REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated as of June __, 1999 (the
"Agreement"), is made by and between THE FEMALE HEALTH COMPANY, a Wisconsin
corporation (the "Company"), and the undersigned investor or investors (the
"Initial Investors").
RECITALS
A. The Initial Investors have purchased Convertible Debentures
and Warrants (the "Warrants") from the Company which entitle the Initial
Investors to receive shares of the Company's Common Stock. The shares of
the Company's Common Stock into which the Convertible Debentures are
convertible and the Warrants are exercisable are collectively referred to
herein as the "Common Shares."
B. To induce the Initial Investors to purchase the Convertible
Debentures and Warrants, the Company has agreed to provide certain
registration rights under the Securities Act of 1933, as amended, and the
rules and regulations thereunder, or any similar successor statute
(collectively, the "1933 Act"), and applicable state securities laws with
respect to the Common Shares.
AGREEMENTS
In consideration of the premises and the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Initial
Investors hereby agree as follows:
1. Definitions. As used in this Agreement, the following terms
shall have the following meanings:
(a) "Holders" are stockholders of the Company who, by virtue
of agreements with the Company, are entitled to include their securities in
certain Registration Statements filed by the Company.
(b) "Initial Investors" includes any transferee or assignee
of the Investor who agrees to become bound by the provisions of this
Agreement in accordance with section 9 hereof.
(c) "Investors" refers to the investors who purchased
Convertible Debentures and Warrants from the Company as of the date of this
Agreement.
(d) "Registrable Securities" means the Common Shares,
together with any shares of Common Stock which may be issued as a dividend
or other distribution and any additional shares of Common Stock which may be
issued due to anti-dilution adjustments with respect to the Common Shares,
which are required to be included in a Registration Statement pursuant to
section 2 below.
(e) "Registration Period" means the period between the date
of this Agreement and the earlier of (i) the date on which all of the
Registrable Securities have been sold, or (ii) the date on which the
Registrable Securities (in the reasonable opinion of Investors' counsel) may
be immediately sold without registration by other than affiliates.
MW\276646DRK:PN 05/18/99
(f) "Registration Statement" means a registration statement
filed with the Securities and Exchange Commission (the "SEC") under the 0000
Xxx.
(g) The terms "register," "registered," and "registration"
refer to a registration effected by preparing and filing a Registration
Statement in compliance with the 1933 Act and applicable rules and
regulations thereunder, and the declaration or ordering of effectiveness of
such Registration Statement by the SEC.
2. Registration. The Company will use its reasonable best
efforts to file within 60 days after the date of this Agreement a
Registration Statement with the SEC registering the Registrable Securities
for resale. The Registration Statement will register for resale
1,875,000 Common Shares which may be issued on exercise of the Warrants and,
initially, 1,500,000 Common Shares which may be issuable upon conversion of
the Convertible Debentures. The Company will use its reasonable best
efforts to cause such Registration Statement to be declared effective by the
SEC within 120 days after the date of this Agreement. Such reasonable best
efforts shall include, but not be limited to, promptly responding to all
comments received from the staff of the SEC. Should the Company receive
notification from the SEC that the Registration Statement will receive no
action or no review from the SEC, the Company shall cause such Registration
Statement to become effective within five (5) business days of such SEC
notification. Once declared effective by the SEC, the Company shall use all
reasonable best efforts to cause such Registration Statement to remain
effective throughout the Registration Period. If the Registration Statement
is not effective within 120 days from the date of this Agreement, the
Company shall have an additional 60 days thereafter (for a total of 180 days
after the date of this Agreement) to cause the Registration Statement to be
declared effective by the SEC. If the Registration Statement is not
effective by the 180th day after the date of this Agreement, (a) the
interest rate on the Convertible Debentures shall automatically increase to
10% per annum beginning on the 181st day and continuing until the
Registration Statement is declared effective or the Convertible Debentures
are paid or converted in full, and (b) the maximum price per share of Common
Stock for purposes of computing the number of shares to be received upon
conversion of the Convertible Debentures shall automatically reduce to $1.00
for all conversions thereafter. Notwithstanding the foregoing, if the
Registration Statement is not declared effective within 180 days after the
date of this Agreement, at any time thereafter until it is so effective, an
Investor can require that his Convertible Debenture be immediately paid in
full by the Company.
3. Additional Obligations of the Company. In connection with
the registration of the Registrable Securities, the Company shall have the
following additional obligations:
(a) The Company shall keep the Registration Statement
effective pursuant to Rule 415 under the 1933 Act at all times during the
Registration Period as defined in section 1(e) above.
(b) The Registration Statement (including any amendments or
supplements thereto and prospectuses contained therein) filed by the Company
shall not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein, or necessary to make the
statements therein, in light of the circumstances in which they were made,
MW\276646DRK:PN 05/18/99 2
not misleading. The Company shall prepare and file with the SEC such
amendments (including post-effective amendments) and supplements to the
Registration Statement and the prospectus used in connection with the
Registration Statement as may be necessary to keep the Registration
Statement effective at all times during the Registration Period, and, during
such period, shall comply with the provisions of the 1933 Act applicable to
the Company with respect to the disposition of all Registrable Securities of
the Company covered by the Registration Statement until such time as all of
such Registrable Securities have been disposed of in accordance with the
intended methods of disposition by the sellers thereof as set forth in the
Registration Statement. In the event the number of shares of Common Stock
included in a Registration Statement filed pursuant to this Agreement is
insufficient to cover all of the Registrable Securities, the Company shall
amend the Registration Statement and/or file a new Registration Statement so
as to cover all of the Registrable Securities as soon as practicable. The
Company shall use its reasonable best efforts to cause such amendment and/or
new Registration Statement to become effective as soon as practicable
following the filing thereof.
(c) The Company shall furnish to each Investor whose
Registrable Securities are included in the Registration Statement (i)
promptly after the same is prepared and publicly distributed, filed with the
SEC or received by the Company, one copy of the Registration Statement and
any amendment thereto; each preliminary prospectus and final prospectus and
each amendment or supplement thereto; and, in the case of the Registration
Statement required under section 2 above, each substantive letter written by
or on behalf of the Company to the SEC and each item of each substantive
correspondence from the SEC, in each case relating to such Registration
Statement (other than any portion of any item thereof which contains
information for which the Company has sought confidential treatment); and
(ii) such number of copies of a prospectus, including a preliminary
prospectus, and all amendments and supplements thereto, and such other
documents as such Investor may reasonably request in order to facilitate the
disposition of the Registrable Securities owned by such Investor.
(d) The Company shall use its reasonable best efforts to
(i) register and qualify the Registrable Securities covered by the
Registration Statement under such other securities or blue sky laws of such
jurisdictions as the Investors who hold a majority in interest of the
Registrable Securities being offered reasonably request, (ii) prepare and
file in those jurisdictions such amendments (including post-effective
amendments) and supplements to such registrations as may be necessary to
maintain the effectiveness thereof during the Registration Period, (iii)
take such other actions as may be necessary to maintain such registrations
and qualifications in effect at all times during the Registration Period,
and (iv) take all other actions reasonably necessary or advisable to qualify
the Registrable Securities for sale in such jurisdictions. Notwithstanding
the foregoing provision, the Company shall not be required in connection
therewith or as a condition thereto to (i) qualify to do business in any
jurisdiction where it would not otherwise be required to qualify but for
this section 3(d), (ii) subject itself to general taxation in any such
jurisdiction, (iii) file a general consent to service of process in any such
jurisdiction, (iv) provide any undertakings that cause more than nominal
expense or burden to the Company, or (v) make any change in its charter or
bylaws, which in each case the Board of Directors of the Company determines
to be contrary to the best interests of the Company and its stockholders.
MW\276646DRK:PN 05/18/99 3
(e) The Company shall notify each Investor who holds
Registrable Securities being sold pursuant to a Registration Statement of
the happening of any event of which the Company has knowledge as a result of
which the prospectus included in the Registration Statement as then in
effect includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading (a "Suspension Event"). The Company shall make such
notification as promptly as practicable after the Company becomes aware of
such Suspension Event, shall promptly use its reasonable best efforts to
prepare a supplement or amendment to the Registration Statement to correct
such untrue statement or omission, and shall deliver a copy of such
supplement or amendment to each Investor. Notwithstanding the foregoing
provision, the Company shall not be required to maintain the effectiveness
of the Registration Statement or to amend or supplement the Registration
Statement for a period (a "Delay Period") expiring upon the earlier to occur
of (i) the date on which such material information is disclosed to the
public or ceases to be material, (ii) if applicable, the date on which the
Company is able to comply with its disclosure obligations and SEC
requirements related thereto, or (iii) ninety (90) days after the occurrence
of the Suspension Event; provided, however, that there shall not be more
than two Delay Periods in any twelve (12) month period.
(f) The Company shall use its reasonable best efforts to
prevent the issuance of any stop order or other suspension of effectiveness
of a Registration Statement and, if such an order is issued, shall use its
reasonable best efforts to obtain the withdrawal of such order at the
earliest possible time and to notify each Investor who holds Registrable
Securities being sold of the issuance of such order and the resolution
thereof.
(g) The Company shall permit a single firm of counsel
designated by the Investors who hold a majority in interest of the
Registrable Securities being sold pursuant to such registration to review
the Registration Statement and all amendments and supplements thereto (as
well as all requests for acceleration or effectiveness thereof) a reasonable
period of time prior to their filing with the SEC, and shall not file any
document in a form to which such counsel reasonably objects. Any such
counsel employed by the Investors shall be done so at the Investors' cost
and at no cost to the Company.
(h) The Company shall make available for inspection by any
Investor whose Registrable Securities are being sold pursuant to such
registration and any attorney, accountant or other agent retained by any
such Investor (collectively, the "Inspectors"), all pertinent financial and
other records, pertinent corporate documents and properties of the Company
(collectively, the "Records"), as shall be reasonably necessary to enable
each Inspector to exercise its due diligence responsibility, and cause the
Company's officers, directors and employees to supply all information which
any Inspector may reasonably request for purposes of such due diligence;
provided, however, that each Inspector shall hold in confidence and shall
not make any disclosure (except to an Investor) of any Record or other
information which the Company determines in good faith to be confidential,
and of which determination the Inspectors are so notified, unless (i) the
disclosure of such Records is necessary to avoid or correct a misstatement
or omission in any Registration Statement, (ii) the release of such Records
is ordered pursuant to a subpoena or other order from a court or government
body of competent jurisdiction, or (iii) the information in such Records has
MW\276646DRK:PN 05/18/99 4
been made generally available to the public other than by disclosure in
violation of this or any other agreement. The Company shall not be required
to disclose any confidential information in such Records to any Inspector
until and unless such Inspector shall have entered into confidentiality
agreements (in form and substance satisfactory to the Company) with the
Company with respect thereto, substantially in the form of this section
3(h). Each Investor agrees that it shall, upon learning that disclosure of
such Records is sought in or by a court or governmental body of competent
jurisdiction or through other means, give prompt notice to the Company and
allow the Company, at the Company's expense, to undertake appropriate
action to prevent disclosure of, or to obtain a protective order for, the
Records deemed confidential. Nothing herein shall be deemed to limit the
Investor's ability to sell Registrable Securities in a manner which is
otherwise consistent with applicable laws and regulations.
(i) The Company shall hold in confidence and shall not make
any disclosure of information concerning an Investor provided to the Company
pursuant hereto unless (i) disclosure of such information is necessary to
comply with federal or state securities laws, (ii) the disclosure of such
information is necessary to avoid or correct a misstatement or omission in
any Registration Statement, (iii) the release of such information is ordered
pursuant to a subpoena or other order from a court or governmental body of
competent jurisdiction, or (iv) such information has been made generally
available to the public other than by disclosure in violation of this or any
other agreement. The Company agrees that it shall, upon learning that
disclosure of such information concerning an Investor is sought in or by a
court or governmental body of competent jurisdiction or through other means,
give prompt notice to such Investor and allow such Investor, at its expense,
to undertake appropriate action to prevent disclosure of, or to obtain a
protective order for, such information.
(j) the Company shall take all other reasonable actions
reasonably requested by the Investors which are necessary to expedite and
facilitate disposition by the Investor of the Registrable Securities
pursuant to the Registration Statement.
4. Obligations of the Investors. In connection with the
registration of the Registrable Securities, the Investors shall have the
following obligations:
(a) It shall be a condition precedent to the obligations of
the Company to take any action pursuant to this Agreement with respect to
each Investor that such Investor shall furnish to the Company such
information regarding the Investor, the Registrable Securities held by the
Investor and the intended method of disposition of the Registrable
Securities held by the Investor as shall be reasonably required to effect
the registration of the Registrable Securities and shall execute such
documents in connection with such registration as the Company may reasonably
request.
(b) Each Investor, by such Investor's acceptance of the
Registrable Securities, agrees to cooperate with the Company as reasonably
requested by the Company in connection with the preparation and filing of
the Registration Statement hereunder, unless such Investor has notified the
Company in writing of such Investor's election to exclude all of such
Investor's Registrable Securities from the Registration Statement.
MW\276646DRK:PN 05/18/99 5
(c) Each Investor agrees that, upon receipt of any notice
from the Company of the happening of any event of the kind described in
section 3(e) or 3(f), such Investor will immediately discontinue disposition
of Registrable Securities pursuant to the Registration Statement covering
such Registrable Securities until such Investor's receipt of the copies of
the supplemented or amended prospectus contemplated by section 3(e) or 3(f)
and, if so directed by the Company, such Investor shall deliver to the
Company (at the expense of the Company) or destroy (and deliver to the
Company a certificate of destruction) all copies in such Investor's
possession, of the prospectus covering such Registrable Securities current
at the time of receipt of such notice.
5. Expenses of Registration. All expenses, other than
underwriting discounts and commissions, incurred in connection with
registrations, filings or qualifications pursuant to sections 2 and 3,
including, without limitation, all registration, listing and qualifications
fees, printers and accounting fees, the fees and disbursements of counsel
for the Company shall be borne by the Company.
6. Indemnification. In the event any Registrable Securities are
included in a Registration Statement under this Agreement:
(a) To the extent permitted by law, the Company will
indemnify and hold harmless each Investor who holds such Registrable
Securities, the directors, if any, of such Investor, the officers, if any,
of such Investor, each person, if any, who controls any Investor within the
meaning of the 1933 Act or the Exchange Act, any underwriter (as defined in
the 0000 Xxx) for the Investors, the directors, if any, of such underwriter
and the officers, if any, of such underwriter, and each person, if any, who
controls any such underwriter within the meaning of the 1933 Act or the
Exchange Act (each, an "Indemnified Person"), against any losses, claims,
damages, expenses or liabilities (joint or several) (collectively "Claims")
to which any of them become subject under the 1933 Act, the Exchange Act or
otherwise, insofar as such Claims (or actions or proceedings, whether
commenced or threatened, in respect thereof) arise out of or are based upon
any of the following statements, omissions or violations in the Registration
Statement, or any post-effective amendment thereof, or any prospectus
included therein: (i) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any post-effective
amendment thereof 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, (ii) any untrue statement or alleged
untrue statement of a material fact contained in any preliminary prospectus
if used prior to the effective date of such Registration Statement, or
contained in the final prospectus (as amended or supplemented, if the
Company files any amendment thereof or supplement thereto with the SEC) or
the omission or alleged omission to state therein any material fact
necessary to make the statements made therein, in light of the circumstances
under which the statements therein were made, not misleading, or (iii) any
violation or alleged violation by the Company of the 1933 Act, the Exchange
Act or any state securities law or any rule or regulation (the matters in
the foregoing clauses (i) through (iii) being, collectively, "Violations").
Subject to the restrictions set forth in section 6(c) with respect to the
number of legal counsel, the Company shall reimburse the Investors and each
such underwriter or controlling person, promptly as such expenses are
incurred and are due and payable, for any legal fees or other reasonable
expenses incurred by them in connection with investigating or defending any
such Claim. Notwithstanding anything to the contrary contained herein, the
MW\276646DRK:PN 05/18/99 6
indemnification agreement contained in this section 6(a): (A) shall not
apply to a Claim arising out of or based upon a Violation which occurs in
reliance upon and in conformity with information furnished in writing to the
Company by any Indemnified Person or underwriter for such Indemnified Person
expressly for use in connection with the preparation of the Registration
Statement or any such amendment thereof or supplement thereto, if such
prospectus was timely made available by the Company pursuant to section 3(c)
hereof; (B) with respect to any preliminary prospectus shall not inure to
the benefit of any such person from whom the person asserting any such Claim
purchased the Registrable Securities that are the subject thereof (or to the
benefit of any person controlling such person) if the untrue statement or
omission of material fact contained in the preliminary prospectus was
corrected in the prospectus, as then amended or supplemented, if a
prospectus was timely made available by the Company pursuant to section 3(c)
hereof; and (C) shall not apply to amounts paid in settlement of any Claim
if such settlement is effected without the prior written consent of the
Company, which consent shall not be unreasonably withheld. Such indemnity
shall remain in full force and effect regardless of any investigation made
by or on behalf of the Indemnified Persons and shall survive the transfer of
the Registrable Securities by the Investors pursuant to section 9.
(b) In connection with any Registration Statement in which
an Investor is participating, each such Investor agrees to indemnify and
hold harmless, to the same extent and in the same manner set forth in
section 6(a), the Company, each of its directors, each of its officers who
signs the Registration Statement, each person, if any, who controls the
Company within the meaning of the 1933 Act or the Exchange Act, any
underwriter and any other stockholder selling securities pursuant to the
Registration Statement or any of its directors or officers or any person who
controls such stockholder or underwriter within the meaning of the 1933 Act
or the Exchange Act (collectively and together with an Indemnified Person,
an "Indemnified Party"), against any Claim to which any of them may become
subject, under the 1933 Act, the Exchange Act or otherwise, insofar as such
Claim arises out of or is based upon any Violation, in each case to the
extent (and only to the extent) that such Violation occurs in reliance upon
and in conformity with written information furnished to the Company by such
Investor expressly for use in connection with such Registration Statement,
and such Investor will promptly reimburse any legal or other expenses
reasonably incurred by them in connection with investigating or defending
any such Claim; provided, however, that the indemnity agreement contained in
this section 6(b) shall not apply to amounts paid in settlement of any Claim
if such settlement is effected without the prior written consent of such
Investor, which consent shall not be unreasonably withheld; provided
further, however, that the Investor shall be liable under this section 6(b)
for only that amount of a Claim as does not exceed the net proceeds to such
Investor as a result of the sale of Registrable Securities pursuant to such
Registration Statement. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of such
Indemnified Party and shall survive the transfer of the Registrable
Securities by the Investors pursuant to section 9. Notwithstanding anything
to the contrary contained herein, the indemnification agreement contained in
this section 6(b) with respect to any preliminary prospectus shall not inure
to the benefit of any Indemnified Party if the untrue statement or omission
of material fact contained in the preliminary prospectus was corrected on a
timely basis in the prospectus, as then amended or supplemented.
(c) Promptly after receipt by an Indemnified Person or
Indemnified Party under this section 6 of notice of the commencement of any
MW\276646DRK:PN 05/18/99 7
action (including any governmental action), such Indemnified Person or
Indemnified Party shall, if a Claim in respect thereof is to be made against
any indemnifying party under this section 6, deliver to the indemnifying
party a written notice of the commencement thereof and this indemnifying
party shall have the right to participate in, and, to the extent the
indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume control of the defense thereof with counsel
mutually satisfactory to the indemnifying parties; provided, however, that
an Indemnified Person or Indemnified Party shall have the right to retain
its own counsel, with the fees and expenses to be paid by the indemnifying
party, if, in the reasonable opinion of counsel retained by the indemnifying
party, the representation by such counsel of the Indemnified Person or
Indemnified Party and the indemnifying party would be inappropriate due to
actual or potential differing interests between such Indemnified Person or
Indemnified Party and other party represented by such counsel in such
proceeding. The Company shall pay for only one separate legal counsel for
the Investors; such legal counsel shall be selected by the Investors holding
a majority in interest of the Registrable Securities. The failure to
deliver written notice to the indemnifying party within a reasonable time of
the commencement of any such action shall not relieve such indemnifying
party of any liability to the Indemnified Person or Indemnified Party under
this section 6, except to the extent that the indemnifying party is
prejudiced in its ability to defend such action. The indemnification
required by this section 6 shall be made by periodic payments of the amount
thereof during the course of the investigation or defense, as such expense,
loss, damage or liability is incurred and is due and payable.
7. Contribution. To the extent any indemnification provided for
herein is prohibited or limited by law, the indemnifying party agrees to
make the maximum contribution with respect to any amounts for which it would
otherwise be liable under section 6 to the fullest extent permitted by law;
provided, however, that (i) no contribution shall be made under
circumstances where the maker would not have been liable for indemnification
under the fault standards set forth in section 6, (ii) no seller of
Registrable Securities guilty of fraudulent misrepresentation (within the
meaning of section 11(f) of the 0000 Xxx) shall be entitled to contribution
from any seller of Registrable Securities who was not guilty of such
fraudulent misrepresentation, and (iii) contribution by any seller of
Registrable Securities shall be limited in amount to the net amount of
proceeds received by such seller from the sale of such Registrable
Securities.
8. Assignment of Registration Rights. The rights to have the
Company register Registrable Securities pursuant to this Agreement shall be
automatically assigned by the Investors to transferees or assignees of all
or any portion of such securities only if (i) the Investor agrees in writing
with the transferee or assignee to assign such rights, and a copy of such
agreement is furnished to the Company within a reasonable time after such
assignment, (ii) the Company is, within a reasonable time after such
transfer or assignment, furnished with written notice of the name and
address of such transferee or assignee and the securities with respect to
which such registration rights are being transferred or assigned, (iii)
following such transfer or assignment the further disposition of such
securities by the transferee or assignee is restricted under the 1933 Act
and applicable state securities laws, (iv) at or before the time the Company
received the written notice contemplated by clause (ii) of this sentence,
the transferee or assignee agrees in writing with the Company to be bound by
all of the provisions contained herein, (v) such transfer shall have been
MW\276646DRK:PN 05/18/99 8
made in accordance with the applicable requirements of the Purchase
Agreement, and (vi) such transferee shall be an "accredited investor" as
that term is defined in Rule 501 of Regulation D promulgated under the 1933
Act.
9. Amendment of Registration Rights. Provisions of this
Agreement may be amended and the observance thereof may be waived (either
generally or in a particular instance and either retroactively or
prospectively) only with the written consent of the Company and Investors
who hold a majority interest of the Registrable Securities. Any amendment
or waiver effected in accordance with this section 9 shall be binding upon
each Investor and the Company.
10. Third Party Beneficiary. The parties acknowledge and agree
that X.X. Xxxxxxxx & Co. ("Xxxxxxxx"), its officers, directors and
controlling persons shall be deemed third party beneficiaries of the
Company's agreements and representations set forth in this Agreement,
entitled to enforce the terms thereof, and to indemnification for any
damages resulting to Xxxxxxxx or its officers, directors or controlling
persons from any actual or threatened breach thereof by the Company, both in
Xxxxxxxx'x or such other persons' personal capacity and, should Xxxxxxxx or
such other persons so elect, and provided that Xxxxxxxx or such other
persons has obtained the prior written consent of the Investor, on behalf of
the Investor.
11. Miscellaneous.
(a) Conflicting Instructions. A person or entity is deemed
to be a holder of Registrable Securities whenever such person or entity owns
of record such Registrable Securities. If the Company receives conflicting
instructions, notices or elections from two or more persons or entities with
respect to the same Registrable Securities, the Company shall act upon the
basis of instructions, notice or election received from the registered owner
of such Registrable Securities.
(b) Notices. Any notices required or permitted to be given
under the terms of this Agreement shall be sent by certified or registered
mail (with return receipt requested) or delivered personally or by courier
(including a nationally recognized overnight delivery service) or by
facsimile transmission. Any notice so given shall be deemed effective three
days after being deposited in the U.S. Mail, or upon receipt if delivered
personally or by courier or facsimile transmission, in each case addressed
to a party at the following address or such other address as each such party
furnishes to the other in accordance with this section 11(b):
If to the Company:
The Female Health Company
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xx. X.X. Xxxxxxx
with a copy to:
Reinhart, Boerner, Van Deuren,
MW\276646DRK:PN 05/18/99 9
Xxxxxx & Xxxxxxxxxx, s.c.
0000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xx. Xxxxx Xxxxxxx, Esq.
If to an Investor, to the particular Investor at the address set forth
below:
Mr. Xxxx Xxxxxx
0000 Xxxx Xxxxxxx
Xxxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Mr. Xxxxxx Xxxxxx
00000 0 Xxxx Xxxx
Xxxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Xx. Xxxx Xxxx
0000 Xxxxxxx Xxxxxx
00 Xxxxx 0xx Xxxxxx
Xxxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
W.G. Securities Limited Partnership
c/o Xx. Xxxxxxx Xxxxxx
PMB 452
000 Xxxx Xxxxxxxxx, Xx. 00
Xxxxxxx Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Xx. Xxxxxx Xxxxxxxx
0000 Xxxxxxxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
in each case with a copy to:
X.X. Xxxxxxxx & Co.
000 Xxxxx 0xx Xxxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xx. Xxxx X. Xxxxx
(c) Waiver. Failure of any party to exercise any right or
remedy under this Agreement or otherwise, or delay by a party in exercising
such right or remedy, shall not operate as a waiver thereof.
MW\276646DRK:PN 05/18/99 10
(d) Governing Law. This Agreement shall be enforced,
governed by and construed in accordance with the laws of the State of
Wisconsin applicable to the agreements made and to be performed entirely
within such state, without giving effect to rules governing the conflict of
laws.
(e) Severability. In the event that any provision of this
Agreement is invalid or unenforceable under any applicable statute or rule
of law, then such provision shall be deemed inoperative to the extent that
it may conflict therewith and shall be deemed modified to conform with such
statute or rule of law. Any provision hereof which may prove invalid or
unenforceable under any law shall not affect the validity or enforceability
of any other provision hereof.
(f) Entire Agreement. This Agreement constitutes the entire
agreement among the parties hereto with respect to the subject matter
hereof. There are no restrictions, promises, warranties or undertakings,
other than those set forth or referred to herein or therein. This Agreement
supersedes all prior agreements and understandings among the parties hereto
with respect to the subject matter hereof.
(g) Successors and Assigns. Subject to the requirements of
section 9 hereof, this Agreement shall inure to the benefit of and be
binding upon the successors and assigns of each of the parties hereto.
(h) Use of Pronouns. All pronouns and any variations
thereof refer to the masculine, feminine or neuter, singular or plural, as
the context may require.
(i) Headings. The headings and subheadings in the Agreement
are for convenience of reference only and shall not limit or otherwise
affect the meaning hereof.
(j) Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original but all of
which shall constitute one and the same agreement. This Agreement, once
executed by a party, may be delivered to the other party hereto by facsimile
transmission, and facsimile signatures shall be binding on the parties
hereto.
(k) Further Acts. Each party shall do and perform, or cause
to be done and performed, all such further acts and things, and shall
execute and deliver all such other agreements, certificates, instruments and
documents, as the other party may reasonably request in order to carry out
the intent and accomplish the purposes of this Agreement and the
consummation of the transactions contemplated hereby.
(l) Consents. All consents and other determinations to be
made by the Investors pursuant to this Agreement shall be made by Investors
holding a majority of the Registrable Securities, determined as if all
shares of preferred stock of the Company issued in the Offering and all
Warrants then outstanding had been converted into or exercised for
Registrable Securities.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above written.
MW\276646DRK:PN 05/18/99 11
COMPANY:
THE FEMALE HEALTH COMPANY
By:______________________________
X.X. Xxxxxxx, Chairman and Chief
Executive Officer
INVESTORS:
________________________________
Xxxx Xxxxxx
________________________________
Xxxxxx Xxxxxx
________________________________
Xxxx Xxxx
W.G. SECURITIES LIMITED PARTNERSHIP
BY________________________________
Xxxxxxx Xxxxxx
________________________________
Xxxxxx Xxxxxxxx
MW\276646DRK:PN 05/18/99 12
