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EXHIBIT 10.3
WOMEN FIRST HEALTHCARE, INC.
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made as
of June 29, 2001, by and among WOMEN FIRST HEALTHCARE, INC., a Delaware
corporation (the "Company"), ELAN INTERNATIONAL SERVICES, LTD., a Bermuda
exempted limited liability company ("EIS"), and ELAN PHARMA INTERNATIONAL
LIMITED, a company organized under the laws of the Republic of Ireland ("EPIL").
R E C I T A L S:
A. Pursuant to a Securities Purchase Agreement dated as of the
date hereof by and among the Company, EIS and EPIL (the "Purchase Agreement"),
(i) EIS has acquired, or will acquire in the future, certain shares of common
stock par value $.001 per share of the Company (the "Common Stock"), and (ii)
EPIL has acquired a certain note of the Company (the "Note") convertible into
shares of Common Stock. The Common Stock and the Note collectively are referred
to herein as the "Securities".
B. The execution of the Purchase Agreement has occurred on the
date hereof and it is a condition to the closing of the transactions
contemplated thereby that the parties execute and deliver this Agreement.
C. The parties desire to set forth herein their agreement on the
terms and subject to the conditions set forth herein related to the granting of
certain registration rights to the Holders (as defined below) relating to the
Common Stock held and the Common Stock issuable upon conversion or exercise of
the Securities by such Holders.
A G R E E M E N T:
The parties hereto agree as follows:
1. Certain Definitions. As used in this Agreement, the following terms
shall have the following respective meanings:
"Commission" shall mean the U.S. Securities and Exchange Commission.
"Exchange Act" shall mean the U.S. Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder,
all as the same shall be in effect from time to time.
"Holders" or "Holders of Registrable Securities" shall mean EIS, EPIL
and any Person who shall have acquired Registrable Securities from EIS or EPIL
as permitted herein, either individually or jointly, as the case may be, in a
transaction pursuant to which registration rights are transferred pursuant to
Section 10 hereof.
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"Person" shall mean an individual, a partnership, a corporation, a
limited liability company, an association, a joint stock company, a trust, a
joint venture, an unincorporated organization or a governmental or
quasi-governmental entity, or any department, agency or political subdivision
thereof or any other entity of any kind.
"Prior Agreement" shall mean that certain Stock Purchase Agreement dated
January 8, 1998, as amended, by and among the Company and the holders named
therein.
"Registrable Securities" means (i) any shares of Common Stock subscribed
for pursuant to the Purchase Agreement; (ii) any shares of Common Stock issued
or issuable upon conversion or exercise of the Securities; and (iii) any shares
of Common Stock issued or issuable in respect of the securities referred to in
clause (i) and (ii) above, whether to satisfy interest or dividend payments or
otherwise, until, in the case of any such security, it is (A) sold pursuant to
an effective registration statement under the Securities Act; (B) eligible to be
sold into the public market without regard to volume limitations under Rule
144(k) promulgated under the Securities Act (or any successor rule); (C) sold
pursuant to Rule 144 under the Securities Act (or any successor rule); or (D)
sold by a Person in a transaction in which registration rights are not
transferred pursuant to Section 10 hereof. Whenever a number or percentage of
Registrable Securities is to be determined pursuant to this Agreement, each then
outstanding Security that is convertible into or exercisable for shares of
Common Stock will be deemed to be equal to the number of shares of Common Stock
for which such Security is then so convertible or exercisable.
The terms "register," "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act.
"Registration Expenses" shall mean (i) all expenses, other than Selling
Expenses, incurred by the Company in complying with Sections 2 or 3 hereof,
including without limitation, all registration, qualification and filing fees,
NASD fees, exchange or quotation medium listing fees, printing and delivery
expenses, escrow and custodian fees, fees and disbursements of counsel for the
Company, blue sky fees and expenses and the expenses of accountants for the
Company including the expenses of any special audits incident to or required by
any such registration and (ii) the reasonable fees and disbursements of one
counsel chosen by the holders of a majority of the Registrable Securities
included in such registration for the purpose of rendering a legal opinion on
behalf of such holders in connection with any Demand Registration or Piggyback
Registration; provided, that the fees and disbursements of such counsel shall be
capped at $50,000 in connection with any Demand Registration; provided, further,
that the fees and disbursements of such counsel shall be capped at $25,000 in
connection with any Piggyback Registration.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Selling Expenses" shall mean all underwriting discounts, selling
commissions and stock transfer taxes and the costs, fees and expenses of any
accountants, attorneys (other than the costs, fees and expenses of attorneys
which are Registration Expenses) or other experts retained by the Holders.
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2. Demand Registrations.
(a) Requests for Registration. From and after the date hereof,
any Holder or Holders who collectively hold Registrable Securities representing
at least 20% of the Registrable Securities then outstanding shall have the right
(subject to the limitations set forth below), exercisable by written notice to
the Company (each a "Registration Request"), to have the Company prepare and
file with the Commission a registration statement under the Securities Act
covering the Registrable Securities that are the subject of such request (each,
a "Demand Registration"). Within 10 days after receipt of any such request, the
Company will give written notice of such requested registration to all other
Holders of Registrable Securities. The Company shall include such other Holders'
Registrable Securities in such offering if they have responded affirmatively
within 10 days after the receipt of the Company's notice. The Holders shall be
permitted two Demand Registrations hereunder. A request for registration under
this Section 2(a) will not count as a Demand Registration until the registration
statement has become effective and remained effective until the earlier of 30
days and the sale of all securities registered thereunder (unless such
registration statement has not become effective due solely to the actions or
failure to act with respect to such registration of the Holders requesting such
registration, including a request by such Holders that such registration be
withdrawn).
(b) Priority on Demand Registrations. If a Demand Registration
is an underwritten offering and the managing 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 Holders and registrable securities under the
Prior Agreement requested to be included in such registration by the
holders thereof (or, if necessary, such Registrable Securities and such
registrable securities under the Prior Agreement pro rata among the
Holders and holders under the Prior Agreement based upon the number of
Registrable Securities and such registrable securities under the Prior
Agreement owned by each such Holder and each such holder under the Prior
Agreement or such other arrangement agreed to among the Holders and the
holders under the Prior Agreement); provided, however, that a minimum of
thirty percent (30%) of the shares to be included in such underwritten
offering shall be allocated, on a pro rata basis to the holders of
registrable securities under the Prior Agreement requesting inclusion in
such offering; provided, further, however, that, such Demand
Registration will not count as a permitted Demand Registration hereunder
and the Company will pay any Registration Expenses in connection with
such registration if the Holders initially requesting such registration
are not permitted to include at least seventy-five percent (75%) of the
Registrable Securities requested to be included in such registration;
and
(ii) thereafter, other securities requested to be included in
such registration, as determined by the Company.
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The Holders of any Registrable Securities to be included in such an underwritten
offering shall enter into an underwriting agreement (which shall be in customary
form, may include agreements as to indemnification and contribution and shall
provide that the representations and warranties by the Company to and for the
benefit of such underwriters, shall also be made to and for the benefit of such
Holders).
(c) Restrictions on Demand Registration. The Company may
postpone or suspend for up to three months in any 12-month period the filing or
the effectiveness of a registration statement for a Demand Registration if the
Company's board of directors determines in good faith that such Demand
Registration (i) would reasonably be expected to have a material adverse effect
on (x) any proposal or plan by the Company to engage in any financing,
acquisition or disposition of assets (other than in the ordinary course of
business) or (y) any merger, consolidation, tender offer or similar transaction
or (ii) would require disclosure of any information that the board of directors
of the Company determines in good faith the disclosure of which would be
detrimental to the Company; provided, however, that in such event, the Holders
initially requesting such Demand Registration will be entitled to withdraw such
request and, if such request is withdrawn, such Demand Registration will not
count as a permitted Demand Registration hereunder and the Company will pay any
Registration Expenses in connection with such registration.
(d) Selection of Investment Bankers and Managers. A majority of
the Holders participating in the offering will have the right to select the
investment banker(s) and manager(s) to administer an offering pursuant to the
Demand Registration, subject to the Company's prior written approval, which will
not be unreasonably withheld or delayed.
(e) The Company represents and warrants that it is not a party
to, or otherwise subject to, any agreement, other than this Agreement and the
Prior Agreement, granting registration rights to any other Person with respect
to any securities of the Company.
3. Piggyback Registrations.
(a) Right to Piggyback. If at any time the Company shall propose
to register shares of Common Stock under the Securities Act (other than in a
registration statement relating to solely to sales of securities to participants
in a Company dividend reinvestment plan, or Form S-4 or S-8 or any successor
form or in connection with an acquisition or exchange offer or an offering of
securities solely to the existing shareholders or employees of the Company or
any demand registration statement pursuant to Section 6.2 of the Prior
Agreement), the Company (i) will give prompt written notice to all Holders of
Registrable Securities of its intention to effect such a registration giving the
approximate date on which the filing is proposed to be made and advising such
Holders of their rights under this Agreement and (ii) subject to Section 3(b)
and the other terms of this Agreement, will include in such registration all
Registrable Securities which are permitted under applicable securities laws to
be included in the form of registration statement selected by the Company and
with respect to which the Company has received written requests for inclusion
therein within 30 days after the receipt of the Company's notice (each, a
"Piggyback Registration"). The Holders will be permitted to withdraw all or any
part of the Registrable Securities from a Piggyback Registration at any time
prior to the effective date of such Piggyback Registration.
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(b) Priority on Piggyback Registrations. If a Piggyback
Registration is to be an underwritten offering, and the managing underwriters
advise the Company in writing that in their opinion the number of securities
requested to be included in such registration exceeds the number 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 securities the Company proposes to sell for its
own account;
(ii) second, registrable securities under the Prior Agreement
requested to be included in such registration by the holders thereof,
pro rata among such holders;
(iii) third , the Registrable Securities requested to be
included in such registration by the Holders, pro rata among the Holders
of such Registrable Securities; and
(iv) thereafter, other securities requested to be included in
such registration, as determined by the Company.
The Holders of any Registrable Securities to be included in such an underwritten
offering shall enter into an underwriting agreement (which shall be in customary
form, may include agreements as to indemnification and contribution, and shall
provide that the representations and warranties by the Company to and for the
benefit of such underwriters, shall also be made to and for the benefit of such
Holders).
(c) Right to Terminate Registration. If at any time after giving
written notice of its intention to register any of its securities as set forth
in Section 3(a) and prior to the effective date of the registration statement
filed in connection with such registration, the Company shall determine for any
reason not to register such securities, the Company may, at its election, give
written notice of such determination to each Holder of Registrable Securities
and thereupon be relieved of its obligation to register any Registrable
Securities in connection with such registration (but not from its obligation to
pay the Registration Expenses in connection therewith as provided herein).
(d) Selection of Underwriters. The Company will have the right
to select the investment banker(s) and manager(s) to administer an offering
pursuant to a Piggyback Registration, subject to the approval of the Holders of
a majority of the Registrable Securities, which approval will not be
unreasonably withheld, delayed or conditioned.
4. Expenses of Registration.
Except as otherwise provided herein or as may otherwise be
prohibited by applicable law, all Registration Expenses incurred in connection
with all registrations pursuant to Sections 2 and 3 hereof shall be borne by the
Company. All Selling Expenses relating to securities registered on behalf of the
Holders of Registrable Securities shall be borne by such Holders.
5. Holdback Agreements.
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(a) The Company agrees (i) not to effect any public sale or
distribution of its equity securities, or any securities convertible into or
exchangeable or exercisable for such securities, during the 10-day period prior
to, and during the 90-day period following, the effective date of any
underwritten Demand Registration or any underwritten Piggyback Registration
(except as part of such underwritten registration or pursuant to registration
statements on Form X-0, Xxxx X-0 or any successor form), unless the underwriters
managing the offering otherwise agree, and (ii) to use its best efforts to cause
its officers and directors and each holder of at least 5% (on a fully-diluted
basis) of its outstanding shares of Common Stock, or any securities convertible
into or exchangeable or exercisable for shares of 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 securities
during such periods (except as part of such underwritten registration, if
otherwise permitted), unless the underwriters managing the registered public
offering otherwise agree.
(b) If requested by the managing underwriter(s) in an
underwritten offering of Common Stock or securities convertible for Common Stock
of the Company, each Holder agrees unless such holder is a participant in such
offering not to effect any offer, sale, distribution or transfer, 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
10-day period prior to, and during the 90-day period (or, such shorter period as
may be agreed to in writing by the Company and the Holders of at least 50% of
the Registrable Securities) following, the effective date of such Registration
Statement; provided, however, that (i) no Holder shall be required to enter into
more than one such agreement in any 12-month period and (ii) other than Persons
entitled to registration rights under the Prior Agreement, all Persons entitled
to registration rights who are not parties to this Agreement, all Persons
holding in excess of 5% (on a fully-diluted basis) of the Company's outstanding
shares of Common Stock purchased from the Company at any time after the date of
this Agreement (other than a registered public offering) and all executive
officers and directors of the Company shall also have agreed not to offer, sell,
distribute a transfer under the circumstances and pursuant to the terms set
forth in this Section 5(b).
6. Registration Procedures.
Whenever the Holders of Registrable Securities have requested
that any Registrable Securities be registered pursuant to this Agreement, the
Company will use all reasonable efforts to effect the registration and the sale
of such Registrable Securities in accordance with the intended method or methods
of distribution thereof, and pursuant thereto the Company will as expeditiously
as possible:
(a) prepare and file with the Commission a registration
statement on any appropriate form for which the Company qualifies with respect
to such Registrable Securities and use all reasonable efforts to cause such
registration statement to become effective (provided that before filing a
registration statement or prospectus or any amendments or supplements thereto,
the Company will (i) furnish to the counsel selected by the Holders copies of
all such documents proposed to be filed, which documents will be subject to the
review of such counsel,
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and (ii) notify each Holder of Registrable Securities covered by such
registration of any stop order issued or threatened by the Commission);
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be reasonably necessary to keep such registration statement
effective for a period equal to the shorter of (i) 120 days and (ii) the time by
which all securities covered by such registration statement have been sold, and
comply with the provisions of the Securities Act with respect to the disposition
of all securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the sellers thereof set
forth in such registration statement;
(c) furnish to each seller of Registrable Securities such number
of copies of such registration statement, each amendment and supplement thereto,
the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as such seller may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such seller;
(d) use all reasonable efforts to register or qualify such
Registrable Securities under the securities or blue sky laws of such
jurisdictions as any seller reasonably requests and do any and all other acts
and things which may be reasonably necessary or advisable to enable such seller
to consummate the disposition in such jurisdictions of the Registrable
Securities owned by such seller (provided, that the Company will not be required
to (i) qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this Section 6(d), (ii) subject itself
to taxation in any jurisdiction or (iii) take any action that would subject it
to general service of process in any such jurisdiction);
(e) promptly notify each seller of such Registrable Securities,
at any time when a prospectus relating thereto is required to be delivered under
the Securities Act, of the happening of any event as a result of which the
prospectus included in such registration statement contains an untrue statement
of a material fact or omits any material fact necessary to make the statements
therein not misleading, and, the Company will prepare and deliver to each Holder
a supplement or amendment to such prospectus so that, as thereafter delivered to
the purchasers of such Registrable Securities, such prospectus will not contain
an untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading; provided, however, that
the Company shall be required to notify the Holders, but shall not be required
to amend the registration statement or supplement the Prospectus for a period of
up to three months if the board of directors determines in good faith that to do
so would reasonably be expected to have a material adverse effect on any
proposal or plan by the Company to engage in any financing, acquisition or
disposition of assets (other than in the ordinary course of business) or any
merger, consolidation, tender offer or similar transaction or would require the
disclosure of any information that the board of directors determines in good
faith the disclosure of which would be materially detrimental to the Company, it
being understood that the period for which the Company is obligated to keep the
Registration Statement effective shall be extended for a number of days equal to
the number of days the Company delays amendments or supplements pursuant to this
provision. Upon receipt of any notice pursuant to this Section 6(e), the Holders
shall suspend all offers and sales of securities of
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the Company and all use of any prospectus until advised by the Company that
offers and sales may resume, and shall keep confidential the fact and content of
any notice given by the Company pursuant to this Section 6(e);
(f) cause all such Registrable Securities to be listed on each
securities exchange or Nasdaq on which similar securities issued by the Company
are then listed;
(g) provide a transfer agent and registrar for all such
Registrable Securities not later than the effective date of such registration
statement;
(h) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the Holders of
a majority of the Registrable Securities being sold or the underwriters, if any,
reasonably request in order to expedite or facilitate the disposition of such
Registrable Securities;
(i) make available for inspection by the Holders of Registrable
Securities included in the registration statement, any underwriter participating
in any disposition pursuant to such registration statement and any attorney,
accountant or other agent retained by any such seller or underwriter, all
pertinent financial and other records, pertinent corporate documents and
properties of the Company, and cause the Company's officers, directors,
employees and independent accountants to supply all information reasonably
requested by any such seller, underwriter, attorney, accountant or agent in
connection with such registration statement;
(j) otherwise use all reasonable efforts to comply with all
applicable rules and regulations of the Commission, and make available to its
security holders, as soon as reasonably practicable, an earnings statement
covering the period of at least 12 months beginning with the first day of the
Company's first full calendar quarter after the effective date of the
registration statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder;
(k) in the event of the issuance of any stop order suspending
the effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any shares of Common Stock included in such registration statement for sale in
any jurisdiction, use all reasonable efforts promptly to obtain the withdrawal
of such order; and
(l) if the registration is an underwritten offering, use all
reasonable efforts to obtain a so-called "cold comfort" letter from the
Company's independent public accountants in customary form and covering such
matters of the type customarily covered by cold comfort letters;
7. Obligations of Holders.
Whenever the Holders of Registrable Securities sell any
Registrable Securities pursuant to a Demand Registration or a Piggyback
Registration, such Holders shall be obligated to comply with the applicable
provisions of the Securities Act, including the prospectus delivery requirements
thereunder, and any applicable state securities or blue sky laws. In addition,
each Holder of Registrable Securities will be deemed to have agreed by virtue of
its acquisition of
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such Registrable Securities that, upon receipt of any notice described in
Section 6(e), such holder will forthwith discontinue disposition of such
Registrable Securities covered by such registration statement or prospectus
until such holder's receipt of the copies of the supplemented or amended
prospectus contemplated by Section 6(e), or until it is advised in writing by
the Company that the use of the applicable prospectus may be resumed, and has
received copies of any additional or supplemental filings that are incorporated
or deemed to be incorporated by reference in such prospectus.
8. Indemnification.
(a) The Company agrees to indemnify, to the fullest extent
permitted by applicable law, each Holder of Registrable Securities, its officers
and directors and each Person who controls such Holder (within the meaning of
the Securities Act) against all losses, claims, damages, liabilities, expenses
or any amounts paid in settlement of any litigation, investigation or proceeding
commenced or threatened (collectively, "Claims") to which each such indemnified
party may become subject under the Securities Act insofar as such Claim arose
out of (i) any untrue or alleged untrue statement of material fact contained, in
any registration statement, prospectus or preliminary prospectus or any
amendment thereof or supplement thereto or (ii) any omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar as the same are
caused by or contained in any information furnished in writing to the Company by
such Holder expressly for use therein, by such Holder's failure to deliver a
copy of the registration statement or prospectus or any amendments or
supplements thereto after the Company has furnished such Holder with a
sufficient number of copies of the same or by such Holder's failure to comply
with applicable securities laws. In connection with an underwritten offering,
the Company will indemnify the underwriters, their officers and directors and
each Person who controls the underwriters (within the meaning of the Securities
Act) to the same extent as provided above with respect to the indemnification of
the Holders of Registrable Securities.
(b) In connection with any registration statements in which a
Holder of Registrable Securities is participating, each such Holder will, to the
fullest extent permitted by applicable law, indemnify the Company, its directors
and officers and each Person who controls the Company (within the meaning of the
Securities Act) against any and all Claims to which each such indemnified party
may become subject under the Securities Act insofar as such Claim arose out of
(i) any untrue or alleged untrue statement of material fact contained in any
registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto, (ii) any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, or (iii) any failure on the part of the
Holder to comply with applicable securities laws; provided, that with respect to
a Claim arising pursuant to clause (i) or (ii) above, the material misstatement
or omission is contained in the information such Holder provided to the Company
pursuant to Section 11 hereof; provided, further, that the obligation to
indemnify will be individual to each Holder and will be limited to the amount of
proceeds received by such Holder from the sale of Registrable Securities
pursuant to such registration statement.
(c) Any Person entitled to indemnification hereunder will (i)
give prompt written notice to the indemnifying party of any claim with respect
to which it seeks
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indemnification (but the failure to provide such notice shall not release the
indemnifying party of its obligation under paragraphs (a) and (b), unless and
then only to the extent that, the indemnifying party has been prejudiced by such
failure to provide such notice) and (ii) unless in such indemnified party's
reasonable judgment, based on written advice of counsel, a conflict of interest
between such indemnified and indemnifying parties may exist with respect to such
claim, permit such indemnifying party to assume the defense of such claim with
counsel reasonably satisfactory to the indemnified party. An indemnifying party
who is not entitled to, or elects not to, assume the defense of a claim will not
be obligated to pay the fees and expenses of more than one counsel for all
parties indemnified by such indemnifying party with respect to such claim,
unless in the reasonable judgment of any indemnified party, based on written
advice of counsel, a conflict of interest may exist between such indemnified
party and any other of such indemnified parties with respect to such claim.
(d) The indemnifying party shall not be liable to indemnify an
indemnified party for any settlement, or consent to judgment of any such action
effected without the indemnifying party's written consent (but such consent will
not be unreasonably withheld or delayed). Furthermore, the indemnifying party
shall not, except with the prior written approval of each indemnified party,
consent to entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to each indemnified party of a release from all liability in respect of such
claim or litigation without any payment or consideration provided by each such
indemnified party.
(e) If the indemnification provided for in this Section 8 is
unavailable to an indemnified party under clauses (a) and (b) above in respect
of any losses, claims, damages or liabilities referred to therein, 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, claims, damages or liabilities in such proportion as is
appropriate to reflect not only the relative benefits received by the Company
(if any), the underwriters, the sellers of Registrable Securities and any other
sellers participating in the registration statement from the sale of shares
pursuant to the registered offering of securities for which indemnity is sought
but also the relative fault of the Company, the underwriters, the sellers of
Registrable Securities and any other sellers participating in the registration
statement in connection with the misstatement or omission which resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company (if any), the
underwriters, the sellers of Registrable Securities and any other sellers
participating in the registration statement shall be deemed to be based on the
relative relationship of the total net proceeds from the offering (before
deducting expenses) to the Company (if any), the total underwriting commissions
and fees from the offering (before deducting expenses) to the underwriters and
the total net proceeds from the offering (before deducting expenses) to the
sellers of Registrable Securities and any other sellers participating in the
registration statement. The relative fault of the Company, the underwriters, the
sellers of Registrable Securities and any other sellers participating in the
registration statement shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the sellers of Registrable Securities and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission; provided that in no event shall
the liability of any selling Holder hereunder be greater in amount than the
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dollar amount of the proceeds received by such Holder upon the sale of the
Registrable Securities giving rise to such indemnification obligation.
(f) The indemnification provided for under this Agreement will
remain in full force and effect regardless of any investigation made by or on
behalf of the indemnified party or any officer, director or controlling person
of such indemnified party and will survive the transfer of the Registrable
Securities.
9. Participation in Underwritten Registrations.
No Holder may participate in any registration hereunder which is
underwritten unless such Holder (a) agrees to sell such Holder's securities on
the basis provided in any underwriting arrangements approved by the Person or
Persons entitled hereunder to approve such arrangements and (b) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of such
underwriting arrangements; provided, that no Holder of Registrable Securities
included in any underwritten registration shall be required to make any
representations or warranties to the Company or the underwriters (other than
representations and warranties regarding such Holder and such Holder's intended
method of distribution) or to undertake any indemnification obligations to the
Company or the underwriters with respect thereto, except as otherwise provided
in paragraph 8 hereof.
10. Transfer of Registration Rights.
The rights granted to any Holder under this Agreement may be
assigned to any permitted transferee of Registrable Securities in connection
with any transfer or assignment of Registrable Securities by a Holder; provided,
however, that: (a) such transfer is otherwise effected in accordance with
applicable securities laws, (b) such transfer is not in violation of the
Purchase Agreement, (c) if not already a party hereto, the assignee or
transferee agrees in writing prior to such transfer to be bound by the
provisions of this Agreement applicable to the transferor and, (d) unless
otherwise notified by the Holder, EIS shall act as agent and representative for
such Holder for the giving and receiving of notices hereunder.
11. Information by Holder.
Each Holder shall furnish to the Company such written
information regarding such Holder and any distribution proposed by such Holder
as the Company may reasonably request in writing and as shall be reasonably
required in connection with any registration, qualification or compliance
referred to in this Agreement and shall promptly notify the Company of any
changes in such information.
12. Exchange Act Compliance.
The Company shall comply with all of the reporting requirements
of the Exchange Act then applicable to it, if any, and shall comply with all
other public information reporting requirements of the Commission which are
conditions to the availability of Rule 144 for the sale of the Registrable
Securities. The Company shall cooperate with each Holder in supplying such
information as may be necessary for such Holder to complete and file any
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information reporting forms presently or hereafter required by the Commission as
a condition to the availability of Rule 144.
13. Miscellaneous.
(a) No Inconsistent Agreements. So long as any Holder owns any
Registrable Securities, the Company will not enter into any agreement that is
inconsistent with or violates the rights granted hereunder to the Holders of
Registrable Securities, including, without limitation, any agreement other than
the Prior Agreement, as in force on the date hereof, that would require the
Company to register any of its securities with priority with respect to
registration over, the rights granted to the Holders hereunder, without the
prior written consent of the Holders of at least 50% of the Registrable
Securities.
(b) Remedies. Any Person having rights under any provision of
this Agreement will be entitled to enforce such rights specifically to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or other security) for specific performance and for other injunctive
relief in order to enforce or prevent violation of the provisions of this
Agreement; provided, however, that in no event shall any Holder have the right
to enjoin, delay or interfere with any offering of securities by the Company.
(c) Amendments and Waivers. Except as otherwise provided herein,
the provisions of this Agreement may be amended or waived only with the prior
written consent of the Company and Holders of at least 50% of the Registrable
Securities; provided, however, that without the prior written consent of all the
Holders, no such amendment or waiver shall reduce the foregoing percentage
required to amend or waive any provision of this Agreement.
(d) Successors and Assigns. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
and their respective successors and permitted assigns. In addition, whether or
not any express assignment has been made, the provisions of this Agreement which
are for the benefit of Holders of Registrable Securities are also for the
benefit of, and enforceable by, any permitted transferee of Registrable
Securities, in accordance with Section 10 hereof.
(e) Severability. In case any provision of this Agreement shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not be in any way affected or impaired
thereby.
(f) Counterparts and Facsimile. This Agreement may be executed
in any number of counterparts, and each such counterpart hereof shall be deemed
to be an original instrument, but all such counterparts together shall
constitute one agreement. This Agreement may be signed and delivered to the
other party by facsimile transmission; such transmission shall be deemed a valid
signature.
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(g) Descriptive Headings. The section and paragraph headings
contained in this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement.
(h) Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York, without
giving effect to principles of conflicts of laws.
(i) Notices. All notices, demands and requests of any kind to be
delivered to any party in connection with this Agreement shall be in writing and
shall be deemed to have been duly given if personally or hand delivered or if
sent by internationally-recognized overnight courier or by registered or
certified mail, return receipt requested and postage prepaid, or by facsimile
transmission, addressed as follows:
(i) if to the Company, to:
Women First Healthcare, Inc.
00000 Xx Xxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: President and Chief Executive Officer
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx & Xxxxxxx
00000 Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxx
Facsimile: (000) 000-0000
(ii)(a) if to EIS, to:
Elan International Services, Ltd.
000 Xx. Xxxxx Xxxxx
Xxxxxx, Xxxxxx Xxxxxx
Xxxxxxx XX 04
Attention: Chief Executive Officer
Facsimile: 000-000-0000
(b) if to EPIL, to:
Elan Pharma International Limited
Xxxx Xxxxx
Xxxxxxx Xxxxxxxx Xxxx
Xxxxxxx, Xx. Xxxxx
Xxxxxxx
Attention: Secretary
Facsimile: 011-353-61-362097
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with a copy, in the case of (a) or (b) above, to:
Reitler Xxxxx LLC
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Facsimile: 000-000-0000
or to such other address as the party to whom notice is to be given may have
furnished to the other party hereto in writing in accordance with provisions of
this Section 13(i). Any such notice or communication shall be deemed to have
been effectively given (i) in the case of personal or hand delivery, on the date
of such delivery, (ii) in the case of an internationally-recognized overnight
delivery courier, on the second business day after the date when sent, (iii) in
the case of mailing, on the fifth business day following that day on which the
piece of mail containing such communication is posted and (iv) in the case of
facsimile transmission, on the date of telephone confirmation of receipt.
(j) Entire Agreement. This Agreement constitutes the full and
entire understanding and agreement of the parties with regard to the subject
matter hereof and supersedes all prior agreements and understandings among the
parties with respect thereto.
IN WITNESS WHEREOF, the parties have executed this Registration
Rights Agreement as of the date first written above.
WOMEN FIRST HEALTHCARE, INC.
By:
-------------------------------------
Name:
Title:
ELAN INTERNATIONAL SERVICES, LTD.
By:
-------------------------------------
Name:
Title:
ELAN PHARMA INTERNATIONAL LIMITED
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By:
-------------------------------------
Name:
Title:
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