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EXHIBIT 4.9
REGISTRATION RIGHTS AGREEMENT
Agreement dated the 24th day of September, 1997, by and between Biofield Corp.,
a Delaware Corporation (the "Company"), and Compass Group International
Incorporated ("Holder").
WHEREAS, on the date hereof, in consideration of consulting services rendered by
Holder to the Company, the Company issued to Holder 25,000 shares of the
Company's common stock, par value $.001 per share ("Common Stock") and agreed to
enter into this Registration Rights Agreement, providing Holder with certain
registration rights under the securities laws, and the Company desires that
Holder have such registration rights;
NOW, THEREFORE, in consideration of the mutual agreements contained herein and
other good and valuable consideration, the parties hereby agree as follows:
1. If at any time the Company shall determine to file any registration
statement, or any post-effective amendment to a registration statement, under
the Securities Act of 1933 (the "Act"), covering any securities of the Company
(other than registration statements on Form S-8 or S-4 or any other form not
generally available for the registration of securities for sale to the public)
for its own account or for the account of others, the Company shall advise
Holder, by written notice at least thirty days prior to any filing, and shall,
upon the request of the Holder, and at the expense of the Company, include in
any such registration statement, or any such post-effective amendment to a
registration statement, all of the Registrable Securities (as hereinafter
defined) that Holder has requested in writing to be registered. As used in this
Agreement, Registrable Securities shall mean (i) the Common Stock purchased or
owned by the Holder, and (ii) any Common Stock of the Company issued as (or
issuable upon the conversion or exercise of any convertible security, options,
warrant right or other security which is issued as) a dividend or other
distribution with respect to, or in exchange for or in replacement of such
Common Stock, excluding in all cases, however, any Registrable Securities sold
by Holder in a transaction in which his registration rights under this Agreement
are not assigned. All costs and expenses of such registration statement shall be
borne by the Company, except underwriting discounts or commissions applicable to
any of the securities sold by them.
(a) The Company shall supply prospectuses and such other
documents as Holder may request in order to facilitate the public sale or other
disposition of the Registrable Securities, use its best efforts to register and
qualify any of the Registrable Securities for sale in such reasonable number of
states as Holder designates and do any and all other acts and things which may
be necessary or desirable to enable Holder to consummate the public sale or
other disposition of the Registrable Securities. The Company agrees to maintain
such registration statement or post-effective amendment with respect to the
Registrable Securities current under the Act as to the
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Registrable Securities for a period of at least six months, and an additional
three months upon written request of Holder.
(b) The Company shall also furnish indemnification in the
manner provided in Section 2 hereof, except that the maximum amount of such
indemnification shall be limited to the net amount of proceeds received by
Holder from the sale of the Registrable Securities. Holder shall furnish
information and indemnification as set forth in Section 2 hereof, except that
the maximum amount which may be recovered from Holder shall be limited to the
net amount of proceeds received by Holder from the sale of the Registrable
Securities.
(c) In connection with any offering involving an underwriting
of shares of the Company's capital stock, the Company shall not be required
under Section 1 hereof to include any of the Holders' securities in such
underwriting unless they accept the terms of the underwriting as agreed upon
between the Company and the underwriters selected by it (or by other persons
entitled to select the underwriters), and then only in such quantity as the
underwriters determine in their sole discretion will not jeopardize the success
of the offering by the Company. If the total amount of securities, including
Registrable Securities, requested by stockholders to be included in such
offering exceeds the amount of securities sold other than by the Company that
the underwriters determine in their sole discretion is compatible with the
success of the offering, then the Company shall be required to include in the
offering only that number of such securities, including Registrable Securities,
which the underwriters determine in their sole discretion will not jeopardize
the success of the offering (the securities so included to be apportioned pro
rata among the selling stockholders according to the total amount of securities
entitled to be included therein owned by each selling stockholder or in such
other proportions as shall mutually be agreed to by such selling stockholders).
2. (a) Whenever pursuant to Section 1, a registration statement
relating to any of the Registrable Securities is filed under the Act, amended or
supplemented, the Company shall, to the extent permitted by law, indemnify and
hold harmless Holder, and each person, if any, who controls (within the meaning
of the Act) Holder, and each underwriter (within the meaning of the Act) of such
securities and each person, if any, who controls (within the meaning of the Act)
any such underwriter, against such losses, claims, damages, liabilities or
actions, joint or several, to which Holder, any such controlling person or any
such underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages, liabilities or actions 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 or any preliminary
prospectus or final prospectus constituting a part thereof or any amendment or
supplement thereto, or arise out of or are based upon the omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and shall reimburse Holder and each such
controlling person and underwriter for any legal or other expenses reasonably
incurred by Holder or such controlling person or underwriter in connection with
investigating or defending any such losses, claims, damages, liabilities or
actions; provided, however, that the Company will not be liable in any such case
to the extent that any such losses, claims, damages, liabilities or actions
arise out of or are based upon an untrue statement or alleged untrue statement
or omission or alleged omission made
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in said registration statement, said preliminary prospectus, said final
prospectus or said amendment or supplement in reliance upon and in conformity
with written information furnished by Holder or any other underwriter, for use
in the preparation thereof.
(b) Holder shall indemnify and hold harmless the Company, each
of its directors, each of its officers and each person, if any, who controls the
Company within the meaning of the Act against any losses, claims, damages,
liabilities or actions, to which the Company or any such director, officer or
controlling person may become subject, under the Act or otherwise, insofar as
such losses, claims, damages, liabilities or actions arise out of or are based
upon any untrue or alleged untrue statement of any preliminary prospectus, said
final prospectus, or said amendment or supplement, or arise out of or are based
upon the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statement therein not
misleading in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in said registration statement, said preliminary prospectus, said final
prospectus or said amendment or supplement in reliance upon and in conformity
with written information furnished by Holder for use in the preparation thereof;
and shall reimburse the Company or any such director, officer or controlling
person for any legal or other expenses reasonably incurred by them in connection
with investigating or defending any such losses, claims, damages, liabilities or
actions.
(c) Promptly after receipt by an indemnified party under this
Section 2 of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against any indemnifying
party, give the indemnifying party notice of the commencement thereof; but the
omission to so notify the indemnifying party shall not relieve it from any
liability which it may have to an indemnified party otherwise then under this
Section 2.
(d) In case any such action is brought against any indemnified
party, and it notifies an indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate in, and, to the extent that
it may wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party, the indemnifying party shall not be liable to such
indemnified party under this Section 2 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof, other than reasonable costs of investigation.
(e) To the extent any indemnification by an indemnifying party
is prohibited or limited by law, the indemnifying party agrees to make the
maximum contribution with respect to any amounts for which it would otherwise be
liable under this Section 2 to the extent permitted by law, provided that (i) no
contribution shall be made under circumstances where the indemnifying party
would not have been liable for indemnification under the fault standards set
forth in this Section 2, (ii) no seller of Registrable Securities guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any seller of Registrable Securities who
was not guilty of such fraudulent misrepresentation and (iii) contribution
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by Holder shall be limited in amount to the net amount of proceeds received by
him from the sale of the Registrable Securities.
3. This Agreement may only be amended in writing signed by both
parties.
4. This Agreement shall be binding upon the Company, its successors and
assigns, and shall inure to the benefit of the Holder, its successors and
assigns.
5. All notices, requested, demand and other communications hereunder
must be in writing and shall be deemed to have been given if delivered by hand,
facsimile or mailed by certified mail, return receipt requested, postage
prepaid, and addressed to the respective parties hereto at their addresses as
follows or at such other address as a party hereto may specify by notice in the
manner provided herein to the other parties:
If to the Corporation:
Biofield Corp.
0000 Xxxxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
With a copy to:
Squadron, Ellenoff, Plesent & Xxxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxx, Esq.
If to Holder:
Compass Group International Incorporated
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxxx, President
6. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York applicable to contracts made and to be
performed therein.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the date first above written.
BIOFIELD CORP.
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
Title: Executive Vice President
COMPASS GROUP INTERNATIONAL
INCORPORATED
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: President
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