Exhibit 10.3
MEDVEST HOLDINGS CORPORATION
REGISTRATION AGREEMENT
THIS AGREEMENT (this "AGREEMENT") is made as of May 21, 2003, by and
among MedVest Holdings Corporation, an Ohio corporation (the "COMPANY"), OEP
MedVest LLC, a Delaware limited liability company ("OEP"), each of the Persons
party hereto listed on the SCHEDULE OF INVESTORS attached hereto (collectively
such Persons are hereinafter referred to as the "INVESTORS"). Capitalized terms
used but not otherwise defined herein shall have the meanings set forth in
SECTION 8 hereof.
WHEREAS, the parties hereto desire to enter into this Agreement to,
among other things, establish the registration rights of the Registrable
Securities.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties hereby agree as follows:
Section 1. DEMAND REGISTRATIONS.
(a) REQUESTS FOR REGISTRATION. At any time after a Qualified Public
Offering, the holder or holders of a majority of the OEP Registrable Securities
or the holder or holders of a majority of the Investor Registrable Securities
each may request registration under the Securities Act of all or any portion of
their Registrable Securities on Form S-1 or any similar long-form registration
(each a "LONG-FORM REGISTRATION"), or on Form S-2 or S-3 (including pursuant to
Rule 415 under the Securities Act) or any similar short-form registration (a
"SHORT-FORM REGISTRATION"), if available; PROVIDED, HOWEVER, that no holder or
holders of OEP Registrable Securities or Investor Registrable Securities shall
be entitled to request registration of such OEP Registrable Securities or
Investor Registrable Securities, as the case may be, at anytime such holder or
holders fail to own at least five percent (5%) of the issued and outstanding
Registrable Securities. All registrations requested pursuant to this SECTION
1(a) are referred to herein as "DEMAND REGISTRATIONS." Each request for a Demand
Registration shall specify the approximate number of Registrable Securities
requested to be registered. Within ten (10) days after receipt of any such
request, the Company shall give written notice of such requested registration to
all other holders of Registrable Securities and, subject to the terms of SECTION
1(d) hereof, shall include in such registration all Registrable Securities with
respect to which the Company has received written requests for inclusion therein
within thirty (30) days after the receipt of the Company's notice.
(b) LONG-FORM REGISTRATIONS. Subject to SECTION 1(a) above, the
holder or holders of a majority of the OEP Registrable Securities shall be
entitled to request two (2) Long-Form Registrations in which the Company shall
pay all Registration Expenses ("COMPANY-PAID LONG-FORM REGISTRATIONS") and the
holder or holders of a majority of the Investor Registrable Securities shall be
entitled to request one (1) Company-paid Long-Form Registration. A registration
shall not count as one of the permitted Long-Form Registrations until it has
become effective, and no Long-Form Registration shall count as one of the
Company-paid Long-Form Registrations unless the party requesting such
registration is able to register and sell at least 90% of its Registrable
Securities requested to be included in such registration; PROVIDED that in any
event the Company shall pay all Registration Expenses in connection with any
registration initiated as a Company-paid Long-Form Registration whether or not
it has become effective and whether or not such registration is counted as one
of the Company-paid Long-Form Registrations.
(c) SHORT-FORM REGISTRATIONS. In addition to the Long-Form
Registrations provided pursuant to SECTION 1(b), the holder or holders of a
majority of the OEP Registrable Securities and the holders of a majority of the
Investor Registrable Securities each shall be entitled to request an unlimited
number of Short-Form Registrations, in which the Company shall pay all
Registration Expenses; PROVIDED that the aggregate offering value of the
Registrable Securities requested to be registered in any Short-Form Registration
must equal at least $5 million. Demand Registrations shall be Short-Form
Registrations whenever the Company is permitted to use Form ▇-▇, ▇-▇ or any
other applicable short form.
(d) PRIORITY ON DEMAND REGISTRATIONS. The Company shall not include
in any Demand Registration any securities which are not Registrable Securities
without the prior written consent of the party initially requesting such
registration. If a Demand Registration is an underwritten offering and the
managing underwriters advise the Company in writing that in their opinion the
number of Registrable Securities and, if permitted hereunder, other securities
requested to be included in such offering exceeds the number of Registrable
Securities and other securities, if any, which can be sold therein without
adversely affecting the marketability of the offering, the Company shall include
in such registration prior to the inclusion of any securities which are not
Registrable Securities the number of Registrable Securities requested to be
included which in the opinion of such underwriters can be sold without adversely
affecting the marketability of the offering, PRO RATA among the respective
holders thereof on the basis of the amount of Registrable Securities owned by
each such holder.
(e) RESTRICTIONS ON DEMAND REGISTRATIONS. The Company shall not be
obligated to effect any Demand Registration within 180 days after the effective
date of a previous Demand Registration or a previous registration in which the
holders of Registrable Securities were given piggyback rights pursuant to
SECTION 2 and in which there was no reduction in the number of Registrable
Securities requested to be included. The Company may postpone for up to 180 days
the filing or the effectiveness of a registration statement for a Demand
Registration if the Company's board of directors determines in its reasonable
good faith judgment that such Demand Registration would reasonably be expected
to have a material adverse effect on any proposal or plan by the Company or any
of its Subsidiaries to engage in any acquisition of assets (other than in the
ordinary course of business) or any merger, consolidation, tender offer,
reorganization, financing or similar transaction; provided that in such event,
the holders of Registrable Securities initially requesting such Demand
Registration shall be entitled to withdraw such request and, if such request is
withdrawn, such Demand Registration shall not count as a permitted Demand
Registration hereunder and the Company shall pay all Registration Expenses in
connection with such registration. The Company may delay a Demand Registration
hereunder only once in any twelve-month period.
(f) SELECTION OF UNDERWRITERS. The Company shall have the right, in
its sole and absolute discretion after consultation with the holder or holders
demanding registration, to select the investment banker(s) and manager(s) to
administer the offering made in connection
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with any Demand Registration; provided that if the investment banker(s) and
manager(s) is an affiliate of OEP, then such selection will require the consent
of a majority-in-interest of the holders of the Investor Registrable Securities.
(g) OTHER REGISTRATION RIGHTS. The Company shall not grant to any
Person the right to request that the Company register any equity securities of
the Company, or any securities convertible into or exchangeable or exercisable
for any such securities, without the prior written consent of the holder or
holders of a majority of the OEP Registrable Securities and the Investor
Registrable Securities.
Section 2. PIGGYBACK REGISTRATIONS.
(a) RIGHT TO PIGGYBACK. Whenever the Company proposes to register
any of its securities under the Securities Act (other than (i) the Company's
initial public offering, (ii) any shelf or other registration of securities to
be used as consideration for acquisitions of additional businesses by the
Company or (iii) registrations relating to employee benefit plans) and the
registration form to be used may be used for the registration of Registrable
Securities (a "PIGGYBACK REGISTRATION"), whether or not for sale for its own
account, the Company shall give prompt written notice to all holders of
Registrable Securities of its intention to effect such a registration and,
subject to the terms of SECTIONS 2(c) and 2(d) hereof, shall include in such
registration all Registrable Securities with respect to which the Company has
received written requests for inclusion therein within thirty (30) days after
the receipt of the Company's notice.
(b) PIGGYBACK EXPENSES. In all Piggyback Registrations, the
Registration Expenses of the holders of Registrable Securities shall be paid by
the Company.
(c) PRIORITY ON PRIMARY REGISTRATIONS. If a Piggyback Registration
is an underwritten primary registration on behalf of the Company, and the
managing underwriters advise the Company in writing that in their opinion the
number of securities requested to be included in such registration exceeds the
number which can be sold in such offering without adversely affecting the
marketability of the offering, the Company shall include in such registration
(i) first, the securities the Company proposes to sell, (ii) second, the
Registrable Securities requested to be included in such registration, PRO RATA
among the holders of such Registrable Securities on the basis of the number of
Registrable Securities held by each such holder, and (iii) third, other
securities requested to be included in such registration.
(d) PRIORITY ON SECONDARY REGISTRATIONS. If a Piggyback
Registration is an underwritten secondary registration on behalf of holders of
the Company's securities and the managing underwriters advise the Company in
writing that in their opinion the number of securities requested to be included
in such registration exceeds the number which can be sold in such offering
without adversely affecting the marketability of the offering, the Company shall
include in such registration (i) first, the securities requested to be included
therein by the holders requesting such registration and the Registrable
Securities requested to be included in such registration, PRO RATA among the
holders of such securities on the basis of the number of securities owned by
each such holder, and (ii) second, other securities requested to be included in
such registration.
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(e) SELECTION OF UNDERWRITERS. If any Piggyback Registration is an
underwritten offering, the selection of investment banker(s) and manager(s) for
the offering shall be made by the Company in its sole and absolute discretion
after consultation with the holders of Registrable Securities who have requested
inclusion in the offering; provided that if the investment banker(s) and
manager(s) is an affiliate of OEP, then such selection will require the consent
of a majority-in-interest of the holders of the Investor Registrable Securities.
(f) WITHDRAWAL BY COMPANY. If, at any time after giving notice of
its intention to register any of its securities as set forth in SECTION 2(a) and
before the effective date of such registration statement filed in connection
with such registration, the Company shall determine, for any reason, not to
register such securities, the Company may, in its sole discretion, give written
notice of such determination to each holder of Registrable Securities and
thereupon shall be relieved of its obligation to register any Registrable
Securities in connection with such registration (but not from its obligation to
pay the Registration Expenses in connection therewith as provided herein).
(g) OTHER REGISTRATIONS. If the Company has previously filed a
registration statement with respect to Registrable Securities pursuant to
SECTION 1 or pursuant to this SECTION 2, and if such previous registration has
not been withdrawn or abandoned, the Company shall not file or cause to be
effected any other registration of any of its equity securities or securities
convertible or exchangeable into or exercisable for its equity securities under
the Securities Act (except on Form ▇-▇, ▇▇▇▇ ▇-▇ or any successor forms
thereto), whether on its own behalf or at the request of any holder or holders
of such securities, until a period of at least 180 days has elapsed from the
effective date of such previous registration.
Section 3. HOLDBACK AGREEMENTS.
(a) Each holder of Registrable Securities shall not effect any
public sale or distribution (including sales pursuant to Rule 144) of equity
securities of the Company, or any securities convertible into or exchangeable or
exercisable for such securities, during the seven days prior to and the 180-day
period beginning on the effective date of any underwritten public offering of
the Company's equity securities (including Demand Registrations and Piggyback
Registrations) (except as part of such underwritten registration), unless the
underwriters managing the registered public offering otherwise agree.
(b) The Company (i) shall not effect any public sale or
distribution of its equity securities, or any securities convertible into or
exchangeable or exercisable for such securities, during the seven days prior to
and during the 180-day period beginning on the effective date of any
underwritten public offering of the Company's equity securities (including
Demand Registrations and Piggyback Registrations) (except as part of such
underwritten registration or pursuant to registrations on Form ▇-▇, ▇▇▇▇ ▇-▇ or
any successor forms thereto), unless the underwriters managing the registered
public offering otherwise agree, and (ii) shall cause each holder of its Common
Stock, or any securities convertible into or exchangeable or exercisable for
Common Stock, purchased from the Company at any time after the date of this
Agreement (other than in a registered public offering) to agree not to effect
any public sale or distribution (including sales pursuant to Rule 144) of any
such securities during such period
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(except as part of such underwritten registration, if otherwise permitted),
unless the underwriters managing the registered public offering otherwise agree.
Section 4. REGISTRATION PROCEDURES. Whenever the holders of
Registrable Securities have requested that any Registrable Securities be
registered pursuant to this Agreement, the Company shall use its best efforts to
effect the registration and the sale of such Registrable Securities in
accordance with the intended method of disposition thereof, and pursuant thereto
the Company shall as expeditiously as possible:
(a) prepare and file with the Securities and Exchange Commission a
registration statement with respect to such Registrable Securities and use its
best efforts to cause such registration statement to become effective (provided
that before filing a registration statement or prospectus or any amendments or
supplements thereto, the Company shall furnish to counsel selected by the holder
or holders of a majority of the Registrable Securities covered by such
registration statement copies of all such documents proposed to be filed);
(b) notify each holder of Registrable Securities of the
effectiveness of each registration statement filed hereunder and prepare and
file with the Securities and Exchange Commission such amendments and supplements
to such registration statement and the prospectus used in connection therewith
as may be necessary to keep such registration statement effective for a period
of not less than 180 days and comply with the provisions of the Securities Act
with respect to the disposition of all securities covered by such registration
statement during such period in accordance with the intended methods of
disposition by the sellers thereof set forth in such registration statement;
(c) furnish to each seller of Registrable Securities such number of
copies of such registration statement, each amendment and supplement thereto,
the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as such seller may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such seller;
(d) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions as
any seller reasonably requests and do any and all other acts and things which
may be reasonably necessary or advisable to enable such seller to consummate the
disposition in such jurisdictions of the Registrable Securities owned by such
seller (provided that the Company shall not be required to (i) qualify generally
to do business in any jurisdiction where it would not otherwise be required to
qualify but for this subsection, (ii) subject itself to taxation in any such
jurisdiction or (iii) consent to general service of process in any such
jurisdiction);
(e) notify each seller of such Registrable Securities, at any time
when a prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in such registration statement contains an untrue statement
of a material fact or omits any fact necessary to make the statements therein
not misleading, and, at the request of any such seller, the Company shall
prepare a supplement or amendment to such prospectus so that, as thereafter
delivered to the purchasers of such
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Registrable Securities, such prospectus shall not contain an untrue statement of
a material fact or omit to state any fact necessary to make the statements
therein not misleading;
(f) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed or, if not so listed, to be listed on the NASD automated quotation
system;
(g) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement;
(h) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the holder or
holders of a majority of the Registrable Securities being sold or the
underwriters, if any, reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities (including effecting a stock split,
combination of shares, recapitalization or reorganization);
(i) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other agent retained by
any such seller or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the Company's
officers, directors, employees and independent accountants to supply all
information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement;
(j) otherwise use its best efforts to comply with all applicable
rules and regulations of the Securities and Exchange Commission, and make
available to its security holders, as soon as reasonably practicable, an
earnings statement covering the period of at least twelve months beginning with
the first day of the Company's first full 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;
(k) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any common stock included in such registration statement for sale in any
jurisdiction, use its best efforts promptly to obtain the withdrawal of such
order;
(l) use its best efforts to cause such Registrable Securities
covered by such registration statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary to enable the
sellers thereof to consummate the disposition of such Registrable Securities;
and
(m) obtain a cold comfort letter from the Company's independent
public accountants in customary form and covering such matters of the type
customarily covered by cold comfort letters as the holder or holders of a
majority of the Registrable Securities being sold reasonably request (provided
that such Registrable Securities constitute at least 10% of the securities
covered by such registration statement).
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Section 5. REGISTRATION EXPENSES.
(a) All expenses incident to the Company's performance of or
compliance with this Agreement, including, without limitation, all registration
and filing fees, fees and expenses of compliance with securities or blue sky
laws, printing expenses, messenger and delivery expenses, fees and disbursements
of custodians, and fees and disbursements of counsel for the Company and all
independent certified public accountants, underwriters (excluding discounts and
commissions) and other Persons retained by the Company (all such expenses being
herein called "REGISTRATION EXPENSES"), shall be borne by the Company as
provided in this Agreement, and the Company shall pay its internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expense of any annual
audit or quarterly review, the expense of any liability insurance and the
expenses and fees for listing the securities to be registered on each securities
exchange on which similar securities issued by the Company are then listed or,
if none are so listed, on the NASD automated quotation system.
(b) In connection with each Piggyback Registration and Demand
Registration, the Company shall reimburse the holders of Registrable Securities
included in such registration for the reasonable fees and disbursements of one
counsel chosen by the holder or holders of a majority of the Registrable
Securities included in such registration.
(c) Each holder of securities included in any registration
hereunder shall pay those Registration Expenses allocable to the registration of
such holder's securities so included (other than such Registration Expenses
required to be paid by the Company hereunder or expenses reimbursed pursuant to
SECTION 5(b)), and any Registration Expenses not so allocable shall be borne by
all sellers of securities included in such registration in proportion to the
aggregate selling price of each seller's securities to be so registered.
Section 6. INDEMNIFICATION.
(a) The Company agrees to indemnify, to the extent permitted by
law, each holder of Registrable Securities, its officers and directors and each
Person who controls such holder (within the meaning of the Securities Act)
against all losses, claims, damages, liabilities and expenses caused by (i) any
untrue or alleged untrue statement of material fact contained in any
registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto, (ii) any omission or alleged omission of 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 Securities Act, the Exchange Act, any state securities law or any
rule or regulation promulgated under the Securities Act, the Exchange Act or any
state securities law in connection with the offering covered by such
registration statement; provided, however, that indemnification will not be
available to a holder insofar as the alleged losses, claims, damages,
liabilities or expenses are caused by or contained in any information with
respect to such holder furnished in writing to the Company by such holder
expressly for use therein or by such holder's failure to deliver a copy of the
registration statement or prospectus or any amendments or supplements thereto,
in compliance with the applicable requirements of the Securities Act, after the
Company has timely furnished such holder with a sufficient number of copies of
the same. In connection with an underwritten offering, the Company shall
indemnify
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such underwriters, their officers and directors and each Person who controls
such underwriters (within the meaning of the Securities Act) to the same extent
as provided above with respect to the indemnification of the holders of
Registrable Securities.
(b) In connection with any registration statement in which a holder
of Registrable Securities is participating, each such holder shall furnish to
the Company in writing such information and affidavits with respect to such
holder as the Company reasonably requests for use in connection with any such
registration statement or prospectus and, to the extent permitted by law, shall
indemnify the Company, its directors and officers and each Person who controls
the Company (within the meaning of the Securities Act) against any losses,
claims, damages, liabilities and expenses resulting from any untrue or alleged
untrue statement of material fact contained in the registration statement,
prospectus or preliminary prospectus or any amendment thereof or supplement
thereto or any omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein not misleading, but
only to the extent that such untrue or alleged untrue statement or omission is
contained in any information or affidavit so furnished in writing by such holder
expressly for use therein; provided that the obligation to indemnify shall be
individual, not joint and several, for each holder and shall be limited to the
net amount of proceeds received by such holder from the sale of Registrable
Securities pursuant to such registration statement.
(c) Any Person entitled to indemnification hereunder shall (i) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification (provided that the failure to give prompt notice
shall not impair any Person's right to indemnification hereunder to the extent
such failure has not prejudiced the indemnifying party) and (ii) unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist with respect to such claim,
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. If such defense is assumed,
the indemnifying party shall not be subject to any liability for any settlement
made by the indemnified party without its consent (but such consent shall not be
unreasonably withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim shall not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim. No indemnifying party shall, without the prior written consent of the
indemnified party (which consent shall not be unreasonably withheld or delayed),
effect any settlement of any claim on behalf of an indemnified party, unless
such settlement (i) includes an unconditional release of such indemnified party
from all liability on claims that are the subject matter of such claim and (ii)
does not include a statement as to, or an admission of, fault, culpability or
failure to act by on or behalf of the indemnified party.
(d) The indemnification provided for under this Agreement shall
remain in full force and effect regardless of any investigation made by or on
behalf of the indemnified party or any officer, director or controlling Person
of such indemnified party and shall survive the transfer of securities. If the
indemnification provided for in this SECTION 6 is held by a court of competent
jurisdiction to be unavailable to an indemnified party with respect to any
losses, claims, damages, liabilities or expenses referred to herein, the
indemnifying party, in lieu of
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indemnifying such indemnified party thereunder, shall to the extent permitted by
applicable law contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage, liability or expense in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party on the one hand and of the indemnified party on the other in connection
with the violation(s) that resulted in such loss, claim, damage, liability 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 a court of law 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;
provided, that in no event shall any contribution by a holder of Registrable
Securities hereunder exceed the net amount of proceeds received by such holder
from the sale of Registrable Securities pursuant to such registration statement.
Section 7. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No Person
may participate in any registration hereunder which is underwritten unless such
Person (i) agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Person or Persons entitled hereunder
to approve such arrangements and (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements.
Section 8. DEFINITIONS.
"OEP REGISTRABLE SECURITIES" means (i) any Common Stock issued to OEP
and its Permitted Transferees (as defined in the Stockholders Agreement), (ii)
any Common Stock issued or issuable with respect to the securities referred to
in clause (i) above by way of a stock dividend or stock split or in connection
with an exercise of any stock option or warrant or a combination of shares,
recapitalization, merger, consolidation or other reorganization and (iii) any
other shares of Common Stock held by Persons holding securities described in
clauses (i) and (ii), above. As to any particular OEP Registrable Securities,
such securities shall cease to be OEP Registrable Securities when they have been
distributed to the public pursuant to an offering registered under the
Securities Act or sold to the public through a broker, dealer or market maker in
compliance with Rule 144 under the Securities Act (or any similar rule then in
force) or repurchased by the Company or any Subsidiary. For purposes of this
Agreement, a Person shall be deemed to be a holder of OEP Registrable
Securities, and the OEP Registrable Securities shall be deemed to be in
existence, whenever such Person has the right to acquire directly or indirectly
such OEP Registrable Securities (upon conversion or exercise in connection with
a transfer of securities or otherwise, but disregarding any restrictions or
limitations upon the exercise of such right), whether or not such acquisition
has actually been effected, and such Person shall be entitled to exercise the
rights of a holder of OEP Registrable Securities hereunder.
"COMMON STOCK" means the common shares, without par value per share,
of the Company, as the terms of the same may be modified from time to time.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
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"INVESTOR REGISTRABLE SECURITIES" means (i) any Common Stock issued to
the Investors and their Permitted Transferees (as defined in the Stockholders
Agreement), (ii) any Common Stock issued or issuable with respect to the
securities referred to in clause (i) above by way of a stock dividend or stock
split or in connection with an exercise of any stock option or warrant or a
combination of shares, recapitalization, merger, consolidation or other
reorganization and (iii) any other shares of Common Stock held by Persons
holding securities described in clauses (i) and (ii), above. As to any
particular Investors Registrable Securities, such securities shall cease to be
Investors Registrable Securities when they have been distributed to the public
pursuant to an offering registered under the Securities Act or sold to the
public through a broker, dealer or market maker in compliance with Rule 144
under the Securities Act (or any similar rule then in force) or repurchased by
the Company or any Subsidiary. For purposes of this Agreement, a Person shall be
deemed to be a holder of Investors Registrable Securities, and the Investors
Registrable Securities shall be deemed to be in existence, whenever such Person
has the right to acquire directly or indirectly such Investors Registrable
Securities (upon conversion or exercise in connection with a transfer of
securities or otherwise, but disregarding any restrictions or limitations upon
the exercise of such right), whether or not such acquisition has actually been
effected, and such Person shall be entitled to exercise the rights of a holder
of Investors Registrable Securities hereunder.
"PERSON" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization and any other business entity.
"QUALIFIED PUBLIC OFFERING" means the sale by the Company in an
underwritten public offering registered under the Securities Act (other than on
Form S-8 or a similar form) of shares of Common Stock having an aggregate
offering value of at least $75 million and that results in the Company having a
deemed market capitalization of at least $300 million.
"REGISTRABLE SECURITIES" means, collectively, the OEP Registrable
Securities and the Investor Registrable Securities.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"STOCKHOLDERS AGREEMENT" means the Company's Stockholders Agreement
dated as of May 21, 2003 by and among the Company, OEP, the Investors and
certain other Persons that become a party thereto from time to time, as amended,
restated or modified from time to time.
"SUBSIDIARY" means, with respect to any Person, any corporation,
limited liability company, partnership, association, or other business entity of
which (i) if a corporation, a majority of the total voting power of equity
securities entitled (without regard to the occurrence of any contingency) to
vote in the election of directors, managers, or trustees thereof is at the time
owned or controlled, directly or indirectly, by that Person or one or more of
the other Subsidiaries of that Person or a combination thereof, or (ii) if a
limited liability company, partnership, association, or other business entity, a
majority of the partnership or other similar ownership interest thereof is at
the time owned or controlled, directly or indirectly, by any Person or one or
more Subsidiaries of that person or a combination thereof. For purposes hereof,
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a Person or Persons shall be deemed to have a majority ownership interest in a
limited liability company, partnership, association, or other business entity if
such Person or Persons shall be allocated a majority of limited liability
company, partnership, association, or other business entity gains or losses or
shall be, or control, the managing general partner of such limited liability
company, partnership, association, or other business entity. Reference to any
"Subsidiary" shall be given effect only at such times as the Person or Persons
has one or more Subsidiaries.
Section 9. LEGEND.
(a) Concurrently with the execution of this Agreement, there shall
be imprinted or otherwise placed, on certificates representing the Registrable
Securities issued on or after the date of this Agreement the following or a
substantially similar restrictive legend:
THE SECURITIES REPRESENTED HEREBY ARE SUBJECT TO THE RIGHTS AND
LIMITATIONS SET FORTH IN A REGISTRATION AGREEMENT DATED AS OF MAY 21,
2003, BY AND AMONG THE ISSUER OF SUCH SECURITIES, AND THE REGISTERED
HOLDER OF THIS CERTIFICATE (OR SUCH HOLDER'S PREDECESSOR-IN-INTEREST)
AND OTHERS. A COPY OF THE AGREEMENT IS ON FILE AND MAY BE INSPECTED BY
THE REGISTERED HOLDER OF THIS CERTIFICATE AT THE PRINCIPAL EXECUTIVE
OFFICE OF THE ISSUER.
(b) The legend shall be removed upon termination of the
registration rights set forth in SECTIONS 1 AND 2.
Section 10. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. The Company shall not hereafter
enter into any agreement with respect to its securities which is inconsistent
with or violates or diminishes the rights granted to the holders of Registrable
Securities in this Agreement.
(b) ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES. The Company shall
not take any action, or permit any change to occur, with respect to its
securities which would materially and adversely affect the ability of the
holders of Registrable Securities to include such Registrable Securities in a
registration undertaken pursuant to this Agreement or which would materially and
adversely affect the marketability of such Registrable Securities in any such
registration (including, without limitation, effecting a stock split or a
combination of shares).
(c) REMEDIES. Any Person having rights under any provision of this
Agreement shall be entitled to enforce such rights specifically, to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that, in addition to any other rights and
remedies existing in its favor, any party shall be entitled to specific
performance
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and/or other injunctive relief from any court of law or equity of competent
jurisdiction (without posting any bond or other security) in order to enforce or
prevent violation of the provisions of this Agreement.
(d) AMENDMENTS AND WAIVERS. Except as otherwise provided herein,
the provisions of this Agreement may be amended, waived or modified only upon
the prior written consent of the Company and the holder or holders of a majority
of the OEP Registrable Securities; PROVIDED that no such amendment or
modification that would adversely affect any holder of Registrable Securities
(including holders of Investor Registrable Securities) in a manner different
than any other holder of Registrable Securities shall not be effective against
the holders of such class or group of Registrable Securities without the prior
written consent of holders of at least a majority of Registrable Securities
adversely affected thereby. The failure of any party to enforce any of the
provisions of this Agreement shall in no way be construed as a waiver of such
provisions and shall not affect the right of such party thereafter to enforce
each and every provision of this Agreement in accordance with its terms.
(e) SUCCESSORS AND ASSIGNS. All covenants and agreements in this
Agreement by or on behalf of any of the parties hereto shall bind and inure to
the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not. In addition, whether or not any express assignment
has been made, the provisions of this Agreement which are for the benefit of
purchasers or holders of Registrable Securities are also for the benefit of, and
enforceable by, any subsequent holder of Registrable Securities.
(f) SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
(g) COUNTERPARTS. This Agreement may be executed simultaneously in
two or more counterparts (including by means of telecopied signature pages), any
one of which need not contain the signatures of more than one party, but all
such counterparts taken together shall constitute one and the same Agreement.
(h) DESCRIPTIVE HEADINGS. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part of this
Agreement.
(i) GOVERNING LAW. All issues and questions concerning the
construction, validity, interpretation and enforcement of this Agreement and the
exhibits and schedules hereto shall be governed by, and construed in accordance
with, the laws of the State of Ohio, without giving effect to any choice of law
or conflict of law rules or provisions (whether of the State of Ohio or any
other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Ohio.
(j) NOTICES. All notices, demands or other communications to be
given or delivered under or by reason of the provisions of this Agreement shall
be in writing and shall be deemed to have been given when delivered personally
to the recipient, sent to the recipient by
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reputable overnight courier service (charges prepaid) or mailed to the recipient
by certified or registered mail, return receipt requested and postage prepaid.
Such notices, demands and other communications shall be sent to the Company and
OEP at the addresses indicated below and to any other recipient at the address
indicated on the SCHEDULE OF STOCKHOLDERS attached hereto and to any subsequent
holder of Registrable Securities subject to this Agreement at such address as
indicated by the Company's records, or at such address or to the attention of
such other person as the recipient party has specified by prior written notice
to the sending party.
If to the Company:
MedVest Holdings Corporation
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Attention: ▇▇▇▇▇▇▇▇ Arena
And
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
WITH COPIES (WHICH SHALL NOT CONSTITUTE NOTICE) TO:
▇▇▇▇▇▇, Halter & ▇▇▇▇▇▇▇▇, LLP
1650 Fifth Third Center
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If to OEP:
OEP MedVest LLC
c/o One Equity Partners
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WITH COPIES (WHICH SHALL NOT CONSTITUTE NOTICE) TO:
Winston & ▇▇▇▇▇▇
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IN WITNESS WHEREOF, the parties have executed this Registration
Agreement as of the date first written above.
MEDVEST HOLDINGS CORPORATION.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. Arena
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Name: ▇▇▇▇▇▇▇▇ ▇. Arena
Its: President and CEO
OEP MEDVEST LLC
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: Manager
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[SIGNATURE PAGE TO REGISTRATION AGREEMENT CONT.]
SCHEDULE OF INVESTORS
NAME AND NOTICE ADDRESS
All Investor Notices should be sent to:
Medex, Inc.
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