EXHIBIT 10.23
EXOGEN, INC.
COMMON STOCK PURCHASE AGREEMENT
August 10, 1998
TABLE OF CONTENTS
Page
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1. Purchase and Sale of Stock..........................................1
1.1. Sale and Issuance of Common Stock..........................1
1.2. Closing....................................................1
1.3. Actions at the Closing.....................................1
2. Representations and Warranties of the Company.......................2
2.1. Organization and Good Standing; Power and Authority;
Qualifications.............................................2
2.2. Authorization..............................................2
2.3. Capitalization.............................................3
2.4. Valid Issuance of Common Stock.............................3
2.5. Consents...................................................3
2.6. Litigation.................................................3
2.7. Compliance with Other Instruments..........................4
2.8. Financial Statements.......................................4
2.9. SEC Filings................................................4
2.10. Other Information..........................................5
2.11. Intellectual Property Rights...............................5
2.12. Title to Assets and Properties; Insurance..................6
2.13. Compliance with Laws; Permits..............................6
2.14. Offering Exemption.........................................7
2.15. Taxes......................................................7
3. Representations and Warranties of S&N...............................7
3.1. Authorization..............................................7
3.2. Purchase Entirely for Own Account..........................7
3.3. Disclosure of Information..................................8
3.4. Investment Experience......................................8
3.5. Accredited Investor........................................8
3.6. Restricted Securities......................................8
4. Use of Proceeds.....................................................8
5. Transfer Taxes......................................................8
6. Expenses............................................................9
7. Miscellaneous.......................................................9
7.1. Survival of Warranties.....................................9
7.2. Successors and Assigns.....................................9
7.3. Governing Law..............................................9
7.4. Counterparts...............................................9
7.5. Titles and Subtitles.......................................9
7.6. Notices....................................................9
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7.7. Finder's Fee..............................................10
7.8. Attorneys' Fees...........................................10
7.9. Amendments and Waivers....................................10
7.10. Severability..............................................10
7.11. Entire Agreement..........................................10
7.12. Press Releases and Announcements..........................10
ii
SCHEDULES
Schedule 1.3(b)
Schedule 2.3
Schedule 2.5
Schedule 2.6
Schedule 2.11
Schedule 2.13
iii
ANNEXES
ANNEX A - Registration Rights Agreement
ANNEX B - Secretary's Certificate
ANNEX C - Opinion of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
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COMMON STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT is made as of the 10th day of
August, 1998, by and between Exogen, Inc., a Delaware corporation (the
"Company"), and ▇▇▇▇▇ & Nephew Holdings, Inc., a Delaware corporation ("S&N").
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Purchase and Sale of Stock.
1.1. Sale and Issuance of Common Stock. Subject to the terms
and conditions of this Agreement, S&N agrees to purchase at the Closing and the
Company agrees to sell and issue to S&N at the Closing, 820,000 shares of the
Company's common stock, $.0001 par value per share ("Common Stock"), at a
purchase price per share of $5.00 (such transaction referred to as the
"Purchase" and the aggregate purchase price of $4,100,000 referred to as the
"Purchase Price").
1.2. Closing. The purchase and sale of the Common Stock shall
take place at the offices of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ at 10:00 a.m. New York Time, on the date
hereof, or at such time and place upon which the Company and S&N shall agree
(the "Closing"). To the extent possible, at the Closing, the Company shall
deliver to S&N a certificate or certificates representing the Common Stock which
S&N is purchasing, registered in the name of S&N or its nominee, against payment
of the Purchase Price by wire transfer to the Company's bank account (designated
at least one business day prior to the Closing) in the amount of the Purchase
Price. If the Company is not able to deliver the certificate representing the
Common Stock at Closing, then the Company shall deliver such certificate(s) to
S&N no later than five (5) business days following the Closing.
1.3. Actions at the Closing. Simultaneously with, or prior to,
the execution and delivery of this Agreement, the following actions shall occur:
(a) The Registration Rights Agreement (the "Registration
Rights Agreement"), by and between the Company and S&N, substantially in the
form of Annex A hereto, and all other schedules, certificates and other
documents being delivered pursuant to or in connection with this Agreement by
any party hereto at or prior to the Closing shall be duly executed and delivered
by the parties thereto.
(b) The Company shall deliver to S&N certificates of good
standing from the jurisdictions set forth on Schedule 1.3(b) under its name
dated as of a date no earlier than five days prior to the Closing.
(c) The Common Stock to be issued shall have been approved
for listing on The NASDAQ Stock Market, subject to official notice of issuance.
(d) The Company shall deliver to S&N a certificate
executed by the secretary of the Company, substantially in the form of Annex B
hereto, certifying (i) a copy of its organizational documents (including the
Certificate of Incorporation and bylaws of the Company), (ii) resolutions
authorizing the transaction and (iii) incumbency matters.
(e) S&N shall receive from ▇▇▇▇▇▇▇, Phleger & ▇▇▇▇▇▇▇▇
LLP, counsel for the Company, an opinion addressed to S&N, dated as of the
Closing, satisfactory in form and substance to S&N, which shall include the
opinions set forth in Annex C hereto.
2. Representations and Warranties of the Company. The Company
hereby represents and warrants to the S&N and ▇▇▇▇▇ & Nephew, Inc. that:
2.1. Organization and Good Standing; Power and Authority;
Qualifications. Each of the Company and its subsidiary, Exogen (Europe) GmbH, a
German corporation (the "Subsidiary") is duly organized, validly existing and in
good standing under the laws of its jurisdiction of organization and (ii) has
all requisite power and authority to own, lease and operate its properties and
to carry on its business as presently conducted and as proposed to be conducted.
The Company has all requisite power and authority to enter into and carry out
the transactions contemplated by this Agreement and the other documents being
delivered pursuant to or in connection with this Agreement to which it is a
party. Each of the Company and its Subsidiary is qualified to transact business
as a foreign corporation in, and is in good standing under the laws of, those
jurisdictions that constitute all of the jurisdictions wherein the character of
the property owned or leased or the nature of the activities conducted by it
makes such qualification necessary and where failure to so qualify would
individually or in the aggregate have a material adverse effect on the
properties, business, prospects, operations, earnings, assets, liabilities or
the condition (financial or otherwise) of the Company and its Subsidiary taken
as a whole, whether or not in the ordinary course of business (a "Material
Adverse Effect"). All of the outstanding shares of capital stock of each class
(other than director qualifying shares) of the Subsidiary have been validly
issued and fully paid and nonassessable, and are owned beneficially and of
record, by the Company, free and clear of Encumbrances.
2.2. Authorization. All corporate action on the part of the
Company, its officers, directors and shareholders necessary for the
authorization, execution and delivery of this Agreement and the other documents
being delivered by the Company pursuant to or in connection with this Agreement
, the performance of all obligations of the Company hereunder and thereunder and
the authorization, issuance and delivery of the Common Stock being sold
hereunder has been taken, and this Agreement and the other documents delivered
by this Company pursuant to or in connection with this Agreement constitute
valid and legally binding obligations of the Company, enforceable against the
Company in accordance with their respective terms, except (i) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of
general application affecting enforcement of creditors' rights generally, (ii)
as limited by laws relating to the availability of specific performance,
injunctive relief, or other equitable remedies, and (iii) to the extent the
indemnification provisions contained in the Registration Rights Agreement may be
limited by applicable federal or state securities laws.
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2.3. Capitalization. The authorized capitalization of the
Company immediately following the Purchase will consist of: (a) 3,000,000 shares
of preferred stock of the Company (the "Preferred Stock"), par value $.0001 per
share, of which no shares are issued and outstanding; and (b) 27,000,000 shares
of Common Stock, par value $.0001 per share ("Common Stock"), of which
11,882,718 shares are issued and outstanding as of August 6, 1998, and all such
outstanding shares are validly issued, fully paid and nonassessable. No class of
capital stock ("Capital Stock") of the Company is entitled to preemptive rights.
As of August 6, 1998, there are no outstanding options, warrants, subscription
rights, calls or commitments of any character whatsoever relating to, or
securities or rights convertible into, shares of any class of Capital Stock of
the Company, or contracts by which the Company or its Subsidiary is or may
become bound to issue additional shares of its Capital Stock or options,
warrants or other rights to purchase or acquire any shares of its Capital Stock,
except as follows: (i) 1,350,000 shares of Common Stock have been reserved for
issuance pursuant to the Company's 1995 Stock Option/Stock Issuance Plan (of
which options to purchase 1,025,560 shares of Common Stock have been granted and
are outstanding), (ii) 350,000 shares of Common Stock have been reserved for
issuance pursuant to the Company's Employee Stock Purchase Plan (of which
164,811 shares of Common Stock have been purchased and are included in total
shares of Common Stock outstanding), and (iii) as set forth on Schedule 2.3
hereto, shares of Common Stock reserved for issuance pursuant to a certain
warrant to purchase Common Stock of the Company and certain warrant obligations.
The Company has not declared or paid any dividend or made any other distribution
of cash, stock or other property to its stockholders.
2.4. Valid Issuance of Common Stock. The Common Stock which is
being purchased by S&N hereunder, when issued, sold and delivered in accordance
with the terms hereof for the consideration expressed herein, will be duly and
validly issued and outstanding, fully paid and nonassessable with no personal
liability attaching to the ownership thereof, free and clear of any
Encumbrances, other than Encumbrances, if any, arising as a result of actions
taken by S&N, and not subject to preemptive or similar rights of stockholders of
the Company or others.
2.5. Consents. Except as disclosed on Schedule 2.5 hereto and
for any post-Closing notifications or filings as may be required under
applicable federal or state securities laws, if any, which shall be made on a
timely basis, no consent, approval, order or authorization of, or registration,
qualification, designation, declaration or filing with, any person (governmental
or private) on the part of the Company or its Subsidiary is required in
connection with the consummation of the transactions contemplated by this
Agreement and the other documents delivered by the Company pursuant to or in
connection with this Agreement.
2.6. Litigation. Except as set forth in the SEC Documents (as
defined below), there is no civil, criminal or administrative action, suit,
claim, notice, hearing, inquiry, proceeding or investigation at law or in equity
by or before any court, arbitrator or similar panel, governmental
instrumentality or other agency now pending or, to the best knowledge of the
Company, threatened against the Company or its Subsidiary or any of their
respective directors or executive officers in their capacities as directors and
executive officers of the Company or the assets (including the Intellectual
Property) of the Company or its Subsidiary (a "Litigation"). Neither the Company
nor its Subsidiary is a party or subject to the provisions of any order, writ,
injunction, judgment or decree of any court or government agency or
instrumentality. There is
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no action, suit, proceeding or investigation by the Company or its Subsidiary
currently pending or which either of the Company or its Subsidiary intends to
initiate.
2.7. Compliance with Other Instruments. The Company is not in
violation or default of any provisions of its Second Amended and Restated
Certificate of Incorporation or Amended and Restated Bylaws. Neither the Company
nor its Subsidiary is in violation or default of any provisions of any
instrument, judgment, order, writ, decree or contract to which it is a party or
by which it is bound, or to the best knowledge of the Company, of any provision
of domestic (federal, state or local) or foreign law, statute, rule or
regulation applicable to the Company or the Subsidiary except where such
violation or default would not, individually or in the aggregate, have a
Material Adverse Effect. The execution, delivery and performance of this
Agreement and the other documents delivered by the Company pursuant to or in
connection with this Agreement by the Company and the consummation of the
transactions contemplated hereby and thereby will not (x) result in any such
violation or be in conflict with or constitute, with or without the passage of
time and giving of notice, either a default under any such agreement,
instrument, judgment, order, writ, decree or contract referred to in the
previous sentence (including any registration rights agreements), or (y) result
in the creation of any lien, charge or Encumbrance upon any assets of the
Company or its Subsidiary or the suspension, revocation, impairment, forfeiture,
or nonrenewal of any material permit, license, authorization, or approval
applicable to the Company or its Subsidiary, their business or operations or any
of their assets or properties.
2.8. Financial Statements. The financial statements (including
any related schedule and/or notes) included in the SEC Documents (the "Financial
Statements") are complete and correct in all material respects and have been
prepared in accordance with generally accepted accounting principles applied on
a consistent basis throughout the periods indicated. The Financial Statements
fairly present the consolidated financial condition, operating results, changes
in shareholders' equity and cash flows of the Company as of the dates, and for
the periods, indicated therein. Except as set forth in the SEC Documents, the
Company has no liabilities or obligations, contingent or otherwise, except (i)
liabilities and obligations in the respective amounts reflected or reserved
against in the Company's balance sheet (the "Balance Sheet") as of March 31,
1998 included in the SEC Documents or (ii) liabilities and obligations (matured
or unmatured, fixed or contingent) incurred since March 31, 1998 in the ordinary
course of business consistent (in amount and kind) with past practice (none of
which is a liability resulting from breach of contract, breach of warranty,
tort, infringement, claim or lawsuit) which individually or in the aggregate do
not have a Material Adverse Effect. Since March 31, 1998, the Company and its
Subsidiary have operated their business only in the ordinary course and there
has not been individually or in the aggregate any change that would have a
Material Adverse Effect (a "Material Adverse Change") other than changes
disclosed in the SEC Documents. Except as set forth in the SEC Documents, the
Company has never had, nor does it presently have, any subsidiaries, nor has it
owned, nor does it presently own, whether directly or indirectly owned, any
capital stock or other proprietary interest, directly or indirectly, in any
corporation, association, trust, partnership, joint venture or other entity.
2.9. SEC Filings. The Company has filed all proxy statements,
reports and other documents required to be filed by it under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") from and after July 20,
1995 (the "SEC Documents"), and the
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Company has delivered to the Investor copies of all SEC Documents so filed from
and after October 1, 1997. Each SEC Document was in compliance in all materials
respects with the requirements of its respective report form and, as of its
filing date, no such SEC Document filed by the Company with the Securities and
Exchange Commission ("SEC") contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or necessary in
order to make the statements made therein, in the light of the circumstances
under which they were made, not misleading.
2.10. Other Information. The Company has delivered to S&N
copies of all press releases, reports to stockholders and other documents
released to the public since October 1, 1997.
2.11. Intellectual Property Rights. Except as disclosed on
Schedule 2.11(a) hereto, to the Company's knowledge the Company or its
Subsidiary owns or has the right to use all of the Intellectual Property (as
defined below) necessary, required or desirable for the conduct of its business
as presently or as presently proposed to be conducted, except where the absence
of any thereof would not individually or in the aggregate have a Material
Adverse Effect.
(a) Except as disclosed on Schedule 2.11(b), neither the
Company nor its Subsidiary has interfered with, infringed upon or
misappropriated any Intellectual Property rights of third parties, except for
interferences, infringements and misappropriations which would not individually
or in the aggregate have a Material Adverse Effect, and neither the Company nor
its Subsidiary has received any claim, demand or notice alleging any such
interference, infringement or misappropriation (including any claim that it must
license or refrain from using any Intellectual Property rights of any third
party). To the best knowledge of the Company, no third party has interfered
with, infringed upon or misappropriated any Intellectual Property rights of the
Company or its Subsidiary, except for interferences, infringements and
misappropriations which would not individually or in the aggregate have a
Material Adverse Effect.
As used in this Agreement, "Intellectual Property" means all
intellectual property owned, leased, licensed or used by the Company or its
Subsidiary, including without limitation, (i) all world wide inventions and
discoveries (whether patentable or unpatentable and whether or not reduced to
practice), all improvements thereto, and all patents, patent applications and
patent disclosures, together with all reissuances, continuations,
continuations-in-part, revisions, extensions and reexaminations thereof, (ii)
all trademarks, service marks, trade dress, logos, trade names and corporate
names, together with all translations, adaptations, derivations and combinations
thereof and including all goodwill associated therewith, and all applications,
registrations, renewals and derivatives in connection therewith, (iii) all
copyrightable works, all copyrights and all applications, registrations and
renewals in connection therewith, (iv) all mask works and all applications,
registrations and renewals in connection therewith, (v) all know-how, trade
secrets and confidential business information, whether patentable or
unpatentable and whether or not reduced to practice (including ideas, research
and development, know-how, formulas, compositions, manufacturing and production
processes and techniques, technical data, designs, drawings, specifications,
customer and supplier lists, addresses, phone numbers, pricing
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and cost information, and business and marketing plans and proposals), (vi) all
other proprietary rights of any type or description (regardless of whether the
same have been formally registered), (vii) all copies and tangible embodiments
thereof (in whatever form or medium) and (viii) all licenses and agreements in
connection with the foregoing.
2.12. Title to Assets and Properties; Insurance.
(a) Each of the Company and its Subsidiary has good and
marketable title, or a valid leasehold interest in or contractual right to use,
all of its assets and properties, free and clear of any mortgages, judgments,
claims, liens, security interests, pledges, escrows, charges or other
encumbrances of any kind or character whatsoever ("Encumbrances"), except in
each case for such defects in title and such other liens and Encumbrances which
do not individually or in the aggregate materially detract from the value to the
Company or its Subsidiary of the properties and assets of the Company and its
Subsidiary taken as a whole.
(b) The Company and its Subsidiary maintain insurance in
such amounts (to the extent available in the public market), including
self-insurance, retainage and deductible arrangements, and of such a character
as is reasonable for companies engaged in the same or similar business.
2.13.Compliance with Laws; Permits.
(a) Except as provided in Schedule 2.13, the Company and
its Subsidiary are in compliance, and the business of the Company and its
Subsidiary have been conducted in compliance with, all federal, state, local and
foreign laws, rules, ordinances, codes, consents, authorizations, registrations,
regulations, decrees, directives, judgments and orders applicable to them, their
business and the ownership of their assets including, but not limited to,
Environmental Laws (as defined below) except where the failure to comply would
not individually or in the aggregate have a Material Adverse Effect. The Company
and its Subsidiary have all federal, state, local and foreign governmental
licenses, permits, qualifications and authorizations ("Permits") necessary in
the conduct of the business as currently conducted. All such Permits are in full
force and effect, and no violations have been recorded in respect of any such
Permits; no proceeding is pending or, to the best knowledge of the Company,
threatened to revoke or limit any such Permit; and no such Permit will be
suspended, canceled or adversely modified as a result of the execution and
delivery of this Agreement or the other documents delivered by the Company
pursuant to or in connection with this Agreement and the consummation of the
transactions contemplated hereby or thereby, except in any of the foregoing
cases where failure to have such Permit would not individually or in the
aggregate have a Material Adverse Effect.
(b) For purposes of this Agreement, "Environmental Laws"
means, without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. ▇▇.▇▇. 9601, et seq.; the Emergency
Planning and Community Right-to-Know Act of 1986, 42 U.S.C. ▇▇.▇▇. 11001, et
seq.; the Resource Conservation and Recovery Act, 42 U.S.C. ▇▇.▇▇. 6901, et
seq.; the Toxic Substances Control Act, 15 U.S.C. ▇▇.▇▇. 2601, et seq.; the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. ▇▇.▇▇. 136, et
seq.; the Clean Air Act, 42 U.S.C. ▇▇.▇▇. 7401, et seq.; the Clean Water Act
(Federal Water Pollution Control Act), 33 U.S.C.
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▇▇.▇▇. 1251, et seq.; the Safe Drinking Water Act, 42 U.S.C. ▇▇.▇▇. 300f, et
seq.; the Occupational Safety and Health Act, 29 U.S.C. ▇▇.▇▇. 641, et seq.; the
Hazardous Materials Transportation Act, 49 U.S.C. ▇▇.▇▇. 1801, et seq.; as any
of the above statutes have been or may be amended from time to time, all rules
and regulations promulgated pursuant to any of the above statutes, and any other
foreign, federal, state or local law, statute, ordinance, rule or regulation
governing environmental matters, as the same have been or may be amended from
time to time, including any common law cause of action providing any right or
remedy with respect to environmental matters, and all applicable judicial and
administrative decisions, orders, and decrees relating to environmental matters.
2.14. Offering Exemption. Assuming the accuracy of the
representations and warranties contained in Section 3 hereof, the offer and sale
of the Common Stock and the issuance and delivery of the Common Stock to S&N are
each exempt from registration under the Securities Act of 1933, as amended (the
"Securities Act") and under applicable state securities and "blue sky" laws, as
currently in effect and are otherwise in compliance with applicable federal and
state securities laws.
2.15. Taxes. The Company and its Subsidiary have filed or
caused to be filed all income tax returns which are required to be filed and
have paid or caused to be paid all Taxes (as defined below) that have become
due, except Taxes the validity or amount of which is being contested in good
faith by appropriate proceedings and with respect to which adequate reserves
have been set aside. "Taxes," for purposes of this Agreement, means any taxes,
assessments, duties, fees, levies, imposts, deductions, withholdings, including,
without limitation, income, gross receipts, ad valorem, value added, excise,
real or personal property, asset, sales, use, license, payroll, transaction,
capital, net worth and franchise taxes, estimated taxes, withholding,
employment, social security, workers compensation, utility, severance,
production, unemployment compensation, occupation, premium, windfall profits,
transfer and gains taxes, or other governmental charges of any nature whatsoever
imposed by any government or taxing authority of any country or political
subdivision of any country and any liabilities with respect thereto, including
any penalties, additions to tax, fines or interest thereon, and includes any
liability of the Company and its Subsidiary arising under any tax sharing
agreement to which it is or has been a party.
3. Representations and Warranties of S&N. S&N hereby
represents and warrants that:
3.1. Authorization. This Agreement constitutes the valid and
legally binding obligation of S&N, enforceable against S&N in accordance with
its terms against S&N in accordance with their respective terms, (i) except as
limited by applicable bankruptcy, insolvency, reorganization, moratorium, and
other laws of general application affecting enforcement of creditors' rights
generally, (ii) as limited by laws relating to the availability of specific
performance, injunctive relief, or other equitable remedies, and (iii) to the
extent the indemnification provisions contained in the Registration Rights
Agreement may be limited by applicable federal or state securities laws.
3.2. Purchase Entirely for Own Account. This Agreement is made
with S&N in reliance upon S&N's representation to the Company, which by S&N's
execution of this
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Agreement S&N hereby confirms, that the Common Stock to be received by S&N will
be acquired for investment for S&N's own account, not as a nominee or agent, for
investment purposes only, and not with a view to the resale or distribution of
any part thereof within the meaning of the Securities Act, and that S&N has no
present intention of selling, granting any participation in, or otherwise
distributing the same. By executing this Agreement, S&N further represents that
it does not have any contract, undertaking, agreement or arrangement with any
person to sell, transfer or grant participation to such person or to any third
person, with respect to the Common Stock. S&N represents that it will not,
directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of
(or solicit any offers to buy, purchase or otherwise acquire or take a pledge
of) any of the shares of Common Stock except in compliance with the Securities
Act), and the rules and regulations promulgated thereunder and applicable state
securities laws. S&N represents that it has full power and authority to enter
into this Agreement.
3.3. Disclosure of Information. S&N believes it has received
all the information it considers necessary or appropriate for deciding whether
to purchase the Common Stock. S&N further represents that it has had an
opportunity to ask questions and receive answers from the Company regarding the
terms and conditions of the offering of the Common Stock. The foregoing,
however, does not limit or modify the representations and warranties of the
Company in Section 2 of this Agreement or the right of S&N to rely thereon.
3.4. Investment Experience. S&N is an investor in securities
of companies in the development stage and acknowledges that it is able to fend
for itself, can bear the economic risk of its investment and has such knowledge
and experience in financial or business matters such that it is capable of
evaluating the merits and risks of its investment in the Common Stock.
3.5. Accredited Investor. S&N is an "accredited investor"
within the meaning of SEC Rule 501 of Regulation D, as presently in effect.
3.6. Restricted Securities. S&N understands that the shares of
Common Stock it is purchasing are characterized as "restricted securities"
("Restricted Securities") under the federal securities laws inasmuch as they are
being acquired from the Company in a transaction not involving a public offering
and that under such laws and applicable regulations such securities may not be
resold without registration under the Securities Act, except in certain limited
circumstances. In this connection, S&N represents that it is familiar with SEC
Rule 144, as presently in effect, and understands the resale limitations imposed
thereby and by the Securities Act.
4. Use of Proceeds. The net proceeds received by the Company
from the sale of the Common Stock as contemplated by this Agreement will be used
by the Company for general working capital purposes.
5. Transfer Taxes. The Company agrees that it will pay, and
will hold S&N harmless from, any and all liability with respect to any stamp or
similar Taxes which may be determined to be payable in connection with the
execution and delivery and performance of this Agreement, and that it will
similarly pay and hold S&N harmless from all Taxes in respect of the issuance of
the Common Stock to S&N.
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6. Expenses. Each of the Company and S&N shall pay all the
costs and expenses incurred by it or on its behalf in connection with this
Agreement and the consummation of the transactions contemplated hereby.
In case any one or more of the covenants and/or agreements set
forth in this Agreement or any agreement contemplated by this Agreement shall
have been breached by any part hereto, S&N, with respect to a breach by Exogen
may proceed to protect and enforce its rights either by suit in equity and/or by
action at law, including, but not limited to, an action for damages as a result
of any such breach and/or an action for specific performance of any such
covenant or agreement contained in such agreement.
7. Miscellaneous.
7.1. Survival of Warranties. The warranties, representations
and covenants of the Company and S&N contained in or made pursuant to this
Agreement shall survive the execution and delivery of this Agreement and the
Closing and shall in no way be affected by any investigation of the subject
matter thereof made by or on behalf of S&N or the Company.
7.2. Successors and Assigns. Except as otherwise provided
herein, the terms and conditions of this Agreement shall inure to the benefit of
and be binding upon the respective successors, permitted assigns, heirs and
personal representatives of the parties (including transferees of any shares of
Common Stock sold hereunder), except that the Company may not assign its rights
and obligations under this Agreement to any person without the prior written
consent of S&N, except in connection with a merger, consolidation or sale of all
or substantially all of the assets of the Company. 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.
7.3. Governing Law. This Agreement shall be governed and
construed under the laws of the State of Delaware without regard to the
principles of conflicts or choice of law.
7.4. 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.
7.5. 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.
7.6. 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 on the signature page hereof or at such other address
as such party may designate by ten (10) days' advance written notice to the
other party.
-9-
7.7. Finder's Fee. Each party represents that it neither is
nor will be obligated for any finder's fee or commission in connection with this
transaction. S&N agrees to indemnify and to hold harmless the Company from any
liability for any commission or compensation in the nature of a finder's fee
(and the costs and expenses of defending against such liability or asserted
liability) for which S&N or any of its officers, employees, or representatives
is responsible.
The Company agrees to indemnify and hold harmless S&N from any
liability for any commission or compensation in the nature of a finder's fee
(and the costs and expenses of defending against such liability or asserted
liability) for which the Company or any of its officers, employees or
representatives is responsible.
7.8. Attorneys' Fees. 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.
7.9. Amendments and Waivers. No term of this Agreement may be
amended, discharged or terminated and the observance of any term of this
Agreement may not be waived (either generally or in a particular instance and
either retroactively or prospectively), without the prior written consent of
S&N. Any amendment or waiver effected in accordance with this paragraph shall be
binding upon each holder of any securities purchased under this Agreement at the
time outstanding, each future holder of all such securities, and the Company. No
waiver of any of the provisions of this Agreement shall be deemed to or shall
constitute a waiver of any other provision hereof (whether or not similar). No
delay on the part of any party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof.
7.10. 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.
7.11. Entire Agreement. This Agreement and the documents
referred to herein constitute the entire agreement between the parties and no
party shall be liable or bound to the other party in any manner by any
warranties, representations, or covenants except as specifically set forth
herein or therein.
7.12. Press Releases and Announcements. Each of the parties
hereto agrees that it will not issue any press release or announcement relating
to the subject matter of this Agreement without the prior written approval of
the other party; provided, however, that any party may make any public
disclosure it believes in good faith is required by law, stock exchange rules or
regulation (in which case the disclosing party shall advise the other party,
provide it with a copy of the proposed disclosure prior to making the
disclosure, and use reasonable efforts to agree upon the text of such press
release, before issuing any such press release).
-10-
IN WITNESS WHEREOF, the parties have executed this Common
Stock Purchase Agreement as of the date first above written.
EXOGEN, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President and
Chief Executive Officer
Address: ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ & NEPHEW HOLDINGS, INC.
By: /s/ P. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-------------------------------
Name: P. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: President
Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
[SIGNATURE PAGE TO COMMON STOCK PURCHASE AGREEMENT]
-11-
SCHEDULE OF EXCEPTIONS
TO
COMMON STOCK PURCHASE
AGREEMENT (THE "AGREEMENT")
BY AND BETWEEN
EXOGEN INC. (THE "COMPANY")
AND
▇▇▇▇▇ & NEPHEW HOLDINGS, INC. ("S&N")
CAPITALIZED TERMS USED HEREIN WHICH ARE NOT OTHERWISE DEFINED
SHALL HAVE THE RESPECTIVE MEANINGS ASCRIBED TO SUCH TERMS IN THE AGREEMENT.
DISCLOSURE UNDER ANY SECTION SHALL CONSTITUTE DISCLOSURE UNDER
THE SCHEDULE OF EXCEPTIONS WITHOUT THE NEED FOR CROSS-REFERENCES. ALL
DESCRIPTIONS OF AGREEMENTS OR OTHER MATTERS APPEARING HEREIN ARE SUMMARY IN
NATURE AND ARE QUALIFIED BY REFERENCE TO THE COMPLETE DOCUMENTS, WHICH HAVE BEEN
SUPPLIED TO S&N OR WHICH THE COMPANY WILL MAKE AVAILABLE TO S&N UPON REQUEST. IN
NO EVENT SHALL ANY DISCLOSURE HEREUNDER BE DEEMED TO CONSTITUTE AN
ACKNOWLEDGEMENT THAT SUCH DISCLOSURE IS MATERIAL TO THE BUSINESS OR FINANCIAL
CONDITION OF THE COMPANY.
THE REPRESENTATIONS, WARRANTIES, COVENANTS AND OTHER
OBLIGATIONS AND AGREEMENTS OF THE COMPANY IN THE AGREEMENT ARE MADE, GIVEN AND
UNDERTAKEN SUBJECT TO THE DISCLOSURES IN THIS SCHEDULE OF EXCEPTIONS AND AS
PROVIDED IN THIS AGREEMENT.
i
SCHEDULE 1.3(b)
Delaware
New Jersey
ii
SCHEDULE 2.3
On September 8, 1997, the Company and ▇▇▇▇▇▇▇▇ Associates,
Inc, a Delaware corporation ("▇▇▇▇▇▇▇▇"), entered into an advisory agreement
pursuant to which, the Company issued to ▇▇▇▇▇▇▇▇, for an aggregate purchase
price of $20,000, a warrant to purchase up to 100,000 shares of the Company's
Common Stock at an exercise price equal to $4.50 per share (the "Purchase
Warrant"). The Purchase Warrant is exercisable until (i) September 8, 2002 or
(ii) November 1, 1998 in the event that the Company does not, by July 31, 1998,
consummate a strategic partnering transaction relating to the commercialization
of certain of the Company's technologies (a "Strategic Partnering Transaction").
Further, if the Company consummates Strategic Partnering Transactions with
companies introduced by ▇▇▇▇▇▇▇▇ for three specific technologies, ▇▇▇▇▇▇▇▇ will
be entitled to a warrant to purchase 75,000 shares of the Company's Common Stock
at an exercise price equal to $4.50 per share (the "Transaction Warrants") for
each of the three transactions; provided, however, that for any Strategic
Partnering Transaction consummated prior to July 31, 1998, ▇▇▇▇▇▇▇▇ will be
entitled to a warrant to purchase 125,000 shares of the Company's Common Stock
instead of 100,000 shares. Such Transaction Warrants shall expire five (5) years
from the date of issuance.
iii
SCHEDULE 2.5
There are no exceptions.
iv
SCHEDULE 2.6
Reference is made to the information contained in Part II,
Item 1 of the Company's Quarterly Report on Form 10-Q for the Quarter Ended
March 31, 1998. The hearings on pending motions in both the litigation matters
described have been adjourned, pending settlement negotiations which are in
process. There can be no assurance that a settlement will be finalized, in which
event the litigation would continue.
v
SCHEDULE 2.11
See Schedule 8 to Master Agreement between Exogen, Inc. and
▇▇▇▇▇ & Nephew, Inc. dated as of August 10, 1998.
vi
SCHEDULE 2.13
There are no exceptions.
vii
ANNEX A
EXOGEN, INC.
REGISTRATION RIGHTS AGREEMENT
August 10, 1998
TABLE OF CONTENTS
1. Registration Rights.............................................1
1.1. Definitions............................................1
1.2. Shelf Registration.....................................2
1.3. Company Registration...................................4
1.4. Obligations of the Company.............................4
1.5. Furnish Information....................................7
1.6. Expenses of Registration...............................7
1.7. Expenses of Company Registration.......................8
1.8. Underwriting Requirements..............................8
1.9. Delay of Registration..................................9
1.10. Indemnification........................................9
1.11. Reports Under Securities Exchange Act of 1934.........12
1.12. Assignment of Registration Rights.....................12
1.13. Limitations on Subsequent Registration Rights.........13
1.14. "Market Stand-Off Agreement"..........................13
1.15. No Required Sale......................................14
2. Miscellaneous..................................................14
2.1. Successors and Assigns................................14
2.2. Governing Law.........................................14
2.3. Counterparts..........................................14
2.4. Titles and Subtitles..................................14
2.5. Notices...............................................14
2.6. Expenses..............................................14
2.7. Amendments and Waivers................................14
2.8. Severability..........................................15
2.9. Nominees for Beneficial Owners........................15
2.10. Specific Performance..................................15
2.11. No Inconsistent Agreements............................15
2.12. Entire Agreement......................................16
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is made as of the 10th day
of August, 1998 by and between Exogen, Inc., a Delaware corporation (the
"Company"), and ▇▇▇▇▇ & Nephew Holdings, Inc., a Delaware corporation ("S&N").
RECITALS
WHEREAS, the Company and S&N 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 S&N to invest funds in the Company
pursuant to the Stock Purchase Agreement, S&N and the Company hereby agree that
this Agreement shall govern the rights of S&N to cause the Company to register
shares of Common Stock issuable to S&N 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 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;
(c) 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 S&N in a
transaction in which S&N's rights under this Agreement are not assigned or
assignable;
(d) 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
(e) The term "Holder" means S&N and any transferees and
assignees permitted by Section 1.12.
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 of this Agreement (or such shorter period in
accordance with Section 1.4(a)).
(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
2
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).
3
(e) The registration statement filed pursuant to this
Section 1.2 may 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.
4
(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
5
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 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 Act and
Rule 158 thereunder.
(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 1934
Act (as defined below) 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
6
makers as such with respect to such shares with the National Association of
Securities Dealers, Inc. (the "NASD").
(j) 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.
(k) 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.
(l) Use reasonable best efforts to obtain the withdrawal
of any order suspending the effectiveness of the registration statement.
(m) 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).
(n) 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 Section 1,
including, without limitation: (i) SEC, stock exchange or NASD registration and
filing fees and all listing fees and fees
7
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 NASD's By-Laws) and (x) any other fees and
disbursements of underwriters, if any, customarily paid by issuers or sellers of
securities.
(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
8
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 any event subject to the apportionment rights of
certain selling stockholders under Section 1.8 of the Registration Rights
Agreement, dated October 20, 1997, between the Company and certain stockholders
of the Company). 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 corporation, 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
9
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
10
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 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 Section 1.10(b).
11
(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
12
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 any heir or the estate of S&N which acquires the
Registrable Securities from such Holder 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 Holder 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
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 such holder's securities will not reduce the amount of the
Registrable Securities of the Holders that is included.
1.14. "Market Stand-Off" Agreement. S&N 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 those 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 S&N 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 S&N 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.
13
In order to enforce the foregoing covenant, the Company may
impose stop-transfer instructions with respect to the Registrable Securities of
S&N (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 Delaware 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
14
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 Company represents and
warrants to S&N that 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
15
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: ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ & NEPHEW HOLDINGS, INC.
By: /s/ P. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------
Name: P. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: President
Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
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