EXHIBIT 10.02
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT ("Agreement") made this ___ day of
___________, 2003, by and among Derma Sciences, Inc., a Pennsylvania corporation
with offices located at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ("Derma Sciences" or "the Company") and , , and
(these latter individually, "Purchaser" and collectively, "Purchasers").
This Agreement is made pursuant to the Purchase Agreement of even date
herewith between the Company and the Purchasers (the "Purchase Agreement"). In
order to induce the Purchasers to enter into the Purchase Agreement, the Company
has agreed to provide for the benefit of the Purchasers of the Common Stock (as
defined below), and any subsequent holders of Registrable Securities (as defined
below), the registration rights set forth in this Agreement. The execution of
this Agreement is a condition to the closing under the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions. As used in this Agreement, the following capitalized
terms shall have the following meanings:
Closing Date: Has the meaning such term is given in the Purchase
Agreement.
Common Stock: The shares of common stock, par value $.01 per
share, of the Company purchased and sold pursuant to the Purchase
Agreement.
Effective Date: The date that the Resale Registration Statement
is declared effective by the SEC.
Exchange Act: The Securities Exchange Act of 1934, as amended
from time to time.
Holder: Each beneficial holder from time to time of Registrable
Securities.
Indemnified Holder: See Section 6(a).
NASD: National Association of Securities Dealers, Inc.
Person: An individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political
subdivision thereof.
Prospectus: The prospectus included in any Registration
Statement, as supplemented by any prospectus supplement and as amended
by all amendments, including post-effective amendments and all
material incorporated by reference in such prospectus.
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Registrable Securities: The Common Stock; provided that the
Common Stock ceases to be a Registrable Security when it (i) has been
effectively registered under Section 5 of the Securities Act and
disposed of in accordance with any Registration Statement, (ii) has
been distributed to the public pursuant to Rule 144 under the
Securities Act ("Rule 144") (or any similar provisions then in force)
or (iii) is eligible for distribution to the public by the Holder
pursuant to Rule 144(k) (or any similar provisions then in force).
Registration Expenses: See Section 5.
Registration Statement: Any registration statement of the Company
which, in accordance with Section 3 hereof, covers any of the
Registrable Securities pursuant to the provisions of this Agreement,
including the Prospectus, amendments and supplements to such
Registration Statement, including post-effective amendments, and all
exhibits and all material incorporated by reference in such
Registration Statement.
Securities Act: The Securities Act of 1933, as amended from time
to time.
SEC: The Securities and Exchange Commission.
2. Securities Subject to this Agreement. Each Holder from time to time
shall be entitled to the benefits of this Agreement. A Person is deemed to be a
Holder whenever such Person is the beneficial owner of Registrable Securities.
The Company is entitled to treat the record holder of Registrable Securities as
beneficial owner of Registrable Securities unless otherwise notified by the
Holder thereof.
3. Resale Registration; Timing of Filing, Effectiveness and Period of
Usability. Subject to the provisions of Section 4 hereof, the Company shall file
not later than 90 days after the date hereof, and use its best efforts to cause
to be declared effective not later than 120 days after the date hereof, a
Registration Statement on any appropriate form under the Securities Act for all
the Registrable Securities such as to permit the public resale of the
Registrable Securities.
The Company agrees to use its best efforts to keep the Registration
Statement continuously effective and usable for resale of Registrable Securities
until the date which is two (2) years (the "Effectiveness Period") after the
date upon which the Commission declares the Registration Statement effective or
such shorter period which shall terminate when all the Registrable Securities
covered by such Registration Statement have been sold pursuant to such
Registration Statement or when all Registrable Securities otherwise have been
sold pursuant to Rule 144 or are freely tradeable in essentially the same manner
as contemplated in Section 4 below. The Effectiveness Period shall be extended,
day for day, by the length of any "black out" periods declared pursuant to
section 4(l) hereof.
4. Registration Procedures. In connection with the Company's obligation
to file a Registration Statement as provided in Section 3 hereof, the Company
will as expeditiously as possible:
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(a) before filing a Registration Statement or Prospectus or any
amendments or supplements thereto, furnish to the Holders covered by
such Registration Statement a copy of all such documents proposed to be
filed, which documents will be subject to the review of such Holders,
and the Company will not file any 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 (provided that the
Company may assume, for the purposes of the foregoing that any Holder
has no objection if the Company has not received notice from such
Holder within five business days after delivery of such documents to
such Holder);
(b) prepare and file with the SEC such amendments and
post-effective amendments to the Registration Statement, and such
supplements to the Prospectus, as may be required by the rules,
regulations or instructions applicable to the registration form
utilized by the Company or by the Securities Act or rules and
regulations thereunder or otherwise necessary to keep the Registration
Statement effective for the applicable period and cause the Prospectus
as so supplemented to be filed pursuant to Rule 424 under the
Securities Act; and comply with the provisions of the Securities Act
with respect to the disposition of all securities covered by such
Registration Statement during the applicable period in accordance with
the intended methods of disposition by the sellers thereof set forth in
such Registration Statement or supplement to the Prospectus;
(c) notify each Purchaser and the Holders promptly, and confirm
such advice in writing,
(1) when the 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,
(2) 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, and
(3) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose;
(d) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of the Registration Statement at the
earliest possible moment;
(e) furnish, without charge, to each Purchaser and, upon
request, each Holder, at least one conformed copy of the Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules, all documents incorporated therein by
reference and all exhibits (including those incorporated by reference);
(f) deliver to each Purchaser and each Holder without charge, as
many copies of the Prospectus (including each preliminary prospectus)
and any amendment or supplement thereto as such Persons may reasonably
request; the Company consents to the
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use of the Prospectus or any amendment or supplement thereto by each
Purchaser and each Holder in connection with the offering and sale of
the Registrable Securities covered by the Prospectus or any amendment
or supplement thereto;
(g) use its reasonable efforts to cause the Registrable
Securities covered by the Registration Statement to be registered with
or approved by such governmental agencies or authorities as may be
necessary to enable the Holders thereof to consummate the disposition
of such Registrable Securities in such jurisdictions as the Holders may
reasonably specify in response to inquiries to be made by the Company,
provided that the Company will not be required to qualify generally to
do business in any jurisdiction where it is not then so qualified or to
take any action which would subject it to general service of process in
any such jurisdiction where it is not then so subject;
(h) if any event shall occur as a result of which it is
necessary, in the opinion of counsel for the Company, to amend or
supplement the Prospectus in order to make the Prospectus not
misleading in the light of the circumstances existing at the time it is
delivered by a Holder, prepare a supplement or post-effective amendment
to the Registration Statement or the related Prospectus or any document
incorporated therein by reference or file any other required document
so that, as thereafter delivered to the Holders, the Prospectus will
not contain an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not misleading;
(i) obtain a CUSIP number for all Registrable Securities (unless
already obtained), not later than the Effective Date;
(j) make available for inspection during normal business hours
by a representative of the Holders of a majority of the Registrable
Securities and any attorney or accountant retained by such
representative, all financial and other records, pertinent corporate
documents and properties of the Company, and cause the Company's
officers, directors and employees to supply all information reasonably
requested by such Holders or any such attorney or accountant in
connection with the Registration Statement; provided that all such
records, information or documents shall be kept confidential by such
Persons unless disclosure of such records, information or documents is
required by court or administrative order or is generally available to
the public other than as a result of disclosure in violation of this
Section 4(j);
(k) otherwise use its best efforts to comply with all applicable
rules and regulations of the SEC, and make generally available to its
security holders an earnings statement satisfying the provisions of
Section 11(a) of the Securities Act (in accordance with Rule 158
thereunder or otherwise), no later than 45 days after the end of the
12-month period (or 90 days, if such period is a fiscal year) beginning
with the first month of the Company's first fiscal quarter commencing
after the Effective Date, which statements shall cover said 12-month
period;
(l) if at any time an event of the kind described in Section
4(h) shall occur, notify each Purchaser and the Holders that the use of
the Prospectus must be discontinued (the Company will not declare any
such "black-out" periods in excess of twenty business days during any
twelve month period, unless otherwise required); and
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(m) on or prior to the date the Registration Statement is
declared effective by the SEC, cause all of the Common Stock to be
listed for trading on the Boston Stock Exchange (or on any other
national securities exchange) and the OTC Bulletin Board.
Each Holder as to which any registration is being effected
agrees, as a condition to the registration obligations with respect to
such Holder provided herein, to furnish to the Company such information
regarding the distribution of such Registrable Securities as the
Company may from time to time reasonably request in writing.
Each Holder agrees by acquisition of such Registrable Securities
that, upon receipt of any notice from the Company described in Section
4(l), such Holder will forthwith discontinue disposition of Registrable
Securities until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 4(f) hereof,
or until it is advised in writing by the Company (which notice the
Company shall give as promptly as possible), 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, and, if so directed by the Company, such Holder 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 current at the time of
receipt of such notice.
5. Registration Expenses. All of the following expenses ("Registration
Expenses") incident to the Company's performance of or compliance with this
Agreement will be borne by the Company, regardless of whether the Registration
Statement becomes effective:
(a) all registration, filing and listing fees;
(b) fees and expenses of counsel acceptable to the Holders of a
majority of the Registrable Securities for compliance with securities
or blue sky laws;
(c) the Company's printing, messenger, telephone and delivery
expenses;
(d) fees and disbursements of counsel for the Company;
(e) fees and disbursements of all independent certified public
accountants of the Company (including the expenses of any special audit
necessary to satisfy the requirements of the Securities Act); and
(f) fees and expenses associated with any NASD filing required
to be made in connection with the Registration Statement.
The Company will, in any event, pay its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any annual audit, the
fees and expenses incurred in connection with the listing of the securities to
be registered on the Boston Stock Exchange and the OTC Bulletin Board.
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6. Indemnification and Contribution.
(a) Indemnification by the Company. The Company agrees to
indemnify and hold harmless each Holder, its officers, directors, employees and
agents and each Person who controls such Holder within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act (each such
person being sometimes hereinafter referred to as an "Indemnified Holder") from
and against all losses, claims, damages, liabilities and expenses (including
reasonable costs of investigation and legal expenses) arising out of or based
upon any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement or Prospectus or in any amendment or
supplement thereto or in any preliminary prospectus, or arising out of or based
upon 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;
provided, however, that the Company will not be liable in any such case to the
extent that any such losses, claims, damages, liabilities or expenses arise out
of or are based upon any untrue statement or alleged untrue statement or
omission or alleged omission thereof based upon information furnished in writing
to the Company by such Holder or its agent expressly for use therein; provided
further, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage, liability or expense arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission in the Prospectus, if such untrue statement or alleged untrue
statement, omission or alleged omission was completely corrected in an amendment
or supplement to the Prospectus and if, having previously been furnished by or
on behalf of the Company with copies of the Prospectus as so amended or
supplemented, such Holder thereafter fails to deliver such Prospectus as so
amended or supplemented, prior to or concurrently with the sale of a Registrable
Security to the person asserting such loss, claim, damage, liability or expense
who purchased such Registrable Security which is the subject thereof from such
Holder. This indemnity will be in addition to any liability which the Company
may otherwise have.
If any action or proceeding (including any governmental investigation
or inquiry) shall be brought or asserted against any Indemnified Holder in
respect of which indemnity may be sought from the Company, such Indemnified
Holder shall promptly notify the Company in writing (but the omission to so
notify the Company shall not relieve it of any liability that it may have
against any Indemnified Holder otherwise than under this subsection), and the
Company shall assume the defense thereof, including the employment of counsel
reasonably satisfactory to such Indemnified Holder and the payment of all
expenses. Indemnified Holders shall have the right, collectively, to employ
their own counsel in any such action and to participate in the defense thereof,
but the fees and expenses of such counsel shall be the expense of the
Indemnified Holders unless (a) the Company has agreed to pay such fees and
expenses or (b) the Company shall have failed to assume the defense of such
action or proceeding and have failed to employ counsel reasonably satisfactory
to the Indemnified Holders in any such action or proceeding or (c) the named
parties to any such action or proceeding (including any impleaded parties)
include the Indemnified Holders and the Company, and the Indemnified Holders
shall have been advised by counsel that there may be one or more legal defenses
available to the Indemnified Holders which are different from or additional to
those available to the Company (in which case, if the Indemnified Holders notify
the Company in writing that they elect to employ their own counsel at the
expense of the Company, the Company shall not have the right to assume the
defense of such action or proceeding on behalf of the Indemnified Holders, it
being understood, however, that the Company shall not, in connection with any
one such action or proceeding or separate but substantially similar or related
actions or proceedings in the same jurisdiction arising out of the
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same general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys (together with appropriate
local counsel) at any time for the Indemnified Holders which firm shall be
designated in writing by the Indemnified Holders representing at least a
majority of the aggregate principal amount of the outstanding Registrable
Securities). Any such fees and expenses payable by the Company shall be paid to
the Indemnified Holders entitled thereto as incurred by the Indemnified Holders.
The Company shall not be liable for any settlement of any such action or
proceeding effected without its written consent, but if settled with its written
consent, or if there be a final judgment for the plaintiff in any such action or
proceeding, the Company agrees to indemnify and hold harmless the Indemnified
Holders from and against any loss or liability by reason of such settlement or
judgment.
(b) Indemnification by Holder. Each Holder agrees to indemnify
and hold harmless the Company, its respective directors and officers and each
Person, if any, who controls the Company within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act to the same extent as
the foregoing indemnity from the Company to such Holder, but only with respect
to information relating to such Holder furnished in writing by such Holder
expressly for use in any Registration Statement or Prospectus, or any amendment
or supplement thereto, or any preliminary prospectus. In case any action or
proceeding shall be brought against the Company or its respective directors or
officers or any such controlling person, in respect of which indemnity may be
sought against a Holder, such Holder shall have the rights and duties given the
Company, and the Company or its respective directors or officers or such
controlling person shall have the rights and duties given to each holder by the
preceding paragraph. In no event shall the liability of any Holder hereunder be
greater in amount than the dollar amount of the proceeds received by such Holder
upon the sale of the Registrable Securities giving rise to such indemnification
obligation.
(c) Contribution. If the indemnification provided for in this
Section 6 is unavailable to an indemnified party under Section 6(a) or Section
6(b) hereof (other than by reason of exceptions provided in those Sections) in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then each applicable indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities or
expenses, (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company from the sale of the Common Stock to each
Purchaser pursuant to the Purchase Agreement on the one hand and each Holder
from the offering of the Registrable Securities by such Holder, on the other
hand, or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and each Holder on the other in connection with the
statements or omissions that resulted in such losses, claims, damages, or
liabilities, as well as the other relevant equitable considerations. The
relative benefits received by the Company on the one hand and each Holder on the
other shall be deemed to be in the same proportion as the aggregate amount paid
by each Purchaser to the Company pursuant to the Purchase Agreement for the
Registrable Securities purchased by such Holder that were sold pursuant to the
Registration Statement bears to the difference (the "Difference") between the
amount such Holder paid for the Registrable Securities that were sold pursuant
to the Registration Statement and the amount received by such Holder from such
sale. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact
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relates to information supplied by the Company or the particular Holder and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The Company and the
Holders agree that it would not be just and equitable if contributions pursuant
to this Section 6(c) were to be determined by pro rata allocation or by any
other method of allocation that does not take account of the equitable
consideration referred to in the first sentence of this Section 6(c). The amount
paid by an indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this Section 6(c) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigation or defending against any
action or claim that is the subject of this Section 6(c). Notwithstanding the
provisions of this Section 6(c), each Holder shall not be required to contribute
any amount in excess of the amount by which the Difference exceeds the amount of
any damages that such Holder has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act), shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
7. Rule 144 and Rule 144A. For so long as the Company is subject to the
reporting requirements of Section 13 or 15 of the Exchange Act, the Company
covenants that it will file the reports required to be filed by it under the
Securities Act and Section 13(a) or 15(d) of the Exchange Act and the rules and
regulations adopted by the SEC thereunder. If the Company is not subject to the
reporting requirements of Section 13 or 15 of the Exchange Act, the Company also
covenants that it will provide the information required pursuant to Rule
144A(d)(4) under the Securities Act upon the request of any Holder which
continue to be "restricted securities" within the meaning of Rule 144(a)(3)
under the Securities Act and it will take such further action as any holder of
such Registrable Securities may reasonably request, all to the extent required
from time to time to enable such holder to sell its Registrable Securities
without registration under the Securities Act within the limitation of the
exemptions provided by (a) Rule 144 under the Securities Act, as such Rule may
be amended from time to time, so long as such provision does not require the
public filing of information relating to the Company which the Company is not
otherwise required to file, (b) Rule 144A under the Securities Act, as such Rule
may be amended from time to time, or (c) any similar rule or regulation
hereafter adopted by the SEC that does not require the public filing of
information relating to the Company. Upon the request of any Holder, the Company
will deliver to such Holder a written statement as to whether it has complied
with such requirements.
8. Miscellaneous.
(a) No Inconsistent Agreements. The Company will not on or after
the date of this Agreement enter into any agreement with respect to their
securities which is inconsistent with the rights granted to the Holders in this
Agreement or otherwise conflicts with the provisions hereof. The rights granted
to the Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the Company's securities
under any such agreements.
(b) Adjustments Affecting Registrable Securities. The Company
will not take any action, or permit any change to occur, with respect to the
Registrable Securities which would adversely affect the ability of the Holders
to include such Registrable Securities in a registration undertaken pursuant to
this Agreement.
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(c) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company has obtained the written consent of Holders
of a majority of the Registrable Securities.
(d) Notices. All notices, requests, consents and other
communications hereunder shall be by telecopier, with a copy being mailed by a
nationally recognized overnight express courier, and shall be deemed given when
receipt is acknowledged by transmit confirmation report, and shall be delivered
as addressed as follows:
(1) if to a Purchaser, at the most current address given by
the Purchaser to the Company in accordance with the provisions of this
Section 8(d) which address initially is as set forth at the head of
this Agreement;
(2) if to a Holder, at its address of record as indicated on
the books of the transfer agent and registrar for the Registrable
Securities; and
(3) if to the Company, initially at its address set forth at
the head of this Agreement and thereafter at such other addresses
notice of which is given in accordance with the provisions of this
Section 8(d).
(e) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties,
including without limitation and without the need for an express assignment,
subsequent Holders.
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York (without reference to its
rules as to conflicts of law) and the federal law of the United States of
America.
(i) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(j) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted by the Company with respect to
the securities sold pursuant to the Purchase Agreement. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
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9. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument, and shall become effective
when one or more counterparts have been signed by each party hereto and
delivered to the other parties. Facsimile signatures are considered to be
originals and shall have the same effect.
IN WITNESS WHEREOF, the Purchasers and Company have caused this
Agreement to be executed by their duly authorized representatives as of the day
and year first above written.
COMPANY:
DERMA SCIENCES, INC.
By:________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President and Chief Executive Officer
PURCHASERS:
________________________________
________________________________
________________________________
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