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EXHIBIT 4.2
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement ("Agreement") dated February 9,
1998, is entered into by and between InfoCure, a Delaware corporation (the
"Company"), Xxxxxxx Xxxxxx Xxxxx Inc., a Texas corporation (the "Placement
Agent") and the persons set forth on Exhibit A which includes all Persons
acquiring the units (the "Units") representing securities issued and sold by
the Company in the private placement (the "Placement") completed as of the date
hereof (individually a "Stockholder" and collectively the "Stockholders"). This
Agreement evidences that for good and valuable consideration, the receipt and
sufficiency of which is acknowledged, the Company and the Stockholders agree as
follows:
ARTICLE 1. INTRODUCTION
Section 1.1. RECITALS. The Company and the Placement Agent have
entered into a Placement Agent Agreement dated January 15, 1998 (the "Placement
Agreement") setting forth the terms and conditions upon which the Placement
Agent has agreed to offer subscriptions to purchase Units of securities issued
and sold by the Company in the Placement. Pursuant to the Placement Agreement,
the Placement Agent was granted a warrant to purchase 100,000 shares of the
Company's Common Stock. The Company and each Stockholder have entered into a
Subscription Agreement dated February 9, 1998 (the "Subscription Agreement"),
pursuant to which the Stockholders propose to acquire the Units on the terms
and conditions set forth in the Subscription Agreement and the Confidential
Private Placement Memorandum dated January 15, 1998 prepared by the Company and
distributed by the Placement Agent. This Agreement shall become effective upon
the execution of the Subscription Agreement by the Stockholder and the
acceptance of such Subscription Agreement by the Company (the "Closing").
Section 1.2. DEFINITIONS. Certain capitalized terms used in this
Agreement are defined in Article 6 hereof; references to sections shall be to
sections of this Agreement.
ARTICLE 2. DEMAND REGISTRATION
Section 2.1. DEMAND FOR REGISTRATION. If the Company shall receive
from Initiating Holders at any time or times not earlier than the later of (a)
one year after the date of this Agreement or (b) the closing date of a
"Qualified Public Offering" (as defined in the Certificate of Designation of
the Series A Stock), a written request for the registration by the Company of
the resale by such holders of Registrable Securities held by them, the Company
will on one occasion only:
(a) promptly give written notice of the proposed registration
to all other Holders;
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(b) as soon as practicable, use its best efforts to effect
such registration (including, without limitation, filing post-effective
amendments, appropriate qualifications under applicable blue sky or other state
securities laws, and appropriate compliance with the Act) on Form S-3 or such
other form and as would permit or facilitate the sale and distribution of all
or such portion of such Shares as are specified in such request, together with
all or such portion of the Shares of any Holder or Holders joining in such
request as are specified in a written request received by the Company within
twenty (20) days after such written notice from the Company is mailed or
delivered; and
(c) maintain any Registration Statement or post-effective
amendment filed under this Section 2.1 current under the Act until the earlier
of (i) the date that all of the Registrable Securities have been sold pursuant
to the Registration Statement; (ii) the date the holders thereof receive an
opinion of counsel that the Registrable Securities may be sold under the
provisions of Rule 144 under the Act without limitation as to the number of
shares which may be sold; or (iii) the second anniversary of the effective date
of the Registration Statement.
Section 2.2. CERTAIN LIMITATIONS. The Company shall not be obligated to
effect, or to take any action to effect, any such registration pursuant to this
Article 2:
(a) In any particular jurisdiction in which the Company would
be required to execute a general consent to service of process in effecting
such registration, qualification, or compliance, unless the Company is already
subject to service in such jurisdiction and except as may be required by the
Securities Act;
(b) After the Company has completed one such registration
pursuant to Section 2.1 (counting for these purposes only a registration which
has been declared or ordered effective); or
(c) if the Company shall furnish to the requesting Holders a
certificate signed by a duly authorized officer of the Company stating that in
the good faith judgment of the Board of Directors of the Company it would be
seriously detrimental to the Company for such registration statement to be
filed on or before the date filing would be required, then the Company shall be
entitled to postpone filing of the registration statement for up to ninety (90)
days; provided, however, that the Company shall be entitled to issue such a
certificate only one (1) time in any given 12 month period. If a registration
is withdrawn by the Company (i) before completion of the offering contemplated
thereby or (ii) for any reason other than at the request of Holders as set
forth below, such registration shall not count as the one registration referred
to in the first sentence of this Section 2 and the Holders shall continue to be
entitled to a demand registration hereunder. If a registration is filed on
behalf of Holders and such registration is withdrawn at the request of the
Holders of at least fifty percent (50%) of the Registrable Securities
requesting registration for any reason other than adverse business developments
at the Company that were not known to the requesting Holders, such registration
will count as the one registration referred to in the first sentence of this
section.
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ARTICLE 3. "PIGGY-BACK" REGISTRATION
Section 3.1. RIGHT TO INCLUDE SHARES. Except as set forth below, if
the Company at any time proposes to file a registration statement under the Act
for the purpose of registering the sale by it or its stockholders of any of its
securities other than (i) a registration on Form X-0, Xxxx X-0, or any
successor or similar forms, or (ii) a shelf registration under Rule 415 under
the Act for the sole purpose of registering shares to be issued in connection
with the acquisition of assets, whether or not for sale for its own account, it
will each such time give prompt written notice to the Stockholders and the
Placement Agent of its intention to do so and of such Stockholder's rights
under this Article 3. Upon the written request of any Stockholder or the
Placement Agent made within 30 days after the receipt of any such notice (which
request shall specify the Shares intended to be disposed of by the Stockholder
and the intended method of disposition thereof), the Company will use its best
efforts to effect the registration under the Act of all Shares which the
Company has been so requested to register by the Stockholders or the Placement
Agent, to the extent required to permit the disposition in accordance with the
intended methods of disposition, by inclusion of such Shares in the
Registration Statement which covers the securities that the Company proposes to
register ("Piggy-Back Right"); provided, that if, at any time after giving
written notice of its intention to register any securities and prior to the
effective date of the Registration Statement filed in connection with such
registration, the Company shall determine for any reason either not to register
or to delay registration of such securities, the Company may, at its election,
give written notice of such determination to the Stockholders and, thereupon,
(i) in the case of a determination not to register, shall be relieved of its
obligation to register any Shares in connection with such registration (but not
from its obligation to pay the Registration Expenses in connection therewith),
without prejudice, subject to the rights of the Stockholders under Article 3
and (ii) in the case of a determination to delay registering, shall be
permitted to delay registering any Shares, for the same period as the delay in
registering such other securities. No registration effected under this Article
3 shall relieve the Company of its obligation to effect any registration under
Article 2 unless all the Shares are included in such registration.
Section 3.2. PRIORITY IN PIGGY-BACK REGISTRATIONS. If (i) a
registration pursuant to Article 3 involves an underwritten offering of the
securities being registered, whether or not for sale for the account of the
Company, to be distributed by or through one or more underwriters under
underwriting terms appropriate for such a transaction, and (ii) the managing
underwriter of such underwritten offering shall inform the Company and the
Holders by letter of its belief that the distribution of all or a specified
number of such Shares concurrently with the securities being distributed by
such underwriters would interfere with the successful marketing of the
securities being distributed by such underwriters (such writing to state the
basis of such belief and the approximate number of such Shares which may be
distributed without such effect), then the Company may, upon written notice to
the Holders, reduce pro rata (if and to the extent stated by such managing
underwriter to be necessary to eliminate such effect) the number of such Shares
and securities proposed to be sold by any Other Stockholder the registration of
which shall have been requested by the Holders and each Other Stockholder so
that the resultant aggregate number of such securities so included in such
registration shall be equal to the number of shares stated in such managing
underwriter's letter.
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ARTICLE 4. REGISTRATION PROCEDURES
Section 4.1. PREPARATION OF FILINGS. If and whenever the Company is
required to use its best efforts to effect the registration of any Shares under
the Act as provided in Articles 2 or 3 the following shall apply:
(a) REGISTRATION STATEMENT. The Company shall promptly prepare
and file with the Commission the requisite Registration Statement to effect
such registration (including such audited financial statements as may be
required by the Act or the rules and regulations promulgated thereunder) and
thereafter use its reasonable best efforts to cause such Registration Statement
to become and remain effective; provided, however, that the Company may
withdraw any registration of its securities at any time prior to the effective
date of the Registration Statement relating thereto; provided further, that
before filing such Registration Statement or any amendments thereto, the
Company will furnish to the Stockholders and the Placement Agent and their
counsel copies of all such documents proposed to be filed, which documents will
be subject to the review and reasonable approval of the Stockholders and the
Placement Agent and their counsel.
(b) AMENDMENTS. The Company shall prepare and file with the
Commission such amendments, post-effective amendments and supplements to such
Registration Statement and the prospectus used in connection therewith as may
be necessary to keep such Registration Statement effective and to comply with
the provisions of the Act with respect to the disposition of all securities
covered by such Registration Statement.
(c) COPIES OF DOCUMENTS. The Company shall furnish to the
Stockholders and the Placement Agent and each underwriter, if any, of the
securities being sold by the Stockholders such number of conformed copies of
such Registration Statement and of each amendment and supplement thereto (in
each case including all exhibits to such Registration Statement), such number
of copies of the prospectus contained in such Registration Statement (including
each preliminary prospectus and any summary prospectus) and any other
prospectus filed pursuant to Rule 424 under the Act and such other documents,
as the Stockholders and underwriter, if any, may reasonably request in order to
facilitate the public sale or other disposition of the securities owned by the
Stockholders (it being understood that the Company consents to the use of the
prospectus and any amendments or supplement thereto by the Stockholders and the
underwriter or underwriters, if any, in connection with the offering and sale
of securities covered by the prospectus or any amendment or supplement
thereto).
(d) BLUE SKY. The Company will use its reasonable best
efforts to register or qualify all Shares under the securities laws or blue sky
laws of the jurisdictions requiring such registration or qualification as the
Stockholders, Placement Agent and any underwriter of the securities being sold
by the Stockholders shall reasonably request, to keep such registrations or
qualifications in effect for so long as such Registration Statement remains in
effect, and take any other action which may be reasonably necessary or
advisable to enable the Stockholders and underwriter to consummate the
disposition in such jurisdictions of the securities owned by the Stockholders,
except that the Company shall not for any such purpose be required to qualify
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generally to do business as a foreign corporation in any jurisdiction wherein
it would not but for the requirements of this subsection (d) be obligated to be
so qualified, or to consent to general service of process in any such
jurisdiction.
(e) EXPENSES. The Company will pay all Registration Expenses
in connection with any registration effected pursuant to Article 2 or Article
3.
(f) OTHER APPROVALS. The Company will use its reasonable best
efforts to cause all Shares covered by such Registration Statement to be
registered with or approved by such other governmental agencies or authorities
as may be necessary to enable the Stockholders to consummate the intended
disposition of such securities.
(g) OPINIONS OF COUNSEL. The Company shall furnish to the
Stockholders and the Placement Agent a signed counterpart, addressed to the
applicable Stockholder, of an opinion of counsel for the Company prepared as
required under the Act and, if such registration includes an underwritten
public offering the Company shall furnish to the underwriter or underwriters an
opinion of counsel for the Company issued in accordance with the terms of the
underwriting agreement. The Company shall be solely responsible for any costs
or expenses incurred in connection with the rendering of such opinions of
counsel.
(h) NOTICE OF EVENTS. The Company will notify the Stockholders
and the Placement Agent at any time when a prospectus relating thereto is
required to be delivered under the Act, upon the Company's discovery that, or
upon the happening of any event as a result of which, the prospectus included
in such Registration Statement, as then in effect, includes an untrue statement
of a material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not misleading in the light
of the circumstances under which they were made, and at the request of the
Stockholders and the Placement Agent promptly prepare and furnish to the
Stockholders and the Placement Agent and each underwriter, if any, a reasonable
number of copies of a supplement to or an amendment of such prospectus as may
be necessary so that, as thereafter delivered to the purchasers of such
securities, such prospectus shall not include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the
circumstances under which they were made.
(i) LISTING. The Company will cause all Shares covered by the
Registration Statement to be listed on each securities exchange or traded or
quoted on each market on which the same class of securities issued by the
Company are then listed, traded or quoted.
(j) TRANSFER AGENT. The Company will provide a transfer
agent, registrar and a CUSIP number for all Shares no later than the effective
date of such Registration Statement.
Section 4.2. DATA FROM THE STOCKHOLDERS. The Company may require each
Stockholder and/or the Placement Agent to furnish the Company, and each
Stockholder and Placement Agent agrees to provide to the Company, such
information regarding the Stockholder or Placement Agent, as applicable, and
the distribution of such securities as the Company may from time to time
reasonably request in writing (the "Requested Information"). If at least three
(3) business
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days prior to the filing date the Company has not received the Requested
Information from a Stockholder (a "Non-Responsive Investor"), then the Company
may file the Registration Statement without including Registrable Securities of
such Non-Responsive Investor.
Section 4.3. DISCONTINUANCE OF USE OF PROSPECTUS. Each Stockholder
agrees by acquisition of such Shares that, upon receipt of any written notice
from the Company of the occurrence of any event of the kind described in
Section 4.1(h), the Stockholder will forthwith discontinue the Stockholder's
offer of Shares pursuant to the Registration Statement relating to such Shares
until the Stockholder's receipt of the copies of the supplemented or amended
prospectus contemplated by Section 4.1(h) and, if so directed by the Company,
will deliver to the Company (at the Company's expense) all copies, other than
permanent file copies, then in the Stockholder's possession of the prospectus
relating to such Shares at the time of receipt of such notice. In the event
that any Holder uses a prospectus in connection with the offering and sale of
any of the Shares covered by such prospectus, such Holder will use only the
latest version of such prospectus provided by the Company.
Section 4.4. REFERENCES TO PLACEMENT AGENT IN REGISTRATION STATEMENTS.
If any registration or comparable statement refers to the Placement Agent by
name or otherwise as the holder of any securities of the Company (and the
Placement Agent is not then an underwriter with respect to the offering
referenced by such Registration Statement) then the Placement Agent shall have
the right to require by written request (i) the insertion therein of language,
in form and substance satisfactory to the Placement Agent and counsel to the
Company, to the effect that the holding by the Placement Agent of such
securities is not to be construed as a recommendation by the Placement Agent of
the investment quality of the Company's securities covered thereby and that
such holding does not imply that the Placement Agent will assist in meeting any
future financial requirements of the Company, or (ii) in the event that such
reference to the Placement Agent by name or otherwise is not required by the
Act or any similar federal statute then in force, the deletion of the reference
to the Placement Agent.
Section 4.5. UNDERWRITTEN OFFERINGS. If requested by the underwriters
for any underwritten offering by the Stockholders pursuant to a registration
under Article 2 or Article 3, and provided that the underwriter or underwriters
are of recognized national standing and are reasonably satisfactory to the
Company, the Company will enter into an underwriting agreement with such
underwriters for such offering, such agreement to be reasonably satisfactory in
form and substance to the Company, the Stockholders, the Placement Agent and
the underwriters, and to contain such representations, warranties, indemnities
and such other terms as are generally prevailing in agreements of this type.
The Stockholders and the Placement Agent will cooperate with the Company in the
negotiation of the underwriting agreement. The Stockholders shall be parties to
such underwriting agreement. The Stockholders shall not be required to make any
representations or warranties to or agreements with the Company or the
underwriters other than representations, warranties or agreements regarding the
Stockholders, the Stockholders' Shares and the Stockholders' intended method of
distribution and any other representation required by law.
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Section 4.6. HOLDBACK AGREEMENTS. The Company agrees, if so required
by a managing underwriter of an offering of Shares pursuant to a registration
under Article 3, not to effect any public sale or distribution of its equity
securities or securities convertible into or exchangeable or exercisable for
any such securities during the seven days prior to and the 90 days after any
underwritten registration pursuant to Article 3 has become effective, except as
part of such underwritten registration and except pursuant to registrations on
Form X-0, Xxxx X-0, or any successor or similar forms thereto.
Section 4.7. PREPARATION; REASONABLE INVESTIGATION. In connection with
the preparation and filing of each Registration Statement under the Act
pursuant to this Agreement, the Company will give the Stockholders, the
Placement Agent, and their counsel and accountants, the opportunity to
participate in the preparation of such Registration Statement, each prospectus
included therein or filed with the Commission, and each amendment thereof or
supplement thereto.
ARTICLE 5. INDEMNIFICATION
Section 5.1. INDEMNIFICATION BY THE COMPANY. In the event of any
registration of any securities of the Company under the Act, the Company will,
and hereby does, severally indemnify and hold harmless (i) in the case of any
registration statement filed pursuant to Article 2 or 3, the Stockholders (if
participating) and the Placement Agent and their respective officers and
directors, each underwriter, if any, of the Stockholders' securities, and each
person who controls the Stockholder or the underwriter within the meaning of
Section 15 of the Act, against any losses, claims, damages or liabilities,
joint or several, to which the Stockholders or Placement Agent may become
subject under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings, whether commenced or threatened, in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement
under which such securities were registered under the Act, any preliminary
prospectus, final prospectus or summary prospectus contained therein, or any
amendment or supplement thereto, or 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, and the Company will reimburse the
Stockholder or Placement Agent for any legal or any other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, liability, action or proceeding; provided that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability (or action or proceeding in respect thereof) or expense arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such Registration Statement, any such preliminary
prospectus, final prospectus, summary prospectus, amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company through an instrument duly executed by any Stockholder or Placement
Agent, as the case may be, specifically stating that it is for use in the
preparation thereof and, provided further that the Company shall not be liable
to any Person who participates as an underwriter, in the offering or sale of
Shares or to any other Person, if any, who controls such underwriter within the
meaning of the Act, in any such case to the extent that any such loss, claim,
damage, liability (or action or proceeding in respect thereof) or expense
arises out of such Person's failure to send or
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give a copy of the final prospectus, as the same may be then supplemented or
amended, within the time required by the Act to the Person asserting an untrue
statement or alleged untrue statement or omission or alleged omission at or
prior to the written confirmation of the sale of Shares to such Person if such
statement or omission was corrected in such final prospectus. Such indemnity
shall remain in full force and effect regardless of any investigation made by
or on behalf of the Stockholder or Placement Agent or any such director,
officer, and shall survive the transfer of such securities by such holder.
Section 5.2. INDEMNIFICATION BY THE STOCKHOLDERS AND PLACEMENT AGENT.
To the extent permitted by law, each Stockholder and the Placement Agent will
severally, if securities held by the Stockholder or Placement Agent are
included in the securities as to which such registration, qualification or
compliance is being effected pursuant to terms hereof, indemnify the Company,
each of its directors and officers, each underwriter, if any, of the Company's
securities covered by such a registration statement, each person who controls
the Company or such underwriter within the meaning of Section 15 of the Act,
and each other person selling the Company's securities covered by such
registration statement, each of such person's officers and directors and each
person controlling such persons within the meaning of Section 15 of the Act,
against all claims, losses, damages and liabilities (or actions in respect
thereof) arising out of or based on any untrue statement (or alleged untrue
statement) of a material fact contained in any such registration statement,
prospectus, offering circular or other document, or 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 any violation by
the Stockholder or Placement Agent of any rule or regulation promulgated under
the Act applicable to the Stockholder or Placement Agent and relating to action
or inaction required of the Stockholder or Placement Agent in connection with
any such registration, qualification or compliance, and will reimburse the
Company, such other persons, such directors, officers, persons, underwriters or
control persons for any legal or other expenses reasonably incurred in
connection with investigating or defending any such claim, loss, damage,
liability or action, in each case to the extent, but only to the extent, that
such untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such registration statement, prospectus, offering circular
or other document in reliance upon and in conformity with written information
furnished to the Company by such the Stockholder or Placement Agent
specifically for use therein. In addition, insofar as the foregoing indemnity
relates to any such untrue statement (or alleged untrue statement) or omission
(or alleged omission) made in the preliminary prospectus but eliminated or
remedied in the amended prospectus on file with the Commission at the time the
registration statement becomes effective or in the final prospectus filed
pursuant to applicable rules of the Commission or in any supplement or addendum
thereto, the indemnity agreement herein shall not inure to the benefit of the
Company, any underwriter if a copy of the final prospectus filed pursuant to
such rules, together with all supplements and addenda thereto, was not
furnished to the person or entity asserting the loss, liability, claim or
damage at or prior to the time such furnishing is required by the Act.
Section 5.3. NOTICES OF CLAIMS, ETC. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in Sections 5.1 or 5.2 such indemnified party
will, if a claim in respect thereof is to be made against
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an indemnifying party, give written notice to the latter of the commencement of
such action, provided that the failure of any indemnified party to give notice
as provided herein shall not relieve the indemnifying party of its obligations
under Sections 5.1 or 5.2, except to the extent that the indemnifying party is
actually prejudiced by such failure to give notice. In case any such action is
brought against an indemnified party, unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist in respect of such claim, the indemnifying party
shall be entitled to participate in and to assume the defense thereof, jointly
with any other indemnifying party similarly notified, to the extent that the
indemnifying party may wish, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party for any legal
or other expenses subsequently incurred by the latter in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying
party shall, without the consent of the indemnified party, consent to entry of
any judgment or enter into any settlement of any such action which does not
include as an unconditional term thereof the giving by the claimant or
plaintiff to such indemnified party of a release from all liability, or a
covenant not to xxx, in respect to such claim or litigation. No indemnified
party shall consent to entry of any judgment or enter into any settlement of
any such action the defense of which has been assumed by an indemnifying party
without the consent of such indemnifying party.
Section 5.4. INDEMNIFICATION PAYMENTS. The indemnification required by
this Article 5 shall be made by periodic payments of the amount thereof during
the course of the investigation or defense, as and when bills are received or
expense, loss, damage or liability is incurred.
ARTICLE 6. NO LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS
Nothing herein shall prevent or prohibit the Company from granting
registration rights which are pari passu with the rights granted pursuant to
this Agreement, including but not limited to registration rights limited by an
underwriters' cut-back as described in Section 3.2 above.
ARTICLE 7. TERMINATION OF RIGHTS
The rights of any particular Holder pursuant to this Agreement shall
terminate on the first date on which such Holder could sell all remaining
Registrable Securities then held by such Holder in any one three-month period
following such date under the terms of Rule 144 or Rule 144(k) under the Act.
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ARTICLE 8. DEFINITIONS
As used herein, unless the context otherwise requires, the following
terms have the following respective meanings:
ACT: means the Securities Act of 1933, or any similar Federal statute,
and the rules and regulations of the Commission thereunder, all as of the same
shall be in effect at the time. References to a particular section of the
Securities Act of 1933 shall include a reference to the comparable section, if
any, of any such similar Federal statute.
COMMISSION: means the Securities and Exchange Commission or any other
Federal agency at the time administering the Securities Act.
COMMON STOCK: means the common stock of the Company, par value $.001
per share.
EXCHANGE ACT: means the Securities Exchange Act of 1934, or any
similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time. Reference to a
particular section of the Securities Exchange Act of 1934 shall include a
reference to the comparable section, if any, of any such similar federal
statute.
HOLDER: means any Person who holds Registrable Securities and any
holder of Registrable Securities to whom the registration rights conferred by
this Agreement have been transferred in compliance with Section 7.11 hereof.
INITIATING HOLDERS: means any Holder or Holders who in the aggregate
hold not less than twenty percent (20%) of the outstanding Registrable
Securities.
OTHER STOCKHOLDERS: means persons other than Holders who, by virtue of
agreements with the Company, are entitled to include their securities in
certain registrations hereunder, excluding, however such persons including
their securities in registrations hereunder pursuant to the exercise of demand
registration rights granted to them by the Company prior to the effective date
of this Agreement.
PERSON: means a corporation, as association, a partnership, an
organization, business, an individual, a governmental or political subdivision
thereof or a governmental agency.
PLACEMENT AGENT: means Xxxxxxx Xxxxxx Xxxxx Inc.
REGISTER, REGISTERED and REGISTRATION: refer to a registration
effected by preparing and filing a registration statement in compliance with
the Securities Act and applicable rules and regulations thereunder, and the
declaration or ordering of the effectiveness of such registration statement.
REGISTRABLE SECURITIES: means collectively all securities of the
Company issued in connection with the Placement, including all (i) shares of
Common Stock issued as part of the Units sold in the Placement, (ii) shares of
Preferred Stock, Series A, of the Company sold as part of the Units issued in
the Placement, (iii) warrants issued to the Placement Agent in connection
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with the Placement and (iv) shares of Common Stock issuable upon the conversion
or exercise of the securities listed in clauses (ii) and (iii) above.
REGISTRATION EXPENSES: means all expenses incident to the Company's
performance of or compliance with Article 2 or 3, including, without
limitation, all registration, filing, listing, and NASD fees, all fees and
expenses of complying with securities or blue sky laws, all word processing,
duplicating, printing and engraving expenses, messenger and delivery expenses,
the fees and disbursements of counsel for the Company and of its independent
public accountants, including the expenses of any special audits or "cold
comfort" letters required by or incident to such performance and compliance,
the reasonable fees and disbursements of a single counsel and accountant
selected and retained by the Stockholders and Placement Agent incurred in
connection with an underwritten offering, premiums and other costs of policies
of insurance against liabilities arising out of the public offering of the
Shares being registered and any fees and disbursements of underwriters
customarily paid by issuers or sellers of securities, but excluding
underwriting discounts and commissions and transfer taxes, if any.
SHARES: means any shares of Common Stock included within the definition
of Registrable Securities.
ARTICLE 9. MISCELLANEOUS
Section 9.1. REMEDIES. The Company agrees that monetary damages would
not be adequate compensation for any loss incurred by reason of a breach hereof
and hereby agrees to waive the defense in any action for specific performance
of such an obligation that a remedy at law would be adequate.
Section 9.2. ASSIGNMENT. Except as permitted by Section 7.11, this
Agreement shall not be assignable by either party hereto without the written
consent of the other party.
Section 9.3. DESCRIPTIVE HEADINGS. The descriptive headings of the
several sections and paragraphs of this Agreement are inserted for reference
only and shall not limit or otherwise affect the meaning hereof.
Section 9.4. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED
BY, THE LAWS OF THE STATE OF GEORGIA WITHOUT PREJUDICE TO THE PRINCIPLES OF
CONFLICTS OF LAW.
Section 9.5. COUNTERPARTS. This Agreement may be executed
simultaneously in any number of counterparts, each of which shall be deemed an
original, but all such counterparts shall together constitute one and the same
instrument.
Section 9.6. ENTIRE AGREEMENT. This Agreement embodies the entire
agreement and understanding between the Company and each other party hereto and
supersedes all prior agreements and understandings relating to the subject
matter hereof.
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Section 9.7. SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired
thereby.
Section 9.8. AMENDMENTS AND WAIVERS. This Agreement may be amended and
the Company may take any action herein prohibited, or omit to perform any act
herein required to be performed by it, only if the Company shall have obtained
the written consent of the Placement Agent and the Holders of at least 50% of
the Registrable Securities. For purposes of calculating the number of shares
required to consent to an amendment under this Section 9.8, any Registrable
Securities that are shares of Preferred Stock, Series A or Warrants shall be
calculated as if converted to shares of Common Stock.
Section 9.9. NOMINEES FOR BENEFICIAL OWNERS. In the event that any
Shares are held by a nominee for the beneficial owner thereof, the beneficial
owner thereof may, at its election, be treated as the holder of such Shares for
purposes of any request or other action by any holder or holders of Shares
pursuant to this Agreement or any determination of any number or percentage of
shares of Shares held by any holder or holders of Shares contemplated by this
Agreement. If the beneficial owner of any Shares so elects, the Company may
require assurances reasonably satisfactory to it of such owner's beneficial
ownership of such Shares.
Section 9.10. NOTICES. Except as otherwise provided in this Agreement,
all communications provided for hereunder shall be in writing and sent by
first-class mail, postage prepaid, and (a) if addressed to the Stockholder, at
the address that the Stockholder shall have furnished to the Company in the
Subscription Agreement, or (b) if addressed to the Company, 0000 Xxx Xxxxxxxx,
Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, to the attention of its President, with a
copy to Xxxxxx, Xxxxxxx & Xxxxxx, L.L.P., attention: Xxx X. Xxxxxx, Esq.
Section 9.11. ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause
the Company to register Shares pursuant to Article 2 or Article 3 shall be
assigned by a Holder to any transferee or assignee of Registrable Securities;
provided that the Company is, within a reasonable time after such transfer,
furnished with written notice of the name and address of such transferee or
assignee and the securities with respect to which such registration rights are
being assigned; and provided, further, that such assignment of registration
rights shall be effective only if immediately following such transfer the
further disposition of such securities by the transferee or assignee is
restricted under the Act.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their respective officers thereunto duly authorized
as of the date first above written.
INFOCURE CORPORATION
By: /s/ Xxxxxxxxx X. Fine
-----------------------------------
Name: Xxxxxxxxx X. Fine
Title: Chief Executive Officer,
President
XXXXXXX XXXXXX XXXXX INC.
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
XXXXXXX XXXXXX XXXXX INC., as
attorney-in-fact for the Stockholders
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
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