REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is by and between
TRINITY MEDICAL GROUP USA, INC., a Florida Corporation (the "Company"), and
___________________________ (the "Holder") dated as of this _____ day of ______,
2000.
W I T N E S S E T H:
WHEREAS, the Company has issued 100 shares of company Series A
Preferred Stock, no par value (collectively "the Units"), each share of Series A
Preferred Stock is convertible at the Company's option to 10 shares of common
stock, par value $0.01, and a non-callable common stock purchase warrant
("Warrant"), designated "A Warrants" purchased pursuant to the Private Placement
Memorandum, dated June __, 2000; and
WHEREAS, the Company desires to grant to the Holder certain
registration rights in respect of the issuance or resale of the Series A
Preferred Shares.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
ARTICLE ONE
Registration Rights Agreement
SECTION 1.1 Registration Rights Available. The Company agrees to
provide Holder with respect to the shares of Series A Preferred Shares, pursuant
to the Private Placement Memorandum, dated June 21, 2000 and any other
securities issued or issuable at any time or from time to time in respect of the
shares of Series A Preferred Shares upon a stock split, stock dividend,
recapitalization or other similar event involving the Company (collectively, the
"Securities"): one demand secondary offering by means registration pursuant to
the Securities Act of 1933, as amended ("Securities Act"), subject to the
provisions of this Agreement (the demand registration right is referred to
herein as the "Registration Right").
SECTION 1.2 Demand Registration. With respect to Holder's right to one
demand registration pursuant to Section 1.1 (a), the parties agree as follows:
(a) The Company shall promptly, and in any event within 90 days of
receiving notice from the Holders, use its best efforts to file with the
Securities and Exchange Commission (the "Commission") and cause to become
effective, a registration statement on appropriate form relating to the offer
and sale of the Series A Preferred Shares by Holder. The Company shall use its
best efforts to file a registration statement for the demand secondary offering
requested under Section 1.1. The Company agrees to provide Holder with notice of
the filing of such registration and of the filing of any amendments or
supplements thereto.
(b) The Company agrees to maintain such registration statement in
effect for the maximum period allowable under the regulations promulgated by the
Commission then in effect.
(c) In any offering pursuant to this Section that becomes effective in
which the Holder participates, the Company shall use its best efforts to keep
available to the Holder a prospectus meeting the requirements of Section
10(a)(3) of the Securities Act and shall file all amendments and supplements
under the Securities Act required for that purpose. In any offering pursuant to
this Section the Company will, as soon as practicable, use its best efforts to
effect such registration and use its best efforts to effect such qualification
and compliance as may be so requested and as would permit or facilitate the
distribution of such Securities, including, without limitation, registration
under the Securities Act, appropriate qualifications under applicable blue-sky
or other state securities
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laws, appropriate compliance with any other governmental requirements and
listing on a national securities exchange on which the Common Stock is then
listed or inter-dealer quotation system.
SECTION 1.3 Registration Procedures. With respect to the Registration
Right, the following provisions shall apply:
(a) Holder shall be obligated to furnish to the Company and the
underwriters (if any) such information regarding the Securities and the proposed
manner of distribution of the Securities as the Company and the underwriters (if
any) may request in writing and as shall be required in connection with any
registration, qualification or compliance referred to herein and shall otherwise
cooperate with the Company and the underwriters (if any) in connection with such
registration, qualification or compliance.
(b) With a view to making available the benefits of certain rules and
regulations of the Commission which may at any time permit the sale of the
Restricted Securities (used herein as defined in Rule 144 under the Securities
Act) to the public without registration, the Company agrees to use its best
lawful efforts to:
(i) Make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act, at all
times during which the Company is subject to the reporting requirements
of the Securities Exchange Act of 1934, as amended (the "Exchange
Act");
(ii) File with the Commission in a timely manner all reports
and other documents required of the Company under the Securities Act
and the Exchange Act (at all times during which the Company is subject
to such reporting requirements); and
(iii) So long as Holder owns any Restricted Securities, to
furnish to Holder forthwith upon request a written statement by the
Company as to its compliance with the reporting requirements of said
Rule 144 and with regard to the Securities Act and the Exchange Act (at
all times during which the Company is subject to such reporting
requirements), a copy of the most recent annual or quarterly report of
the Company, and such other reports and documents of the Company and
other information in the possession of or reasonably obtainable by the
Company as Holder may reasonably request in availing themselves of any
rule or regulation of the Commission allowing Holder to sell any such
securities without registration.
(c) The Company agrees that it will furnish to Holder such number of
prospectuses, offering circulars or other documents incident to any
registration, qualification or compliance referred to herein as provided or, if
not otherwise provided, as the Holder from time to time may reasonably request.
(d) Except for the legal fees of Holder and any sales commissions that
may be paid by Holder, all expenses of any registrations permitted pursuant to
this Agreement and of all other offerings by the Company (including, but not
limited to, the expenses of any qualifications under the blue-sky or other state
securities laws and compliance with governmental requirements of preparing and
filing any post-effective amendments required for the lawful distribution of the
Securities to the public in connection with such registration, of supplying
prospectuses, offering circulars or other documents) will be paid by the
Company.
(e) The Registration Right of this Agreement, subject to the terms and
conditions hereof, shall be available to any subsequent holder of the Securities
owned by Holder. Each subsequent holder entitled to the Registration Right under
this Agreement shall be bound by the terms and subject to the obligations of
this Agreement as though it were an original signatory hereto.
ARTICLE TWO
Indemnification
SECTION 2.1 Indemnification by the Company. In the event of any
registration of the Securities of the Company under the Securities Act, the
Company agrees to indemnity and hold harmless Holder and each other person who
participates as an underwriter in the offering or sale of such securities
against any and all claims, demands, losses, costs, expenses, obligations,
liabilities, joint or several, damages, recoveries and deficiencies, including
interest, penalties and attorneys' fees (collectively, "Claims"), to which
Holder or underwriter may
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become subject under the Securities Act or otherwise, insofar as such Claims (or
actions or proceedings, whether commenced or threatened, in respect thereof)
arise out of or are based on any untrue statement or alleged untrue statement of
any material fact contained in any registration statement under which Holder's
Securities were registered under the Securities 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 Holder and each such
underwriter for any legal or any other expenses reasonably incurred by them in
connection with investigating or defending any such Claim (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 Claim (or action or proceeding in
respect thereof) or expense arises out of or is based on 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 on and in conformity
with written information furnished to the Company through an instrument duly
executed by Holder specifically stating that it is for use in the preparation
thereof. Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of Holder or any such underwriter and shall
survive the transfer of the Securities by Holder.
SECTION 2.2 Indemnification by Holder. The Company may require, as a
condition to including the Securities in any registration statement filed
pursuant to this Agreement, that the Company shall have received an undertaking
satisfactory to it from Holder, to indemnify and hold harmless (in the same
manner and to the same extent as set forth in Section 2.1) the Company, each
director of the Company, each officer of the Company and each other person, if
any, who controls the Company, within the meaning of the Securities Act, with
respect to any statement or alleged statement in or omission or alleged omission
from such registration statement, any preliminary prospectus contained therein,
or any amendment or supplement thereto, if such statement or alleged statement
or omission or alleged omission was made in reliance on and in conformity with
written information furnished to the Company through an instrument duly executed
by Holder specifically stating that it is for use in the preparation of such
registration statement, preliminary prospectus, final prospectus, summary
prospectus, amendment or supplement. Notwithstanding the foregoing, the maximum
liability hereunder which any holder shall be required to suffer shall be
limited to the net proceeds to such Holder from the Securities sold by such
Holder in the offering. 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 or controlling person and shall survive the transfer of the
Securities by Holder.
SECTION 2.3 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 this Article Two, such indemnified party will,
if a claim in respect thereof is to be made against 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 this Article Two, 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 indemnifying
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 it 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 that 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 in respect of such Claim.
SECTION 2.4 Indemnification Payments. The indemnification required by
this Article 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.
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ARTICLE THREE
Miscellaneous
SECTION 3.1 Consent to Amendments. Except as otherwise expressly
provided herein, the provisions of this Agreement may be amended or waived only
by the written agreement of the Company and the Holder of 51% or more of the
shares of Common Stock and shall be effective only to the extent specifically
set forth in such writing.
SECTION 3.2 Term of the Agreement. This Agreement shall terminate with
respect to Holder on the earlier to occur of (i) the Securities having been
registered as provided in Article One or (ii) September 15, 2000.
SECTION 3.3 Successors and Assigns. Except as otherwise expressly
provided herein, all covenants and agreements contained in this Agreement by or
on behalf of any of the parties hereto are transferable and will bind and inure
to the benefit of the respective successors and assigns of the parties hereto,
but only if so expressed in writing.
SECTION 3.4 Severability. Whenever possible, each provision of this
Agreement will be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Agreement is held to be
prohibited by or invalid under applicable law, such provision will be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of this Agreement.
SECTION 3.5 Delays or Omissions. No failure to exercise or delay in the
exercise of any right, power or remedy accruing to Holder on any breach or
default of the Company under this Agreement shall impair any such right, power
or remedy nor shall it be construed to be a waiver of any such breach or
default.
SECTION 3.6 Remedies Cumulative. All remedies under this Agreement, or
by law or otherwise afforded to any party hereto shall be cumulative and not
alternative.
SECTION 3.7 Descriptive Headings. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part of this
Agreement. Unless clearly denoted otherwise, any reference to Articles or
Sections contained herein shall be to the Articles or Sections of this
Agreement.
SECTION 3.8 Notices. Any notices required or permitted to be sent
hereunder shall be delivered personally or mailed, certified mail, return
receipt requested, to the following addresses, and shall be deemed to have been
received on the day of personal delivery or within three business days after
deposit in the mail, postage prepaid:
If to the Company, to:
James Namnath
Trinity Medical Group USA, Inc.
55 Shaver Street
Suite 320
San Rafael, CA 94901
If to Holder, to:
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SECTION 3.9 Governing Law. The validity, meaning and effect of this
Agreement shall be determined in accordance with the laws of the State of Nevada
applicable to contracts made and to be performed in that state.
SECTION 3.10 Final Agreement. This Agreement, together with those
documents expressly referred to herein, constitutes the final agreement of the
parties concerning the matters referred to herein, and supersedes all prior
agreements and understandings.
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SECTION 3.11 Execution in Counterparts. This Agreement may be executed
in any number of counterparts, each of which when so executed and delivered
shall be deemed an original, and such counterparts together shall constitute one
instrument.
The parties hereto have executed this Agreement as of the date first
set forth above.
TRINITY MEDICAL GROUP USA, INC.
By: /s/ James Namnath Title Chief Executive Officer
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James Namnath, Ph.D.
Witness by: /s/ Elizabeth Namnath Title Secretary
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Elizabeth Namnath
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