EXHIBIT 10.3
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated as of
February 2, 1999 (this "Agreement"), is made by and among
AMERICAN ELECTROMEDICS CORP., a Delaware corporation, with
headquarters located at 13 Columbia Drive, Suite 5, Amherst, New
Hampshire 03031 (the "Company"), and the purchasers listed on
Exhibit A attached hereto (each, a "Purchaser," and collectively,
the "Purchasers").
W I T N E S S E T H:
WHEREAS, pursuant to a Securities Purchase Agreement,
dated as of February 2, 1999, among the Purchasers and the
Company (the "Securities Purchase Agreement"), the Company has
agreed to issue and sell to the Purchasers up to 2,000 shares of
its Series B Convertible Preferred Stock, par value $.01 per
share (the "Series B Preferred Stock"), at an aggregate purchase
price of $2,000,000, which Series B Preferred Stock is
convertible into shares of Common Stock, $.10 par value per share
(the "Common Stock"), of the Company, together with warrants to
purchase 25,000 shares of Common Stock (the "Warrants");
WHEREAS, pursuant to the terms of the Certificate of
Designations (as defined in the Securities Purchase Agreement)
and the Warrants, upon the conversion of the Series B Preferred
Stock and upon exercise of the Warrants, the Company will issue
to the Purchasers shares of Common Stock (such shares are
referred to herein as the "Shares"); and
WHEREAS, to induce the Purchasers to execute and
deliver the Securities Purchase Agreement, the Company has agreed
to provide certain registration rights under the Securities Act
of 1933, as amended (the "Securities Act"), and applicable state
securities laws.
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 are hereby
acknowledged, the Company and each of the Purchasers hereby
agrees as follows:
1. Definitions. As used in this Agreement, the following
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terms shall have the following meanings:
(i) "Holders" means Purchasers whose Registrable
Securities are included in a Registration Statement filed
pursuant to this Agreement.
(ii) "Purchaser" means the Purchasers identified
on Exhibit A hereto, or any transferee or assignee who agrees to
become bound by the provisions of this Agreement in accordance
with Section 9 hereof.
(iii) "Register," "Registered," and
"Registration" refer to a registration effected by preparing and
filing a Registration Statement or Statements in compliance with
the Securities Act and pursuant to Rule 415 under the Securities
Act or any successor rule providing for offering securities on a
continuous basis ("Rule 415"), and the declaration or ordering of
effectiveness of such Registration Statement by the United States
Securities and Exchange Commission (the "Commission").
(iv) "Registrable Securities" means the Shares.
(v) "Registration Statement" means a registration
statement of the Company under the Securities Act.
Capitalized terms used herein and not otherwise defined
herein shall have the meanings set forth in the Securities
Purchase Agreement.
2. Registration.
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2.01 Mandatory Registration. By no later than the
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later of (i) thirty (30) days after the Closing Date and (ii)
thirty (30) days after the date the Company's Registration
Statement on Form SB-2 (File No. 333-58937) becomes effective
(the "Required Filing Date"), the Company shall file with the
Commission a Registration Statement on Form SB-2, or any other
applicable form which the Company is eligible to use to register
its securities, covering at least two (2) times the sum of: (i)
the number of Shares that are issuable upon conversion of the
Series B Preferred Stock on the date of filing, without regard to
any limitation on any holder's ability to convert the Series B
Preferred Stock, and (ii) the 25,000 Shares issuable upon
exercise of the Warrants, or to prevent dilution resulting from
stock splits or stock dividends. The Company shall use its best
efforts to cause such Registration Statement to become effective
within ninety (90) days of the Required Filing Date (or, if the
Commission elects to conduct a review of such Registration
Statement, one hundred and twenty (120) days of the Required
Filing Date) but not later than five (5) business days after the
Commission indicates there are no additional comments to the
Registration Statement (such later date being the "Unrestricted
Date"). If the Registration Statement is not declared effective
by the Commission by the Unrestricted Date, the Company shall pay
the Holders for each full thirty (30) day period following such
date during which the Registration Statement remains ineffective,
liquidated damages in the amount of two percent (2%) of the face
amount of the Series B Preferred Stock, provided, however, that
in no event shall the total amount of liquidated damages paid by
the Company to the Purchasers exceed one hundred thousand dollars
($100,000). No payment shall be due for any portion of any such
period which is less than a full thirty (30) days. All such
payments shall be made, at the Company's election, in cash or
shares of its Common Stock at Closing Bid Price calculated in
accordance with Section 1(c) of the Certificate of Designation
within ten (10) days of the date the Company receives from a
Holder a written request for such payment. The Company shall
keep the Registration Statement effective pursuant to Rule 415 at
all times until such date as is the earlier of (i) the date on
which all of the Registrable Securities have been sold and (ii)
the date on which the Registrable Securities (in the opinion of
counsel to the Purchasers) may be immediately sold without
restriction (including without limitation as to volume by each
holder thereof) without registration under the Securities Act
(the "Registration Period"). The Company shall not include in
any Registration Statement filed under this Agreement securities
to be offered and sold by the Company or any holders other than
the Purchasers without the prior consent of the Purchasers
holding a majority in interest of the Registrable Securities.
2.02 Eligibility for Form SB-2. The Company represents
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and warrants that it meets all of the requirements for the use of
Form SB-2 for the Registration of the sale by the Purchasers and
any transferee who purchases the Registrable Securities, and the
Company shall file all reports required to be filed by the
Company with the Commission in a timely manner, and shall take
such other actions as may be necessary to maintain such
eligibility for the use of Form SB-2.
3. Obligations of the Company. In connection with the
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registration of the Registrable Securities, the Company shall do
each of the following:
3.01 Filing. Prepare promptly, and file with the
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Commission by the Required Filing Date, a Registration Statement
with respect to not less than the number of Registrable
Securities provided in Section 2.01 above, and thereafter use its
reasonable best efforts to cause the Registration Statement
relating to Registrable Securities to become effective by the
Unrestricted Date and keep the Registration Statement effective
at all times until the earliest (the "Registration Period") of
(i) the date that is two (2) years after the Closing Date, (ii)
the date when the Holders may sell all Registrable Securities
under Rule 144 or (iii) the date the Purchasers no longer own any
of the Registrable Securities.
3.02 Amendments. Prepare and file with the Commission
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such amendments (including post-effective amendments) and
supplements to the Registration Statement and the prospectus (the
"Prospectus") used in connection with the Registration Statement
as may be necessary to keep the registration effective at all
times during the Registration Period, and, during the
Registration Period, comply with the provisions of the Securities
Act with respect to the disposition of all Registrable Securities
of the Company covered by the Registration Statement until such
time as the Company has no further obligation under Section 3.01
hereof to cause the Registration Statement to remain effective.
3.03 Purchasers' Counsel. The Company shall permit a
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single firm of counsel designated by the Purchasers to review the
Registration Statement and all amendments and supplements thereto
a reasonable period of time (but not less than three (3) business
days) prior to their filing with the Commission, and not file any
document in a form to which such counsel reasonably objects.
3.04 Notification. Notify the Holders of Registrable
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Securities to be sold, their counsel and any managing
underwriters immediately (and, in the case of (i)(A) below, not
less than five (5) days prior to such filing) and (if request by
any such Person) confirm such notice in writing no later than one
(1) business day following the day (i)(A) when a Prospectus or
any Prospectus supplement or post-effective amendment to the
Registration Statement is proposed to be filed; (B) whenever the
Commission notifies the Company whether there will be a review of
such Registration Statement; (C) whenever the Company receives
(or representatives of the Company receive on its behalf) any
oral or written comments from the Commission respect of a
Registration Statement (copies or, in the case of oral comments,
summaries of such comments shall be promptly furnished by the
Company to the Holders); and (D) with respect to the Registration
Statement or any post-effective amendment, when the same has
become effective; (ii) of any request by the Commission or any
other federal or state governmental authority for amendments or
supplements to the Registration Statement or Prospectus or for
additional information; (iii) of the issuance by the Commission
of any stop order suspending the effectiveness of the
Registration Statement covering any or all of the Registrable
Securities or the initiation of any Proceedings for that purpose;
(iv) if at any time any of the representations or warranties of
the Company contained in any agreement (including any
underwriting agreement) contemplated hereby ceases to be true and
correct in all material respects; (v) of the receipt by the
Company of any notification with respect to the suspension of the
qualification or exemption from qualification of any of the
Registrable Securities for sale in any jurisdiction, or the
initiation or threatening of any proceeding for such purpose; and
(vi) of the occurrence of any event that to the best knowledge of
the Company makes any statement made in the Registration
Statement or Prospectus or any document incorporated or deemed to
be incorporated therein by reference untrue in any material
respect or that requires any revisions to the Registration
Statement, Prospectus or other documents so that, in the case of
the Registration Statement or the Prospectus, as the case may be,
it will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. In
addition, the Company shall furnish the Holders with copies of
all intended written responses to the comments contemplated in
clause (C) of this Section 3.04 not later than one (1) business
day in advance of the filing of such responses with the
Commission so that the Holders shall have the opportunity to
comment thereon.
3.05 Furnish Copies. Furnish to each Holder and its
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legal counsel identified to the Company, (i) promptly after the
same is prepared and publicly distributed, filed with the
Commission, or received by the Company, one (1) copy of the
Registration Statement, each preliminary Prospectus and
Prospectus, and each amendment or supplement thereto, and (ii)
such number of copies of a Prospectus, and all amendments and
supplements thereto and such other documents, as such Holder may
reasonably request in order to facilitate the disposition of the
Registrable Securities owned by such Holder.
3.06 Future Amendments. As promptly as practicable
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after becoming aware of such event, notify each Holder of the
happening of any event of which the Company has knowledge, as a
result of which the Prospectus included in the Registration
Statement, as then in effect, includes an 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
light of the circumstances under which they were made, not
misleading, and use its best efforts promptly to prepare a
supplement or amendment to the Registration Statement or other
appropriate filing with the Commission to correct such untrue
statement or omission, and deliver a number of copies of such
supplement or amendment to each Holder as such Holder may
reasonably request.
3.07 Stop Orders. As promptly as practicable after
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becoming aware of such event, notify each Holder who holds
Registrable Securities being sold (or, in the event of an
underwritten offering, the managing underwriters) of the issuance
by the Commission of a Notice of Effectiveness or any notice of
effectiveness or any stop order or other suspension of the
effectiveness of the Registration Statement at the earliest
possible time.
3.08 Suspend Sales. Notwithstanding the foregoing, if
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at any time or from time to time after the date of effectiveness
of the Registration Statement, the Company notifies the Holders
in writing of the existence of a potential material event, the
Holders shall not offer or sell any Registrable Securities, or
engage in any other transaction involving or relating to the
Registrable Securities, from the time of the giving of notice
with respect to a potential material event until such Holder
receives written notice from the Company that such potential
material event either has been disclosed to the public or no
longer constitutes a potential material event; provided, however,
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that the Company may not so suspend the right to such Holders of
Registrable Securities for more than two twenty (20) day periods
in the aggregate during any 12-month period (Suspension Period)
with at least a ten (10) business day interval between such
periods, during the Registration Period.
3.09 Transfer Agent. Provide a transfer agent and
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registrar, which may be a single entity, for the Registrable
Securities not later than the effective date of the Registration
Statement.
4. Obligations of the Purchasers. In connection with the
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registration of the Registrable Securities, the Purchasers shall
have the following obligations:
4.01 Take Actions. Take all other reasonable actions
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necessary to expedite and facilitate the disposition by the
Purchasers of the Registrable Securities pursuant to the
Registration Statement.
4.02 Furnish Information. It shall be a condition
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precedent to the obligations of the Company to complete the
registration pursuant to this Agreement of the Registrable
Securities of each Purchaser that such Purchaser shall furnish to
the Company such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of
the Registrable Securities held by it, as shall be reasonably
required to effect the registration of such Registrable
Securities, and such Purchaser shall execute such documents in
connection with such registration as the Company may reasonably
request. At least five (5) days prior to the first anticipated
filing date of the Registration Statement, the Company shall
notify such Purchaser of the information the Company requires
from such Purchaser (the "Requested Information") if such
Purchaser elects to have any of its Registrable Securities
included in the Registration Statement. If, at least two (2)
business days prior to the filing date, the Company has not
received the Requested Information from a Purchaser, then the
Company may file the Registration Statement without including the
Registrable Securities of such Purchaser.
4.03 Cooperation. The Purchaser, by such Purchaser's
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acceptance of the Registrable Securities, agrees to cooperate
with the Company as reasonably requested by the Company in
connection with the preparation and filing of any Registration
Statement hereunder, unless such Purchaser has notified the
Company in writing of such Purchaser's election to exclude all of
such Purchaser's Registrable Securities from such Registration
Statement.
4.04 Suspend Sales. Each Purchaser agrees that, upon
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receipt of any notice from the Company of the happening of any
event of the kind described in Section 3.06 or 3.08 hereof, such
Purchaser will immediately discontinue disposition of its
Registrable Securities pursuant to the Registration Statement
covering such Registrable Securities until such copies of the
supplemented or amended Prospectus contemplated by Section 3.06
or 3.08 hereof shall be furnished to such Purchaser.
4.05 Underwritten Offering. If the offering covered by
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the Registration Statement to be underwritten, at the request of
the managing underwriters, each Purchaser or his permitted
assignee holding more than one percent (1%) of the Company's
voting securities shall agree not to sell or otherwise transfer
or dispose of any Registrable Securities of the Company held by
such Purchaser (other than those included in the Registration
Statement) for a period specified by the underwriters not to
exceed ninety (90) days following the effective date of the
Registration Statement, provided that all officers and directors
of the Company enter into similar agreements.
5. Expenses of Registration. All expenses, other than
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underwriting discounts and commissions and other fees and
expenses of investment bankers and other than brokerage
commissions and counsel of the Holders (to the extent such fees
exceed the amount to be paid by the Company), incurred in
connection with the registration, filings or qualifications
pursuant to Section 3 hereof but including, without limitation,
all registration, listing, and qualifications fees, printing and
accounting fees, the fees and disbursements of counsel and
auditors for the Company, and the fees of counsel to the Holders
not in excess of $2,500, shall be borne by the Company.
6. Indemnification. In the event any Registrable
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Securities are included in a Registration Statement under this
Agreement:
6.01 By the Company. To the extent permitted by law,
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the Company will indemnify and hold harmless each Purchaser who
holds such Registrable Securities, the directors, if any, of such
Purchaser, the officers, if any, of such Purchaser, each person,
if any, who controls any Purchaser within the meaning of the
Securities Act or the Exchange Act (each, an "Indemnified
Person"), against any losses, claims, damages, liabilities or
expenses (joint or several) incurred (collectively, "Claims") to
which any of them may become subject under the Securities Act,
the Exchange Act or otherwise, insofar as such Claims (or actions
or proceedings, whether commenced or threatened, in respect
thereof) arise out of or are based upon: (i) any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement or any post-effective amendment thereof or
the omission or alleged omission to state therein a material fact
required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances in which they
were made, not misleading, (ii) any untrue statement or alleged
untrue statement of a material fact contained in any preliminary
Prospectus if used prior to the effective date of such
Registration Statement, or contained in the final Prospectus (as
amended or supplemented, if the Company files any amendment
thereof or supplement thereto with the Commission) or the
omission or alleged omission to state therein any material fact
necessary in order to make the statements made therein, in light
of the circumstances under which they were made, not misleading,
or (iii) any violation or alleged violation by the Company of the
Securities Act, the Exchange Act, any state or foreign securities
law or any rule or regulation under the Securities Act, the
Exchange Act or any state or foreign securities law (the matters
in foregoing clauses (i) through (iii) being, collectively,
"Violations"). The Company shall, subject to the provisions of
Section 6.02 hereof, reimburse each Purchaser or Holder if other
than a Purchaser, promptly as such expenses are incurred and are
due and payable, for any reasonable legal and other costs,
expenses and disbursements in giving testimony or furnishing
documents in response to a subpoena or otherwise, including
without limitation, the reasonable costs, expenses and
disbursements, as and when incurred, of investigating, preparing
or defending any such action, suit, proceeding or investigation
(whether or not in connection with litigation in which such
Purchaser is a party), incurred by it in connection with the
investigation or defense of any such Claim. Notwithstanding
anything to the contrary contained herein, the indemnification
agreement contained in this Section 6.01 shall not (i) apply to
any Claim arising out of or based upon a Violation which occurs
in reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of any Indemnified Person
expressly for use in connection with the preparation of the
Registration Statement or any such amendment thereof supplement
thereto, and the Purchaser or Holder if other than a Purchaser,
furnishing such information shall indemnify and hold harmless the
Company against any such Claims; (ii) with respect to any
preliminary Prospectus, inure to the benefit of any such person
from whom the person asserting any such Claim purchased the
Registrable Securities that are the subject thereof (or to the
benefit of any person controlling such person) if the untrue
statement or omission of material fact contained in the
preliminary Prospectus was corrected in the final Prospectus, as
then amended or supplemented, if such final Prospectus was timely
made available by the Company pursuant to Section 3.02 hereof,
and the Purchaser or Holder if other than a Purchaser, failing to
make such delivery shall indemnify and hold harmless the Company
against any such claim; (iii) be available to the extent that
such Claim is based upon a failure of the Purchaser or Holder if
other than a Purchaser, to deliver or to cause to be delivered
the prospectus made available by the Company, if such prospectus
was timely made available by the Company pursuant to Section 3.02
hereof and the Purchaser or Holder if other than a Purchaser,
failing to make such delivery shall indemnify and hold harmless
the Company against any such claim; or (iv) apply to amounts paid
in settlement of any Claim if such settlement is effected without
the prior written consent of the Company, which consent shall not
be unreasonably withheld. Such indemnity shall remain in full
force and effect regardless of any investigation made by or on
behalf of the Indemnified Person and shall survive the transfer
of the Registrable Securities by the Purchaser pursuant to
Section 9.
6.02 By the Purchaser. Each Purchaser will indemnify
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the Company and its officers and directors against any Claims
arising out of or based upon a Violation which occurs in reliance
upon and in conformity with information furnished in writing to
the Company, by or on behalf of such Purchaser, expressly for use
in connection with the preparation of the Registration Statement,
subject to such limitations and conditions are applicable to the
Indemnification provided by the Company to this Section 6.
6.03 Notice of Claim. Promptly after receipt by an
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Indemnified Person under this Section 6 of notice of the
commencement of any action (including any governmental action),
such Indemnified Person shall, if a Claim in respect thereof is
to be made against any indemnifying party under this Section 6,
deliver to the indemnifying party a written notice of the
commencement thereof, and the indemnifying party shall have the
right to participate in, and to the extent that the indemnifying
party so desires, jointly with any other indemnifying party
similarly notified, to assume control of the defense thereof with
counsel mutually satisfactory to the indemnifying party and the
Indemnified Person, provided, however, that an Indemnified Person
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shall have the right to retain its own counsel with the fees and
expenses to be paid by the indemnifying party, if, in the
reasonable opinion of counsel retained by the indemnifying party,
the representation by such counsel of the Indemnified Person and
the indemnifying party would be inappropriate due to actual or
potential differing interests between such Indemnified Person and
any other party represented by such counsel in such proceeding.
In such event, the Company shall pay for only one separate legal
counsel for the Holders, and such legal counsel shall be selected
by the Holders holding a majority in interest of the Registrable
Securities included in the Registration Statement to which the
Claim relates. The failure to deliver written notice to an
indemnifying party within a reasonable time after the
commencement of any such action shall not relieve such
indemnifying party of any liability to the Indemnified Person
under this Section 6, except to the extent that the indemnifying
party is materially prejudiced in its ability to defend such
action. The indemnification required by this Section 6 shall be
made by periodic payments of the amount thereof during the course
of the investigation or defense, as such expense, loss, damage or
liability is incurred and is due and payable.
6.04 No Consent. No indemnifying party, in the defense
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of any such claim or litigation, shall, except with the consent
of each Indemnified Party, consent to entry of any judgment or
enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Person of an unconditional and
irrevocable release from all liability in respect of such claim
or litigation.
6.05 Underwriting Agreement. Notwithstanding the
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foregoing, to the extent that any provisions relating to
indemnification or contribution contained in the underwriting
agreements entered into among the Company, the underwriters and
any Holders in connection with the underwritten public offering
are in conflict with the foregoing provisions, the provisions in
such underwriting agreements shall be controlling as to the
Registrable Securities included in the public offering.
7. Contribution. To the extent any indemnification under
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Section 6 hereof by an indemnifying party is prohibited or
limited under applicable law, the indemnifying party agrees to
contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage, liability or
expense in such proportion as is appropriate to reflect the
relative fault of the indemnifying party on the one hand and the
Indemnified Person on the other hand in connection with the
statements or omissions which resulted in such Claim, as well as
any other relevant equitable considerations. The relative fault
of the indemnifying party and the Indemnified Person shall be
determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied
by the indemnifying party or by the Indemnified Person, and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
Notwithstanding the forgoing, (a) no contribution shall be made
under circumstances where the payor would not have been liable
for indemnification under the fault standards set forth in
Section 6 hereof, (b) no seller of Registrable Securities guilty
of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to
contribution from any seller of Registrable Securities who was
not guilty of such fraudulent misrepresentation and
(c) contribution by any seller of Registrable Securities shall be
limited in amount to the net proceeds received by such seller
from the sale of such Registrable Securities. The Company and
each Purchaser agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro
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rata allocation (even if the Holders and any underwriters were
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treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable
considerations referred to in this Section.
8. Reports Under Exchange Act. With a view to making
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available to the Purchasers the benefits of Rule 144 promulgated
under the Securities Act or any other similar rule or regulation
of the Commission that may at any time permit the Purchasers to
sell securities of the Company to the public without registration
("Rule 144"), the Company agrees to:
(a) make and keep public information available, as
those terms are understood and defined in Rule 144;
(b) file with the Commission all reports and other
documents required of the Company under the Securities Act and
the Exchange Act; and
(c) furnish to each Purchaser, so long as such
Purchaser owns Registrable Securities, promptly upon request,
(i) a written statement by the Company that it has complied with
the reporting requirements of the Securities Act and the Exchange
Act, (ii) a copy of the most recent annual or periodic report of
the Company and such other reports and documents so filed by the
Company and (iii) such other information as may be reasonably
requested to permit the Purchasers to sell such securities
pursuant to Rule 144 without registration.
9. Assignment of the Registration Rights. The rights to
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have the Company register Registrable Securities pursuant to this
Agreement shall be automatically assigned by each Purchaser to
any transferee of all or any portion of the Series B Preferred
Stock, Warrants or Registrable Securities held by such Purchaser
if: (a) such Purchaser agrees in writing with the transferee or
assignee to assign such rights, and a copy of such agreement is
furnished to the Company within a reasonable time after such
assignment; (b) the Company is, within a reasonable time after
such transfer or assignment, furnished with written notice of
(i) the name and address of such transferee or assignee and
(ii) the Securities with respect to which such registration
rights are being transferred or assigned; (c) at or before the
time the Company receives the written notice contemplated by
clause (b) of this sentence, the transferee or assignee agrees in
writing with the Company to be bound by all of the provisions
contained herein; and (d) the transfer of the relevant Securities
complies with the restrictions set forth in Section 4 of the
Securities Purchase Agreement. In the event of any delay in
filing the Registration Statement as a result of such assignment,
the Company shall not be liable for any damages arising from such
delay.
10. Amendment of Registration Rights. Any provision of
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this Agreement may be amended and the observance thereof may be
waived (either generally or in a particular instance and either
retroactively or prospectively), only with the written consent of
the Company and the Purchasers who hold a majority in interest of
the Registrable Securities. Any amendment or waiver effected in
accordance with this Section 10 shall be binding upon each
Purchaser and the Company.
11. Miscellaneous.
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11.01 Deemed Holder. A person or entity is deemed
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to be a holder of Registrable Securities whenever such person or
entity owns of record such Registrable Securities. If the
Company receives conflicting instructions, notices or elections
from two or more persons or entities with respect to the same
Registrable Securities, the Company shall act upon the basis of
the instructions, notice or election received from the registered
owner of such Registrable Securities.
11.02 Notices. Any notice required or permitted
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hereunder shall be given in writing (unless otherwise specified
herein) and shall be effective upon personal delivery, via
facsimile (upon receipt of confirmation of error-free
transmission) or two business days following deposit of such
notice with an internationally recognized courier service, with
postage prepaid and addressed to each of the other parties
thereunto entitled at the following addresses, or at such other
addresses as a party may designate by ten (10) days advance
written notice to each of the other parties hereto.
COMPANY: AMERICAN ELECTROMEDICS CORP.
13 Columbia Drive, Suite 5
Amherst, New Hampshire 03031
ATT: Michael T. Pieniazek, President
Tel: (603) 880-6300
Fax: (603) 880-6390
WITH COPIES TO:
THELEN REID & PRIEST LLP
40 West 57th Street
New York, New York 10019
ATT: Bruce A. Rich, Esq.
Tel: 212-603-6780
Fax: 212-603-2001
PURCHASERS: At the addresses set forth on the signature
page of this Agreement, as such addresses may
be updated from time to time by each of the
Purchasers.
WITH COPIES TO:
KRIEGER & PRAGER, ESQS.
319 Fifth Avenue
New York, New York 10016
Tel: 212-689-3322
Fax: 212-213-2077
11.03 No Waiver. Failure of any party to exercise
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any right or remedy under this Agreement or otherwise, or delay
by a party in exercising such right or remedy, shall not operate
as a waiver thereof.
11.04 Governing Law. This Agreement shall be
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governed by and interpreted in accordance with the laws of the
State of Delaware. Each of the parties consents to the
jurisdiction of the federal courts whose districts encompass any
part of the City of Wilmington or the state courts of the State
of Delaware sitting in the City of Wilmington in connection with
any dispute arising under this Agreement and hereby waives, to
the maximum extent permitted by law, any objection, including any
objection based on forum non conveniens, to the bringing of any
such proceeding in such jurisdictions.
11.05 Validity. If any provision of this Agreement
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shall be invalid, illegal or unenforceable in any jurisdiction,
such validity, legality or unenforceability shall not affect the
validity, legality or enforceability of the remainder of this
Agreement or the validity, legality or enforceability of this
Agreement in any other jurisdiction.
11.06 Entire Agreement. This Agreement constitutes
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the entire agreement among the parties hereto with respect to the
subject matter hereof. There are no restrictions, promises,
warranties or undertakings, other than those set forth, or
referred to herein and in the other Primary Documents. This
Agreement supersedes all prior agreements and understandings
among the parties hereto with respect to the subject matter
hereof.
11.07 Benefit. Subject to the requirements of
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Section 9 hereof, this Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the
parties hereto.
11.08 Construction. All pronouns and any
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variations thereof refer to the masculine, feminine or neuter,
singular or plural, as the context may require. The headings of
this Agreement are for convenience of reference and shall not
form part of, or affect the interpretation of, this Agreement.
11.09 Damages. No party to this Agreement shall be
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liable to any other for any consequential damages as a result of
any failure or delay in the performance of its obligations
hereunder.
11.10 Counterparts. This Agreement may be executed
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in counterparts, any one of which need not contain the signature
of more than one party, and all of which together shall for all
purposes constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement
to be duly executed.
AMERICAN ELECTROMEDICS CORP.
By:
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Michael T. Pieniazek
President
"PURCHASERS"
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