EXHIBIT 4(b)
REGISTRATION RIGHTS AGREEMENT
-----------------------------
REGISTRATION RIGHTS AGREEMENT, dated as of July 1, 1997, between Clinicor,
Inc., a Nevada corporation (the "Company") and Oracle Partners, L.P. a Delaware
limited partnership ("Oracle"). Capitalized terms used herein not defined shall
have the meanings ascribed to them in the Warrant (as hereafter defined).
WHEREAS, the Company and Oracle are entering into, a Loan Agreement of even
date (the "Loan Agreement") pursuant to which the Company has agreed to (i)
issue to Oracle, and its designated assigns (the "Holder") a Warrant (the
"Warrant") to purchase certain shares of Common Stock, and (ii) grant certain
registration rights to the Holder as more fully set forth below.
NOW, THEREFORE, the parties hereto, for good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, hereby agree as
follows:
1. Covenant to Register. As soon as the Company is eligible to do
--------------------
so, but in no event later than 13 months following the date that the Company has
been subject to the requirements of Section 12 of the Securities Exchange Act of
1934, as amended (the "Exchange Act"); provided, however, that such 13-month
period may be extended by the Holder in its sole and absolute discretion,
Company shall file a registration statement with the Securities and Exchange
Commission (the "Commission") to register the Warrant Stock issuable upon the
exercise of the Warrant for an offering to be made on a continuous or delayed
basis pursuant to Rule 415 under the Securities Act of 1933, as amended (the
"Securities Act"), covering all of the Warrant Stock. Such registration
statement shall be on Form S-3 under the Securities Act, if such Form is then
available for use by the Company, or another appropriate form that is available
to the Company permitting registration of such Warrant Stock for resale by the
Holder in the manner or manners reasonably designated by the Holder (including,
without limitation, one or more underwritten offerings). The Company shall use
its best efforts to prosecute the registration (the "Registration") of the
Warrant Stock pursuant to the Securities Act. The Company shall use its best
efforts to cause the Warrant Stock to be registered as soon as practicable after
the filing of the registration statement relating to such Warrant Stock, but in
no event later than 180 days after the filing of such registration statement.
The Holder shall cooperate with the Company to provide all such necessary
information as shall be required by the Company to file the registration
statement relating to the Registration. In addition, Company shall use its best
efforts to list, the Warrant Stock on NASDAQ or on such other securities
exchange as the shares of Warrant Stock may then be listed. Company shall
maintain the prospectus relating to the Warrant Stock effective for so long as
the Holder desires to dispose of the Warrant Stock, not to exceed a period of
five years from the date that the registration statement was declared effective
by the Commission.
1
2. Demand and "Piggyback" Registration Rights.
------------------------------------------
(a) If at any time after the date hereof during which there is no
effective registration statement relating to the Warrant Stock, Company shall be
requested in writing by the Holder, or if more than one Holder, by the Holder
holding at least a majority of the Warrant Stock to effect the registration
under the Securities Act of the Warrant Stock, the Company shall, as
expeditiously as possible, use its best efforts to effect the registration, on a
form of general use under the Securities Act, of all Warrant Stock which the
Company has been requested to register. The Company shall not be obligated to
cause to become effective more than two registration statements pursuant to
which Warrant Stock are registered under this Section 2(a). Notwithstanding the
foregoing, if the Company shall furnish to the Holder in response to a request
for registration under this Section 2(a) a certificate signed by the Chief
Executive Officer of the Company stating that in the good faith judgment of the
Board of Directors of the Company it would be detrimental to the Company and its
shareholders for such registration statement to be filed and it is therefore
essential to defer the filing of such registration statement, the Company shall
have the right to defer taking action with respect to such filing for a period
of not more than 90 days after receipt of the request by the Holder; provided,
however, that the Company may not utilize this right more than once in any 12-
month period. In addition, the Company shall not be obligated to effect, or to
take any action to effect, any registration pursuant to this Section 2(a):
(A) During the period starting with the date 30 days prior to the
Company's good faith estimate of the date of filing of, and ending on a date 120
days after the effective date of, a registration subject to Section 2(b) hereto;
provided that the Company is actively employing in good faith its best efforts
to cause such registration statement to be filed and thereafter to become
effective; or
(B) With respect to Warrant Stock in a Registration that may be
immediately registered or that are registered on Form S-3 pursuant to a request
made pursuant to Section 1 above.
(b) At any time after the Closing Date, the Company shall, at least
thirty (30) days prior to the filing of any registration statement under the
Securities Act (other than a registration statement on Form S-8 or Form S-4 or
any successor forms) relating to the public offering of its Common Stock by the
Company or any of its security holders, give written notice of such proposed
filing and of the proposed date thereof to the Holder, and if, on or before the
twentieth (20th) day following the date on which such notice is given, the
Company shall receive a written request from a Holder requesting that the
Company include among the securities covered by such registration statement some
or all of the Common Shares held by or to be held after exercise of this Warrant
by such Holder, the Company shall, include such Common Shares in such
registration statement, if filed, so as to permit such Common Shares to be sold
or disposed of in the manner and on the terms of the offering thereof set forth
in such request.
2
3. Terms and Conditions of Registration. Except as otherwise
------------------------------------
provided herein, in connection with any registration statement filed pursuant to
Sections 1 or 2 herein, the following provisions shall apply:
(a) If such registration statement shall be filed pursuant to Section
2(b) hereof and if the managing underwriter advises the Company in writing that
the inclusion in such registration of some or all of the Common Shares sought to
be registered by the Holder creates a substantial risk that the proceeds or
price per share that will be derived from such registration will be reduced or
that the number of shares to be registered at the insistence of the Holder, plus
the number of shares of Common Stock sought to be registered by the Company and
any other stockholders of the Company is too large a number to be reasonably
sold, then, in such event, the number of shares sought to be registered for the
Company and the other stockholders of the Company having registration rights, as
applicable, shall be reduced, pro rata in proportion to the number of shares
--- ----
sought to be registered to the number of shares recommended be sold by the
managing underwriter.
(b) If requested by the Holder in connection with a registration
statement filed pursuant to Section 1 or Section 2(a), the Company will enter
into an underwriting agreement with the underwriters for such offering, such
agreement to be reasonably satisfactory in form and substance to the Company,
the Holder and the underwriters, and to contain such representations, warranties
and covenants by the Company and such other terms as are customarily contained
in such agreements used by the managing underwriter, including, without
limitation, restrictions of sales of Warrant Stock or other securities by the
Company as may be reasonably agreed to between the Company and such
underwriters, and indemnities and rights to contributions to the effect and to
the extent provided in Sections 4 and 5 hereof. The Holder shall be a party to
any underwriting agreement relating to an underwritten sale of its Common Shares
and may, at its option, require that any or all of the representations,
warranties and covenants of the Company to or for the benefit of such
underwriters, shall also be made to and for the benefit of the Holder. All
representations and warranties of the Holder shall be made to or for the benefit
of the Company.
(c) The Company shall provide a transfer agent and registrar (which
may be the same entity) for the Common Shares, not later than the effective date
of such registration.
(d) All expenses in connection with the preparation and filing of a
registration statement filed pursuant to Sections 1, 2(a) or 2(b) shall be borne
solely by the Company, except for any transfer taxes payable with respect to
the disposition of such Common Shares, and any underwriting discounts and
selling commissions applicable solely to such sales of Common Shares, which
shall be paid by the Holder of the Warrant Stock being registered.
(e) The Company shall use its best efforts to cause all of the shares
covered by such registration statement to be listed on NASDAQ or on such other
securities exchange as
3
such shares may then be listed, on which similar shares are listed for trading,
if the listing of such registered shares is permitted by such exchange.
(f) Following the effective date of such registration statement, the
Company shall, upon the request of the Holder, forthwith supply such number of
prospectuses (including exhibits thereto and preliminary prospectuses and
amendments and supplements thereto) meeting the requirements of the Securities
Act and such other documents as are referred to in the prospectus as shall be
reasonably requested by the Holder to permit the Holder to make a public
distribution of its Common Shares.
(g) (A) Each Holder agrees that it will not effect any sales of
Common Shares pursuant to a Registration described in Section 1 after such
Holder has received notice from the Company to suspend sales as a result of the
occurrence or existence of any Suspension Event (as defined in Section 3(g)(B)
below) until the Company provides notice to such Holder that all Suspension
Events have ceased to exist. In addition, each Holder agrees that it will not
effect any sales of Common Shares pursuant to the Registration described in
Section 1 after such Holder has received notice from the Company to suspend
sales because the registration statement pursuant to which such sale is to be
effected, and the related prospectus or any supplement thereto contains an
untrue statement of a material fact or omits to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, until the Company notifies such Holder
that the misstatement or omission has been corrected. The Company hereby
covenants and agrees that it will use its best efforts to promptly correct any
such misstatement or omission, or to cure any Suspension Event, and that it will
give immediate notice to the Holder of such correction or cure.
(B) Notwithstanding anything to the contrary set forth in this
Agreement, the Company's obligation to file a registration statement pursuant to
Section 1 hereof and make any filings with any state securities authority, to
use its best efforts to cause a registration statement or any state securities
filings to become effective, or to amend or supplement such a registration
statement or any state securities filings shall be temporarily suspended in the
event of and during a Suspension Event. A "Suspension Event" shall exist at such
times that (i) the Company is not eligible to use Form S-3 for the registration
contemplated by Section 1 hereof, or (ii) the Company is conducting an
underwritten primary offering and is advised by the underwriters therein that
sale of Warrant Stock under the registration statement filed pursuant to Section
1 hereof would have a material adverse effect on the Company's offering, or
(iii) negotiations and/or consummation are pending relating to a transaction or
the occurrence of some other event (x) where any of the foregoing would require
disclosure under applicable securities laws of material information in a
registration statement (or any other document incorporated into a registration
statement by reference) or such state securities filings and (y) as to which the
Company has a bona fide business purpose, as determined in good faith by its
Board of Directors, for preserving confidentiality or which renders the Company
unable to comply with the Commission's requirements. Suspension of the Company's
obligations pursuant to this Section 3(g)(B) shall continue only for so long as
a Suspension Event is
4
continuing. The Company shall notify each Holder immediately after any
Suspension Event occurs or ceases to exist.
(h) The Holder may select the underwriter or underwriters, if any, who
are to undertake any offering and distribution of the Warrant Stock to be
included in a registration statement filed under the provisions of Section 1 or
2(a) hereof, subject to the Company's prior approval of the underwriter, which
approval shall not be unreasonably withheld.
(i) The Company shall use its best efforts to register the Warrant
Stock covered by any such registration statements filed pursuant to Section 1 or
2 under such securities or Blue Sky laws in addition to those in which the
Company would otherwise sell shares, as the Holder shall request, except that
neither the Company nor the Holder shall for any such purpose be required to
execute a general consent to service of process or to qualify to do business as
a foreign corporation in any jurisdiction where it is not so qualified. The
fees and expenses incurred in connection with such registration shall be borne
by the Company.
(j) The Holder shall cooperate fully with the Company and provide the
Company with all information reasonably requested by the Company for inclusion
in the registration statement or as necessary to comply with the Securities Act.
The Company shall cooperate fully with any underwriters selected by the Holder
and counsel to such underwriters, and shall provide reasonable and customary
access to the Company's books and records (upon receipt from such underwriters
of customary confidentiality agreements) in order to facilitate such
underwriters' review and examination of the Company in connection with such
underwriting.
(k) The Company shall notify the Holder, at any time after
effectiveness when a prospectus relating thereto is required to be delivered
under the Securities Act, of the happening of any event as a result of which the
prospectus included in such registration statement, as then in effect, includes
an untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading in light of circumstances then existing (and upon receipt of such
notice and until a supplemented or amended prospectus as set forth below is
available, the Holder shall not offer or sell any securities covered by such
registration statement and shall return all copies of such prospectus to the
Company if requested to do so by it), and at the request of the Holder prepare
and furnish the Holder as promptly as practicable, but in any event within 90
days, a reasonable 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 shares, such prospectus shall not include an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in light of
the circumstances then existing.
(l) The Company shall furnish to the Holder at the time of the
disposition of the Warrant Stock, a signed copy of an opinion of the Company's
regular in-house or outside
5
general counsel, or other counsel of the Company's selection reasonably
acceptable to, and which opinion shall be reasonably satisfactory in form and
substance to, the Holder to the effect that: (a) a registration statement
covering such Warrant Stock has been filed with the Commission under the
Securities Act and has been declared effective by order of the Commission, (b)
said registration statement and prospectus contained therein comply as to form
in all material respects with the requirements of the Securities Act, and
nothing has come to such counsel's attention (after due inquiry) which would
cause such counsel to believe that either said registration statement or such
prospectus (other than the financial statements contained therein, as to which
such counsel need not express any opinion) contains any 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 the case of such prospectus, in
light of the circumstances under which they were made) not misleading, (c) after
due inquiry such counsel knows of no legal or governmental proceedings required
to be described in such registration statement or prospectus which are not
described as required, or of any contracts or documents of a character required
to be described in such registration statement or such prospectus to be filed as
an exhibit to such registration statement or to be incorporated by reference
therein which are not described and filed as required and (d) to such counsel's
knowledge, no stop order has been issued by the Commission suspending the
effectiveness of such registration statement; it being understood that such
opinion may contain such qualifications and assumptions as are customary in the
rendering of similar opinions, and that such counsel may rely, as to all factual
matters treated therein, on certificates of the Company (copies of which shall
be delivered to the Holder).
(m) The Company will use its best efforts to comply with the reporting
requirements of Sections 13 and 15(d) of the Exchange Act, to the extent it
shall be required to do so pursuant to such sections, and at all times while so
required shall use its best efforts to comply with all other public information
reporting requirements of the Commission (including reporting requirements which
serve as a condition to utilization of Rule 144 promulgated by the Commission
under the Securities Act) from time to time in effect and relating to the
availability of an exemption from the Securities Act for the sale of any of the
Company's Warrant Stock held by the Holder. The Company will also cooperate
with the Holder in supplying such information and documentation as may be
necessary for the Holder to complete and file any information reporting forms
presently or hereafter required by the Commission as a condition to the
availability of an exemption from the Securities Act for the sale of any of the
Company's Warrant Stock held by the Holder.
4. Indemnification.
---------------
(a) In the event of the registration of any Warrant Stock by the
Company under the Securities Act pursuant to the provisions of Sections 1 or 2,
the Company agrees to indemnify and hold harmless the Holder of such Warrant
Stock, each underwriter, broker or dealer, if any, and their respective
directors, officers and employees, and each other person, if any, who controls
the holders of the Shares or the Warrant Stock (or a permitted assignee
thereof), such underwriter, broker or dealer within the meaning of the
Securities Act, from and
6
against any and all losses, claims, damages or liabilities (or actions in
respect thereof), joint or several, to which the Holder (and as applicable) its
directors, officers or employees, or such underwriter, broker or dealer or
controlling person may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in any registration statement under
which such Warrant Stock were registered under the Securities Act, any
preliminary prospectus or final prospectus relating to such Warrant Stock, or
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
any violation by the Company of any rule or regulation under the Securities Act
applicable to the Company or relating to any action or inaction required by the
Company in connection with any such registration and will reimburse the Holder,
each such underwriter, broker or dealer and controlling person, and their
respective directors, officers or employees, for any legal or other expenses
reasonably incurred by the Holder or such underwriter, broker or dealer or
controlling person in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the Company will not
be liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in such registration statement,
such preliminary prospectus, such final prospectus or such amendment or
supplement thereto in reliance upon and in conformity with written information
furnished to the Company by the Holder and as applicable, such Holder'
directors, officers or employees, or such underwriter, broker, dealer or
controlling person designated in writing for use in the preparation thereof.
Such indemnity shall remain in full effect irrespective of any investigation by
any person indemnified above.
(b) In the event of the registration of any Warrant Stock of the
Holder under the Securities Act for sale pursuant to the provisions of this
Agreement, the Holder agree to indemnify and hold harmless the Company, its
directors, officers and employees, from and against any losses, claims, damages
or liabilities, joint or several, to which the Company, its directors, officers
or employees, may become subject under the Securities Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in any registration statement under which such
Warrant Stock were registered under the Securities Act, any preliminary
prospectus or final prospectus relating to such Warrant Stock, or any amendment
or supplement thereto, or arise out of or are based upon omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, which untrue statement
or alleged untrue statement or omission or alleged omission was made therein in
reliance upon and in conformity with written information furnished to the
Company by the Holder and designated in writing for use in the preparation
thereof. Such indemnity shall remain in full effect irrespective of any
investigation by any person indemnified above.
7
(c) Promptly after receipt by a person entitled to indemnification
under this Section 4 (for purposes of this Section 4, an "Indemnified Party") of
notice of the commencement of any action or claim relating to any registration
statement filed under Sections 1 or 2 or as to which indemnity may be sought
hereunder, such Indemnified Party will, if a claim for indemnification hereunder
in respect thereof is to be made against any other party hereto (for purposes of
this Section 4, an "Indemnifying Party"), give written notice to such
Indemnifying Party of the commencement of such action or claim, but the failure
to so notify the Indemnifying Party will not relieve it from any liability which
it may have to any Indemnifying Party otherwise than pursuant to the provisions
of this Section 4 and shall also not relieve the Indemnifying Party of its
obligations under this Section 4, except to the extent that the Indemnifying
Party is damaged solely as a result of the failure to give timely notice. In
case any such action is brought against an Indemnified Party, and it notifies an
Indemnifying Party of the commencement thereof, the Indemnifying Party will be
entitled (at its own expense) to participate in and, to the extent that it may
wish, jointly with any other Indemnifying Party similarly notified, to assume
the defense with counsel satisfactory to such Indemnified Party, of such action
and/or to settle such action and, after notice from the Indemnifying Party to
such Indemnified Party of its election so to assume the defense thereof, the
Indemnifying Party will 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 the reasonable cost of investigation;
provided, however, that no Indemnifying Party and no Indemnified Party shall
enter into any settlement agreement which would impose any liability on such
other party or parties without the prior written consent of such other party or
parties.
5. Contribution. If the indemnification provided for in Section 4
------------
hereof is unavailable to the Indemnified Party in respect of any losses, claims,
damages or liabilities referred to herein, then each such Indemnifying Party, in
lieu of indemnifying such Indemnified Party, shall contribute to the amount paid
or payable by such Indemnified Party as a result of such losses, claims, damages
or liabilities (i) as between the Company and the Holder on the one hand and the
underwriters on the other, in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Holder on the one hand and the
underwriters on the other from the offering of the Warrant Stock, or if such
allocation is not permitted by applicable law, in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company and the Holder on the one hand and of the underwriters on
the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations and (ii) as between the Company on the one hand and each Holder
on the other, in such proportion as is appropriate to reflect the relative fault
of the Company and of each Holder in connection with such statements or
omissions, as well as any other relevant equitable considerations.
In no event shall the obligation of any Indemnifying Party to
contribute under this Section 5 exceed the amount that such Indemnifying Party
would have been obligated to pay by way of indemnification if the
indemnification provided for under Section 4 hereof had been available under the
circumstances.
8
The amount paid or payable by an Indemnified Party as a result of the
losses, claims, damages and liabilities referred to in the next preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses incurred by such Indemnified Party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 5, no Holder or underwriter shall
be required to contribute any amount in excess of the amount by which (i) in the
case of a Holder, the net proceeds received by such Holder from the sale of
Warrant Stock or (ii) in the case of an underwriter, the total price at which
the Warrant Stock purchased by it and distributed to the public were offered to
the public exceeds, in any such case, the amount of any damages that such Holder
or underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
6. Survival. The indemnity and contribution agreements contained
--------
herein shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement or any underwriting agreement, (ii) any
investigation made by or on behalf of any Indemnified Party or by or on behalf
of the Company and (iii) the consummation of the sale or successive resales of
the Warrant Stock.
7. Remedies. Holder and each Holder of Warrant Stock, in addition
--------
to being entitled to exercise all rights hereto and all other rights granted by
law, including recovery of damages, will be entitled to specific performance of
its rights under Agreement. The Company agrees that monetary damages would not
be adequate compensation for any loss incurred by reason of a breach by it of
the provisions of this Agreement and hereby agrees to waive the defense in any
action for specific performance that a remedy at law would be adequate.
8. Future Registration Rights. Until such time as the Registration
--------------------------
has been declared effective by the Commission, the Company shall not grant to
any third party any registration rights equal to or more favorable than those
contained herein; provided, however, that the foregoing prohibition shall not
prevent the Company from granting to a third party specific registration rights
that are equal to those contained herein, as long as all of the registration
rights granted to such third party, taken as a whole, are less favorable to the
third party that those granted to the Holder herein. In the event that the
Registration shall fail to remain effective (or a stop order shall be entered
with respect thereto) while any of the Warrant Stock remain unsold, the
provisions of this Section 8 shall become applicable once again.
9. Modification and Waiver. No modification or waiver of any
-----------------------
provision of this Agreement and no consent by the Holder to any departure
therefrom by the Company shall be effective unless such modification or waiver
shall be in writing and signed by a duly authorized officer of the Holder, and
the same shall then be effective only for the period and on the conditions and
for the specific instances and purposes specified in such writing. No notice to
9
or demand on the Company in any case shall entitle the Company to any other or
further notice or demand in similar or other circumstances.
10. Governing Law. This Agreement and the transactions contemplate
-------------
hereby shall be deemed to be consummated in the State of Nevada and shall be
governed by and interpreted in accordance with the local laws of the State of
Nevada without regard to the provisions thereof relating to conflict of laws.
11. Notices. All notices, requests, demands or other communications
-------
provided for herein shall be in writing and shall be deemed to have been given
three days after being sent by registered or certified mail, return receipt
requested, or when personally delivered, or successfully sent by facsimile
transmission as evidenced by a fax machine generated confirmation report
thereof, addressed as the case may be, to the Holder at Oracle Partners, L.P.,
712 Fifth Avenue, 45th Floor, New York, New York 10019, Attention: Larry
Feinberg, Facsimile No. (212) 459-0863; with a copy to Kane Kessler, P.C., 1350
Avenue of the Americas, New York, New York 10019; Attention Robert L. Lawrence,
Esq., Facsimile No. (212) 245-3009; or the Company at Clinicor, Inc., 1717 West
Sixth Street, Suite 400, Austin, Texas 78703, Attention: Robert Sammis,
Facsimile No. (512) 477-0027; with a copy to Graves, Dougherty, Hearon & Moody,
515 Congress Avenue, Suite 2300, Austin, Texas, Attention: Karen Bartoletti,
Esq., Facsimile No. (512) 478-1976, or to such other person or address as either
party shall designate to the other from time to time in writing forwarded in
like manner.
12. Stamp or Other Tax. Should any stamp or excise tax become
------------------
payable in respect of this Agreement, or any modification hereof, the Company
shall pay the same (including interest and penalties, if any) and shall hold the
Holder harmless with respect thereto.
13. Waiver of Jury Trial and Setoff. The Company hereby waives trial
-------------------------------
by jury in any litigation in any court with respect to, in connection with, or
arising out of this Agreement, or any instrument or document delivered pursuant
to this Agreement; and the Company hereby waives the right to interpose any
setoff or noncompulsory counterclaim or cross-claim in connection with any such
litigation, irrespective of the nature of such setoff, counterclaim or cross-
claim.
14. Service of Process. The Company hereby irrevocably consents to
------------------
the jurisdiction of the United States District Court located in New York City,
New York in connection with any action or proceeding arising out of or relating
to this Agreement. In any such litigation the Company waives personal service
of any summons, complaint or other process and agrees that the service thereof
may be made certified or registered mail directed to the Company at its address
set forth in Section 11. Within 30 days after such mailing, the Company so
served shall appear or answer to such summons, complaint or other process.
Should the Company so served fail to appear or answer within said 30-day period,
the Company shall be deemed in default and judgment may be entered by the Holder
against the Company for the amount as demanded in any summons, complaint or
other process so served.
10
15. Benefit of Agreement. This Agreement shall be binding upon and
--------------------
inure to the benefit of the Company and Oracle and their respective successors
and assigns.
16. Counterparts. This Agreement may be executed by the parties
------------
hereto in one or more counterparts, each of which shall be an original and all
of which shall together constitute one and the same agreement.
17. Severability. Wherever possible, each provision of this
------------
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be modified to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
IN WITNESS WHEREOF, the Company and the Holder have caused this
Agreement to be duly executed by their respective officers thereunto duly
authorized as of the day and year first above written.
CLINICOR, INC.
By: /s/ James W. Clark, Jr.
-----------------------------
Name: James W. Clark, Jr.
Title: VP Finance, Treasurer
& CFO
ORACLE PARTNERS, L.P.
By: /s/ Larry Feinberg
-----------------------------
Name: Larry Feinberg
Title: Managing General Partner
11