Exhibit 4.16
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and
entered into as of January 19, 2006, by and among Synova Healthcare Group, Inc.,
a Nevada corporation (the "Company"), and the purchasers signatory hereto (each
such purchaser, a "Purchaser" and collectively, the "Purchasers").
This Agreement is made pursuant to the Securities Purchase Agreement,
dated as of the date hereof among the Company and the Purchasers (the "Purchase
Agreement").
The Company and the Purchasers hereby agree as follows:
1. Definitions. Capitalized terms used and not otherwise defined herein
that are defined in the Purchase Agreement shall have the meanings given such
terms in the Purchase Agreement. As used in this Agreement, the following terms
shall have the following meanings:
"Advice" shall have the meaning set forth in Section 6(d).
"Commission" means the United States Securities and Exchange
Commission or its successor federal agency.
"Effectiveness Period" shall have the meaning set forth in
Section 2(a).
"Event" shall have the meaning set forth in Section 2(b).
"Event Date" shall have the meaning set forth in Section 2(b).
"Effective Date" means, with respect to the Registration
Statement required to be filed hereunder, the date that the Registration
Statement is declared effective by the Commission.
"Electing Holder" shall have the meaning set forth in Section
3(a).
"Filing Date" means, with respect to the Registration
Statement required to be filed hereunder, the date that the Registration
Statement is first filed with the Commission.
"Holder" means any person that is the record owner of
Registrable Securities (and includes any person that has a beneficial interest
in any Registrable Security in book-entry form).
"Holders" mean every Holder collectively.
"Indemnified Party" shall have the meaning set forth in
Section 5(c).
"Indemnifying Party" shall have the meaning set forth in
Section 5(c).
"Losses" shall have the meaning set forth in Section 5(a).
"Proceeding" means an action, claim, suit, investigation or
proceeding (including, without limitation, an investigation or partial
proceeding, such as a deposition), whether commenced or threatened.
"Prospectus" means the prospectus included in the Registration
Statement (including, without limitation, a prospectus that includes any
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any prospectus supplement, with
respect to the terms of the offering of any portion of the Registrable
Securities covered by the Registration Statement, and all other amendments and
supplements to the Prospectus, including post-effective amendments, and all
material incorporated by reference or deemed to be incorporated by reference in
such Prospectus.
"Registrable Securities" means all of the Shares and the
Warrant Shares sold under the Purchase Agreement and the shares of Common Stock
held by or issuable upon exercise of any derivative securities issued to the
Placement Agents, together with any shares of Common Stock issued or issuable
upon any stock split, dividend or other distribution, recapitalization or
similar event with respect to the foregoing.
"Registration Statement" means the registration statements
required to be filed hereunder, including (in each case) the Prospectus,
amendments and supplements to the registration statement or Prospectus,
including pre- and post-effective amendments, all exhibits thereto, and all
material incorporated by reference or deemed to be incorporated by reference in
the registration statement.
"Rule 415" means Rule 415 promulgated by the Commission
pursuant to the Securities Act, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the Commission having
substantially the same purpose and effect as such Rule.
"Rule 424" means Rule 424 promulgated by the Commission
pursuant to the Securities Act, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the Commission having
substantially the same purpose and effect as such Rule.
2. Registration.
(a) On or prior to March 31, 2006, the Company shall prepare
and file with the Commission the Registration Statement covering the resale of
all of the Registrable Securities for an offering to be made on a continuous or
delayed basis pursuant to Rule 415. The Registration Statement required
hereunder shall be on such form as permitted by the rules and regulations of the
Commission which permits the sale of the Registrable Securities by the Holders.
The Registration Statement required hereunder shall contain (except if otherwise
directed by the Holders or as otherwise directed or requested by the Commission
or required by applicable law, rule or regulation) substantially the "Plan of
Distribution" attached hereto as Annex A. Subject to the terms of this
Agreement, the Company shall use its best efforts to cause the Registration
Statement to be declared effective under the Securities Act as promptly as
possible after the filing thereof, but in any event not later than June 14,
2006, and shall use its best efforts to keep the Registration Statement
continuously effective under the Securities Act until the earliest of (i) the
date when all Registrable Securities covered by the Registration Statement have
been sold; (ii) the expiration of the period referred to Rule 144(k) of the
Securities Act with respect to all Registrable Securities held by persons that
are not Affiliates of
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the Company; (iii) two years from the Effective Date; or (iv) no Registrable
Securities are outstanding (the "Effectiveness Period"). If: (i) a Registration
Statement is not filed on or prior to Xxxxx 00, 0000 (xx the Company files a
Registration Statement without affording the Electing Holders the opportunity to
review and comment on the same as required by Section 3(a), the Company shall
not be deemed to have satisfied this clause (i)), or (ii) a Registration
Statement filed or required to be filed hereunder is not declared effective for
any reason by the Commission on or before 75 days after the date the
Registration Statement is first filed with the Commission, or (iii) other than
during the periods for which the Company gives notice under Section 2(b)(ii),
which shall be governed by Section 2(b)(ii), after a Registration Statement is
first declared effective by the Commission, it ceases for any reason to remain
continuously effective as to all Registrable Securities for which it is required
to be effective, or the Holders are not permitted to utilize the Prospectus
therein to resell such Registrable Securities, for in any such case 20
consecutive calendar days but no more than an aggregate of 45 calendar days
during any 12 month period (which need not be consecutive Trading Days) (any
such failure or breach being referred to as an "Event," and for purposes of
clause (i) or (ii) the date on which such Event occurs or for purposes of clause
(iii) the date on which such 20 or 45 calendar day period, as applicable, is
exceeded being referred to as "Event Date"), then in addition to any other
rights the Holders may have hereunder or under applicable law, on the first of
such Event Dates, the Company shall pay to each Holder (x) upon the occurrence
of such Event, an amount, as partial liquidated damages and not as a penalty,
equal to 1.0% of the aggregate purchase price paid by such Holder pursuant to
the Purchase Agreement for any Registrable Securities then held by such Holder,
and (y) on each monthly anniversary of such Event Date (if the applicable Event
shall not have been cured by such date), the Company shall pay to each Holder an
amount, as partial liquidated damages and not as a penalty, equal to 1.5% of the
aggregate purchase price paid by such Holder pursuant to the Purchase Agreement
for any Registrable Securities then held by such Holder. Notwithstanding
anything to the contrary herein, if the Commission (or any successor) has an
unscheduled closure of operations during any Trading Days prior to or during the
Effectiveness Period, then, as the case may be, any of the periods above shall
be tolled for a number of days equal to the number of days in the period
beginning on such closure and ending on the Trading Day when the Commission is
open for business, or the deadline for filing or causing the effectiveness of
the Registration Statement shall be postponed by such number of days. The
partial liquidated damages pursuant to the terms hereof shall apply on a daily
pro-rata basis for any portion of a 30-day period prior to the cure of an Event.
In lieu of cash, at the option of the Company, such liquidated damages may be
paid in shares of Common Stock valued at 85% of the average ten day trading
price for a period ended upon the effectiveness of the Registration Statement.
If the Company pays such liquidated damages to the Holders in shares of Common
Stock under this Section, such Holders shall be entitled to "piggy-back"
registration rights with respect to such shares of Common Stock pursuant to, and
in accordance with, Section 6(e) of this Agreement; provided, however, that such
"piggy-back" registration rights shall not apply with respect to the
Registration Statement.
(b) Notwithstanding anything to the contrary contained in this
Agreement, the Company may (i) upon written notice to all Holders, postpone
having the Registration Statement declared effective for a reasonable period not
to exceed 30 days if the Company possesses material non-public information, the
disclosure of which would have a material adverse effect on the Company and its
subsidiaries taken as a whole or would impede the consummation of a proposed or
pending material business transaction; provided, however, that such postponement
shall be subject to the liquidated damages required under Section 2(a) or (ii)
suspend the use of
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the Prospectus for a period not to exceed 15 days in any 30-day period or an
aggregate of 30 days in any 12-month period if the Board of Directors of the
Company shall have determined in good faith that because of valid business
reasons (not including avoidance of the Company's obligations hereunder),
including without limitation the acquisition or divestiture of assets, pending
material corporate developments and similar events, it is in the best interests
of the Company to suspend such use, and prior to suspending such use the Company
provides the Electing Holders with written notice of such suspension, which
notice need not specify the nature of the event giving rise to such suspension.
If the Company makes a postponement or a suspension pursuant to the terms of
clause (ii) of this section 2(b), the partial liquidated damages set forth in
section 2(a) shall not apply to any such postponement or suspension until the
time periods set forth in Section 2(b)(ii) have been exceeded; provided,
however, that the Electing Holders shall not be entitled to any liquidated
damages under Section 2 if use of the Prospectus was suspended under Section
2(b)(ii) in connection with negotiations relating to a sale (regardless of the
form) of the Company and such negotiations result in a sale (regardless of the
form) of the Company pursuant to which the Holders receive proceeds of at least
$2.00 per share.
3. Registration Procedures.
In connection with the Company's registration obligations
hereunder, the Company shall:
(a) Not less than five Trading Days prior to the filing of the
Registration Statement or any related Prospectus or any amendment or supplement
thereto, the Company shall, (i) furnish to the Holders, copies of all such
documents proposed to be filed (including documents incorporated or deemed
incorporated by reference to the extent requested by such Person) which
documents will be subject to the review of such Holders, and (ii) cause its
officers and directors, counsel and independent certified public accountants to
respond to such inquiries as shall be necessary, in the reasonable opinion of
respective counsel to conduct a reasonable investigation within the meaning of
the Securities Act. The Company shall not file the Registration Statement or any
such Prospectus or any amendments or supplements thereto to which the Holders of
a majority of the Registrable Securities shall reasonably object in good faith,
provided that the Company is notified of such objection in writing no later than
4 Trading Days after the Holders have been so furnished copies of such
documents. Each Holder agrees to furnish to the Company a signed and completed
Notice and Questionnaire in the form attached to this Agreement as Annex B (a
"Selling Holder Questionnaire") not less than seven Trading Days prior to the
Filing Date or by the end of the fourth Trading Day following the date on which
such Holder receives draft materials in accordance with this Section.
Notwithstanding anything to the contrary contained in this Agreement, no Holder
shall be entitled to be named as a selling securityholder in the Registration
Statement as of the Effective Time, and no Holder shall be entitled to use the
Prospectus forming a part thereof for offers and resales of Registrable
Securities at any time, unless such Holder has returned a properly completed and
signed Selling Holder Questionnaire to the Company by the deadline for response
set forth in the foregoing sentence. Any Holder of Registrable Securities that
has returned a properly completed and signed Selling Holder Questionnaire to the
Company shall be referred to as an "Electing Holder."
(b) (i) Prepare and file with the Commission such amendments,
including post-effective amendments, to the Registration Statement and the
Prospectus used in connection
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therewith as may be necessary to keep the Registration Statement continuously
effective as to the applicable Registrable Securities for the Effectiveness
Period; (ii) cause the related Prospectus to be amended or supplemented by any
required Prospectus supplement, and as so supplemented or amended to be filed
pursuant to Rule 424; (iii) respond as promptly as reasonably possible to any
comments received from the Commission with respect to the Registration Statement
or any amendment thereto and, as promptly as reasonably possible, upon request,
provide the Holders true and complete copies of all correspondence from and to
the Commission relating to the Registration Statement; and (iv) comply in all
material respects with the provisions of the Securities Act and the Exchange Act
with respect to the disposition of all Registrable Securities covered by the
Registration Statement during the applicable period in accordance with the
intended methods of disposition by the Holders thereof set forth in the
Registration Statement as so amended or in such Prospectus as so supplemented.
(c) Notify the Electing Holders as promptly as reasonably
possible (but in any event, within three (3) Trading Days in the case of
subparagraphs (i) and (ii) below, and within one (1) Trading Day in the case of
subparagraphs (iii), (iv) and (v) below) following the day (i)(A) when a
Prospectus or any Prospectus supplement or post-effective amendment to the
Registration Statement is proposed to be filed; (B) when the Commission notifies
the Company whether there will be a "review" of the Registration Statement and
whenever the Commission comments in writing on the Registration Statement (the
Company shall upon request provide true and complete copies thereof and all
written responses thereto to each of the Holders); and (C) with respect to the
Registration Statement or any post-effective amendment, when the same has become
effective; (ii) of any request by the Commission or any other Federal or state
governmental authority during the period of effectiveness of the Registration
Statement for amendments or supplements to the Registration Statement or
Prospectus or for additional information; (iii) of the issuance by the
Commission or any other federal or state governmental authority of any stop
order suspending the effectiveness of the Registration Statement covering any or
all of the Registrable Securities or the initiation of any Proceedings for that
purpose; (iv) of the receipt by the Company 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; and (v) of the occurrence of any
event or passage of time that makes the financial statements included in the
Registration Statement ineligible for inclusion therein or any statement made in
the Registration Statement or Prospectus or any document incorporated or deemed
to be incorporated therein by reference untrue in any material respect or that
requires any revisions to the Registration Statement, Prospectus or other
documents so that, in the case of the Registration Statement or the Prospectus,
as the case may be, 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 light of the circumstances under which they were
made, not misleading.
(d) Use commercially reasonable efforts to avoid the issuance
of, or, if issued, obtain the withdrawal of (i) any order suspending the
effectiveness of the Registration Statement, or (ii) any suspension of the
qualification (or exemption from qualification) of any of the Registrable
Securities for sale in any jurisdiction, at the earliest practicable moment.
(e) Furnish to each Electing Holder, without charge, at least
one conformed copy of the Registration Statement and each amendment thereto,
including financial statements and schedules, all documents incorporated or
deemed to be incorporated therein by reference to
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the extent requested by such Person, and all exhibits to the extent requested by
such Person (including those previously furnished or incorporated by reference)
promptly after the filing of such documents with the Commission.
(f) Promptly deliver to each Electing Holder, without charge,
as many copies of the Prospectus or Prospectuses (including each form of
prospectus) and each amendment or supplement thereto as such Persons may
reasonably request in connection with resales by the Electing Holder. Subject to
the terms of this Agreement, the Company hereby consents to the use of such
Prospectus and each amendment or supplement thereto by each of the selling
Electing Holders in connection with the offering and sale of the Registrable
Securities covered by such Prospectus and any amendment or supplement thereto,
except after the giving on any notice pursuant to Section 3(c).
(g) Prior to any resale of Registrable Securities by an
Electing Holder, use its commercially reasonable efforts to register by
coordination or cooperate with the selling Electing Holders in connection with
the registration (or exemption from the Registration) of such Registrable
Securities for the resale by the Holder under the securities or Blue Sky laws of
such jurisdictions within the United States as any Holder reasonably requests in
writing, to keep the registration (or exemption therefrom) effective during the
Effectiveness Period and to do any and all other acts or things reasonably
necessary to enable the disposition in such jurisdictions of the Registrable
Securities covered by the Registration Statement; provided, that the Company
shall not be required to qualify generally to do business in any jurisdiction
where it is not then so qualified, subject the Company to any material tax in
any such jurisdiction where it is not then so subject or file a general consent
to service of process in any such jurisdiction.
(h) If requested in writing by the Electing Holders, cooperate
with the Electing Holders to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be delivered to a transferee
pursuant to the Registration Statement, which certificates shall be free, to the
extent permitted by the Purchase Agreement, of all restrictive legends, and to
enable such Registrable Securities to be in such denominations and registered in
such names as any such Holders may so request.
The Company understands that a delay in the delivery of the
certificates in the form required in the previous paragraph more than three
Trading Days after request by the Electing Holder in writing could result in
economic loss to an Electing Holder. As compensation to an Electing Holder for
such loss, the Company agrees to pay late payment fees (as liquidated damages
and not as a penalty) to the Electing Holder for late delivery of certificates
in the amount of $100 per business day after such Three Trading Days for each
$10,000 of purchase price of the Registrable Securities subject to such delivery
default. The Company shall pay any payments incurred under this Section in
immediately available funds upon demand.
Upon the occurrence of any event contemplated by Section
3(c)(v), as promptly as reasonably possible, prepare a supplement or amendment,
including a post-effective amendment, to the Registration Statement or a
supplement to the related Prospectus or any document incorporated or deemed to
be incorporated therein by reference, and file any other required document so
that, as thereafter delivered, neither the Registration Statement nor such
Prospectus will contain an untrue statement of a material fact or omit to state
a material fact
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required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
If the Company notifies the Electing Holders in accordance
with clauses (ii) through (v) of Section 3(c) or clause (ii) of Section 2(b)
above to suspend the use of any Prospectus, then the Electing Holders shall
suspend use of such Prospectus. The Company will use its commercially reasonable
efforts to ensure that the use of the Prospectus may be resumed as promptly as
is practicable.
(i) Comply with all applicable rules and regulations of the
Commission.
(j) During any periods that the Company is unable to meet its
obligations hereunder with respect to the registration of the Registrable
Securities solely because any Holder fails to timely furnish the Company with
the information reasonably requested and necessary for the Company to meet its
obligations hereunder, any liquidated damages that are accruing at such time as
to such Holder only shall be tolled and any Event that may otherwise occur
solely because of such delay shall be suspended as to such Holder only, until
such information is delivered to the Company. If such Holder fails to furnish
such information to the Company within seven (7) Trading Days after a written
request from the Company, such Holder's name may be removed or excluded from the
Registration Statement or Prospectus forming a part thereof.
4. Registration Expenses. All fees and expenses incident to the
performance of or compliance with this Agreement by the Company shall be borne
by the Company whether or not any Registrable Securities are sold pursuant to
the Registration Statement. The fees and expenses referred to in the foregoing
sentence shall include, without limitation, (i) all registration and filing fees
(including, without limitation, fees and expenses (A) with respect to filings
required to be made with the Trading Market on which the Common Stock is then
listed for trading, and (B) in compliance with applicable state securities or
Blue Sky laws), (ii) printing expenses (including, without limitation, expenses
of printing certificates for Registrable Securities and of printing prospectuses
if the printing of prospectuses is reasonably requested by the holders of a
majority of the Registrable Securities included in the Registration Statement),
(iii) messenger, telephone and delivery expenses, (iv) fees and disbursements of
counsel for the Company, (v) Securities Act liability insurance, if the Company
so desires such insurance, and (vi) fees and expenses of all other Persons
retained by the Company in connection with the consummation of the transactions
contemplated by this Agreement. In addition, the Company shall be responsible
for all of its internal expenses incurred in connection with the consummation of
the transactions contemplated by this Agreement (including, without limitation,
all salaries and expenses of its officers and employees performing legal or
accounting duties), the expense of any annual audit and the fees and expenses
incurred in connection with the listing of the Registrable Securities on any
securities exchange as required hereunder. Except as provided in any of the
Transaction Documents, in no event shall the Company be responsible for any
broker or similar commissions or, except to the extent provided for in the
Transaction Documents, any legal fees or other costs of the Holders.
5. Indemnification.
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(a) Indemnification by the Company. The Company shall,
notwithstanding any termination of this Agreement, indemnify and hold harmless
each Holder, the officers, directors, agents and employees of each of them, each
Person who controls any such Holder (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) and the officers, directors,
agents and employees of each such controlling Person, to the fullest extent
permitted by applicable law, from and against any and all losses, claims,
damages, liabilities, costs (including, without limitation, reasonable
attorneys' fees) and expenses (collectively, "Losses"), as incurred, arising out
of or relating to any untrue or alleged untrue statement of a material fact
contained in the Registration Statement, any Prospectus or any form of
prospectus or in any amendment or supplement thereto or in any preliminary
prospectus, or arising out of or relating to any omission or alleged omission of
a material fact required to be stated therein or necessary to make the
statements therein (in the case of any Prospectus or form of prospectus or
supplement thereto, in light of the circumstances under which they were made)
not misleading, except to the extent, but only to the extent, that (i) such
untrue statements or omissions are based solely upon information regarding such
Holder furnished in writing to the Company by such Holder expressly for use
therein, or to the extent that such information relates to such Holder or such
Holder's proposed method of distribution of Registrable Securities and was
reviewed and approved by the Holder for use in the Registration Statement, such
Prospectus or such form of Prospectus or in any amendment or supplement thereto
(it being understood that the Holders have approved Annex A hereto for this
purpose) or (ii) in the case of an occurrence of an event of the type specified
in Section 3(c)(ii)-(v) or a notice pursuant to Section 2(b)(ii), the use by
such Holder of a Prospectus after the Company has notified such Holder in
writing of the suspension and prior to the receipt by such Holder of the Advice
contemplated in Section 6(d). The Company shall notify the Holders promptly of
the institution, threat or assertion of any Proceeding of which the Company is
aware in connection with the transactions contemplated by this Agreement.
(b) Indemnification by Holders. Each Holder shall, severally
and not jointly, indemnify and hold harmless the Company, its directors,
officers, agents and employees, each Person who controls the Company (within the
meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act),
and the directors, officers, agents or employees of such controlling Persons, to
the fullest extent permitted by applicable law, from and against all Losses, as
incurred, to the extent arising out of or based solely upon: (x) such Holder's
failure to comply with the prospectus delivery requirements of the Securities
Act or (y) any untrue or alleged untrue statement of a material fact contained
in any Registration Statement, any Prospectus, or any form of prospectus, or in
any amendment or supplement thereto or in any preliminary prospectus, or arising
out of or relating to any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading (i) to the extent, but only to the extent, that such untrue statement
or omission is contained in any information so furnished in writing to the
Company by the Holder specifically for inclusion in the Registration Statement
or such Prospectus or (ii) to the extent that (1) such untrue statements or
omissions are based solely upon information regarding such Holder furnished in
writing to the Company by such Holder expressly for use therein, or to the
extent that such information relates to such Holder or such Holder's proposed
method of distribution of Registrable Securities and was reviewed and approved
by the Holder for use in the Registration Statement (it being understood that
the Holders have approved Annex A hereto for this purpose), such Prospectus or
such form of Prospectus or in any amendment or supplement thereto or (2) in the
case of an occurrence of an event of the type specified in Section 3(c)(ii)-(v)
or a notice
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pursuant to Section 2(b)(ii), the use by such Holder of a Prospectus after the
Company has notified such Holder in writing of the suspension and prior to the
receipt by such Holder of the Advice contemplated in Section 6(d). In no event
shall the liability of any selling Holder hereunder be greater in amount than
the dollar amount of the net proceeds received by such Holder upon the sale of
the Registrable Securities giving rise to such indemnification obligation.
(c) Conduct of Indemnification Proceedings. If any Proceeding
shall be brought or asserted against any Person entitled to indemnity hereunder
(an "Indemnified Party"), such Indemnified Party shall promptly notify the
Person from whom indemnity is sought (the "Indemnifying Party") in writing, and
the Indemnifying Party shall have the right to assume the defense thereof,
including the employment of counsel reasonably satisfactory to the Indemnified
Party and the payment of all fees and expenses incurred in connection with
defense thereof; provided, that the failure of any Indemnified Party to give
such notice shall not relieve the Indemnifying Party of its obligations or
liabilities pursuant to this Agreement, except (and only) to the extent that it
shall be finally determined by a court of competent jurisdiction (which
determination is not subject to appeal or further review) that such failure
shall have prejudiced the Indemnifying Party.
An Indemnified Party shall have the right to employ separate
counsel in any such Proceeding and to participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of such
Indemnified Party or Parties unless: (1) the Indemnifying Party has agreed in
writing to pay such fees and expenses; (2) the Indemnifying Party shall have
failed promptly to assume the defense of such Proceeding and to employ counsel
reasonably satisfactory to such Indemnified Party in any such Proceeding; or (3)
the named parties to any such Proceeding (including any impleaded parties)
include both such Indemnified Party and the Indemnifying Party, and a material
conflict of interest is likely to exist if the same counsel were to represent
such Indemnified Party and the Indemnifying Party (in which case, if such
Indemnified Party notifies the Indemnifying Party in writing that it elects to
employ separate counsel reasonably satisfactory to the Indemnifying Party at the
expense of the Indemnifying Party, the Indemnifying Party shall not have the
right to assume the defense thereof and the reasonable fees and expenses of one
separate counsel shall be at the expense of the Indemnifying Party). The
Indemnifying Party shall not be liable for any settlement of any such Proceeding
effected without its written consent, which consent shall not be unreasonably
withheld. No Indemnifying Party shall, without the prior written consent of the
Indemnified Party which consent shall not be unreasonably withheld, effect any
settlement of any pending Proceeding in respect of which any Indemnified Party
is a party, unless such settlement includes an unconditional release of such
Indemnified Party from all liability on claims that are the subject matter of
such Proceeding.
(d) Contribution. If a claim for indemnification under Section
5(a) or 5(b) is unavailable to an Indemnified Party (by reason of public policy
or otherwise), then each 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 Losses, in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party and
Indemnified Party in connection with the actions, statements or omissions that
resulted in such Losses as well as any other relevant equitable considerations.
The relative fault of such Indemnifying Party and Indemnified Party shall be
determined by reference to, among other things, whether any action in question,
including any untrue or alleged untrue statement of a material fact or omission
or
9
alleged omission of a material fact, has been taken or made by, or relates to
information supplied by, such Indemnifying Party or Indemnified Party, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such action, statement or omission. The amount paid or
payable by a party as a result of any Losses shall be deemed to include, subject
to the limitations set forth in this Agreement, any reasonable attorneys' or
other reasonable fees or expenses incurred by such party in connection with any
Proceeding to the extent such party would have been indemnified for such fees or
expenses if the indemnification provided for in this Section was available to
such party in accordance with its terms.
(e) The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 5(e) were determined by pro
rata allocation or by any other method of allocation that does not take into
account the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 5(d), no Holder shall
be required to contribute, in the aggregate, any amount in excess of the amount
by which the proceeds actually received by such Holder from the sale of the
Registrable Securities subject to the Proceeding exceeds the amount of any
damages that such Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission, except in
the case of fraud by such Holder.
(f) The indemnity and contribution agreements contained in
this Section are in addition to any liability that the Indemnifying Parties may
have to the Indemnified Parties.
6. Miscellaneous.
(a) Remedies. In the event of a breach by the Company or by a
Holder, of any of their obligations under this Agreement, each Holder or the
Company, as the case may be, in addition to being entitled to exercise all
rights granted by law and under this Agreement, including recovery of damages,
will be entitled to specific performance of its rights under this Agreement. The
Company and each Holder agree that monetary damages would not provide adequate
compensation for any losses incurred by reason of a breach by it of any of the
provisions of this Agreement and hereby further agrees that, in the event of any
action for specific performance in respect of such breach, it shall waive the
defense that a remedy at law would be adequate.
(b) No Piggyback on Registrations. Neither the Company nor any
of its security holders (other than the Holders in such capacity pursuant
hereto) may include securities of the Company in the Registration Statement
other than the Registrable Securities. Except as provided herein, no Person has
any right to cause the Company to effect the registration under the Securities
Act of any securities of the Company. The Company shall not file any other
registration statement until six months after the Effective Date, without the
consent of Holders of not less than 50% of the Registrable Securities.
(c) Compliance. Each Holder covenants and agrees that it will
comply with the prospectus delivery requirements of the Securities Act as
applicable to it in connection with sales of Registrable Securities pursuant to
the Registration Statement.
(d) Discontinued Disposition. Each Electing Holder agrees by
its acquisition of such Registrable Securities that, upon receipt of a notice
from the Company of the occurrence
10
of any event of the kind described in Section 3(c) or a notice pursuant to
Section 2(b)(ii), such Electing Holder will forthwith discontinue disposition of
such Registrable Securities under the Registration Statement until such Electing
Holder's receipt of the copies of the supplemented Prospectus and/or amended
Registration Statement or until it is advised in writing (the "Advice") by the
Company that the use of the applicable Prospectus may be resumed, and, in either
case, has received copies of any additional or supplemental filings that are
incorporated or deemed to be incorporated by reference in such Prospectus or
Registration Statement. The Company will use its commercially reasonable efforts
to ensure that the use of the Prospectus may be resumed as promptly as is
practicable.
(e) Piggy-Back Registrations. If at any time during the
Effectiveness Period there is not an effective Registration Statement covering
all of the Registrable Securities and the Company shall determine to prepare and
file with the Commission a registration statement relating to an offering for
its own account or the account of others under the Securities Act of any of its
equity securities, other than on Form S-4 or Form S-8 (each as promulgated under
the Securities Act) or their then equivalents relating to equity securities to
be issued solely in connection with any acquisition of any entity or business or
equity securities issuable in connection with the stock option or other employee
benefit plans, then the Company may send to each Holder a written notice of such
determination and, if within fifteen days after the date of such notice, any
such Holder shall so request in writing, the Company shall include in such
registration statement all or any part of such Registrable Securities such
Holder requests to be registered, subject to customary underwriter cutbacks
applicable to all holders of registration rights.
(f) Amendments and Waivers. 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 same shall be in writing and signed by the Company
and Holders of at least 50% of the then-outstanding Registrable Securities,
unless the waiver or consent effects only the waiving or consenting of one or
more particular Holders, in which case such waiver or consent need only be
signed by such Holder or Holders.
(g) Notices. Any and all notices or other communications or
deliveries required or permitted to be provided hereunder shall be made in
accordance with the provisions of the Purchase Agreement.
(h) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and permitted assigns of each of
the parties and shall inure to the benefit of each Holder. Each Holder may
assign their respective rights hereunder in the manner and to the Persons as
permitted under the Purchase Agreement.
(i) Execution and Counterparts. This Agreement may be executed
in any number of 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. In the event that any signature is delivered by facsimile
transmission, such signature shall create a valid binding obligation of the
party executing (or on whose behalf such signature is executed) the same with
the same force and effect as if such facsimile signature were the original
thereof.
11
(j) Governing Law. All questions concerning the construction,
validity, enforcement and interpretation of this Agreement shall be determined
with the provisions of the Purchase Agreement.
(k) Cumulative Remedies. The remedies provided herein are
cumulative and not exclusive of any remedies provided by law.
(l) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their commercially reasonable efforts to find and employ an
alternative means to achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction. It is hereby
stipulated and declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and restrictions without
including any of such that may be hereafter declared invalid, illegal, void or
unenforceable.
(m) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(n) Independent Nature of Purchasers' Obligations and Rights.
The obligations of each Holder hereunder are several and not joint with the
obligations of any other Holder hereunder, and no Holder shall be responsible in
any way for the performance of the obligations of any other Holder hereunder.
Nothing contained herein or in any other agreement or document delivered at any
closing, and no action taken by any Holder pursuant hereto or thereto, shall be
deemed to constitute the Holders as a partnership, an association, a joint
venture or any other kind of entity, or create a presumption that the Holders
are in any way acting in concert with respect to such obligations or the
transactions contemplated by this Agreement. Each Holder shall be entitled to
protect and enforce its rights, including without limitation the rights arising
out of this Agreement, and it shall not be necessary for any other Holder to be
joined as an additional party in any proceeding for such purpose.
[SIGNATURE PAGE OF COMPANY FOLLOWS]
12
[COMPANY'S SIGNATURE PAGE TO RRA]
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
SYNOVA HEALTHCARE GROUP, INC.
By:___________________________________
Name:
Title:
[SIGNATURE PAGE OF PURCHASER FOLLOWS]
13
[PURCHASER'S SIGNATURE PAGE TO RRA]
Name of Investing Entity:_______________________________________________________
Signature of Authorized Signatory of Investing entity:__________________________
Name of Authorized Signatory:___________________________________________________
Title of Authorized Signatory:__________________________________________________
[SIGNATURE PAGES CONTINUE]
14
ANNEX A
Plan of Distribution
The Selling Stockholders (the "Selling Stockholders") of the common
stock ("Common Stock") of Synova Healthcare Group, Inc. (the "Company") and any
of their pledgees, assignees and successors-in-interest may, from time to time,
sell any or all of their shares of Common Stock on any stock exchange, market or
trading facility on which the shares are traded or in private transactions.
These sales may be at fixed or negotiated prices. The Selling Stockholders may
use any one or more of the following methods when selling shares:
o ordinary brokerage transactions and transactions in which the
broker-dealer solicits purchasers;
o block trades in which the broker-dealer will attempt to sell the
shares as agent but may position and resell a portion of the block
as principal to facilitate the transaction;
o purchases by a broker-dealer as principal and resale by the
broker-dealer for its account;
o an exchange distribution in accordance with the rules of the
applicable exchange;
o privately negotiated transactions;
o settlement of short sales entered into after the date of this
prospectus;
o broker-dealers may agree with the Selling Stockholders to sell a
specified number of such shares at a stipulated price per share;
o a combination of any such methods of sale;
o through the writing or settlement of options or other hedging
transactions, whether through an options exchange or otherwise; or
o any other method permitted pursuant to applicable law.
The Selling Stockholders may also sell shares under Rule 144 under the
Securities Act of 1933, as amended (the "Securities Act"), if available, rather
than under this prospectus.
Broker-dealers engaged by the Selling Stockholders may arrange for
other brokers-dealers to participate in sales. Broker-dealers may receive
commissions or discounts from the Selling Stockholders (or, if any broker-dealer
acts as agent for the purchaser of shares, from the purchaser) in amounts to be
negotiated. Each Selling Stockholder does not expect these commissions and
discounts relating to its sales of shares to exceed what is customary in the
types of transactions involved.
15
In connection with the sale of our common stock or interests therein,
the Selling Stockholders may enter into hedging transactions with broker-dealers
or other financial institutions, which may in turn engage in short sales of the
common stock in the course of hedging the positions they assume. The Selling
Stockholders may also sell shares of our common stock short and deliver these
securities to close out their short positions, or loan or pledge the common
stock to broker-dealers that in turn may sell these securities. The Selling
Stockholders may also enter into option or other transactions with
broker-dealers or other financial institutions or the creation of one or more
derivative securities which require the delivery to such broker-dealer or other
financial institution of shares offered by this prospectus, which shares such
broker-dealer or other financial institution may resell pursuant to this
prospectus (as supplemented or amended to reflect such transaction).
The Selling Stockholders and any broker-dealers or agents that are
involved in selling the shares may be deemed to be "underwriters" within the
meaning of the Securities Act in connection with such sales. In such event, any
commissions received by such broker-dealers or agents and any profit on the
resale of the shares purchased by them may be deemed to be underwriting
commissions or discounts under the Securities Act. Each Selling Stockholder has
informed the Company that it does not have any agreement or understanding,
directly or indirectly, with any person to distribute the Common Stock.
The Company is required to pay certain fees and expenses incurred by
the Company incident to the registration of the shares. The Company has agreed
to indemnify the Selling Stockholders against certain losses, claims, damages
and liabilities, including liabilities under the Securities Act.
Because Selling Stockholders may be deemed to be "underwriters" within
the meaning of the Securities Act, they will be subject to the prospectus
delivery requirements of the Securities Act. In addition, any securities covered
by this prospectus which qualify for sale pursuant to Rule 144 under the
Securities Act may be sold under Rule 144 rather than under this prospectus.
Each Selling Stockholder has advised us that they have not entered into any
agreements, understandings or arrangements with any underwriter or broker-dealer
regarding the sale of the resale shares. There is no underwriter or coordinating
broker acting in connection with the proposed sale of the resale shares by the
Selling Stockholders.
We agreed to keep this prospectus effective until the earlier of (i)
the date on which the shares may be resold by the Selling Stockholders without
registration and without regard to any volume limitations by reason of Rule
144(k) under the Securities Act or any other rule of similar effect or (ii) all
of the shares have been sold pursuant to the prospectus or Rule 144 under the
Securities Act or any other rule of similar effect. The resale shares will be
sold only through registered or licensed brokers or dealers if required under
applicable state securities laws. In addition, in certain states, the resale
shares may not be sold unless they have been registered or qualified for sale in
the applicable state or an exemption from the registration or qualification
requirement is available and is complied with.
Under applicable rules and regulations under the Exchange Act, any
person engaged in the distribution of the resale shares may not simultaneously
engage in market making activities with respect to our common stock for a period
of two business days prior to the commencement of the distribution. In addition,
the Selling Stockholders will be subject to applicable provisions
16
of the Exchange Act and the rules and regulations thereunder, including
Regulation M, which may limit the timing of purchases and sales of shares of our
common stock by the Selling Stockholders or any other person. We will make
copies of this prospectus available to the Selling Stockholders and have
informed them of the need to deliver a copy of this prospectus to each purchaser
at or prior to the time of the sale.
17
ANNEX B
SYNOVA HEALTHCARE GROUP, INC.
SELLING SECURITYHOLDER NOTICE AND QUESTIONNAIRE
The undersigned beneficial owner of common stock, par value $0.001 per
share (the "Common Stock"), of Synova Healthcare Group, Inc., a Nevada
corporation (the "Company"), (the "Registrable Securities") understands that the
Company has filed or intends to file with the Securities and Exchange Commission
(the "Commission") a registration statement (the "Registration Statement") for
the registration and resale under Rule 415 of the Securities Act of 1933, as
amended (the "Securities Act"), of the Registrable Securities, in accordance
with the terms of the Registration Rights Agreement, dated as of January ___,
2006 (the "Registration Rights Agreement"), among the Company and the Purchasers
named therein. A copy of the Registration Rights Agreement is available from the
Company upon request at the address set forth below. All capitalized terms not
otherwise defined herein shall have the meanings ascribed thereto in the
Registration Rights Agreement.
In order to have Registrable Securities included in the Registration
Statement (or a supplement or amendment thereto), this Selling Securityholder
Notice and Questionnaire ("Selling Securityholder Questionnaire") must be
completed, executed and delivered to the Company at the address set forth herein
for receipt ON OR BEFORE THE DATES REQUIRED IN THE REGISTRATION RIGHTS
AGREEMENT. Record or beneficial owners of Registrable Securities who do not
properly complete, execute and return this Selling Securityholder Questionnaire
by such dates (i) will not be named as selling securityholders in the
Registration Statement and (ii) may not use the Prospectus forming a part
thereof for resales of Registrable Securities.
Certain legal consequences arise from being named as a selling
securityholder in the Registration Statement and the related prospectus.
Accordingly, holders and beneficial owners of Registrable Securities are advised
to consult their own securities law counsel regarding the consequences of being
named or not being named as a selling securityholder in the Registration
Statement and the related prospectus.
NOTICE
The undersigned beneficial owner (the "Selling Securityholder") of
Registrable Securities hereby elects to include the Registrable Securities owned
by him/it and listed below in Item 3 (unless otherwise specified under such Item
3) in the Registration Statement. The undersigned, by signing and returning this
Selling Securityholder Questionnaire, agrees to be bound with respect to such
Registrable Securities by the terms and conditions of this Selling
Securityholder Questionnaire and the Registration Rights Agreement, as if the
undersigned Selling Securityholder were an original party thereto.
Upon any sale of Registrable Securities pursuant to the Registration
Statement, the Selling Securityholder will be required to deliver to the Company
the Notice of Transfer (completed and signed) set forth in Exhibit 1 to this
Selling Securityholder Questionnaire.
18
The undersigned hereby provides the following information to the Company and
represents and warrants that such information is accurate and complete:
QUESTIONNAIRE
1. NAME.
(a) Full Legal Name of Selling Securityholder
_________________________________________________________________
_________________________________________________________________
(b) Full Legal Name of Registered Holder (if not the same as (a)
above) through which Registrable Securities Listed in Item 3 below
are held:
_________________________________________________________________
_________________________________________________________________
(c) Full Legal Name of Natural Control Person (which means a natural
person who directly or indirectly alone or with others has power
to vote or dispose of the securities covered by the
questionnaire):
2. ADDRESS FOR NOTICES TO SELLING SECURITYHOLDER:
______________________________________________________________________
______________________________________________________________________
Telephone:____________________________________________________________
Email:________________________________________________________________
Fax:__________________________________________________________________
Contact Person:_______________________________________________________
19
3. BENEFICIAL OWNERSHIP OF SECURITIES:
Except as set forth below in this Item (3), the undersigned Selling
Securityholder does not beneficially own any securities or shares of
Common Stock issued upon conversion of any securities.
(a) Number of Registrable Securities (as defined in the Registration
Rights Agreement) beneficially owned:
_________________________________________________________________
_________________________________________________________________
Number of shares of Common Stock (if any) issued upon conversion
of securities:
(b) Number of securities other than Registrable Securities
beneficially owned:
_________________________________________________________________
_________________________________________________________________
Number of shares of Common Stock (if any) issued upon conversion
of such other securities:
_________________________________________________________________
(c) Number of Registrable Securities to be included in the
Registration Statement:
_________________________________________________________________
_________________________________________________________________
Number of shares of Common Stock (if any) issued upon conversion
of Registrable Securities which are to be included in the
Registration Statement:
_________________________________________________________________
(d) Except as set forth above in this Item (3), the undersigned
Selling Securityholder is not the beneficial or record owner of
any shares of Common Stock or any other security of the Company.
_________________________________________________________________
_________________________________________________________________
20
4. (a) State whether the undersigned Selling Securityholder has or will
enter into "hedging transactions" with respect to shares of
Company Common Stock.
Yes [ ] No [ ]
If yes, you must provide a complete description of the hedging
transactions into which the undersigned Selling Securityholder has
entered or will enter and the purpose of such hedging
transactions, the extent to which such hedging transactions remain
in place.
_________________________________________________________________
_________________________________________________________________
Please note that the Commission may deem short sales of securities covered
by a registration statement prior to the effectiveness of such registration
statement as a violation of Section 5 of the Securities Act.
(b) State whether the undersigned Selling Securityholder has sold any
of the Registrable Securities or shares of common stock of the
Company short since the date of original issuance of the
Registrable Securities.
Yes [ ] No [ ]
If yes, you must provide a complete description of the short sale,
including the number of shares of common stock of the Company
involved and whether the short position remains in place.
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
5. BROKER-DEALER STATUS:
(a) Are you a broker-dealer?
Yes [ ] No [ ]
NOTE: If yes, the Commission's staff has indicated that you should be
identified as an underwriter in the Registration Statement.
(b) Are you an affiliate of a broker-dealer?
Yes [ ] No [ ]
21
(c) If you are an affiliate of a broker-dealer, do you certify that
you bought the Registrable Securities in the ordinary course of
business, and at the time of the purchase of the Registrable
Securities to be resold, you had no agreements or understandings,
directly or indirectly, with any person to distribute the
Registrable Securities?
Yes [ ] No [ ]
NOTE: If no, the Commission's staff has indicated that you should be
identified as an underwriter in the Registration Statement.
(d) State whether the undersigned Selling Securityholder received
Registrable Securities as compensation for underwriting activities
and please explain.
Yes [ ] No [ ]
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
6. RELATIONSHIPS WITH THE COMPANY:
Except as set forth below, neither the undersigned nor any of its
affiliates, officers, directors or principal equity holders (owners of
5% of more of the equity securities of the undersigned) has held any
position or office or has had any other material relationship with the
Company (or its predecessors or affiliates) during the past three
years.
State any exceptions here:
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
By signing below, the Selling Securityholder acknowledges that it
understands its obligation to comply, and agrees that it will comply, with the
prospectus delivery and other provisions of the Securities Act and the
Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder, particularly Regulation M.
In the event that the Selling Securityholder transfers all or any
portion of the Registrable Securities listed in Item (3) above after the date on
which such information is provided to the Company, the Selling Securityholder
agrees to notify the transferee(s) of its rights and obligations under this
selling Securityholder Questionnaire and the Registration Rights Agreement.
22
By signing below, the Selling Securityholder consents to the disclosure
of the information contained herein in its answers to Items (1) through (6)
above and the inclusion of such information in the Registration Statement and
related Prospectus. The Selling Securityholder understands that such information
will be relied upon by the Company in connection with the preparation of the
Registration Statement and related Prospectus.
In accordance with the Selling Securityholder's obligations under the
Registration Rights Agreement to provide such information as may be required by
law for inclusion in the Registration Statement, the Selling Securityholder
agrees to promptly notify the Company of any inaccuracies or changes in the
information provided herein which may occur subsequent to the date hereof at any
time while the Registration Statement remains in effect and to provide any
additional information as the Company reasonably may request. Except as
otherwise provided in the Registration Rights Agreement, all notices hereunder
and pursuant to the Registration Rights Agreement shall be made in writing, by
hand-delivery, first-class mail, or air courier guaranteeing overnight delivery
as follows:
(i) To the Company:
Synova Healthcare Group, Inc.
Rose Tree Corporate Center
0000 X. Xxxxxxxxxx Xxxx
Xxxxx 0000, Xxxxxxxx XX
Xxxxx, XX 00000
Attention: Xxxxxxx Xxxx
(ii) With a copy to:
Blank Rome LLP
Xxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxx, Esquire
Once this Notice and Questionnaire is executed by the Selling
Securityholder and received by the Company, the terms of this Selling
Securityholder Questionnaire, and the representations and warranties contained
herein, shall be binding on, shall inure to the benefit of and shall be
enforceable by the respective successors, heirs, personal representatives, and
assigns of the Company and the Selling Securityholder (with respect to the
Registrable Securities beneficially owned by such Selling Securityholder and
listed in Item (3) above). This Agreement shall be governed in all respects by
the laws of the State of Delaware.
23
IN WITNESS WHEREOF, the undersigned, by authority duly given,
has caused this Selling Securityholder Questionnaire to be executed and
delivered either in person or by its duly authorized agent.
Dated: Selling Securityholder (Print/type full legal name of
beneficial owner of Registrable Securities)
By:______________________________________
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED SELLING
SECURITYHOLDER QUESTIONNAIRE FOR RECEIPT ON OR BEFORE _____________________,
2006 TO THE COMPANY AT:
Synova Healthcare Group, Inc.
Rose Tree Corporate Center
0000 X. Xxxxxxxxxx Xxxx
Xxxxx 0000, Xxxxxxxx XX
Xxxxx, XX 00000
Attention: Xxxxxxx Xxxx
With a copy to:
Blank Rome LLP
Xxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx, Esquire
24
EXHIBIT 1 TO APPENDIX B
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
Synova Healthcare Group, Inc.
Rose Tree Corporate Center
0000 X. Xxxxxxxxxx Xxxx
Xxxxx 0000, Xxxxxxxx XX
Xxxxx, XX 00000
Attention: Xxxxxxx Xxxx
Re: Synova Healthcare Group, Inc. (the "Company")
Common Stock, par value $.001 per share (the "Stock")
Dear Sirs:
Please be advised that _____________________ has transferred
___________ shares of the Company's common stock pursuant to an effective
Registration Statement on Form SB-2 (File No. 333-_______) filed by the Company.
We hereby certify that the prospectus delivery requirements, if any, of
the Securities Act of 1933, as amended, have been satisfied with respect to the
transfer described above and that the above-named beneficial owner of the common
stock is named as a selling securityholder in the Prospectus dated
_____________, 2006 or in amendments or supplements thereto, and the number of
shares of common stock transferred are [a portion of] the shares of common stock
listed in such Prospectus, as amended or supplemented, opposite such owner's
name.
Dated:
Very truly yours,
___________________________________________
(Name)
By:________________________________________
(Authorized Signature)
25
