REGISTRATION RIGHTS AGREEMENT
Exhibit 10.3
This Registration Rights Agreement (the “Agreement”) made effective as of the
_____
day of
_____, 2009 is entered into by and among MiMedx Group, Inc., a Florida corporation
(the “Company”), and certain persons and entities holding securities of the Company who
sign the signature page to this Agreement (individually, an “Investor” and, collectively,
the “Investors”).
WHEREAS, the Company and the Investors have entered into a Subscription and Stock Purchase
Agreement pursuant to a private offering of the Company’s Common Stock pursuant to a Confidential
Term Sheet regarding a proposed “Private Investment in Public Equity” dated September 22, 2009 (the
“Offering”), in connection with which the Company wishes to grant certain registration rights to
the Investors.
NOW, THEREFORE, in consideration of the covenants and agreements set forth herein and for
other good and valuable consideration, the receipt and sufficiency of which are hereby mutually
acknowledged, the parties hereto covenant and agree as follows:
Section 1. Certain Definitions. As used in this Agreement, the following terms shall
have the following respective meanings:
“Affiliate” means with respect to any Investor, any partner or member of such
Investor, or any Person that directly or indirectly controls or is controlled by or is under common
control with, such Investor.
“Articles of Incorporation” means the Company’s Articles of Incorporation in effect on
the date hereof and as amended, modified or restated from time to time.
“Blue Sky Application” has the meaning ascribed to such term in Section 4(a) hereof.
“Commission” means the Securities and Exchange Commission or any other federal agency
at the time administering the Securities Act and the Exchange Act.
“Common Stock” means the common stock of the Company and any other securities into
which or for which any of the common stock of the Company may be converted or exchanged pursuant to
a stock split, stock dividend, plan of recapitalization, reorganization, merger, consolidation,
sale of assets or other similar transaction.
“Exchange Act” means the Securities Exchange Act of 1934, or any similar or successor
federal statute, and the rules and regulations of the Commission thereunder, all as the same shall
be in effect from time to time.
“Form X-0, X-0 and SB-2” means Forms X-0, X-0 and SB-2, as the case may be,
promulgated under the Securities Act and as in effect on the date hereof or any similar or
successor forms promulgated under the Securities Act or adopted by the Commission.
“Offering” has the meaning ascribed to such term in the Preamble hereto.
“Person” means an individual, corporation, limited liability company, partnership,
joint venture, trust, or unincorporated organization, or a government or any agency or political
subdivision thereof.
“Registrable Shares” means the Common Stock issued to the Investors pursuant to the
Offering, excluding, however, any Common Stock issuable upon exercise of the warrants issued in the
Offering.
“Registration Expenses” has the meaning ascribed to such term in Section 7 hereof.
“Rule 144” means Rule 144 promulgated under the Securities Act or any similar or
successor rule.
“Rule 145” means Rule 145 promulgated under the Securities Act or any similar or
successor rule.
“Securities Act” means the Securities Act of 1933, or any similar or successor federal
statute, and the rules and regulations of the Commission thereunder, all as the same shall be in
effect from time to time.
“Selling Expenses” has the meaning ascribed to such term in Section 7 hereof.
Section 2. “Piggy-Back” Registrations.
(a) If the Company at any time after the issuance of the Common Stock to the undersigned
Investors after completion of the Offering, at a time when its equity securities are registered
under Section 12 of the Exchange Act, proposes to register under the Securities Act any of its
securities, whether for its own account or for the account of other security holders or both
(except with respect to registration statements on Forms X-0, X-0 or any successor to such forms or
another form not available for registering the Registrable Shares for sale to the public or any
registration statement including only securities issued pursuant to a dividend reinvestment plan),
each such time it will promptly give written notice to all holders of Registrable Shares of its
intention so to do. Upon the written request of any such holder, received by the Company within 20
days after the giving of any such notice by the Company, to register any or all of its Registrable
Shares, the Company will use its commercially reasonable efforts to cause the Registrable Shares as
to which registration shall have been so requested to be included in the securities to be covered
by the registration statement proposed to be filed by the Company, all to the extent requisite to
permit the sale or other disposition by the holder (in accordance with its written request) of such
Registrable Shares so registered. The Company shall be obligated to include in such registration
statement only such limited portion of Registrable Shares with respect to which such holder has
requested inclusion hereunder.
(b) If the registration of which the Company gives notice as provided above is for a
registered public offering involving an underwriting, the Company shall so advise the holders of
Registrable Shares as a part of the written notice given pursuant to this Section 2. In such event
the right of any holder of Registrable Shares to registration pursuant to this Section 2 shall be
conditioned upon such holder’s participation in such underwriting to the extent provided herein.
All holders of Registrable Shares proposing to distribute their securities through such
underwriting shall (together with the shares of Common Stock to be registered by the Company and
shares of Common Stock held by Persons who by virtue of agreements with the Company are entitled to
include shares in such registration) enter into an underwriting agreement in customary form with
the underwriter or underwriters selected for underwriting by the Company. If any holder of
Registrable Shares disapproves of the terms of any such underwriting, that holder may elect to
withdraw therefrom by timely written notice to the Company and the underwriter. Any Registrable
Shares or other securities excluded or withdrawn from such underwriting shall be withdrawn from
such registration.
(c) Notwithstanding any other provision of this Section 2, if the underwriter determines that
marketing factors require a limitation on the number of shares to be underwritten or if the
Commission imposes such a limitation, such limitation will be imposed pro rata with respect to all
securities whose holders have a contractual, incidental (“Piggy-Back”) right to include
such securities in the registration statement and as to which inclusion has been requested pursuant
to such right, provided, however, that no such reduction shall reduce the number of securities held
by holders of Registrable Shares proposing to distribute their securities through such underwriting
if any securities are to be included in such underwriting for the account of any Person other than
the Company or holders of Registrable Shares other than a holder exercising a demand or required
registration right.
(d) Notwithstanding the foregoing provisions, the Company may withdraw any registration
statement referred to in this Section 2 without thereby incurring any liability to the holders of
Registrable Shares.
Section 3. Expiration of Obligations. The obligations of the Company to register
Registrable Shares pursuant to Section 2 of this Agreement shall expire on the first to occur of
(i) the date when the holder
of such shares shall be able to sell its Registrable Shares under Rule 144, or (ii) when no
Registrable Shares are outstanding.
- 2 -
Section 4. Indemnification; Procedures; Contribution.
(a) In the event that the Company registers any of the Registrable Shares under the Securities
Act in accordance with this Agreement, the Company will, to the extent permitted by law, indemnify
and hold harmless each holder and each underwriter of the Registrable Shares (including their
officers, directors, affiliates and partners) so registered (including any broker or dealer through
whom such shares may be sold) and each Person, if any, who controls such holder or any such
underwriter within the meaning of Section 15 of the Securities Act from and against any and all
losses, claims, damages, expenses or liabilities, joint or several, to which they or any of them
become subject under the Securities Act or under any other statute or at common law or otherwise,
and, except as hereinafter provided, will reimburse each such holder, each such underwriter and
each such controlling Person, if any, for any legal or other expenses reasonably incurred by them
or any of them in connection with investigating or defending any actions whether or not resulting
in any liability, insofar as such losses, claims, damages, expenses, liabilities or actions arise
out of or are based upon (i) any untrue statement or alleged untrue statement of any material fact
contained in the registration statement, any filing with any state or federal securities commission
or agency or any prospectus, offering circular or other document created or approved by the Company
incident to such registration (including any related notification, registration statement under
which such Registrable Shares were registered under the Securities Act pursuant to Section 2 of
this Agreement, any preliminary prospectus or final prospectus contained therein, or any amendment
or supplement thereof), (ii) any blue sky application or other document executed by the Company
specifically for that purpose or based upon written information furnished by the Company filed in
any state or other jurisdiction in order to qualify any or all of the Registrable Shares under the
securities laws thereof (any such application, document or information herein called a “Blue
Sky Application”), (iii) any omission or alleged omission to state in any such registration
statement, prospectus, amendment or supplement or in any Blue Sky Application executed or filed by
the Company, a material fact required to be stated therein or necessary to make the statements
therein not misleading, (iv) any violation by the Company or its agents of the Securities Act or
any rule or regulation promulgated under the Securities Act applicable to the Company or its agents
and relating to action or inaction required of the Company in connection with such registration, or
(v) any failure to register or qualify the Registrable Shares in any state where the Company or its
agents has affirmatively undertaken or agreed in writing that the Company (the undertaking of any
underwriter chosen by the Company being attributed to the Company) will undertake such registration
or qualification (provided that in such instance the Company shall not be so liable if it has used
its commercially reasonable efforts to so register or qualify the Registrable Shares) and will
reimburse each such holder, and such officer, director and partner, each such underwriter and each
such controlling Person for any legal or other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, damage, liability or action, promptly after
being so incurred, provided, however, that the Company will not be liable in any such case (i) if
and to the extent that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission so made in conformity
with written information furnished by any holder, any underwriter or any controlling Person in
writing specifically for use in such registration statement or prospectus, or (ii) in the case of a
sale directly by such holder of Registrable Shares (including a sale of such Registrable Shares
through any underwriter retained by such holder of Registrable Shares to engage in a distribution
solely on behalf of such holder of Registrable Shares), such untrue statement or alleged untrue
statement or omission or alleged omission was contained in a preliminary prospectus and corrected
in a final or amended prospectus, and such holder of Registrable Shares failed to deliver a copy of
the final or amended prospectus at or prior to the confirmation of the sale of Registrable Shares
to the Person asserting any such loss, claim, damage or liability in any case where such delivery
is required by the Securities Act or any state securities laws.
- 3 -
(b) In the event of a registration of any of the Registrable Shares under the Securities Act
pursuant to Section 2 of this Agreement, each seller of such Registrable Shares thereunder,
severally and not jointly, will indemnify and hold harmless the Company, each Person, if any, who
controls the Company within the meaning of the Securities Act, each officer of the Company who
signs the registration statement, each
director of the Company, each other seller of Registrable Shares, each underwriter and each
Person who controls any underwriter within the meaning of the Securities Act, against all losses,
claims, damages or liabilities, joint or several, to which the Company or such officer, director,
other seller, underwriter or controlling Person may become subject under the Securities Act or
otherwise, solely insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any prospectus offering circular or other document incident to such
registration (including any related notification, registration statement under which such
Registrable Shares were registered under the Securities Act pursuant to Section 2, any preliminary
prospectus or final prospectus contained therein, or any amendment or supplement thereof), or any
Blue Sky Application 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 will reimburse the Company and each such officer, director, other seller,
underwriter and controlling Person for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage, liability or action,
promptly after being so incurred, provided, however, that such seller will be liable hereunder in
any such case if and only to the extent that any such loss, claim, damage or liability arises out
of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission
made in reliance upon and in conformity with information pertaining to such seller, as such,
furnished in writing to the Company by such seller specifically for use in such registration
statement or prospectus; and provided, further, that the liability of each seller hereunder shall
be limited to the proportion of any such loss, claim, damage, liability or expense which is equal
to the proportion that the public offering price of all securities sold by such seller under such
registration statement bears to the total public offering price of all securities sold thereunder,
but not in any event to exceed the net proceeds received by such seller from the sale of
Registrable Shares covered by such registration statement. Not in limitation of the foregoing, it
is understood and agreed that, except as set forth in Section 4(e), the indemnification obligations
of any seller hereunder pursuant to any underwriting agreement entered into in connection herewith
shall be limited to the obligations contained in this subparagraph (b).
(c) Promptly after receipt by an indemnified party hereunder of notice of the commencement of
any action, such indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party hereunder, notify the indemnifying party in writing thereof, but the omission so
to notify the indemnifying party shall not relieve it from any liability which it may have to such
indemnified party other than under this Section 4 and shall only relieve it from any liability
which it may have to such indemnified party under this Section 4 if and to the extent the
indemnifying party is prejudiced by such omission. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate in and, to the extent it shall
wish, to assume and undertake the defense thereof with counsel satisfactory to such indemnified
party, and, after notice from the indemnifying party to such indemnified party of its election so
to assume and undertake the defense thereof, the indemnifying party shall not be liable to such
indemnified party under this Section 4 for any legal expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable costs of
investigation and of liaison with counsel so selected, provided, however, that, if the defendants
in any such action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be reasonable defenses available
to it which are different from or additional to those available to the indemnifying party or that
the interests of the indemnified party reasonably may be deemed to conflict with the interests of
the indemnifying party, the indemnified party shall have the right to select one separate counsel
and to assume such legal defenses and otherwise to participate in the defense of such action, with
the expenses and fees of such separate counsel and other expenses related to such participation to
be reimbursed by the indemnifying party as incurred. No indemnifying party, in the defense of any
such claim or action, shall, except with the consent of each indemnified party, which consent shall
not be unreasonably withheld or delayed, consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving by the claimant or
plaintiff to such indemnified party of a release from all liability in respect to such claim or
action, and the indemnification agreements contained in Sections 6(a) and 6(b) shall not apply to
any settlement entered into in violation of this sentence. Each indemnified party shall furnish
such information
regarding itself or the claim in question as an indemnifying party may reasonably request in
writing and as shall be reasonably required in connection with defense of such claim and litigation
resulting therefrom.
- 4 -
(d) In order to provide for just and equitable contribution to joint liability under the
Securities Act in any case in which either (i) any holder of Registrable Shares exercising rights
under this Agreement, or any controlling Person of any such holder, makes a claim for
indemnification pursuant to this Section 4 but it is judicially determined (by the entry of a final
judgment or decree by a court of competent jurisdiction and the expiration of time to appeal or the
denial of the last right of appeal) that such indemnification may not be enforced in such case
notwithstanding the fact that this Section 4 provides for indemnification in such case, or (ii)
contribution under the Securities Act may be required on the part of any such selling holder or any
such controlling Person in circumstances for which indemnification is provided under this Section
4, then, and in each such case, the Company and such holder will contribute to the aggregate
losses, claims, damages or liabilities to which they may be subject (after contribution from
others) in such proportion so that such holder is responsible for the portion represented by the
percentage that the public offering price of its Registrable Shares offered by the registration
statement bears to the public offering price of all securities offered by such registration
statement, and the Company is responsible for the remaining portion, provided, however, that, in
any such case, (A) no such holder of Registrable Shares will be required to contribute any amount
in excess of the proceeds received from the sale of all such Registrable Shares offered by it
pursuant to such registration statement and (B) no Person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) will be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation.
(e) Notwithstanding the foregoing, to the extent that the provisions on indemnification and
contribution contained in the underwriting agreement entered into in connection with an
underwritten public offering are in conflict with the foregoing provisions, the provisions in the
underwriting agreement shall control.
(f) The indemnities and obligations provided in this Section 4 shall survive the completion of
any offering of Registrable Shares and the transfer of any Registrable Shares by such holder.
Section 5. Exchange Act Registration and Rule 144 Reporting. With a view to making
available the benefits of certain rules and regulations of the Commission which may at any time
permit the sale of the Registrable Shares to the public without registration, except as provided in
paragraph (iii) below, at all times after 180 days after (i) any registration statement covering a
public offering of securities of the Company under the Securities Act shall have become effective,
or (ii) the Company’s equity securities shall have been registered pursuant to Section 12 of the
Exchange Act, the Company agrees that it will use its commercially reasonable efforts to:
(a) Make and keep public information available, as those terms are understood and defined in
Rule 144, at all times after the date the Company becomes subject to the reporting requirements of
either Section 13 or Section 15(d) of the Exchange Act;
(b) File with the Commission in a timely manner all reports and other documents required of
the Company under the Securities Act and the Exchange Act;
(c) Take such action, including the voluntary registration of its Common Stock under Section
12 of the Exchange Act, as is necessary to enable the holders of Registrable Shares to utilize Form
S-3 for the sale of their Registrable Shares, such action to be taken as soon as practicable after
the end of the fiscal year in which the first registration statement filed by the Company for the
offering of its securities to the general public is declared effective;
- 5 -
(d) Furnish to each holder of Registrable Shares forthwith upon request (A) a written
statement by the Company as to its compliance with the reporting requirements of Rule 144 and, at
any time after it has become subject to such reporting requirements, of the Securities Act and the
Exchange Act, or that
it qualifies as a registrant whose securities may be resold pursuant to Form S-3 (at any time
after the Company so qualifies), (B) a copy of the most recent annual or quarterly report of the
Company and (C) such other information, reports and documents so filed by the Company as such
holder may reasonably request in availing itself of any rule or regulation of the Commission
allowing such holder to sell any Registrable Shares without registration; and
(e) Make available to each Investor the same services with regard to customary Rule 144 legal
opinions as it provides to its affiliates.
Section 6. Registration Procedures.
(a) If and whenever the Company is required by the provisions of Section 2 of this Agreement
to use its commercially reasonable efforts to effect the registration of any Registrable Shares
under the Securities Act, the Company will, as expeditiously as possible:
(i) Prepare and file with the Commission a registration statement with respect to such
securities including executing an undertaking to file post-effective amendments and use its
commercially reasonable efforts to cause such registration statement to become and remain
effective for the period of the distribution contemplated thereby;
(ii) Prepare and file with the Commission such amendments and supplements to such
registration statement and the prospectus used in connection therewith as may be necessary
to keep such registration statement effective for the period specified herein and comply
with the provisions of the Securities Act with respect to the disposition of all Registrable
Shares covered by such registration statement in accordance with the sellers’ intended
method of disposition set forth in such registration statement for such period;
(iii) Furnish to each seller of Registrable Shares and to each underwriter such number
of copies of the registration statement and each such amendment and supplement thereto (in
each case including all exhibits) and the prospectus included therein (including each
preliminary prospectus) as such Persons reasonably may request in order to facilitate the
public sale or other disposition of the Registrable Shares covered by such registration
statement;
(iv) Use its commercially reasonable efforts to register or qualify the Registrable
Shares covered by such registration statement under the securities or “blue sky” laws of
such jurisdictions as the sellers of Registrable Shares or, in the case of an underwritten
public offering, the managing underwriter reasonably shall request, provided that the
Company shall not for any such purpose be required to qualify generally to transact business
as a foreign corporation in any jurisdiction where it is not so qualified or to consent to
general service of process in any such jurisdiction, unless the Company is already subject
to service in such jurisdiction;
(v) Use its commercially reasonable efforts to list the Registrable Shares covered by
such registration statement with any securities exchange or quotation system on which the
Common Stock of the Company is then listed;
(vi) Use its commercially reasonable efforts to comply with all applicable rules and
regulations under the Securities Act and Exchange Act;
(vii) Immediately notify each seller of Registrable Shares and each underwriter under
such registration statement, at any time when a prospectus relating thereto is required to
be delivered under the Securities Act, of the happening of any event of which the Company
has knowledge as a result of which the prospectus contained in such registration statement,
as then in effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances
then existing, and promptly prepare and furnish to such seller a reasonable number of
copies of a prospectus supplemented or amended so that, as thereafter delivered to the
purchasers of such Registrable Shares, such prospectus shall not include an untrue statement
of a material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the circumstances then
existing;
- 6 -
(viii) If the offering is underwritten and at the request of any seller of Registrable
Shares, furnish on the date that Registrable Shares are delivered to the underwriters for
sale pursuant to such registration (i) an opinion, in customary form and dated the effective
date of the registration statement, of counsel representing the Company for the purposes of
such registration, addressed to the underwriters to such effect as reasonably may be
requested by counsel for the underwriters and copies of such opinion addressed to the
sellers of Registrable Shares and (ii) a letter dated such date from the independent public
accountants retained by the Company, addressed to the underwriters stating that they are
independent public accountants within the meaning of the Securities Act and that, in the
opinion of such accountants, the financial statements of the Company included in the
registration statement or the prospectus, or any amendment or supplement thereof, comply as
to form in all material respects with the applicable accounting requirements of the
Securities Act and such letter shall additionally cover such other financial matters
(including information as to the period ending no more than five business days prior to the
date of such letter) with respect to such registration as such underwriters reasonably may
request;
(ix) Upon reasonable notice and at reasonable times during normal business hours, make
available for inspection by each seller of Registrable Shares, any underwriter participating
in any distribution pursuant to such registration statement, and any attorney, accountant or
other agent retained by such seller or underwriter, reasonable access to all financial and
other records, pertinent corporate documents and properties of the Company, as such parties
may reasonably request, and cause the Company’s officers, directors and employees to supply
all information reasonably requested by any such seller, underwriter, attorney, accountant
or agent in connection with such registration statement;
(x) Cooperate with the selling holders of Registrable Shares and the managing
underwriter, if any, to facilitate the timely preparation and delivery of certificates
representing Registrable Shares to be sold, such certificates to be in such denominations
and registered in such names as such holders or the managing underwriter may request at
least two business days prior to any sale of Registrable Shares; and
(xi) Permit any holder of Registrable Shares which holder, in the sole and exclusive
judgment, exercised in good faith, of such holder, might be deemed to be a controlling
Person of the Company, to participate in good faith in the preparation of such registration
or comparable statement and to require the insertion therein of material, furnished to the
Company in writing, which in the reasonable judgment of such holder and its counsel should
be included.
(b) For purposes of this Agreement, the period of distribution of Registrable Shares in a firm
commitment underwritten public offering shall be deemed to extend until each underwriter has
completed the distribution of all securities purchased by it, and the period of distribution of
Registrable Shares in any other registration shall be deemed to extend until the earlier of the
sale of all Registrable Shares covered thereby or 180 days after the effective date thereof,
provided, however, in the case of any registration of Registrable Shares on Form S-3 or a
comparable or successor form which are intended to be offered on a continuous or delayed basis,
such 180 day-period shall be extended, if necessary, to keep the registration statement effective
until all such Registrable Shares are sold, provided that Rule 415, or any successor or similar
rule promulgated under the Securities Act, permits the offering to be conducted on a continuous or
delayed basis, and provided further that applicable rules under the Securities Act governing the
obligation to file a post-effective amendment, permit, in lieu of filing a post-effective amendment
which (y) includes any prospectus required by Section 10(a)(3) of the Securities Act or (z)
reflects facts or events representing a
material or fundamental change in the information set forth in the registration statement, the
incorporation by reference of information required to be included in (y) and (z) above contained in
periodic reports filed pursuant to Section 13 or 15(d) of the Exchange Act in the registration
statement.
- 7 -
(c) Whenever under the preceding Sections of this Agreement the holders of Registrable Shares
are registering such shares pursuant to any registration statement, each such holder agrees to (i)
timely provide in writing to the Company, at its request, such information and materials as the
Company may reasonably request in order to effect the registration of such Registrable Shares in
compliance with federal and applicable state securities laws, and (ii) provide the Company with
appropriate representations with respect to the accuracy of such information provided by such
Sellers pursuant to subsection (i).
Section 7. Expenses. In the case of any registration statement under Section 2 of
this Agreement, the Company shall bear all costs and expenses of each such registration, including,
but not limited to, all registration and filing fees, printing expenses, fees and disbursements of
counsel and independent public accountants for the Company, fees and expenses (including counsel
fees) incurred in connection with complying with state securities or “blue sky” laws, fees of the
National Association of Securities Dealers, Inc. (as any successor thereto), transfer taxes, fees
of transfer agents and registrars, costs of any insurance which might be obtained by the Company
with respect to the offering by the Company and the reasonable fees and disbursements of one
counsel selected by a majority in interest of the sellers of Registrable Shares (collectively,
“Registration Expenses”). The Company shall have no obligation to pay or otherwise bear
any portion of the underwriters’ commissions or discounts attributable to the Registrable Shares
(“Selling Expenses”). All Selling Expenses in connection with each registration statement
under Section 2 of this Agreement shall be borne by the participating sellers (including the
Company, where applicable) in proportion to the number of shares registered by each, or by such
participating sellers other than the Company (to the extent the Company shall be a seller) as they
may agree.
Section 8. Delay of Registration. For a period not to exceed 180 days, the Company
shall not be obligated to prepare and file, or be prevented from delaying or abandoning, a
registration statement pursuant to this Agreement at any time when the Company furnishes to holders
of Registrable Shares that have requested to have such Registrable Shares included in a
registration statement covered by the terms of this Agreement a certificate signed by the President
of the Company stating that in the good faith judgment of the Board of Directors of the Company the
filing thereof at the time requested, or the offering of Registrable Shares pursuant thereto, would
be seriously detrimental to the Company or its stockholders, or materially and adversely affect (a)
a pending or scheduled public offering of the Company’s securities, (b) an acquisition, merger,
recapitalization, consolidation, reorganization or similar transaction by or of the Company,
(c) pre-existing and continuing negotiations, discussions or pending proposals with respect to any
of the foregoing transactions, or (d) the financial condition of the Company in view of the
disclosure of any pending or threatened litigation, claim, assessment or governmental investigation
which may be required thereby, and that the failure to disclose any material information with
respect to the foregoing would cause a violation of the Securities Act or the Exchange Act.
Section 9. Conditions to Registration Obligations. The Company shall not be obligated
to effect the registration of Registrable Shares pursuant to Section 2 of this Agreement unless all
holders of shares being registered consent to reasonable conditions imposed by the Company as the
Company shall determine with the advice of counsel to be required by law including, without
limitation:
(a) Conditions prohibiting the sale of shares by such holders until the registration shall
have been effective for a specified period of time;
(b) Conditions requiring such holder to comply with all prospectus delivery requirements of
the Securities Act and with all anti-stabilization, anti-manipulation and similar provisions of
Section 10 of the Exchange Act and any rules issued thereunder by the Commission, and to furnish to
the Company information about sales made in such public offering;
- 8 -
(c) Conditions prohibiting such holders upon receipt of telegraphic or written notice from the
Company (until further notice) from effecting sales of shares, such notice being given to permit
the Company to correct or update a registration statement or prospectus;
(d) Conditions requiring that at the end of the period during which the Company is obligated
to keep the registration statement effective, the holders of shares included in the registration
statement shall discontinue sales of shares pursuant to such registration statement upon receipt of
notice form the Company of its intention to remove from registration the shares covered by such
registration statement that remain unsold, and requiring such holders to notify the Company of the
number of shares registered that remain unsold immediately upon receipt of notice from the Company;
and
(e) Conditions requiring the holders of Registrable Shares to enter into an underwriting
agreement in form and substance reasonably satisfactory to the Company and the holders of
Registrable Shares.
Section 10. Miscellaneous.
(a) No failure or delay on the part of any party to this Agreement in exercising any right,
power or remedy hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right, power or remedy preclude any other or further exercise thereof or the
exercise of any other right, power or remedy hereunder. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
(b) Except as hereinafter provided, amendments or additions to this Agreement may be made,
this Agreement may be terminated, and compliance with any covenant or provision set forth herein
may be omitted or waived, only with the written consent of the Company and the holder or holders of
at least a majority in interest of the Registrable Shares; provided, however, that any modification
or amendment that affects any such holder in a manner different from the effect on the other
holders of Registrable Shares shall require the affirmative approval of such holder. Any waiver or
consent may be given subject to satisfaction of conditions stated therein and any waiver or consent
shall be effective only in the specific instance and for the specific purpose for which given.
Notwithstanding the foregoing, this Agreement may be amended to add new parties and/or Registrable
Shares the Company consents thereto and any new party executes and delivers to the Company a copy
of the signature page hereto.
(c) All notices, requests, consents and other communications hereunder shall be in writing,
shall be addressed to the receiving party’s address set forth below or to such other address as a
party may designate by notice hereunder, and shall be either (i) delivered by hand, (ii) made by
telecopy or facsimile transmission, (iii) sent by overnight courier, or (iv) sent by registered or
certified mail, return receipt requested, postage prepaid:
| If to the Company to: | MiMedx Group, Inc. | |||
| 000 Xxxxxxxxxx Xxxxx. XX, Xxxxx X | ||||
| Xxxxxxxx, Xxxxxxx 00000 | ||||
| Attn: General Counsel | ||||
| Fax No: (000) 000-0000 | ||||
| If to any Investor to: | The address of such Investor as set forth in the records of the Company |
All notices, requests, consents and other communications hereunder shall be deemed to have
been given either (i) if by hand, at the time of the delivery thereof to the receiving party at the
address of such party set forth above, (ii) if made by telecopy or facsimile transmission, at the
time that receipt thereof has been acknowledged by electronic confirmation or otherwise, (iii) if
sent by overnight courier, on the next business
day following the day such notice is delivered to the courier service, or (iv) if sent by
registered or certified mail, on the fifth business day following the day such mailing is made.
- 9 -
(d) This Agreement constitutes the entire agreement between the parties and supersede any
prior understandings or agreements concerning the subject matter hereof.
(e) In the event that any court of competent jurisdiction shall determine that any provision,
or any portion thereof, contained in this Agreement shall be unenforceable in any respect, then
such provision shall be deemed limited to the extent that such court deems it enforceable, and as
so limited shall remain in full force and effect. In the event that such court shall deem any such
provision, or portion thereof, wholly unenforceable, the remaining provisions of this Agreement
shall nevertheless remain in full force and effect.
(f) The parties hereto acknowledge and agree that (i) each party and its counsel, if so
represented, reviewed and negotiated the terms and provisions of this Agreement and have
contributed to its revision and (ii) the rule of construction to the effect that any ambiguities
are resolved against the drafting party shall not be employed in the interpretation of this
Agreement.
(g) All statements, representations, warranties, covenants and agreements in this Agreement
shall be binding on the parties hereto and shall inure to the benefit of the respective successors
and permitted assigns of each party hereto.
(h) This Agreement and the rights and obligations of the parties hereunder shall be construed
in accordance with and governed by the law of the State of Florida without giving effect to the
conflict of law principles thereof.
(i) Any legal action or proceeding with respect to this Agreement may be brought in the courts
of the State of Florida or of the United States of America for the District of Florida. By
execution and delivery of this Agreement, each of the parties hereto accepts for itself and in
respect of its property, generally and unconditionally, the jurisdiction of the aforesaid courts.
Each of the parties hereto irrevocably consents to the service of process of any of the
aforementioned courts in any such action or proceeding by the mailing of copies thereof by
certified mail, postage prepaid, to the party at its address set forth in Section 10(c) hereof.
(j) In the event of any change in the Common Stock or other securities covered hereunder, by
way of a stock split, stock dividend, combination or redemption, or through merger, consolidation,
reorganization or otherwise, appropriate adjustment shall be made in the provisions hereof,
including, without limitation, an equitable adjustment of to the number of Registrable Shares. For
purposes of determining the number of shares held by any Investor, all shares held by any Affiliate
of such Investor shall be deemed to be held by such Investor.
(k) No failure or delay by a party hereto in exercising any right, power or remedy under this
Agreement, and no course of dealing among the parties hereto, shall operate as a waiver of any such
right, power or remedy of the party. No single or partial exercise of any right, power or remedy
under this Agreement by a party hereto, nor any abandonment or discontinuance of steps to enforce
any such right, power or remedy, shall preclude such party from any other or further exercise
thereof or the exercise of any other right, power or remedy hereunder. The election of any remedy
by a party hereto shall not constitute a waiver of the right of such party to pursue other
available remedies. No notice to or demand on a party not expressly required under this Agreement
shall entitle the party receiving such notice or demand to any other or further notice or demand in
similar or other circumstances or constitute a waiver of the rights of the party giving such notice
or demand to any other or further action in any circumstances without such notice or demand.
(l) The headings and captions of the various subdivisions of this Agreement are for
convenience of reference only and shall in no way modify or affect the meaning or construction of
any of the terms or provisions hereof.
(m) This Agreement may be executed in any number of counterparts, all of which taken together
shall constitute one and the same instrument, and any of the parties hereto may execute this
Agreement by signing any such counterparts.
[Signatures contained on the following pages]
- 10 -
IN WITNESS WHEREOF, the parties hereto have executed this Registration Rights Agreement or
caused this Registration Rights Agreement to be executed by their duly authorized representatives
as of the date first above written.
| COMPANY: | ||||||
| MiMedx Group, Inc. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
[Investors’ signatures contained on the following pages]
- 11 -
The undersigned, desiring to become a party as an Investor to the Registration Rights
Agreement effective as of , 2009, by and among MiMedx Group, Inc. and the Investors
(as defined therein) (the “Registration Rights Agreement”), hereby accepts, adopts, and agrees to
be bound by all terms, conditions, and representations set forth in the Registration Rights
Agreement and, by executing this Counterpart Signature Page, hereby authorizes this Counterpart
Signature Page to be attached to and become part of the Registration Rights Agreement.
Executed under seal as of this
_____
day of , 2009.
| Signature for Corporate, Partnership, or other Equity Investor: |
Signature for Individual Investor: | |||||||||||
| (Print Name of Entity) | (Signature) | |||||||||||
By:
|
Print Name: | |||||||||||
| Print Name: | ||||||||||||
| Print Title: | ||||||||||||
- 12 -
