EXHIBIT 10.2
APPENDIX "A"
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is by and between
APO HEALTH, INC., a New York Corporation (the "Company"), and
______________________________ (the "Holder"), dated as of this __ day of
_____, 2001.
W I T N E S S E T H:
WHEREAS, the Company has issued Holder ___________ shares of the
Company's common stock for each Unit (A Unit consists of 1,667 shares of the
Company's common stock, valued at $0.60 per share, par value $0.001, and 3
warrants - each warrant representing 1,667 shares of the Company's common
stock - exercisable at $1.00 per share), purchased pursuant to a Regulation D,
Rule 506, Private Placement Memorandum, dated April 24, 2001, and incorporated
by reference herein (the "Common Stock"); and
WHEREAS, the Company desires to grant to the Holder certain registration
rights in respect of the issuance or resale of the shares of Common Stock.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
ARTICLE ONE
Registration Rights Agreement
SECTION 1.1 Registration Rights Available. The Company agrees to
provide Holder with respect to the shares of Common Stock purchased by
Holder, pursuant to the Private Placement Memorandum, dated April 24, 2001,
and any other securities issued or issuable at any time or from time to time
in respect of the shares of Common Stock upon a stock split, stock
dividend, recapitalization or other similar event involving the Company
(collectively, the "Securities"): one demand secondary offering by means
registration pursuant to the Securities Act of 1933, as amended ("Securities
Act"), subject to the provisions of this Agreement (the demand registration
right is referred to herein as the "Registration Right").
SECTION 1.2 Demand Registration. With respect to Holder's right to one
demand registration pursuant to Section 1.1 (a), the parties agree as follows:
(a) Holder shall provide written notice to the Company indicating his
intention to exercise the demand registration right on or after April 24,
2001, and on or before May 24, 2001. The Company shall promptly, and in any
event within 30 days of receiving notice from the Holders, use its best
efforts to file with the Securities and Exchange Commission (the "Commission")
and cause to become effective, a registration statement on appropriate form
relating to the offer and sale of the Common Stock by Holder. The Company
shall use its best efforts to file a registration statement for the demand
secondary offering requested under Section 1.1. The Company agrees to provide
Holder with notice of the filing of such registration and of the filing of any
amendments or supplements thereto.
(b) The Company agrees to maintain such registration statement in
effect for the maximum period allowable
under the regulations promulgated by the Commission then in effect.
(c) In any offering pursuant to this Section that becomes effective in
which the Holder participates, the Company shall use its best efforts to keep
available to the Holder a prospectus meeting the requirements of Section
10(a)(3) of the Securities Act and shall file all amendments and supplements
under the Securities Act required for that purpose. In any offering pursuant
to this Section the Company will, as soon as practicable, use its best efforts
to effect
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such registration and use its best efforts to effect such qualification and
compliance as may be so requested and as would permit or facilitate the
distribution of such Securities, including, without limitation, registration
under the Securities Act, appropriate qualifications under applicable blue-sky
or other state securities laws, appropriate compliance with any other
governmental requirements and listing on a national securities exchange on
which the Common Stock is then listed or inter-dealer quotation system.
SECTION 1.3 Registration Procedure. With respect to the Registration
Right, the following provisions shall apply:
(a) Holder shall be obligated to furnish to the Company and the
underwriters (if any) such information regarding the Securities and the
proposed manner of distribution of the Securities as the Company and the
underwriters (if any) may request in writing and as shall be required in
connection with any registration, qualification or compliance referred to
herein and shall otherwise cooperate with the Company and the underwriters (if
any) in connection with such registration, qualification or compliance.
(b) With a view to making available the benefits of certain rules and
regulations of the Commission which may at any time permit the sale of the
Restricted Securities (used herein as defined in Rule 144 under the Securities
Act) to the public without registration, the Company agrees to use its best
lawful efforts to:
(i) Make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act,
at all times during which the Company is subject to the reporting
requirements of the Securities Exchange Act of 1934, as amended
(the "Exchange Act");
(ii) File with the Commission in a timely manner all reports
and other documents required of the Company under the Securities
Act and the Exchange Act (at all times during which the Company is
subject to such reporting requirements); and
(iii) So long as Holder owns any Restricted Securities, to
furnish to Holder forthwith upon request a written statement by
the Company as to its compliance with the reporting requirements
of said Rule 144 and with regard to the Securities Act and the
Exchange Act (at all times during which the Company is subject to
such reporting requirements), a copy of the most recent annual or
quarterly report of the Company, and such other reports and
documents of the Company and other information in the possession
of or reasonably obtainable by the Company as Holder may
reasonably request in availing themselves of any rule or
regulation of the Commission allowing Holder to sell any such
securities without registration.
(c) The Company agrees that it will furnish to Holder such number of
prospectuses, offering circulars or other documents incident to any
registration, qualification or compliance referred to herein as provided or,
if not otherwise provided, as the Holder from time to time may reasonably
request.
(d) Except for the legal fees of Holder and any sales commissions that
may be paid by Holder, all expenses of any registrations permitted pursuant to
this Agreement and of all other offerings by the Company (including, but not
limited to, the expenses of any qualifications under the blue-sky or other
state securities laws and compliance with governmental requirements of
preparing and filing any post-effective amendments required for the lawful
distribution of the Securities to the public in connection with such
registration, of supplying prospectuses, offering circulars or other
documents) will be paid by the Company.
(e) The Registration Right of this Agreement, subject to the terms and
conditions hereof, shall be available to any subsequent holder of the
Securities owned by Holder. Each subsequent holder entitled to the
Registration Right under this Agreement shall be bound by the terms and
subject to the obligations of this Agreement as though it were an original
signatory hereto.
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ARTICLE TWO
Indemnification
SECTION 2.1 Indemnification by the Company. In the event of any
registration of the Securities of the Company under the Securities Act, the
Company agrees to indemnity and hold harmless Holder and each other person who
participates as an underwriter in the offering or sale of such securities
against any and all claims, demands, losses, costs, expenses, obligations,
liabilities, joint or several, damages, recoveries and deficiencies, including
interest, penalties and attorneys' fees (collectively, "Claims"), to which
Holder or underwriter may become subject under the Securities Act otherwise,
insofar as such Claims (or actions or proceedings, whether commenced or
threatened, in respect thereof) arise out of or are based on any untrue
statement or alleged untrue statement of any material fact contained in any
registration statement under which Holder's Securities were registered under
the Securities Act, any preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement thereto, or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
the Company will reimburse Holder and each such underwriter for any legal or
any other expenses reasonably incurred by them in connection with
investigating or defending any such Claim (or action or proceeding in respect
thereof); provided that the Company shall not be liable in any such case to
the extent that any such Claim (or action or proceeding in respect thereof) or
expense arises out of or is based on an untrue statement or alleged untrue
statement or omission or alleged omission made in such registration statement,
any such preliminary prospectus, final prospectus, summary prospectus,
amendment or supplement in reliance on and in conformity with written
information furnished to the Company through an instrument duly executed by
Holder specifically stating that it is for use in the preparation thereof.
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of Holder or any such underwriter and shall
survive the transfer of the Securities by Holder.
SECTION 2.2 Indemnification by Holder. The Company may require, as a
condition to including the Securities in any registration statement filed
pursuant to this Agreement, that the Company shall have received an
undertaking satisfactory to it from Holder, to indemnify and hold harmless (in
the same manner and to the same extent as set forth in Section 2.1) the
Company, each director of the Company, each officer of the Company and each
other person, if any, who controls the Company, within the meaning of the
Securities Act, with respect to any statement or alleged statement in or
omission or alleged omission from such registration statement, any preliminary
prospectus contained therein, or any amendment or supplement thereto, if such
statement or alleged statement or omission or alleged omission was made in
reliance on and in conformity with written information furnished to the
Company through an instrument duly executed by Holder specifically stating
that it is for use in the preparation of such registration statement,
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement. Notwithstanding the foregoing, the maximum liability hereunder
which any holder shall be required to suffer shall be limited to the net
proceeds to such Holder from theSecurities sold by such Holder in the
offering. Such indemnity shall remain in full force and effect, regardless of
any investigation made by or on behalf of the Company or any such director,
officer or controlling person and shall survive the transfer of the Securities
by Holder.
SECTION 2.3 Notices of Claims, etc. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a Claim referred to in this Article Two, such indemnified party
will, if a claim in respect thereof is to be made against an indemnifying
party, give written notice to the latter of the commencement of such action,
provided that the failure of any indemnified party to give notice as provided
herein shall not relieve the indemnifying party of its obligations under this
Article Two, except to the extent that the indemnifying party is actually
prejudiced by such failure to give notice. In case any such action is brought
against an indemnifying party, unless in such indemnified party's reasonable
judgment a conflict of interest between such indemnified and indemnifying
parties may exist in respect of such Claim, the indemnifying party shall be
entitled to participate in and to assume the defense thereof, jointly with any
other indemnifying party similarly notified to the extent that it may wish,
with counsel reasonably
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satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified party
for any legal or other expenses subsequently incurred by the latter in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the consent of the
indemnified party, consent to entry of any judgment or enter into any
settlement that does not include as an unconditional term thereof the giving
by the claimant or plaintiff to such indemnified party of a release
from all liability in respect of such Claim.
SECTION 2.4 Indemnification Payments. The indemnification required by
this Article shall be made by periodic payments of the amount thereof during
the course of the investigation or defense, as and when bills are received or
expense, loss, damage or liability is incurred.
ARTICLE THREE
Miscellaneous
SECTION 3.1 Consent to Amendments. Except as otherwise expressly
provided herein, the provisions of this Agreement may be amended or waived
only by the written agreement of the Company and the Holder of 51% or more of
the shares of Common Stock and shall be effective only to the extent
specifically set forth in such writing.
SECTION 3.2 Term of the Agreement. This Agreement shall terminate with
respect to Holder on the earlier to occur of (i) the Securities having been
registered as provided in Article One.
SECTION 3.3 Successors and Assigns. Except as otherwise expressly
provided herein, all covenants and agreements contained in this Agreement by
or on behalf of any of the parties hereto are transferable and will bind and
inure to the benefit of the respective successors and assigns of the parties
hereto, but only if so expressed in writing.
SECTION 3.4 Severability. Whenever possible, each provision of this
Agreement will be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Agreement is held to be
prohibited by or invalid under applicable law, such provision will be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of this Agreement.
SECTION 3.5 Delays or Omissions. No failure to exercise or delay in the
exercise of any right, power or remedy accruing to Holder on any breach or
default of the Company under this Agreement shall impair any such right, power
or remedy nor shall it be construed to be a waiver of any such breach or
default.
SECTION 3.6 Remedies Cumulative. All remedies under this Agreement, or
by law or otherwise afforded to any party hereto shall be cumulative and not
alterative.
SECTION 3.7 Descriptive Headings. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part of
this Agreement. Unless clearly denoted otherwise, any reference to Articles
or Sections contained herein shall be to the Articles or Sections of this
Agreement.
SECTION 3.8 Notices. Any notices required or permitted to be sent
hereunder shall be delivered personally or mailed, certified mail, return
receipt requested, to the following addresses, and shall be deemed to have
been received on the day of personal delivery or within three business days
after deposit in the mail, postage prepaid:
If to the Company, to:
APO Health, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., #▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇ President
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If to Holder, to:
_____________________
_____________________
_____________________
SECTION 3.9 Governing Law. The validity, meaning and effect of this
Agreement shall be determined in accordance with the laws of the State of New
York applicable to contracts made and to be performed in that state.
SECTION 3.10 Final Agreement. This Agreement, together with those
documents expressly referred to herein, constitutes the final agreement of the
parties concerning the matters referred to herein, and supersedes all prior
agreements and understandings.
SECTION 3.11 Execution in Counterparts. This Agreement may be executed
in any number of counterparts, each of which when so executed and delivered
shall be deemed an original, and such counterparts together shall constitute
one instrument.
The parties hereto have executed this Agreement as of the date first set
forth above.
COMPANY:
APO Health, Inc.
By__________________________________
▇▇▇▇▇ ▇▇▇▇▇, President
HOLDER:
By _________________________________
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