EXECUTION COPY
REGISTRATION RIGHTS
AGREEMENT dated as of September 9, 1997,
among BONE, MUSCLE AND JOINT, INC., a
Delaware corporation (the "Company"),
HEALTH CARE SERVICES-BMJ, LLC, a
Delaware limited liability company
("HCS-BMJ") and H&Q SERV*IS VENTURES
L.P., a Delaware limited partnership
(collectively with HCS-BMJ and with any
successors, or permitted assigns or
transferees, the "Holders").
The Holders own or have the right to purchase or otherwise
acquire shares of the Common Stock, $.001 par value (the "Common Stock"), of the
Company. The Company and the Holders deem it to be in their respective best
interests to set forth the rights of the Holders in connection with public
offerings and sales of the Common Stock. Execution and delivery of this
Agreement is a condition precedent to the consummation of the transactions
contemplated by the Purchase Agreement (hereinafter defined).
In consideration of the premises and mutual covenants and
obligations hereinafter set forth, the parties hereto hereby agree as follows:
SECTION 1. Definitions. As used in this Agreement, the following terms
shall have the following meanings:
"Commission" shall mean the Securities and Exchange Commission
or any other Federal agency at the time administering the Securities Act.
"Exchange Act" shall mean the Securities Exchange Act of 1934
or any successor Federal statute, and the rules and regulations of the
Commission promulgated thereunder, all as the same shall be in effect from time
to time.
"Holders" shall have the meaning set forth in the caption
hereof and shall include the Holders that agree in writing to be treated as
Holders pursuant to this Agreement and to be bound by the terms and comply with
all applicable provisions hereof.
"Other Shares" shall mean at any time those shares of Common
Stock that do not constitute Primary Shares or Registrable Shares.
"Primary Shares" shall mean at any time the authorized but
unissued shares of Common Stock or shares of Common Stock held by the Company in
its treasury.
"Purchase Agreement" shall mean the Convertible Debenture
Purchase Agreement, dated as of the date hereof, among the Company, the Holders
and the other purchasers named therein, as such agreement may be amended,
modified or otherwise supplemented from time to time.
"Registrable Shares" shall mean the shares of Common Stock
held by the Holders that constitute Restricted Shares.
"Registration Date" shall mean the date upon which the
registration statement pursuant to which the Company shall have initially
registered shares of Common Stock under the Securities Act for sale to the
public shall have been declared effective.
"Restricted Shares" shall mean the shares of Common Stock or
any other securities which by their terms are exercisable or exchangeable for or
convertible into Common Stock and any securities received in respect thereof,
which are held by the Holders and which have not theretofore been sold to the
public pursuant to a registration statement under the Securities Act or pursuant
to Rule 144.
"Rule 144" shall mean Rule 144 promulgated under the
Securities Act or any successor rule thereto or any complementary rule thereto
(such as Rule 144A).
"Securities Act" shall mean the Securities Act of 1933, as
amended, or any successor Federal statute, and the rules and regulations of the
Commission promulgated thereunder, all as the same shall be in effect from time
to time.
"Senior Debt" shall have the meaning specified in Section 5.1
of the Purchase Agreement.
"Senior Debt Shares" shall mean at any time those shares of
Common Stock held by any holder of Senior Debt of the Company that do not
constitute Primary Shares or Registrable Shares.
"Transfer" shall mean any disposition of any Restricted Shares
or of any interest therein that would constitute a sale thereof within the
meaning of the Securities Act other than any such disposition pursuant to an
effective registration statement under the Securities Act and complying with all
applicable state securities and "blue sky" laws.
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"Venture Capitalists" means ▇▇▇▇▇▇ ▇▇▇▇▇▇ and those venture
capital firms that have acquired, prior to the date hereof, and may acquire, at
any time hereafter, securities of the Company and in connection with such
acquisition have obtained or may obtain registration rights.
"Venture Capital Shares" means the shares of Common Stock,
which are held (or may be acquired upon the conversion or exercise of
outstanding securities) by a Venture Capitalist and which have not theretofore
been sold to the public pursuant to a registration statement under the
Securities Act or pursuant to Rule 144.
SECTION 2. Required Registration. At any time after the date which is
six months after the consummation of the initial public offering of the Common
Stock, if the Company shall be requested by in excess of thirty percent (30%) in
interest of the Holders to effect the registration under the Securities Act of
Registrable Shares, then the Company shall, within 10 days of such request,
deliver a written notice of such proposed registration to all Holders of
outstanding Registrable Shares and shall offer to include in such proposed
registration any Registrable Shares requested to be included in such proposed
registration by the Holders of Registrable Shares who or which shall respond in
writing to the Company's notice within 15 days after delivery thereof. The
Company shall promptly thereafter use its best efforts to effect such
registration under the Securities Act of the Registrable Shares which the
Company has been so requested to register; provided, however, that the Company
shall not be obligated to effect any registration under the Securities Act
except in accordance with the following provisions:
(a) the Company shall not be obligated to use its best efforts
to file and cause to become effective (i) more than one (1)
registration statement initiated pursuant to this Section 2 pursuant to
which all of the Registrable Shares requested to be included therein by
the Holders have been effectively sold thereunder or (ii) any
registration statement during any period in which any other
registration statement (other than on Form S-4 or Form S-8 promulgated
under the Securities Act or any successor forms thereto) pursuant to
which Primary Shares are to be or were sold has been filed and not
withdrawn or has been declared effective within the prior 90 days;
(b) the Company may delay the filing or effectiveness of any
registration statement for a period of up to 180 days after the date of
a request for registration pursuant to this Section 2 if at the time of
such request (i) the Company is engaged, or has fixed plans to engage
within 180 days of the time of such request, in a firm commitment
underwritten public offering of Primary Shares in which the
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holders of Registrable Shares may include Registrable Shares pursuant
to Section 3 or (ii) the Company reasonably determines that such
registration and offering would interfere with any material transaction
involving the Company, as approved by the Board of Directors (as used
herein, "material transaction" shall mean any transaction which would
require a supplemental filing to a quarterly report filed under Form
8-K with the Commission), provided that the Company may only so delay
the filing or effectiveness of a registration statement once pursuant
to clause (i) above and once pursuant to clause (ii) above; and
(c) with respect to any registration pursuant to this Section
2, the Company may include in such registration any Primary Shares or
Other Shares; provided, however, that, in such case, such registration
shall not be treated as a registration initiated pursuant to this
Section 2 if Primary Shares are in fact sold pursuant to such
Registration Statement; provided further, however, that if the managing
underwriter advises the Company that the inclusion of all Registrable
Shares, Primary Shares and Other Shares proposed to be included in such
registration would interfere with the successful marketing (including
pricing) of the Registrable Shares proposed to be included in such
registration, then (i) such registration shall be treated as a
registration initiated pursuant to this Section 2 if no Primary Shares
are in fact sold pursuant to such Registration Statement and (ii) the
number of Registrable Shares, Primary Shares and/or Other Shares
proposed to be included in such registration shall be included in the
following order:
(i) first, the Registrable Shares requested to be
included in such registration by the Holders (pro
rata based on the number of Restricted Shares held
by all Holders requesting inclusion of Registrable
Shares in such registration);
(ii) second, the Primary Shares; and
(iii) third, the Other Shares, in such proportion as
shall be determined by the Company.
SECTION 3. Piggyback Registration. If, at any time during the period
beginning on the date hereof and ending on the earlier to occur of (a) September
9, 2007, and (b) five (5) years after the effective date of the initial public
offering of the Company's Common Stock, the Company proposes for any reason to
register Primary Shares, Senior Lender Shares, Venture Capital Shares or Other
Shares under the Securities Act (other than on Form S-4 or Form S-8 promulgated
under the Securities Act or any successor forms thereto) (other than in
connection with an initial public offering of the Company's Common Stock
consummated prior to February 28, 1998), it shall promptly give written
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notice to all holders of outstanding Registrable Shares of its intention so to
register the Primary Shares, Senior Lender Shares or Other Shares and, upon the
written request, given within 30 days after delivery of any such notice by the
Company, of the holders of Registrable Shares to include in such registration
Registrable Shares held by such holders (which request shall specify the number
of Registrable Shares proposed to be included in such registration), the Company
shall use its best efforts to cause all such Registrable Shares to be included
in such registration on the same terms and conditions as the securities
otherwise being sold in such registration; provided, however, that if the
managing underwriter advises the Company that the inclusion of all such
Registrable Shares, Senior Lender Shares, Venture Capital Shares or Other Shares
proposed to be included in such registration would interfere with the successful
marketing (including pricing) of Primary Shares proposed to be registered by the
Company, then the number of Primary Shares, Registrable Shares, Venture Capital
Shares and Other Shares proposed to be included in such registration shall be
included in the following order:
(i) first, the Primary Shares;
(ii) second, the Venture Capital Shares requested to be
included in such registration by the Venture
Capitalists and the Registrable Shares requested to
be included in such registration by the Holders
(pro rata based on the number of Venture Capital
Shares and Registrable Shares held by all Venture
Capitalists and Holders requesting inclusion of
Venture Capital Shares and Registrable Shares in
such registration);
(iii) third, the Senior Lender Shares held by HCFP
Funding, Inc. ("HCFP") and requested by HCFP to be
included in such registration (pro rata based on
the number of Restricted Shares held by HCFP and
its permitted assignees requesting inclusion of
Registrable Shares in such registration); and
(iv) fourth, the Senior Debt Shares held by holders of
Senior Debt (other than HCFP) requested by such
holders to be included in such registration (pro
rata based on the number of Restricted Shares held
by all such holders requesting inclusion of
Registrable Shares in such registration); and
(v) fifth, the Other Shares (other than already
included herein) in such proportion as shall be
determined by the Company.
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SECTION 4. Registrations on Form S-3. Anything contained in Section 2
to the contrary notwithstanding, at such time as the Company shall have
qualified for the use of Form S-3 promulgated under the Securities Act or any
successor form thereto, the holders of thirty percent (30%) of the Registrable
Shares shall have the right to request in writing no more than two registrations
on Form S-3 per year, or such successor form, of Registrable Shares held by them
(the Company to bear the costs of such registrations), which request or requests
shall (i) specify the number of Registrable Shares intended to be sold or
disposed of, (ii) state the intended method of disposition of such Registrable
Shares and (iii) relate to Registrable Shares having an anticipated aggregate
offering price of at least $1,000,000. A requested registration on Form S-3, or
any such successor form, in compliance with this Section 4 shall not count as a
registration statement initiated pursuant to Section 2 but shall otherwise be
treated as a registration initiated pursuant to Section 2 and shall, except as
otherwise expressly provided in this Section 4, be subject to Section 2.
SECTION 5. Condition to Registration Obligations. The Corporation shall
not be obligated to effect the registration of the Registrable Shares pursuant
to Sections 2, 3 or 4 unless each of the Holders electing to participate in such
registration executes a power of attorney, custody arrangement and other
documents which are customary in such transactions, reasonably required by the
managing underwriter thereof prior to the filing of the registration statement
and executed in substantially similar form by all other selling securityholders
participating in such offering.
SECTION 6. Holdback Agreement. If the Company at any time shall
register shares of Common Stock under the Securities Act (including any
registration pursuant to Sections 2, 3 or 4) for sale to the public, the Holders
shall not sell publicly, make any short sale of, grant any option for the
purchase of, or otherwise dispose publicly of, any Restricted Shares (other than
those shares of Common Stock included in such registration pursuant to Sections
2, 3 or 4) without the prior written consent of the Company for a period
designated by the Company in writing to the holders of Registrable Shares, which
period shall not begin more than 10 days prior to the effectiveness of the
registration statement pursuant to which such public offering shall be made and
shall not last more than 180 days after the effective date of such registration
statement.
SECTION 7. Preparation and Filing. If and whenever the Company is under
an obligation pursuant to the provisions of this Agreement to use its best
efforts to effect the registration of any Registrable Shares, the Company shall,
as expeditiously as practicable:
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(a) use its best efforts to cause a registration statement
that registers such Registrable Shares to become and remain effective
for a period of 90 days (or 12 months for registrations on Form S-3 or
successor form) or until all of such Registrable Shares have been
disposed of (if earlier);
(b) furnish, at least five business days before filing a
registration statement that registers such Registrable Shares, a
prospectus relating thereto or any amendments or supplements relating
to such a registration statement or prospectus, to one counsel selected
by the holders of a majority in interest of Registrable Shares (the
Holders' Counsel"), copies for review and comment during such five
days of all such documents proposed to be filed (it being understood
that such five-business-day period need not apply to successive drafts
of the same document proposed to be filed so long as such successive
drafts are supplied to the Holders' Counsel in advance of the proposed
filing by a period of time that is customary and reasonable under the
circumstances);
(c) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective for at least a period of 90 days (or 12 months for
registrations on Form S-3 or successor form) or until all of such
Registrable Shares have been disposed of (if earlier) and to comply
with the provisions of the Securities Act with respect to the sale or
other disposition of such Registrable Shares and furnish copies of all
such amendments and supplements to Holders' Counsel;
(d) notify in writing the Holders' Counsel promptly (i) of the
receipt by the Company of any notification with respect to any comments
by the Commission relating to such registration statement or prospectus
or any amendment or supplement thereto or any request by the Commission
for the amendment or supplement thereof or for additional information
with respect thereto, (ii) of the receipt by the Company of any
notification with respect to the issuance by the Commission of any stop
order suspending the effectiveness of such registration statement or
prospectus or any amendment or supplement thereto or the initiation or
threatening of any proceeding for that purpose and (iii) of the receipt
by the Company of any notification with respect to the suspension of
the qualification of such Registrable Shares for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purposes and furnish copies of all such notices to Holders'
Counsel;
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(e) use its best efforts to register or qualify such
Registrable Shares under such other securities or "blue sky" laws of
such jurisdictions as the Holders reasonably request and do any and all
other acts and things which may be reasonably necessary or advisable to
enable the holders of Registrable Shares to consummate the disposition
in such jurisdictions of such Registrable Shares; provided, however,
that the Company will not be required to qualify generally to do
business, subject itself to general taxation or consent to general
service of process in any jurisdiction where it would not otherwise be
required to do so but for this paragraph (e);
(f) furnish to the holders of Registrable Shares such number
of copies of a summary prospectus or other prospectus, including a
preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as the holders of Registrable
Shares may reasonably request in order to facilitate the public sale or
other disposition of such Registrable Shares;
(g) use its best efforts to cause such Registrable Shares to
be registered with or approved by such other governmental agencies or
authorities as may be necessary by virtue of the business and
operations of the Company to enable the holders of Registrable Shares
to consummate the disposition of such Registrable Shares;
(h) notify the holders of Registrable Shares on a timely basis
at any time when a prospectus relating to such Registrable Shares is
required to be delivered under the Securities Act within the
appropriate period mentioned in subparagraph (a) of this Section 7, of
the happening of any event as a result of which the prospectus included
in such registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing and, at the
request of the holders of Registrable Shares, prepare and furnish to
the holders of Registrable Shares a reasonable number of copies of a
supplement to or amendment of such prospectus as may be necessary so
that, as thereafter delivered to the offerees of such shares, such
prospectus shall not include an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing;
(i) make available for inspection by the holders of
Registrable Shares, any underwriter participating in any disposition
pursuant to such registration statement and any attorney, accountant or
other agent retained by the holders
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of Registrable Shares or any underwriter (collectively, the
"Inspectors"), all pertinent 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 (together with the
Records, the "Information") reasonably requested by any such holders of
Registrable Shares in connection with such registration statement. Any
of the Information which the Company determines in good faith to be
confidential, and of which determination the Inspectors are so
notified, shall not be disclosed by the Inspectors unless (i) the
disclosure of such Information is necessary to avoid or correct a
misstatement or omission in the registration statement, (ii) the
release of such Information is ordered pursuant to a subpoena or other
order from a court of competent jurisdiction or (iii) such Information
has been made generally available to the public. The holders of
Registrable Shares agree that they will, upon learning that disclosure
of such Information is sought in a court of competent jurisdiction,
give notice to the Company and allow the Company, at the Company's
expense, to undertake appropriate action to prevent disclosure of the
Information deemed confidential;
(j) use its best efforts to obtain from its independent
certified public accountants "cold comfort" letters in customary form
and at customary times and covering matters of the type customarily
covered by cold comfort letters;
(k) use its best efforts to obtain from its counsel an opinion
or opinions in customary form;
(l) provide a transfer agent and registrar (which may be the
same entity and which may be the Company) for such Registrable Shares;
(m) issue to any underwriter to which the holders of
Registrable Shares may sell shares in such offering certificates
evidencing such Registrable Shares;
(n) list such Registrable Shares on any national securities
exchange on which any shares of the Common Stock are listed or, if the
Common Stock is not listed on a national securities exchange, use its
best efforts to qualify such Registrable Shares for inclusion on the
automated quotation system of the National Association of Securities
Dealers, Inc. (the "NASD"), or such other national securities exchange
as the holders of a majority of the Registrable Shares shall request;
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(o) 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, earnings
statements (which need not be audited) covering a period of 12 months
beginning within three months after the effective date of the
registration statement, which earnings statements shall satisfy the
provisions of Section 11(a) of the Securities Act; and
(p) use its best efforts to take all other steps necessary to
effect the registration of such Registrable Shares contemplated hereby.
SECTION 8. Expenses. All expenses incurred by the Company in complying
with Section 7, including, without limitation, all registration and filing fees
(including all expenses incident to filing with the NASD), fees and expenses of
complying with securities and "blue sky" laws, printing expenses, and fees and
expenses of the Company's counsel and one counsel for the Holders, shall be paid
by the Company; provided, however, that all underwriting discounts and selling
commissions applicable to the Registrable Shares shall not be borne by the
Company but shall be borne by the holders of Registrable Shares in proportion to
the number of Registrable Shares sold by each of them.
SECTION 9. Indemnification. In connection with any registration of any
Registrable Shares under the Securities Act pursuant to this Agreement, the
Company shall indemnify and hold harmless the holders of Registrable Shares,
each underwriter, broker or any other person acting on behalf of the holders of
Registrable Shares and each other person, if any, who controls any of the
foregoing persons within the meaning of the Securities Act against any losses,
claims, damages or liabilities, joint or several (or actions in respect
thereof), to which any of the foregoing persons may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in the
registration statement under which such Registrable Shares were registered under
the Securities Act, any preliminary prospectus or final prospectus contained
therein or otherwise filed with the Commission, any amendment or supplement
thereto or any document incident to registration or qualification of any
Registrable Shares, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading or, with respect to any
prospectus, necessary to make the statements therein in light of the
circumstances under which they were made not misleading, or any violation by the
Company of the Securities Act or state securities or "blue sky" laws applicable
to the Company and relating to action or inaction required of the Company in
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connection with such registration or qualification under such state securities
or blue sky laws; and shall reimburse the holders of Registrable Shares, such
underwriter, such broker or such other person acting on behalf of the holders of
Registrable Shares and each such controlling person for any legal or other
expenses reasonably incurred by any of them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company shall not be liable in any such case to the extent that any
such loss, claim, damage, liability or action arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in said registration statement, preliminary prospectus, final prospectus,
amendment, supplement or document incident to registration or qualification of
any Registrable Shares in reliance upon and in conformity with written
information furnished to the Company through an instrument duly executed by the
holders of Registrable Shares or underwriter specifically for use in the
preparation thereof.
In connection with any registration of Registrable Shares
under the Securities Act pursuant to this Agreement, each holder of Registrable
Shares shall indemnify and hold harmless (in the same manner and to the same
extent as set forth in the preceding paragraph of this Section 9) the Company,
each director of the Company, each officer of the Company who shall sign such
registration statement, each underwriter, broker or other person acting on
behalf of the holders of Registrable Shares and each person who controls any of
the foregoing persons within the meaning of the Securities Act with respect to
any statement or omission from such registration statement, any preliminary
prospectus or final prospectus contained therein or otherwise filed with the
Commission, any amendment or supplement thereto or any document incident to
registration or qualification of any Registrable Shares, if such statement or
omission was made in reliance upon and in conformity with written information
furnished to the Company or such underwriter through an instrument duly executed
by such holder of Registrable Shares specifically for use in connection with the
preparation of such registration statement, preliminary prospectus, final
prospectus, amendment, supplement or document; provided, however, that the
maximum amount of liability in respect of such indemnification shall be limited,
in the case of each seller of Registrable Shares, to an amount equal to the net
proceeds actually received by such seller from the sale of Registrable Shares
effected pursuant to such registration.
Promptly after receipt by an indemnified party of notice of
the commencement of any action involving a claim referred to in the preceding
paragraphs of this Section 9, such indemnified party will, if a claim in respect
thereof is made against an indemnifying party, give written notice to the latter
of the commencement of such action. In case any such action is brought against
an indemnified party, the indemnifying party will
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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 responsible for
any legal or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof; provided, however, that if any indemnified
party shall have reasonably concluded that there may be one or more legal or
equitable defenses available to such indemnified party which are additional to
or conflict with those available to the indemnifying party, or that such claim
or litigation involves or could have an effect upon matters beyond the scope of
the indemnity agreement provided in this Section 9, the indemnifying party shall
not have the right to assume the defense of such action on behalf of such
indemnified party and such indemnifying party shall reimburse such indemnified
party and any person controlling such indemnified party for that portion of the
fees and expenses of any counsel retained by the indemnified party which is
reasonably related to the matters covered by the indemnity agreement provided in
this Section 9.
If the indemnification provided for in this Section 9 is held
by a court of competent jurisdiction to be unavailable to an indemnified party
with respect to any loss, claim, damage, liability or action referred to herein,
then the indemnifying party, in lieu of indemnifying such indemnified party
hereunder, shall contribute to the amounts paid or payable by such indemnified
party as a result of such loss, claim, damage, liability or action in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party on the one hand and of the indemnified party on the other in connection
with the statements or omissions which resulted in such loss, claim, damage,
liability or action as well as any other relevant equitable considerations. The
relative fault of the indemnifying party and of the indemnified party 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 by
the indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
SECTION 10. Underwriting Agreement. Notwithstanding the provisions of
Sections 6, 7, 8 and 9, to the extent that the holders of Registrable Shares
shall enter into an underwriting or similar agreement, which agreement contains
provisions covering one or more issues addressed in such Sections, the
provisions contained in such Sections addressing such issue or issues shall be
of no force or effect with respect to such registration.
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SECTION 11. Information by Holders. Each of the holders of Registrable
Shares proposing to sell the same pursuant to a registration to which this
Agreement relates shall furnish to the Company such written information
regarding the holders of Registrable Shares and the distribution proposed by
such holders of Registrable Shares as the Company may reasonably request in
writing and as shall be reasonably required in connection with any registration,
qualification or compliance referred to in this Agreement.
SECTION 12. Exchange Act Compliance. From the Registration Date or such
earlier date as a registration statement filed by the Company pursuant to the
Exchange Act relating to any class of the Company's securities shall have become
effective, the Company shall comply with all of the reporting requirements of
the Exchange Act (whether or not it shall be required to do so) and shall comply
with all other public information reporting requirements of the Commission which
are conditions to the availability of Rule 144 for the sale of the Common Stock.
The Company shall cooperate with the holders of Registrable Shares in supplying
such information as may be necessary for such holders to complete and file any
information reporting forms presently or hereafter required by the Commission as
a condition to the availability of Rule 144.
SECTION 13. No Conflict of Rights. The Company represents and warrants
to the holders of Registrable Shares that the registration rights granted to the
holders of Registrable Shares hereby do not conflict with any other registration
rights granted by the Company. The Company shall not, after the date hereof,
grant any registration rights which conflict with or impair the registration
rights granted hereby.
SECTION 14. Termination. This Agreement shall terminate and be of no
further force or effect when there shall not be any Restricted Shares.
SECTION 15. Successors and Assigns. This Agreement shall bind and inure
to the benefit of the Company and the holders of Registrable Shares and, subject
to Section 16, the respective successors and assigns of the Company and holders
of Registrable Shares.
SECTION 16. Assignment. Each holder of Registrable Shares may assign
its rights hereunder to any purchaser or transferee acquiring all of such
holder's Restricted Shares; provided, however, that such purchaser or transferee
shall, as a condition to the effectiveness of such assignment, be required to
execute a counterpart to this Agreement agreeing to be treated as the seller or
transferor hereunder whereupon such purchaser or transferee shall have the
benefits of, and shall be subject to the restrictions contained in, this
Agreement.
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SECTION 17. Entire Agreement. This Agreement, the Purchase Agreement,
and the other writings referred to therein or delivered pursuant thereto,
contain the entire agreement among the parties with respect to the subject
matter hereof and supersede all prior and contemporaneous arrangements or
understandings with respect thereto.
SECTION 18. Notices. All notices, requests, consents and other
communications hereunder to any party shall be deemed to be sufficient if
contained in a written instrument delivered in person or sent by telecopy,
nationally-recognized overnight courier or first class registered or certified
mail, return receipt requested, postage prepaid, addressed to such party at the
address set forth below or such other address as may hereafter be designated in
writing by such party to the other parties:
(a) if to the Company, to:
Bone, Muscle and Joint, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇;
with a copy to:
▇'▇▇▇▇▇▇▇▇ Graev & Karabell, LLP
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.;
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇; and
(b) if to any Holders, to the address of such Holders set
forth on Schedule I hereto.
All such notices, requests, consents and other communications shall be deemed to
have been delivered and received (a) in the case of personal delivery or
delivery by telecopier, on the date of such delivery, (b) in the case of
dispatch by nationally-recognized overnight courier, on the next business day
following such dispatch and (c) in the case of mailing, on the third business
day after the posting thereof.
SECTION 19. Modifications; Amendments; Waivers. The terms and
provisions of this Agreement may not be modified or amended, nor may any
provision be waived, except pursuant to a writing signed by the Company and the
Holders; provided, however, that the Company may amend Schedule I hereto to
reflect any changes to the Holders and the Registrable Shares owned by each such
Holder.
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SECTION 20. Counterparts. This Agreement may be executed in any number
of counterparts, and each such counterpart hereof shall be deemed to be an
original instrument, but all such counterparts together shall constitute but one
agreement.
SECTION 21. Headings. The headings of the various sections of this
Agreement have been inserted for convenience of reference only and shall not be
deemed to be a part of this Agreement.
SECTION 22. Governing Law. This Agreement shall be governed by and
construed in accordance with the domestic laws of the State of New York without
giving effect to any choice or conflict of law provision or rule (whether in the
State of New York or any other jurisdiction) that would cause the application of
the laws of any jurisdiction other than the State of New York.
* * * *
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IN WITNESS WHEREOF, the parties hereto have executed this
Registration Rights Agreement as of the date first written above.
BONE, MUSCLE AND JOINT, INC.
By:______________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Financial Officer
H&Q BONE MUSCLE AND JOINT INVESTORS, L.P.
By:______________________________________
Name:
Title:
H&Q SERV*IS VENTURES L.P.
By: ____________________________________,
General Partner
By:______________________________________
Name:
Title:
SCHEDULE I
Holders
H & Q Bone Muscle and Joint Investors, L.P.
▇/▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Bama ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
H&Q SERV*IS Ventures L.P.
▇/▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Bama ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
