Exhibit 10.2
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this
“
Agreement ”),
dated as of May 30, 2008, by and among by and among Ecolab Inc., a
Delaware corporation (the "
Investor ")
and Linkwell Corporation, a Florida corporation, ("
Linkwell ").
PRELIMINARY STATEMENT
A.
In
connection with the Stock Purchase Agreement dated February
15, 2008 (the “
Stock Purchase Agreement ”)
by and among the parties hereto and Linkwell Tech Group, Inc., a
Florida corporation (“
Linkwell Tech ”),
Linkwell Tech has agreed, upon the terms and subject to the
conditions of the Stock Purchase Agreement, to issue and sell to
the Investor shares of Linkwell Tech’s common
stock.
B.
On
or about the date hereof, the Investor, Linkwell and Linkwell
Tech have entered into a Stockholders Agreement (the
“
Stockholders Agreement ”)
pursuant to which, in certain circumstances, the Investor could
require Linkwell to purchase the Investor’s shares of common
stock in Linkwell Tech and Linkwell could satisfy the purchase
price therefor by the issuance of shares of common stock in the
capital of Linkwell.
C.
Linkwell
has agreed to provide certain registration rights under the
Securities Act of 1933, as amended, and the rules and
regulations thereunder, or any similar successor statute
(collectively, 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, Linkwell and the
Investor hereby agree as follows:
(a)
Capitalized
terms used but not defined in this Agreement shall have the
meaning given to them in the Stockholders
Agreement.
(b)
As
used in this Agreement, the following terms shall have the
following meanings:
“
Common Stock ”
means shares of common stock in the capital of
Linkwell.
“
Delay Payment Rate ”
means (i) during the first two weeks of a Damages Accrual Period,
an amount per week (or portion thereof) per share of Common Stock
equal to 0.5% of the Fair Market Value of such share, (ii) during
the next two weeks of a Damages Accrual Period, an amount per week
(or portion thereof) per share of Common Stock equal to 1% of the
Fair Market Value of such share, and (iii) during the remainder of
a Damages Accrual Period, an amount per week (or portion thereof)
per share of Common Stock equal to 2% of the Fair Market Value of
such share.
“
Fair Market Value ”
of a share of Common Stock during any particular week means the
average of the closing sale price regular way on each day during
such week or, if no such sale takes place on a day within such
week, the average of the reported closing bid and asked prices,
regular way, on each day during such week, in each case on the
NASDAQ National Market (“
NASDAQ ”)
or, if the Common Stock is not listed or admitted to trading on the
NASDAQ, on the principal national security exchange or quotation
system on which the Common Stock is quoted or listed or admitted to
trading, or, if not quoted or listed or admitted to trading on any
national securities exchange or quotation system, the average of
the closing bid and asked prices of the Common Stock on the
over-the-counter market on each day during such week, in each case
as reported by the National Quotation Bureau Incorporated, or a
similar generally accepted reporting service. The Fair Market Value
shall be calculated, as appropriate, by making proportionate
adjustments necessary to reflect any stock split, stock combination
or stock dividend or similar stock distribution made during the
applicable period.
“
Person ”
means a corporation, a limited liability company, an association, a
partnership, an organization, a business, an individual, a
governmental or political subdivision thereof or a governmental
agency.
“
Register ,”
“
registered ,”
and “
registration ”
refer to a registration effected by preparing and filing one or
more Registration Statements (as defined below) 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 or delayed basis (“
Rule 415 ”),
and the declaration or ordering of effectiveness of such
Registration Statement(s) by the United States Securities and
Exchange Commission (the “
SEC ”).
“
Registrable Securities ”
means the Stock Consideration Shares.
“
Registration Delay ”
means the occurrence of any of (i) a Registration Statement
covering all the Registrable Securities is not filed with the SEC
on or before the Filing Deadline or is not declared effective by
the SEC on or before the Effectiveness Deadline, (ii) a
Registration Statement in connection with a Demand Registration
covering all of the Registrable Securities required to be covered
thereby is not filed with the SEC on or before the deadline
described in the last sentence of Section 2(a) or is not declared
effective by the SEC on or before the deadline described in the
last sentence of Section 2(a), (iii) on any day during the
Registration Period (other than during an Allowable Grace Period,
as defined in Section 3(g)), any Registrable Security required to
be included in such Registration Statement cannot be sold pursuant
to such Registration Statement as a matter of law or because
Linkwell has failed to perform its obligations under this Agreement
within the applicable time period required for such performance
(including, without limitation, because of a failure to keep such
Registration Statement effective, to disclose such information as
is necessary for sales to be made pursuant to such Registration
Statement or to register a sufficient number of shares of Common
Stock), or (iv) a Grace Period (as defined in Section 3(g)) exceeds
the length of an Allowable Grace Period.
“
Registration Statement ”
means a registration statement or registration statements of
Linkwell filed under the Securities Act covering the Registrable
Securities.
(a)
Mandatory Registration .
If Linkwell elects to pay Stock Consideration Shares for the Put
Shares, Linkwell shall prepare, and, as soon as practicable, but in
no event later than seventy five (75) days after the date of its
receipt of the Put Notice (the “
Filing Deadline ”),
file with the SEC a Registration Statement or Registration
Statements (as necessary) on Form S-3 covering the resale of all of
the Registrable Securities. In the event that Form S-3 is
unavailable for such a registration, Linkwell shall use such other
form as is available for such a registration, subject to the
provisions of Section 2(d). Linkwell shall use its best
efforts to cause such Registration Statement to be declared
effective by the SEC as soon as possible, but in no event later
than one hundred fifty (150) days after the date of its receipt of
the Put Notice (the “
Effectiveness Deadline” ).
If for any reason prior to the expiration of the Registration
Period (as hereinafter defined), the Registration Statement
required to be filed pursuant to this Section 2(a) ceases to be
effective or fails to cover all of the Registrable Securities, the
Investor may on one (1) occasion subsequently demand registration
pursuant to the terms of and within the time frames set forth in
this Section 2(a) by providing written demand registration notice
to Linkwell (a
“Demand Registration” ).
The Filing Deadline and Effectiveness Deadline with respect to any
Demand Registration will be those dates which are sixty (60) days
and one hundred thirty-five (135) days after the date that the
Demand Registration notice is delivered to Linkwell.
(b)
Piggy-Back Registrations .
If at any time prior to the expiration of the Registration Period
(as hereinafter defined), the number of shares of Common Stock
available for sale under a Registration Statement is insufficient
(as that term is used in Section 2(f)) to cover all of the
Registrable Securities and Linkwell proposes to file with the SEC a
Registration Statement relating to an offering for its own account
or the account of others under the Securities Act of any of its
securities (other than on Form S-4, Form S-8 or Form S-1 (or
their equivalents at such time) relating to securities to be issued
solely in connection with any acquisition of any entity or business
or to equity securities issuable in connection with stock option or
other employee benefit plans approved by the board of directors of
Linkwell) Linkwell shall promptly send to the Investor written
notice of Linkwell’s intention to file a Registration
Statement and of the Investor’s rights under this Section
2(b) and, if within twenty (20) days after receipt of such notice,
the Investor shall so request in writing, Linkwell shall include in
such Registration Statement all or any part of the Registrable
Securities the Investor requests to be registered, subject to the
priorities set forth in this Section 2(b) below. No right to
registration of Registrable Securities under this Section 2(b)
shall be construed to limit any registration required under Section
2(a). If an offering in connection with which the Investor is
entitled to registration under this Section 2(b) is an underwritten
offering, then if the Investor’s Registrable Securities are
included in such Registration Statement the Investor shall, unless
otherwise agreed by Linkwell, offer and sell such Registrable
Securities in an underwritten offering using the same underwriter
or underwriters and, subject to the provisions of this Agreement,
on the same terms and conditions as other shares of Common Stock
included in such underwritten offering. If a registration pursuant
to this Section 2(b) is to be an underwritten public offering and
the managing underwriter(s) advise Linkwell in writing, that in
their reasonable good faith opinion, marketing or other factors
dictate that a limitation on the number of shares of Common Stock
which may be included in the Registration Statement is necessary to
facilitate and not adversely affect the proposed offering, then
Linkwell shall include in such registration: (1) first, all
securities Linkwell proposes to sell for its own account and (2)
second, up to the full number of securities proposed to be
registered for the account of the Investor entitled to registration
under this Section 2(b).
(c)
Legal Counsel .
Subject to Section 5 of this Agreement, the Investor shall have the
right to select one legal counsel to review and comment upon any
registration pursuant to this Agreement (
“Legal Counsel” ).
Linkwell shall reasonably cooperate with Legal Counsel in
performing Linkwell’s obligations under this
Agreement.
(d)
Ineligibility for Form S-3 .
In the event that Form S-3 is not available for any registration of
Registrable Securities hereunder, Linkwell shall (i) register the
sale of the Registrable Securities on another appropriate form
reasonably acceptable to the Investor and (ii) undertake to
register the Registrable Securities on Form S-3 as soon as such
form is available, provided that Linkwell shall maintain the
effectiveness of the Registration Statement then in effect until
such time as a Registration Statement on Form S-3 covering the
Registrable Securities has been declared effective by the
SEC.
(e)
Sufficient Number of Shares Registered .
In the event the number of shares available under a Registration
Statement filed pursuant to Section 2(a) is insufficient to cover
all of the Registrable Securities which such Registration Statement
is required to cover, Linkwell shall amend the Registration
Statement, or file a new Registration Statement (on the short form
available therefor, if applicable), or both, so as to cover the
Registrable Securities as soon as practicable, but in any event not
later than fifteen (15) days after the necessity therefor arises.
Linkwell shall use its best efforts to cause such amendment and/or
new Registration Statement to become effective as soon as
practicable following the filing thereof.
(f)
Failure to File, Obtain and Maintain Effectiveness of Registration
Statement .
If a Registration Delay occurs Linkwell shall pay to the Investor
(the “
Registration Delay Payments ”),
as liquidated damages and not as a penalty, and calculated for each
share of Common Stock then outstanding that is a Registrable
Security, an accruing amount per each such share equal to the Delay
Payment Rate for each week (or portion thereof) during the Damages
Accrual Period. The Registration Delay Payments shall accrue from
the first day of the applicable Registration Delay through the date
it is cured (the “
Damages Accrual Period ”),
and shall be payable in cash to the record holders of the
Registrable Securities entitled thereto on the last business day of
each calendar month. The parties agree that the sole monetary
damages payable for a violation of the terms of Section 2(a) shall
be such liquidated damages (unless such liquidated damages are
disallowed, reduced or not permitted by applicable law). Nothing
shall preclude the Investor from pursuing or obtaining specific
performance or other equitable relief with respect to this
Agreement in accordance with applicable law. The parties hereto
agree that the liquidated damages provided for in this Section 2(f)
constitute a reasonable estimate of the damages that may be
incurred by the Investor by reason of the failure of the
Registration Statement to be filed or declared effective or
available for effecting resales of Registrable Securities in
accordance with the provisions hereof.
At
such time as Linkwell is obligated to file a Registration
Statement with the SEC pursuant to Section 2(a) or 2(e),
Linkwell will use its best efforts to effect the registration
of the Registrable Securities in accordance with the intended
method of disposition thereof and, pursuant thereto, Linkwell
shall have the following obligations:
(a)
Linkwell
shall promptly prepare and file with the SEC a Registration
Statement with respect to the Registrable Securities (but in
no event later than the Filing Deadline) and use its best
efforts to cause such Registration Statement relating to the
Registrable Securities to become effective as soon as
practicable after such filing (but in no event later than the
applicable Effectiveness Deadline). Linkwell shall keep each
Registration Statement effective pursuant to Rule 415 at all
times until the earlier of (i) the date as of which the
Investor may sell all of the Registrable Securities covered by
such Registration Statement without restriction pursuant to
Rule 144(k) promulgated under the Securities Act (or successor
thereto) or (ii) the date on which the Investor shall have
sold all the Registrable Securities covered by such
Registration Statement (the “
Registration Period ”),
which Registration Statement (including any amendments or
supplements thereto and prospectuses contained therein) shall not
contain 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, in light of the circumstances in which they
were made, not misleading. The term “best efforts” as
used in the first sentence of this Section 3(a) shall mean, among
other things, that Linkwell shall submit to the SEC, within two (2)
business days after Linkwell learns that no review of a particular
Registration Statement will be made by the staff of the SEC or that
the staff has no further comments on the Registration Statement, as
the case may be, a request for acceleration of effectiveness of
such Registration Statement to a time and date not later than two
(2) business days after the submission of such
request.
(b)
Linkwell
shall prepare and file with the SEC such amendments (including
post-effective amendments) and supplements to a Registration
Statement and the prospectus used in connection with such
Registration Statement, which prospectus is to be filed
pursuant to Rule 424 promulgated under the Securities Act, as
may be necessary to keep such Registration Statement effective
at all times during the Registration Period, and, during such
period, comply with the provisions of the Securities Act with
respect to the disposition of all Registrable Securities of
Linkwell covered by such Registration Statement until such
time as all of such Registrable Securities shall have been
disposed of in accordance with the intended methods of
disposition by the seller or sellers thereof as set forth in
such Registration Statement. In the case of amendments and
supplements to a Registration Statement which are required to
be filed pursuant to this Agreement (including pursuant to
this Section 3(b)) by reason of Linkwell filing a report on
Form 10-K, Form 10-Q or Form 8-K or any analogous report under
the Securities Exchange Act of 1934, as amended (the
“
Exchange Act ”),
Linkwell shall have incorporated such report by reference into the
Registration Statement, if applicable, or shall file such
amendments or supplements with the SEC on the same day on which the
Exchange Act report is filed which created the requirement for
Linkwell to amend or supplement the Registration
Statement.
(c)
Linkwell
shall (a) permit Legal Counsel to review and comment upon
those sections of (i) the Registration Statement which are
applicable to the Investor at least five (5) business days
prior to its filing with the SEC and (ii) all other
Registration Statements and all amendments and supplements to
all Registration Statements which are applicable to the
Investor (except for Proxy Statements, Annual Reports on Form
10-K, Quarterly Reports on Form 10-Q and Current Reports on
Form 8-K and any similar or successor reports) within a
reasonable number of days prior to the their filing with the
SEC and (b) not file any document in a form to which Legal
Counsel reasonably objects. Linkwell shall not submit a
request for acceleration of the effectiveness of a
Registration Statement or any amendment or supplement thereto
without the prior approval of Legal Counsel, which consent
shall not be unreasonably withheld. Linkwell shall furnish to
Legal Counsel, without charge, (i) any correspondence from the
SEC or the staff of the SEC to Linkwell or its representatives
relating to any Registration Statement, provided the Investor
and Legal Counsel keep such correspondence confidential, (ii)
promptly after the same is prepared and filed with the SEC,
one copy of any Registration Statement and any amendment(s)
thereto, including financial statements and schedules and all
exhibits and (iii) upon the effectiveness of any Registration
Statement, one copy of the prospectus included in such
Registration Statement and all amendments and supplements
thereto. Linkwell shall reasonably cooperate with Legal
Counsel in performing Linkwell’s obligations pursuant to
this Section 3.
(d)
Linkwell
shall furnish to the Investor, without charge, (i) promptly
after the same is prepared and filed with the SEC, at least
one copy of the Registration Statement and any amendment(s)
thereto, including financial statements and schedules, and all
exhibits and each preliminary prospectus, (ii) upon the
effectiveness of any Registration Statement, ten (10) copies
of the prospectus included in such Registration Statement and
all amendments and supplements thereto and (iii) such other
documents, including copies of any preliminary or final
prospectus, as the Investor may reasonably request from time
to time in order to facilitate the disposition of the
Registrable Securities.
(e)
Linkwell
shall use its best efforts to (i) register and qualify the
Registrable Securities covered by a Registration Statement
under all other securities or “blue sky” laws of
such jurisdictions in the United States, (ii) prepare and file
in those jurisdictions, such amendments (including
post-effective amendments) and supplements to such
registrations and qualifications as may be necessary to
maintain the effectiveness thereof during the Registration
Period, (iii) take such other actions as may be necessary to
maintain such registrations and qualifications in effect at
all times during the Registration Period, and (iv) take all
other actions reasonably necessary or advisable to qualify the
Registrable Securities for sale in such jurisdictions;
provided, however, that Linkwell shall not be required in
connection therewith or as a condition thereto to (w) make any
change in Linkwell’s Certificate of Incorporation or
by-laws that Linkwell’s board of directors determines in
good faith to be contrary to the best interests of Linkwell
and its shareholders, (x) qualify to do business in any
jurisdiction where it would not otherwise be required to
qualify but for this Section 3(e), (y) subject itself to
general taxation in any such jurisdiction, or (z) file a
general consent to service of process in any such
jurisdiction. Linkwell shall promptly notify Legal Counsel and
the Investor of the receipt by Linkwell of any notification
with respect to the suspension of the registration or
qualification of any of the Registrable Securities for sale
under the securities or “blue sky” laws of any
jurisdiction in the United States or its receipt of actual
notice of the initiation or threat of any proceeding for such
purpose.
(f)
As
promptly as practicable after becoming aware of such event or
development, Linkwell shall notify Legal Counsel and the
Investor in writing of the happening of any event as a result
of which the prospectus included in a Registration Statement,
as then in effect, includes an untrue statement of a material
fact or omission 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 promptly prepare a supplement or amendment to
such Registration Statement to correct such untrue statement
or omission, and deliver ten (10) copies of such supplement or
amendment to Legal Counsel and the Investor. Linkwell shall
also promptly notify Legal Counsel and the Investor in writing
(i) when a prospectus or any prospectus supplement or
post-effective amendment has been filed, and when a
Registration Statement or any post-effective amendment has
become effective (notification of such effectiveness shall be
delivered to Legal Counsel and the Investor by facsimile on
the same day of such effectiveness), (ii) of any request by
the SEC for amendments or supplements to a Registration
Statement or related prospectus or related information, and
(iii) of Linkwell’s reasonable determination that a
post-effective amendment to a Registration Statement would be
appropriate.
(g)
Linkwell
shall use its best efforts to prevent the issuance of any stop
order or other suspension of effectiveness of a Registration
Statement, or the suspension of the qualification of any of
the Registrable Securities for sale in any jurisdiction and,
if such an order or suspension is issued, to obtain the
withdrawal of such order or suspension at the earliest
possible moment and to notify Legal Counsel and the Investor
of the issuance of such order and the resolution thereof or
its receipt of actual notice of the initiation or threat of
any proceeding for such purpose.
(h)
At
the reasonable request of the Investor and at the
Investor’s expense, Linkwell shall use its best efforts
to furnish to the Investor, on the date of the effectiveness
of the Registration Statement and thereafter
