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Exhibit 11
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT, dated as of July ______, 1998, is
made by and between Electropharmacology, Inc., a Delaware corporation (the
"Company") and the Holders (as hereinafter defined).
The parties hereto agree as follows:
1. DEFINITIONS. As used in this Agreement, the following terms have the
following respective meanings:
"AGREEMENT" means this Registration Rights Agreement.
"BUSINESS DAY" means a day other than a Saturday, Sunday, or New York
State holiday or other day on which commercial banks in New York City are
authorized or required by law to close.
"COMMISSION" means the Securities and Exchange Commission.
"COMMON STOCK" means Common Stock, par value $.01 per share, of the
Company.
"COMPANY" shall have the meaning set forth in the preamble and shall
include the Company's successors.
"COMPANY BOARD" means the Board of Directors of the Company.
"COMPANY CERTIFICATE" shall have the meaning assigned thereto in Section
6.
"COMPANY INDEMNITEE" shall have the meaning assigned thereto in Section
11.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, or any successor
thereto, as the same shall be amended from time to time.
"EXCHANGE ACT DOCUMENTS" shall have the meaning assigned thereto in
Section 5.4(a)(vi).
"HOLDER" means those persons whose names are set forth on Schedule A
hereto.
"HOLDER INDEMNITEE" shall have the meaning assigned thereto in Section 11.
"INDEMNIFIED PERSON" means a Holder Indemnitee or Company Indemnitee.
"INDEMNIFYING PERSON" shall have the meaning assigned thereto in Section
12.
"PERSON" means a natural person, partnership (whether general or limited),
limited liability company, trust, estate, association, corporation,
custodian, nominee or any other individual or entity in its own or any
representative capacity.
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"PROCESS AGENT" shall have the meaning assigned thereto in Section 19.
"REGISTERABLE SECURITIES" means those shares of Common Stock set forth
next to the name of each Holder on Schedule A; PROVIDED, that if
nationally recognized securities counsel to the Company delivers to the
Company a written legal opinion to the effect that any particular shares
of Common Stock may be disposed of by the Holder thereof in the manner
proposed by such Holder without registration under the Securities Act in
accordance with Rule 144(k) thereunder, such shares of Common Stock shall
not be Registerable Securities.
"RULE 144" shall have the meaning assigned thereto in Section 9.
"SECURITIES ACT" means the Securities Act of 1933, or any successor
thereto, as the same shall be amended from time to time.
"SUSPENSION NOTICE" shall have the meaning assigned thereto in Section
4(c).
2. INTERPRETATION. The following provisions shall govern the interpretation
of this Agreement:
(a) The singular form of any word used herein, including the terms
defined in Section 1.1, shall include the plural, and vice versa,
unless the context otherwise requires. The use herein of a pronoun
of any gender shall include correlative words of the other gender.
(b) Unless otherwise expressly indicated, all references herein to
"ARTICLES," "SECTIONS" and other subdivisions hereof are to the
corresponding Articles, Sections or subdivisions of this Agreement;
and the words "herein," "hereof", "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any
particular Article, Section or subdivision hereof.
(c) The headings or titles of the several Articles and Sections hereof,
and any table of contents appended to copies hereof, shall be solely
for convenience of reference and shall not affect the meaning,
construction or effect of this Agreement.
(d) Each reference herein to any agreement, instrument or other document
shall mean such agreement, instrument or document as from time to
time amended, modified or supplemented in accordance with the terms
hereof and thereof. The term "including" shall be construed to mean
"including but not limited to."
3.1 REGISTRATION. The Company shall (a) file with the Commission as soon as
reasonably practicable a Registration Statement (the "Registration
Statement") on Form S-1 to register the Registerable Securities in
connection with their sale by the Holders and (b) use its reasonable
efforts to have the Registration Statement declared effective by the
Commission and remain continuously effective for a period of not less than
one (1) year or, if earlier, until the date on which all Registerable
Securities covered by such registration have been disposed of by the
Holders either pursuant to the Registration Statement or otherwise;
provided, that the Company shall use its reasonable efforts to regain its
eligibility to use Form S-3 and thereafter to refile the Registration
Statement on Form S-3 and maintain its effectiveness until all of the
Holders can resell their shares under Rule 144(k). Such one (1) year
period shall be extended by (A) the period that any Suspension Notice is
in effect under
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Section 4(c) and (B) the period that any deferral is in effect under
Section 6. The Company further agrees that if permitted by the rules and
regulations of the Commission, the registration contemplated by this
Section 3 shall be made pursuant to Rule 415 of the Securities Act. In the
event of an underwritten public offering of the Registrable Securities, if
the underwriters of such offering advise the Company and the Holders in
writing that in their opinion the amount of the Registrable Securities to
be included in such offering would adversely affect the success of such
offering, then the Company shall include, on behalf of such Holders, only
the amount of Registrable Securities that in the opinion of such
underwriters, can be sold without any such adverse affect, and such
securities shall be allocated pro rata among all such Holders. Following
the period of effectiveness set forth in this Section 3.1 above, at the
request of any Holder, the Company shall keep the Registration Statement
effective, subject to the other terms and conditions of this Agreement, so
long as such Holder (and any other Holders that desire for the
Registration Statement to remain effective) pays to the Company the cost
of maintaining the effectiveness of such Registration Statement, which
costs shall include the cost of legal fees to amend or supplement the
Registration Statement, accounting fees related to obtaining the auditors'
consent and any filing fees related thereto, but which costs shall not
include any costs required to keep the Company in compliance with the
reporting requirements of the Exchange Act. All Holders who desire to pay
the costs to keep the Registration Statement effective shall share such
costs on a pro rata basis based on the number of shares of Common Stock
covered by the Registration Statement, and the Company shall not be
required to keep the Registration Statement effective with respect to any
shares of any Holder who does not agree to pay such costs.
3.2 PIGGYBACK REGISTRATION. In the event that the Registration Statement
required by Section 3.1 is no longer effective, the Company agrees that
whenever it proposes to file a registration statement (other than a
registration statement on Form S-4 or S-8 or any successor forms) for the
registration of securities of the Company to be sold by the Company or any
other Person for cash, it will, at least 15 days prior to such filing,
give written notice to all Holders of its intention to do so and, upon the
written request of a Holder given within 10 days after the Company
provides such notice (which request shall state the number and intended
method of disposition of such Registrable Securities), the Company shall
use its best efforts to cause all Registrable Securities which the Company
has been requested by such Holder to be registered under the Securities
Act to the extent necessary to permit their sale or other disposition in
accordance with the intended methods of distribution specified in the
request of such Holder; PROVIDED, HOWEVER, that the Company shall have the
right to postpone or withdraw any registration effected pursuant to this
Section 3.2 without any obligation to any Holder whatsoever. In the event
of an underwritten public offering of the Registrable Securities, if the
underwriters of such offering advise the Company and the Holders in
writing that in their opinion the amount of the Registrable Securities to
be included in such offering would adversely affect the success of such
offering, then the Company shall include, on behalf of such Holders, only
the amount of Registrable Securities that in the opinion of such
underwriters, can be sold without any such adverse affect, and such
securities shall be allocated pro rata among all such Holders.
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4. REGISTRATION STATEMENT.
(a) In connection with the obligations of the Company under Section 3, the
Company shall:
(i) prepare and file with the Commission such amendments and
supplements to the Registration Statement and the prospectus
as may be necessary to maintain the effectiveness of the
Registration Statement for the period required by Section 3
and to comply with the provisions of the Securities Act with
respect to the sale or other disposition of the Registrable
Securities covered by the Registration Statement;
(ii) for a reasonable period prior to the filing of the
Registration Statement, and throughout the period of
effectiveness required by Section 3 upon reasonable notice,
make available for inspection by a representative of the
Holders, any underwriter participating in any distribution
pursuant to the Registration Statement, and any attorney or
accountant designated by the Holders, at a reasonable time and
in a reasonable manner, financial and other information and
books and records of the Company, and cause the officers,
directors and employees of the Company to respond to such
inquiries and supply information reasonably requested by any
such representative, underwriter, attorney or accountant in
the course of conducting a reasonable investigation within the
meaning of Section 11(b) of the Securities Act; PROVIDED,
HOWEVER, that such representatives, attorneys or accountants
shall be acceptable to the Company in its judgment reasonably
exercised and shall agree to enter into written
confidentiality agreements acceptable to the Company regarding
any records, information or documents that are designated by
the Company as confidential unless such records, information
or documents are available to the public or disclosure of such
records, information or documents is required by court or
administrative order after the exhaustion of appeals therefrom
and to use such information obtained pursuant to this
provision only in connection with the transaction for which
such information was obtained, and not for any other purpose;
(iii) promptly advise the Holders, and the managing underwriter or
underwriters, if any, and confirm such advice in writing when,
to its knowledge, (A) the Registrable Securities or supplement
or post-effective amendment has been declared or becomes
effective, (B) the Commission has issued any stop order
suspending the effectiveness of the Registration Statement or
has initiated or threatened any proceedings for that purpose,
(C) the qualification of the Registrable Securities for sale
in any jurisdiction has been suspended or any proceeding for
such purpose has been initiated or threatened, or (D) any
event has occurred that makes any statement made in the
Registration Statement or the related prospectus untrue in any
material respect or that requires the making of any changes in
the Registration Statement or prospectus in order to make the
statements therein not misleading;
(iv) upon the occurrence of any event contemplated by Section
4(a)(iii)(D) hereof, use its reasonable efforts , as promptly
as possible, to prepare and distribute to the Holders, and the
managing underwriter or underwriters, if any, and file with
the Commission, as applicable, a supplement or post-effective
amendment to the Registration Statement or the prospectus
contained therein or any document incorporated therein by
reference or distribute or file any other required document so
that, as thereafter delivered to the purchasers of the
Registrable Securities, such prospectus will not contain any
untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein not
misleading;
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(v) use its reasonable efforts to obtain the withdrawal of any
order suspending the effectiveness of the Registration
Statement or any post-effective amendment thereto at the
earliest practicable date;
(vi) provide copies of any prospectus, any amendment to the
Registration Statement or amendment or supplement to any
prospectus or any document that is to be incorporated by
reference into the Registration Statement or any prospectus
after initial filing of the Registration Statement, a
reasonable time prior to the filing of any such prospectus,
amendment, supplement or document, to the Holders and
underwriters, if any, and make the representatives of the
Company available on a reasonable basis if reasonably
requested by the Holders; PROVIDED that the requirements of
this paragraph shall not apply to documents filed pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (the
"EXCHANGE ACT DOCUMENTS"); and PROVIDED FURTHER that the
Company shall promptly notify Holders of the filing of any
Exchange Act Documents except for such Exchange Act Documents
specifically related to the offering of other securities and
not to the Registerable Securities;
(vii) furnish to each Holder and to each underwriter and selling
agent, if any, at the expense of the Holders as many copies of
the prospectus, including each preliminary prospectus, and any
amendment or supplement thereto and such other documents as
such Holder or managing underwriter may reasonably request, in
order to facilitate the public sale or other disposition of
the Registrable Securities;
(viii) use its reasonable efforts to (A) register or qualify the
Registrable Securities to be included in the Registration
Statement under such securities laws or blue sky laws of such
jurisdictions as any Holders and each placement or sales
agent, if any, therefor and each underwriter, if any, thereof
shall reasonably request in writing on a timely basis, (B)
take any and all other actions as may be reasonably necessary
or advisable to enable each such holder, agent if any, and
each underwriter, if any, to consummate the disposition in
such jurisdictions of the Registrable Securities; PROVIDED
that the Company shall not be required for any such purpose to
(A) qualify as a foreign corporation or foreign limited
partnership in any jurisdiction wherein it would not otherwise
be required to qualify but for the requirements of this
paragraph 4(a)(viii), (B) file a general consent to service of
process in any such jurisdiction, (C) subject itself to
taxation in any jurisdiction where it is not already subject
to taxation or (D) make any changes to its Certificate of
Incorporation or Bylaws, or any agreement between it and its
stockholders;
(ix) use its reasonable efforts to obtain the consent or approval
of each governmental agency or authority, whether federal,
state or local, that may be required to effect the
registration or the offering or sale in connection therewith
or to enable the Holders to offer, or to consummate the
disposition of, their Registrable Securities;
(x) furnish to each Holder, without charge, at least three (3)
conformed copies of the Registration Statement and any
post-effective amendment thereto (without documents
incorporated therein by reference or exhibits thereto, unless
requested);
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(xi) cooperate with the Holders and the managing underwriters, if
any, to facilitate the timely preparation and delivery of
certificates representing the Registrable Securities to be
sold, which shall not bear any restrictive legends; and, in
the case of an underwritten offering, enable such Registrable
Securities to be in such denominations and registered in such
names as the managing underwriters may request at least two
Business Days prior to any sale of the Registrable Securities;
and
(xii) enter into and deliver all such customary agreements
(including underwriting or purchase agreements), documents and
take such other actions (including causing the delivery of
opinions of counsel and "comfort" letters of independent
certified public accountants) as are reasonably requested of
the Company to expedite or facilitate the disposition of the
Registrable Securities.
(b) Each Holder shall provide the Company with all assistance reasonably
necessary for the Company to comply with its obligations under this
Agreement. Without limiting the generality of the foregoing
provision, the Holders shall cause any entity that is controlled by
one or more of them, individually or together, to use all reasonable
efforts to provide the financial statements and other information
about such entity that is required to be included in the
Registration Statement.
(c) Each Holder, upon receipt of any (i) notice from the Company of the
happening of any event of the kind described in Section 4(a)(iii)
(B), (C) or (D), (ii) notice from the Company that it is in
possession of material information that has not been disclosed to
the public and the Company reasonably deems it to be advisable not
to include such information in the Registration Statement or (iii)
notice from the Company that it is in the process of an underwritten
registered offering of securities and the Company reasonably deems
it to be advisable, based on the written request of the managing
underwriter thereof, to have Holders temporarily discontinue
distribution of the Registrable Securities pursuant to the
Registration Statement (in each case, such notice being hereinafter
referred to as a "SUSPENSION NOTICE"), such Holder will forthwith
discontinue distribution of the Registrable Securities pursuant to
the Registration Statement and shall not be entitled to the benefits
provided in this Agreement with respect to any sales made by it in
contravention of this subsection, until such Holder's receipt of the
copies of the supplemented or amended prospectus or a notice from
the Company that any order suspending the effectiveness of the
Registration Statement has been withdrawn, or, in the case of (ii)
or (iii) above, until further notice from the Company that
disposition of Registerable Securities may resume, which shall be,
in the case of (ii) above, a date no later than ninety (90) days
after receipt of such notice, or, in the case of (iii) above, until
a date no later than thirty (30) days after the date on which such
offering is completed. Any Suspension Notice must be based upon a
good faith determination of the Company Board that such Suspension
Notice is reasonably necessary. In the case of a Suspension Notice,
if so directed by the Company, each Holder shall deliver to the
Company all copies in its possession, other than permanent file
copies then in such Holder's possession, of the prospectus covering
the offer and sale of the Registrable Securities that is current at
the time of receipt of such notice. If the Company shall give any
such notice to suspend the distribution of the Registrable
Securities pursuant to any Registration Statement, the Company shall
extend the period during which the
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Registration Statement shall be maintained effective pursuant to
this Agreement by the number of days during the period from and
including the date of the giving of such notice to and including the
date when the Holders shall have received copies of the supplemented
or amended prospectus necessary to resume such dispositions or
received notice from the Company that any order suspending
dispositions of the Registrable Securities has been withdrawn.
(d) Each Holder shall (i) furnish in writing to the Company such
information regarding such Holder and such Holder's intended method
of distribution of its Registrable Securities as the Company may
from time to time reasonably request in writing, and (ii) enter into
and deliver all such customary agreements (including underwriting or
purchase agreements) and documents (including legal opinions) as are
reasonably requested of such Holder to expedite or facilitate the
disposition of its Registrable Securities. Each such Holder shall
notify the Company as promptly as practicable of any inaccuracy or
change in information previously furnished by such Holder to the
Company or of the occurrence of any event in either case as a result
of which any prospectus relating to such registration contains or
would contain an untrue statement of a material fact regarding such
Holder or such Holder's intended method of distribution of its
Registrable Securities or omits to state any material fact regarding
such Holder or such Holder's intended method of distribution of its
Registrable Securities required to be stated therein or necessary to
make the statements therein not misleading and promptly to furnish
to the Company any additional information required to correct and
update any previously furnished information or otherwise required so
that such prospectus shall not contain, with respect to such Holder
or the distribution of its Registrable Securities, an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading. Each such Holder shall comply with the
provisions of the Securities Act and the Exchange Act applicable to
such Holder with respect to the disposition by such Holder of the
Registrable Securities covered by the Registration Statement in
accordance with the intended methods of disposition by such Holder
set forth in the Registration Statement.
5. REGISTRATION OF ADDITIONAL SECURITIES. The Registration Statement may, in
addition to the Registrable Securities, include other securities for sale
for the Company's own account or for the account of any other Person.
6. REGISTRATION DEFERRAL PERIOD. If the Company shall furnish to the Holders
a certificate (the "COMPANY CERTIFICATE") signed by the Chief Executive
Officer of the Company stating that, in the good faith judgment of the
Company Board, acting reasonably and in the best interest of the Company,
it would be detrimental to the Company and its stockholders for the
Holders to sell the Registrable Securities under any such Registration
Statement and it is therefore necessary to suspend the ability of the
Holders to sell the Registrable Securities under the Registration
Statement, the ability of such Holders to sell the Registrable Securities
shall be suspended, for a period of not more than an aggregate of ninety
(90) days from the date of the Company Certificate; PROVIDED HOWEVER, that
the Company may not utilize this right more than one time in any
twelve-month period. Upon receipt of a Company Certificate, each Holder
shall refrain from disposing of its Registrable Securities during the
above stated ninety (90) day period.
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7. EXPENSES. All registration expenses incurred in connection with any
registration, qualification or compliance pursuant to Sections 3 or 4,
including all registration and filing fees, printing expenses, fees and
disbursements of counsel for the Company and of the Company's accountants,
blue sky fees and expenses and the expenses of any special audits incident
to or required by any such registration, shall be borne by such Holder pro
rata on the basis of the number of shares of the Registrable Securities of
such Holder included in such registration and such Holder shall pay its
own selling expenses. Selling expenses shall mean all costs and
commissions applicable to the sale of the Registrable Securities and all
fees and disbursements of Holder's counsel and other professionals. To the
extent that the Company registers a primary offering of additional
securities pursuant to Section 5, the Company shall bear its pro rata
share of the above-referenced registration expenses and its own selling
expenses.
8. LISTING. The Company shall use its reasonable efforts to list all
Registrable Securities on each securities exchange or automated quotation
system on which any of the Common Stock is then listed .
9. RULE 144 INFORMATION. With a view to making available to the Holders the
benefits of Rule 144 under the Securities Act ("RULE 144") and any other
rule or regulation of the Commission that may at any time permit a Holder
to sell shares of Common Stock that are restricted securities to the
public without registration, the Company agrees to: (a) make and keep
public information available, as required by Rule 144; (b) use its
reasonable efforts to file with the Commission in a timely manner all
reports and other documents required of the Company under the Securities
Act and the Exchange Act; and (c) furnish to any Holder forthwith upon
request (i) a written statement by the Company that it has complied with
the reporting requirements of Rule 144, the Securities Act and the
Exchange Act and (ii) a copy of the most recent annual or quarterly report
of the Company and such other reports and documents so filed by the
Company.
10. INDEMNIFICATION. The Company shall indemnify and hold harmless each
Holder, officer or director of any Holder, affiliate of any Holder or any
Person deemed to control any Holder (a "Holder Indemnitee") against any
losses, claims, damages or liabilities, joint or several, to which such
Holder Indemnitee may become subject, under the Securities Act or
otherwise, that directly or indirectly arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained
in any preliminary prospectus, the Registration Statement or the
prospectus, or any amendment or supplement thereto, or arise out of or are
based upon 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, and will reimburse such Holder Indemnitee for any
legal or other expenses reasonably incurred by such Holder Indemnitee in
connection with investigating or defending any such action or claim as
such expenses are incurred; PROVIDED, HOWEVER, that the Company shall have
no liability hereunder to the extent that any such loss, claim, damage or
liability arises out of or is based upon (a) an untrue statement or
alleged untrue statement or omission or alleged omission made in any
preliminary prospectus, the Registration Statement or the prospectus or
any such amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by such Holder Indemnitee
expressly for use therein, or (b) the failure of a Holder Indemnitee to
deliver the most recent version of the prospectus that is a part of the
Registration Statement.
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11. INDEMNIFICATION BY HOLDERS. Each Holder shall cause each Holder Indemnitee
to indemnify and hold harmless the Company, the Company's officers and
directors, affiliates of the Company and any Person deemed to control the
Company (a "Company Indemnitee") against any losses, claims, damages or
liabilities, joint or several, to which such Company Indemnitee may become
subject, under the Securities Act or otherwise, that directly or
indirectly arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any preliminary
prospectus, the Registration Statement or the prospectus, or any amendment
or supplement thereto, or arise out of or are based upon 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 and
reimburse each Company Indemnitee for any legal or other expenses
reasonably incurred by such Company Indemnitee in connection with
investigating or defending any such action or claim as such expenses are
incurred, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged
omission was made in any preliminary prospectus, the Registration
Statement or the prospectus or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by such Holder Indemnitee expressly for use therein.
12. PROCEEDINGS. Promptly after receipt by an Indemnified Person of notice of
the commencement of any action, suit or proceeding as to which a claim in
respect thereof is to be made under Section 11 the Indemnified Person
shall notify the party against whom the Indemnified Person intends to
assert a claim for indemnification (an "INDEMNIFYING PERSON") in writing
of the commencement thereof, but the omission so to notify the
Indemnifying Person shall not relieve the Indemnifying Person from any
liability that it may have to any Indemnified Person except to the extent
the Indemnifying Person is prejudiced thereby. In case any such action
shall be brought against any Indemnified Person and it shall notify the
Indemnifying Person of the commencement thereof, the Indemnifying Person
shall be entitled to participate therein and, to the extent that it shall
wish, to assume the defense thereof, with counsel chosen by the
Indemnifying Person, and, after notice from the Indemnifying Person to
such Indemnified Person of its election so to assume the defense thereof,
the Indemnifying Person shall not be liable to such Indemnified Person
under this Section 12 for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such Indemnified Person,
in connection with the defense thereof other than reasonable costs of
investigation; PROVIDED HOWEVER, that an Indemnified Party shall have the
right to retain its own counsel, with the fees and expenses to be paid by
the Indemnifying Party, if the Indemnified Party reasonably believes based
upon a written opinion of counsel that representation of the Indemnified
Party by the counsel retained by the Indemnifying Party would be
inappropriate due to actual or potential differing interests between such
Indemnified Party and any other party represented by such counsel in such
proceeding. No Indemnified Person shall effect the settlement or
compromise of, or consent to the entry of any judgement with respect to,
any pending or threatened action or claim in respect of which
indemnification or contribution has been or may be sought hereunder
without the prior written consent of the Indemnifying Person and no
Indemnifying Person shall have any liability whatsoever in connection with
any settlement, compromise or consent entered into without such prior
written consent.
13. CONTRIBUTION. In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section 11
is for any reason held to be unenforceable by an Indemnified Person
although applicable in accordance with its terms, the Indemnified Person
on the one hand and the Indemnifying Person on the other hand shall
contribute to the aggregate losses,
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liabilities, claims, damages and expenses of the nature contemplated by
such indemnity agreement incurred by the Indemnified Person; PROVIDED,
HOWEVER, that no Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation. As between the Indemnifying Person and each Indemnified
Person, such parties shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by
such indemnity agreement in such proportion as shall be appropriate to
reflect the relative benefits received by the Indemnifying Person on the
one hand and the Indemnified Person on the other hand, from the offering
of the Registrable Securities, the relative fault of the Indemnifying
Person on the one hand and the Indemnified Person on the other, with
respect to the statements or omissions that resulted in such loss,
liability, claim, damage or expense, or action in respect thereof and any
other relevant equitable considerations. It is agreed that it would not be
just and equitable if contribution pursuant to this Section 13 were to be
determined by pro rata allocation or by any other method of allocation
that does not take into account the relevant equitable considerations. For
purposes of this Section 13, each Person, if any, who controls a party
shall have the same rights to contribution as such party.
14. 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; PROVIDED that this Agreement may not be assigned by any party
hereto other than in compliance with the terms hereof.
15. NOTICES. All notices and other communications provided for in this
Agreement shall be in writing, and shall be sufficiently given if made (a)
by hand delivery or by telecopier and (b) by reputable express courier
service (charges prepaid) or by registered or certified mail (postage
prepaid and return receipt requested) (i) if to the Company, at the
following address:
Electropharmacology, Inc.
0000 XX 00xx Xxxxx
Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
Phone: (000) 000-0000
Facsimile: (000) 000-0000
or (ii) if to a Holder, at the address set forth for such Holder on
Schedule A.
All such notices and other communications shall be deemed to have been
duly given and delivered: when delivered by hand, if personally delivered;
when receipt acknowledged, if delivered by telecopier; two (2) Business
Days after being deposited with a reputable express courier service
(charges prepaid); and five (5) Business Days after being deposited in the
mail, postage prepaid if delivered by United States mail (registered or
certified mail, return receipt requested).
16. COUNTERPARTS. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original and all of which together shall
be considered one and the same agreement.
17. ENTIRE AGREEMENT. This Agreement constitutes the entire understanding of
the parties hereto with respect to the subject matter hereof and
supersedes any prior understanding among such parties.
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18. GOVERNING LAW; SEVERABILITY. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE
OF DELAWARE WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW
PROVISION OR RULE (WHETHER OF THE STATE OF DELAWARE OR ANY OTHER
JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY
JURISDICTION OTHER THAN THE STATE OF DELAWARE. If it shall be determined
by a court of competent jurisdiction that any provision or wording of this
Agreement shall be invalid or unenforceable under applicable law, such
invalidity or unenforceability shall not invalidate this entire Agreement.
In that case, this Agreement shall be construed so as to limit any term or
provision so as to make it enforceable or valid within the requirements of
any applicable law, and, in the event such term or provision cannot be so
limited, this Agreement shall be construed to omit such invalid or
unenforceable provisions.
19. JURISDICTION AND SERVICE OF PROCESS. Any suit, action or proceeding
against any party with respect to this Agreement and any Holder or Holder
may be brought in a court of the United States sitting in the State of
Delaware or, if jurisdiction is lacking in such a court, in a court of
record in the State of Delaware, and each party hereto, and each Holder
(a) irrevocably waives, to the fullest extent permitted by law, any
objection that it may have, whether now or in the future, to the laying of
venue in, or to the jurisdiction of, any and each of such courts for the
purpose of any such suit, action, proceeding or judgment and further
waives any claim that any such suit, action, proceeding or judgment has
been brought in an inconvenient forum, and submits to such jurisdiction,
(b) agrees that service of all writs, process and summonses in any such
suit, action or proceeding brought in the State of Delaware may be made
upon The Corporation Trust Company, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000, or such alternate process agent in the United States
designated with respect to the party, or such Holder in a writing
delivered to the Company (THE "PROCESS AGENT"), (c) irrevocably appoints
the Process Agent in its name, place and stead to receive and forward such
service of any and all such writs, process and summonses, (d) agrees that
the failure of the Process Agent to give any notice of any such service of
process to such party or such Holder or shall not impair or affect the
validity of such service or of any judgment based thereon and (e) agrees
to appoint a substitute process agent, if the Process Agent is no longer
able to so act for any reason whatsoever, which substitute process agent
shall thereafter be deemed to be the Process Agent hereunder and to give
notice of such appointment to the Company.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
Electropharmacology, Inc.
By:
--------------------------------
Name: Xxxx Xxx
Title: Chairman and CEO
PRE-CLOSING EPi STOCKHOLDERS:
PARAGON CAPITAL AT
SPEAR, LEEDS & XXXXXXX:
By:
----------------------------------
Xxxxxx Xxxxxx, Chairman
By: By:
---------------------------------- --------------------------------
Xxxxxx Xxxxxxx Xxxxxx Xxxxxxx
HTD STOCKHOLDERS:
By: By:
---------------------------------- --------------------------------
Xxxx Xxx Xxxxx Xxxxx
By:
----------------------------------
Xxxxxxx Xxxxxxxx
GEMINI PARTNERS:
By: By:
---------------------------------- --------------------------------
Xxxxxxx Xxxxxxxxx Xxxxxxxxxx Xxxxxxxxx
00
