Exhibit 4.10
REGISTRATION RIGHTS AGREEMENT
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This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made this 7th
day of December, 1999 (the "Effective Date") between Careside, Inc., a Delaware
corporation (the "Company"), and ▇▇▇▇ ▇▇ ▇▇▇▇▇, a Texas resident ("YLB") and
▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇, a Texas resident ("JYLB" and collectively with YLB,"Le
Bihan").
W I T N E S S E T H:
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WHEREAS, pursuant to an Agreement and Plan of Merger dated as of the
Effective Date, by and among the Company, Careside Hematology, Inc., a Delaware
corporation and wholly owned subsidiary of the Company ("CSH"), Texas
International Laboratories, Inc., a Texas corporation ("TIL"), and Le Bihan (the
"Merger Agreement"), TIL will merge with and into CSH (the "Merger") and in
consideration therefor the Company will issue shares of common stock, par value
$.01 per share, of the Company ("Common Stock") to Le Bihan (the "Merger
Shares"); and
WHEREAS, the Company desires to provide Le Bihan with certain rights
regarding the registration of the Merger Shares issued pursuant to the Merger
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements made herein, and other good valuable consideration, the receipt and
sufficiency of which are hereby acknowledged and accepted, the parties hereto
agree as follows:
1. Definitions. As used herein, unless the context otherwise requires,
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the following terms have the following respective meanings:
"Affiliate" has the meaning set forth in Rule 12b-2 under the Exchange
Act.
"Commission" means the United States Securities and Exchange
Commission or any other federal agency at the time administering the Securities
Act.
"Common Stock" has the meaning set forth in the first WHEREAS clause
of the Recitals.
"Demand" has the meaning set forth in Section 2.1.1.
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"Demand Registration Period" means the period commencing 120 days
prior to June 16, 2000 and ending on the second (2nd) anniversary of the
Effective Date; provided that the Demand Registration Period shall be extended
by the length of any Delay Period, as defined in Section 2.1.7(iii) hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
or any similar federal statute, and the rules and regulations of the Commission
promulgated thereunder, as the same shall be in effect at the time. Reference
to a particular section of the Securities Exchange Act of 1934, as amended,
shall include reference to the comparable section, if any, of any such
subsequent similar federal statute.
"Participating Holder" has the meaning set forth in Section 2.1.4.
"Person" means any individual, partnership, joint venture,
corporation, trust, unincorporated organization, government or department or
agency of a government.
"Public Offering" has the meaning set forth in Section 2.1.7.
"Registrable Securities" means collectively the Merger Shares and any
other securities issuable in connection therewith or in replacement thereof by
way of a stock split, dividend, distribution, recapitalization, exchange,
merger, consolidation or other reorganization. As to any particular Registrable
Securities, once issued such securities shall cease to be Registrable Securities
when (a) a registration statement with respect to the sale of such securities
shall have become effective under the Securities Act and such securities shall
have been disposed of in accordance with such registration statement, (b) they
shall have been sold as permitted by and in compliance with Rule 144 (or any
successor provision) promulgated under the Securities Act or (c) they shall have
ceased to be outstanding.
"Registration Expenses" means all expenses incident to the Company's
performance of or compliance with Section 2, including, without limitation, all
registration, qualification, filing and National Association of Securities
Dealers, Inc. fees, all listing fees, all fees and expenses of complying with
securities or blue sky laws (including, without limitation, reasonable fees and
disbursements of counsel for the underwriters in connection with blue sky
qualifications of the Registrable Securities), all expenses in connection with
the transfer and delivery of the Registrable Securities, all word processing,
duplicating and printing expenses, messenger and delivery expenses, the fees and
disbursements of counsel for the Company and counsel for Le Bihan (comprised of
not more than one outside law firm) and of the Company's independent public
accountants, including the expenses of "comfort" letters required by or incident
to such performance and compliance, and any fees and disbursements of
underwriters customarily paid by issuers or sellers of securities.
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"Securities Act" means the Securities Act of 1933, as amended, or any
subsequent similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
References to a particular section of the Securities Act of 1933, as amended,
shall include a reference to the comparable section, if any, of any such
subsequent similar federal statute.
2. Registration Rights.
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2.1 Registration on Demand.
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2.1.1 Demand. At any time during the Demand Registration Period,
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subject to Section 2.1.7, upon the written request (the "Demand") of Le Bihan
that the Company effect the registration under the Securities Act of all or part
of the Registrable Securities, the Company shall promptly cause to be filed, and
shall take all commercially reasonable actions to effect, as soon as practicable
and in any event, subject to the reasonable cooperation of Le Bihan within 120
days after the Demand is received from Le Bihan, the registration under the
Securities Act, of the Registrable Securities which the Company has been so
requested to register by Le Bihan.
2.1.2 Registration of Other Securities. Whenever the Company
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shall effect a registration pursuant to this Section 2.1 in connection with an
underwritten offering by Le Bihan of Registrable Securities, holders of
securities of the Company who have "piggyback" registration rights may include
all or a portion of such securities in such registration, offering or sale. If
the managing underwriter of any such offering shall inform the Company by letter
of its belief that the number or type of securities of the Company requested by
holders of the securities of the Company other than Le Bihan to be included in
such registration would materially and adversely affect the underwritten
offering, then the Company shall include in such registration, to the extent of
the number and type of securities which the Company is so advised can be sold in
(or during the time of) such offering, first, all of the Registrable Securities
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specified by Le Bihan in the Demand and second, for each holder of the Company's
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securities entitled to be included other than Le Bihan, the fraction of such
holder's securities proposed to be registered which is obtained by dividing (i)
the number of the securities of the Company that such holder proposes to include
in such registration by (ii) the total number of securities proposed to be
included in such registration by all holders other than Le Bihan.
2.1.3 Registration Statement Form. Registrations under this
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Section 2.1 shall be on such appropriate registration form of the Commission as
shall be selected by the Company. The Company shall include in any such
registration statement all information which, in the opinion of counsel to the
Company, is required to be included.
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2.1.4 Expenses. The Company shall pay the Registration Expenses
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in connection with the Demand registration effected pursuant to this Section
2.1, other than underwriting discounts and selling commissions relating to the
sale or disposition of Registrable Securities. If a registration requested
pursuant to this Section 2.1 is withdrawn or otherwise not effected, other than
at the request of Le Bihan (whether such request is for pricing or other
reasons), the Company shall pay the Registration Expenses in connection
therewith. If the registration pursuant to a Demand is withdrawn at the request
of Le Bihan and if Le Bihan elects not to have such registration count as its
Demand registration under this Section 2.1, Le Bihan shall pay all the
Registration Expenses of such registration, other than the fees and expenses of
counsel to Company or of any other holder of Common Stock participating in the
registration (a "Participating Holder"). At no time shall Le Bihan be required
to pay the underwriting discounts or selling commissions relating to the sale or
disposition of shares of Common Stock by other Persons, or the fees and expenses
of any Participating Holder's or the Company's counsel, except as required by
Section 2.6.2 below.
2.1.5 Effective Registration Statement. A registration requested
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pursuant to this Section 2.1 shall not be deemed to have been effected (i)
unless a registration statement with respect thereto has become effective, (ii)
if after it has become effective, such registration is interfered with by any
stop order, injunction or other order or requirement of the Commission or other
governmental agency or court for any reason and has not thereafter become
effective, or (iii) in the case of an underwritten offering, if the conditions
to closing specified in the underwriting agreement, if any, entered into in
connection with such registration are not satisfied or waived.
2.1.6 Selection of Underwriters. In connection with each
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underwritten offering, (a) the Company shall after consulting with Le Bihan with
respect thereto, promptly select the managing underwriter and (b) if he so
desires and the Company and managing underwriter agree to have a co-managing
underwriter(s), Le Bihan shall promptly select the co-managing underwriter
subject to the approval of the Company and the managing underwriter (which
approval shall not be unreasonably withheld, delayed or conditioned by the
Company).
2.1.7 Limitations on Registration on Demand.
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(i) The Company shall not be required to file a registration
statement pursuant to this Section 2.1 which would become effective within 120
days following the effective date of a registration statement (other than a
registration statement filed on Form S-8) filed by the Company with the
Commission pertaining to any underwritten public offering of convertible debt
securities or equity securities for cash (a "Public Offering") for the account
of the Company or another holder of securities of the Company if Le Bihan was
afforded the opportunity to include all of its Registrable Securities in such
effective registration pursuant to Section 2.2. Notwithstanding anything in this
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Agreement to the contrary other than Section 2.1.7(iii), the Company shall, at
the request of Le Bihan pursuant to Section 2.1.1. prepare and file a
registration statement pursuant to this Section 2.1 that shall become effective
not later than the earlier of (a) 120 days following a request/demand by Le
Bihan pursuant to Section 2.1.1, and (b) 120 days after the second anniversary
of the Effective Date, or at such other time as Le Bihan and the Company shall
mutually agree.
(ii) In no event shall the Company be required to effect more
than one registration pursuant to this Section 2.1.
(iii) Notwithstanding the foregoing, if, in the good faith
determination of the Company's Board of Directors, a registration would
adversely affect certain activities of the Company to the material detriment of
the Company, then the Company may at its option direct that the effective date
of such registration be delayed for a period not in excess of 90 days in the
aggregate from the date of the Company's receipt of the Demand (the "Delay
Period"); provided, however, any action by a Person under a registration or
other agreement with the Company in connection with or triggered by a
registration under this Agreement shall not be considered an adverse effect for
purposes of this sentence; and provided further that if there shall occur any
such delay in a registration hereunder, then Le Bihan shall be entitled to (a)
effect such registration no later than any other holder of registration rights,
or (b), if the Company shall effect a Public Offering during any such Delay
Period, sell all of his Registrable Securities in connection with such Public
Offering, whichever occurs first; provided, however, that if the managing
underwriter of such Public Offering does not agree to include all (or such
lesser amount as Le Bihan shall, in its sole discretion, agree to) of the number
of Le Bihan's Registrable Securities in such registration, then the Company
shall include in such registration, to the extent of the number and type which
the Company is so advised can be sold in (or during the time of) such Public
Offering first, all securities proposed by the Company to be sold for its own
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account, and second, for each of Le Bihan and any other holder of securities
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entitled to be included, the fraction of such holder's securities proposed to be
registered which is obtained by dividing (i) the number of the securities of the
Company that such holder proposes to include in such registration by (ii) the
total number of securities proposed to be sold in such offering by such holders.
2.2 Piggyback Registration.
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2.2.1 Right to Include Registrable Securities. If the Company at
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any time proposes to register any of its securities under the Securities Act by
registration on Forms ▇-▇, ▇-▇, ▇-▇ or any successor or similar form(s) (except
registrations on such Forms or similar forms solely for registration of
securities in connection with (i) an employee benefit plan or dividend
reinvestment plan or a merger or consolidation or (ii) debt securities which are
not convertible into Common Stock), whether or not for sale for its own account,
it shall
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each such time give written notice to Le Bihan of its intention to do so at
least 30 days prior to the anticipated filing date of a registration statement
with respect to such registration with the Commission. Upon the written request
of Le Bihan made as promptly as practicable and in any event within 10 business
days after the receipt of any such notice, which request shall specify the
Registrable Securities intended to be disposed of by Le Bihan, the Company shall
use commercially reasonable efforts to effect the registration under the
Securities Act of all Registrable Securities which the Company has been so
requested to register by Le Bihan; provided, however, that if, at any time after
giving written notice of its intention to register any securities and prior to
the effective date of the registration statement filed in connection with such
registration, the Company shall determine for any reason not to register or to
delay registration of such securities, the Company may, at its election, give
written notice of such determination to Le Bihan and (i) in the case of a
determination not to register, shall be relieved of its obligation to register
any Registrable Securities in connection with such registration (but not from
any obligation of the Company to pay the Registration Expenses in connection
therewith), without prejudice, (provided, however, that Le Bihan may request
that such registration be effected as a registration under Section 2.1 hereof)
and (ii) in the case of a determination to delay registering, shall be permitted
to delay registering any Registrable Securities for the same period as the delay
in registering such other securities. No registration effected under this
Section 2.2 shall relieve the Company of its obligation to effect any
registration upon demand under Section 2.1. The Company shall pay all
Registration Expenses in connection with registration of Registrable Securities
requested pursuant to Section 2.2, other than underwriting discounts and selling
commissions relating to the sale or disposition of Registrable Securities.
2.2.2 Priority in Piggyback Registrations. Notwithstanding
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anything in Section 2.2.1 above to the contrary and except as provided in
Section 2.1.7, if the managing underwriter of any underwritten offering shall
inform the Company by letter of its belief that the number or type of
Registrable Securities requested to be included in such registration would
materially and adversely affect such offering, then the Company shall promptly
notify Le Bihan of such fact. If the managing underwriter does not agree to
include all (or such lesser amount as Le Bihan shall, in his sole discretion,
agree to) of the number of the Registrable Securities initially requested by Le
Bihan to be included in such registration, then the Company shall include in
such registration, to the extent of the number and type which the Company is so
advised can be sold in (or during the time of) such offering first, all
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securities proposed by the Company to be sold for its own account, if the
Company initiated such registration, or by the holder of securities who
initiated such demand registration, if any, second, for each of Le Bihan, and
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any other holder of securities entitled to be included, other than the holder(s)
of the securities who initiated such demand registration, if any, the fraction
of such holder's securities proposed to be registered which is obtained by
dividing (i) the number of the securities of the Company that such holder
proposes to include in such registration by (ii) the total number of securities
proposed to be sold in such offering by such holders, and third, for each
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remaining holder of the Company's
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securities, other than the holder of the securities who initiated such demand
registration and the holders listed above, if any, the fraction of such holder's
securities proposed to be registered which is obtained by dividing (i) the
number of the securities of the Company that such holder proposes to include in
such registration by (ii) the total number of securities proposed to be sold in
such offering by such holders.
2.3 Registration Procedures.
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2.3.1 In connection with the registration of any Registrable
Securities under the Securities Act as provided in Sections 2.1 and 2.2, the
Company shall as promptly as practicable at its own expense:
(i) prepare and file with the Commission the requisite
registration statement to effect such registration and thereafter use
commercially reasonable efforts to cause such registration statement to become
and remain effective for such period of time (not to exceed 180 days) as Le
Bihan, or such other holder of securities who initiated a demand for
registration, so requests to permit disposition of all such registered shares;
(ii) 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 and to comply with provisions of the Securities Act with respect to
the disposition of all Registrable Securities covered by such registration
statement for 180 days or such shorter period as may be required for the
disposition of all of such Registrable Securities by the underwriters;
(iii) notify Le Bihan as to the filing of a registration
statement and each amendment or supplement thereto and of each prospectus, and
each amendment or supplement thereto;
(iv) notify Le Bihan of effectiveness, stop orders, and
suspensions of qualifications;
(v) furnish to Le Bihan such number of conformed copies of
such registration statement and of each such amendment and supplement thereto
(in each case including all exhibits), such number of copies of the prospectus
contained in such registration statement (including each preliminary prospectus
and any summary prospectus) and any other prospectus filed under Rule 424 under
the Securities Act, in conformity with the requirements of the Securities Act,
and such number of copies of such other documents as Le Bihan may reasonably
request;
(vi) use commercially reasonable efforts (x) to register or
qualify all Registrable Securities and other securities covered by such
registration statement under
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such other securities or Blue Sky laws of such States of the United States of
America where an exemption is not available and as Le Bihan shall reasonably
request, (y) to keep such registration or qualification in effect for so long as
such registration statement remains in effect, and (z) to take any other action
which may reasonably be necessary or advisable to enable Le Bihan to consummate
the disposition in such jurisdictions of the Registrable Securities to be sold
by Le Bihan, except that the Company shall not for any such purpose be required
to qualify generally to do business as a foreign corporation in any jurisdiction
wherein it would not, but for the requirements of this paragraph (iv), be
obligated to be so qualified or to consent to general service of process in any
such jurisdiction;
(vii) use commercially reasonable efforts to cause all
Registrable Securities covered by such registration statement to be registered
with or approved by such other federal or state governmental agencies or
authorities as may be necessary in the opinion of counsel to the Company and
counsel to Le Bihan to consummate the disposition of such Registrable Securities
in accordance with their intended method of disposition;
(viii) furnish to Le Bihan, (x) an opinion of outside counsel
for the Company, and (y) a copy of a "comfort" letter addressed to the Company
and/or any managing underwriter signed by the certified independent public
accountants who have certified the Company's financial statements included or
incorporated by reference in such registration statement, each covering
substantially the same matters with respect to such registration statement (and
the prospectus included therein) and, in the case of the accountant's comfort
letter, with respect to events subsequent to the date of such financial
statements, as are customarily covered in opinions of issuer's counsel and in
accountant's comfort letters delivered to the underwriters in underwritten
public offerings of securities (and dated the dates such opinions and comfort
letters are customarily dated);
(ix) notify Le Bihan when a prospectus relating thereto
required to be delivered under the Securities Act, upon discovery that, or upon
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 any material fact required to be stated therein
or necessary to make the statements therein not misleading, in the light of the
circumstances under which they were made, and at the request of Le Bihan to use
its best efforts to promptly prepare and furnish to Le Bihan such number of
copies of a supplement to or an amendment of such prospectus as may be necessary
so that, as thereafter delivered to the purchasers of such securities, 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 the light of the circumstances under which
they were made;
(x) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make available to its
security-holders, as soon as
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reasonably practicable, an earnings statement meeting the requirements of
Section 11(a) of the Securities Act, which the Company shall be entitled to
satisfy by complying with the requirements of Rule 158 promulgated thereunder,
and promptly furnish a copy of the same to Le Bihan;
(xi) provide and cause to be maintained a transfer agent and
registrar for all Registrable Securities covered by such registration statement
from and after a date not later than the effective date of such registration
statement; and
(xii) use commercially reasonable efforts to list all
Registrable Securities covered by such registration statement on any national
securities exchange or over-the-counter market, if any, on which Registrable
Securities of the same class, and if applicable, series, covered by such
registration statement are then listed.
Le Bihan agrees that upon receipt of any notice from the Company of
the happening of an event of the kind described in Section 2.3.1(ix), Le Bihan
shall forthwith discontinue its disposition of Registrable Securities pursuant
to the registration statement relating to such Registrable Securities until Le
Bihan's receipt of the copies of the supplemented or amended prospectus
contemplated by Section 2.3.1(ix).
2.4 Underwritten Offerings.
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2.4.1 Requested Underwritten Offerings. If requested by the
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underwriters for any underwritten offering by Le Bihan pursuant to a
registration requested under Section 2.1, the Company shall enter into an
underwriting agreement with such underwriters for such offering, such agreement
to be reasonably satisfactory in substance and form to the Company, Le Bihan and
the underwriters, and to contain such representations and warranties by the
Company and Le Bihan and such other terms as are generally prevailing in
agreements of that type, including, without limitation, indemnities to the
effect and to the extent provided in Section 2.6 hereto or as are generally
prevailing in agreements of that type. Le Bihan shall cooperate with the
Company in the negotiation of the underwriting agreement and shall give
consideration to the reasonable suggestions of the Company regarding the form
and substance thereof. Le Bihan shall be a party to such underwriting
agreement. Le Bihan shall not be required to make any representations or
warranties to or agreements with the Company or the underwriters other than
representations, warranties or agreements regarding Le Bihan, Le Bihan's
Registrable Securities, Le Bihan's intended method of distribution and any other
representations or warranties required by law or customarily given by selling
shareholders in an underwritten public offering or as reasonably required by the
managing underwriter of the offering of Registrable Securities.
2.4.2 Piggyback Underwritten Offerings. If the Company proposes
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to register any of its securities under the Securities Act as contemplated by
Section 2.2 and
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such securities are to be distributed by or through one or more underwriters,
subject to the priority and other provisions of Section 2.2.2, the Company
shall, if requested by Le Bihan, arrange for such underwriters to include all
the Registrable Securities to be offered and sold by Le Bihan among the
securities of the Company to be distributed by such underwriters. Le Bihan shall
become a party to the underwriting agreement negotiated between the Company and
such underwriters. Le Bihan shall not be required to make any representations or
warranties to or agreements with the Company or the underwriters other than
representations, warranties or agreements regarding Le Bihan, Le Bihan's
Registrable Securities and Le Bihan's intended method of distribution or any
other representations or warranties required by law or customarily given by
selling shareholders in an underwritten public offering or as reasonably
required by the managing underwriter of the offering of Registrable Securities.
2.4.3 Holdback Agreements.
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(i) In connection with any registration of Common Stock
(including any registration of Registrable Securities) in connection with an
underwritten public offering, Le Bihan agrees if required by the underwriter or
underwriters not to effect any public or private sale or distribution, including
any sale pursuant to Rule 144 under the Securities Act, of any Registrable
Securities, and not to effect any such public or private sale or distribution of
any other equity security of the Company or of any security convertible into or
exchangeable or exercisable for any equity security of the Company (in each
case, other than as part of such underwritten public offering) during the 180-
day period, or such shorter period set forth in the underwriting agreement with
respect to such offering as the managing underwriter of such offering shall
reasonably require, beginning on, the effective date of such registration
statement, provided that (a) Le Bihan has received written notice of such
registration at least 15 days prior to such effective date and (b), with respect
to any offering other than pursuant to a firm commitment underwriting, the
underwriters continue to actively market the Registrable Securities until the
earlier of the end of such lock-up period and the closing with respect to the
sale of all, or the final portion of, the Registrable Securities offered by Le
Bihan; provided, however, that the restrictions imposed on Le Bihan by this
Section 2.4.3(i) shall terminate on the earlier of the end of such lock-up
period or thirty (30) days after such closing.
(ii) If any registration of Registrable Securities shall be
in connection with an underwritten public offering, the Company agrees (x) if
required by the underwriter or underwriters, not to effect any public sale or
distribution of any of its equity securities or of any security convertible into
or exchangeable or exercisable for any equity security of the Company (other
than in connection with any employee stock option or other benefit plan which
has been duly adopted by the Company and which provides for the distribution to
participants in the plan of equity securities of the Company or securities
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convertible or exchangeable or exercisable for equity securities of the Company,
or in connection with a merger or acquisition approved by the Board of Directors
of the Company) during the 180-day period, or such shorter period as the
managing underwriter of such offering shall reasonably require, beginning on the
effective date of such registration statement (except as part of such
registration) and (y) that any agreement entered into after the date of this
Agreement pursuant to which the Company issues or agrees to issue any privately
placed equity securities shall contain a provision under which holders of such
securities agree that, if required by the underwriter or underwriters, they will
not effect any public sale or distribution of any such securities during the
period referred to in the foregoing clause (x), including any sale pursuant to
Rule 144 under the Securities Act (except as part of such registration, if
permitted), if such holder is participating in the offering pursuant to such
registration.
2.5 Preparation; Reasonable Investigation. In connection with the
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preparation and filing of any registration statement under the Securities Act in
which Le Bihan is a selling shareholder, the Company shall give Le Bihan not
less than 30 days prior written notice of the preparation of such registration
statement and give Le Bihan and his counsel and accountants the opportunity to
participate, at Le Bihan's expense, in the preparation of such registration
statement, each prospectus included therein or filed with the Commission, and
each amendment thereof or supplement thereto (provided that Le Bihan shall
furnish the Company with comments on any such amendment or supplement as
promptly as the Company shall reasonably require), and give each of them such
access to its books and records, such opportunities to discuss the business of
the Company with officers and the independent public accountants who have
certified its financial statements as shall be necessary, in the opinion of Le
Bihan's counsel, to conduct a reasonable investigation within the meaning of the
Securities Act. Any expenses incurred by Le Bihan in connection with any such
investigation shall be borne by Le Bihan, other than the reasonable fees and
disbursements of Le Bihan's outside counsel.
2.6 Indemnification.
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2.6.1 Indemnification by the Company. In the event of any
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registration of any securities of the Company under the Securities Act in which
Le Bihan is or may be a selling shareholder, the Company shall, and hereby does,
indemnify and hold harmless, Le Bihan, and, to the extent required by any
underwriting agreement entered into by the Company, each other Person who
participates as an underwriter in the offering or sale of such securities or any
such underwriter within the meaning of the Securities Act, insofar as losses,
claims, damages, or liabilities (or actions or proceedings, whether commenced or
threatened, in respect thereof) arise out of or are based upon (a) any untrue
statement or alleged untrue statement of any fact contained in any registration
statement under which such securities were registered under the Securities Act,
any preliminary prospectus, final prospectus, or summary prospectus contained
therein, or any amendment or supplement
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thereto, or any omission or alleged omission to state therein a fact required to
be stated therein or necessary to make the statements therein in light of the
circumstances in which they were made not misleading, or (b) any violation by
the Company, its directors, officers, employees or agents of this Agreement or
any law applicable to and in connection with such registration, and the Company
shall reimburse Le Bihan and, to the extent required by any underwriting
agreement entered into by the Company, underwriter and controlling Person for
any legal or any other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, liability, action or proceeding
described in clauses (a) or (b); 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 or proceeding in respect thereof) or expense arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such registration statement, any such preliminary
prospectus, final prospectus, summary prospectus, amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company through an instrument duly executed by Le Bihan, specifically stating
that it is for use in the preparation thereof. Such indemnity shall remain in
full force and effect regardless of any investigation made by or on behalf of Le
Bihan and shall survive the transfer of such securities by Le Bihan.
2.6.2 Indemnification by Le Bihan. If any Registrable Securities
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are included in any registration statement, Le Bihan shall indemnify and hold
harmless (in the same manner and to the same extent as set forth in Section
2.6.1 above) the Company, each director of the Company, each officer of the
Company and each employee of the Company and, to the extent required by any
underwriting agreement entered into by Le Bihan, each other Person who
participates as an underwriter in the offering or sale of such securities and
each other Person who controls any such underwriter within the meaning of the
Securities Act, with respect to any statement or alleged statement in or
omission or alleged omission from such registration statement, any preliminary
prospectus, final prospectus or summary prospectus contained therein, or any
amendment or supplement thereto, if such statement or alleged statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company through an instrument duly executed
by Le Bihan specifically stating that it is for use in the preparation of such
registration statement, preliminary prospectus, final prospectus, summary
prospectus, amendment or supplement; provided, however, that in no event shall
the liability of Le Bihan under this Section 2.6.2 exceed the amount of the net
proceeds to Le Bihan from the sale of the Registrable Securities in any such
registration.
2.6.3 Notice of Claims, Etc. Promptly after receipt by an
----------------------
indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in the preceding paragraphs of this Section 2.6,
such indemnified party shall, if a claim in respect thereof is to be made
against an indemnifying party, immediately give written notice to the latter of
the commencement of such action; provided, however, that the failure of any
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indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under the preceding paragraphs of this
Section 2.6, except to the extent that the indemnifying party is materially
prejudiced by such failure. The indemnified party shall be entitled to receive
the indemnification payments described in this Section 2.6 after providing such
written notice to the indemnifying party. In case any such action is brought
against an indemnified party, unless in such indemnified party's reasonable
judgment a conflict of interest between such indemnified and indemnifying
parties may exist in respect of such claim, the indemnifying party shall be
entitled to participate in and to assume the defense thereof, jointly with any
other indemnifying party similarly notified to the extent that the indemnifying
parties may agree, with counsel reasonably satisfactory to such indemnified
party, and after notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof, the indemnifying party shall not
be liable to such indemnified party for any legal or other expenses subsequently
incurred by the latter in connection with the defense thereof other than
reasonable out of pocket costs related to the indemnified party's cooperation
with the indemnifying party, unless in such indemnified party's reasonable
judgment a conflict of interest between such indemnified and indemnifying
parties arises in respect of such claim after the assumption of the defense
thereof. No indemnifying party shall be liable for any settlement of any action
or proceeding effected without its written consent, which consent shall not be
unreasonably withheld, delayed or conditioned. Consent of the indemnified party
shall be required for the entry of any judgment or to enter into a settlement
only when such judgment or settlement does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such indemnified party of a
release from all liability in respect such claim or litigation.
2.6.4 Contribution. If the indemnification provided for in this
------------
Section 2.6 shall for any reason be held by a court to be unavailable to an
indemnified party under Section 2.6.1 or 2.6.2 hereof in respect of any loss,
claim, damage or liability, or any action in respect thereof, then, in lieu of
the amount paid or payable under Sections 2.6.1 or 2.6.2 hereof, the indemnified
party and the indemnifying party under Sections 2.6.1 or 2.6.2 hereof shall
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating the
same), (i) in such proportion as shall be appropriate to reflect the relative
benefits received by the Company on one hand and Le Bihan on the other or (ii)
if the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect the relative fault of the
Company on one hand and Le Bihan on the other that resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as any other relevant
equitable considerations. No Person guilty of fraudulent misrepresentation
(within the meaning of the Securities Act) shall be entitled to contribution
from any Person who was not guilty of such fraudulent misrepresentation. In
addition, no Person shall be obligated to contribute hereunder any amounts in
payment for any settlement of any action or claim, effected without such
Person's written consent, which consent shall not be unreasonably withheld. In
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no event shall the liability of Le Bihan under this Section 2.6.4 exceed the
amount of the net proceeds to Le Bihan from the sale of the Registrable
Securities in the related registration.
2.6.5 Other Indemnification. Indemnification and contribution
---------------------
similar to that specified in the preceding paragraphs of this Section 2.6 (with
appropriate modifications) shall be given by the Company and Le Bihan with
respect to any required registration or other qualification of securities under
any federal or state law or regulation of any governmental authority other than
the Securities Act.
3. Rule 144. With a view to making available the benefits of certain
--------
rules and regulations of the Commission that may permit the sale of the
Registrable Securities to the public without registration after an initial
Public Offering, the Company agrees to:
(a) provide information and such other assistance requested by Le
Bihan as is customarily provided by issuers in connection with sales of their
common stock by directors or affiliates under Rule 144, promulgated under the
Securities Act;
(b) make and keep public information available, as those terms are
understood and defined in Rule 144 promulgated under the Securities Act at all
times;
(c) use its best efforts to file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act; and
(d) deliver a written statement as to whether it has complied with
such requirements of this Section, to Le Bihan upon Le Bihan's request.
4. Modification; Waivers. This Agreement may be modified or amended only
---------------------
with the written consent of each party hereto. No party shall be released from
its obligations hereunder without the written consent of the other party. The
observance of any term of this Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively) by the party
entitled to enforce such term, but any such waiver shall be effective only if in
a writing signed by the party against which such waiver is to be asserted.
Except as otherwise specifically provided herein, no delay on the part of any
party hereto in exercising any right, power or privilege hereunder shall operate
as a waiver thereof, nor shall any waiver on the part of any party hereto of any
right, power or privilege hereunder operate as a waiver of any other right,
power or privilege hereunder nor shall any single or partial exercise of any
right, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any right, power or privilege hereunder.
5. Entire Agreement. This Agreement represents the entire understanding
----------------
and agreement between the parties hereto with respect to the subject matter
hereof and
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supersedes all other prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof.
6. Severability. If any provision of this Agreement, or the application
------------
of such provision to any Person or circumstance, shall be held invalid, the
remainder of this Agreement or the application of such provision to other
Persons or circumstances, to the extent permitted by law, shall not be affected
thereby; provided, that the parties shall negotiate in good faith with respect
to an equitable modification of the provision or application thereof held to be
invalid.
7. Notices.
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(i) Any notice or communication to any party hereto shall be duly
given if in writing and delivered in person, receipt requested, or courier
guaranteeing next day delivery, or facsimile (with written confirmation of
receipt) to such other party's address or facsimile number set forth below.
If to Careside, Inc.:
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇. ▇▇▇▇▇▇▇ Stoughton
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP
▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to ▇▇. ▇▇▇▇ ▇▇ ▇▇▇▇▇:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Gartere, ▇▇▇▇▇, Swell & ▇▇▇▇▇, L.L.P.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Attention: Ms. ▇▇▇▇▇▇ ▇▇▇▇▇▇ Le Bihan
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) All notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered or facsimiled
(with written confirmation of receipt); and the next business day after timely
delivery to the courier, if sent by courier guaranteeing next day delivery.
8. Successors and Assigns. This Agreement shall inure to the benefit of
----------------------
and shall be binding upon the Company and Le Bihan and their respective
successors and permitted assigns. Le Bihan may assign its rights under this
Agreement to any Person to whom Le Bihan transfers any of the Registrable
Securities or any interest therein without the necessity of obtaining any
consent to such assignment. Whether or not any express assignment shall have
been made, the provisions of this Agreement that are for the benefit of parties
hereto other than the Company shall also be for the benefit of and enforceable
by any subsequent holder of the Merger Shares. In the event that Le Bihan
assigns its rights to a holder or holders of only a portion of the Registrable
Securities, then all references to Le Bihan herein shall also be deemed to refer
to such other holder or holders, but in such event Le Bihan shall have the sole
right to make all decisions by and give notices for such holder or holders under
this Agreement; provided, that if Le Bihan no longer owns any Registrable
Securities, then all decisions and notices hereunder shall be made by the
holders of not less than a majority of the Registrable Securities outstanding
and all other holders of Registrable Securities shall be bound by any such
decision.
9. Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which for all purposes shall be deemed to be an original
and all of which together shall constitute the same agreement.
10. Headings. The Section headings in this Agreement are for convenience
--------
of reference only, and shall not be deemed to alter or affect the meaning or
interpretation of any provisions hereof.
11. Construction. This Agreement shall be governed, construed and
------------
enforced in accordance with the laws of the State of Delaware without regard to
its principles of conflict of laws.
12. No Inconsistent Agreements. The Company has not previously, and shall
--------------------------
not hereafter, enter into any agreement with respect to its securities which is
inconsistent with the rights granted to Le Bihan in this Agreement.
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13. Recapitalizations, etc. In the event that any capital stock or other
----------------------
securities are issued in respect of, in exchange for, or in substitution of, any
Registrable Securities by reason of any reorganization, recapitalization,
reclassification, merger, consolidation, spin-off, partial or complete
liquidation, stock dividend, split-up, sale of assets, distribution to
stockholders or combination of the shares of Registrable Securities or any other
similar change in the Company's capital structure, appropriate adjustments shall
be made in this Agreement so as to fairly and equitably preserve, as far as
practicable, the original rights and obligations of the parties hereto under
this Agreement.
14. Arbitration. Any controversy or claim arising out of or relating to
-----------
this Agreement, or the breach thereof, shall be settled by arbitration in
accordance with the Rules of the American Arbitration Association in effect at
the time such arbitration is instituted. The arbitration panel shall be composed
of three arbitrators, one of whom shall be chosen by the Company, one of whom
shall be chosen by Le Bihan, and one of whom shall be chosen by the two
arbitrators previously designated. If both or either of the Company and/or Le
Bihan fails to choose an arbitrator within fourteen (14) calendar days after
receiving notice of commencement of arbitration or if the two arbitrators fail
to choose a third arbitrator within fourteen (14) calendar days of their
appointment, such arbitrators shall be chosen by the American Arbitration
Association. Unless the parties to the arbitration shall otherwise agree to a
different place of arbitration, the place of arbitration shall be Chicago,
Illinois. The arbitration award shall be final and binding upon the parties
thereto and may be entered in any court having jurisdiction. Each party shall
bear (i) its own expenses in connection with such arbitration and (ii) one-half
of the fees and expenses of the American Arbitration Association and all
arbitrators. No arbitration award shall contain any provision which is
inconsistent with the preceding sentence.
15. Specific Performance. The parties hereto agree that the Registrable
--------------------
Securities of the Company cannot be purchased or sold in the open market and
that, for these reasons, among others, the holder or holders of the Registrable
Securities will be irreparably damaged in the event that this Agreement is not
specifically enforceable. Accordingly, in the event of any controversy
concerning the Registrable Securities which are the subject of this Agreement,
or any right or obligation to register such securities, such right or obligation
determined as part of an arbitration award described in Section 14 shall be
enforceable in a court of equity by specific performance. The rights granted in
this Section 15 shall be cumulative and not exclusive, and shall be in addition
to any and all other rights which the parties hereto may have hereunder, at law
or in equity. Le Bihan consents to the jurisdiction of the federal courts of
the State of Delaware in any suit, action or proceeding brought pursuant to this
Section 15, waives any objection it may have to the laying of venue in any such
suit, action or proceeding in any of such court, and agrees that service of any
court paper may be made in such manner as may be provided under applicable laws
or court rules governing service of process.
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16. Term. This Agreement shall continue in full force and effect until
----
the first date on which Le Bihan and its permitted assigns may sell all of the
Registrable Securities held by them in a ninety (90) day period pursuant to Rule
144 under the Securities Act.
17. Best Registration Rights. If, on or after the date of this Agreement,
------------------------
the Company grants to any person with respect to any security issued by the
Company or any of its subsidiaries registration rights that provide for terms
that are in any manner more favorable to the holder of such registration rights
than the terms granted to Le Bihan (or if the Company amends or waives any
provision of any agreement providing registration rights of others or takes any
other action whatsoever to provide for terms that are more favorable to other
holders than the terms provided to Le Bihan) then this Agreement shall
immediately be deemed amended to provide Le Bihan with all of such more
favorable terms as Le Bihan shall elect to include herein.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the date first above written and delivered by their respective duly
authorized officers.
CARESIDE, INC.
By: ________________________________
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Chief Financial Officer
___________________________________
▇▇▇▇ ▇▇ ▇▇▇▇▇
___________________________________
▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇