EXHIBIT C
EXECUTION COPY REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made as of July
28, 1995 by and between i-STAT Corporation, a Delaware corporation (the
"Company"), and Hewlett-Packard Company ("HP").
RECITALS
WHEREAS, the Company and HP are parties to a Stock Purchase Agreement
dated June 23, 1995 (the "Purchase Agreement"), pursuant to which, among other
things, HP will acquire certain shares of the Company's Series B Preferred Stock
(the "Series B Preferred"); and
WHEREAS, the Company is granting to HP certain demand and piggyback
registration rights in connection with HP's purchase of the Series B Preferred
pursuant to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, the parties hereto agree as follows:
1. Certain Definitions. As used in this Agreement, the following terms
shall have the following respective meanings:
"Commission" shall mean the Securities and Exchange Commission or
any other federal agency at the time administering the Securities Act.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any similar federal statute and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"Register," "registered" and "registration" refer to a registration
effected by preparing and filing a registration statement in compliance with the
Securities Act, and the declaration or ordering of the effectiveness of such
registration statement.
"Registrable Securities" shall mean (i) shares of the Company's
Common Stock issued or issuable pursuant to the conversion of the Series B
Preferred, (ii) any shares of Common Stock or other capital stock of the Company
acquired by HP subsequent to the date hereof and prior to the date the Company
has effected a registration pursuant to Section 2 of this Agreement and such
registration has been declared or ordered effective and the securities offered
have been sold, and (iii) any shares of Common Stock or other capital stock of
the Company issued or issuable in respect of the shares of the Company's Common
Stock or other securities described in clauses (i) and (ii) upon any stock
split, stock dividend, recapitalization, or similar event.
"Registration Expenses" shall mean all expenses incurred by the
Company in complying with Sections 2 and 3 hereof, including, without
limitation, all registration, qualification and filing fees, printing expenses,
escrow fees, fees and disbursements of counsel for the Company, including fees
and disbursements of such counsel in representing HP, blue sky fees and expenses
and the expense of any special audits incident to or required by any such
registration (but excluding the compensation of regular employees of the Company
which shall be paid in any event by the Company).
"Securities Act" shall mean the Securities Act of 1933, as amended,
or any similar federal statute and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Selling Expenses" shall mean all underwriting discounts, selling
commissions and stock transfer taxes applicable to the Registrable Securities
registered by HP.
2. Requested Registration.
(a) Request for Registration. In case the Company shall receive from
HP a written request that the Company effect any registration, qualification or
compliance with respect to any of the Registrable Securities, the Company shall,
as soon as practicable, use its best efforts to effect such registration,
qualification or compliance (including, without limitation, appropriate
qualification under applicable blue sky or other state securities laws and
appropriate compliance with applicable regulations issued under the Securities
Act and any other governmental requirements or regulations) on Form S-3, or if
Form S-3 is not available then on Form S-1 (or any successor forms of
registration statements to such Forms S-3 or S-1 or other available registration
statements) as may be so requested and as would permit or facilitate the sale
and distribution of the Registrable Securities for which registration is
requested. Notwithstanding the foregoing, the Company shall not be obli- gated
to file a registration statement to effect any such registration, qualification
or compliance pursuant to this Section 2:
(i) unless the amount of Registrable Securities for which
registration is requested is at least 712,900 shares (as adjusted for any stock
split, stock dividend, recapitalization or similar event) and the fair market
value (based on the Average Market Price as such term is defined in the Purchase
Agreement) of such securities is at least $15,000,000, except that if the total
number of Registrable Securities held by HP (but not a transferee of HP) is less
than 712,900 (as adjusted) or the value of such shares is less than $15,000,000,
then HP (but not a transferee of HP) may request registration as to all but not
less than all of such Registrable Securities under this Section 2;
notwithstanding the foregoing, if the offering of securities made under this
Section 2(a)(i) is underwritten and the underwriter determines that marketing
factors require a limitation of the number of shares to be underwritten, then HP
shall be entitled to register such limited number of shares; or
(ii) during the twelve (12) month period beginning on the
closing date of any registration, qualification or compliance effected pursuant
to this Section 2, provided that the securities offered under such registration,
qualification or compliance have been sold.
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(b) Underwriting. If the offering of securities made under this
Section 2 is underwritten, the Company shall (together with HP) enter into an
underwriting agreement in customary form with the managing underwriter selected
for such underwriting by HP, but subject to the Company's reasonable approval.
Notwithstanding any other provision of this Section 2, if the underwriter
determines that marketing factors require a limitation of the number of shares
to be under- written, the managing underwriter may limit the number of
Registrable Securities to be included in such registration.
3. Company Registration.
(a) Notice of Registration. If at any time the Company shall
determine to register any of its securities, either for its own account or the
account of a security holder or holders exercising their respective demand
registration rights, other than (i) a registration relating solely to employee
benefit plans on Form S-8, or (ii) a registration on Form S-4 relating solely to
a Commission Rule 145 transaction, the Company will:
(i) promptly give HP written notice thereof; and
(ii) include in such registration (and any related
qualification under blue sky laws or other compliance), and in any underwriting
involved therein, all Registrable Securities specified in a written request made
within 15 Business Days (as such term is defined in the Purchase Agreement)
after receipt of such written notice by HP.
(b) Underwriting. In the event the Company gives notice of a
registered public offering pursuant to this Section 3 involving an underwriting,
the Company shall so advise HP as a part of the written notice given pursuant to
Section 3(a). In such event HP's right to registration pursuant to this Section
3 shall be conditioned upon HP's participation in such underwriting and the
inclusion of Registrable Securities in the underwriting shall be subject to the
limitations provided herein. HP shall (together with the Company) enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting by the Company. Notwithstanding any other
provision of this Section 3, if the underwriter determines that marketing
factors require a limitation of the number of shares to be underwritten, the
managing underwriter may limit the number of Registrable Securities to be
included in such registration and underwriting for the account of HP to not less
than 30% of the total value of the securities to be distributed through such
registration and underwriting.
4. Black Out. In the event the Company determines to register securities
in an offering, whether pursuant to an underwritten public equity offering or an
acquisition, the Company on the advice of its underwriters shall notify HP and
(a) may request that HP refrain from selling Registrable Securities under Rule
144 of the Securities Act ("Rule 144"), and (b) shall not be obligated to file a
registration statement to effect any registration, qualification or compliance
pursuant to Section 2(a); for a period of up to 120 days from the date of such
notice (the "Black Out Period"). During any such Black Out Period, HP shall
still be entitled to register shares pursuant to Section 3 of this Agreement.
notwithstanding the foregoing, (i) the Company shall not be entitled to declare
a Black Out Period prior to twelve months from the end of a previous Black Out
Period, and
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(ii) the Black Out Period shall end immediately upon the consummation of the
underwritten public equity offering or acquisition, or the Company's decision to
no longer pursue any such transaction.
5. Expenses of Registration. All Registration Expenses incurred in
connection with a registration pursuant to Sections 2 and 3 shall be borne by
the Company. All Selling Expenses relating to Registrable Securities which are
registered shall be borne by HP. Notwithstanding the foregoing, after (i) the
Company has effected two (2) registrations pursuant to Section 2 and (ii) all
such registrations have been declared or ordered effective and the securities
offered have been sold, HP shall bear all Registration Expenses and Selling
Expenses incurred in connection with any subsequent requested registration
pursuant to Section 2.
6. Registration Procedures. In the case of each registration,
qualification or compliance effected by the Company pursuant to this Agreement,
the Company will keep HP advised in writing, if HP is participating in such
registration, as to the initiation of each registration, qualification and
compliance and as to the completion thereof. At its expense the Company will:
(a) Prepare and file with the Commission a registration statement
with respect to such securities and use all reasonable efforts to cause such
registration statement to become and remain effective for at least 60 days or
until the distribution described in the registration statement has been
completed, whichever first occurs;
(b) Furnish to HP, if HP is participating in such registration, such
reasonable number of copies of the registration statement, preliminary
prospectus, final prospectus and such other documents as HP may reasonably
request, including correspondence with the Commission and any exchanges on which
Registrable Securities are listed; and
(c) Notify HP, if HP is participating in such registration, of any
updates or amendments to the prospectus and furnish to HP any such updated
and/or amended prospectuses.
7. Indemnification.
(a) The Company will indemnify HP, each of its officers, directors,
employees and agents, and each person controlling HP within the meaning of the
Securities Act (the "Affiliates"), with respect to any registration,
qualification or compliance which has been effected pursuant to this Agreement,
and each underwriter, if any, and each person who controls any underwriter
within the meaning of Section 15 of the Securities Act (the "Underwriters"),
against all expenses, claims, losses, damages or liabilities (or actions in
respect thereof), including any of the foregoing incurred in settlement of any
litigation, commenced or threatened, arising out of or based on any untrue
statement (or alleged untrue statement) of a material fact contained in any
registration statement, prospectus, offering circular or other document, or any
amendment or supplement thereto, incident to any such registration,
qualification or compliance, or based on any omission (or alleged omission) to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances in which they were made,
not misleading, or any violation by the Company of the Securities Act or any
state securities law or any rule or regulation promulgated thereunder applicable
to the Company in connection with any such registration,
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qualification or compliance, and the Company will reimburse HP, such directors,
officers, employees, agents and control persons, and each such underwriter and
each person who controls any such underwriter, for any legal and any other ex-
penses reasonably incurred in connection with investigating, preparing or
defending any such claim, loss, damage, liability or action, provided that the
Company will not be liable in any such case to the extent that any such claim,
loss, damage, liability or expense arises out of or is based on any untrue
statement or omission or alleged untrue statement or omission, made in reliance
upon and in conformity with written infor- mation furnished to the Company by an
instrument duly executed by HP and stated to be specifically for use therein.
(b) HP will, if Registrable Securities are included in a
registration, qualification or compliance being effected, indemnify the Company,
each of its officers, directors, employees and agents, each underwriter, if any,
of the Company's securities covered by such a registration statement, and each
person who controls the Company or such underwriter within the meaning of
Section 15 of the Securities Act, against all claims, losses, damages and
liabilities (or actions in respect thereof), including any of the foregoing
incurred in settlement of any litigation commenced or threatened, arising out of
or based on any untrue statement (or alleged untrue statement) of a material
fact contained in any such registration statement, prospectus, offering circular
or other document, or any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse the Company, such directors,
officers, employees, agents and control persons, and each such under- writer and
each person who controls such underwriter for any legal or any other expenses
reasonably incurred in connection with investigating or defending any such
claim, loss, damage, liability or action, in each case to the extent, but only
to the extent, that such untrue statement (or alleged untrue statement) or
omission (or alleged omission) is made in such registration statement,
prospectus, offering circular or other document incident to any such
registration, qualification or compliance in reliance upon and in conformity
with written information furnished to the Company by an instrument duly executed
by HP and the Affiliates and stated to be specif- ically for use therein.
Notwithstanding the foregoing, the liability of HP under this subsection (b)
shall be limited in an amount equal to the public offering price of the shares
sold by HP, unless such liability arises out of or is based on willful
misconduct by HP.
(c) Each party entitled to indemnification under this Section 7 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and the
Indemnifying Party shall have the option to assume the defense of any such claim
or any litigation resulting therefrom, provided that counsel for the In-
demnifying Party, who shall conduct the defense of such claim or litigation,
shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld), and the Indemnified Party may participate in such
defense at such party's expense, and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Agreement unless the failure to
give such notice is materially prejudicial to an Indemnifying Party's ability to
defend such action and provided further, that the Indemnifying Party shall not
assume the defense for matters as to which there is a conflict of interest or
separate and different defenses. In the event of a conflict of interest or
separate or different defenses as determined in the reasonable
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opinion of counsel to the Indemnified Party, the Indemnifying Party will pay the
legal fees and expenses of the Indemnified Party. No claim may be settled
without the consent of the Indemnifying Party (which consent shall not be
unreasonably withheld). No Indemnifying Party, in the defense of any such claim
or litigation, shall, except with the consent of each Indemnified Party, 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
litigation.
8. Information by HP. HP shall furnish to the Company such information
regarding Registrable Securities being included in any registration,
qualification or compliance and the distribution proposed by HP as the Company
may request in writing and as shall be required in connection with any
registration, qualification or compliance referred to in this Agreement.
9. 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 Registrable Securities to the public without registration, the Company
agrees to use its best efforts to:
(a) Make and keep public information available, as those terms are
understood and defined in Rule 144;
(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; and
(c) So long as HP owns any Registrable Securities, to promptly
furnish to HP (i) upon request a written statement by the Company as to its
compliance with the reporting requirements of Rule 144, and of the Securities
Act and the Exchange Act, (ii) a copy of the most recent annual or quarterly
report of the Company, and such other publicly available reports and documents
of the Company and (iii) other information in the possession of or reasonably
obtainable by the Company as HP may reasonably request in availing itself of any
rule or regulation of the Commission allowing HP to sell any such securities
without registration.
10. Transfer of Registration Rights. The rights to cause the Company to
register securities granted HP under Sections 2 and 3 (and any other associated
rights or benefits described herein in connection with the right to register
securities) may be transferred or assigned in connection with any transfer or
assignment of Registrable Securities by HP other than in a sale under Rule 144
or a registration effected pursuant to Sections 2 or 3 of this Agreement.
11. Amendment. Any provision of this Agreement may be amended or the
observance thereof may be waived (either generally or in a particular instance
and either retroactively or prospectively), only with the written consent of
both parties.
12. Termination of Registration Rights. The rights granted to HP pursuant
to this Agreement shall terminate at such time as HP can sell all of its
remaining Registrable Securities within a single three-month period pursuant to
Rule 144; provided, however, that if the Company alleges that HP committed a
"material breach" of Sections 7.1, 7.2, 7.4, 7.5, 7.7 or 7.9 of the
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Purchase Agreement, after the Company shall have delivered written notice of any
such alleged default to HP and HP shall not have cured any such default within
thirty days after the delivery of such notice, and the Company and HP cannot
agree whether or not HP committed a "material breach" of any of Sections 7.1,
7.2, 7.4, 7.5, 7.7 or 7.9, then Section 5 of this Agreement shall be deemed
amended to require the Company and HP to split equally the Registration Expenses
for any subsequent registration effected under Section 2 of this Agreement. If
the Company and HP agree that HP committed a "material breach" of Sections 7.1,
7.2, 7.4, 7.5, 7.7 or 7.9 of the Purchase Agreement, then Section 5 of this
Agreement shall be deemed amended to require Purchaser to pay the Registration
Expenses and Selling Expenses for any subsequent registration effected under
Section 2 of this Agreement.
13. Governing Law. This Agreement and the legal relations between the
parties arising hereunder shall be governed by and interpreted in accordance
with the laws of the State of New York. The parties hereto agree to submit to
the jurisdiction of the federal and state courts of the State of New York with
respect to the breach or interpretation of this Agreement or the enforcement of
any and all rights, duties, liabilities, obligations, powers, and other
relations between the parties arising under this Agreement.
14. Entire Agreement. This Agreement constitutes the full and entire
understanding and agreement between the parties regarding rights to
registration. Except as otherwise expressly provided herein, the provisions
hereof shall inure to the benefit of, and be binding upon the successors,
assigns, heirs, executors and administrators of the parties hereto.
15. Notices and Dates. Any notice and other communication given under this
Agreement shall be sufficient if in writing and delivered by hand, by messenger
or by courier, or transmitted by facsimile, to a party at its address set forth
below (or at such other address as shall be designated for such purpose by such
party in a written notice to the other party hereto):
if to the Company, at:
i-STAT Corporation
000X Xxxxxxx Xxxx
Xxxx Xxxxxxxxx, XX 00000
Attention: President
Facsimile No.: (000) 000-0000
with a copy addressed as set forth above but to the attention of:
Paul, Hastings, Xxxxxxxx & Xxxxxx
0000 Xxxxxxxxxx Xxxxxxxxx Xxxxxxxx,
XX 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
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if to HP, at:
Hewlett-Packard Company
0000 Xxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attention: Director, Corporate Development
Facsimile No.: (000) 000-0000
with a copy addressed as set forth above but to the attention of:
General Counsel
Facsimile No.: (000) 000-0000
Each such notice or other communication shall for all purposes of this
Agreement be treated as effective or having been given when delivered if
delivered personally, by messenger or by courier, or if sent by facsimile, upon
confirmation of receipt.
16. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
IN WITNESS WHEREOF, the undersigned have executed this Registration Rights
Agreement as of the date set forth above.
i-STAT CORPORATION
By: __________________________________
Name: _______________________________
Title: ______________________________
HEWLETT-PACKARD COMPANY
By: __________________________________
Name: Xxxx X. Xxxxxxxx
Title: Vice President and
General Manager
Medical Products Group
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