Exhibit 10.2
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of October 29, 2003,
among Rubicon Medical Corporation, a Delaware corporation (the "Company"),
Boston Scientific Corporation, a Delaware corporation ("Parent"), and Nemo I
Acquisition, Inc., a Delaware corporation and a wholly owned subsidiary of
Parent ("Purchaser").
WHEREAS, pursuant to an agreement dated July 17, 2003 (the
"Term Sheet"), among Parent, the Company, ▇▇▇▇▇▇ Family Enterprises, a Utah
family limited partnership, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Parent
purchased 2,000,000 shares of the Company's common stock, par value $0.001
("Common Stock"), for $2 million in cash (the "First Equity Investment");
WHEREAS, Parent, Purchaser and the Company have entered into a
transaction agreement, dated as of the date hereof (the "Transaction Agreement";
capitalized terms used herein and not otherwise defined herein shall have the
respective meanings ascribed to such terms in the Transaction Agreement),
providing that, among other things, concurrently with the execution of the
Transaction Agreement, Parent shall purchase, and the Company shall issue to
Parent, 1,090,147 shares of Series A Convertible Preferred Stock, par value
$0.001 per share (the "Preferred Stock"), for $15 million in cash, which are
convertible at the option of Parent at any time into such number of shares of
Common Stock that, when aggregated with the Common Stock issued pursuant to the
First Equity Investment, shall constitute 18% of Common Stock on a fully diluted
basis (the "Second Equity Investment");
WHEREAS, the Company has agreed to grant registration rights
to Parent in accordance with this Agreement for (a) the 2,000,000 shares of
Common Stock purchased by Parent pursuant to the First Equity Investment and (b)
the shares of Common Stock into which the 1,090,147 shares of the Preferred
Stock that Parent is purchasing pursuant to the Second Equity Investment as
provided in the Transaction Agreement are convertible.
NOW, THEREFORE, in consideration of the premises and the
covenants hereinafter contained and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, and intending to
be legally bound hereby, it is agreed as follows:
1. Definitions. (a) Unless otherwise defined herein, the terms below shall have
the following meanings (such meanings being equally applicable to both the
singular and plural form of the terms defined):
"Agreement" means this Registration Rights Agreement,
including all amendments, modifications and supplements and any
exhibits or schedules to any of the foregoing.
"Business Day" means any day on which the principal offices of
the SEC in Washington, D.C. are open to accept filings, or, in the case
of determining a date when any payment is due, any day on which banks
are not required or authorized to close in The City of New York.
"Control" (including the terms "Controlled by" and "under
common Control with") means the possession, directly or indirectly, of
the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting
securities, as trustee or executor, by contract or otherwise,
including, without limitation, the ownership, directly or indirectly,
of securities having the power to elect a majority of the board of
directors or similar body governing the affairs of such Person.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and all rules and regulations promulgated thereunder.
"Holder" means Parent or Purchaser, as the case may be, and
any transferee of Parent or Purchaser to whom Registrable Securities
are permitted to be transferred in accordance with the terms of this
Agreement, and, in each case, who continues to be entitled to the
rights of a Holder hereunder.
"NASD" means the National Association of Securities Dealers,
Inc., or any successor entity thereof.
"Person" means any individual, corporation, partnership, joint
venture, firm, trust, unincorporated organization, government or any
agency or political subdivision thereof or other entity.
"Registrable Securities" means, when held by a Holder, (a) (i)
the 2,000,000 shares of Common Stock purchased by Parent pursuant to
the First Equity Investment in accordance with the Term Sheet and (ii)
the shares of Common Stock into which the 1,090,147 shares of the
Preferred Stock that Parent is purchasing pursuant to the Second Equity
Investment in accordance with the Transaction Agreement are convertible
and (b) any Securities issuable or issued or distributed in respect of
any of the Common Stock identified in clause (a) by way of stock
dividend or stock split or in connection with a combination of shares,
recapitalization, reorganization, merger, consolidation or otherwise;
provided, however, that (i) Registrable Securities shall cease to be
Registrable Securities when (y) a Registration Statement covering such
Registrable Securities has been declared effective under the Securities
Act by the SEC and such Registrable Securities have been disposed of
pursuant to such effective Registration Statement and (z) they have
been repurchased by the Company or otherwise cease to be outstanding
and (ii) the Registrable Securities of a Holder shall not be deemed to
be Registrable Securities at any time when the entire amount of such
Registrable Securities proposed to be sold by such Holder in a single
sale constitute less than 1% of the then outstanding shares of Common
Stock and are, or in the opinion of counsel satisfactory to the Company
and such Holder, each in their reasonable judgment, may be, so
distributed to the public pursuant to Rule 144 (or any successor
provision then in effect) under the Securities Act in any three month
period or any such Registrable Securities have been sold in a sale made
pursuant to Rule 144 of the Securities Act.
"Registration Statement" means the Demand Registration
Statement and/or the Piggy-Back Registration Statement, as the case may
be, including the Prospectus contained therein, any amendments to such
Registration Statement (including post-effective amendments) and all
exhibits and any material incorporated by reference in such
Registration Statement.
"Securities" means any equity securities of the Company,
including Common Stock and preferred stock that is convertible to
Common Stock, and any other securities of the Company convertible,
exchangeable or exercisable for or into equity securities.
"Securities Act" means the Securities Act of 1933, as amended,
and all rules and regulations promulgated thereunder.
"SEC" means the U.S. Securities and Exchange Commission, or
any successor thereto.
(b) The following terms have the meanings set forth in the Section set forth
opposite such term:
Term Section
Blackout Period 6
Common Stock Recitals
Company Recitals
Demand for Registration 2(d)
Demand Registration 2(a)
Demand Registration Statement 2(a)
First Equity Investment Recitals
Indemnified Party 8(d)
Indemnifying Party 8(d)
Maximum Number of Securities 2(a)
Parent Recitals
Participating Demand Holders 2(a)
Participating Piggy-Back Holders 3(b)
Piggy-Back Registration 3(a)
Piggy-Back Registration Statement 3(a)
Preferred Stock Recitals
Purchaser Recitals
Second Equity Investment Recitals
Term Sheet Recitals
Transaction Agreement Recitals
2. Demand Registration.
(a) After receipt of a written request from a Holder requesting that the
Company effect a registration (a "Demand Registration") under the
Securities Act covering all or part of the Registrable Securities which
specifies the intended method or methods of disposition thereof, the
Company shall promptly notify all Holders in writing of the receipt of
such request and each such Holder, in lieu of exercising its rights
under Section 3 may elect (by written notice sent to the Company within
10 Business Days from the date of such Holder's receipt of the
aforementioned notice from the Company) to have all or part of such
Holder's Registrable Securities included in such registration thereof
pursuant to this Section 2, and such Holder shall specify in such
notice the number of Registrable Securities that such Holder elects to
include in such registration. Thereupon the Company shall, as
expeditiously as is possible, but in any event no later than forty-five
(45) days (excluding any days which occur during a permitted Blackout
Period under Section 4) after receipt of a written request for a Demand
Registration, file with the SEC and use its reasonable best efforts to
cause to be declared effective, a registration statement (a "Demand
Registration Statement") relating to all shares of Registrable
Securities which the Company has been so requested to register by such
Holders ("Participating Demand Holders") for sale, to the extent
required to permit the disposition (in accordance with the intended
method or methods thereof, as aforesaid) of the Registrable Securities
so registered; provided, however, that the Registrable Securities
requested to be registered (i) constitute in the aggregate at least 33%
of the Registrable Securities issued or issuable upon conversion of the
Preferred Stock or (ii) include all Registrable Securities which remain
outstanding at such time.
(b) If the majority-in-interest of the Participating Demand Holders in a
Demand Registration relating to a public offering so request that the
offering be underwritten with a managing underwriter selected in the
manner set forth in Section 12 and such managing underwriter of such
Demand Registration advises the Company in writing that, in its
opinion, the number of securities to be included in such offering is
greater than the total number of securities which can be sold therein
without having a material adverse effect on the distribution of such
securities or otherwise having a material adverse effect on the
marketability thereof (the "Maximum Number of Securities"), then the
Company shall include in such Demand Registration the Registrable
Securities that the Participating Demand Holders have requested to be
registered thereunder only to the extent the number of such Registrable
Securities does not exceed the Maximum Number of Securities. If such
amount exceeds the Maximum Number of Securities, the number of
Registrable Securities included in such Demand Registration shall be
allocated among all the Participating Demand Holders on a pro rata
basis (based on the number of Registrable Securities held by each
Participating Demand Holder). If the amount of such Registrable
Securities does not exceed the Maximum Number of Securities, the
Company may include in such Registration any other Securities of the
Company and other securities held by other security holders of the
Company, as the Company may in its discretion determine or be obligated
to allow, in an amount which together with the Registrable Securities
included in such Demand Registration shall not exceed the Maximum
Number of Securities.
(c) Registrations under this Section 2 shall be on such appropriate
registration form of the SEC (i) as shall be selected by the issuer and
as shall be reasonably acceptable to the holders of a
majority-in-interest of Registrable Securities requesting participation
in the Demand Registration and (ii) as shall permit the disposition of
the Registrable Securities in accordance with the intended method or
methods of disposition specified in the applicable holders' requests
for such registration. Notwithstanding the foregoing, if, pursuant to a
Demand Registration, (x) the issuer proposes to effect registration by
filing a Registration Statement on Form S-3 (or any successor or
similar short-form registration statement), (y) such registration is in
connection with an underwritten offering and (z) the managing
underwriter or underwriters shall advise the issuer in writing that, in
its or their opinion, the use of another form of registration statement
(or the inclusion, rather than the incorporation by reference, of
information in the Prospectus related to a Registration Statement on
Form S-3 (or other short-form registration statement)) is of material
importance to the success of such proposed offering, then such
registration shall be effected on such other form (or such information
shall be so included in such Prospectus).
(d) Holders shall be entitled to an aggregate of two registrations of
Registrable Securities pursuant to this Section 2 (each, a "Demand for
Registration"); provided, that a registration requested pursuant to
this Section 2 shall not be deemed to have been effected for purposes
of this Section 2(d) unless (i) it has been declared effective by the
SEC, (ii) it has remained effective for the period set forth in Section
5(a), (iii) Holders of Registrable Securities included in such
registration have not withdrawn sufficient shares from such
registration such that the remaining Holders requesting registration
would not have been able to request registration under the provisions
of this Section 2 and (iv) the offering of Registrable Securities
pursuant to such registration is not subject to any stop order,
injunction or other order or requirement of the SEC or other
governmental agency or court (other than any such stop order,
injunction, or other requirement of the SEC or other governmental
agency or court prompted by act or omission of Holders of Registrable
Securities).
(e) Notwithstanding anything to the contrary contained herein, (i) the
Company shall not be required to prepare and file (A) more than two
Demand Registration Statements in any twelve-month period or (B) any
Demand Registration Statement within 90 days following the date of
effectiveness of any other Registration Statement; provided, however,
that any Piggy-Back Registration Statement filed pursuant to Section 3
shall be excluded from the limitations set forth in this Section
2(e)(i)(B) and (ii) the Company may, at its option, purchase (or cause
a designee to purchase) such Registrable Securities in lieu of
effecting the registration of the Registrable Securities that are the
subject of a Demand for Registration pursuant to Section 13.
3. Piggy-Back Registration.
(a) If the Company proposes to file on its behalf and/or on behalf of any
holder of its securities (other than a holder of Registrable
Securities) a registration statement under the Securities Act on any
form (other than a registration statement on Form S-4 or S-8 or any
successor form for securities to be offered in a transaction of the
type referred to in Rule 145 under the Securities Act or to employees
of the Company pursuant to any employee benefit plan, respectively) for
the registration of any Security (a "Piggy-Back Registration"), it will
give written notice to all Holders at least twenty (20) Business Days
before the initial filing with the SEC of such registration statement
(a "Piggy-Back Registration Statement"), which notice shall set forth
the intended method of disposition of the securities proposed to be
registered by the Company. The notice shall offer to include in such
filing the aggregate number of shares of Registrable Securities as such
Holders may request.
(b) Each Holder desiring to have Registrable Securities registered under
this Section 3 ("Participating Piggy-Back Holders") shall advise the
Company in writing within 10 Business Days after the date of receipt of
such offer from the Company, setting forth the amount of such
Registrable Securities for which registration is requested. The Company
shall thereupon include in such filing the number or amount of
Registrable Securities for which registration is so requested, subject
to paragraph (c) below, and shall use its reasonable best efforts to
effect registration of such Registrable Securities under the Securities
Act.
(c) If the Piggy-Back Registration relates to an underwritten public
offering and the managing underwriter of such proposed public offering
advises in writing that, in its opinion, the amount of Registrable
Securities requested to be included in the Piggy-Back Registration in
addition to the securities being registered by the Company would be
greater than the Maximum Number of Securities (having the same meaning
as defined in Section 2 but replacing the term "Demand Registration"
with "Piggy-Back Registration"), then:
(i) in the event the Company initiated the Piggy-Back Registration, the
Company shall include in such Piggy-Back Registration, in the priority
listed below, up to the Maximum Number of Securities:
(A) first, the Securities the Company proposes to register for the account
of the Company,
(B) second, all Registrable Securities requested to be included in such
registration by Participating Piggy-Back Holders (allocated, if
necessary for the offering not to exceed the Maximum Number of
Securities, pro rata among such Holders based on the number of
Registrable Securities of the Company held by each such selling
security Holder) and
(C) third, the securities of all other selling security holders;
(ii) in the event any holder of Securities of the Company initiated the
Piggy-Back Registration, the Company shall include in such Piggy-Back
Registration, in the priority listed below, up to the Maximum Number of
Securities:
(A) first, the Securities such initiating security holder proposes to
register and the Securities of any other selling security holders,
including Participating Piggy-Back Holders (allocated, if necessary for
the offering not to exceed the Maximum Number of Securities, pro rata
among such holders and Holders based on the number of Securities of the
Company held by each such selling security holder or Holder) and
(B) second, any Securities the Company proposes to register.
(d) The Company will not hereafter enter into any agreement, which is
inconsistent with the rights of priority provided in paragraph (c)
above.
4. Blackout Periods. The Company shall have the right to delay the filing
or effectiveness of a Registration Statement required pursuant to
Section 2 or 3 during no more than two periods aggregating to not more
than 120 days in any twelve-month period (a "Blackout Period") in the
event that (i) the Company would, in accordance with the reasonable
advice of its counsel, be required to disclose in the prospectus
information not otherwise then required by Law to be publicly disclosed
and (ii) except as prohibited by Article VIII of the Transaction
Agreement, in the judgment of the Company's Board of Directors, there
is a reasonable likelihood that such disclosure, or any other action to
be taken in connection with the prospectus, would materially and
adversely affect or interfere with any financing, acquisition, merger,
disposition of assets (not in the ordinary course of business),
corporate reorganization or other similar transaction involving the
Company; provided, however, that the Company shall delay during such
Blackout Period the filing or effectiveness of any Registration
Statement required pursuant to the registration rights of the holders
of any Securities of the Company. The Company shall promptly give the
Holders written notice of such determination containing a general
statement of the reasons for such postponement and an approximation of
the duration of the anticipated delay.
5. Registration Procedures. If the Company is required by the provisions
of Section 2 or 3 to use its reasonable best efforts to effect the
registration of any of its securities under the Securities Act, the
Company shall, as expeditiously as possible:
(a) prepare and file with the SEC within 45 days a Registration Statement
with respect to such securities and use its reasonable best efforts to
cause such Registration Statement promptly to become and remain
effective for a period of time required for the disposition of such
Securities by the holders thereof but not to exceed 30 days; provided,
however, that not fewer than 5 Business Days before filing such
registration statement or any amendments thereto (for purposes of this
subsection, amendments shall not be deemed to include any filing that
the Company is required to make pursuant to the Exchange Act), the
Company shall furnish the representatives of the Holders referred to in
Section 5(m) copies of all documents proposed to be filed, which
documents will be subject to the review of such counsel. The Company
shall not be deemed to have used its reasonable best efforts to keep a
Registration Statement effective during the applicable period if it
voluntarily takes any action that would result in the Holders of such
Registrable Securities not being able to sell such Registrable
Securities during that period, unless such action is required by Law;
(b) prepare and file with the SEC such amendments and supplements to such
Registration Statement and the prospectus used in connection therewith
as may be necessary to keep such Registration Statement effective and
to comply with the provisions of the Securities Act with respect to the
sale or other disposition of all securities covered by such
Registration Statement until the earlier of such time as all of such
securities have been disposed of in a public offering or the expiration
of 30 days;
(c) furnish to such selling security holders such number of conformed
copies of the applicable Registration Statement and each such amendment
and supplement thereto (including in each case all exhibits) and of a
summary prospectus or other prospectus, including a preliminary
prospectus, in conformity with the requirements of the Securities Act,
and such other documents, as such selling security holders may
reasonably request;
(d) use its reasonable best efforts to register or qualify the securities
covered by such Registration Statement under such other securities or
blue sky laws of such jurisdictions within the United States and Puerto
Rico as each Holder of such securities shall reasonably request, to
keep such registration or qualification in effect for so long as such
Registration Statement remains in effect and to take any other action
which may be reasonably necessary to enable such Holder to consummate
the disposition in such jurisdictions of the securities owned by such
Holder (provided, however, that the Company shall not be required in
connection therewith or as a condition thereto to qualify to do
business, subject itself to taxation in or to file a general consent to
service of process in any jurisdiction wherein it would not but for the
requirements of this paragraph (d) be obligated to do so; and provided,
further, that the Company shall not be required to qualify such
Registrable Securities in any jurisdiction in which the securities
regulatory authority requires that any Holder submit any shares of its
Registrable Securities to the terms, provisions and restrictions of any
escrow, lockup or similar agreement(s) for consent to sell Registrable
Securities in such jurisdiction unless such Holder agrees to do so) and
do such other reasonable acts and things as may be required of it to
enable such Holder to consummate the disposition in such jurisdiction
of the securities covered by such Registration Statement;
(e) furnish, at the request of any Holder requesting registration of
Registrable Securities pursuant to Section 2 or 3, if the method of
distribution is by means of an underwriting, on the date that the
shares of Registrable Securities are delivered to the underwriters for
sale pursuant to such registration, or if such Registrable Securities
are not being sold through underwriters, on the date that the
registration statement with respect to such shares of Registrable
Securities becomes effective, (1) a signed opinion, dated such date, of
the independent legal counsel representing the Company for the purpose
of such registration, addressed to the underwriters, if any, and if
such Registrable Securities are not being sold through underwriters,
then to the Holders making such request, as to such matters as such
underwriters or the Holders holding a majority-in-interest of the
Registrable Securities included in such registration, as the case may
be, may reasonably request; and (2) letters dated such date and the
date the offering is priced from the independent certified public
accountants of the Company, addressed to the underwriters, if any, and
if such Registrable Securities are not being sold through underwriters,
then to the Holders making such request and, if such accountants refuse
to deliver such letters to such Holders, then to the Company (i)
stating that they are independent certified public accountants within
the meaning of the 1933 Act and that, in the opinion of such
accountants, the financial statements and other financial data of the
Company included in the Registration Statement or the prospectus, or
any amendment or supplement thereto, comply as to form and substance in
all material respects with the applicable accounting requirements of
the 1933 Act and (ii) covering such other financial matters (including
information as to the period ending not more than five Business Days
prior to the date of such letters) with respect to the registration in
respect of which such letter is being given as such underwriters or the
Holders holding a majority-in-interest of the Registrable Securities
included in such registration, as the case may be, may reasonably
request and as would be customary in such a transaction;
(f) enter into customary agreements (including if the method of
distribution is by means of an underwriting, an underwriting agreement
in customary form) and take such other actions as are reasonably
required in order to expedite or facilitate the disposition of such
Registrable Securities;
(g) otherwise use its reasonable best efforts to comply with all applicable
rules and regulations of the SEC and make earnings statements
satisfying the provisions of Section 11(a) of the Securities Act
generally available to the Holders no later than 45 days after the end
of any twelve-month period (or 90 days, if such period is a fiscal
year) (provided, however, that such 45-day and 90-day time periods
shall be reduced to reflect any shorter time periods as the SEC may
require for the filing of Forms 10-Q and Forms 10-K) (i) commencing at
the end of any fiscal quarter in which Registrable Securities are sold
to underwriters in an underwritten public offering or (ii) if not sold
to underwriters in such an offering, beginning with the first month of
the Company's first fiscal quarter commencing after the effective date
of the Registration Statement, which statements shall cover said
twelve-month periods;
(h) use its reasonable best efforts to cause all such Registrable
Securities to be listed on each securities exchange or quotation system
on which similar securities issued by the Company are listed or traded;
(i) give written notice to the Holders:
(i) when such Registration Statement or any amendment thereto has been
filed with the SEC and when such Registration Statement or any
post-effective amendment thereto has become effective;
(ii) of any request by the SEC for amendments or supplements to such
Registration Statement or the prospectus included therein or for
additional information;
(iii) of the issuance by the SEC of any stop order suspending the
effectiveness of such Registration Statement or the initiation of any
proceedings for that purpose;
(iv) of the receipt by the Company or its legal counsel of any notification
with respect to the suspension of the qualification of the Common Stock
for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and
(v) of the happening of any event that requires the Company to make changes
in such Registration Statement or the prospectus in order to make the
statements therein true and not misleading (which notice shall be
accompanied by an instruction to suspend the use of the prospectus
until the requisite changes have been made);
(j) use its reasonable best efforts to prevent the issuance or obtain the
withdrawal of any order suspending the effectiveness of such
Registration Statement at the earliest possible time;
(k) furnish to each Holder, without charge, at least one copy of such
Registration Statement and any post-effective amendment thereto,
including financial statements, schedules and, if the Holder so
requests in writing, all exhibits (including those, if any,
incorporated by reference);
(l) upon the occurrence of any event contemplated by Section 5(i)(v),
promptly prepare a post-effective amendment to such Registration
Statement or a supplement to the related prospectus 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, in light of the circumstances under which they were made, not
misleading. If the Company notifies the Holders in accordance with
Section 5(i)(v) to suspend the use of the prospectus until the
requisite changes to the prospectus have been made, then the Holders
shall suspend use of such prospectus, and the period of effectiveness
of such Registration Statement provided for above shall be extended by
the number of days from and including the date of the giving of such
notice to the date Holders shall have received such amended or
supplemented prospectus pursuant to this Section 5(l); provided that,
in any event, the extension shall be not less than five Business Days;
(m) make reasonably available for inspection by the representatives of the
Holders, any underwriter participating in any disposition pursuant to
such Registration Statement and any attorney, accountant or other agent
retained by such representative or any such underwriter all relevant
financial and other records, pertinent corporate documents and
properties of the Company and cause the Company's officers, directors,
employees and representatives to supply all relevant information
reasonably requested by such representatives of the Holders or any such
underwriter, attorney, accountant or agent in connection with the
registration; and
(n) in connection with any underwritten offering, make appropriate officers
of the Company available to the selling security holders for meetings
with prospective purchasers of the Registrable Securities and prepare
and present to potential investors customary "road show" material in
each case in accordance with the recommendations of the underwriters
and in all respects in a manner consistent with other new issuances of
securities in an offering of a similar size to such offering of the
Registrable Securities and by an issuer of similar size to the Company,
in connection with any proposed sale of the Registrable Securities in
an aggregate offering that constitutes at least 20% of the Registrable
Securities issued or issuable upon conversion of the Preferred Stock;
and
(o) use reasonable best efforts to procure the cooperation of the Company's
transfer agent in settling any offering or sale of Registrable
Securities, including with respect to the transfer of physical stock
certificates into book-entry form in accordance with any procedures
reasonably requested by the Holders or the underwriters.
It shall be a condition precedent to the obligation of the
Company to take any action pursuant to this Agreement in respect of the
Securities which are to be registered at the request of any Holder that such
Holder shall furnish to the Company such information regarding the Securities
held by such Holder and the intended method of disposition thereof as the
Company shall reasonably request and as shall be required in connection with the
action taken by the Company.
6. Expenses. All expenses incurred in connection with each registration
pursuant to Sections 2 and 3, excluding underwriters' discounts and
commissions, but including without limitation all registration, filing
and qualification fees, word processing, duplicating, printers' and
accounting fees (including the expenses of any special audits or
"comfort" letters required by or incident to such performance and
compliance), fees of the OTC Bulletin Board or quotation fees, fees of
the NASD or listing fees, messenger and delivery expenses, all fees and
expenses of complying with state securities or blue sky laws, fees and
disbursements of counsel for the Company and the fees and disbursements
of one counsel for the selling Holders (which counsel shall be selected
by the Holders holding a majority-in-interest of the Registrable
Securities being registered), shall be paid by the Company, except
that:
(a) all such expenses in connection with any amendment or supplement to a
Registration Statement or prospectus filed more than 180 days after the
effective date of such Registration Statement because any Holder has
not effected the disposition of the Securities requested to be
registered shall be paid by such Holder;
(b) the Holders shall bear and pay the underwriting commissions and
discounts applicable to securities offered for their account in
connection with any registrations, filings and qualifications made
pursuant to this Agreement; and
(c) the Holders, on the one hand, and the Company, on the other hand, shall
each bear and pay one-half of the fees and expenses of the underwriters
that relate to "road show" investor presentations.
7. Rule 144 Information. At all times after 90 days after any Registration
Statement covering securities of the Company shall have become
effective, the Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act;
(b) use its best efforts to file with the SEC in a timely manner all
reports and other documents required of the Company under the
Securities Act and the Exchange Act; and
(c) furnish to each Holder of Registrable Securities forthwith upon request
a written statement by the Company as to its compliance with the
reporting requirements of such Rule 144 and of the Securities Act and
the Exchange Act, a copy of the most recent annual or quarterly report
of the Company and such other reports and documents so filed by the
Company as such Holder may reasonably request in availing itself of any
rule or regulation of the SEC allowing such Holder to sell any
Registrable Securities without registration.
8. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless each Holder, such
Holder's directors and officers, each person who participates in the
offering of such Registrable Securities, including underwriters (as
defined in the Securities Act), and each person, if any, who controls
such Holder or participating person within the meaning of the
Securities Act, against any losses, claims, damages or liabilities,
joint or several, to which they may become subject under the Securities
Act or otherwise, insofar as such losses, claims, damages or
liabilities (or proceedings in respect thereof) arise out of or are
based on any untrue or alleged untrue statement of any material fact
contained in such registration statement on the effective date thereof
(including any prospectus filed under Rule 424 under the Securities Act
or any amendments or supplements thereto) or arise out of or are based
upon 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, and shall reimburse each such Holder, such
Holder's directors and officers, such participating person or
controlling person for any legal and other expenses reasonably incurred
by them (but not in excess of expenses incurred in respect of one
counsel for all of them unless there is an actual conflict of interest
between any indemnified parties, which indemnified parties may be
represented by separate counsel) in connection with investigating or
defending any such loss, claim, damage, liability or action; provided,
however, that the Company shall not be liable to any Holder, such
Holder's directors and officers, participating person or controlling
person in any such case for any such loss, claim, damage, liability or
action to the extent that it arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission
made in connection with such registration statement, preliminary
prospectus, final prospectus or amendments or supplements thereto, in
reliance upon and in conformity with written information furnished
expressly for use in connection with such registration by any such
Holder, such Holder's directors and officers, participating person or
controlling person. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of any such
Holder, such Holder's directors and officers, participating person or
controlling person, and shall survive the transfer of such securities
by such Holder.
(b) Each Holder requesting or joining in a registration severally and not
jointly shall indemnify and hold harmless the Company, each of its
directors and officers, each person, if any, who controls the Company
within the meaning of the Securities Act, and each agent and any
underwriter for the Company (within the meaning of the Securities Act)
against any losses, claims, damages or liabilities, joint or several,
to which the Company or any such director, officer, controlling person,
agent or underwriter may become subject, under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
proceedings in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact
contained in such registration statement on the effective date thereof
(including any prospectus filed under Rule 424 under the Securities Act
or any amendments or supplements thereto) or arise out of or are based
upon 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, in each case 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, or amendments or supplements thereto,
in reliance upon and in conformity with written information furnished
by or on behalf of such Holder expressly for use in connection with
such registration; and each such Holder shall reimburse any legal and
other expenses reasonably incurred by the Company or any such director,
officer, controlling person, agent or underwriter (but not in excess of
expenses incurred in respect of one counsel for all of them unless
there is an actual conflict of interest between any indemnified
parties, which indemnified parties may be represented by separate
counsel) in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the
liability of each Holder hereunder shall be limited to the proportion
of any such loss, claim, damage, liability or expense which is equal to
the proportion that the net proceeds from the sale of the shares sold
by such Holder under such registration statement bears to the total net
proceeds from the sale of all securities sold thereunder, but not in
any event to exceed the net proceeds received by such Holder from the
sale of Registrable Securities covered by such registration statement.
(c) If the indemnification provided for in this Section 8 from the
indemnifying party is unavailable to an indemnified party hereunder in
respect of any losses, claims, damages, liabilities or expenses
referred to therein, then the 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 in such proportion as is
appropriate to reflect the relative fault of the indemnifying party and
indemnified parties in connection with the actions which resulted in
such losses, claims, damages, liabilities or expenses, as well as any
other relevant equitable considerations. The relative fault of such
indemnifying party and indemnified parties shall be determined by
reference to, among other things, whether any action in question,
including any untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact, has been made
by, or relates to information supplied by, such indemnifying party or
indemnified parties, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such
action. The amount paid or payable by a party as a result of the
losses, claims, damages, liabilities and expenses referred to above
shall be deemed to include any legal and other fees or expenses
reasonably incurred by such party in connection with any investigation
or proceeding. If the allocation provided in this paragraph (c) is not
permitted by applicable Law, the parties shall contribute based upon
the relevant benefits received by the Company from the initial offering
of the securities on the one hand and the net proceeds received by the
Holders from the sale of securities on the other.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 8(c) were 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 immediately preceding
paragraph. 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.
(d) Any Person entitled to indemnification hereunder (the "Indemnified
Party") agrees to give prompt written notice to the indemnifying party
(the "Indemnifying Party") after the receipt by the Indemnified Party
of any written notice of the commencement of any action, suit,
proceeding or investigation or threat thereof made in writing for which
the Indemnified Party intends to claim indemnification or contribution
pursuant to this Agreement; provided, that the failure so to notify the
Indemnified Party shall not relieve the Indemnifying Party of any
liability that it may have to the Indemnifying Party hereunder unless
such failure is materially prejudicial to the Indemnifying Party. If
notice of commencement of any such action is given to the Indemnifying
Party as above provided, the Indemnifying Party shall be entitled to
participate in and, to the extent it may wish, to assume the defense of
such action at its own expense, with counsel chosen by it and
reasonably satisfactory to such Indemnified Party. The Indemnified
Party shall have the right to employ separate counsel in any such
action and participate in the defense thereof, but the fees and
expenses of such counsel shall be paid by the Indemnified Party unless
(i) the Indemnifying Party agrees to pay the same, (ii) the
Indemnifying Party fails to assume the defense of such action, or (iii)
the named parties to any such action (including any impleaded parties)
have been advised by such counsel that either (A) representation of
such Indemnified Party and the Indemnifying Party by the same counsel
would be inappropriate under applicable standards of professional
conduct or (B) there are one or more legal defenses available to it
which are substantially different from or additional to those available
to the Indemnifying Party. No Indemnifying Party shall be liable for
any settlement entered into without its written consent, which consent
shall not be unreasonably withheld.
(e) The agreements contained in this Section 8 shall survive the transfer
of the Registrable Securities by any Holder and sale of all the
Registrable Securities pursuant to any registration statement and shall
remain in full force and effect, regardless of any investigation made
by or on behalf of any Holder or such director, officer or
participating or controlling Person.
9. Certain Additional Limitations on Registration Rights. (a)
Notwithstanding the other provisions of this Agreement, the Company
shall not be obligated to register pursuant to Section 2 the
Registrable Securities of any Holder during the term of the Transaction
Agreement.
(b) Notwithstanding the other provisions of this Agreement, the Company
shall not be obligated to register the Registrable Securities of any
Holder (i) if such Holder or any underwriter of such Registrable
Securities shall fail to furnish to the Company necessary information
in respect of the distribution of such Registrable Securities or (ii)
if such registration involves an underwritten offering, such
Registrable Securities are not included in such underwritten offering
on the same terms and conditions as shall be applicable to the other
Securities being sold through underwriters in the registration or such
Holder fails to enter into an underwriting agreement in customary form
with the underwriter or underwriters selected for such underwritten
offering.
(c) Lock-up Agreements
(i) Each Holder agrees not to effect any public sale or distribution
(including sales pursuant to Rule 144) of Securities during the seven
days prior to and the 180-day period beginning on the effective date of
any underwritten Demand Registration or underwritten Piggy-Back
Registration in which Registrable Securities are included (except as
part of such underwritten registration) unless the underwriters
managing the public offering otherwise agree.
(ii) The Company agrees not to effect any public sale or distribution of
Securities, or any securities exercisable for such Securities, during
the seven days prior to and during the 90-day period beginning on the
effective date of any underwritten Demand Registration or underwritten
Piggy-Back Registration (except as part of such underwritten
registration) unless the underwriters managing the public offering
otherwise agree; provided that the foregoing limitations shall not
apply to (i) any purchases, issuances or grants of options, rights or
warrants under the Company's employee or director compensation and
benefit plans or used for similar employee compensation or benefit
purposes, (ii) the issuance of Common Stock upon the exercise of any
option or warrant or upon conversion of any security convertible into
or exchangeable for Common Stock or (iii) except as prohibited by
Article VIII of the Transaction Agreement, the issuance, offer, sale or
disposition of any Common Stock to a person in consideration for any
acquisition by the Company of assets or property (other than cash) of
such person or any affiliate thereof. The Company also agrees to use
its reasonable best efforts to cause each holder of at least 5% (on a
fully diluted basis) of its Common Stock, or any securities convertible
into or exchangeable or exercisable for Common Stock purchased from the
Company at any time after the date of this Agreement (other than in a
registered public offering) to agree not to effect any public sale or
distribution of any such securities during such period (except as part
of such underwritten registration, if otherwise permitted), unless the
underwriters managing the registered public offering otherwise agree.
10. Limitations on Registration of Other Securities; Representation. From
and after the date of this Agreement, the Company shall not, without
the prior written consent of a majority-in-interest of the Holders,
enter into any agreement with any holder or prospective holder of any
securities of the Company giving such holder or prospective holder any
registration rights the terms of which are as or more favorable taken
as a whole than the registration rights granted to the Holders
hereunder unless the Company shall also give such rights to the Holders
hereunder.
11. No Inconsistent Agreements. The Company will not hereafter enter into
any agreement with respect to its securities, which is inconsistent in
any material respects with the rights granted to the Holders in this
Agreement.
12. Selection of Managing Underwriters. In the event the Participating
Demand Holders have requested an underwritten offering, the underwriter
or underwriters shall be selected by the Company and shall be approved
by the Holders of a majority of the shares being so registered, which
approval shall not be unreasonably withheld or delayed, provided, (i)
that all of the representations and warranties by, and the other
agreements on the part of, the Company to and for the benefit of such
underwriters shall also be made to and for the benefit of such Holders
of Registrable Securities, (ii) that any or all of the conditions
precedent to the obligations of such underwriters under such
underwriting agreement shall be conditions precedent to the obligations
of such Holders of Registrable Securities and (iii) that no Holder
shall be required to make any representations or warranties to or
agreements with the Company or the underwriters other than
representations, warranties or agreements regarding such Holder, the
Registrable Securities of such Holder and such Holder's intended method
of distribution and any other representations required by Law. Subject
to the foregoing, all Holders proposing to distribute Registrable
Securities through such underwritten offering shall enter into an
underwriting agreement in customary form with the underwriter or
underwriters. Subject to the provisions of Section 7(b), if any Holder
of Registrable Securities disapproves of the terms of the underwriting,
such Holder may elect to withdraw all its Registrable Securities by
written notice to the Company, the managing underwriter and the other
Holders participating in such registration. The securities so withdrawn
shall also be withdrawn from registration.
13. Repurchase Rights. If any Holder elects to exercise its right to
register any Registrable Securities pursuant to Section 2, the Company,
in lieu of satisfying its obligations pursuant to Section 2, may
purchase (or cause a designee to purchase) any such Registrable
Securities from such Holder within ninety (90) days of receipt of
written notice of the Demand for Registration at a price per
Registrable Security equal to the average of the per share closing
prices of Common Stock on the OTC Bulletin Board during the 20
consecutive trading days ending on (and including) the trading day that
is one trading day prior to the date of such notice; provided, however,
if the Company (or its designee) fails to acquire such Registrable
Securities for any reason during such ninety (90) day period, then the
Company shall use its reasonable best efforts to cause a Demand
Registration Statement relating to such Registrable Securities to be
declared effective within ten (10) days of the expiry of such ninety
(90) day period and shall otherwise comply with Section 2.
14. Miscellaneous.
(a) Specific Performance. The parties hereto agree that irreparable damage
would occur in the event any provision of this Agreement were not
performed in accordance with the terms hereof and that the parties
shall be entitled to specific performance of the terms hereof, in
addition to any other remedy at law or equity.
(b) Amendments and Waivers. (i) Any provision of this Agreement may be
amended or waived if, and only if, such amendment or waiver is in
writing and signed, in the case of an amendment, by the Company and a
majority-in-interest of the Holders or, in the case of a waiver, by the
party or parties against whom the waiver is to be effective; provided,
however, that waiver by the Holders shall require the consent of a
majority-in-interest of the Holders.
(ii) Any party hereto may (a) extend the time for the performance of any
obligation or other act of any other party hereto, (b) waive any
inaccuracy in any document delivered pursuant hereto and (c) waive
compliance with any agreement of any other party or any condition to
its own obligations contained herein. Any such extension or waiver
shall be valid if set forth in an instrument in writing signed by the
party or parties to be bound thereby.
(c) Notice Generally. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and
shall be deemed to have been duly given upon receipt) by delivery in
person, by telecopy or by registered or certified mail (postage
prepaid, return receipt requested) to the respective parties at the
following addresses (or at such other address for a party as shall be
specified in a notice given in accordance with this Section 14(c)):
(i) If to any Holder, at its last known address appearing on the books of
the Company maintained for such purpose, but
if to Parent or Purchaser:
Boston Scientific Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
with a copy to:
Boston Scientific Corporation
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Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Assistant General Counsel
Shearman & Sterling LLP
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Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇'▇▇▇▇▇
If to the Company, at
Rubicon Medical Corporation
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Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: President and CEO
with a copy to:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
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Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: R. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
(d) Successors and Assigns; Third Party Beneficiaries. This Agreement shall
inure to the benefit of and be binding upon the successors and permitted assigns
of the parties hereto as hereinafter provided. The registration rights of any
Holder with respect to any Registrable Securities shall be transferred to any
Person who is the transferee of such Registrable Securities; provided that the
registration rights of Parent and Purchaser shall not be transferred to any
Person during the term of the Transaction Agreement. All of the obligations of
the Company hereunder shall survive any such transfer. Except as provided in
Section 8, no Person other than the parties hereto and their successors and
permitted assigns is intended to be a beneficiary of this Agreement.
(e) Headings. The descriptive headings contained in this Agreement are included
for convenience of reference only and shall not affect in any way the meaning or
interpretation of this Agreement.
(f) Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware. All actions and proceedings
arising out of or relating to this Agreement shall be heard and determined
exclusively in any Delaware state or federal court sitting in Wilmington,
Delaware. The parties hereto hereby (a) submit to the exclusive jurisdiction of
any state or federal court sitting in Wilmington, Delaware for the purpose of
any Action arising out of or relating to this Agreement brought by any party
hereto, and (b) irrevocably waive, and agree not to assert by way of motion,
defense, or otherwise, in any such Action, any claim that it is not subject
personally to the jurisdiction of the above-named courts, that its property is
exempt or immune from attachment or execution, that the Action is brought in an
inconvenient forum, that the venue of the Action is improper, or that this
Agreement or the Transactions may not be enforced in or by any of the
above-named courts.
(g) Waiver of Jury Trial. Each of the parties hereto hereby waives to the
fullest extent permitted by applicable Law any right it may have to a trial by
jury with respect to any litigation directly or indirectly arising out of, under
or in connection with this Agreement. Each of the parties hereto (a) certifies
that no representative, agent or attorney of any other party has represented,
expressly or otherwise, that such other party would not, in the event of
litigation, seek to enforce that foregoing waiver and (b) acknowledges that it
and the other hereto have been induced to enter into this Agreement, as
applicable, by, among other things, the mutual waivers and certifications in
this Section 14(g).
(h) Severability. If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by any rule of law, or public policy, all
other conditions and provisions of this Agreement shall nevertheless remain in
full force and effect so long as the economic or legal substance of this
Agreement is not affected in any manner materially adverse to any party. Upon
such determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties hereto shall negotiate in good faith to
modify this Agreement so as to effect the original intent of the parties as
closely as possible in a mutually acceptable manner in order that this Agreement
be effected as originally contemplated to the fullest extent possible.
(i) Specific Performance. The parties hereto agree that irreparable damage would
occur in the event any provision of this Agreement were not performed in
accordance with the terms hereof and that the parties shall be entitled to
specific performance of the terms hereof, in addition to any other remedy at law
or equity.
(j) Entire Agreement. This Agreement constitutes the entire agreement among the
parties with respect to the subject matter hereof and supersede all prior
agreements and undertakings, both written and oral, among the parties, or any of
them, with respect to the subject matter hereof, including the Term Sheet and
the Option Agreements.
(k) Counterparts. This Agreement may be executed and delivered (including by
facsimile transmission) in one or more counterparts, and by the different
parties hereto in separate counterparts, each of which when executed shall be
deemed to be an original but all of which taken together shall constitute one
and the same agreement.
[Remainder of this page left blank intentionally]
IN WITNESS WHEREOF, Parent, Purchaser and the Company have caused this
Agreement to be executed as of the date first written above by their respective
officers thereunto duly authorized.
BOSTON SCIENTIFIC CORPORATION
By /s/ ▇▇▇▇▇▇▇▇ ▇. Best
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Name: ▇▇▇▇▇▇▇▇ ▇. Best
Title: Senior Vice President -
Finance & Administration
and Chief Financial Officer
NEMO I ACQUISITION, INC.
By /s/ ▇▇▇▇▇▇▇▇ ▇. Best
--------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. Best
Title: President
RUBICON MEDICAL CORPORATION
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President/CEO