an
Indemnified Party, and it shall notify the Indemnifying Party thereof, the
Indemnifying Party shall be entitled to participate therein, and, to the
extent that it wishes, jointly with any other similarly notified
Indemnifying Party, to assume the defense thereof with counsel reasonably
satisfactory to the Indemnified Party. After notice from the Indemnifying
Party to the Indemnified Party of its election to assume the defense of such
claim or action, the Indemnifying Party shall not be liable to the
Indemnified Party for any legal or other expenses subsequently incurred by
the Indemnified Party in connection with the defense thereof other than
reasonable costs of investigation; provided, however, that the Indemnified
Party shall have the right to employ separate counsel to represent the
Indemnified Party and its Controlling Persons who may be subject to
liability arising out of any claim in respect of which indemnity may be
sought by the Indemnified Party against the Indemnifying Party, but the fees
and expenses of such counsel shall be for the account of such Indemnified
Party, unless (i) the Indemnifying Party and the Indemnified Party shall
have mutually agreed to the retention of such counsel or (ii) in the
reasonable judgment of the Company and such Indemnified Party,
representation of both parties by the same counsel would be inappropriate
due to actual or potential conflicts of interest between them, it being
understood, however, that the Indemnifying Party shall not, in connection
with any one such claim or action or separate but substantially similar or
related claims or actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the fees and expenses of
more than one separate firm of attorneys (together with appropriate local
counsel) at any time for all Indemnified Parties, or for fees and expenses
that are not reasonable. No Indemnifying Party shall, without the prior
written consent of the Indemnified Party, effect any settlement of any claim
or pending or threatened proceeding in respect of which the Indemnified
Party is or could have been a party and indemnity could have been sought
hereunder by such Indemnified Party, unless such settlement includes an
unconditional release of such Indemnified Party from all liability arising
out of such claim or proceeding. Whether or not the defense of any claim or
action is assumed by the Indemnifying Party, such Indemnifying Party will
not be subject to any liability for any settlement made without its consent,
which consent will not be unreasonably withheld.
Section 3.4. OTHER INDEMNIFICATION 3.4. OTHER INDEMNIFICATION 3.4. OTHER
INDEMNIFICATION. Indemnification similar to that specified in the preceding
paragraphs of this Article 3 (with appropriate modifications) shall be given
by the Company with respect to any required registration or other
qualification of securities under any federal or state law or regulation of
any governmental authority other than the Securities Act. The provisions of
this Article III shall be in addition to any other rights to
indemnification, contribution or other remedies which an Indemnified Party
may have pursuant to law, equity, contract or otherwise.
Section 3.5. CONTRIBUTION 3.5. CONTRIBUTION 3.5. CONTRIBUTION. If the
indemnification and
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reimbursement obligations provided for in any section of this Article III is
unavailable or insufficient to hold harmless the Indemnified Parties in
respect of any Damages referred to herein, then the Indemnifying Party, in
lieu of indemnifying such Indemnified Party, shall contribute to the amount
paid or payable by such Indemnified Party as a result of such Damages as
between the Company on the one hand and the Investor on the other, in such
proportion as is appropriate to reflect the relative fault of the Company
and of the Investor in connection with such statements or omissions, as well
as other equitable considerations. The relative fault of the Company on the
one hand and of the Investor on the other shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by such party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the Investor agree that it would not be just and equitable
if contribution pursuant to this Section 3.4 were determined by pro rata
allocation or by any other method of allocation that does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Party as a result
of the Damages referred to in the immediately preceding paragraph shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such Indemnified Party in connection
with investigating or defending any such action or claim. Notwithstanding
the provisions of this Section 3.4, the Investor shall in no event be
required to contribute any amount in excess of the amount by which the total
price at which the Registrable Securities of the Investor were sold to the
public (less underwriting discounts and commissions) exceeds the amount of
any damages which the Investor has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission.
No Person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation.
ARTICLE IV
MISCELLANEOUS
Section 4.1. NO OUTSTANDING REGISTRATION RIGHTS 4.1. NO OUTSTANDING
REGISTRATION RIGHTS 4.1. NO OUTSTANDING REGISTRATION RIGHTS. The Company
represents and warrants to the Investor that, except as disclosed in the SEC
Documents, there is not in effect on the date hereof any agreement by the
Company pursuant to which any holders of securities of the Company have a
right to cause the Company to register or qualify such securities under the
Securities Act or any securities or blue sky laws of any jurisdiction.
Section 4.2. TERM 4.2. TERM 4.2. TERM. The registration rights provided to
the holders of Registrable Securities hereunder shall terminate at such time
as all Registrable Securities have been issued and have ceased to be
Registrable Securities. Notwithstanding the foregoing, paragraphs (c) and
(d) of Section 1.1, Article III, Section 4.8, and Section 4.9 shall survive
the termination of this Agreement.
Section 4.3. RULE 144 4.3. RULE 144 4.3. RULE 144. The Company will file in
a timely manner, information, documents and reports in compliance with the
Securities Act and the Exchange
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Act and will, at its expense, promptly take such further action as holders
of Registrable Securities may reasonably request to enable such holders of
Registrable Securities 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 ("Rule 144"), as such Rule may be
amended from time to time, or (b) any similar rule or regulation hereafter
adopted by the SEC. If at any time the Company is not required to file such
reports, it will, at its expense, forthwith upon the written request of any
holder of Registrable Securities , make available adequate current public
information with respect to the Company within the meaning of paragraph
(c)(2) of Rule 144 or such other information as necessary to permit sales
pursuant to Rule 144. Upon the request of the Investor, the Company will
deliver to the Investor a written statement, signed by the Company's
principal financial officer, as to whether it has complied with such
requirements.
Section 4.4. CERTIFICATE 4.4. CERTIFICATE 4.4. CERTIFICATE. The Company
will, at its expense, forthwith upon the request of any holder of
Registrable Securities, deliver to such holder a certificate, signed by the
Company's principal financial officer, stating (a) the Company's name,
address and telephone number (including area code), (b) the Company's
Internal Revenue Service identification number, (c) the Company's Commission
file number, (d) the number of shares of each class of Stock outstanding as
shown by the most recent report or statement published by the Company, and
(e) whether the Company has filed the reports required to be filed under the
Exchange Act for a period of at least ninety (90) days prior to the date of
such certificate and in addition has filed the most recent annual report
required to be filed thereunder.
Section 4.5. AMENDMENT AND MODIFICATION 4.5. AMENDMENT AND MODIFICATION 4.5.
AMENDMENT AND MODIFICATION. Any provision of this Agreement may be waived,
provided that such waiver is set forth in a writing executed by both parties
to this Agreement. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given, unless the Company has obtained the written consent of the holders of
a majority of the then outstanding Registrable Securities. Notwithstanding
the foregoing, the waiver of any provision hereof with respect to a matter
that relates exclusively to the rights of holders of Registrable Securities
whose securities are being sold pursuant to a Registration Statement and
does not directly or indirectly affect the rights of other holders of
Registrable Securities may be given by holders of at least a majority of the
Registrable Securities being sold by such holders; provided that the
provisions of this sentence may not be amended, modified or supplemented
except in accordance with the provisions of the immediately preceding
sentence. No course of dealing between or among any Person having any
interest in this Agreement will be deemed effective to modify, amend or
discharge any part of this Agreement or any rights or obligations of any
person under or by reason of this Agreement.
Section 4.6. SUCCESSORS AND ASSIGNS; ENTIRE AGREEMENT 4.6. SUCCESSORS AND
ASSIGNS; ENTIRE AGREEMENT 4.6. SUCCESSORS AND ASSIGNS; ENTIRE AGREEMENT.
This Agreement and all of the provisions hereof shall be binding upon and
inure to the benefit of the parties hereto and their respective successors
and assigns. The Investor may assign its rights under this Agreement to any
subsequent holder the Registrable Securities, provided that the Company
shall have the right to require any holder of Registrable Securities to
execute a counterpart of this
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Agreement as a condition to such holder's claim to any rights hereunder,
provided further that such holder is an "accredited investor" as defined in
Rule 501 of Regulation D. This Agreement, together with the Investment
Agreement and the Warrant(s) sets forth the entire agreement and
understanding between the parties as to the subject matter hereof and merges
and supersedes all prior discussions, agreements and understandings of any
and every nature among them.
Section 4.7. SEPARABILITY 4.7. SEPARABILITY 4.7. SEPARABILITY. In the event
that any provision of this Agreement or the application of any provision
hereof is declared to be illegal, invalid or otherwise unenforceable by a
court of competent jurisdiction, the remainder of this Agreement shall not
be affected except to the extent necessary to delete such illegal, invalid
or unenforceable provision unless that provision held invalid shall
substantially impair the benefits of the remaining portions of this
Agreement.
Section 4.8. NOTICES 4.8. NOTICES 4.8. NOTICES. All notices, demands,
requests, consents, approvals, and other communications required or
permitted hereunder shall be in writing and shall be (i) deposited in the
mail, registered or certified, return receipt requested, postage prepaid,
(ii) delivered by reputable air courier service with charges prepaid, or
(iii) transmitted by hand delivery, telegram or facsimile, addressed as set
forth below or to such other address as such party shall have specified most
recently by written notice. Any notice or other communication required or
permitted to be given hereunder shall be deemed effective (a) upon hand
delivery or delivery by facsimile, with accurate confirmation generated by
the transmitting facsimile machine, at the address or number designated
below (if delivered on a business day during normal business hours where
such notice is to be received), or the first business day following such
delivery (if delivered other than on a business day during normal business
hours where such notice is to be received) or (b) on the second business day
following the date of mailing by express courier service, fully prepaid,
addressed to such address, or upon actual receipt of such mailing, whichever
shall first occur. The addresses for such communications shall be:
If to the Company:
The Female Health Company
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Attention: X.X. Xxxxxxx
Chairman and Chief Executive Officer
Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile:
with a copy (which shall not constitute notice) to:
Reinhart, Boerner, Van Deuren, Xxxxxx &
Rieselbach
0000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
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Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx Xxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile:
if to the Investor:
Kingsbridge Capital Limited
c/o Kingsbridge Corporate Services
Limited
Xxxx Xxxxxx
Xxxxxxxxx, Xxxxxx Xxxxxxx
Xxxxxxxx of Ireland
Attention: Xxxx Xxxxxx
Telephone: 000-000-00-000-000
Facsimile: 011-353-45-482-003
with a copy (which shall not constitute notice) to:
Xxxxxx & Xxxxx LLP
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Either party hereto may from time to time change its address or facsimile
number for notices under this Section 4.8 by giving at least ten (10) days'
prior written notice of such changed address or facsimile number to the
other party hereto.
Section 4.9. GOVERNING LAW 4.9. GOVERNING LAW 4.9. GOVERNING LAW. This
Agreement shall be construed under the laws of the State of Wisconsin.
Section 4.10. HEADINGS 4.10. HEADINGS 4.10. HEADINGS. The headings in this
Agreement are for convenience of reference only and shall not constitute a
part of this Agreement, nor shall they affect their meaning, construction or
effect.
Section 4.11. COUNTERPARTS 4.11. COUNTERPARTS 4.11. COUNTERPARTS. This
Agreement may be executed in multiple counterparts, each of which shall be
deemed to be an original instrument and all of which together shall
constitute one and the same instrument.
Section 4.12. FURTHER ASSURANCES 4.12. FURTHER ASSURANCES 4.12. FURTHER
ASSURANCES. Each party shall cooperate and take such action as may be
reasonably requested by another party in order to carry out the provisions
and purposes of this Agreement and the transactions contemplated hereby.
Section 4.13. ABSENCE OF PRESUMPTION. This Agreement shall be construed
without regard to any presumption or rule requiring construction or
interpretation against the party drafting or causing any instrument to be
drafted.
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Section 4.14. REMEDIES 4.14. REMEDIES 4.14. REMEDIES. In the event of a
breach or a threatened breach by any party to this Agreement of its
obligations under this Agreement, any party injured or to be injured by such
breach will be entitled to specific performance of its rights under this
Agreement or to injunctive relief, in addition to being entitled to exercise
all rights provided in this Agreement and granted by law. The parties agree
that the provisions of this Agreement shall be specifically enforceable, it
being agreed by the parties that the remedy at law, including monetary
damages, for breach of any such provision will be inadequate compensation
for any loss and that any defense or objection in any action for specific
performance or injunctive relief that a remedy at law would be adequate is
waived.
IN WITNESS WHEREOF, the parties hereto have caused this Registration Rights
Agreement to be executed by the undersigned, thereunto duly authorized, as of
the date first set forth above.
THE FEMALE HEALTH COMPANY
By: /s/ X.X. Xxxxxxx
________________________________
X.X. Xxxxxxx
Chairman and Chief Executive
Officer
KINGSBRIDGE CAPITAL LIMITED
By: /s/ Valentine X'Xxxxxxxx
_________________________________
Valentine X'Xxxxxxxx
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