EXHIBIT 10.8
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated as of June 25, 2002
(this "Agreement"), is made by and between WOMEN FIRST HEALTHCARE, INC., a
Delaware corporation (the "Company"), and the purchasers named on the signature
page hereto (the "Purchasers").
W I T N E S S E T H:
WHEREAS, in connection with the Preferred Stock Purchase
Agreement, dated as of June 25, 2002, between the Purchasers and the Company
(the "Preferred Stock Purchase Agreement"), the Company has agreed, upon the
terms and subject to the conditions of the Preferred Stock Purchase Agreement,
to issue and sell to the Purchasers convertible redeemable preferred stock (the
"Preferred Stock"), which shall be convertible at the option of the Purchasers
into shares of Common Stock (the "Conversion Shares");
WHEREAS, to induce the Purchasers to execute and deliver the
Preferred Stock Purchase Agreement, the Company has agreed to provide certain
registration rights under the Securities Act of 1933, as amended, and the rules
and regulations thereunder, or any similar successor statute (collectively, the
"1933 Act"), and applicable state securities laws with respect to the
Registrable Securities (as defined below) issuable to or for the account of the
Purchasers pursuant to the Preferred Stock Purchase Agreement;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company and the
Purchasers hereby agree as follows:
1. Definitions.
(a) As used in this Agreement, the following terms shall
have the following meanings:
"Nasdaq" means the Nasdaq National Market.
"1934 Act" means the Securities Exchange Act of 1934, as
amended.
"Person" means any individual, corporation, limited liability
company, association, partnership, trust, or any other entity or organization,
including any government entity.
"Purchasers" means the Purchasers and any transferee or
assignee who agrees to become bound by the provisions of this Agreement in
accordance with Section 9 hereof.
"register," "registered," and "registration" refer to a
registration effected by preparing and filing a Registration Statement or
Statements in compliance with the 1933 Act and pursuant to Rule 415 under the
1933 Act or any successor rule providing for offering securities on a continuous
basis ("Rule 415"), and the declaration or ordering of effectiveness of such
Registration Statement by the United States Securities and Exchange Commission
(the "SEC").
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"Registrable Securities" means the Conversion Shares.
"Registration Period" means the period from the Date of
Closing to the earlier of (i) the date which is three years after the date on
which the shares of Preferred Stock are issued to the Purchasers pursuant to the
Preferred Stock Purchase Agreement, (ii) the date on which each Purchaser may
sell all of its Registrable Securities without registration under the 1933 Act
pursuant to Rule 144, without restriction on the manner of sale or the volume of
securities which may be sold in any period and without the requirement for
giving of any notice to, or the making of any filing with, the SEC and (iii) the
date on which the Purchasers no longer beneficially own any Registrable
Securities.
"Registration Statement" means a registration statement of the
Company under the 1933 Act, including any amendment thereto.
"Rule 144" means Rule 144 promulgated under the 1933 Act or
any other similar rule or regulation of the SEC that may at any time permit a
holder of any securities to sell securities of the Company to the public without
registration under the 1933 Act.
"SEC Effective Date" means the date the Registration Statement
is first declared effective by the SEC.
"SEC Filing Date" means the date the Registration Statement is
first filed with the SEC pursuant to Section 2(a).
(b) Capitalized terms defined in the introductory paragraph or
the recitals to this Agreement shall have the respective meanings therein
provided. Capitalized terms used herein and not otherwise defined herein shall
have the respective meanings set forth in the Preferred Stock Purchase
Agreement.
2. Registration.
(a) Mandatory Registration. The Company shall prepare,
and file with and cause to be declared effective by the SEC a Registration
Statement on Form S-3, which, on the date of filing with the SEC, covers the
resale by the Purchasers or their permitted assignees of a number of shares of
Common Stock at least equal to the Conversion Shares, and thereafter to cause
such Registration Statement relating to Registrable Securities to be declared
effective as soon as possible after such filing but in any event, not later than
180 days after the Date of Closing. If at any time the number of shares of
Common Stock included in the Registration Statement required to be filed as
provided in the first sentence of this Section 2(a) shall be insufficient to
cover the number of shares of Common Stock issuable upon conversion of the
unconverted Preferred Stock, then promptly, but in no event later than 20 days
after such insufficiency shall occur, the Company shall file with the SEC an
additional Registration Statement on Form S-3 (which shall not constitute a
post-effective amendment to the Registration Statement filed pursuant to the
first sentence of this Section 2(a)), covering such number of shares of Common
Stock as shall be sufficient to permit such conversions. For all purposes of
this Agreement, such additional Registration Statement shall be deemed to be the
Registration Statement required to be filed by the Company pursuant to Section
2(a) of this Agreement, and the Company and the Purchasers shall have the same
rights and obligations with respect to such additional
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Registration Statement as they shall have with respect to the initial
Registration Statement required to be filed by the Company pursuant to this
Section 2(a). Except to the extent required under the agreements set forth under
Schedule I, the Registration Statement shall not, without the Purchasers'
consent which shall not be unreasonably withheld, include securities to be sold
for the account of any other selling securityholder.
(b) Priority on Mandatory Registration. If the Mandatory
Registration is an underwritten offering and the managing underwriter or
underwriters advise the Company in writing that in their opinion the number of
Registrable Securities and, if permitted hereunder, other securities requested
to be included in such offering, exceeds the number of Registrable Securities
and other securities, if any, which can be sold in such offering without
adversely affecting the marketability of the offering, the Company will include
in such registration:
(i) first, the Registrable Securities requested to be
included in such registration by the Purchasers and any securities
requested to be included in such registration by other Person that is
entitled to piggyback registration rights that are not subordinate to
the rights of the Purchasers (allocated, if necessary, pro rata among
the Purchasers and such other Persons based upon the number of shares
owned by each of them);
(ii) second, any securities requested to be included in
such registration by any Person that is entitled to Piggyback
Registration Rights that are subordinate to the rights of the
Purchasers;
(iii) third, to the Company; and
(iv) thereafter, other securities requested to be included
in such registration.
(c) Selection of Underwriters. The Company will have the
right to select the investment banker(s) and manager(s), if any, to administer
an offering pursuant to the Mandatory Registration, subject to the Holders'
approval, which will not be unreasonably withheld.
(d) Other Registrations. The Company will not file
another registration statement with the SEC covering shares of Common Stock
prior to the SEC Effective Date, other than registration statements on Form S-4
or S-8.
(e) Holdback Agreements. (i) The Company agrees (A) not
to effect any public sale or distribution for its own account of its equity
securities, or any securities convertible into or exchangeable or exercisable
for such securities, during the seven days prior to and during the 90-day period
beginning on the effective date of the underwritten Mandatory Registration
(except as part of such underwritten registration or pursuant to registrations
on Form S-8 or any successor form), unless the underwriter(s) managing the
registered public offering otherwise agree, and (B) to use reasonable efforts to
cause each purchaser of at least 5% (on a fully-diluted basis) of its Common
Stock, or any securities convertible into or exchangeable or exercisable for
Common Stock, purchased from the Company at any time after the date of this
Agreement (other than in a registered public offering) to agree not to effect
any public sale or distribution (including sales pursuant to Rule 144) of any
such
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securities during such periods (except as part of such underwritten
registration, if otherwise permitted), unless the underwriter(s) managing the
registered public offering otherwise agree.
(ii) Each Holder of Registrable Securities whose
Registrable Securities are eligible for inclusion in a Registration Statement
filed pursuant to Section 2 hereof agrees, if requested by the managing
underwriter(s) in an underwritten offering of any Registrable Securities, not to
effect any public sale or distribution of Registrable Securities, including a
sale pursuant to Rule 144 (or any similar provision then effect) under the
Securities Act (except as part of such underwritten registration), during the
seven-day period prior to, and during the 90-day period (or such shorter period
as may be agreed to by the managing underwriter(s)) following the effective date
of such Registration Statement to the extent timely notified in writing by the
Company or the managing underwriter or underwriters.
(f) Piggy-Back Registrations. If at any time the Company
shall determine to prepare and file with the SEC a Registration Statement
relating to an offering for its own account or the account of others under the
1933 Act of any of its equity securities, other than on Form S-4 or Form S-8 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 stock option or other employee benefit plans, the
Company shall send to each Purchaser who is entitled to registration rights
under this Section 2(f) written notice of such determination and, if within ten
(10) days after receipt of such notice, such Purchaser shall so request in
writing, the Company shall include in such Registration Statement all or any
part of the Registrable Securities such Purchaser requests to be registered,
except that if, in connection with any underwritten public offering for the
account of the Company, the managing underwriter(s) thereof shall impose a
limitation on the number of Registrable Securities which may be included in the
Registration Statement because, in such underwriter(s)' judgment, such
limitation is necessary to effect an orderly public distribution, then the
Company shall be obligated to include in such Registration Statement only such
limited portion of the Registrable Securities with respect to which such
Purchaser has requested inclusion hereunder. Any exclusion of Registrable
Securities shall be made pro rata among the Purchasers seeking to include
Registrable Securities, in proportion to the number of Registrable Securities
sought to be included by such Purchasers; provided, however, that the Company
shall not exclude any Registrable Securities unless the Company has first
excluded all outstanding securities the holders of which are not entitled by
right to inclusion of securities in such Registration Statement; and provided
further, however, that, after giving effect to the immediately preceding
proviso, any exclusion of Registrable Securities shall be made pro rata with
holders of other securities having the right to include such securities in the
Registration Statement, based on the number of securities for which registration
is requested except to the extent such pro rata exclusion of such other
securities is prohibited under any written agreement entered into by the Company
with the holder of such other securities prior to the date of this Agreement, in
which case such other securities shall be excluded, if at all, in accordance
with the terms of such agreement. No right to registration of Registrable
Securities under this Section 2(f) shall be construed to limit any registration
required under Section 2(a) hereof. Notwithstanding any other provision of this
Agreement, if the Registration Statement required to be filed pursuant to
Section 2(a) of this Agreement shall have been ordered effective by the SEC and
the Company shall have maintained the effectiveness of such Registration
Statement as required by this Agreement and if the Company shall otherwise have
complied in all material respects with its obligations under this Agreement,
then the Company shall not be obligated to register any Registrable Securities
on such Registration Statement referred to in this Section 2(f).
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(g) Eligibility for Registration Statement Forms. The
Company meets the requirements for the use of Form S-3 for registration of the
Registrable Securities for resale by the Purchasers. The Company shall file all
reports required to be filed by the Company with the SEC in a timely manner so
as to maintain such eligibility for the use of Form S-3.
3. Obligations of the Company. In connection with the
registration of the Registrable Securities, the Company shall:
(a) prepare promptly, and file with the SEC not later
than 30 days after the Date of Closing, a Registration Statement with
respect to the number of Registrable Securities provided in Section
2(a), and thereafter to use its reasonable best efforts to cause each
Registration Statement relating to Registrable Securities to be
declared effective as soon as possible after such filing and in the
case of the initial Registration Statement filed pursuant to Section
2(a), in any event, within 180 days after the Date of Closing, and keep
the Registration Statement effective pursuant to Rule 415 at all times
during the Registration Period; submit to the SEC, within two Trading
Days after the Company learns that no review of the Registration
Statement will be made by the staff of the SEC or that the staff of the
SEC has no further comments on the Registration Statement, as the case
may be, a request for acceleration of effectiveness of the Registration
Statement to the earliest time and date permitted by the staff of the
SEC after the submission of such request; notify the Purchasers of the
effectiveness of the Registration Statement on the date the
Registration Statement is declared effective; and the Company
represents and warrants to, and covenants and agrees with, the
Purchasers that the Registration Statement (including any amendments or
supplements thereto and prospectuses contained therein), at the time it
is first filed with the SEC, at the time it is ordered effective by the
SEC and at all times during which it is required to be effective
hereunder (and each such amendment and supplement at the time it is
filed with the SEC and at all times during which it is available for
use in connection with the offer and sale of the Registrable
Securities) shall not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein, or
necessary to make the statements therein, in light of the circumstances
in which they were made, not misleading;
(b) prepare and file with the SEC such amendments
(including post-effective amendments) and supplements to the
Registration Statement and the prospectus used in connection with the
Registration Statement as may be necessary to keep the Registration
Statement effective at all times during the Registration Period, and,
during the Registration Period, comply with the provisions of the 1933
Act with respect to the disposition of all Registrable Securities of
the Company covered by the Registration Statement until such time as
all of such Registrable Securities have been disposed of in accordance
with the intended methods of disposition by the seller or sellers
thereof as set forth in the Registration Statement;
(c) furnish to each Purchaser whose Registrable
Securities are included in the Registration Statement and its legal
counsel, (1) promptly after the same is prepared and publicly
distributed, filed with the SEC or received by the Company, one copy of
the Registration Statement and any amendment thereto, each preliminary
prospectus and prospectus and each amendment or supplement thereto,
each letter written by or on behalf of the Company to the SEC or the
staff of the SEC and each item of correspondence from the SEC or the
staff of the
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SEC relating to such Registration Statement (other than any portion of
any thereof which contains information for which the Company has sought
confidential treatment) and (2) such number of copies of a prospectus,
including a preliminary prospectus, and all amendments and supplements
thereto and such other documents, as such Purchaser may reasonably
request in order to facilitate the disposition of the Registrable
Securities owned by such Purchaser;
(d) use reasonable efforts to (i) register and qualify
the Registrable Securities covered by the Registration Statement under
such securities or blue sky laws of such jurisdictions as the
Purchasers who hold a majority in interest of the Registrable
Securities being offered reasonably request, (ii) prepare and file in
those jurisdictions such amendments (including post-effective
amendments) and supplements to such registrations and qualifications as
may be necessary to maintain the effectiveness thereof at all times
until the end of the Registration Period, (iii) take such other actions
as may be necessary to maintain such registrations and qualifications
in effect at all times during the Registration Period and (iv) take all
other actions reasonably necessary or advisable to qualify the
Registrable Securities for sale in such jurisdictions; provided,
however, that the Company shall not be required in connection therewith
or as a condition thereto (I) to qualify to do business in any
jurisdiction where it would not otherwise be required to qualify but
for this Section 3(d), (II) to subject itself to general taxation in
any such jurisdiction, (III) to file a general consent to service of
process in any such jurisdiction, (IV) to provide any undertakings that
cause more than nominal expense or burden to the Company or (V) to make
any change in its Certificate of Incorporation or By-laws, which in
each case the Board of Directors of the Company determines to be
contrary to the best interests of the Company and its shareholders;
(e) as promptly as practicable after becoming aware of
such event or circumstance, notify each Purchaser of any event or
circumstance of which the Company has knowledge, as a result of which
the prospectus included in the Registration Statement, as then in
effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading, and use its reasonable best efforts
promptly to prepare a supplement or amendment to the Registration
Statement to correct such untrue statement or omission, file such
supplement or amendment with the SEC at such time as shall permit the
Purchasers to sell Registrable Securities pursuant to the Registration
Statement as promptly as practical, and deliver a number of copies of
such supplement or amendment to each Purchaser as such Purchaser may
reasonably request; provided that the parties hereto understand and
agree that if an event or circumstance requiring an amendment of or
supplement to the Registration Statement would require the Company to
file financial statements in order to keep the Registration Statement
current in accordance with Rule 3-05(b)(4) of Regulation S-X, the
Company shall have no more than 75 days to make an appropriate SEC
filing incorporating such financial statements to update the
Registration Statement;
(f) as promptly as practicable after becoming aware of
such event, notify each Purchaser who holds Registrable Securities
being sold of the issuance by the SEC of any stop order or other
suspension of effectiveness of the Registration Statement at the
earliest possible time;
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(g) permit a single firm of counsel designated as selling
shareholders' counsel by the Purchasers who hold a majority in interest
of the Registrable Securities being sold to review and comment on the
Registration Statement and all amendments and supplements thereto a
reasonable period of time prior to their filing with the SEC;
(h) make generally available to its security holders as
soon as practical, but not later than ninety (90) days after the close
of the period covered thereby, an earnings statement (in form complying
with the provisions of Rule 158 under the 0000 Xxx) covering a
twelve-month period beginning not later than the first day of the
Company's fiscal quarter next following the effective date of the
Registration Statement;
(i) make available for inspection by any Purchaser, and
any attorney, any underwriter, accountant or other agent retained by
any such Purchaser (collectively, the "Inspectors"), all pertinent
financial and other records, pertinent corporate documents and
properties of the Company (collectively, the "Records"), as shall be
reasonably necessary to enable each Inspector to exercise its due
diligence responsibility, and cause the Company's officers, directors
and employees to supply all information which any Inspector may
reasonably request for purposes of such due diligence; provided,
however, that each Inspector shall hold in confidence and shall not
make any disclosure (except to a Purchaser) of any Record or other
information which the Company determines in good faith to be
confidential, and of which determination the Inspectors are so
notified, unless (i) the disclosure of such Records is necessary to
avoid or correct a misstatement or omission in any Registration
Statement, (ii) the release of such Records is ordered pursuant to a
subpoena or other order from a court or government body of competent
jurisdiction or (iii) the information in such Records has been made
generally available to the public other than by disclosure in violation
of this or any other agreement. The Company shall not be required to
disclose any confidential information in such Records to any Inspector
until and unless such Inspector shall have entered into confidentiality
agreements (in form and substance satisfactory to the Company) with the
Company with respect thereto, substantially in the form of this Section
3(i). Each Purchaser agrees that it shall, upon learning that
disclosure of such Records is sought in or by a court or governmental
body of competent jurisdiction or through other means, give prompt
notice to the Company and allow the Company, at the Company's own
expense, to undertake appropriate action to prevent disclosure of, or
to obtain a protective order for, the Records deemed confidential. The
Company shall hold in confidence and shall not make any disclosure of
information concerning a Purchaser provided to the Company pursuant to
Section 4 hereof unless (i) disclosure of such information is necessary
to comply with federal or state securities laws, (ii) the disclosure of
such information is necessary to avoid or correct a misstatement or
omission in any Registration Statement, (iii) the release of such
information is ordered pursuant to a subpoena or other order from a
court or governmental body of competent jurisdiction or (iv) such
information has been made generally available to the public other than
by disclosure in violation of this or any other agreement. The Company
agrees that it shall, upon learning that disclosure of such information
concerning a Purchaser is sought in or by a court or governmental body
of competent jurisdiction or through other means, give prompt notice to
such Purchaser, at such Purchaser's own expense, to undertake
appropriate action to prevent disclosure of, or to obtain a protective
order for, such information;
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(j) use its reasonable best efforts (i) to cause all the
Registrable Securities covered by the Registration Statement to be
listed on the Nasdaq or such other principal securities market on which
securities of the same class or series issued by the Company are then
listed or traded or (ii) if securities of the same class or series as
the Registrable Securities are not then listed on Nasdaq or any such
other securities market, to cause all of the Registrable Securities
covered by the Registration Statement to be listed on the New York
Stock Exchange, the American Stock Exchange or the Nasdaq National
Market;
(k) provide a transfer agent and registrar, which may be
a single entity, for the Registrable Securities not later than the
effective date of the Registration Statement;
(l) cooperate with the Purchasers who hold Registrable
Securities being offered to facilitate the timely preparation and
delivery of certificates (not bearing any restrictive legends)
representing Registrable Securities to be offered pursuant to the
Registration Statement and enable such certificates to be in such
denominations or amounts as the case may be, as the Purchasers may
reasonably request and registered in such names as the Purchasers may
request; and, within three Trading Days after a Registration Statement
which includes Registrable Securities is ordered effective by the SEC,
the Company shall deliver to the transfer agent for the Registrable
Securities (with copies to the Purchasers whose Registrable Securities
are included in such Registration Statement) an instruction
substantially in the form attached hereto as Exhibit 1 and shall use
all reasonable efforts to cause Xxxxxx & Xxxxxxx, counsel to the
Company, to deliver to the Purchasers an opinion of such counsel in the
form attached hereto as Exhibit 2 (with a copy to the Company's
transfer agent);
(m) during the period the Company is required to maintain
effectiveness of the Registration Statement pursuant to Section 3(a),
the Company shall not bid for or purchase any Common Stock or any right
to purchase Common Stock or attempt to induce any person to purchase
any such security or right if such bid, purchase or attempt would in
any way limit the right of the Purchasers to sell Registrable
Securities by reason of the limitations set forth in Regulation M under
the 1934 Act;
(n) if the registration is an underwritten offering, use
all reasonable efforts to obtain a so-called "comfort" letter from the
Company's independent public accountants in customary form and covering
such matters of the type customarily covered by comfort letters; and
(o) take all other reasonable actions necessary to
expedite and facilitate disposition by the Purchasers of the
Registrable Securities pursuant to the Registration Statement.
4. Obligations of the Purchasers. In connection with
the registration of the Registrable Securities, the Purchasers shall have the
following obligations:
(a) It shall be a condition precedent to the obligations
of the Company to complete the registration pursuant to this Agreement
with respect to the Registrable Securities of a particular Purchaser
that such Purchaser shall furnish to the Company such information
regarding itself, the Registrable Securities held by it and the
intended method of disposition of
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the Registrable Securities held by it as shall be reasonably required
to effect the registration of such Registrable Securities and shall
execute such documents in connection with such registration as the
Company may reasonably request. At least ten (10) days prior to the
first anticipated filing date of the Registration Statement, the
Company shall notify each Purchaser of the information the Company
requires from each such Purchaser (the "Requested Information") if any
of such Purchaser's Registrable Securities are eligible for inclusion
in the Registration Statement. If at least one (1) Trading Day prior to
the filing date the Company has not received the Requested Information
from a Purchaser (a "Non-Responsive Purchaser"), then the Company may
file the Registration Statement without including Registrable
Securities of such Non-Responsive Purchaser;
(b) Each Purchaser by such Purchaser's acceptance of the
Registrable Securities agrees to cooperate with the Company as
reasonably requested by the Company in connection with the preparation
and filing of the Registration Statement hereunder, unless such
Purchaser has notified the Company in writing of such Purchaser's
election to exclude all of such Purchaser's Registrable Securities from
the Registration Statement;
(c) Each Purchaser agrees that, upon receipt of any
notice from the Company of the happening of any event of the kind
described in Section 3(e) or 3(f), such Purchaser will immediately
discontinue disposition of Registrable Securities pursuant to the
Registration Statement covering such Registrable Securities until such
Purchaser's receipt of the copies of the supplemented or amended
prospectus contemplated by Section 3(e) or 3(f) and, if so directed by
the Company, such Purchaser shall deliver to the Company (at the
expense of the Company) or destroy (and deliver to the Company a
certificate of destruction) all copies in such Purchaser's possession
of the prospectus covering such Registrable Securities current at the
time of receipt of such notice; and
(d) Each Purchaser agrees that it will not sell
Registrable Securities other than pursuant to an effective registration
statement (or an exemption from registration) and will comply with any
applicable prospectus delivery requirements.
5. Expenses of Registration. All expenses, other than
underwriting discounts and commissions and other fees and expenses of investment
bankers and other than brokerage commissions, incurred in connection with
registrations, filings or qualifications pursuant to Section 3, including,
without limitation, all registration, listing and qualifications fees, printers
and accounting fees and the fees and disbursements of counsel for the Company
and reasonable fees of one firm of counsel for the Purchasers, shall be borne by
the Company.
6. Indemnification. In the event any Registrable
Securities are included in a Registration Statement under
this Agreement:
(a) To the extent permitted by law, the Company will
indemnify and hold harmless each Purchaser who holds such Registrable
Securities, the directors, if any, of such Purchaser, the officers, if
any, of such Purchaser, each person, if any, who controls any Purchaser
within the meaning of the 1933 Act or the 1934 Act (each, an
"Indemnified Person"), against any losses, claims, damages, liabilities
or expenses (joint or several) incurred (collectively,
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"Claims") to which any of them may become subject under the 1933 Act,
the 1934 Act or otherwise, insofar as such Claims (or actions or
proceedings, whether commenced or threatened, in respect thereof) arise
out of or are based upon any of the following statements, omissions or
violations in the Registration Statement, or any post-effective
amendment thereof, or any prospectus included therein: (i) any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement or any post-effective amendment thereof or
the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, (ii) any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus if
used prior to the effective date of such Registration Statement, or
contained in the final prospectus (as amended or supplemented, if the
Company files any amendment thereof or supplement thereto with the SEC)
or the omission or alleged omission to state therein any material fact
necessary to make the statements made therein, in light of the
circumstances under which the statements therein were made, not
misleading or (iii) any violation or alleged violation by the Company
of the 1933 Act, the 1934 Act, any state securities law or any rule or
regulation under the 1933 Act, the 1934 Act or any state securities law
(the matters in the foregoing clauses (i) through (iii) being,
collectively, "Violations"). Subject to the restrictions set forth in
Section 6(d) with respect to the number of legal counsel, the Company
shall reimburse the Purchasers and each such controlling person,
promptly as such expenses are incurred and are due and payable, for any
legal fees or other reasonable expenses incurred by them in connection
with investigating or defending any such Claim. Notwithstanding
anything to the contrary contained herein, the indemnification
agreement contained in this Section 6(a): (I) shall not apply to a
Claim arising out of or based upon a Violation which occurs in reliance
upon and in conformity with information furnished in writing to the
Company by any Indemnified Person expressly for use in connection with
the preparation of the Registration Statement, the prospectus or any
such amendment thereof or supplement thereto, if such prospectus was
timely made available by the Company pursuant to Section 3(c) hereof;
(II) with respect to any preliminary prospectus shall not inure to the
benefit of any such person from whom the person asserting any such
Claim purchased the Registrable Securities that are the subject thereof
(or to the benefit of any person controlling such person) if the untrue
statement or omission of material fact contained in the preliminary
prospectus was corrected in the prospectus, as then amended or
supplemented, if such prospectus was timely made available by the
Company pursuant to Section 3(c) hereof; and (III) shall not apply to
amounts paid in settlement of any Claim if such settlement is effected
without the prior written consent of the Company, which consent shall
not be unreasonably withheld. Such indemnity shall remain in full force
and effect regardless of any investigation made by or on behalf of the
Indemnified Person and shall survive the transfer of the Registrable
Securities by the Purchasers pursuant to Section 9.
(b) In connection with any Registration Statement in
which a Purchaser is participating, each such Purchaser agrees to
indemnify and hold harmless, to the same extent and in the same manner
set forth in Section 6(a), the Company, each of its directors, each of
its officers who signs the Registration Statement, each person, if any,
who controls the Company within the meaning of the 1933 Act or the 1934
Act, any underwriter and any other shareholder selling securities
pursuant to the Registration Statement or any of its directors or
officers or any person who controls such shareholder or underwriter
within the meaning of the 1933 Act or the 1934 Act (collectively and
together with an Indemnified Person, an
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"Indemnified Party"), against any Claim to which any of them may become
subject, under the 1933 Act, the 1934 Act or otherwise, insofar as such
Claim arises out of or is based upon any Violation, in each case to the
extent (and only to the extent) that such Violation occurs in reliance
upon and in conformity with written information furnished to the
Company by such Purchaser expressly for use in connection with such
Registration Statement; and such Purchaser will reimburse any legal or
other expenses reasonably incurred by any Indemnified Party in
connection with investigating or defending any such Claim; provided,
however, that the indemnity agreement contained in this Section 6(b)
shall not apply to amounts paid in settlement of any Claim if such
settlement is effected without the prior written consent of such
Purchaser, which consent shall not be unreasonably withheld; provided,
further, however, that the Purchaser shall be liable under this Section
6(b) for only that amount of a Claim as does not exceed the amount by
which the net proceeds to such Purchaser from the sale of Registrable
Securities pursuant to such Registration Statement exceeds the cost of
such Registrable Securities to such Purchaser. Such indemnity shall
remain in full force and effect regardless of any investigation made by
or on behalf of such Indemnified Party and shall survive the transfer
of the rights to have the Company register Registrable Securities
pursuant to Section 9. Notwithstanding anything to the contrary
contained herein, the indemnification agreement contained in this
Section 6(b) with respect to any preliminary prospectus shall not inure
to the benefit of any Indemnified Party if the untrue statement or
omission of material fact contained in the preliminary prospectus was
corrected on a timely basis in the prospectus, as then amended or
supplemented, and such Indemnified Party failed to satisfy an
obligation to deliver such final prospectus.
(c) The Company shall be entitled to receive indemnities
from underwriters, selling brokers, dealer managers and similar
securities industry professionals participating in any distribution, to
the same extent as provided above, with respect to information so
furnished in writing by such persons expressly for inclusion in the
Registration Statement.
(d) Promptly after receipt by an Indemnified Person or
Indemnified Party under this Section 6 of notice of the commencement of
any action (including any governmental action), such Indemnified Person
or Indemnified Party shall, if a Claim in respect thereof is to be made
against any indemnifying party under this Section 6, deliver to the
indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the
extent the indemnifying party so desires, jointly with any other
indemnifying party similarly noticed, to assume control of the defense
thereof with counsel selected by the indemnifying party but reasonably
acceptable to the Indemnified Person or the Indemnified Party, as the
case may be; provided, however, that an Indemnified Person or
Indemnified Party shall have the right to retain its own counsel with
the reasonable fees and expenses to be paid by the indemnifying party,
if, in the reasonable opinion of counsel retained by the indemnifying
party, the representation by such counsel of the Indemnified Person or
Indemnified Party and the indemnifying party would be inappropriate due
to actual or potential differing interests between such Indemnified
Person or Indemnified Party and any other party represented by such
counsel in such proceeding. In such event, the Company shall pay for
only one separate legal counsel for the Purchasers; such legal counsel
shall be selected by the Purchasers holding a majority in interest of
the Registrable Securities included in the Registration Statement to
which the Claim relates. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any
such action shall not
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relieve such indemnifying party of any liability to the Indemnified
Person or Indemnified Party under this Section 6, except to the extent
that the indemnifying party is prejudiced in its ability to defend such
action. The indemnification required by this Section 6 shall be made by
periodic payments of the amount thereof during the course of the
investigation or defense, as such expense, loss, damage or liability is
incurred and is due and payable.
7. Contribution. To the extent any indemnification by an
indemnifying party is prohibited or limited by law, the indemnifying party
agrees to make the maximum contribution with respect to any amounts for which it
would otherwise be liable under Section 6 to the fullest extent permitted by
law; provided, however, that (a) no contribution shall be made under
circumstances where the maker would not have been liable for indemnification
under the fault standards set forth in Section 6, (b) no seller of Registrable
Securities guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 0000 Xxx) shall be entitled to contribution from any seller of
Registrable Securities who was not guilty of such fraudulent misrepresentation
and (c) contribution by any seller of Registrable Securities shall be limited in
amount to the amount by which the net amount of proceeds received by such seller
from the sale of such Registrable Securities exceeds the purchase price paid by
such seller for such Registrable Securities.
8. Reports under 1934 Act. With a view to making
available to the Purchasers the benefits of Rule 144, the Company agrees to:
(a) make and keep public information available, as those
terms are understood and defined in Rule 144;
(b) file with the SEC in a timely manner all reports and
other documents required of the Company under the 1933 Act and the 1934
Act; and
(c) furnish to each Purchaser so long as such Purchaser
owns Registrable Securities, promptly upon request, (i) a written
statement by the Company that it has complied with the reporting
requirements of Rule 144 and the 1934 Act, (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 and (iii) such other information
as may be reasonably requested to permit the Purchasers to sell such
securities pursuant to Rule 144 without registration.
9. Assignment of Registration Rights. The rights to have the
Company register Registrable Securities pursuant to this Agreement shall be
automatically assigned by the Purchasers to any permitted transferee of all or
any portion of such securities (or all or any portion of the Preferred Stock)
only if: (a) the Purchaser agrees in writing with the permitted transferee to
assign such rights, and a copy of such agreement is furnished to the Company
within a reasonable time after such assignment, (b) the Company is, within a
reasonable time after such transfer or assignment, furnished with written notice
of (i) the name and address of such permitted transferee and (ii) the securities
with respect to which such registration rights are being transferred or
assigned, (c) immediately following such transfer or assignment the further
disposition of such securities by the permitted transferee is restricted under
the 1933 Act and applicable state securities laws, and (d) at or before the time
the Company receives the written notice contemplated by clause (b) of this
sentence the permitted transferee agrees in writing with the Company to be bound
by all of the provisions contained herein. In
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connection with any such transfer the Company shall, at its sole cost and
expense, promptly after such assignment take such reasonable actions as shall be
reasonably acceptable to the Purchasers and such permitted transferee to assure
that the Registration Statement and related prospectus are available for use by
such permitted transferee for sales of the Registrable Securities in respect of
which the rights to registration have been so assigned.
10. Amendment of Registration Rights. Any provision of
this Agreement may be amended and the observance thereof may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and Purchasers who
hold a majority in interest of the Registrable Securities. Any amendment or
waiver effected in- accordance with this Section 10 shall be binding upon each
Purchaser and the Company.
11. Miscellaneous.
(a) A person or entity is deemed to be a holder of
Registrable Securities whenever such person or entity owns of record such
Registrable Securities. If the Company receives conflicting instructions,
notices or elections from two or more persons or entities with respect to the
same Registrable Securities, the Company shall act upon the basis of
instructions, notice or election received from the registered owner of such
Registrable Securities.
(b) Notices required or permitted to be given hereunder
shall be in writing and shall be deemed to be sufficiently given when personally
delivered (by hand, by courier, by telephone line facsimile transmission or
other means) (i) if to the Company, at 00000 Xx Xxxxxx Xxxx, Xxxxx 000, Xxx
Xxxxx, Xxxxxxxxxx 00000, Attention: Legal Department, (ii) if to the Purchasers,
c/o CIBC Capital Partners, 000 Xxxxxxxxx Xxx., Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxxx Phoenix and Whitney & Co. LLC, 000 Xxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxxxxx 00000, Attention: Xxxxxx X. X'Xxxxx and (iii) if to any other
Purchaser, at such address as such Purchaser shall have provided in writing to
the Company, or at such other address as each such party furnishes by notice
given in accordance with this Section 11(b).
(c) Failure of any party to exercise any right or remedy
under this Agreement or otherwise, or delay by a party in exercising such right
or remedy, shall not operate as a waiver thereof.
(d) This Agreement shall be enforced, governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed entirely within such State. In the event
that any provision of this Agreement is invalid or unenforceable under any
applicable statute or rule of law, then such provision shall be deemed
inoperative to the extent that it may conflict therewith and shall be deemed
modified to conform with such statute or rule of law. Any provision hereof which
may prove invalid or unenforceable under any law shall not affect the validity
or enforceability of any other provision hereof.
(e) This Agreement constitutes the entire agreement among
the parties hereto with respect to the subject matter hereof. There are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein. This Agreement supersedes all prior agreements and
understandings among the parties hereto with respect to the subject matter
hereof.
-14-
(f) Subject to the requirements of Section 9 hereof, this
Agreement shall inure to the benefit of and be binding upon the successors and
assigns of each of the parties hereto.
(g) All pronouns and any variations thereof refer to the
masculine, feminine or neuter, singular or plural, as the context may require.
(h) The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) The Company acknowledges that any failure by the
Company to perform its obligations under this Agreement, including, without
limitation, the Company's obligations under Section 3(l), or any delay in such
performance could result in damages to the Purchasers and the Company agrees
that, in addition to any other liability the Company may have by reason of any
such failure or delay, the Company shall be liable for all direct and
consequential damages caused by any such failure or delay.
(j) This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same agreement. This Agreement, once executed by a party,
may be delivered to the other party hereto by telephone line facsimile
transmission of a copy of this Agreement bearing the signature of the party so
delivering this Agreement.
-15-
IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed by their respective officers thereunto duly authorized as of
day and year first above written.
WOMEN FIRST HEALTHCARE, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Chief Financial Officer
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IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed by their respective officers thereunto duly authorized as of
day and year first above written.
CIBC WMC INC.
By: /s/ X. Xxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxx
Title: Managing Director
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IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed by their respective officers thereunto duly authorized as of
day and year first above written.
XXXXXXXXX CAPITAL, L.P.
By: XxxxxXxxx XX, L.L.C.
its General Partner
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Attorney-in-Fact
BROAD STREET ASSOCIATES, LLC
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Attorney-in-Fact
