Ex-4.3 Registration Rights Agreement



 





EXHIBIT 4.3




Registration Rights Agreement




     THIS Registration Rights Agreement is made as of November 15, 2002, by and
among SinoFresh HealthCare, Inc., a Delaware corporation (“SFH”); InvestLinc
Equity Fund II, L.P., a Nevada limited partnership, (“Equity Fund”); Invest
Linc Emerging Growth Equity Fund I, L.L.C., a Nevada limited liability company
(“Growth Fund”), and The Invest Linc Group, LLC (“Group” and together with
Equity Fund and Growth Fund collectively referred to as the “Stockholders” and
individually a “Stockholder”).



     NOW, THEREFORE, in consideration of the premises and mutual promises
herein contained, the parties hereby agree as follows:




	1.	 	Registration Rights.





     (a) Definitions.




	 	(i)	 	The term “1933 Act” means the Securities Act of 1933,
as amended.






	 	(ii)	 	The term “1934 Act” means the Securities Exchange Act
of 1934, as amended.
	 
	 	(iii)	 	The terms “register,” “registered” and “registration” refer to a
registration effected by preparing and filing a registration
statement or similar document in compliance with the 1933 Act,
and the declaration or ordering of effectiveness of such
registration statement or document.
	 
	 	(iv)	 	The term “SEC” means the Securities and Exchange Commission.






	 	(b)	 	The Stockholders hereby agree that they will not, without the
prior written consent of the representatives of the underwriters,
during the period commencing on the date of the final prospectus
relating to the initial public offering and ending on the date
specified by the representatives of the underwriters (such period
not to exceed one hundred eighty (180) days) sell or otherwise
transfer or dispose of any Common Stock that the Stockholders own
immediately prior to SFH’s initial public offering. The underwriters
in connection with SFH’s initial public offering are intended third
party beneficiaries of this Section 1(b) and shall have the right,
power and authority to enforce the provisions hereof as though they
were a party hereto.
	 
	 	 	 	In order to enforce the foregoing covenant, SFH may impose
stop-transfer instructions with respect to the Common Stock held by
the Stockholders until the end of such period.






	 	(c)	 	Demand Registration. Upon written notice from a
Stockholder(s) such Stockholder(s) shall have the right, at any time
commencing six (6) months after the date on which the registration
statement containing the final prospectus relating to
SFH’s initial public offering is declared effective, to request
registration, by written




 









 






	 	 	 	notice to SFH, of some or all of the Common Stock (the “Registrable
Shares”). In no event shall SFH be given or required to honor a
registration request on more than one occasion from the Stockholders
as a group. Upon receiving a registration request, SFH shall:






	 	(i)	 	notify the other Stockholders and allow the other
Stockholders to include their Registrable Shares in the
registration;






	 	(ii)	 	use all reasonable efforts to effect, as soon as
practicable, the registration of an offering under the 1933 Act
of all Registrable Shares that the Stockholders request to be
registered within thirty (30) days of the receipt of the
notice(s) pursuant to Section 1(c);






	 	(iii)	 	prepare and file with the SEC a registration statement
with respect to such Registrable Shares and use all reasonable
efforts to cause such registration statement to become effective
and, upon the request of any Stockholder selling Registrable
Shares, keep such registration statement effective for a period
of up to ninety (90) days or, if earlier, until the distribution
contemplated in the registration statement has been completed;






	 	(iv)	 	prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus
used in connection with such registration statement as may be
reasonably necessary to comply with the provisions of the 1933
Act with respect to the disposition of all securities covered by
such registration statement;






	 	(v)	 	furnish to each Stockholder such number of copies of a
prospectus, including a prospectus subject to completion, in
conformity with the requirements of the 1933 Act, and such other
documents as any Stockholder may reasonably request in order to
facilitate the lawful disposition of Registrable Shares owned by
it;






	 	(vi)	 	if necessary, register and qualify or file any notices
relating to the securities covered by such registration statement
under such blue sky laws of such states as shall be reasonably
requested by any Stockholder, provided that SFH shall not be
required in connection therewith or as a condition thereto (A) to
qualify to do business or to file a general consent to service of
process in any such states or (B) to qualify as a dealer in
securities under the securities or blue sky laws of any state;






	 	(vii)	 	notify the Stockholders at any time when a prospectus
relating to the offering is required to be delivered under the
1933 Act or the happening of any event as a result of which the
prospectus included in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits
to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the
light of the circumstances then existing;




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	 	(viii)	 	cause all such Registrable Shares registered pursuant hereto to
be listed on each securities exchange, if any, on which
Registrable Shares issued by SFH are then listed; and






	 	(ix)	 	provide a transfer agent and registrar for all
Registrable Share to be registered hereunder and a CUSIP number
for such Registrable Shares in each case not later than the
effective date of such registration statement.
	 
	 	 	 	The Stockholder’s participation in any such demand registration shall
not require that he pay any portion of the registration expenses
incurred by SFH but such Stockholder shall pay the proportional amount
of all state and federal registration and filing fees and underwriting
discounts and commissions applicable to Registrable Shares sold by it
and fees and disbursements of any legal counsel or accountants
retained by such Stockholder.





     (d) Piggyback Registrations.




	 	(i)	 	If SFH at any time proposes to register any of its
securities under the 1933 Act (other than a registration on Form
S-4 or S-8 or any successor or similar forms and other than
pursuant to Section 1(c)), it will each such time give prompt
written notice to the Stockholders of its intention to do so and
of the Stockholder’s rights under this Section 1(d). Upon the
written request of a Stockholder made within thirty (30) days
after the receipt of the notice (which request shall specify the
Registrable Shares intended to be disposed of by the Stockholder
and the intended method of disposition thereof), SFH will use its
best efforts to effect the registration under the 1933 Act of all
Registrable Shares which SFH has been so requested to register by
the Stockholder, to the extent requisite to permit the
disposition (in accordance with the intended methods thereof as
aforesaid) of the Registrable Shares so to be registered, by
inclusion of such Registrable Shares in the registration
statement and, in the case of an underwritten offering, the
underwriting which covers the securities which SFH proposes to
register; provided, however, that if, at any time after giving
written notice of its intention to register any securities and
prior to the effective date of the registration statement filed
in connection with such registration, SFH shall determine for any
reason either not to register or to delay registration of such
securities, SFH may, at its election, give written notice of such
determination to the Stockholder and, upon the giving of such
notice, (i) in the case of a determination not to register, shall
be relieved of its obligation to register any Registrable Shares
in connection with such registration (but shall pay all expenses
of registration in connection therewith) and (ii) in the case of
a determination to delay registering, shall be permitted to delay
registering such other securities. No registration effected under
this Section 1(d) shall relieve SFH of its obligation to effect
demand registrations under Section 1(c). The Stockholder’s
participation in any such piggyback registration shall not
require that he pay any portion of the registration expenses
incurred by SFH but such Stockholder shall pay the proportional
amount of all state and federal




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	 	 	 	registration and filing fees and underwriting discounts and
commissions applicable to Registrable Shares sold by it and fees
and disbursements of any legal counsel or accountants retained by
such Stockholder.






	 	(ii)	 	If a registration pursuant to this Section 1(d)
involves an underwritten offering of the securities so being
registered to be distributed (on a firm commitment basis) by or
through one or more underwriters of recognized standing under
underwriting terms appropriate for such a transaction, the right
of any Stockholder to registration pursuant to this Section 1(d)
shall be conditioned upon such Stockholder’s participation in
such underwriting and the inclusion of such Stockholder’s
Registrable Shares in the underwriting to the extent provided
herein. All Stockholders proposing to distribute their securities
through such underwriting shall (together with SFH) enter into an
underwriting agreement in customary form with the underwriter or
underwriters selected for such underwriting by SFH. If any
Stockholder disapproves of the terms of any such underwriting, he
may elect to withdraw therefrom by written notice to SFH and the
underwriter. Notwithstanding any other provision of this Section
1(d), if the managing underwriter of such underwritten offering
shall inform SFH and each Stockholder (if any Registrable Shares
held by the Stockholder have been requested to be included in
such underwritten offering) by letter of its belief that the
distribution of all or a specified number of the Registrable
Shares requested to be included concurrently with the securities
being distributed by such underwriters would interfere with the
successful marketing of the securities being distributed by such
underwriters (such writing to state the basis of such belief and
the approximate number of the Registrable Shares requested to be
included which may be distributed without such effect), then SFH
may, upon written notice to the affected Stockholders, reduce (if
and to the extent stated by such managing underwriter to be
necessary to eliminate such effect) the number of Registrable
Shares, if any, requested to be included so that the resultant
aggregate number of the Registrable Shares requested to be
included that will be included in such registration shall be
equal to the number of shares stated in such managing
underwriter’s letter; provided, however, that the priority in
such registration shall be as follows: first, securities offered
for the account of SFH and second the Registrable Shares sought
to be sold by the Stockholders on a proportional basis.






	 	(e)	 	Transfer of Registration Rights. The registration rights
contained in this Section 1 may be transferred by a Stockholder
provided that SFH is given written notice thereof and provided
further that the transfer (i) is in connection with a transfer of at
least twenty percent (20%) of the Stockholder’s Registrable Shares,
or (ii) involves a transfer of at least one hundred thousand
(100,000) Registrable Shares or (iii) is to owners of the
Stockholder, provided such owners agree to act through a single
representative for purposes of this Section 1 and (iv) any assignee
agrees in writing to be bound by and subject to the terms and
conditions of this Agreement.




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	 	(f)	 	Deferral. SFH shall have the right to delay the filing of any
registration statement under Section 1(c) for up to ninety (90)
days, unless such registration statement is to be on Form S-3, in
which event the filing of such registration statement may be delayed
for up to sixty (60) days.






	 	(g)	 	Termination of Demand Registration Rights. The provisions of
Section 1(c) shall not apply to any Stockholder who is not an
“affiliate” (as that term is used in SEC Rule 144) and who lawfully
may sell Registrable Shares to the public pursuant to SEC Rule 144
without regard to the volume limitations contained therein. Further
the right of any Stockholder to demand registration or inclusion in
any registration pursuant to this Section 1 shall terminate on the
fifth anniversary of an initial public offering by SFH.






	 	(h)	 	Information by Stockholders. The Stockholders whose
securities are included in any registration shall furnish in writing
to SFH such information regarding such Stockholders and the
distribution proposed by such Stockholders as SFH may reasonably
request and as shall be required in connection with any
registration, qualification or compliance referred to in this
Section 1. SFH’s obligations under this Section 1 are conditioned
upon compliance by such Stockholders with the provisions of this
Section 1(h).






	2.	 	Indemnification.






	 	(a)	 	To the extent permitted by law, SFH will indemnify and hold
harmless a Stockholder and each underwriter (as defined in the 1933
Act) for a Stockholder, and each person, if any, who controls a
Stockholder, or such underwriter within the meaning of the 1933 Act
or the 1934 Act, against any losses, claims, damages, or liabilities
(or actions in respect thereof) insofar as such losses, claims,
damages or liabilities arise out of or are based upon any of the
following statements, omissions or violations (collectively a
“Violation”): (i) any untrue statement or alleged untrue statement
of a material fact contained in the registration statement,
including any prospectus subject to completion or final prospectus
contained therein or any amendments or supplements thereto, (ii) the
omission or alleged omission to state therein a material fact
required to be stated therein, or necessary to make the statements
therein not misleading or (iii) any violation or alleged violation
by SFH of the 1933 Act, the 1934 Act, any state securities laws or
any rule or regulation promulgated under the 1933 Act, the 1934 Act
or any state securities laws; and SFH will reimburse the affected
Stockholder and each such underwriter or controlling person for any
legal or other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the indemnity agreement
contained in this Section 2(a) shall not apply to amounts paid in
settlement of any such loss, claim, damage. liability or action if
such settlement is effected without the consent of SFH (which
consent shall not be unreasonably withheld or delayed), nor shall
SFH be liable in any such case for any such loss, claim, damage,
liability or action to the extent that it arises out of or is based
upon a Violation which arises out of or is based upon written
information




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	 	 	 	furnished expressly for use in connection with such registration
statement by the relevant Stockholder, any such underwriter or
controlling person.






	 	(b)	 	To the extent permitted by law, each Stockholder
participating in a registration will indemnify and hold harmless
SFH, each of its directors, each of its officers who has signed the
registration statement, each person, if any, who controls SFH within
the meaning of the 1933 Act or the 1934 Act, legal counsel and
accountants for SFH, each underwriter and any controlling person of
any underwriter against any losses, claims, damages or liabilities
(joint or several) to which any of the foregoing persons may become
subject, under the 1933 Act, the 1934 Act or any state securities
laws, insofar as such losses, claims, damages or liabilities (or
actions in respect thereto) arise out of or are based upon any
Violation, in each case to the extent (and only to the extent) that
such Violation arises out of or is based upon written information
furnished by the relevant Stockholder expressly for use in
connection with such registration; and the relevant Stockholder will
reimburse any person intended to be indemnified pursuant to this
Section 2(b), for any legal or other expenses reasonably incurred by
such person in connection with investigating or defending any such
loss, claim, damage, liability or action; provided, however, that
the indemnity agreement contained in this Section 2(b) shall not
apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the
consent of the relevant Stockholder (which consent shall not be
unreasonably withheld or delayed) provided, that, in no event shall
any indemnity under this Section 2(b) exceed the net proceeds from
the offering received by the relevant Stockholder.






	 	(c)	 	Promptly after receipt by an indemnified party under this
Section 2 of a third party claim or notice of the commencement of
any action (including any governmental action), such indemnified
party will, if a claim in respect thereof is to be made against any
indemnifying party under this Section 2, deliver to the indemnifying
party a written notice thereof and the indemnifying party shall have
the right to participate in and, to the extent the indemnifying
party so desires, jointly with any other indemnifying party
similarly notified, to assume the defense thereof with counsel
mutually satisfactory to the indemnifying parties; provided,
however, that an indemnified party (together with all other
indemnified parties which may be represented without conflict by one
counsel) shall have the right to retain one separate counsel, with
the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by
the indemnifying party would be inappropriate due to actual or
potential differing interests between such indemnified party and any
other party represented by such counsel in such proceeding. The
failure to deliver written notice to the indemnifying party within a
reasonable time of the commencement of any such action, if
materially prejudicial to its ability to defend such action, shall
relieve such indemnifying party of any liability to the indemnified
party under this Section 2, but the omission so to deliver written
notice to the indemnifying party will not relieve it of any
liability that it may have to any indemnified party otherwise than
under this Section 2.




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	 	(d)	 	The indemnifying party shall advance the expenses of the
indemnified party as they are incurred, provided that the
indemnified party shall give the indemnifying party an undertaking
to reimburse the indemnifying party for any amounts so advanced
should it be determined that indemnification is not available under
this Section 2.






	 	(e)	 	If the indemnification provided for in this Section 2 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 herein, then the 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, omissions or Violations that
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 or the Violation relates to information
supplied by 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, omission or
Violation. In no event shall the amount of contribution of a
Stockholder exceed the net proceeds to the Stockholder from the
offering.






	 	(f)	 	Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the
underwriting agreement entered into in connection with an
underwritten public offering are in conflict with the foregoing
provisions, the provisions in the underwriting agreement shall
control.






	 	(g)	 	The obligations of SFH and the Stockholder(s) under this
Section 2 shall survive the completion of any offering of
Registrable Shares in a registration statement under Section 1, and
otherwise.






	3.	 	Miscellaneous.






	 	(a)	 	Scope of Agreement. All the provisions of this Agreement
shall apply to all of the Registrable Shares of SFH now owned or
which may be issued or transferred to any of the Stockholders, or to
their Permitted Transferees, or in consequence of any additional
issuance, purchase, exchange or reclassification of Registrable
Shares, corporate reorganization, or any other form of
recapitalization, consolidation, Merger, stock split or stock
dividend, or which are acquired by any of the Stockholders or
Permitted Transferees in any other manner.






	 	(b)	 	Legal Costs. The losing party in any lawsuit to enforce the
rights of any party under this Agreement shall reimburse the
prevailing party for all costs (including reasonable attorney’s
fees) incurred in connection with such action.




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	 	(c)	 	Amendment. This Agreement constitutes the complete
understanding among the parties hereto. Any provision of this
Agreement may be amended, altered or modified with the written
consent of SFH and the owners of at least 80% of the Registrable
Shares and without the consent of the other parties hereto.






	 	(d)	 	Successors. All of the terms and provisions of this Agreement
shall inure to the benefit of and be binding upon the heirs,
successors, personal representatives and assigns of the parties
hereto.






	 	(e)	 	Governing Law. This Agreement shall be construed and enforced
in accordance with the laws of the State of New York, without regard
to the rules of such State governing conflict of laws. The
Stockholders and SFH agree to submit any claim, suit or proceeding
hereunder to the jurisdiction of the courts of the State of Florida
located in Sarasota County, and further consent to waive their right
to trial by jury in any such action.






	 	(f)	 	Notice. All notices and other communications hereunder shall
be in writing and shall be delivered by hand or by mailing the same
by registered mail, return receipt requested, as follows: (i) if to
SFH, to its then principal offices; and (ii) if to a Stockholder, to
such Stockholder’s address as the same shall appear on the books of
SFH. Any notice shall be deemed given and received, if by hand, on
the date of delivery, and if by mail, on the date marked as the date
of receipt on the return receipt or the date of attempted delivery
if refused.






	 	(g)	 	Assignment. Neither this Agreement nor any right or
obligation hereunder is assignable in whole or in part by any party
without the prior written consent of the other parties or unless
otherwise authorized by this Agreement; provided however that, a
Stockholder may assign its rights and obligations hereunder to a
fund managed by InvestLinc Group or an affiliate of InvestLinc
Group.






	 	(h)	 	Waiver. No failure or delay on the part of any party in the
exercise of any power, right or privilege hereunder shall operate as
a waiver thereof, nor shall any single or partial exercise of any
such power, right or privilege preclude other or further exercise
thereof or of any other right, power or privilege. All rights and
remedies existing under this Agreement are cumulative to, and not
exclusive of, any rights or remedies otherwise available.






	 	(i)	 	Pronouns. Whenever pronouns are used herein, they shall be
interpreted in the neuter, masculine, feminine, singular or plural
as the context may require.






	 	(j)	 	Term. This Agreement shall terminate upon the earlier of (i)
completion of any liquidation and dissolution of SFH, (ii) the fifth
anniversary of a registration of any class of equity securities of
SFH with the U.S. Securities and Exchange Commission, or (iii) a
Merger.




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	 	(k)	 	Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, and
all of which shall together constitute one and the same instrument.






	 	(l)	 	Most Favored Nation. Stockholders shall receive the benefit
of any more favorable agreement relating to the subject matter
hereof made with any SFH stockholder such that Stockholder shall be
in no materially less favorable position vis a vis such other
stockholders as it is on the date hereof.





     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.



	 	 	 	 	 	 	 	 	 	 	 
	SinoFresh HealthCare, Inc.	 	The Invest Linc Group, LLC
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ Andrew Badolato
	 	By:
	 	/s/ Craig Terrill	 	 	 	 
	

	 	
 
	 	 	 	
 	 	 	 	 
	

	 	Andrew Badolato, President
	 	 	 	Name: Craig Terrill	 	 	 	 
	

	 	 	 	 	 	Title: CEO	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Invest Linc Equity Fund II,	 	Invest Linc Emerging Growth Equity
	a Nevada limited partnership	 	Fund I, L.L.C.,
	 	 	 	 	a Nevada limited liability company
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ Craig Terrill
	 	By:
	 	/s/ Craig Terrill	 	 	 	 
	

	 	
 
	 	 	 	
 	 	 	 	 
	

	 	Name: Craig Terrill
	 	 	 	Name: Craig Terrill	 	 	 	 
	

	 	Title: General Partner
	 	 	 	Title: Managing Member	 	 	 	 








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