EXHIBIT 10.19
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REGISTRATION RIGHTS AGREEMENT
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October 20, 1997
TABLE OF CONTENTS
1. Registration Rights...........................................
1.1 Definitions..........................................
1.2 Shelf Registration...................................
1.3 Company Registration.................................
1.4 Obligations of the Company...........................
1.5 Furnish Information..................................
1.6 Expenses of Registration.............................
1.7 Expenses of Company Registration.....................
1.8 Underwriting Requirements............................
1.9 Delay of Registration................................
1.10 Indemnification......................................
1.11 Reports Under Securities Exchange Act of 1934........
1.12 Assignment of Registration Rights....................
1.13 Limitations on Subsequent Registration Rights........
1.14 "Market Stand-Off" Agreement.........................
1.15 No Required Sale.....................................
2. Miscellaneous.................................................
2.1 Successors and Assigns...............................
2.2 Governing Law........................................
2.3 Counterparts.........................................
2.4 Titles and Subtitles.................................
2.5 Notices..............................................
2.6 Expenses.............................................
2.7 Amendments and Waivers...............................
2.8 Severability.........................................
2.9 Nominees for Beneficial Owners.......................
2.10 Specific Performance.................................
2.11 No Inconsistent Agreements...........................
2.12 Entire Agreement.....................................
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is made as of the 20th day
of October, 1997 by and between Exogen, Inc., a Delaware corporation (the
"Company"), and the investors listed on Schedule 1 hereto (collectively, the
"Investors").
RECITALS
WHEREAS, the Company and the Investors are parties to the
Common Stock Purchase Agreement of even date herewith (the "Stock Purchase
Agreement");
WHEREAS, in order to induce the Company to enter into the
Stock Purchase Agreement and to induce the Investors to invest funds in the
Company pursuant to the Stock Purchase Agreement, the Investors and the Company
hereby agree that this Agreement shall govern the rights of the Investors to
cause the Company to register shares of Common Stock issuable to the Investors
and certain other matters as set forth herein;
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Registration Rights. The Company covenants and agrees
as follows:
1.1 Definitions. For purposes of this Section 1:
(a) The term "Act" means the Securities Act
of 1933, as amended.
(b) The terms "Form S-3" means such form
under the Act as in effect on the date hereof or any registration form under the
Act subsequently adopted by the SEC which permits inclusion or incorporation of
substantial information by reference to other documents filed by the Company
with the SEC.
(c) The term "register," "registered," and
"registration" refer to a registration effected by preparing and filing a
registration statement or similar document in compliance with the Securities Act
of 1933, as amended (the "Act"), and the declaration or ordering of
effectiveness of such registration statement or document;
(d) The term "Registrable Securities" means
(1) the Common Stock issued pursuant to the Stock Purchase Agreement and (2) any
Common Stock of the Company issued as (or issuable upon the conversion or
exercise of any warrant, right or other security which is issued as) a dividend
or other distribution with respect to, or in exchange for or in replacement of,
such Common Stock, excluding in all cases, however, any Registrable Securities
which are sold, assigned, pledged, hypothecated or otherwise disposed of by an
Investor in a transaction in which such Investor's rights under this Agreement
are not assigned or assignable;
(e) The number of shares of "Registrable
Securities then outstanding" shall be determined by the number of shares of
Common Stock outstanding which are, and the number of shares of Common Stock
issuable pursuant to then exercisable or convertible securities which are,
Registrable Securities; and
(f) The term "Holder" means one of the
Investors.
1.2 Shelf Registration.
(a) The Company shall, subject to the
limitations specified in this Agreement, use its best efforts (i) to file a
shelf registration statement on Form S-3 or any other form available to the
Company within ninety (90) days from the date hereof (the "Filing Date")
covering the registration under the Act of all Registrable Securities then
outstanding to be offered or sold on a delayed or continuous basis as provided
by this Agreement, pursuant to Rule 415 of the Act (the "Shelf Registration
Statement"); and (ii) to maintain the effectiveness of the Shelf Registration
Statement for a period of two (2) years from the date this Agreement (or such
shorter period in accordance with Section 1.3).
(b) If any offering pursuant to Section
1.2(a) hereof involves an underwritten offering, an underwriter will be selected
by the Holders of two-thirds of the Registrable Securities then outstanding and
shall be reasonably acceptable to the Company. In such event, the right of any
Holder to include its Registrable Securities in such registration shall be
conditioned upon such Holder's participation in such underwriting and the
inclusion of such Holder's Registrable Securities in the underwriting to the
extent provided herein. All Holders proposing to distribute Registrable
Securities through such underwriting shall (together with the Company as
provided in Section 1.4(e)) enter into an underwriting agreement in customary
form with the underwriter or underwriters selected for such underwriting.
Notwithstanding any other provision of this Section 1.2, if the underwriter
advises the Holders in writing that marketing factors require a limitation of
the number of shares to be underwritten, then the number of shares of
Registrable Securities that may be included in the underwriting shall be
allocated among all Holders thereof in proportion (as nearly as practicable) to
the amount of Registrable Securities of the Company owned by each Holder;
provided, however, that the number of shares of Registrable Securities to be
included in such underwriting shall not be reduced unless all Other Securities
(as defined below) are first entirely excluded from the underwriting.
(c) Notwithstanding the foregoing, if the
Company shall furnish to the Holders a certificate signed by the Chief Executive
Officer or President of the Company stating that, in the good faith judgment of
the Board of Directors of the Company, it would be seriously detrimental (a
"Detrimental Condition") to the Company and its stockholders for a registration
statement to be filed or to become or remain effective, as the case may be, and
provided that the Detrimental Condition has not resulted from actions taken by
the Company, (i) the Company shall have the right to defer taking action with
respect to the filing of the Shelf Registration Statement for a period of not
more than ninety (90) days after the Filing Date, (ii) in case a Shelf
Registration Statement has been filed but has not become effective, the Company
may cause such registration statement to be withdrawn or may postpone amending
or supplementing such registration statement until such Detrimental Condition no
longer exists, but in no event for more than ninety (90) days, or (iii) in case
a Shelf Registration Statement has been filed and has become effective, the
Company may cause such registration statement to be withdrawn and its
effectiveness terminated or may postpone amending or supplementing such
registration statement until such Detrimental Condition no longer exists, but in
no event for more than ninety (90) days. The Company may not declare a
Detrimental Condition, or take any of the actions specified in clauses (i), (ii)
or (iii) of the preceding sentence (and can take only one such action specified
in clauses (i), (ii) or (iii) per Detrimental Condition), more than once in any
twelve-month period. The Company shall give written notice of its determination
to postpone or withdraw a registration statement and of the fact that the
Detrimental Condition for such postponement or withdrawal no longer exists, in
each case, promptly after the occurrence thereof. The following events or
circumstances may result in the filing of a registration statement being
seriously detrimental to the Company and its shareholders: a pending material
acquisition, merger or sale or purchase of assets, pending or threatened
material litigation, pending or threatened material regulatory or governmental
action, pending material change in the business, prospects, condition (financial
or other) or properties of the Company. The foregoing list is for illustrative
purposes only and is not meant to be exclusive.
(d) If the Company shall give any notice of
postponement or withdrawal of any registration statement, the Company shall not,
during the period of postponement or withdrawal pursuant to clauses (i), (ii) or
(iii) of the prior paragraph, register any Common Stock, other than pursuant to
a registration statement on Form S-4 or S-8 (or an equivalent registration form
then in effect). Each Holder of Registrable Securities agrees that, upon receipt
of any notice from the Company that the Company has determined to withdraw any
registration statement pursuant to the immediately preceding paragraph, such
Holder will discontinue its disposition of Registrable Securities pursuant to
such registration statement and, if so directed by the Company, will deliver to
the Company (at the Company's expense) all copies, other than permanent file
copies, then in such Holder's possession of the prospectus covering such
Registrable Securities that was in effect at the time of receipt of such notice.
If the Company shall have withdrawn or prematurely terminated a registration
statement filed under this Section 1.2 (whether pursuant to the immediately
preceding paragraph, or as a result of any stop order, injunction or other order
or requirement of the SEC or any other governmental agency or court), the
Company shall not be considered to have effected an effective registration for
the purposes of this Agreement until the Company shall have filed a new
registration statement covering the Registrable Securities covered by the
withdrawn registration statement and such registration statement shall have been
declared effective and shall not have been withdrawn. If the Company shall give
any notice of withdrawal or postponement of a registration statement, the
Company shall, at such time as the Detrimental Condition that caused such
withdrawal or postponement no longer exists (but in no event later than ninety
(90) days after the date of the postponement or withdrawal), use its best
efforts to effect the registration under the Securities Act of the Registrable
Securities covered by the withdrawn or postponed registration statement in
accordance with this Section 1.2 (unless the Holder shall have withdrawn such
request, in which case the Company shall not be considered to have effected an
effective registration for the purposes of this Agreement).
(e) Without the prior written consent of the
Holders of two-thirds of the Registrable Securities then outstanding, the
registration statement filed pursuant to this Section 1.2 may not include other
securities of the Company (i) which are held by persons who, by virtue of
agreements with the Company, are entitled to include their securities in any
such registration, (ii) which are held by officers and directors of the Company,
or (iii) which are being offered for the account of the Company (collectively,
the securities referred to in clauses (i), (ii) and (iii) in this paragraph are
hereinafter referred to as the "Other Securities").
1.3 Company Registration. If (but without any
obligation to do so) the Company proposes to register (including for this
purpose a registration effected by the Company for stockholders other than the
Holders) any of its stock or other securities under the Act in connection with
the public offering of such securities solely for cash (other than a
registration relating solely to the sale of securities to participants in a
Company stock option, stock purchase or similar plan or a SEC Rule 145
transaction, a registration on any form which does not include substantially the
same information as would be required to be included in a registration statement
covering the sale of the Registrable Securities or a registration in which the
only Common Stock being registered is Common Stock issuable upon conversion of
debt securities that are also being registered), the Company shall, at such
time, promptly give each Holder written notice of such registration. Upon the
written request of each Holder given within twenty (20) days after mailing of
such notice by the Company in accordance with Section 2.5, the Company shall,
subject to the provisions of Section 1.8, cause to be registered under the Act
all of the Registrable Securities that each such Holder has requested to be
registered. No registration effected pursuant to this Section 1.3 shall relieve
the Company of its obligations to effect the required registration pursuant to
Section 1.2. Any Holder shall have the right to withdraw his request for
inclusion of its Registrable Securities in any registration statement pursuant
to this Section 1.3 by giving written notice to the Company of its request to
withdraw.
1.4 Obligations of the Company. When required under
this Section 1 to effect the registration of the Registrable Securities, the
Company shall, as expeditiously as reasonably possible:
(a) Prepare and file with the Securities and
Exchange Commission (the "SEC") a Shelf Registration Statement or, if
applicable, any other form of registration statement, as the case may be, with
respect to the Registrable Securities and use its best efforts to cause such
registration statement to become effective within one hundred twenty (120) days
after such registration statement was filed and to keep such Shelf Registration
Statement effective for a period up to the second anniversary of the date hereof
or until the distribution contemplated in the Shelf Registration Statement has
been completed; provided, however, that before filing a registration statement
or prospectus or any amendments or supplements thereto, or comparable statements
under securities or blue sky laws of any jurisdiction, the Company will furnish
to one counsel for the Holders (the "Holders' Counsel") participating in the
planned offering (selected by the Holders of two-thirds of the Registrable
Securities then outstanding included in such registration), and the
underwriters, if any, copies of all such documents proposed to be filed
(including all exhibits thereto), which documents will be subject to the
reasonable review and reasonable comment of such counsel.
(b) 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 necessary to
comply with the provisions of the Act with respect to the disposition of all
securities covered by such registration statement.
(c) Furnish to the Holders whose Registrable
Securities are covered by the Shelf Registration Statement such numbers of
copies of a prospectus, including a preliminary prospectus, in conformity with
the requirements of the Act, and such other documents as they may reasonably
request in order to facilitate the disposition of Registrable Securities owned
by them.
(d) Use its best efforts to register and
qualify the securities covered by such registration statement under such other
securities or Blue Sky laws of such jurisdictions as shall be reasonably
requested by the Holders whose Registrable Securities are covered by the Shelf
Registration Statement; provided that the Company shall not be required in
connection therewith or as a condition thereto to qualify to do business or to
file a general consent to service of process in any such states or jurisdictions
unless the Company is already subject to service in such jurisdiction.
(e) In the event the Registrable Securities
are to be sold through an underwritten public offering, enter into and perform
its obligations under an underwriting agreement, in usual and customary form,
with the managing underwriter of such offering. The Holders proposing to
distribute Registrable Securities through such underwritten public offering
shall also enter into and perform their obligations under such an agreement.
(f) In the event the Registrable Securities
are to be sold through an underwritten public offering, use its best efforts to
furnish, on the date that such Registrable Securities are delivered to the
underwriters for sale in connection with a registration pursuant to this Section
1, (i) an opinion, dated such date, of the counsel representing the Company for
the purposes of such registration, in form and substance as is customarily given
to underwriters in an underwritten public offering, addressed to the
underwriters, and (ii) a letter, dated such date, from the independent certified
public accountants of the Company addressed to the underwriters, stating that
such accountants are independent public accountants within the meaning of the
Act and the applicable published rules and regulations thereunder, and otherwise
in form and in substance as is customarily given by independent certified public
accountants to underwriters in connection with an underwritten public offering.
(g) Promptly notify (i) each Holder selling
Registrable Securities covered by such registration statement and each managing
underwriter, if any: (A) when the registration statement, the prospectus or any
prospectus supplement related thereto or post-effective amendment to the
registration statement has been filed and, with respect to the registration
statement or any post-effective amendment, when the same has become effective,
(B) of the issuance by the SEC of any stop order suspending the effectiveness of
the registration statement or the initiation of any proceedings for that
purpose, (C) of the receipt by the Company of any notification with respect to
the suspension of the qualification of any Registrable Securities for sale under
the securities or blue sky laws of any jurisdiction or the initiation of any
proceeding for such purpose, and (D) when a prospectus relating to the
registration statement is required to be delivered under the Act of 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; and (ii) Holders' Counsel and each managing
underwriter of any request by the SEC for amendments or supplements to such
registration statement or prospectus related thereto or for additional
information. If the notification relates to an event described in clause (i)(D),
the Company shall, in accordance with paragraph (b) of this Section 1.4,
promptly prepare and furnish to each Holder selling Registrable Securities
covered by such registration statement and each managing underwriter, if any, a
reasonable number of copies of a prospectus supplemented or amended so that, as
thereafter delivered to the purchasers of such Registrable Securities, such
prospectus shall not include an 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 the light of the circumstances under which they were made
not misleading.
(h) Cooperate with the selling Holders of
Registrable Securities and the managing underwriter, if any, to facilitate the
timely preparation and delivery of certificates not bearing any restrictive
legends representing the Registrable Securities to be sold, and cause such
Registrable Securities to be issued in such denominations and registered in such
names in accordance with the underwriting agreement prior to any sale of
Registrable Securities to the underwriters or, if not an underwritten offering,
in accordance with the instructions of the selling Holders of Registrable
Securities at least three business days prior to any sale of Registrable
Securities and instruct any transfer agent and registrar of Registrable
Securities to release any stop transfer orders in respect thereto.
(i) Comply with all applicable rules and
regulations of the SEC, and make generally available to its security holders, as
soon as reasonably practicable after the effective date of the registration
statement (and in any event within 16 months thereafter), an earnings statement
(which need not be audited) covering the period of at least twelve consecutive
months beginning with the first day of the Company's first calendar quarter
after the effective date of the registration statement, which earnings statement
shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder.
(j) (i) Cause all such Registrable
Securities covered by such registration statement to be listed on the principal
securities exchange on which similar securities issued by the Company are then
listed (if any), if the listing of such Registrable Securities is then permitted
under the rules of such exchange, or (ii) if no similar securities are then so
listed, to either cause all such Registrable Securities to be listed on a
national securities exchange or to secure designation of all such Registrable
Securities as a National Association of Securities Dealers, Inc. Automated
Quotation System ("NASDAQ") "national market system security" within the meaning
of Rule 11Aa2-1 of the Exchange Act or, failing that, secure NASDAQ
authorization for such shares and, without limiting the generality of the
foregoing, take all actions that may be required by the Company as the issuer of
such Registrable Securities in order to facilitate the managing underwriter's
arranging for the registration of at least two market makers as such with
respect to such shares with the National Association of Securities Dealers, Inc.
(the "NASD").
(k) Provide and cause to be maintained a
transfer agent and registrar for all such Registrable Securities covered by such
registration statement not later than the effective date of such registration
statement.
(l) Deliver promptly to Holders' Counsel and
each underwriter, if any, copies of all correspondence between the SEC and the
Company, its counsel or auditors and all memoranda relating to discussions with
the SEC or its staff with respect to the registration statement, other than
those portions of any such memoranda which contain information subject to
attorney-client privilege with respect to the Company, and, upon receipt of such
confidentiality agreements as the Company may reasonably request, make
reasonably available for inspection by Holders' Counsel, by any underwriter, if
any, participating in any disposition to be effected pursuant to such
registration statement and any attorney, accountant or other agent retained by
any such underwriter, all pertinent financial and other records, pertinent
corporate documents and properties of the Company, and cause all of the
Company's officers, directors and employees to supply all information reasonably
requested by Holders' Counsel or such underwriter, attorney, accountant or agent
in connection with such registration statement.
(m) Use reasonable best efforts to obtain
the withdrawal of any order suspending the effectiveness of the registration
statement.
(n) Upon written request, furnish to each
Holder participating in the offering and the managing underwriter, without
charge, at least one conformed copy of the registration statement and any
post-effective amendments thereto, including financial statements and schedules,
all documents incorporated therein by reference and all exhibits (including
those incorporated by reference).
(o) Take all such other commercially
reasonable actions as are necessary or advisable in order to expedite or
facilitate the disposition of such Registrable Securities.
1.5 Furnish Information. It shall be a condition
precedent to the obligations of the Company to take any action pursuant to this
Section 1 with respect to the Registrable Securities of the Holders whose
Registrable Securities are covered by the Shelf Registration Statement that each
of such Holders shall furnish to the Company such information regarding itself,
the Registrable Securities held by it, and the intended method of disposition of
such securities as shall be required to effect the registration of such Holders'
Registrable Securities.
1.6 Expenses of Registration.
(a) "Expenses" shall mean any and all fees
and expenses incident to the Company's performance of or compliance with this
Article 1, including, without limitation: (i) SEC, stock exchange or NASD
registration and filing fees and all listing fees and fees with respect to the
inclusion of securities in NASDAQ, (ii) fees and expenses of compliance with
state securities or "blue sky" laws and in connection with the preparation of a
"blue sky" survey, including without limitation, reasonable fees and expenses of
blue sky counsel, (iii) printing and copying expenses, (iv) messenger and
delivery expenses, (v) expenses incurred in connection with any road show, (vi)
fees and disbursements of counsel for the Company, (vii) with respect to each
registration, the fees and disbursements of one counsel for the selling
Holder(s) (selected by the Holders of two-thirds of the Registrable Securities
then outstanding included in such registration), (viii) fees and disbursements
of the Company's independent public accountants (including the expenses of any
audit and/or "cold comfort" letter) and fees and expenses of other persons,
including special experts, retained by the Company, (ix) any fees and expenses
payable to a Qualified Independent Underwriter (as such term is defined in
Conduct Rule 2720 of the National Association of Securities Dealers, Inc.'s
By-Laws) and (x) any other fees and disbursements of underwriters, if any,
customarily paid by issuers or sellers of securities (collectively, "Expenses").
(b) The Company shall pay all Expenses with
respect to any registration pursuant to Section 1.2, whether or not such
registration statement becomes effective or remains effective for the period
contemplated by Section 1.2(a).
(c) Notwithstanding the foregoing, (i) the
provisions of this Section 1.6 shall be deemed amended to the extent necessary
to cause these expense provisions to comply with "blue sky" laws of each state
in which the offering is made and (ii) in connection with any registration
hereunder, each Holder of Registrable Securities being registered shall pay all
underwriting discounts and commissions and any transfer taxes, if any,
attributable to the sale of such Registrable Securities, pro rata with respect
to payments of discounts and commissions in accordance with the number of shares
sold in the offering by such Holder, and (iii) the Company shall, in the case of
all registrations under this Section 1, be responsible for all its internal
expenses (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties).
1.7 Expenses of Company Registration. The Company
shall bear and pay all Expenses incurred in connection with any registration
filing or qualification of Registrable Securities with respect to the
registrations pursuant to Section 1.3 for each Holder (which right may be
assigned as provided in Section 1.12), but excluding underwriting discounts and
commissions relating to Registrable Securities.
1.8 Underwriting Requirements. In connection with any
offering involving an underwriting of shares of the Company's capital stock, the
Company shall not be required under Section 1.3 to include any of the Holders'
securities in such underwriting unless they accept the terms of the underwriting
as agreed upon between the Company and the underwriters selected by it (or by
other persons entitled to select the underwriters), and then only in such
quantity as the underwriters determine in their sole discretion will not
jeopardize the success of the offering by the Company. If the total amount of
securities, including Registrable Securities, requested by stockholders to be
included in such offering exceeds the amount of securities sold other than by
the Company that the underwriters determine in their sole discretion is
compatible with the success of the offering, then the Company shall be required
to include in the offering only that number of such securities, including
Registrable Securities, that the underwriters determine in their sole discretion
will not jeopardize the success of the offering (the securities so included to
be apportioned pro rata among the selling stockholders according to the total
amount of securities entitled to be included therein owned by each selling
stockholder or in such other proportions as shall mutually be agreed to by such
selling stockholders) but in no event shall the amount of securities of the
selling Holders included in the offering be reduced below thirty percent (30%)
of the total amount of securities included in such offering. For purposes of the
preceding parenthetical concerning apportionment, for any selling stockholder
that is a Holder of Registrable Securities and that is a partnership or
corporate partners, retired partners and stockholders of such Holder, or the
estates and family members of any such partners and retired partners and any
trusts for the benefit of any of the foregoing persons shall be deemed to be a
single "selling stockholder," and any pro-rata reduction with respect to such
"selling stockholder" shall be based upon the aggregate amount of shares
carrying registration rights owned by all entities and individuals included in
such "selling stockholder," as defined in this sentence.
1.9 Delay of Registration. The Holders shall not have
any right to obtain or seek an injunction restraining or otherwise delaying any
such registration as the result of any controversy that might arise with respect
to the interpretation or implementation of this Section 1.
1.10 Indemnification. In the event any Registrable
Securities are included in a registration statement under this Section 1:
(a) To the extent permitted by law, the
Company will indemnify and hold harmless the Holder whose Registrable Securities
are covered by the Registration Statement, its directors, officers, fiduciaries,
employees and stockholders or general or limited partners (and the directors,
officers, employees and stockholders thereof), any underwriter (as defined in
the Act) for such Holders and each person, if any, who controls such Holders or
underwriter within the meaning of the Act or the Securities Exchange Act of
1934, as amended (the "1934 Act"), each officer, director, employee, stockholder
or partner of such underwriter, against any losses, claims, damages, or
liabilities (joint or several) or actions or proceedings (whether commenced or
threatened) and expenses (including reasonable fees of counsel and any amounts
paid in any settlement effected with the Company's consent), to which they may
become subject under the Act, the 1934 Act or any state securities law, insofar
as such losses, claims, damages, or liabilities (or actions or proceedings in
respect thereof) ("Claims") or expenses 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 such registration statement, including any preliminary prospectus,
summary prospectus or final prospectus contained therein or any amendments or
supplements thereto, together with documents incorporated by reference therein,
(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 the Company of the
Act, the 1934 Act, any state securities law or any rule or regulation
promulgated under the Act, the 1934 Act or any state securities law; and the
Company will pay to such Holders, and each such underwriter or controlling
person any legal or other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, damage, liability, expense
or action or proceeding; provided, however, that (A) the indemnity agreement
contained in this Section 1.10 shall not apply to amounts paid in settlement of
any such Claim if such settlement is effected without the consent of the Company
(which consent shall not be unreasonably withheld), (B) the Company shall not be
liable in any case for any such Claim to the extent that it arises out of or is
based upon a Violation which occurs in reliance upon and in conformity with
written information furnished expressly for use in connection with such
registration by any such Holders, or any such underwriter or controlling person.
Such indemnity and reimbursement of expenses shall remain in full force and
effect regardless of any investigation made by as on behalf of such indemnified
party and shall survive the transfer of such securities by such Holder.
(b) To the extent permitted by law, each
Holder whose Registrable Securities are covered by the Shelf Registration
Statement will, severally and not jointly, indemnify and hold harmless the
Company, each of its directors, each of its officers who has signed the
registration statement, each person, if any, who controls the Company within the
meaning of the Act, any underwriter, and any controlling person of any such
underwriter, against any losses, claims, damages, or liabilities (joint or
several) to which any of the foregoing persons may become subject, under the
Act, or the 1934 Act, insofar as such Claim arises out of or is based upon any
Violation, in each case to the extent (and only to the extent) that such
Violation occurs in reliance upon and in conformity with written information
furnished by such Holder expressly for use in connection with such registration;
and such Holder will pay, as incurred, any legal or other expenses reasonably
incurred by any person intended to be indemnified pursuant to this Section 1.10,
in connection with investigating or defending any such Claim; provided, however,
that the indemnity agreement contained in this Section 1.10 shall not apply to
amounts paid in settlement of any such Claim if such settlement is effected
without the consent of such Holder, which consent shall not be unreasonably
withheld; provided that, in no event shall any indemnity under this Section 1.10
exceed the net proceeds from the offering received by such Holder. Such
indemnity and reimbursement of expenses shall remain in full force and effect
regardless of any investigation made by as on behalf of such indemnified party
and shall survive the transfer of such securities by such Holder.
(c) Promptly after receipt by an indemnified
party under this Section 1.10 of 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
1.10, 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 the indemnifying party so desires, jointly with any other
indemnifying party similarly noticed, to assume the defense thereof with counsel
mutually satisfactory to the 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, (i) 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; (ii) if the indemnifying party fails to take
reasonable steps necessary to defend diligently the action or proceeding within
30 days after receiving notice from such indemnified party; or (iii) if such
indemnified party who is a defendant in any action or proceeding which is also
brought against the indemnifying party reasonably shall have concluded that
there may be one or more legal defenses available to such indemnified party
which are not available to the indemnifying party. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action, if prejudicial to its ability to defend such
action, shall relieve such indemnifying party of any liability to the
indemnified party under this Section 1.10, 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
1.10.
(d) If the indemnification provided for in
this Section 1.10 is held by a court of competent jurisdiction to be unavailable
to an indemnified party with respect to any Claim or expense referred to
therein, 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 Claim 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 that resulted in such Claim 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 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. If, however, the allocation provided in the first
sentence of this paragraph is not permitted by applicable law, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative faults but also the relative benefits of the indemnifying party and the
indemnified party as well as any other relevant equitable considerations. The
parties hereto agree that it would not be just and equitable if contributions
pursuant to this Section 1.10(d) were to be determined by pro rata allocation or
by any other method of allocation which does not take account of the equitable
considerations referred to in the preceding sentences of this Section 1.10(d).
The amount paid or payable in respect of any Claim shall be deemed to include
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending such Claim. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. Notwithstanding anything in this
Section 1.10(d) to the contrary, no indemnifying party (other than the Company)
shall be required pursuant to this Section 1.10(d) to contribute any amount in
excess of the net proceeds received by such indemnifying party from the sale of
Registrable Securities in the offering to which the Claims of the indemnified
parties relate, less the amount of any indemnification payment made by such
indemnifying party pursuant to Sections 1.10(b).
(e) Notwithstanding the foregoing, to the
extent that the provisions on indemnification and contribution contained in the
underwriting agreement entered into in connection with the underwritten public
offering are in conflict with the foregoing provisions, the provisions in the
underwriting agreement shall control.
(f) The obligations of the Company and
Holders under this Section 1.10 shall survive the completion of any offering of
Registrable Securities in a registration statement under this Section 1, and
otherwise.
1.11 Reports Under Securities Exchange Act of 1934.
With a view to making available to the Holders the benefits of Rule 144
promulgated under the Act and any other rule or regulation of the SEC that may
at any time permit a Holder to sell securities of the Company to the public
without registration or pursuant to a registration on Form S-3, the Company
agrees to:
(a) make and keep public information
available, as those terms are understood and defined in SEC Rule 144, at all
times;
(b) take such action as is necessary to
maintain the Holder's ability to utilize Form S-3 for the sale of their
Registrable Securities;
(c) file with the SEC in a timely manner all
reports and other documents required of the Company under the Act and the 1934
Act; and
(d) furnish to any Holder, so long as the
Holder owns any Registrable Securities, forthwith upon request (i) a written
statement by the Company that it has complied with the reporting requirements of
SEC Rule 144, the Act and the 1934 Act (at any time after it so qualifies), (ii)
a copy of the most recent annual or quarterly report of the Company and such
other reports and documents filed by the Company with the SEC, and (iii) such
other information as may be reasonably requested in availing any Holder of any
rule or regulation of the SEC which permits the selling of any such securities
without registration or pursuant to such form.
1.12 Assignment of Registration Rights.
(a) The rights to cause the Company to
register Registrable Securities pursuant to this Section 1 may be assigned (but
only with all related obligations) by a Holder to a transferee or assignees of
such securities who acquires at least two percent (2%) of the Registrable
Securities (as adjusted for stock splits, combinations and the like), provided:
(i) the Company is, within a reasonable time after such transfer, furnished with
written notice of the name and address of such transferee or assignee and the
securities with respect to which such registration rights are being assigned;
(ii) such transferee or assignee agrees in writing to be bound by and subject to
the terms and conditions of this Agreement, including, without limitation, the
provisions of Section 1.14 below; and (iii) such assignment shall be effective
only if such transfer is exempt from registration under the Act. For the
purposes of determining the number of shares of Registrable Securities held by a
transferee or assignee, the holding of transferees and assignees of a
partnership who are partners or retired partners of such partnership (including
spouses and ancestors, lineal descendants and siblings of such partners or
spouses who acquire Registrable Securities by gift, will or intestate
succession) shall be aggregated together with the partnership; provided that all
assignees and transferees who would not qualify individually for assignment of
registration rights shall have a single attorney-in-fact for the purpose of
exercising any rights, receiving notices or taking any action under this Section
1.
(b) Subject to clause (a) above, the right
to have the Company register the Registrable Securities pursuant to this Section
1 may not otherwise be assigned; provided, however, that (i) any heir or the
estate of an Investor which acquires the Registrable Securities from such
Investor by will or intestate succession shall be entitled to have the Company
register the Registrable Securities pursuant to this Section 1 (provided that
such heirs or such estate shall have a single attorney-in-fact for the purpose
of exercising any rights, receiving any notices or taking any action under this
Section 1), and (ii) any individual Investor may sell, assign or transfer
Registrable Securities to his or her spouse or children or to a trust
established for the benefit of his or her spouse, children or himself or
herself, and such transferee shall be entitled to have the Company register the
Registrable Securities pursuant to this Section 1, if, and only if, such
transferee agrees in writing to be bound by the terms of this Agreement. In each
such event and for purposes of this Agreement, the term "Holder" as used herein
shall include all such heirs, such estate or such transferees.
1.13 Limitations on Subsequent Registration Rights.
From and after the date of this Agreement, the Company shall not, without the
prior written consent of the Holders of two-thirds of the Registrable Securities
then outstanding, enter into any agreement with any holder or prospective holder
of any securities of the Company that would allow such holder or prospective
holder (a) to include such securities in any registration filed under Section
1.2 hereof, unless under the terms of such agreement, such holder or prospective
holder may include such securities in any such registration only to the extent
that the inclusion of his securities will not reduce the amount of the
Registrable Securities of the Holders that is included or (b) to make a demand
registration that could result in such registration statement being declared
effective within one hundred twenty (120) days of the effective date of any
registration effected pursuant to Section 1.2.
1.14 "Market Stand-Off" Agreement. Each Investor
hereby agrees that, during the period of duration specified by the Company and
an underwriter of Common Stock or other securities of the Company, following the
effective date of a registration statement of the Company filed under the Act,
it shall not, to the extent requested by the Company and such underwriter,
directly or indirectly sell, offer to sell, contract to sell (including, without
limitation, any short sale), grant any option to purchase or otherwise transfer
or dispose of (other than to donees who agree to be similarly bound) any
securities of the Company held by it at any time during such period except
Common Stock included in such registration, and each Investor agrees to enter
into an agreement to such effect with such underwriter; provided, however, that
(a) all officers and directors of the Company enter into similar agreements,
and, (b) such market stand-off time period shall not exceed 120 days. If the
underwriters agree to any waivers of such restrictions, then the Investors shall
be entitled to sell, transfer or dispose of the same number or amount of
securities of the Company as the person or entity receiving such waiver, upon
the same terms and conditions set forth in such waiver.
In order to enforce the foregoing covenant, the
Company may impose stop-transfer instructions with respect to the Registrable
Securities of the Investors (and the shares or securities of every other person
subject to the foregoing restriction) until the end of such period.
1.15 No Required Sale. Nothing in this Agreement
shall be deemed to create an independent obligation on the part of any Holder to
sell any Registrable Securities pursuant to any effective registration
statement.
2. Miscellaneous.
2.1 Successors and Assigns. Except as otherwise
provided herein, and provided that the transfer or assignment is in accordance
with the terms hereof, the terms and conditions of this Agreement shall inure to
the benefit of and be binding upon the respective successors and assigns of the
parties (including any permitted transferees of any shares of Registrable
Securities). Nothing in this Agreement, express or implied, is intended to
confer upon any party other than the parties hereto or their respective
successors and assigns any rights, remedies, obligations, or liabilities under
or by reason of this Agreement, except as expressly provided in this Agreement.
2.2 Governing Law. This Agreement shall be governed
by and construed under the laws of the State of New York without regard to
principles of conflicts or choice of laws.
2.3 Counterparts. This Agreement may be executed 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.
2.4 Titles and Subtitles. The titles and subtitles
used in this Agreement are used for convenience only and are not to be
considered in construing or interpreting this Agreement.
2.5 Notices. Unless otherwise provided, any notice
required or permitted under this Agreement shall be given in writing and shall
be deemed effectively given upon personal delivery to the party to be notified
or upon deposit with the United States Post Office, by registered or certified
mail, postage prepaid and addressed to the party to be notified at the address
indicated for such party in the Stock Purchase Agreement, or at such other
address as such party may designate by ten (10) days' advance written notice to
the other parties.
2.6 Expenses. If any action at law or in equity is
necessary to enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to reasonable attorneys' fees, costs and necessary
disbursements in addition to any other relief to which such party may be
entitled.
2.7 Amendments and Waivers. Any term of this
Agreement may be amended and the observance of any term of this Agreement 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 Holders of
two-thirds of the Registrable Securities then outstanding. Any amendment or
waiver effected in accordance with this Section 2.7 shall be binding upon each
Holder of any Registrable Securities then outstanding, each future Holder of all
such Registrable Securities, and the Company.
2.8 Severability. If one or more provisions of this
Agreement are held to be unenforceable under applicable law, such provision
shall be excluded from this Agreement and the balance of the Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
2.9 Nominees for Beneficial Owners. If Registrable
Securities are held by a nominee for the beneficial owner thereof, the
beneficial owner thereof may, at its option, be treated as the Holder of such
Registrable Securities for purposes of any request or other action by any Holder
or Holders of Registrable Securities pursuant to this Agreement (or any
determination of any number or percentage of shares constituting Registrable
Securities held by any Holder or Holders of Registrable Securities contemplated
by this Agreement), provided that the Company shall have received assurances
reasonably satisfactory to it of such beneficial ownership.
2.10 Specific Performance. The parties hereto
acknowledge that there would be no adequate remedy at law if any party fails to
perform any of its obligations hereunder, and accordingly agree that each party,
in addition to any other remedy to which it may be entitled at law or in equity,
shall be entitled to injunctive relief, including specific performance, to
enforce such obligations without the posting of any bond, and, if any action
should be brought in equity to enforce any of the provisions of this Agreement,
none of the parties hereto shall raise the defense that there is an adequate
remedy at law.
2.11 No Inconsistent Agreements. The rights granted
to the Holders of Registrable Securities hereunder do not in any way conflict
with and are not inconsistent with any other agreements to which the Company is
a party or by which it is bound. Without the prior written consent of the
holders of two-thirds of the Registrable Securities then outstanding, neither
the Company nor any Holder will, on or after the date of this Agreement, enter
into any agreement with respect to its securities which is inconsistent with the
rights granted in this Agreement or otherwise conflicts with the provisions
hereof, other than any lock-up agreement with the underwriters in connection
with any registered offering effected hereunder, pursuant to which the Company
shall agree not to register for sale, and the Company shall agree not to sell or
otherwise dispose of, Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock, for a specified period following
the registered offering. The Company further agrees that if any other
registration rights agreement entered into after the date of this Agreement with
respect to any of its securities contains terms which are more favorable to, or
less restrictive on, the other party thereto than the terms and conditions in
this Agreement are (insofar as they are applicable to the Holders), then the
terms and conditions of this Agreement shall immediately be deemed to have been
amended without further action by the Company or any of the Holders of
Registrable Securities so that the Holders shall be entitled to the benefit of
any such more favorable or less restrictive terms or conditions.
2.12 Entire Agreement. This Agreement (including the
Exhibits hereto, if any) constitutes the full and entire understanding and
agreement between the parties with regard to the subjects hereof and thereof.
IN WITNESS WHEREOF, the parties have executed this
Registration Rights Agreement as of the date first above written.
EXOGEN, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President and Chief Executive Officer
Address: ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
INVESTORS:
DELPHI VENTURES III, L.P.
By: Delphi Management Partners III, L.L.C.,
General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Member
DELPHI BIO-INVESTMENTS III, L.P.
By: Delphi Management Partners III, L.L.C.,
General Partners
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Member
REGISTRATION RIGHTS AGREEMENT
THE DEMETER TRUST DTD 6/5/90
TRUSTEE
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ TRUST DTD
11/6/78
Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ TRUST DTD
11/6/78
Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ TRUST DTD
11/6/7
Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
REGISTRATION RIGHTS AGREEMENT
PEQUOT PRIVATE EQUITY FUND L.P.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: CFO, DSCMI Inv. Mgr.
PEQUOT OFFSHORE PRIVATE EQUITY
FUND, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: CFO, DSCMI Inv. Mgr.
REGISTRATION RIGHTS AGREEMENT
▇▇▇▇▇ ▇▇▇▇▇▇▇ HEALTHCARE CAPITAL
LIMITED PARTNERSHIP (SBIC)
By: Piper Ventures Management IV Limited
Partnership, its General Partner
By: /s/ Buzz ▇▇▇▇▇▇
---------------
Buzz ▇▇▇▇▇▇, Managing Director Piper
Ventures Capital, Inc., Its General Partner
REGISTRATION RIGHTS AGREEMENT
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇
REGISTRATION RIGHTS AGREEMENT