EXHIBIT 4.3
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement dated as of December 15, 1999, is by and
among Biomet, Inc., an Indiana corporation (the "Company") and the investors
named on the signature pages hereof (collectively, the "Investors").
Preliminary Statements
A. The Company and Implant Innovations International Corporation have entered
into an Agreement and Plan of Merger dated as of August 28, 1999 (the
"Merger Agreement"), pursuant to which the Investors are being issued
Common Shares of the Company.
B. This Agreement is being entered into pursuant to Section 9.10 of the Merger
Agreement.
Terms and Conditions
1. Certain Definitions. As used in this Agreement, the following terms
shall have the following respective meanings:
"Commission" shall mean the United States Securities and Exchange
Commission, or any other federal agency at the time administering the Securities
Act and the Exchange Act.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
or any similar successor federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"Person" shall mean an individual, a corporation, a partnership, a joint
venture, a trust, an unincorporated organization, a limited liability company or
partnership, a government and any agency or political subdivision thereof.
"Registrable Securities" shall mean (i) the Biomet Common Shares received
by the Investors pursuant to the Merger Agreement (including the Biomet Common
Shares deliverable to the Escrow Agent) and (ii) any other securities issued or
issuable with respect to any such shares described in clause (i) above by way of
a stock dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization (it being
understood that for purposes of this Agreement, a Person will be deemed to be a
holder of Registrable Securities whenever such Person has the right to then
acquire or obtain from the Company any Registrable Securities, whether or not
such acquisition has actually been effected); provided, however, that shares
shall cease to be Registrable Securities when a registration statement covering
the shares has been declared effective by the Commission and the shares have
been disposed of pursuant to the effective registration statement.
"Securities Act" shall mean the Securities Act of 1933, as amended, or any
similar successor federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
Other terms capitalized but not defined herein shall have the meanings
assigned to them in the Merger Agreement.
2. Required Registration.
(a) As soon as practicable following the Closing, the Company shall prepare
and file with the Commission a shelf registration statement on Form S-3 (or any
successor or other appropriate form) under the Securities Act with respect to
the Registrable Securities (the "Registration Statement") and effect all such
registrations, qualifications and compliances (including, without limitation,
obtaining appropriate qualifications under applicable state securities or "blue
sky" laws and compliance with any other applicable governmental requirements or
regulations) as may reasonably be required in connection with the sale of the
Registrable Securities as described herein.
(b) The Company shall use its best efforts to cause the Registration
Statement to become effective, and shall maintain the effectiveness of the
Registration Statement and other applicable registrations, qualifications and
compliances until the first to occur of (i) the first anniversary of the Closing
(plus, if applicable, the amount of time that has elapsed during any Suspension
Periods, as defined below), or (ii) the date on which all of the Registrable
Securities have been disposed of by the Investors.
(c) If at any time after the Registration Statement is declared effective,
the Company determines that the sale of the Registrable Securities pursuant to
the Registration Statement would require disclosure of information that, in the
judgment of the Company, cannot be disclosed at that time without other material
adverse consequences to the Company, the Investors shall, upon receipt of
written notice of that determination, suspend sales of the Registrable
Securities for a period (the "Suspension Period") beginning on the date of
receipt of that notice and expiring on the date upon which the information is
disclosed to the public or ceases to be material, and in any case as evidenced
by a written notice from the Company to the Investors to that effect.
(d) Upon written notice from the Company of the happening of any event that
makes any statement made in the Registration Statement, related prospectus or
any document incorporated or deemed to be incorporated therein by reference
untrue in any material respect or which requires the making of any changes in
the Registration Statement, prospectus or document so that it will not contain
any untrue statement of a material fact or omit to state any material fact
required to be stated or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, each holder of
Registrable Securities registered under the Registration Statement shall
forthwith discontinue disposition of Registrable Securities pursuant to the
Registration Statement until (i) receipt of the copies of the supplemented or
amended prospectus or (ii) it is advised in writing by the Company that the use
of the prospectus may be resumed, and has received copies of any additional or
supplemental filings which are incorporated by reference in the prospectus. In
the event that the Company shall give any notice under this subparagraph (d),
the Company shall use its reasonable efforts and take such actions as are
reasonably necessary to end the Suspension Period as promptly as practicable.
(e) In no event shall any holder of Registrable Securities sell any
securities registered under the Registration Statement without giving the
Company at least three (3) business days' prior written notice.
3. Expenses. The Company shall pay only the following expenses associated
with the filing of the Registration Statement: all registration and filing fees,
fees and disbursements of counsel for the Company, the expense of any audits
incident to or required by any the registration and expenses of complying with
the securities or blue sky laws of any jurisdictions. All other expenses
associated with the offering of the Registrable Securities, including any
underwriting discounts or commissions, shall be paid by the holders of the
Registrable Securities.
4. Registration Procedures.
(a) Before filing the Registration Satement or any amendments or
supplements thereto, the Company shall furnish to the holders of Registrable
Securities copies of all such documents proposed to be filed, which documents
shall be subject to the review of such holders and the Company shall not file
any such registration statement or amendment thereto or any prospectus or any
supplement thereto to which the holders of a majority of the Registrable
Securities covered by such registration statement shall reasonably object on a
timely basis.
(b) The Company shall prepare and file with the Commission such amendments
and supplements to the Registration Statement and the prospectus used in
connection therewith as may be necessary to keep Registration Statement
effective and to comply with the provisions of the Securities Act with respect
to the sale or other disposition of all securities covered by the Registration
Statement whenever the holder or holders of such securities shall desire to sell
or otherwise dispose of the same, but only to the extent provided in this
Agreement.
(c) The Company shall furnish to each selling holder of Registrable
Securities, without charge, one hard copy and one copy on diskette of the
Registration Statement and each amendment thereto.
(d) The Company shall notify the selling holders of Registrable Securities
promptly, and (if requested by any such person) confirm such notice in writing,
(i) when a prospectus or any prospectus supplement or post-effective amendment
has been filed, and, with respect to the Registration Statement or any
post-effective amendment, when the same has become effective, (ii) of any
request by the Commission or any other federal or state governmental authority
for amendments or supplements to the Registration Statement or related
prospectus or for additional information, (iii) of the issuance by the
Commission or any other federal or state governmental authority of any stop
order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for the purpose, (iv) of the receipt by the
Company of any notification with respect to the suspension of the qualification
or exemption from qualification of any of the Registrable Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding for such
purpose, (v) of the Company's reasonable determination that a post-effective
amendment to a registration statement would be appropriate.
(e) The Company shall use its best efforts to prevent the issuance of any
stop order suspending the effectiveness of the Registration Statement, and if
one is issued use its best efforts to obtain the withdrawal of any stop order
suspending the effectiveness of the Registration Statement, or the lifting of
any suspension of the qualification (or exemption from qualification) of any of
the Registrable Securities for sale in any jurisdiction, at the earliest
possible moment.
(f) The Company will otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission.
5. Indemnification.
(a) The Company shall indemnify and hold harmless the selling holder of
Registrable Securities, each underwriter (as defined in the Securities Act), and
each other Person who participates in the public offering of securities under
this Agreement and each other Person, if any, who controls (within the meaning
of the Securities Act) such selling holder, underwriter or participating Person
(individually and collectively, the "Indemnified Person") against any losses,
claims, damages or liabilities (collectively, the "liability"), joint or
several, to which such Indemnified Person may become subject under the
Securities Act or any other statute or at common law, insofar as such liability
(or action in respect thereof) arises out of or is based upon (i) any untrue
statement or alleged untrue statement of any material fact contained, on the
effective date thereof, in any registration statement under which such
securities were registered under the Securities Act, any preliminary prospectus
or final prospectus contained therein, any document incorporated or deemed
incorporated therein by reference, or any amendment or supplement thereto, or
(ii) any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading
regardless of any investigation made by or on behalf of such Indemnified Person.
Except as otherwise provided in Section 5(d), the Company shall reimburse each
such Indemnified Person in connection with investigating or defending any such
liability; provided, however, that the Company shall not be liable to any
Indemnified Person in any such case to the extent that any such liability arises
out of or is based upon any untrue statement or alleged untrue statement or
omission or alleged omission made in such registration statement, preliminary or
final prospectus, incorporated document or amendment or supplement thereto in
reliance upon and in conformity with information furnished in writing to the
Company by such Person specifically for use therein; and provided further, that
the Company shall not be required to indemnify any Person against any liability
arising from any untrue or misleading statement or omission contained in any
preliminary prospectus if such deficiency is corrected in the final prospectus
or for any liability which arises out of the failure of any Person to deliver a
prospectus as required by the Securities Act.
(b) Each selling holder of any securities included in a registration being
effected pursuant hereto shall indemnify and hold harmless each other selling
holder of any securities, the Company, its directors and officers, each
underwriter and each other Person, if any, who controls the Company or such
underwriter (individually and collectively also the "Indemnified Person"),
against any liability, joint or several, to which any such Indemnified Person
may become subject under the Securities Act or any other statute or at common
law, insofar as such liability (or actions in respect thereof) arises out of or
is based upon (i) any untrue statement or alleged untrue statement of any
material fact contained, on the effective date thereof, in any registration
statement under which securities were registered under the Securities Act at the
request of such selling holder, any preliminary prospectus or final prospectus
contained therein, any document incorporated or deemed incorporated therein by
reference, or any amendment or supplement thereto, or (ii) any omission or
alleged omission by such selling holder to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in the case of (i) and (ii) to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or alleged
omission was made in such registration statement, preliminary or final
prospectus, incorporated document, amendment or supplement thereto in reliance
upon and in conformity with information furnished in writing to the Company by
such selling holder specifically for use therein. Such selling holder shall
reimburse any Indemnified Person for any legal fees incurred in investigating or
defending any such liability; provided, however, that such selling holder's
obligations hereunder shall be limited to any amount equal to the net proceeds
to such selling holder of the securities sold in any such registration; and
provided further, however, that no selling holder shall be required to indemnify
any Person against any liability arising from any untrue or misleading statement
or omission contained in any preliminary prospectus if such deficiency is
corrected in the final prospectus or for any liability which arises out of the
failure of any Person to deliver a prospectus as required by the Securities Act.
(c) Indemnification similar to that specified in Sections 5(a) and (b)
shall be given by the Company and each selling holder of Registrable Securities
(with such modifications as may be appropriate) with respect to any required
registration or other qualification of their securities under any federal or
state law or regulation of governmental authority other than the Securities Act.
(d) In the event the Company, any selling holder of Registrable Securities
or other Person receives a complaint, claim or other notice of any liability or
action, giving rise to a claim for indemnification under Sections 5(a), (b) or
(c) above, the Person claiming indemnification under such paragraphs shall
promptly notify the Person against whom indemnification is sought of such
complaint, notice, claim or action, and such indemnifying Person shall have the
right to investigate and defend any such loss, claim, damage, liability or
action. The Person claiming indemnification shall have the right to employ
separate counsel in any such action and to participate in the defense thereof
but the fees and expenses of such counsel shall not be at the expense of the
Person against whom indemnification is sought (unless the indemnifying party
fails to promptly defend, in which case the fees and expenses of such separate
counsel shall be borne by the Person against whom indemnification is sought). In
no event shall a Person whom indemnification is sought be obligated to indemnify
any Person for any settlement of any claim or action effected without the
indemnifying Person's prior written consent.
6. Compliance with Rule 144. The Company will use its reasonable efforts to
file with the Commission such information as is required under the Exchange Act
for so long as there are holders of Registrable Securities and shall use its
reasonable efforts to take all action as may be required as a condition to the
availability to such holders of Rule 144 under the Securities Act (or any
comparable successor rules).
7. Amendments. The provisions of this Agreement may be amended, and the
Company may take any action herein prohibited or omit to perform any act herein
required to be performed by it, only if the Company has obtained the written
consent of the Shareholder Representative.
8. Damages. The Company recognizes and agrees that each holder of
Registrable Securities will not have an adequate remedy at law if the Company
fails to comply with the terms and provisions of this Agreement and that damages
will not be readily ascertainable, and the Company expressly agrees that, in the
event of such failure, it shall not oppose an application by any holder of
Registrable Securities or any other Person entitled to the benefits of this
Agreement requiring specific performance of any and all provisions hereof,
enjoining the Company from continuing to commit any such breach of this
Agreement or acquiring any other appropriate equitable relief.
9. Miscellaneous.
(a) All notices, requests, demands and other communications provided for
hereunder shall be in writing and mailed (by first class registered or certified
mail, postage prepaid), telegraphed, sent by express overnight courier service
or electronic facsimile transmission (with a copy by mail), or delivered to the
applicable party at the addresses indicated below:
With a copy to: Berkley W. Duck
Ice ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇
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Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Investors: ▇▇▇▇▇ ▇. ▇▇▇▇▇, President
Implant Innovations, Inc.
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Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and ▇▇▇▇▇▇ Moufflet
Advent International Corporation
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Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to: ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇ III
Steel ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
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Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to any holder of Registrable Securities:
At such Person's address for notice as set forth in the books and records of the
Company
or, as to each of the foregoing, at such other address as shall be designated by
such Person in a written notice to other parties complying as to delivery with
the terms of this subsection (a). All such notices, requests, demands and other
communications shall, when mailed, telegraphed or sent, respectively, be
effective (i) three business days after being deposited in the mails or (ii) one
day after being delivered to the telegraph company, deposited with the express
overnight courier service or sent by electronic facsimile transmission,
respectively, addressed as aforesaid.
(b) This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware, without application of the conflict of laws
principles thereof.
(c) 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.
(d) If any provision of this Agreement shall be held to be illegal, invalid
or unenforceable, such illegality, invalidity or unenforceability shall attach
only to such provision and shall not in any manner affect or render illegal,
invalid or unenforceable any other provision of this Agreement, and this
Agreement shall be carried out as if any such illegal, invalid or unenforceable
provision were not contained herein.
IN WITNESS WHEREOF, this Agreement is executed as of the date first stated
above.
BIOMET, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Senior Vice President
"INVESTORS"
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GLOBAL PRIVATE EQUITY II L.P.
By: Advent International Limited Partnership,
its General Partner
By: Advent International Corporation,
its General Partner
By: /s/ ▇▇▇▇▇▇ Moufflet
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ADVENT INTERNATIONAL INVESTORS II L.P.
By: Advent International Corporation,
its General Partner
By: /s/ ▇▇▇▇▇▇ Moufflet
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/s/ Bareld ▇. ▇▇▇▇▇▇▇
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Bareld ▇. ▇▇▇▇▇▇▇
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