EXHIBIT 9
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT"), dated as of
December __, 1997, by and among Biofield Corp., a Delaware
corporation, with headquarters located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "COMPANY"), and each of the
investors set forth on the signature pages hereto (the "INITIAL
INVESTORS").
WHEREAS:
. In connection with the several Subscription Agreements of
even date herewith by and between each of the Initial Investors and
the Company (collectively, the "SUBSCRIPTION AGREEMENTS"), the Company
has agreed, upon the terms and subject to the conditions contained
therein, to issue and sell to each of the Initial Investors shares of
the Company's common stock, par value $.001 per share (the "COMMON
STOCK").
. To induce each of the Initial Investors to execute and
deliver the Subscription Agreements, the Company has agreed to provide
certain registration rights under the Securities Act of 1933, as
amended, and the rules and regulations thereunder, or any similar
successor statute (collectively, the "1933 ACT"), and applicable state
securities laws.
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 are hereby acknowledged, the
parties hereby agree as follows:
. DEFINITIONS.
. As used in this Agreement, the following terms shall
have the following meanings:
() "INVESTORS" means either Initial Investors or
their transferees or assignees who agree to be bound by the provisions
of this Agreement in accordance with Section 9 hereof.
() "REGISTER," "REGISTERED," and "REGISTRATION" refer
to a registration effected by preparing and filing a Registration
Statement in compliance with the 1933 Act and pursuant to Rule 415
under the 1933 Act or any successor rule providing for offering
securities on a continuous basis ("RULE 415"), and the declaration or
ordering of effectiveness of such Registration Statement by the United
States Securities and Exchange Commission (the "SEC").
() "REGISTRABLE SECURITIES" means the shares of
Common Stock issued or issuable pursuant to the Subscription
Agreements or Section 2(c) hereof, or as a dividend on or in exchange
for or otherwise with respect to any of the foregoing which are held
by an Investor. As to any particular Registrable Securities, such
securities will cease to be Registrable Securities when they have been
distributed to the public pursuant to an offering registered under the
1933 Act or are eligible to be sold by the holder thereof pursuant to
Rule 144(k) under the 1933 Act (or any similar rule then in force) or
are sold in compliance with Rule 144.
() "REGISTRATION STATEMENT" means a registration
statement of the Company under the 1933 Act filed pursuant to Section
2(a) hereof.
. Capitalized terms used herein and not otherwise defined
herein shall have the respective meanings set forth in the
Subscription Agreements.
. REGISTRATION.
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. Mandatory Registration. The Company shall prepare and
file with the SEC as soon as reasonably practicable after the date of
this Agreement a Registration Statement on Form S-3 (or, if Form S-3
is not then available, on such form of Registration Statement as is
then available to effect a registration of the Registrable Securities)
covering the resale of the Registrable Securities and thereafter use
its best efforts to cause such Registration Statement to become
effective as soon as reasonably practicable and, in any event, within
seventy five (75) days following the date of this Agreement.
. Underwritten Offering. Investors holding a
majority-in-interest of the Registrable Securities being registered
pursuant to Section 2(a) hereof may determine to engage the services
of an underwriter in connection with such offering. If such offering
is an underwritten offering, the Investors who hold a
majority-in-interest of the Registrable Securities subject to such
underwritten offering shall have the right to select one legal counsel
and an investment banker or bankers and manager or managers to
administer the offering, which investment banker or bankers or manager
or managers shall be reasonably satisfactory to the Company.
. Payments by the Company. If the Registration Statement
is not declared effective by the SEC within seventy five (75) days
after the date of this Agreement (THE "PRE-REGISTRATION PERIOD") or
if, at any time after the Registration Statement has been declared
effective by the SEC, sales cannot be made pursuant to the
Registration Statement because of the issuance of a stop order or
other suspension of effectiveness of the Registration Statement, or if
the Investors are not permitted under Section 4(c) hereof to sell
Registrable Securities for a period of more than ten (10) consecutive
business days, or the Common Stock is not listed or included for
quotation on the Nasdaq National Market ("NASDAQ"), the New York Stock
Exchange (the "NYSE") or the American Stock Exchange (the "AMEX"),
then the Company shall issue additional shares of Common Stock to the
Investors in such amounts and at such times as shall be determined
pursuant to this Section 2(c) as partial relief for the damages to the
Investors by reason of any such delay in or reduction of their ability
to sell the Registrable Securities (which remedy shall not be
exclusive of any other remedies that may otherwise be available at law
or in equity). The number of shares of Common Stock the Company shall
issue pursuant to the preceding sentence shall be equal to the product
of (i) the number of shares of Registrable Securities held by such
Investor to be covered by the Registration Statement; (ii) either (a)
two hundredths (.02) if such penalty relates to the one-hundred eighty
(180) day period (THE "FIRST PAYMENT PERIOD") commencing immediately
upon the expiration of the Pre-registration Period, or (b) one
hundredth (.01) if such penalty relates to the period after the
expiration of the First Payment Period; and (iii) the sum of the
following, provided, however, that the total number of months under
this subsection (iii) shall not exceed nine and one-half months: (x)
the number of months (prorated for partial months) after the end of
the Pre-registration Period and prior to the date the Registration
Statement is declared effective by the SEC (the "EFFECTIVE DATE");
provided, however, that there shall be excluded from such period any
delays which are solely attributable to changes required by the
Investors in the Registration Statement with respect to information
relating to the Investors, including, without limitation, changes to
the plan of distribution, or to the failure of the Investors to
conduct their review of the Registration Statement pursuant to Section
3(g) below in a reasonably prompt manner; (y) the number of months
(prorated for partial months) that sales cannot be made pursuant to
the Registration Statement during the Registration Period (as
hereinafter defined) because of the issuance of a stop order or other
suspension of effectiveness of the Registration Statement, or if the
Investors are not permitted under Section 4(c) hereof to sell
Registrable Securities for a period of more than ten (10) consecutive
business days; and (z) the number of months (prorated for partial
months) that the Common Stock is not listed or included for quotation
on the Nasdaq, NYSE or AMEX or that trading of the Common Stock
thereon is halted during the Registration Period (unless all trading
on the Nasdaq, NYSE or AMEX, as the case may be, is halted). (For
example, if the Registration Statement becomes effective one (1) month
after the end of the Pre-registration Period, the Company would be
required to issue 2,000 additional shares of Common Stock to the
Investors for each 100,000 shares of Common Stock issued pursuant to
the Subscription Agreements. If thereafter, sales could not be made
pursuant to the Registration Statement for an additional period of
fifteen (15) days subsequent to the First Payment Period, the Company
would be required to issue an additional 500 shares of Common Stock to
the Investors for each 100,000 shares of Common Stock issued pursuant
to the Subscription Agreements). Any shares of Common Stock issued
pursuant to this Section 2(c) shall be Registrable Securities. The
additional shares of Common Stock to be issued pursuant to this
Section 2(c) shall be issued to the Investors within five (5) days
after the end of each period that gives rise to such obligation;
provided that if any such period extends for more than thirty (30)
days, interim issuances of Common Stock shall be made for each such
30-day period. If the provisions of this Section 2(c) would otherwise
result in the issuance of fractional shares of Common Stock to an
Investor, the Company shall round the number of shares to be issued to
such Investor to the nearest whole share.
. Eligibility for Form S-3. The Company represents and
warrants that, as of the date hereof, it meets the registrant
eligibility and transaction requirements for the use of Form S-3 for
registration of the sale of the Registrable Securities by the
Investors, and the Company shall file all reports required to be filed
by the Company with the SEC in a timely manner so as to maintain such
eligibility for the use of Form S-3.
. OBLIGATIONS OF THE COMPANY.
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In connection with the registration of the Registrable
Securities, the Company shall have the following obligations:
. The Company shall prepare and file a Registration
Statement and use its best efforts to cause such Registration
Statement to become effective, all as provided in Section 2(a) hereof,
and keep the Registration Statement effective pursuant to Rule 415 at
all times until such date as is the earlier of (i) the date on which
all of the Registrable Securities covered by the Registration
Statement have been sold by the Investors, or (ii) the date on which
all of the shares of Common Stock issued pursuant to the Subscription
Agreements or Section 2(c) hereof, or as a dividend on or in exchange
for or otherwise with respect to any of the foregoing, have ceased to
be Registrable Securities. The period from the filing of the
Registration Statement until the earlier of (i) or (ii) above shall be
referred to herein as the "REGISTRATION PERIOD".
. The Company shall prepare and file with the SEC such
amendments (including post-effective amendments) and supplements to
the Registration Statement and the prospectus used in connection with
the Registration Statement as may be necessary to keep the
Registration Statement effective at all times during the Registration
Period, and, during such period, comply with the provisions of the
1933 Act with respect to the disposition of all Registrable Securities
of the Company covered by the Registration Statement until such time
as all of such Registrable Securities have been disposed of in
accordance with the intended methods of disposition by the seller or
sellers thereof as set forth in the Registration Statement.
. The Company shall furnish to each Investor (and the
firm of legal counsel designated pursuant to Section 3(g)) whose
Registrable Securities are included in the Registration Statement (i)
promptly after the same is prepared and publicly distributed and filed
with the SEC, one copy of the Registration Statement and any amendment
thereto, each preliminary prospectus and prospectus and each amendment
and supplement thereto, and (ii) such number of copies of a prospectus
and all amendments and supplements thereto and such other documents as
such Investor may reasonably request in order to facilitate the
disposition of the Registrable Securities covered by the Registration
Statement and owned by such Investor. The Company shall immediately
notify each Investor by facsimile of the effectiveness of the
Registration Statement or any post-effective amendment.
. The Company shall use reasonable efforts to (i)
register and qualify the Registrable Securities covered by the
Registration Statement under such other securities or "blue sky" laws
of such jurisdictions in the United States as the Investors who hold a
majority-in-interest of the Registrable Securities being offered
reasonably request, (ii) prepare and file in those jurisdictions such
amendments (including post-effective amendments) and supplements to
such registrations and qualifications as may be necessary to maintain
the effectiveness thereof during the Registration Period, (iii) take
such other actions as may be necessary to maintain such registrations
and qualifications in effect at all times during the Registration
Period, and (iv) take all other actions reasonably necessary or
advisable to qualify the Registrable Securities for sale in such
jurisdictions; provided, however, that the Company shall not be
required in connection therewith or as a condition thereto to (a)
qualify to do business in any jurisdiction where it would not
otherwise be required to qualify but for this Section 3(d), (b)
subject itself to general taxation in any such jurisdiction, or (c)
file a general consent to service of process in any such jurisdiction.
. As promptly as practicable after becoming aware of such
event, the Company shall notify each Investor of the happening of any
event of which the Company has knowledge as a result of which the
prospectus included in the 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, in light of the circumstances under which they
were made, not misleading, and the Company shall use its best efforts
to promptly prepare a supplement or amendment to the Registration
Statement to correct such untrue statement or omission, and deliver
such number of copies of such supplement or amendment to each Investor
as such Investor may reasonably request.
. The Company shall use its best efforts to prevent the
issuance of any stop order or other suspension of effectiveness of the
Registration Statement, and, if such an order is issued, to obtain the
withdrawal of such order at the earliest possible moment and to notify
each Investor who holds Registrable Securities being sold (or, in the
event of an underwritten offering, the managing underwriters) of the
issuance of such order and the resolution thereof.
. The Company shall permit a single firm of legal counsel
designated by the Investors holding a majority-in-interest of the
Registrable Securities included in the Registration Statement to
review the Registration Statement and all amendments and supplements
thereto (as well as all requests for acceleration or effectiveness
thereof) a reasonable period of time prior to their filing with the
SEC, and shall not file any document in a form to which such counsel
reasonably objects and will not request acceleration of the
Registration Statement without prior notice to such counsel. The
sections of the Registration Statement covering information with
respect to the Investors, the Investors' beneficial ownership of
securities of the Company or the Investors' intended method of
disposition of Registrable Securities shall conform to the information
provided to the Company by each of the Investors.
. The Company shall otherwise use its best efforts to
comply with all applicable rules and regulations of the SEC, and make
generally available to its security holders as soon as practical, but
not later than ninety (90) days after the close of the period covered
thereby, an earnings statement (in form complying with the provisions
of Section 11(a) and Rule 158 under the ▇▇▇▇ ▇▇▇) covering a period of
at least twelve-months beginning with the first day of the Company's
first full calendar quarter following the Effective Date.
. The Company shall make available for inspection, at the
offices where normally kept and during reasonable business hours, by
(i) any Investor, (ii) any underwriter participating in any
disposition pursuant to the Registration Statement, (iii) any firm of
legal counsel and any firm of accountants or other agents retained by
any Investors holding Registrable Securities included in such
Registration Statement, and (iv) one firm of legal counsel retained by
all such underwriters (collectively, the "INSPECTORS"), all pertinent
financial and other records, corporate documents and properties of the
Company (collectively, the "RECORDS"), as shall be reasonably
requested by such person in connection with such Registration
Statement, and cause the Company's officers, directors and employees
to supply all information which any Inspector may reasonably request
for purposes of such due diligence; provided, however, that each
Inspector shall hold in confidence and shall not make any disclosure
(except to an Investor or agents of the Company) of any Record or
other information obtained in connection with any such inspection,
unless (a) the disclosure of such Records is necessary in connection
with the Inspectors' or Investors' assertion of any claims or actions
or with their establishment of any defense in any pending
administrative or judicial action or proceeding, (b) the release of
such Records is ordered pursuant to a subpoena or other order from a
court or government body of competent jurisdiction, or (c) the
information in such Records has been made generally available to the
public other than by disclosure in violation of this or any other
agreement. Each Investor agrees that it shall, and shall cause each of
its Inspectors to, upon learning that disclosure of such Records is
sought in or by a court or governmental body of competent jurisdiction
or through other means, give notice of such request to the Company.
. The Company shall hold in confidence and not make any
disclosure of information concerning an Investor provided to the
Company unless (i) disclosure of such information is necessary to
comply with federal or state securities laws, (ii) the disclosure of
such information is necessary to avoid or correct a misstatement or
omission of material fact in the Registration Statement that directly
relates to such Investor, (iii) the release of such information is
ordered pursuant to a subpoena or other order from a court or
governmental body of competent jurisdiction, or (iv) such information
has been made generally available to the public other than by
disclosure in violation of this or any other agreement. The Company
agrees that it shall, upon learning that disclosure of such
information concerning an Investor is sought in or by a court or
governmental body of competent jurisdiction or through other means,
give notice of such request to such Investor.
. The Company shall (i) cause all the Registrable
Securities covered by the Registration Statement to be listed on each
national securities exchange on which securities of the same class or
series issued by the Company are then listed, if any, if the listing
of such Registrable Securities is then permitted under the rules of
such exchange, or (ii) secure the designation and quotation of all the
Registrable Securities covered by the Registration Statement on
Nasdaq.
. The Company shall provide a transfer agent and
registrar, which may be a single entity, for the Registrable
Securities not later than the Effective Date.
. The Company shall enter into such customary agreements
(including underwriting agreements in customary form as are reasonably
satisfactory to the Company with customary indemnification and
contribution obligations) and take all such other appropriate actions
as the holders of a majority-in-interest of the Registrable Securities
being sold or the underwriters, if any, reasonably request in order to
expedite or facilitate the disposition of such Registrable Securities.
The Investors holding Registrable Securities which are to be
distributed by such underwriters shall be parties to such underwriting
agreement and may, at their option, require that the Company make to
and for the benefit of such holders the representations, warranties
and covenants of the Company which are being made to and for the
benefit of such underwriters and which are of the type customarily
provided to institutional investors in secondary offerings.
. The Company shall use it best efforts to obtain an
opinion from the Company's counsel and a "cold comfort" letter from
the Company's independent public accountants in customary form and
covering such matters as are customarily covered by such opinions and
"cold comfort" letters delivered to underwriters in underwritten
public offerings, which opinion and letter shall be reasonably
satisfactory to the underwriter, if any, and to the Investors holding
a majority-in-interest of the Registrable Securities, and furnish to
each Investor participating in the offering and to each underwriter,
if any, a copy of such opinion and letter addressed to such Investor
or underwriter.
. The Company shall cooperate with the Investors holding
Registrable Securities and the managing underwriter, if any, to
facilitate the timely preparation and delivery of certificates not
bearing any restrictive legends representing the Registrable
Securities to be sold, and cause such Registrable Securities to be
issued in such denominations and registered in such names in
accordance with the underwriting agreement prior to any sale of
Registrable Securities to the underwriters or, if not an underwritten
offering, in accordance with the instructions of the Investors holding
Registrable Securities at least three business days prior to any sale
of Registrable Securities and instruct any transfer agent and
registrar of Registrable Securities to release any stop transfer
orders in respect thereof.
. The Company shall take all other reasonable actions
necessary to expedite and facilitate disposition by the Investors of
Registrable Securities pursuant to the Registration Statement.
. If any such registration statement or comparable
statement under "blue sky" laws refers to any Investor by name or
otherwise as the holder of any securities of the Company, then such
Investor shall have the right to require (i) the insertion therein of
language, in form and substance satisfactory to such Investor and the
Company, to the effect that the holding by such Investor of such
securities is not to be construed as a recommendation by such Investor
of the investment quality of the Company's securities covered thereby
and that such holding does not imply that such Investor will assist in
meeting any future financial requirements of the Company, or (ii) in
the event that such reference to such Investor by name or otherwise is
not in the judgment of the Company, as advised by counsel, required by
the 1933 Act or any similar federal statute or any state "blue sky" or
securities law then in force, the deletion of the reference to such
Investor.
. OBLIGATIONS OF THE INVESTORS.
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In connection with the registration of the Registrable
Securities, the Investors shall have the following obligations:
. It shall be a condition precedent to the obligations of the
Company to complete the registration pursuant to this Agreement with
respect to the Registrable Securities of a particular Investor that
such Investor furnish to the Company such information regarding
itself, the Registrable Securities held by it and the intended method
of disposition of the Registrable Securities held by it as shall be
reasonably required to effect the registration of such Registrable
Securities and as are customarily provided by selling stockholders and
shall execute such documents in connection with such registration as
the Company may reasonably request and as are customarily executed by
selling stockholders; provided that any such information shall be used
only in connection with such registration. At least five (5) business
days prior to the first anticipated filing date of the Registration
Statement, the Company shall notify each Investor or its counsel of
the information the Company requires from each such Investor.
. Each Investor, by such Investor's acceptance of the
Registrable Securities, agrees to cooperate with the Company as
reasonably requested by the Company in connection with the preparation
and filing of the Registration Statement, unless such Investor has
notified the Company in writing of such Investor's election to exclude
all of such Investor's Registrable Securities from the Registration
Statement.
. Each Investor agrees that, upon receipt of any notice
from the Company of the happening of any event of the kind described
in Section 3(e) or 3(f), such Investor will immediately discontinue
disposition of Registrable Securities pursuant to the Registration
Statement covering such Registrable Securities until such Investor's
receipt of the copies of the supplemented or amended prospectus
contemplated by Section 3(e) or 3(f) and, if so directed by the
Company, such Investor shall, at its option, deliver to the Company
(at the expense of the Company) or destroy (and deliver to the Company
a certificate of destruction) all copies in such Investor's
possession, of the prospectus covering such Registrable Securities at
the time of receipt of such notice.
. No Investor may participate in any underwritten
registration hereunder unless such Investor (i) agrees to sell such
Investor's Registrable Securities on the basis provided in any
underwriting arrangements entered into by the Company, (ii) completes
and executes all questionnaires, indemnities, underwriting agreements
and other documents (other than powers of attorney) reasonably
required under the terms of such underwriting arrangements, and (iii)
agrees to pay its pro rata share of all underwriting discounts and
commissions and its own expenses (including, without limitation,
counsel fees, except as specifically provided herein).
. EXPENSES OF REGISTRATION.
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All expenses incident to the Company's performance of or
compliance with this Agreement, including, without limitation, all
registration and filing fees, fees and expenses of compliance with
securities or blue sky laws, printing expenses, messenger and delivery
expenses, and fees and disbursements of counsel for the Company and
all independent certified public accountants, underwriters (excluding
underwriting discounts and commissions) and other persons retained by
the Company (all such expenses being herein called "Registration
Expenses"), will be borne by the Company. Additionally, the Company
will reimburse the holders of Registrable Securities covered by a
Registration Statement for the reasonable fees and disbursements of
one counsel chosen by the holders of a majority-in-interest of the
Registrable Securities. Each Investor will, however, bear any transfer
taxes and underwriting discounts or commissions applicable to the
Registrable Securities sold by such Investor.
. INDEMNIFICATION.
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In the event any Registrable Securities are included in a
Registration Statement under this Agreement:
. To the fullest extent permitted by law, the Company
will, and hereby agrees to, indemnify, hold harmless and defend (i)
each Investor who holds such Registrable Securities, (ii) the
directors, officers, partners, employees, agents and each person who
controls any Investor within the meaning of the 1933 Act or the
Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder, of any similar successor statute (the "1934
ACT"), if any, (iii) any underwriter (as defined in the ▇▇▇▇ ▇▇▇) for
the Investors, and (iv) the directors, officers, partners, employees
and each person who controls any such underwriter within the meaning
of the 1933 Act or the 1934 Act, if any (each, an "INDEMNIFIED
PERSON"), against any and all joint or several losses, claims,
damages, liabilities or expenses (collectively, together with actions,
proceedings or inquiries by any regulatory or self-regulatory
organization, whether commenced or threatened, in respect thereof,
"CLAIMS") to which any of them may become subject insofar as such
Claims arise out of or are based upon: (i) any untrue statement or
alleged untrue statement of a material fact in a Registration
Statement or the omission or alleged omission to state therein a
material fact required to be stated or necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading; (ii) any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus
if used prior to the Effective Date, or contained in the final
prospectus (as amended or supplemented, if the Company files any
amendment thereof or supplement thereto with the SEC) or the omission
or alleged omission to state therein any material fact necessary to
make the statements made therein, in light of the circumstances under
which they were made, not misleading; or (iii) any violation or
alleged violation by the Company of the 1933 Act, the 1934 Act, any
other law, including, without limitation, any state securities law, or
any rule or regulation thereunder relating to the offer or sale of the
Registrable Securities (the matters in the foregoing clauses (i)
through (iii) being, collectively, "VIOLATIONS"). Subject to the
restrictions set forth in Section 6(c) hereof with respect to the
retention of legal counsel by an Indemnified Person or Indemnified
Party (as defined below), the Company shall reimburse the Indemnified
Person, promptly as such expenses are incurred and are due and
payable, for any reasonable legal fees or other reasonable expenses
incurred by them in connection with investigating or defending any
such Claim. Notwithstanding anything to the contrary contained herein,
the indemnification agreement contained in this Section 6(a): (i)
shall not apply to a Claim arising out of or based upon a Violation
which occurs in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Indemnified
Person expressly for use in connection with the preparation of the
Registration Statement or any such amendment thereof or supplement
thereto, if such prospectus was timely made available by the Company
pursuant to Section 3(c) hereof; and (ii) with respect to any
preliminary prospectus, shall not inure to the benefit of any
Indemnified Person if the untrue statement or omission of material
fact contained in the preliminary prospectus was corrected on a timely
basis in the prospectus, as then amended or supplemented, such
corrected prospectus was timely made available by the Company pursuant
to Section 3(c) hereof, and the Investors were promptly advised in
writing not to use the incorrect prospectus prior to the use giving
rise to a Violation and such Indemnified Person, notwithstanding such
advice, used it. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of the
Indemnified Person and shall survive the transfer of the Registrable
Securities by the Investors pursuant to Section 9 hereof.
. In connection with any Registration Statement in which
an Investor is participating, each such Investor agrees severally and
not jointly to indemnify, hold harmless and defend, to the same extent
and in the same manner set forth in Section 6(a) hereof, the Company,
each of its directors, each of its officers who signs the Registration
Statement, to the fullest extent permitted by law, each person, if
any, who controls the Company within the meaning of the 1933 Act or
the 1934 Act, any underwriter and any other stockholder selling
securities pursuant to the Registration Statement or any of its
directors, officers, agents or any person who controls such
stockholder or underwriter within the meaning of the 1933 Act or the
1934 Act (collectively and together with an Indemnified Person, an
"INDEMNIFIED PARTY"), against any Claim to which any of them may
become subject, under the 1933 Act, the 1934 Act or otherwise, insofar
as such Claim arises out of or is based upon any Violation by such
Investor, in each case to the extent (and only to the extent) that
such Violation occurs in reliance upon and in conformity with written
information furnished to the Company by such Investor expressly for
use in connection with such Registration Statement; and subject to
Section 6(c) hereof with respect to the retention of legal counsel by
an Indemnified Person or Indemnified Party, such Investor will
reimburse any legal or other expenses (promptly as such expenses are
incurred and are due and payable) reasonably incurred by them in
connection with investigating or defending any such Claim; provided,
however, that the Investor shall be liable under this Agreement
(including this Section 6(b) and Section 7 hereof) for only that
amount as does not exceed the net proceeds from the sale of
Registrable Securities by such Investor pursuant to such Registration
Statement. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of such
Indemnified Party and shall survive the transfer of the Registrable
Securities by the Investors pursuant to Section 9 hereof.
Notwithstanding anything herein to the contrary, the indemnification
agreement contained in this Section 6(b) with respect to any
preliminary prospectus shall not inure to the benefit of any
Indemnified Party if the untrue statement or omission of material fact
contained in the preliminary prospectus was corrected on a timely
basis in the prospectus, as then amended or supplemented.
. Indemnification similar to that specified in the
preceding paragraphs (a) and (b) of this Section 6 (with appropriate
modifications) shall be given by the Company and each Investor selling
Registrable Securities with respect to any required registration or
other qualification of securities under any state securities and "blue
sky" laws.
. Any person entitled to indemnification under this
Agreement shall notify promptly the indemnifying party in writing of
the commencement of any action or proceeding with respect to which a
claim for indemnification may be made pursuant to this Section 6, but
the failure of any indemnified party to provide such notice shall not
relieve the indemnifying party of its obligations under the preceding
paragraphs of this Section 6, except to the extent the indemnifying
party is materially prejudiced thereby and shall not relieve the
indemnifying party from any liability which it may have to any
indemnified party otherwise than under this Section 6. In case any
action or proceeding is brought against an indemnified party and it
shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and,
unless in the reasonable opinion of outside counsel to the indemnified
party a conflict of interest between such indemnified and indemnifying
parties may exist in respect of such claim, to assume the defense
thereof jointly with any other indemnifying party similarly notified,
to the extent that it chooses, with counsel reasonably satisfactory to
such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party that it
so chooses, the indemnifying party shall not be liable to such
indemnified party for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided,
however, that (i) if the indemnifying party fails to take reasonable
steps necessary to defend diligently the action or proceeding within
20 days after receiving notice from such indemnified party that the
indemnified party believes it has failed to do so; (ii) if such
indemnified party who is a defendant in any action or proceeding which
is also brought against the indemnifying party reasonably shall have
concluded that there may be one or more legal defenses available to
such indemnified party which are not available to the indemnifying
party; or (iii) if representation of both parties by the same counsel
is otherwise inappropriate under applicable standards of professional
conduct, then, in any such case, the indemnified party shall have the
right to assume or continue its own defense as set forth above (but
with no more than one firm of counsel for all indemnified parties in
each jurisdiction, except to the extent any indemnified party or
parties reasonably shall have concluded that there may be legal
defenses available to such party or parties which are not available to
the other indemnified parties or to the extent representation of all
indemnified parties by the same counsel is otherwise inappropriate
under applicable standards of professional conduct) and the
indemnifying party shall be liable for any expenses therefor. No
indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent
to the entry of any judgment with respect to any pending or threatened
action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an
actual or potential party to such action or claim) unless such
settlement, compromise or judgment (A) includes an unconditional
release of the indemnified party from all liability arising out of
such action or claim and (B) does not include a statement as to or an
admission of fault, culpability or a failure to act, by or on behalf
of any indemnified party.
. If for any reason the foregoing indemnity is
unavailable or is insufficient to hold harmless an indemnified party
under Sections 6(a), (b) or (c), then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as
a result of any Claim 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, with respect to such offering of
securities. 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. If, however, the allocation
provided in the second preceding sentence is not permitted by
applicable law, then each indemnifying party shall contribute to the
amount paid or payable by such indemnified party in such proportion as
is appropriate to reflect not only such relative faults but also the
relative benefits of the indemnifying party and the indemnified party
as well as any other relevant equitable considerations. The parties
hereto agree that it would not be just and equitable if contributions
pursuant to this Section 6(e) 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 preceding
sentences of this Section 6(e). The amount paid or payable in respect
of any Claim shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such Claim. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. Notwithstanding
anything in this Section 6(e) to the contrary, no indemnifying party
(other than the Company) shall be required pursuant to this Section
6(e) to contribute any amount in excess of the net proceeds received
by such indemnifying party from the sale of Registrable Securities in
the offering to which the losses, claims, damages or liabilities of
the indemnified parties relate, less the amount of any indemnification
payment made pursuant to Sections 6(b) and (c).
. The indemnity agreements contained herein shall be in
addition to any other rights to indemnification or contribution which
any indemnified party may have pursuant to law or contract and shall
remain operative and in full force and effect regardless of any
investigation made or omitted by or on behalf of any indemnified party
and shall survive the transfer of the Registrable Securities by any
such party.
. The indemnification and contribution 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 expense, loss, damage or liability is incurred.
. NO OBLIGATION TO SELL.
---------------------
Nothing in this Agreement shall be deemed to create an
independent obligation on the part of any Investor to sell any
Registrable Securities pursuant to any effective registration
statement.
. REPORTS UNDER THE 1934 ACT.
--------------------------
With a view to making available to the Investors the benefits of
Rule 144 promulgated under the 1933 Act or any other similar rule or
regulation of the SEC that may at any time permit the investors to
sell securities of the Company to the public without registration
("RULE 144"), the Company agrees, during the term of this Agreement,
to:
. make and keep public information available, as those
terms are understood and defined in Rule 144;
. file with the SEC in a timely manner all reports and
other documents required of the Company under the 1933 Act and the
1934 Act so long as the Company remains subject to such requirements
and the filing of such reports and other documents is required for the
applicable provisions of Rule 144; and
. furnish to each Investor so long as such Investor owns
Registrable Securities, promptly upon written request, (i) a written
statement by the Company as to whether or not it has complied with the
reporting requirements of Rule 144, the 1933 Act and the 1934 Act,
(ii) a copy of the most recent annual or quarterly report of the
Company and such other reports and documents so filed by the Company,
and (iii) such other information as may be reasonably requested to
permit the Investors to sell such securities pursuant to Rule 144
without registration.
. ASSIGNMENT.
----------
The rights under this Agreement may be assigned by the Investors
to any transferee of all or any portion of Registrable Securities if
the transferee or assignee agrees in writing with the Company to be
bound by all of the provisions contained herein (such agreement being
evidenced by the execution of a Counterpart and Acknowledgement
substantially in the form attached hereto as Exhibit A). Subject to
the requirements of this Section 9, this Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of
the parties hereto.
. AMENDMENT.
---------
Provisions of this Agreement may be amended and the observance
thereof may be waived (either generally or in a particular instance
and either retroactively or prospectively) only with written consent
of the Company and Investors who hold a majority-in-interest of the
Registrable Securities; provided, however, that no Investor who
purchases $1 million or more of Common Stock pursuant to the
Subscription Agreements shall be bound by any such amendment or waiver
without such Investor's written consent. Any amendment or waiver
effected in accordance with this Section 10 shall be binding upon each
Investor and the Company.
- MISCELLANEOUS.
-------------
. Definition of Holder of Registrable Securities. A
person or entity is deemed to be the holder of Registrable Securities
owned by such person and its affiliates. If Registrable Securities are
held by a nominee for the beneficial owner thereof, the beneficial
owner thereof may, at its option, be treated as the holder of such
Registrable Securities for purposes of any request or other action by
any holder or holders of Registrable Securities pursuant to this
Agreement (or any determination of any number or percentage of shares
constituting Registrable Securities held by any holder or holders of
Registrable Securities contemplated by this Agreement); provided that
the Company shall have received assurances reasonably satisfactory to
it of such beneficial ownership.
. Notices. Any notices required or permitted to be given
under the terms hereof shall be sent by certified or registered mail
(return receipt requested) or delivered personally or by courier
(including a nationally recognized overnight delivery service) or by
facsimile and shall be effective five days after being placed in the
mail, if mailed by regular U.S. mail, or upon receipt, if delivered
personally or by courier (including a nationally recognized overnight
delivery service) or by facsimile, in each case addressed to a party.
The addresses for such communications shall be:
If to the Company:
Biofield Corp.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With copy to:
Squadron, Ellenoff, Plesent & ▇▇▇▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to an Investor: to the address set forth immediately below such
Investor's name on the signature pages to the Subscription Agreements.
. Remedies. Any person having rights under any provision
of this Agreement shall be entitled to enforce such rights
specifically to recover damages caused by reason of any breach of any
provision of this Agreement and to exercise all other rights granted
by law. The parties hereto agree and acknowledge that money damages
may not be an adequate remedy for any breach of the provisions of this
Agreement and that any party may in its sole discretion apply to any
court of law or equity of competent jurisdiction (without posting any
bond or other security) for specific performance and for other
injunctive relief in order to enforce or prevent violation of the
provisions of this Agreement. Failure of any party to exercise any
right or remedy under this Agreement or otherwise, or delay by a party
in exercising such right or remedy, shall not operate as a waiver
thereof.
. Governing Law; Severability. This Agreement shall be
enforced, governed by and construed in accordance with the laws of New
York applicable to agreements made and to be performed entirely within
such State. In the event that any provision of this Agreement is
invalid or unenforceable under any applicable statute or rule of law,
then such provision shall be deemed inoperative to the extent that it
may conflict therewith and shall be deemed modified to conform with
such statute or rule of law. Any provision hereof which may prove
invalid or unenforceable under any law shall not affect the validity
or enforceability of any other provision hereof. The parties hereto
hereby submit to the exclusive jurisdiction of the United States
Federal Courts located in New York with respect to any dispute arising
under this Agreement or the transactions contemplated hereby.
. Merger Clause. This Agreement and the Subscription
Agreements (including all schedules and exhibits thereto) constitute
the entire agreement among the parties hereto with respect to the
subject matter hereof and thereof. There are no restrictions,
promises, warranties or undertakings other than those set forth or
referred to herein and therein. This Agreement and the Subscription
Agreements supersede all prior agreements and understandings among the
parties hereto with respect to the subject matter hereof and thereof.
Notwithstanding the foregoing, this Agreement shall have no effect on
any other registration rights agreement to which any Investor and the
Company are a party.
. Descriptive Headings. The headings in this Agreement
are for convenience of reference only and shall not limit or otherwise
affect the meaning hereof.
. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original but all
of which shall constitute one and the same agreement. This Agreement,
once executed by a party, may be delivered to any other party hereto
by facsimile transmission of a copy of this Agreement bearing the
signature of the party so delivering this Agreement.
. Further Acts. Each party shall do and perform, or cause
to be done and performed, all such further acts and things, and shall
execute and deliver all such other agreements, certificates,
instruments and documents, as any other party may reasonably request
in order to carry out the intent and accomplish the purposes of this
Agreement and the consummation of the transactions contemplated
hereby.
. Consents. Except as otherwise provided herein, all
consents and other determinations to be made by the Investors pursuant
to this Agreement shall be made by Investors holding a
majority-in-interest of the Registrable Securities.
. Construction. The language used in this Agreement will
be deemed to be the language chosen by the parties to express their
mutual intent, and no rules of strict construction will be applied
against any party.
* * * * *
IN WITNESS WHEREOF, the Company and the undersigned Initial
Investors have caused this Agreement to be duly executed as of the
date first above written.
BIOFIELD CORP.
By:_______________________________
Its:______________________________
INVESTORS:
__________________________________
By:_______________________________
Its:______________________________
Address:__________________________
Facsimile:________________________
__________________________________
By:_______________________________
Its:______________________________
Address:__________________________
Facsimile:________________________
__________________________________
By:_______________________________
Its:______________________________
Address:__________________________
Facsimile:________________________
EXHIBIT A
REGISTRATION RIGHTS AGREEMENT
COUNTERPART AND ACKNOWLEDGEMENT
TO: BIOFIELD CORP.
RE: The Registration Rights Agreement (the "Agreement")
dated as of __________ __, 1997, by and among Biofield
Corp. and the Initial Investors (as defined in the
Agreement)
The undersigned hereby agrees to be bound by the terms of
the Agreement as a party to the Agreement, and shall be entitled to
all benefits of an Investor (as defined in the Agreement) pursuant to
the Agreement, as fully and effectively as though the undersigned had
executed a counterpart of the Agreement together with the other
parties to the Agreement. The undersigned hereby acknowledges having
received and reviewed a copy of the Agreement.
DATED this _____ day of ____________, 199__.
INVESTOR
__________________________________
By:_______________________________
Its:______________________________
Address:__________________________
Facsimile:________________________
Number of Shares of
Registrable Securities:____________