EXHIBIT 10.54
EXHIBIT D
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement"), dated as of August 11,
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2003, by and between New York Health Care, Inc., a New York corporation with its
principal offices in Brooklyn, NY (the "Company"), and NexGen Bacterium, Inc. a
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Panamanian corporation with its registered offices in Panama City, Panama
("NEXGEN").
The parties hereto, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound,
hereby agree as follows:
1. DEFINITIONS. The following terms have the following meanings:
(a) "Act" means the U.S. Securities Act of 1933, as amended, and the rules and
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regulations promulgated thereunder.
(b) "Commission" means the Securities and Exchange Commission.
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(c) "Common Stock" means the Common Stock, par value $0.01 per share, of the
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Company.
(d) "Registrable Securities" means any Shares (as defined herein), of the
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Company owned by NEXGEN.
(e) "Registration," "register" and like words mean compliance with all of the
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laws, ules and regulations (federal, state and local), and provisions of
agreements and corporate documents pertaining to the public offering of
securities, including registration of any public offering of securities on
any form under the Act.
(f) "Shares" means any shares of the $.01 par valve common stock of the Company
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received by NEXGEN in connection with the August 11, 2003 Asset Purchase
Agreement among The Bio Balance Corp., the Company and NEXGEN.
2. (a) PIGGYBACK REGISTRATION. At any time following the date hereof
and prior to the Registration of all of the Shares, and subject to the other
provisions of this Agreement, the Company shall advise NEXGEN by written notice
at least ten (10) days prior to the filing of any registration statement under
the Act by the Company (other than a registration statement on Form ▇-▇, ▇▇▇▇
▇-▇ or subsequent similar forms), and will upon the provision of written notice
from NEXGEN as described below include in any such registration statement such
information as may be required to permit a public offering of the Registrable
Securities desired to be registered by NEXGEN. If NEXGEN desires to have its
Registrable Securities included in such registration statement, it must so
advise the Company in writing within ten (10) days after the date of receipt of
the Company's notice of registration, setting forth the amount of Registrable
Securities for which registration is requested; provided, however, that if the
sole underwriter or
managing underwriters advise the Company that the inclusion in the offering of
securities proposed to be sold by NEXGEN would adversely affect the ability of
the Company to complete the offering, then the Company shall have the right to
reduce the number of shares for which NEXGEN is seeking registration on a pro
rata basis with all other selling shareholders seeking registration in any such
registration statement. NYHC shall use its best efforts to cause such Statement
to be filed and to become effective, and, for a period of six (6) consecutive
months from the date such Statement is declared effective by the Commission and
to keep current the Prospectus included in such Statement, either through the
filing of periodic reports under the Exchange Act, or by filing post-effective
amendments to the Statement, so as to permit the public sale of the Shares.
NEXGEN acknowledges, however, that prior to executing any sales of the Shares,
it will confirm with the Company that the Prospectus included in the Statement
is up-to-date and that such Shares may be lawfully sold.
(b) DEMAND REGISTRATION RIGHTS. In the event that the Shares are
excluded from registration as described in 2(a) above (the "initial
registration"), the Company will at its own expense file a registration
statement at the next earliest practicable date not later than 90 days following
completion of that offering and include the Shares (the "Demand Registration").
Such registration statement may be a post effective amendment, registration
under Form S-3 or any other registration process available to it under the then
existing Commission guidelines. In the event the Demand Registration is not
filed by the 90th day following the completion of the offering included in the
initial registration, the Company agrees that it will then be in default under
the terms of this Agreement. The holder of the Shares shall have all rights and
remedies available to him to seek damages as well as to seek specific
performance.
3. INFORMATION TO BE FURNISHED BY NEXGEN. NEXGEN shall furnish to the
Company in writing all information within its possession or knowledge required
by the applicable rules and regulations of the Commission and by any applicable
state securities or blue sky laws concerning NEXGEN, the proposed method of sale
or other disposition of the shares of Common Stock being sold by NEXGEN in such
offering, and the identity of and compensation to be paid to any proposed
underwriter or underwriters to be employed in connection with such offering.
4. COSTS AND EXPENSES. The Company shall pay all costs and expenses in
connection with the Registration under this Agreement; provided, however, that
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NEXGEN and the holder shall bear the fees and expenses of its own counsel and
accountants and any selling expenses relating to Registrable Shares registered
on behalf of NEXGEN or the holder in connection with such offering, including
without limitation, any transfer taxes, underwriting discounts or commissions.
5. NOTICES. All notices and other communications provided for
hereunder must be in writing and shall be deemed to have been given on the same
day when personally delivered or sent by confirmed facsimile transmission or on
the next business day when delivered by receipted courier service or on the
third business day when mailed with sufficient postage, certified mail, return
receipt requested, to the following addresses: (a) if to the Company, to The Bio
Balance Corp., ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention ▇▇▇▇ ▇▇▇▇▇,
President, and to New York Health Care, Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇ ▇▇▇▇▇, President; and (b) if to NEXGEN, to (insert contact information
here) President, or to such other address as it may be changed from time to time
on the books of the Company by written notice. Copies of all notices to the
Company shall be simultaneously given to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., Scheichet&
▇▇▇▇▇, P.C., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, fax (212)
▇▇▇-▇▇▇▇, e-mail ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇. Each party hereto may from time to
time change the address to which notices to it are to be delivered or mailed
hereunder by notice in writing to the other party.
6. ENTIRE AGREEMENT; MODIFICATION OF AGREEMENT; CONSENTS. This
Agreement constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof. Changes in or additions to this Agreement
may be made and/or compliance with any covenant or condition herein set forth
may be omitted only upon written consent of all the parties hereto.
7. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective permitted
successors, transferees and assigns.
8. GOVERNING LAW. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of New York without giving
effect to the choice of law or conflict of laws principles. The New York state
and federal courts in New York shall have jurisdiction over any and all disputes
arising out of or relating to this Agreement.
9. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed an original and both of which together shall constitute
one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Registration Rights
Agreement to be duly executed as of the date first set forth above.
NEW YORK HEALTH CARE, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
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Its: President, August 20, 2003
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NEXGEN BACTERIUM, INC.
By: /s/ Michel Marechel ▇▇▇▇▇ Nuezo
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Name: Michel ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Nuezo
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Its: General Attorneys
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