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EXHIBIT 10.4
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and
entered into this 18th day of March, 1999, by and among LifeQuest Medical Inc.,
a Delaware corporation ("LifeQuest"), and the persons whose names are set forth
on the Schedule of Shareholders attached hereto (individually, a "Shareholder"
and collectively, the "Shareholders").
W I T N E S S E T H :
WHEREAS, LifeQuest and Dexterity Incorporated ("Seller") have entered
into a Plan of Merger and Acquisition Agreement dated December _____, 1998 (the
"Merger Agreement"), pursuant to which Seller is about to merge into LifeQuest
on the date of this Agreement; and
WHEREAS, this Agreement is entered into pursuant to Sections 8.1 and
9.2(g) of the Merger Agreement;
NOW, THEREFORE, in consideration of the benefits of the Merger and as
a material inducement to the consummation of the Merger Agreement by LifeQuest
and Seller, the parties hereby agree as follows:
1. Definitions. For purposes of this Agreement, all capitalized words
contained herein but not defined herein shall have those definitions
ascribed to them in the Merger Agreement.
2. Representations and Warranties of the Shareholders Concerning
Securities Laws Matters. Each Shareholder, as to such Shareholder,
represents and warrants to LifeQuest as follows:
(a) Such Shareholder recognizes and understands that the Stock
Consideration to be issued to the Shareholders pursuant to
the Merger Agreement (the "securities") will not be
registered under the Securities Act, or under the securities
laws of any state (the "securities laws"). The securities are
not being so registered in reliance upon exemptions from the
Securities Act and the securities laws which are predicated,
in part, on the representations, warranties and agreements of
each Shareholder contained herein.
(b) (i) Such Shareholder has business knowledge and experience,
such experience being based on actual participation therein,
(ii) such Shareholder is capable of evaluating the merits and
risks of an investment in the Stock Consideration and the
Warrants and the suitability thereof as an investment
therefor, (iii) the Stock Consideration and the Warrants to
be acquired by such Shareholder in connection with the Merger
will be acquired solely for investment and not with a view
toward resale or redistribution in violation of the
securities laws, (iv) the State of such Shareholder's
residence and domicile is as set forth in Schedule 2 attached
hereto, (v) in connection with the ---------- transactions
contemplated hereby, no assurances have been made concerning
the
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future results of LifeQuest or as to the value of the Stock
Consideration or the Warrants and (vi) such Shareholder is an
"accredited investor" within the meaning of Regulation D
promulgated by the SEC pursuant to the Securities Act. Such
Shareholder understands that LifeQuest is under no obligation
to file a registration statement or to take any other action
under the securities laws with respect to any such securities
except as expressly set forth in this Agreement.
(c) Such Shareholder has consulted with such Shareholder's own
counsel in regard to the securities laws and is fully aware
of the circumstances under which such Shareholder is required
to hold the securities, of the limitations on the transfer or
disposition of the securities, that the securities must be
held indefinitely unless the transfer thereof is registered
under the securities laws or an exemption from registration
is available and that no exemption from registration is
likely to become available for at least one year from the
date of acquisition of the securities. Such Shareholder has
been advised by such Shareholder's counsel as to the
provisions of Rules 144 and 145 as promulgated by the
Commission under the Securities Act and has been advised of
the applicable limitations thereof. Such Shareholder
acknowledges that LifeQuest is relying upon the truth and
accuracy of the representations and warranties in this
Agreement by such Shareholder in consummating the
transactions contemplated by the Merger Agreement without
registering the securities under the securities laws.
(d) Such Shareholder has been furnished with the definitive proxy
statement filed with the Commission in connection with the
annual meeting of stockholders of LifeQuest held on May 19,
1998 and copies of LifeQuest's Registration Statement on Form
S-3 filed October 30, 1998, Annual Report on Form 10-KSB/A
for the year ended December 31, 1997, and Quarterly Reports
on Form 10-QSB for the quarters ended March 31, 1998, June
30, 1998, and September 30, 1998 filed with the Commission
under the Exchange Act. Such Shareholder has been furnished
with the complete financial statements of LifeQuest for the
fiscal years ended December 31, 1995, 1996 and 1997, and the
three, six and nine months ended March 31, 1998, June 30,
1998, and September 30, 1998, respectively. Such Shareholder
has been furnished with a summary description of the terms of
the LifeQuest Stock and LifeQuest has made available to each
Shareholder the opportunity to ask questions and receive
answers concerning the terms and conditions of the
transactions contemplated by this Agreement and to obtain any
additional information which they possess or could reasonably
acquire for the purpose of verifying the accuracy of
information furnished to the Shareholder as set forth herein
or for the purpose of considering the transactions
contemplated hereby. LifeQuest has offered to make available
to such Shareholder upon request at any time all exhibits
filed by LifeQuest with the Commission as part of any of the
reports filed therewith.
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(e) Such Shareholder agrees that the certificates representing
such Shareholder's Stock Consideration to be acquired
pursuant to the Merger will be imprinted with the following
legend, the terms of which are specifically agreed to:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), OR UNDER ANY
APPLICABLE STATE SECURITIES LAWS AND ARE "RESTRICTED
SECURITIES" AS THAT TERM IS DEFINED IN RULE 144
UNDER THE ACT. NEITHER THE SECURITIES NOR ANY
INTEREST THEREIN MAY BE OFFERED FOR SALE, SOLD,
TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE ACT AND SUCH STATE SECURITIES LAWS OR AN
EXEMPTION FROM REGISTRATION UNDER SUCH ACT AND SUCH
LAWS WHICH, IN THE OPINION OF COUNSEL FOR THE
HOLDER, WHICH COUNSEL AND OPINION ARE REASONABLY
SATISFACTORY TO THE COUNSEL FOR THIS CORPORATION, IS
AVAILABLE.
(f) Such Shareholder understands and agrees that appropriate stop
transfer notations will be placed in the records of LifeQuest
and with its transfer agent in respect of the securities
which are to be issued to such Shareholder in the Merger.
3. Registration. LifeQuest shall be obligated to the Shareholders as follows:
(a) Demand Registration Rights. As soon as reasonably practicable
after the request therefor by any Shareholder designated a
Requesting Shareholder on the Schedule of Shareholders (each,
a "Requesting Shareholder") LifeQuest will, if LifeQuest is a
registrant entitled to use Form S-3 or any similar or
successor form ("Form S-3") to register the Stock
Consideration (for the purposes of this Section 3, "Stock
Consideration" shall include at any time any shares of
LifeQuest Stock which at or before such time have been issued
upon exercise of the Warrants) for offer and sale by or on
behalf of such Requesting Shareholder, LifeQuest will use its
best efforts to file a registration statement on Form S-3
with the Commission and such applications or other filings as
required under applicable state securities or blue sky laws
sufficient to permit the public offering of the Stock
Consideration by such Requesting Shareholder to be made on a
continuous basis pursuant to Rule 415 under the Act, and
shall use its best efforts to cause such registration
statement to be declared effective so that the Stock
Consideration will be registered for the offering on such
Form; PROVIDED, HOWEVER, that (i) LifeQuest shall be obliged
to file no more than one (1) such registration statement
(which shall become effective) upon the request of the
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same Requesting Shareholder made pursuant to this Section
3(a) in any one calendar year nor more than two such
registrations statements upon the request of such Requesting
Shareholder made at any time (the foregoing shall not limit
the right of any Shareholder to request registration pursuant
to Section 3(b)). Notwithstanding the foregoing, LifeQuest
shall not be obligated to effect a registration pursuant to
this Section 3(a): in any particular jurisdiction in which
LifeQuest would be required to execute a general consent to
service of process in effecting such registration,
qualification or compliance unless LifeQuest is already
subject to service in such jurisdiction and except as may be
required by the Securities Act; if LifeQuest gives notice of
its bona fide intention to effect the filing of a
registration statement with the Commission within 90 days of
such notice; during the period starting with the date 30 days
prior to LifeQuest's good faith estimated date of filing of,
and ending on the date six months immediately following the
effective date of any registration statement pertaining to
securities of LifeQuest, PROVIDED that LifeQuest is actively
employing in good faith all reasonable efforts to cause such
registration statement to become effective; if LifeQuest
shall furnish to the Requesting Shareholder a certificate
signed by the President of LifeQuest stating that in the good
faith judgment of the Board of Directors the filing of a
registration statement would require the disclosure of
material information that LifeQuest has a bona fide business
purpose for preserving as confidential and that is not then
otherwise required to be disclosed, then LifeQuest's
obligation to use its best efforts to file a registration
statement shall be deferred for a period not to exceed 90
days from the receipt of the request to file such
registration by the Requesting Shareholder.
(b) Incidental/Piggyback Registration. So long as any Shareholder
holds at least 25% of the Stock Consideration acquired by
such Shareholder pursuant to the Merger Agreement, each time
after the Closing that LifeQuest proposes to effect a
registration of any of its equity securities (as that term is
defined under Rule 405 of the Rules and Regulations of the
Commission promulgated under the Securities Act) under the
Securities Act, other than a registration on From S-8 or Form
S-4 or similar registration form hereafter authorized or
prescribed by the Commission, including a registration to be
effected pursuant to Section 3(a), LifeQuest will give notice
thereof at least thirty (30) days before the proposed filing
date to each Shareholder who then holds any of the Stock
Consideration and, upon the written request of any such
Shareholder, LifeQuest will include in such registration such
Stock Consideration held by such Shareholder as such
Requesting Shareholder may specify in a notice given to
LifeQuest within twenty (20) days of the first mentioned
notice of its intention to do so to the Shareholders (the
"Piggyback Registration"). Subject to the market cutback
limitations of Section 4, LifeQuest will use its best efforts
to effect the Piggyback Registration under the Securities Act
of the Stock Consideration specified by each Shareholder
under this Section 3(b). Notwithstanding any contrary
provision of this Agreement, this Section 3(b) shall not
apply to a registration effected solely to offer securities
for sale pursuant to, or in connection with, (i) an employee
benefit plan or
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(ii) a transaction subject to Rule 145 under the Securities
Act or in an exchange offer registered on Form S-4 or any
successor form to Form S-4, or to any registration on a form
which does not permit inclusion of Stock Consideration
pursuant to Commission rule or practice.
(c) Registration Procedures and Expenses. If and whenever
LifeQuest is required to include any of the Stock
Consideration in a registration statement under the
Securities Act, as provided in Section 3(a), LifeQuest shall,
as expeditiously as is reasonably practicable, do each of the
following:
(i) prepare and file with the SEC a registration
statement with respect to such Stock Consideration (
which, in the case of an underwritten public
offering, shall be on Form S-1 or other form of
general applicability satisfactory to the managing
underwriter selected as therein provided) and,
subject to the limitations under Section 3(a), use
its best efforts to cause such registration
statement to become effective and remain effective
as provided herein;
(ii) cooperate with the Shareholders whose Stock
Consideration is to be registered by such
registration statement (the "Selling Shareholders")
and any underwriter who shall sell such Stock
Consideration in connection with their review of
LifeQuest made in connection with such registration;
(iii) prepare and file with the SEC such amendments and
supplements to such registration statement and the
prospectus used in connection therewith as may be
necessary to keep such registration statement
effective until the earlier to occur of the sale of
all of such Stock Consideration by the Shareholders
and one year after such registration statement
becomes effective, and to comply with the provisions
of the Securities Act and the Exchange Act with
respect to the disposition of all the Stock
Consideration covered by such registration statement
for such period;
(iv) furnish to the Selling Shareholders such number of
copies of the prospectus forming a part of such
registration statement (including each preliminary
prospectus), in conformity with the requirements of
the Securities Act, and such other documents as the
Selling Shareholders may reasonably request in order
to facilitate the disposition of such Stock
Consideration; and
(v) notify the Selling Shareholders at any time when a
prospectus relating to such Stock Consideration is
required to be delivered under the Securities Act,
of the happening of any event as a result of which
the prospectus forming a part of such registration
statement, as then in effect, includes an untrue
statement of a material fact or omits to state any
material fact required to be stated therein or
necessary to make the statements therein not
misleading in the light
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of the circumstances then existing, and at the
request of any Selling Shareholder, prepare and
furnish to the Selling Shareholders a reasonable
number of copies of any supplement to or any
amendment of such prospectus that may be necessary
so that, as thereafter delivered to the purchasers
of the Stock Consideration, such prospectus shall
not include any 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.
(d) Agreement by the Shareholders. In the event that a
Shareholder participates, pursuant to this Section 3, in the
offering of any of the Stock Consideration, each Shareholder
shall:
(i) furnish LifeQuest all material information
reasonably requested by LifeQuest concerning such
Shareholder and the proposed method of sale or other
disposition of such Stock Consideration and such
other information and undertakings as shall be
reasonably required in connection with the
preparation and filing of the registration statement
covering such Stock Consideration in order to ensure
full compliance with the Securities Act and the
rules and regulations of the SEC thereunder;
(ii) cooperate in good faith with LifeQuest and its
underwriters, if any, in connection with such
registration, including placing such Stock
Consideration in escrow or custody to facilitate the
sale and distribution thereof PROVIDED that such
escrow or custody arrangement shall be no more
restrictive upon such Shareholder than upon any
other holder of LifeQuest Stock for the benefit of
whom such registration is undertaken; and
(iii) make no further sales or other dispositions, or
offers therefor, of such Stock Consideration under
such registration statement if, during the
effectiveness of such registration statement, an
intervening event should occur which, in the opinion
of counsel to LifeQuest, makes the prospectus
included in such registration statement no longer
comply with the Securities Act, so long as written
notice containing the facts and legal conclusions
relied upon by LifeQuest in this regard has been
received by such Shareholder from LifeQuest, until
such time as such Shareholder has received from
LifeQuest copies of a new, amended or supplemented
prospectus complying with the Securities Act, which
prospectus shall be delivered to such Shareholder by
LifeQuest as soon as practicable after such notice.
(e) Allocation of Expenses. If and whenever LifeQuest is required
by the provisions of this Section 3 to use its best efforts
to effect the registration of any of the Stock Consideration
under the Securities Act, LifeQuest shall pay the costs and
expenses
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in connection therewith, other than the attorneys' fees of
counsel for any Shareholder; PROVIDED, HOWEVER, that the
Selling Shareholders shall pay all underwriting discounts,
selling commissions and stock transfer taxes attributable to
any of the Stock Consideration sold by them under such
registration statement.
(f) Indemnification.
(i) In the event of any registration of any of the Stock
Consideration under the Securities Act pursuant to
this Section 3, each Selling Shareholder
participating therein shall indemnify and hold
harmless LifeQuest, each director of LifeQuest, each
officer of LifeQuest who shall sign such
registration statement, each underwriter and any
person who controls LifeQuest or such underwriter
within the meaning of the Securities Act, and
LifeQuest's accountants and legal counsel, against
all expenses, claims, losses, damages and
liabilities (or actions or proceedings in respect
thereof) including any of the foregoing incurred in
settlement of any litigation, commenced or
threatened, with respect to any untrue statement of
any material fact in, or omission of any material
fact required to be stated therein or necessary to
make the statements therein, in light of the
circumstances in which they were made, not
misleading from such registration statement, any
preliminary prospectus or final prospectus contained
therein, or any amendment or supplement thereto, if
such statement or omission was made in reliance upon
and in conformity with written information furnished
to LifeQuest or its underwriter through an
instrument duly executed by or on behalf of such
Shareholder specifically for use in the preparation
of such registration statement, preliminary
prospectus, final prospectus or amendment or
supplement.
(ii) LifeQuest will indemnify each such Selling
Shareholder, his legal counsel and accountants and
each person controlling such Selling Shareholder
within the meaning of Section 15 of the Securities
Act, with respect to which registration,
qualification or compliance has been effected
pursuant to this Agreement, and each underwriter, if
any, and each person who controls any underwriter
within the meaning of Section 15 of the Securities
Act, against all expenses, claims, losses, damages
and liabilities (or actions or proceedings in
respect thereof), including any of the foregoing
incurred in settlement of any litigation, commenced
or threatened, arising out of or based on any untrue
statement (or alleged untrue statement) of a
material fact contained in any registration
statement, prospectus, offering circular or other
document, or any amendment or supplement thereof,
incident to any such registration, qualification or
compliance, or arising out of or based on any
omission (or alleged omission) to state therein a
material fact required to be stated therein or
necessary to make the statements therein, in the
light of the circumstances
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in which they were made, not misleading, PROVIDED
that LifeQuest will not be liable to indemnify such
Selling Shareholders or underwriters in any such
case to the extent that any such claim, loss,
damage, liability or expense arises out of or is
based on any untrue statement or omission or alleged
untrue statement or omission, made in reliance upon
and in conformity with written information furnished
to LifeQuest by an instrument duly executed by or on
behalf of a Selling Shareholder or underwriter and
stated to be specifically for use therein.
(iii) Each party entitled to indemnification under this
Section 3(f) (the "Indemnified Party") shall give
notice to the party required to provide
indemnification (the "Indemnifying Party") promptly
after such Indemnified Party has actual knowledge of
any claim as to which indemnity may be sought, and
shall permit the Indemnifying Party to assume the
defense of any such claim or any litigation
resulting therefrom, PROVIDED that counsel for the
Indemnifying Party, who shall conduct the defense of
such claim or litigation, shall be approved by the
Indemnified Party (whose approval shall not
unreasonably be withheld). Without limiting the
generality of the foregoing, the Indemnified Party
may withhold its consent to any such counsel who
also acts as counsel to the Indemnifying Party (with
respect to such claim or otherwise) if the
Indemnified Party reasonably believes that there
exists a conflict of interest between the
Indemnified Party and the Indemnifying Party, with
respect to such claim or litigation. In such event,
the Indemnifying Party shall bear the expense of
another counsel who shall represent the Indemnified
Party and any other persons or entities who have
indemnification rights from the Indemnifying Party
hereunder, with respect to such claim or litigation,
and shall be selected as provided in the first
sentence of this Section 3(f)(iii). The Indemnified
Party may participate in such defense at such
party's expense (except to the extent that the
Indemnifying Party is required to pay the expense of
such counsel pursuant to this Section 3(f)(iii)),
and PROVIDED further that the failure of any
Indemnified Party to give notice as provided herein
shall not relieve the Indemnifying Party of its
obligations under this Agreement, unless such
failure is prejudicial to the Indemnifying Party in
defending such claim or litigation. No Indemnifying
Party, in the defense 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 Party of a
release from all liability with respect to such
claim or litigation.
(iv) If the indemnification provided for in this Section
3(f) is held by a court of competent jurisdiction to
be unavailable to an Indemnified Party with respect
to any loss, liability, claim, damage or expense
referred to therein, then the
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Indemnifying Party, in lieu of indemnifying such
Indemnified Party hereunder, shall contribute to the
amount paid or payable by such Indemnified Party as
a result of such loss, liability, claim damage or
expense in such proportion as is appropriate to
reflect the relative fault of the Indemnifying Party
on the one hand and of the Indemnified Party on the
other in connection with the statements or omissions
which resulted in such loss, liability, claim,
damage or expense as well as any other relevant
equitable considerations. The relative fault of the
Indemnifying Party and of the Indemnified Party
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 or on behalf of the Indemnifying Party
or by the Indemnified Party and the parties'
relative intent, knowledge, access to information
and opportunity to correct or prevent such statement
or omission.
(v) Notwithstanding the foregoing, to the extent that
the provisions on indemnification and contribution
contained in the underwriting agreement entered into
a connection with an underwritten public offering
are in conflict with the foregoing provisions, the
provisions in the underwriting agreement shall
control.
4. Marketing Restrictions.
(a) If:
(i) any Shareholder requests registration of any of the
Stock Consideration under Section 3(a) of this
Agreement, and
(ii) the offering proposed to be made is to be an
underwritten public offering, and
(iii) the managing underwriter or underwriters of such
public offering furnish a written opinion that the
total amount of securities to be included in such
offering would exceed the maximum number of shares
of the securities (as specified in a written opinion
of the managing underwriter or underwriters of such
public offering furnished to LifeQuest) which can be
marketed at a price reasonably related to the
current market value of such securities and without
otherwise materially and adversely affecting such
offering (the "Underwriter ----------- Maximum"),
then the Selling Shareholders, (1) if such
registration was not ------- initiated by LifeQuest
as a primary registration, shall be entitled to
participate in such relative proportions as all
holders of shares participating in such offering may
agree or, in the absence of such agreement, each
Selling Shareholder shall be entitled to participate
in the same proportion as the number of shares
proposed to be offered by such Selling Shareholder
bears to the Underwriter Maximum, and (2) if
LifeQuest has initiated such registration
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as a primary registration, then LifeQuest shall be
entitled to participate up to the full number of
shares of stock which LifeQuest deems necessary or
advisable to fulfill its strategic capital
requirements, with further successive pro rata
allocations among the Selling Shareholders if any
such Selling Shareholder has requested the
registration of fewer than all of such shares of the
Stock Consideration he is entitled to register.
(b) In connection with any offering involving an underwriting of
any of the Stock Consideration pursuant to Section 3(b) of
this Agreement, LifeQuest shall not be required to include
any of the Stock Consideration of a Selling Shareholder in
such offering unless such Selling Shareholder agrees to the
terms of the underwriting agreed to between LifeQuest and the
underwriter or underwriters selected by LifeQuest.
5. Notices. All notices, requests, demands and other communications
required or permitted to be given hereunder shall be in writing and
shall be deemed to have been duly given if delivered personally, given
by prepaid telex or telegram or by facsimile or other similar
instantaneous electronic transmission device or mailed first class,
postage prepaid, certified United States mail, return receipt
requested, as follows:
If to LifeQuest, at:
LifeQuest Medical, Inc.
12961 Park Cental, Suite 1300
San Antonio, Texas 78216
Attention: Randall K. Boatright
Facsimile No.: (210) 495-4441
With a copy to:
Fulbright & Jaworski L.L.P.
300 Convent Street, Suite 2200
San Antonio, Texas 78205
Attention: Phillip M. Renfro
Facsimile No.: (210) 270-7205
If to a Shareholder, at the address of such Shareholder set
forth on the Schedule of Shareholders attached hereto.
6. GENERAL PROVISIONS.
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(a) Governing Law; Interpretation; Section Headings. This
Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of New York without
regard to conflict-of-laws rules as applied in New York. The
section headings contained herein are for purposes of
convenience only and shall not be deemed to constitute a part
of this Agreement or to affect the meaning or interpretation
of this Agreement in any way.
(b) Severability. Should any provision of this Agreement be held
unenforceable or invalid under the laws of the United States
of America or the Commonwealth of Pennsylvania, or under any
other applicable laws of any other jurisdiction, then the
parties hereto agree that such provision shall be deemed
modified for purposes of performance of this Agreement in
such jurisdiction to the extent necessary to render it lawful
and enforceable, or if such a modification is not possible
without materially altering the intention of the parties
hereto, then such provision shall be severed herefrom for
purposes of performance of this Agreement in such
jurisdiction. The validity of the remaining provisions of
this Agreement shall not be affected by any such modification
or severance, except that if any severance materially alters
the intentions of the parties hereto as expressed herein (a
modification being permitted only if there is no material
alteration), then the parties hereto shall use commercially
reasonable efforts to agree to appropriate equitable
amendments to this Agreement in light of such severance.
(c) Entire Agreement. This Agreement sets forth the entire
agreement and understanding of the parties hereto with
respect to the subject matter hereof and supersedes all prior
agreements, arrangements and understandings related thereto.
(d) Binding Effect. All the terms, provisions, covenants and
conditions of this Agreement shall be binding upon and inure
to the benefit of and be enforceable by the parties hereto
and their respective heirs, executors, administrators,
representatives, successors and assigns. Without limiting the
generality of the foregoing, the term "Shareholder" as used
in Section 3 shall include the heirs, successors and assigns
of Shareholders.
(e) Assignment. This Agreement and the rights of the parties may
be assigned by any party hereto without the prior written
consent of the other parties hereto, PROVIDED that no such
assignment shall relieve any party from its obligations under
this Agreement.
(f) Amendment; Waiver. This Agreement may be amended, modified,
superseded or canceled, and any of the terms, provisions,
representations, warranties, covenants or conditions hereof
may be waived, only by a written instrument executed by all
parties hereto, or, in the case of a waiver, by the party
waiving compliance. The failure of any party at any time or
times to require performance of any provision hereof shall in
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no manner affect the right to enforce the same. No waiver by
any party of any condition contained in this Agreement, or of
the breach of any term, provision, representation, warranty
or covenant contained in this Agreement, in any one or more
instances, shall be deemed to be or construed as a further or
continuing waiver of any such condition or breach, or as a
waiver of any other condition or of the breach of any other
term, provision, representation, warranty or covenant.
(g) Gender; Numbers. All references in this Agreement to the
masculine, feminine or neuter genders shall, where
appropriate, be deemed to include all other genders. All
plurals used in this Agreement shall, where appropriate, be
deemed to be singular, and vice versa.
(h) Counterparts. This Agreement may be executed simultaneously
in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and
the same instrument. This Agreement shall be binding when one
or more counterparts hereof, individually or taken together,
shall bear the signatures of the parties reflected hereon as
signatories.
(i) Telecopy Execution and Delivery. A facsimile, telecopy or
other reproduction of this Agreement may be executed by one
or more parties hereto, and an executed copy of this
Agreement may be delivered by one or more parties hereto by
facsimile or similar instantaneous electronic transmission
device pursuant to which the signature of or on behalf of
such party can be seen, and such execution and delivery shall
be considered valid, binding and effective for all purposes.
At the request of any party hereto, all parties hereto agree
to execute an original of this Agreement as well as any
facsimile, telecopy or other reproduction hereof.
(j) Expenses. In the event the transactions contemplated hereby
are not consummated, each of the parties will pay all costs
and expenses of its or his performance of and compliance with
this Agreement.
(k) Effect of Due Diligence. No investigation by or on behalf of
LifeQuest into the business, operations, prospects, assets or
condition (financial or otherwise) of the Seller shall
diminish in any way the effect of any representations or
warranties made by Seller in this Agreement or shall relieve
Seller of any of its obligations under this Agreement.
(l) Press Releases and Public Announcements. No party shall issue
any press release or make any public announcement relating to
the subject matter of this Agreement prior to the Closing
without the prior written approval of LifeQuest and Seller;
PROVIDED, however, that any party may make any public
disclosure it believes in good faith is required by
applicable law (in which case the disclosing party will use
its reasonable best efforts to advise the other parties prior
to making the disclosure).
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(m) Third Party Beneficiaries. This Agreement shall not confer
any rights or remedies upon any Person other than (i) the
parties hereto and (ii) the Shareholders not party to this
Agreement and (iii) their respective successors and permitted
assigns.
(n) Construction. The parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises,
this Agreement shall be construed as if drafted jointly by
the parties and no presumption or burden of proof shall arise
favoring or disfavoring any party by virtue of the authorship
of any of the provisions of this Agreement. Any reference to
any federal, state, local, or foreign statute or law shall be
deemed also to refer to all rules and regulations promulgated
thereunder, unless the context requires otherwise. The word
"including" shall mean including without limitation.
(o) Remedies Cumulative. All rights, powers and remedies provided
under this Agreement or otherwise available in respect hereof
at law or in equity shall be cumulative and not alternative,
and the exercise or beginning of the exercise of any thereof
by any party shall not preclude the simultaneous or later
exercise of any other such right, power or remedy by such
party.
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first above written.
LIFEQUEST:
LIFEQUEST MEDICAL, INC.
By:
------------------------------------
Randall K. Boatright
Executive Vice President and
Chief Financial Officer
SHAREHOLDERS:
SURGICAL VISIONS I, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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TFX EQUITIES INCORPORATED
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
---------------------------------------
CHRISTOPHER K. BLACK
---------------------------------------
FREDERICK C. FEILER, JR.
---------------------------------------
JEROME F. FLAHERTY
---------------------------------------
CLARK GERHART, M.D.
---------------------------------------
MICHAEL O'REILLY, M.D.
---------------------------------------
WILLIAM B. SAYE, M.D.
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SCHEDULE OF SHAREHOLDERS
TFX Equities Incorporated(1) Jerome F. Flaherty
1787 Sentry Parkway West c/o Dexterity, Inc.
Building Sixteen, Suite 220 2705 Northwest Boulevard
Blue Bell, PA 19422 Columbus, OH 43221
Christopher K. Black(1) Clark Gerhart, M.D.
c/o Dexterity, Inc. 29th Street Office Complex
1787 Sentry Parkway West Building B. Suite 415
Building Sixteen, Suite 220 1201 North Church Street
Blue Bell, PA 19422 Hazleton, PA 19201
Surgical Visions I, Inc.(1) Michael O'Reilly, M.D.
Fulton 400 Corporate Center c/o ALTC
1495 Hembree Road, Suite 700 790 Church Street, Suite 380
Roswell, GA 30076 Marietta, GA 30060
Frederick C. Feiler, Jr. William B. Saye, M.D.
c/o Dexterity, Inc. c/o ALTC
925 Tanworth Drive 790 Church Street, Suite 380
Raleigh, NC 27615 Marietta, GA 30060
(1) Requesting Shareholder
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