REGISTRATION RIGHTS AGREEMENT
THIS AGREEMENT is made as of February 28, 1997 by and among IBAH, Inc., a
Delaware corporation (the "Company") and Catapult Pty., Ltd., an Australian
company (the "Holder").
Background
The Holder is acquiring on the date of Closing the number of shares of
Common Stock, par value $0.01 per share, of the Company (the "Common Stock")
required by Section 2.1 (d) of the Stock Purchase Agreement (defined below). The
Company has agreed to provide the registration rights provided for in this
Agreement as an inducement for the Holder to sell all of the capital stock of
Pharmaco US to the Company pursuant to the Stock Purchase Agreement, dated
February 28, 1997, by and among the Company, the Holder and Phillip Altman and
Juanita Altman (the "Stock Purchase Agreement"), and to enter into other
agreements contemporaneously with this Agreement.
Witnesseth:
The parties hereto, each intending to be legally bound and in exchange for
the mutual covenants herein, agree as follows:
1. Inclusion in Offerings. If, during the period beginning the date hereof and
ending 12 months from the date hereof (the "First Registration Period"), the
Company or any security holder of the Company files a registration statement
with the Securities and Exchange Commission to register the Company's Common
Stock (a "Registration"), other than (i) a registration statement on Form S-4,
(ii) a registration statement on Form S-8 or (ii) a registration statement in
connection with an underwritten public offering, the Company shall ensure that
all Registrable Securities shall be included in such Registration if so
requested by the Holders owning such Registrable Securities; provided, however,
that the Holders shall not be entitled under this Section 1 to have included in
a Registration Registrable Securities with a value (as determined by the price
at which such Registrable Securities are to be offered) greater than 25% of the
total number of the securities registered in such Registration.
2. Demand Registrations.
(a) Requests for Registration. For the period beginning immediately
following the expiration of the First Registration Period and ending 12 months
thereafter, the Holders may demand registration (a "Demand Registration") under
the Securities Act of 1933, as amended (the "1933 Act"), of all or any part of
the Registrable Securities owned by such Holders. In order to accomplish such
demand, the Holder shall send written notice of the demand to the Company, and
such notice shall specify the number of Registrable Securities sought to be
registered. The Company shall only be required to effect one Demand
Registration.
(b) Priority on Demand Registrations. If a Demand Registration is
underwritten and the managing underwriters advise the Company in writing that in
their opinion the number of Registrable Securities requested to be included
exceeds the number that can be sold in such offering, at a price reasonably
related to fair value, the Company will
include in such Demand Registration (i) first, the Registrable Securities
requested to be included in such Demand Registration by the Holder; (ii) second,
any securities that the Company desires to include on its own behalf; and (iii)
third, any shares of Common Stock held by any other stockholder of the Company
to whom registration is offered.
(c) Selection of Underwriters. If any Demand Registration is underwritten,
the selection of investment banker(s) and manager(s) and the other decisions
regarding the underwriting arrangements for the offering will be made by the
Company and the Holders participating in the Demand Registration.
(d) Restrictions on Demand Registrations. The Company will not be obligated
to effect any Demand Registration within six months after the effective date of
a previous registration of securities of the Company in an underwritten
offering.
3. Registration and Offering Expenses. In connection with all registrations
and Offerings of Registrable Securities under this Agreement, the Company shall
pay the Registration Expenses (defined below) related to the Registrable
Securities of the Holders, but the Holders shall pay the Underwriting
Commissions (defined below), if any, related to their Registrable Securities.
4. Holdback Agreements. The Holders shall not effect any public sale or
distribution of equity securities of the Company or any securities convertible
into or exchangeable or exercisable for such securities during a period prior to
and after any underwritten offering is consummated (except as part of such
Offering) that is determined by the underwriters of such offering.
5. Indemnification.
(a) The Company shall indemnify, to the extent permitted by law, each
Holder, its officers and directors, and each person who controls such holder
(within the meaning of the 1933 Act or the Securities Exchange Act of 1934, as
amended ("the 1934 Act")) (each, a "Holder Indemnitee"), against all losses,
claims, damages, liabilities and expenses arising out of or resulting from any
untrue or alleged untrue statement of material fact contained in any
registration statement, prospectus or preliminary prospectus 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 except insofar as the
same are caused by or contained in any information furnished in writing to the
Company by such Holder Indemnitee, acting in its capacity as a stockholder (or
an officer, director or controller of a stockholder) expressly for use therein
or by any such Holder Indemnitee's failure to deliver a copy of the registration
statement or prospectus or any amendments or supplements thereto after the
Company has furnished such Holder Indemnitee with a sufficient number of copies
of the same.
(b) In connection with any registration statement in which a Holder is
participating, each such Holder shall furnish to the Company in writing such
information as is reasonably requested by the Company for use in any such
registration statement or prospectus and shall indemnify, to the extent
permitted by law, the Company, its directors and officers and each person who
controls the Company (within the meaning of the 1933 Act or the 1934 Act)
against any losses, claims, damages, liabilities and expenses resulting from any
untrue or alleged untrue statement of material fact or any omission or alleged
omission of a material fact required to be stated in the registration statement
or
prospectus or any amendment thereof or supplement thereto or necessary to make
the statements therein not misleading, but only to the extent that such untrue
statement or omission is contained in information so furnished in writing by
such Holder (i) specifically for use in preparing the registration statement and
(ii) in such Holder's capacity as a stockholder of the Company, and not in such
Holder s capacity as an officer, director or employee of the Company.
(c) Any person entitled to indemnification hereunder shall (i) give prompt
notice to the indemnifying party of any claim with respect to which it seeks
indemnification and (ii) unless in such indemnified party's reasonable judgment
a conflict of interest between such indemnified and indemnifying parties may
exist with respect to such claim, permit such indemnifying party to assume the
defense of such claim with counsel reasonably satisfactory to the indemnified
party. If such defense is assumed, the indemnifying party shall not be subject
to any liability for any settlement made without its consent (but such consent
will not be unreasonably withheld). An indemnifying party who is not entitled,
or elects not, to assume the defense of a claim shall not be obligated to pay
the fees and expenses of more than one counsel for all parties indemnified by
such indemnifying party with respect to such claim, unless in the reasonable
judgment of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim.
6. Definitions.
(a) The term "Registrable Securities" means (i) the shares of Common Stock
registered in the names of the Holders and listed beside each Holder's name on
Appendix A hereto and (ii) any securities issued or to be issued with respect to
the securities referred to above by way of a stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization. As to any particular Registrable Securities, such
securities will cease to be Registrable Securities when they have been (A)
effectively registered under the 1933 Act and disposed of in accordance with the
registration statement covering them, or (B) transferred pursuant to Rule 144
(or any similar provision then in force).
(b) The term "Registration Expenses" means all expenses incident to the
Company's performance of or compliance with this Agreement, including all
registration and filing fees, fees and expenses of compliance with securities or
blue sky laws, printing expenses, messenger and delivery expenses, expenses and
fees for listing the securities to be registered on exchanges on which similar
securities issued by the Company are then listed, and fees and disbursements of
counsel for the Company and of all independent certified public accountants,
underwriters (other than Underwriting Commissions) and other persons retained by
the Company.
(c) The term "Underwriting Commissions" means all underwriting discounts or
commissions relating to the sale of securities of the Company, but excludes any
expenses reimbursed to underwriters.
7. Miscellaneous.
(a) Notices. Any notices required hereunder shall be deemed to be given
upon the earlier of the date when received at, or the seventh day after the date
when sent by certified or registered mail to, the address of the Company's
corporate headquarters in the
case of any notice to the Company, and until changed by notice to the Company,
the respective addresses of the Holders on file with the Company in the case of
any notice to the Holders.
(b) Amendments and Waivers. The provisions of this Agreement may be
amended or terminated and the Company may take any action herein prohibited, or
omit to perform any act herein required to be performed by it, if approved in
writing by the Holders that own beneficially two-thirds of the Registrable
Securities.
(c) Binding Effect. This Agreement will bind and inure to the benefit of
the respective successors (including any successor resulting from a merger or
similar reorganization), assigns, heirs, and personal representatives of the
parties hereto.
(d) Governing Law. All questions concerning the construction, validity and
interpretation of this Agreement will be governed by the internal law, not the
law of conflicts, of Delaware.
(e) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be considered to be an original instrument and
to be effective as of the date first written above. Each such copy shall be
deemed an original, and it shall not be necessary in making proof of this
Agreement to produce or account for more than one such counterpart.
(f) Interpretation. Unless the context of this Agreement clearly requires
otherwise, (a) references to the plural include the singular, the singular the
plural, the part the whole, (b) references to one gender include all genders,
(c) "or" has the inclusive meaning frequently identified with the phrase
"and/or" and (d) "including" has the inclusive meaning frequently identified
with the phrase "but not limited to." The section and other headings contained
in this Agreement are for reference purposes only and shall not control or
affect the construction of this Agreement or the interpretation thereof in any
respect.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have
hereunto duly executed this Agreement the day and year first written above.
IBAH, INC.
By:_______________________________
Name:
Title:
CATAPULT PTY., LTD.
By:_______________________________
Name:
Title: