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REGISTRATION RIGHTS AGREEMENT
dated as of September 5, 1997
between
XXXXXX-FIELD HEALTH PRODUCTS, INC.
and
THE INDIVIDUALS AND ENTITIES LISTED
ON THE SIGNATURE PAGES HERETO
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TABLE OF CONTENTS
THIS TABLE OF CONTENTS IS NOT PART OF THE REGISTRATION RIGHTS
AGREEMENT TO WHICH IT IS ATTACHED BUT IS INSERTED FOR CONVENIENCE ONLY.
Page
No.
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1. Requested Registration....................................................................................... 1
(a) Registration Request............................................................................... 1
(b) Registration Statement Form........................................................................ 2
(c) Registration Expenses.............................................................................. 2
(d) Priority in Cutback Registrations.................................................................. 2
(e) Preemption of Requested Registration............................................................... 2
2. Piggyback Registrations...................................................................................... 3
(a) Right to Include Registrable Securities............................................................ 3
(b) Registration Expenses.............................................................................. 3
(c) Priority in Cutback Registrations.................................................................. 3
3. Registration Procedures...................................................................................... 5
4. Underwritten Offerings....................................................................................... 9
(a) Underwritten Requested Offering.................................................................... 9
(b) Underwritten Piggyback Offerings................................................................... 10
5. Holdback Agreements.......................................................................................... 10
(a) By the Restricted Group............................................................................ 10
(b) By the Company................................................................................. 10
6. Indemnification.............................................................................................. 11
(a) Indemnification by the Company..................................................................... 11
(b) Indemnification by the Restricted Group............................................................ 12
(c) Notices of Claims, etc............................................................................. 13
(d) Contribution....................................................................................... 14
(e) Other Indemnification.............................................................................. 14
(f) Indemnification Payments........................................................................... 14
7. Covenants Relating to Rule 144............................................................................... 15
8. Other Registration Rights.................................................................................... 15
(a) No Existing Agreements............................................................................. 15
(b) Future Agreements.............................................................................. 15
9. Definitions.................................................................................................. 15
10. Termination................................................................................................. 19
11. Miscellaneous........................................................................................... 19
(a) Notices............................................................................................ 19
(b) Entire Agreement............................................................................... 20
(c) Amendment.......................................................................................... 21
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(d) Irrevocable Appointment of Agent............................................................... 21
(e) Waiver......................................................................................... 21
(f) No Third Party Beneficiary..................................................................... 21
(g) No Assignment; Binding Effect.................................................................. 22
(h) Headings....................................................................................... 22
(i) Invalid Provisions............................................................................. 22
(j) Remedies; Legal Expenses....................................................................... 22
(k) Governing Law.................................................................................. 23
(l) Counterparts................................................................................... 23
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This REGISTRATION RIGHTS AGREEMENT dated as of September 5,
1997 is made and entered into by and between Xxxxxx- Field Health Products,
Inc., a Delaware corporation (the "Company"), and each of the stockholders of
Xxxxx Enterprises, Inc., a Delaware corporation ("Target"), listed on the
signature pages hereto (the "Stockholders"). Capitalized terms not otherwise
defined herein have the meanings set forth in Section 9.
WHEREAS, the Company, GFHP Acquisition Corp., a Delaware
corporation wholly-owned by the Company ("Sub"), and Target have entered into an
Agreement and Plan of Merger of even date herewith (the "Merger Agreement"),
pursuant to which Sub will be merged with and into Target and Target will become
a wholly-owned subsidiary of the Company (the "Merger");
WHEREAS, at the Effective Time and in accordance with the
terms of the Merger Agreement, each share of common stock, par value $.10 per
share, of Target (including shares owned by the Stockholders) will be converted
into shares of Common Stock, all as more fully described in the Merger
Agreement;
WHEREAS, concurrently with the execution and delivery of the
Merger Agreement, the Company, the BIL Entities, Xxxxx Xxxxxxxx and the
Stockholders have entered into a Stockholders Agreement (the "Stockholders
Agreement") of even date herewith; and
WHEREAS, as a condition to the Stockholders' willingness to
vote their shares of Target capital stock in favor of the Merger and to become
bound by the provisions of the Stockholders Agreement, the Company has agreed to
enter into this Registration Rights Agreement providing for the Company's
registration for sale, under certain circumstances, of Registrable Securities
owned by the Stockholders;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Registration Rights Agreement, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Requested Registration. (a) Registration Request. At any
time after the Effective Time, upon the written request of the Agent requesting
that the Company effect the registration under the Securities Act of all or part
of the Restricted Group's Registrable Securities and specifying the number of
Registrable Securities to be registered and the intended method of disposition
thereof, the Company thereupon will use its best efforts to effect the
registration under the Securities Act of such Registrable Securities, all to the
extent requisite to permit the disposition (in accordance with the intended
methods thereof) of the Registrable Securities so to be registered.
Notwithstanding the
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foregoing, the Company may postpone taking action with respect to a Requested
Registration for a reasonable period of time after receipt of the original
request (not exceeding ninety (90) days) if, in the good faith opinion of the
Company's Board of Directors, effecting the registration would adversely affect
a material financing, acquisition, disposition of assets or stock, merger or
other comparable transaction or would require the Company to make public
disclosure of information the public disclosure of which would have a material
adverse effect upon the Company. Subject to paragraph (d), the Company may
include in such registration other securities of the same class as the
Registrable Securities for sale for its own account or for the account of any
other Person. Notwithstanding anything herein to the contrary, the Company shall
not be required to honor more than three (3) requests for a Requested
Registration which results in an Effective Registration.
(b) Registration Statement Form. A Requested Registration
shall be on such appropriate registration form promulgated by the Commission as
shall be selected by the Company and shall permit the disposition of such
Registrable Securities in accordance with the intended method or methods
specified in the request for such registration.
(c) Registration Expenses. The Company will pay all
Registration Expenses incurred in connection with a Requested Registration.
(d) Priority in Cutback Registrations. If a Requested
Registration becomes a Cutback Registration, the Company will include in any
such registration to the extent of the number which the Managing Underwriter
advises the Company can be sold in such offering (i) first, Registrable
Securities requested to be included in such registration by the Restricted
Group, and (ii) second, other securities of the Company proposed to be included
in such registration, allocated among the Company and any holders thereof in
accordance with the priorities then existing among the Company and the holders
of such other securities; and any securities so excluded shall be withdrawn from
and shall not be included in such Requested Registration.
(e) Preemption of Requested Registration. Notwithstanding
anything to the contrary contained herein, at any time within thirty (30) days
after receiving a written request for a Requested Registration, the Company may
elect to effect an underwritten primary registration in lieu of the Requested
Registration if the Company's Board of Directors believes that such primary
registration would be in the best interests of the Company. If the Company so
elects to effect a primary registration, the Company shall give prompt written
notice to the Agent of its intention to effect such a registration and shall
afford the Restricted Group rights contained in Section 2 with respect to
Piggyback Registrations. In the event that the Company so elects to effect a
primary registration after receiving a
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request for a Requested Registration, the request for a Requested Registration
shall be deemed to have been withdrawn and such primary registration shall not
be deemed to be an Effective Registration.
2. Piggyback Registrations. (a) Right to Include Registrable
Securities. Notwithstanding any limitation contained in Section 1, if the
Company at any time proposes after the Effective Time to effect a Piggyback
Registration, including in accordance with Section 1(e), it will each such time
give written notice (a "Notice of Piggyback Registration"), at least twenty (20)
days prior to the anticipated filing date, to the Agent of its intention to do
so and of the Restricted Group's right under this Section 2, which Notice of
Piggyback Registration shall include a description of the intended method of
disposition of such securities. Upon the written request of the Agent made
within twenty (20) days after receipt of a Notice of Piggyback Registration
(which request shall specify the Registrable Securities intended to be disposed
of), the Company will use its best efforts to include in the registration
statement relating to such Piggyback Registration, for offer and sale in
accordance with the intended method of disposition described in the Notice of
Piggyback Registration, all Registrable Securities which the Company has been so
requested to register. Notwithstanding the foregoing, if, at any time after
giving a Notice of Piggyback Registration 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 or to delay registration of such
securities, the Company may, at its election, give written notice of such
determination to the Agent and, thereupon, (i) in the case of a determination
not to register, shall 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) without prejudice,
however, to the right of the Agent on behalf of the Restricted Group to request
that such registration be effected as a Requested Registration under Section 1,
and (ii) in the case of a determination to delay registering, shall be permitted
to delay registering any Registrable Securities for the same period as the delay
in registering such other securities. No registration effected under this
Section 2 shall relieve the Company of its obligations to effect a Requested
Registration under Section 1. There shall not be any limitation on the number of
Effective Registrations constituting Piggyback Registrations in which any
Registrable Securities may be included.
(b) Registration Expenses. The Company will pay all
Registration Expenses incurred in connection with each Piggyback Registration.
(c) Priority in Cutback Registrations. If a Piggyback
Registration becomes a Cutback Registration, the Company will
include in such registration to the extent of the amount of the
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securities which the Managing Underwriter advises the Company can be sold in
such offering:
(i) if such registration as initially proposed by the Company
was solely a primary registration of its securities, (w) first, the
securities proposed by the Company to be sold for its own account, (x)
second, any securities of the Company requested to be included in such
registration by the BIL Entities and any Warrants and Warrant Shares
requested to be included in such registration by the Warrant Holders,
to be allocated in accordance with any agreements in effect between the
Company and the BIL Entities and the Warrant Holders, (y) third, any
Registrable Securities requested to be included in such registration
and any other securities of the Company requested to be included in
such registration by any other stockholder of the Company who, as of
the date hereof, has the right to have such stockholder's securities
included in such registration, allocated among all such holders on a
pro-rata basis in accordance with their respective ownership interests,
and (z) fourth, any other securities of the Company proposed to be
included in such registration, allocated among the holders thereof in
accordance with the priorities then existing among the Company and such
holders; and
(ii) if such registration as initially proposed by the Company was
in whole or in part requested by holders of securities of the Company
other than the Restricted Group pursuant to demand registration rights,
(w) first, such securities held by the holders initiating such
registration and, if applicable, any securities proposed by the Company
to be sold for its own account, allocated in accordance with the
priorities then existing among the Company and such holders, (x)
second, any securities of the Company requested to be included in such
registration by the BIL Entities and any Warrants and Warrant Shares
requested to be included in such registration by the Warrant Holders,
to be allocated in accordance with any agreements in effect between the
Company and the BIL Entities and the Warrant Holders, (y) third, any
Registrable Securities requested to be included in such registration
and any other securities of the Company requested to be included in
such registration by any other stockholder of the Company who, as of
the date hereof, has the right to have such stockholder's securities
included in such registration, allocated among all such holders on a
pro-rata basis in accordance with their respective ownership interests,
and (z) fourth, any other securities of the Company proposed to be
included in such registration, allocated among the holders thereof in
accordance with the priorities then existing among the Company and the
holders of such other securities;
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and any securities so excluded shall be withdrawn from and shall not be included
in such Piggyback Registration. The Company covenants and agrees with the
members of the Restricted Group that, in the event a Piggyback Registration in
which Registrable Securities are requested to be included becomes a Cutback
Registration, the members of the Restricted Group will have priority over any
other holder of securities of the Company who, after the date hereof, obtains
the right to include securities in such Piggyback Registration.
3. Registration Procedures. If and whenever the Company is
required to use its best efforts to effect the registration of any Registrable
Securities owned by the Restricted Group under the Securities Act pursuant to
Section 1 or Section 2, the Company will use its best efforts to effect the
registration and sale of such Registrable Securities in accordance with the
intended methods of disposition thereof. Without limiting the foregoing, the
Company in each such case will, as expeditiously as possible:
(a) prepare and file with the Commission the requisite
registration statement to effect such registration and use its best
efforts to cause such registration statement to become effective;
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and any prospectus used in
connection therewith as may be necessary to maintain the effectiveness
of such registration statement and to comply with the provisions of the
Securities Act with respect to the disposition of all Registrable
Securities covered by such registration statement, in accordance with
the intended methods of disposition thereof, until the earlier of (i)
such time as all of such securities have been disposed of in accordance
with the intended methods of disposition by the seller or sellers
thereof set forth in such registration statement and (ii) ninety (90)
days after such registration statement becomes effective;
(c) promptly notify the Agent and the underwriter or
underwriters, if any:
(i) when such registration statement or any
prospectus used in connection therewith, or any amendment or
supplement thereto, has been filed and, with respect to such
registration statement or any post-effective amendment
thereto, when the same has become effective;
(ii) of any written request by the Commission for
amendments or supplements to such registration statement or
prospectus;
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(iii) of the notification to the Company by the Commission
of its initiation of any proceeding with respect to the
issuance by the Commission of, or of the issuance by the
Commission of, any stop order suspending the effectiveness of
such registration statement; and
(iv) of the receipt by the Company of any notification
with respect to the suspension of the qualification of any
Registrable Securities for sale under the applicable
securities or blue sky laws of any jurisdiction.
(d) furnish to the Agent such number of conformed copies of
such registration statement and of each amendment and supplement
thereto (in each case including all exhibits and documents incorporated
by reference), 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 under Rule 424
promulgated under the Securities Act, and such other documents, as the
Agent may reasonably request to facilitate the disposition of the
Registrable Securities covered by such registration statement;
(e) use its best efforts to register or qualify all
Registrable Securities covered by such registration statement under
such other securities or blue sky laws of such jurisdictions as the
Agent shall reasonably request, to keep such registration or
qualification 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 Restricted Group to consummate the
disposition in such jurisdictions of their Registrable Securities
covered by such registration statement, except that the Company shall
not for any such purpose be required (i) to qualify generally to do
business as a foreign corporation in any jurisdiction wherein it would
not but for the requirements of this paragraph (e) be obligated to be
so qualified, (ii) to subject itself to taxation in any such
jurisdiction or (iii) to consent to general service of process in any
jurisdiction;
(f) use its best efforts to cause all Registrable Securities
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 Restricted Group to consummate the disposition
of such Registrable Securities;
(g) furnish to the Agent a signed counterpart, addressed to
the members of the Restricted Group whose Registrable Securities are
covered by such registration statement (and the underwriters, if any),
of
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(i) an opinion of counsel for the Company, dated the
effective date of such registration statement (or, if such
registration includes an underwritten Public Offering, dated
the date of any closing under the underwriting agreement),
reasonably satisfactory in form and substance to the Agent,
and
(ii) a "comfort" letter, dated the effective date of such
registration statement (and, if such registration includes an
underwritten Public Offering, dated the date of any closing
under the underwriting agreement), signed by the independent
public accountants who have certified the Company's financial
statements included in such registration statement,
in each case covering substantially the same matters with respect to
such registration statement (and the prospectus included therein) and,
in the case of the accountants' letter, with respect to events
subsequent to the date of such financial statements, as are customarily
covered in opinions of issuer's counsel and in accountants' letters
delivered to the underwriters in underwritten Public Offerings of
securities and, in the case of the accountants' letter, such other
financial matters, as the Agent (or the underwriters, if any) may
reasonably request;
(h) notify the Agent, 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 any 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, in the light of the circumstances under which they were made,
not misleading, and at the request of the Agent promptly prepare and
furnish to the Agent 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, in the light of the
circumstances under which they were made, not misleading;
(i) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make available
to its securityholders, as soon as reasonably practicable, an earnings
statement covering the period of at least twelve (12) months, but not
more than eighteen (18) months, beginning with the first full calendar
month after the effective date of such registration statement, which
earnings statement shall satisfy the provisions of Section
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11(a) of the Securities Act and Rule 158 promulgated thereunder;
(j) make available for inspection by the Agent, any
underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other agent
retained by the Agent or any such underwriter (collectively, the
"Inspectors"), all financial and other records, pertinent corporate
documents and properties of the Company (collectively, the "Records")
as shall be reasonably necessary to enable them to exercise their due
diligence responsibility, and cause the Company's officers, directors
and employees to supply all information reasonably requested by any
such Inspector in connection with such registration statement; provided
that records which the Company determines, in good faith, to be
confidential and which it notifies the Inspectors are confidential
shall not be disclosed by the Inspectors unless (i) the disclosure of
such Records is necessary to avoid or correct a misstatement or
omission in the registration statement, (ii) the release of such
Records is ordered pursuant to a subpoena or other order from a court
of competent jurisdiction or (iii) the information in such Records has
been made generally available to the public;
(k) provide a transfer agent and registrar for all Registrable
Securities covered by such registration statement not later than the
effective date of such registration statement; and
(l) use its best efforts to cause all Registrable Securities
covered by such registration statement to be listed, upon official
notice of issuance, on any securities exchange on which any of the
securities of the same class as the Registrable Securities are then
listed.
In the event of the issuance of any stop order suspending the
effectiveness of a registration statement which includes Registrable Securities,
or any order suspending or preventing the use of any related prospectus or
suspending the qualification of any Registrable Securities included in such
registration statement for sale in any jurisdiction, the Company will use its
reasonable best efforts to promptly obtain the withdrawal of such order.
The Company may require the members of the Restricted Group
whose Registrable Securities are covered by such registration statement to, and
such members of the Restricted Group, as a condition to including Registrable
Securities in such registration, shall, furnish the Company with such
information and affidavits regarding such members of the Restricted Group and
the distribution of such securities as the Company may from time to
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time reasonably request in writing in connection with such registration.
Each member of the Restricted Group agrees by acquisition of
such Registrable Securities that upon receipt of any notice to the Agent from
the Company of the happening of any event of the kind described in paragraph
(h), the Restricted Group will forthwith discontinue its disposition of
Registrable Securities pursuant to the registration statement relating to such
Registrable Securities until the Agent's receipt of the copies of the
supplemented or amended prospectus contemplated by paragraph (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 their possession of the
prospectus relating to such Registrable Securities current at the time of
receipt of such notice. In the event the Company shall give any such notice, the
period referred to in paragraph (b) shall be extended by a number of days equal
to the number of days during the period from and including the giving of notice
pursuant to paragraph (h) and to and including the date when the Agent shall
receive the copies of the supplemented or amended prospectus contemplated by
paragraph (h).
4. Underwritten Offerings. (a) Underwritten Requested
Offering. In the case of an underwritten Public Offering being effected pursuant
to a Requested Registration, the Managing Underwriter and any other underwriter
or underwriters with respect to such offering shall be selected by the Company,
provided such underwriters are of recognized national standing and are
reasonably acceptable to the Agent. Such underwriter or underwriters will be
instructed to effect as broad a distribution of the Registrable Securities to be
sold by them as is reasonably practicable and, in any event, to use their best
efforts to refrain from selling any Registrable Securities to any Person who
beneficially owns, or as a result of such purchase would beneficially own, more
than 5% of the outstanding shares of Common Stock. The Company shall enter into
an underwriting agreement in customary form with such underwriter or
underwriters, which shall include, among other provisions, indemnities to the
effect and to the extent provided in Section 6. Each member of the Restricted
Group whose Registrable Securities are to be offered in such underwritten Public
Offering shall be a party to such underwriting agreement and may, at its option,
require that any or all of the representations and warranties by, and the other
agreements on the part of, the Company to and for the benefit of such
underwriters also be made to and for its benefit and that any or all of the
conditions precedent to the obligations of such underwriters under such
underwriting agreement also be conditions precedent to its obligations. Such
members of the Restricted Group 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
Restricted Group and their ownership of the securities being registered on
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their behalf and their intended method of distribution and any other
representation required by law.
(b) Underwritten Piggyback Offerings. If the Company at any
time proposes to register any of its securities in a Piggyback Registration and
such securities are to be distributed by or through one or more underwriters,
the Company will, subject to the provisions of Section 2(c), arrange for such
underwriters to include the Registrable Securities to be offered and sold by the
Restricted Group among the securities to be distributed by such underwriters. If
members of the Restricted Group elect to have any of their Registrable
Securities included in such Piggyback Registration, such members of the
Restricted Group shall be obligated to sell their Registrable Securities in such
Piggyback Registration through such underwriters on the same terms and
conditions as apply to the other Company securities to be sold by such
underwriters in connection with such Piggyback Registration. Each member of the
Restricted Group whose Registrable Securities are to be offered in such
underwritten Public Offering shall be a party to the underwriting agreement
between the Company and such underwriter or underwriters and may, at its option,
require that any or all of the representations and warranties by, and the other
agreements on the part of, the Company to and for the benefit of such
underwriters also be made to and for its benefit and that any or all of the
conditions precedent to the obligations of such underwriters under such
underwriting agreement also be conditions precedent to its obligations. Such
members of the Restricted Group 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
Restricted Group and their ownership of the securities being registered on their
behalf and their intended method of distribution and any other representation
required by law.
5. Holdback Agreements. (a) By the Restricted Group. In the
case of an underwritten Public Offering, unless the Managing Underwriter
otherwise agrees, each member of the Restricted Group, by acquisition of such
Registrable Securities, agrees not to effect any public sale or distribution
(including a sale under Rule 144) of such securities, or any securities
convertible into or exchangeable or exercisable for such securities, during the
seven (7) days prior to and the ninety (90) days after the effective date of any
registration statement filed by the Company in connection with a Public Offering
(or for such shorter period of time as is sufficient and appropriate, in the
opinion of the Managing Underwriter, in order to complete the sale and
distribution of the securities included in such registration), except as part of
such registration statement, whether or not such member of the Restricted Group
participates in such registration.
(b) By the Company. Unless the Managing Underwriter otherwise
agrees, the Company agrees not to effect any public sale
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or distribution of its equity securities, or any securities convertible into or
exchangeable or exercisable for such securities, during the seven (7) days prior
to and the ninety (90) days after the effective date of the registration
statement filed in connection with an underwritten offering made pursuant to a
Requested Registration or Piggyback Registration (or for such shorter period of
time as is sufficient and appropriate, in the opinion of the Managing
Underwriter, in order to complete the sale and distribution of the securities
included in such registration), except as part of such underwritten registration
and except pursuant to registrations on Form S-4 or Form S-8 promulgated by the
Commission or any successor or similar forms thereto. The Company shall cause
each holder of 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 Effective Time (other than in a registered public
offering), who at the time and after giving effect to such purchase owns shares
of Common Stock and securities convertible into or exchangeable for shares of
Common Stock representing at least 10% of the shares of Common Stock outstanding
on a fully diluted basis, to agree not to effect any public sale or distribution
(including sales pursuant to Rule 144) of any such purchased securities during
any period referred to in the preceding sentence (except as part of an
underwritten registration, if otherwise permitted).
6. Indemnification. (a) Indemnification by the Company. The
Company shall, to the full extent permitted by law, indemnify and hold harmless
each member of the Restricted Group whose Registrable Securities are covered by
a Requested Registration or a Piggyback Registration against any losses, claims,
damages, expenses or liabilities, joint or several (together, "Losses"), to
which such member of the Restricted Group may become subject under the
Securities Act or otherwise, insofar as such Losses (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 filed in connection with a Requested
Registration or a Piggyback Registration in which Registrable Securities of such
member of the Restricted Group are included, 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 (in the case of a prospectus, in the light of the circumstances under
which they were made) not misleading, and the Company will reimburse such member
of the Restricted Group for all reasonable legal or any other expenses
reasonably incurred by them in connection with investigating or defending any
such Loss (or action or proceeding in respect thereof); provided that the
Company shall not be liable in any such case to the extent that any such Loss
(or action or proceeding in respect thereof) arises out of or is based upon (x)
an untrue statement or alleged
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untrue statement or omission or alleged omission made in any such registration
statement, preliminary prospectus, final prospectus, summary prospectus,
amendment or supplement in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of such member of the
Restricted Group specifically for use in the preparation thereof or (y) a
Restricted Group member's failure to send or give a copy of the final prospectus
to the Persons asserting an untrue statement or alleged untrue statement or
omission or alleged omission at or prior to the written confirmation of the sale
of Registrable Securities 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 such member
of the Restricted Group, and shall survive the transfer of such securities by
such member of the Restricted Group. In connection with an underwritten
Requested Registration or Piggyback Registration, the Company will indemnify
such underwriters, their officers and directors and each other Person, if any,
who controls such underwriters within the meaning of the Securities Act, to the
same extent as provided above with respect to the indemnification of the members
of the Restricted Group.
(b) Indemnification by the Restricted Group. Each member of
the Restricted Group, as a condition to including Registrable Securities in any
registration statement filed in connection with a Requested Registration or a
Piggyback Registration in which Registrable Securities of such member of the
Restricted Group are included, shall, to the full extent permitted by law,
severally indemnify and hold harmless the Company, its directors and officers,
and each other Person, if any, who controls the Company within the meaning of
the Securities Act, against any Losses to which the Company or any such director
or officer or controlling Person may become subject under the Securities Act or
otherwise, insofar as such Losses (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 such
registration statement, 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 (in the case of a
prospectus, in the light of the circumstances under which they were made) not
misleading, if such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of such member of the
Restricted Group specifically for use in the preparation of such registration
statement, preliminary prospectus, final prospectus, summary prospectus,
amendment or supplement. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of the Company or any such
director, officer
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16
or controlling Person and shall survive the transfer of such securities by any
such members of the Restricted Group. In connection with an underwritten
Requested Registration or Piggyback Registration, each member of the Restricted
Group whose Registrable Securities are covered by such Requested Registration or
Piggyback Registration will severally indemnify the underwriters, their officers
and directors and each other Person, if any, who controls such underwriters
within the meaning of the Securities Act, to the same extent as provided above
with respect to the indemnification of the Company.
(c) 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 the preceding paragraph (a) or (b) of this
Section 6, such Indemnified Party will, if a claim in respect thereof is to be
made against an Indemnifying Party pursuant to such paragraphs, 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 the preceding paragraphs
of this Section 6, 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, the Indemnifying Party shall be entitled to
participate in and to assume the defense thereof, 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; provided that the Indemnified Party may
participate in such defense at the Indemnified Party's expense. If the
Indemnifying Party is not entitled to, or elects not to, assume the defense of a
claim, it will not be obligated to pay the fees and expenses of more than one
counsel for the Indemnified Parties with respect to such claim, unless the
Indemnified Parties shall have been advised by counsel that representation of
any such Indemnified Parties by the same counsel would be inappropriate under
applicable standards of professional conduct due to actual or potential
differing interests between them, in which case such Indemnified Parties shall
have the right to select separate counsel the fees and expenses of which shall
be paid by the Indemnifying Party. No Indemnifying Party shall consent to entry
of any judgment or enter into any settlement without the consent of the
Indemnified Party, which consent will not be unreasonably withheld or delayed.
No Indemnifying Party shall be subject to any liability for any settlement made
without its consent, which consent shall not be unreasonably withheld or
delayed. The indemnification provided for under this Registration Rights
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
securities.
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17
(d) Contribution. If the indemnity and reimbursement
obligation provided for in any paragraph of this Section 6 is unavailable or
insufficient to hold harmless an Indemnified Party in respect of any Losses (or
actions or proceedings in respect thereof) referred to therein, then the
Indemnifying Party shall contribute to the amount paid or payable by the
Indemnified Party as a result of such Losses (or actions or proceedings in
respect thereof) in such proportion as is appropriate to reflect the relative
fault of the Indemnifying Party on the one hand and the Indemnified Party on the
other hand in connection with statements or omissions which resulted in such
Losses, as well as any other relevant equitable considerations, including the
relative benefits received in connection with the transaction. The relative
fault 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
Indemnifying Party or the Indemnified Party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The parties hereto agree that it would not be just
and equitable if contributions pursuant to this paragraph were to be determined
by pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in the first sentence of
this paragraph. The amount paid by an Indemnified Party as a result of the
Losses referred to in the first sentence of this paragraph shall be deemed to
include any legal and other expenses reasonably incurred by such Indemnified
Party in connection with investigating or defending any Loss which is the
subject of this paragraph.
No Indemnified Party guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from the Indemnifying Party if the Indemnifying Party was not
guilty of such fraudulent misrepresentation.
(e) Other Indemnification. Indemnification similar to that
specified in the preceding paragraphs of this Section 6 (with appropriate
modifications) shall be given by the Company and the applicable members of the
Restricted Group with respect to any required registration or other
qualification of securities under any federal or state law or regulation of any
governmental authority other than the Securities Act. The provisions of this
Section 6 shall be in addition to any other rights to indemnification or
contribution which an Indemnified Party may have pursuant to law, equity,
contract or otherwise.
(f) Indemnification Payments. 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 and when bills are received or
Losses are incurred.
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18
7. Covenants Relating to Rule 144. The Company will file
reports in compliance with the Exchange Act, will comply with all rules and
regulations of the Commission applicable in connection with the use of Rule 144
and will take such other actions and furnish the members of the Restricted Group
with such other information as the Agent may request in order to avail the
members of the Restricted Group of such rule or any other rule or regulation of
the Commission allowing the members of the Restricted Group to sell any
Registrable Securities without registration.
8. Other Registration Rights. (a) No Existing Agreements. The
Company represents and warrants to the Restricted Group that there is not in
effect on the date hereof any agreement by the Company pursuant to which any
holders of securities of the Company have a right to cause the Company to
register or qualify such securities under the Securities Act or any securities
or blue sky laws of any jurisdiction that would conflict or be inconsistent with
any provision of this Registration Rights Agreement.
(b) Future Agreements. The Company shall not hereafter agree
with the holders of any securities issued or to be issued by the Company to
register or qualify such securities under the Securities Act or any securities
or blue sky laws of any jurisdiction that would conflict or be inconsistent with
any provision of this Registration Rights Agreement.
9. Definitions. (a) Except as otherwise specifically
indicated, the following terms will have the following meanings for all purposes
of this Registration Rights Agreement:
"Agent" has the meaning ascribed to it in Section 11(d).
"BIL Entities" means, collectively, BIL (Far East Holdings)
Limited, a Hong Kong corporation, and BIL Securities (Offshore) Ltd., a New
Zealand corporation, or any of their respective permitted transferees and
assignees.
"Business Day" means a day other than Saturday, Sunday or any
other day on which banks located in the State of New York are authorized or
obligated to close.
"Commission" means the United States Securities and Exchange
Commission, or any successor governmental agency or authority.
"Common Stock" means shares of Common Stock, par value $.025
per share, of the Company, as constituted on the date hereof, and any stock into
which such Common Stock shall have been changed (including without limitation by
way of merger or
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19
consolidation) or any stock resulting from any reclassification of such Common
Stock.
"Company" has the meaning ascribed to it in the preamble.
"Cutback Registration" means any Requested Registration or
Piggyback Registration to be effected as an underwritten Public Offering in
which the Managing Underwriter with respect thereto advises the Company in
writing that, in its opinion, the number of securities requested to be included
in such registration (including securities of the Company which are not
Registrable Securities) exceed the number which can be sold in such offering
without a material reduction in the selling price anticipated to be received for
the securities to be sold in such Public Offering.
"DGCL" means the General Corporation Law of the State of
Delaware.
"Effective Registration" means, subject to the last sentence
of Section 1(e), a Requested Registration or a Piggyback Registration which
includes Registrable Securities, as the case may be, which (a) has been declared
or ordered effective in accordance with the rules of the Commission and (b) has
been kept effective for the period of time contemplated by Section 3(b).
Notwithstanding the foregoing, a Requested Registration that does not become
effective after it has been filed with the Commission solely by reason of any
member of the Restricted Group's refusal to proceed shall be deemed to be an
Effective Registration for purposes of this Registration Rights Agreement.
"Effective Time" means the time at which the Merger becomes
effective under the DGCL.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"Indemnified Party" means a party entitled to indemnity in
accordance with Section 6.
"Indemnifying Party" means a party obligated to provide
indemnity in accordance with Section 6.
"Inspectors" has the meaning ascribed to it in Section 3(j).
"Losses" has the meaning ascribed to it in Section 6(a).
"Managing Underwriter" means, with respect to any Public
Offering, the underwriter or underwriters managing such Public Offering.
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20
"Merger" has the meaning ascribed to it in the preamble.
"Merger Agreement" has the meaning ascribed to it in the
preamble.
"NASD" means the National Association of Securities Dealers.
"Notice of Piggyback Registration" has the meaning ascribed to
it in Section 2(a).
"Person" means any natural person, corporation, general
partnership, limited partnership, proprietorship, other business organization,
trust, union or association.
"Piggyback Registration" means any registration of securities
of the Company of the same class as the Registrable Securities under the
Securities Act (other than a registration (x) in respect of a dividend
reinvestment or similar plan for stockholders of the Company, (y) on Form S-4 or
Form S-8 promulgated by the Commission, or any similar or successor forms
thereto, or (z) solely with respect to convertible or exchangeable securities or
rights to purchase securities), whether for sale for the account of the Company
or for the account of any holder of securities of the Company (other than
Registrable Securities), including a registration by the Company under the
circumstances described in Section 1(e).
"Public Offering" means any offering of Common Stock to the
public, either on behalf of the Company or any of its securityholders, pursuant
to an effective registration statement under the Securities Act.
"Records" has the meaning ascribed to it in Section 3(j).
"Registrable Securities" means (i) the Shares and (ii) any
additional shares of Common Stock issued or distributed by way of a dividend,
stock split, merger, consolidation or other distribution in respect of the
Shares, or acquired by way of any rights offering or similar offering made in
respect of the Shares. As to any particular Registrable Securities, once issued
such securities shall cease to be Registrable Securities when (i) a registration
statement with respect to the sale of such securities shall have become
effective under the Securities Act and such securities shall have been disposed
of in accordance with such registration statement, (ii) they shall have been
distributed to the public pursuant to Rule 144 or all Registrable Securities
then owned by the Restricted Group can be sold in any three-month period
pursuant to Rule 144, (iii) they are transferred to or become owned by a Person
who is not a member of the Restricted Group or (iv) they shall have ceased to be
outstanding.
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21
"Registration Expenses" means all expenses incident to the
Company's performance of or compliance with its obligations under this
Registration Rights Agreement to effect the registration of Registrable
Securities in a Requested Registration or a Piggyback Registration, including,
without limitation, all registration, filing, securities exchange listing and
NASD fees, all registration, filing, qualification and other fees and expenses
of complying with securities or blue sky laws, all word processing, duplicating
and printing expenses, messenger and delivery expenses, the fees and
disbursements of counsel for the Company and for the Restricted Group and of the
Company's independent public accountants, including the expenses of any special
audits or "cold comfort" letters required by or incident to such performance and
compliance, any fees and disbursements of underwriters customarily paid by
issuers of securities; but excluding underwriting discounts and commissions and
transfer taxes, if any, in respect of Registrable Securities and the fees and
disbursements of any legal counsel retained by any member of the Restricted
Group, which shall be payable by the members of the Restricted Group.
"Registration Rights Agreement" means this Registration Rights
Agreement, as the same shall be amended from time to time.
"Requested Registration" means any registration of Registrable
Securities under the Securities Act effected in accordance with Section 1.
"Requisite Stockholders" has the meaning ascribed to it in
Section 11(d).
"Restricted Group" means (i) any Stockholder, (ii) any and all
Persons directly or indirectly controlled by or under common control with any
Stockholder, (iii) if such Stockholder is an individual, (a) any member of such
Stockholder's family (including any spouse, parent, sibling, child, grandchild
or other lineal descendant, including adoptive children), (b) the heirs,
executors, personal representatives and administrators of any of the foregoing
persons, (c) any trust established for the benefit of any of the foregoing
persons and (d) any charitable foundations established by any of the foregoing
persons, and (iv) any and all groups (within the meaning of Section 13(d)(3) of
the Exchange Act) of which any Stockholder or any Person directly or indirectly
controlling, controlled by or under common control with such Stockholder is a
member, other than any such group not acting for the purpose of acquiring,
holding or beneficially owning any Registrable Securities.
"Rule 144" means Rule 144 promulgated by the Commission under
the Securities Act, and any successor provision thereto.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
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22
"Shares" means, collectively, the shares of Common Stock
received by the Stockholders pursuant to the Merger Agreement.
"Stockholders" has the meaning ascribed to it in the preamble.
"Stockholders Agreement" has the meaning ascribed to it in the
preamble.
"Sub" has the meaning ascribed to it in the preamble.
"Target" has the meaning ascribed to it in the preamble.
"Warrant Holders" means the holders of the Warrants (the
"Warrants") issued pursuant to the Warrant Agreement, dated as of March 12,
1992, as amended, by and between the Company and Xxxx Xxxxxxx Mutual Life
Insurance Company.
"Warrant Shares" means the shares of Common Stock issuable to
the Warrant Holders pursuant to the Warrants.
(b) Unless the context of this Registration Rights Agreement
otherwise requires, (i) words of any gender include each other gender; (ii)
words using the singular or plural number also include the plural or singular
number, respectively; (iii) the terms "hereof," "herein," "hereby" and
derivative or similar words refer to this entire Registration Rights Agreement;
and (iv) the term "Section" refers to the specified Section of this Registration
Rights Agreement. Whenever this Registration Rights Agreement refers to a number
of days, such number shall refer to calendar days unless Business Days are
specified.
10. Termination. This Registration Rights Agreement shall
automatically terminate, and shall cease to be of any further force or effect,
upon the termination of the Merger Agreement in accordance with its terms.
11. Miscellaneous. (a) Notices. All notices, requests and
other communications hereunder must be in writing and will be deemed to have
been duly given only if delivered personally or by facsimile transmission or
mailed (first class postage prepaid) to the parties at the following addresses
or facsimile numbers:
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23
If to any Restricted Group member, to:
c/o Fuqua Capital Corporation
One Atlantic Center
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attn: J. Xxx Xxxxx
with a copy to:
Dow, Xxxxxx & Xxxxxxxxx
0000 Xxx Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, XX 00000-0000
Facsimile No.: (000) 000-0000
Attn: Xxxxxx X. X'Xxxxxxx, Esq.
If to the Company, to:
Xxxxxx-Field Health Products, Inc.
000 Xxxxx Xxxxx Xxxx
Xxxxxxxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
with a copy to:
Milbank, Tweed, Xxxxxx & XxXxxx
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxxx X. Xxxxx, Esq.
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section, be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile number as
provided in this Section, be deemed given upon receipt, and (iii) if delivered
by mail in the manner described above to the address as provided in this
Section, be deemed given upon receipt (in each case regardless of whether such
notice, request or other communication is received by any other Person to whom a
copy of such notice is to be delivered pursuant to this Section). Any party from
time to time may change its address, facsimile number or other information for
the purpose of notices to that party by giving notice specifying such change to
the other parties hereto.
(b) Entire Agreement. This Registration Rights Agreement
supersedes all prior discussions and agreements between
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24
the parties with respect to the subject matter hereof, and contains the sole and
entire agreement between the parties hereto with respect to the subject matter
hereof.
(c) Amendment. This Registration Rights Agreement may be
amended, supplemented or modified only by a written instrument (which may be
executed in any number of counterparts) duly executed by or on behalf of each of
the Company and members of the Restricted Group owning a majority of the
Registrable Securities then outstanding.
(d) Irrevocable Appointment of Agent. By the execution and
delivery of this Registration Rights Agreement, including counterparts hereof,
each member of the Restricted Group hereby irrevocably constitutes and appoints
J. Xxx Xxxxx as the true and lawful agent and attorney-in-fact of each such
member of the Restricted Group in the various capacities provided for herein
(such individual, or such other individual as the holders of a majority of the
Registrable Securities then outstanding (the "Requisite Stockholders") shall
designate in writing to the Company from time to time, is herein referred to as
the "Agent"), and to do or refrain from doing all such further acts and things,
and to execute all such documents, as the Agent shall deem necessary or
appropriate in connection with this Registration Rights Agreement. Unless there
is no existing person who has been designated to act as Agent by the Requisite
Stockholders, all rights of the Restricted Group under this Registration Rights
Agreement shall be exercised by the members of the Restricted Group only through
or by the Agent in his or her capacity as agent of the members of the Restricted
Group hereunder, and the Company shall not be required to take directions from
any other member of the Restricted Group for so long as such Agent continues to
serve and has not otherwise been removed as Agent pursuant to notice to the
Company from the Requisite Stockholders. If at any time no person is serving as
Agent, the Company shall not be required to take action except upon the
direction of the Requisite Stockholders.
(e) Waiver. Any term or condition of this Registration Rights
Agreement may be waived at any time by the party that is entitled to the benefit
thereof, but no such waiver shall be effective unless set forth in a written
instrument duly executed by or on behalf of the party waiving such term or
condition. No waiver by any party of any term or condition of this Registration
Rights Agreement, in any one or more instances, shall be deemed to be or
construed as a waiver of the same term or condition of this Registration Rights
Agreement on any future occasion.
(f) No Third Party Beneficiary. The terms and provisions of
this Registration Rights Agreement are intended solely for the benefit of each
party hereto and it is not the intention of the parties to confer third-party
beneficiary rights
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25
upon any other Person other than any Person entitled to indemnity under Section
6.
(g) No Assignment; Binding Effect. Neither this Registration
Rights Agreement nor any right, interest or obligation hereunder may be assigned
by any party hereto without the prior written consent of the other party hereto
and any attempt to do so will be void; provided that any member of the
Restricted Group may assign such member's rights hereunder with respect to any
Registrable Securities transferred to another member of the Restricted Group or,
if such member is a natural person, to his or her heirs and legal
representatives. Subject to the foregoing, this Registration Rights Agreement is
binding upon, inures to the benefit of and is enforceable by the parties hereto
and their respective successors and assigns.
(h) Headings. The headings used in this Registration Rights
Agreement have been inserted for convenience of reference only and do not define
or limit the provisions hereof.
(i) Invalid Provisions. If any provision of this Registration
Rights Agreement is held to be illegal, invalid or unenforceable under any
present or future law, and if the rights or obligations of any party hereto
under this Registration Rights Agreement will not be materially and adversely
affected thereby, (i) such provision will be fully severable, (ii) this
Registration Rights Agreement will be construed and enforced as if such illegal,
invalid or unenforceable provision had never comprised a part hereof and (iii)
the remaining provisions of this Registration Rights Agreement will remain in
full force and effect and will not be affected by the illegal, invalid or
unenforceable provision or by its severance herefrom.
(j) Remedies; Legal Expenses. Except as otherwise expressly
provided for herein, no remedy conferred by any of the specific provisions of
this Registration Rights Agreement is intended to be exclusive of any other
remedy, and each and every remedy shall be cumulative and shall be in addition
to every other remedy given hereunder or now or hereafter existing at law or in
equity or by statute or otherwise. The election of any one or more remedies by
any party hereto shall not constitute a waiver by any such party of the right to
pursue any other available remedies.
Damages in the event of breach of this Registration Rights
Agreement by a party hereto would be difficult, if not impossible, to ascertain,
and it is therefore agreed that each such party, in addition to and without
limiting any other remedy or right it may have, will have the right to an
injunction or other equitable relief in any court of competent jurisdiction,
enjoining any such breach, and enforcing specifically the terms and provisions
hereof and the Company and each member of the Restricted Group each hereby
waives any and all defenses it may
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26
have on the ground of lack of jurisdiction or competence of the court to grant
such an injunction or other equitable relief. The existence of this right will
not preclude any such party from pursuing any other rights and remedies at law
or in equity which such party may have.
The parties hereto agree that, in the event that any party to
this Registration Rights Agreement shall bring any legal action or proceeding to
enforce or to seek damages or other relief arising from an alleged breach of any
term or provision of this Registration Rights Agreement by the other party, the
prevailing party in any such action or proceeding shall be entitled to an award
of, and the other party to such action or proceeding shall pay, the reasonable
fees and expenses of legal counsel to the prevailing party.
(k) Governing Law. This Registration Rights Agreement shall be
governed by and construed in accordance with the laws of the State of New York
applicable to a contract executed and performed in such State, without giving
effect to the conflicts of laws principles thereof.
(l) Counterparts. This Registration Rights Agreement may be
executed in any number of counterparts, each of which will be deemed an
original, but all of which together will constitute one and the same instrument.
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27
IN WITNESS WHEREOF, each party hereto has signed this
Registration Rights Agreement, or caused this Registration Rights Agreement to
be signed on its behalf by its duly authorized officer or agent, as of the date
first above written.
XXXXXX-FIELD HEALTH PRODUCTS, INC.
By: ____________________________
Name:
Title:
----------------------------
X. X. XXXXX
----------------------------
J. XXX XXXXX
XXXXX HOLDINGS - I, L.P.
By: XXXXX HOLDINGS, INC., its
General Partner
By: _______________________
Name: J. Xxx Xxxxx
Title: President
THE XXXXXXXX XXXXXXX XXXXX TRUST
By: _______________________
Name: X. X. Xxxxx
Title: Trustee
THE XXXXXX XXXXXX XXXXX TRUST
By: ____________________________
Name: X. X. Xxxxx
Title: Trustee
THE X. X. XXXXX FOUNDATION, INC.
By: ____________________________
Name: X. X. Xxxxx
Title: Chairman, President
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