EX-10.1 3 d638001dex101.htm EX-10.1 EXECUTION VERSION HEARTWARE INTERNATIONAL, INC. REGISTRATION RIGHTS AGREEMENT Dated as of December 1, 2013 REGISTRATION RIGHTS AGREEMENT
Exhibit 10.1
EXECUTION VERSION
HEARTWARE INTERNATIONAL, INC.
Dated as of December 1, 2013
REGISTRATION RIGHTS AGREEMENT, dated as of December 1, 2013 (as it may be amended from time to time, this “Agreement”), among HeartWare International, Inc., a Delaware corporation (“Parent”), each of the stockholders of CircuLite, Inc., a Delaware corporation (the “Company”), executing and delivering a signature page hereto (each, together with any subsequent holder of Registrable Securities that becomes a party hereto in accordance with the terms hereof, a “Holder” and collectively, the “Holders”) and Shareholder Representative Services LLC, a Colorado limited liability company (the “Securityholder Representative”), as representative of the Holders and the other Company Securityholders. Capitalized terms used in this Agreement are defined in Article 1 of this Agreement. Capitalized terms used and not otherwise defined herein shall have the respective meanings assigned to such terms in the Merger Agreement (as defined below).
ARTICLE 1
(a) “Affiliate” has the meaning assigned thereto by Rule 12b-2 under the Exchange Act. In addition, for purposes of Section 5.1 and Section 6.6, “Affiliate” of a Holder shall also include one or more funds or other investment vehicles that are under common management with such Holder but, for the avoidance of doubt, shall not include any investors in such Holder, funds or other investment vehicles or any portfolio companies of any of the foregoing.
(b) “Business Day” means each day that is not a Saturday, Sunday or other day on which banking institutions located in New York, New York are authorized or obligated by law or executive order to close.
(c) “Closing” means the closing of the transactions contemplated by the Merger Agreement.
(d) “Commission” means the Securities and Exchange Commission and any successor thereto.
(e) “Designated Holder” means each of the Holders identified on Schedule 1 hereto, and any Affiliate of such Person that becomes a Holder of Registrable Securities as a permitted assignee of such Person hereunder.
(f) “XXXXX” means the Commission’s Electronic Data Gathering, Analysis, and Retrieval system.
(g) “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
(h) “Parent Common Stock” means (i) the common stock, par value $0.001 per share, of Parent and (ii) any and all equity interests of Parent or any successor of Parent (whether by merger, consolidation, sale of assets or otherwise) issued or issuable with respect to the foregoing by way of stock dividend or a stock split or in connection with a combination of shares, recapitalization, merger, consolidation or other reorganization or otherwise.
(i) “Parent Shares” means any and all shares of Parent Common Stock (i) issued to the Holders pursuant to the Merger Agreement either as Distributable Closing Consideration on the Closing Date or as a Milestone Payment or Revenue Payment on a Contingent Payment Date (but, for the avoidance of doubt, shall not include any shares of Parent Common Stock issued under the Management Sale Bonus Plan or the Award Plan) and (ii) issued or issuable with respect to the foregoing by way of stock dividend or a stock split or in connection with a combination of shares, recapitalization, merger, consolidation or other reorganization or otherwise.
(j) “Person” means an individual, corporation, partnership, limited liability company, joint venture, association, trust, unincorporated organization or other entity.
(k) “Registrable Securities” means, at any time, the Parent Shares then held by any Holder; provided, however, that such Registrable Securities shall cease to be Registrable Securities with respect to any Holder upon the earliest to occur of the following:
(i) a registration statement with respect to the sale of such Registrable Securities has become effective under the Securities Act and all such Registrable Securities have been disposed of in accordance with such registration statement;
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(ii) such Registrable Securities have been sold under any section of Rule 144;
(iii) such Registrable Securities can be disposed of without registration and without regard to the volume limitation or manner of sale requirement pursuant to Rule 144; provided that such Registrable Securities held by a Designated Holder shall continue to constitute Registrable Securities solely for purposes of conducting Permitted Underwritten Offerings, but not for any other purpose (including, for the avoidance of doubt, not for purposes of Section 2.1 hereof); and provided further that such Registrable Securities shall become Registrable Securities again for all purposes under this Agreement at such later time as they may cease to be eligible for resale without regard to the volume limitation or manner of sale requirement pursuant to Rule 144 due to either (1) Parent’s failure to meet the public information requirement of Rule 144(c)(1) or (2) a material amendment of the Merger Agreement that prevents such Registrable Securities from benefiting from Rule 144(d)(3)(iii) (a “Reinstatement Event”);
(iv) such Registrable Securities are held by Parent or one of its subsidiaries; or
(v) such Registrable Securities have been sold in a private transaction in which the transferor’s rights under this Agreement are not assigned to the transferee of such securities.
(l) “Registration Expenses” means any and all expenses incident to the performance of or compliance with this Agreement, including without limitation: (i) all registration and filing fees; (ii) all fees and expenses associated with a required listing of the Registrable Securities on any securities exchange or quotation service; (iii) fees and expenses with respect to filings required to be made with the NASDAQ Stock Market (and/or such other national securities exchange or national quotation service on which shares of Parent Common Stock are then listed or quoted) or the Financial Industry Regulatory Authority (and, if applicable, the reasonable and documented fees and disbursements of one counsel to the underwriters in a Permitted Underwritten Offering incident to securing any required review and qualification of the Financial Industry Regulatory Authority); (iv) fees and expenses of compliance with securities or “blue sky” laws (including reasonable fees and disbursements of one counsel for the underwriters in a Permitted Underwritten Offering or Holders of Registrable Securities in connection with blue sky qualifications of the securities and determination of their eligibility for investment under the laws of such jurisdictions); (v) printing expenses, messenger, telephone, mailing and delivery expenses; (vi) fees and disbursements of counsel for Parent and customary fees and expenses for independent registered public accountants retained by Parent (including the expenses of any comfort letters or costs associated with the delivery by independent registered public accountants of a comfort letter or comfort letters); (vii) reasonable and documented fees and expenses for one counsel for all Holders appointed by the Securityholder Representative and incurred (1) for the review of the Initial Registration Statement up to an aggregate of $10,000, (2) for the review of
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any revisions made by Parent to a previously approved prospectus supplement up to an aggregate of $10,000 during the term of this Agreement or (3) in connection with a Permitted Underwritten Offering or Parent Underwritten Offering up to an aggregate of $50,000 per such offering (for up to three such offerings); and (viii) customary fees and expenses of Parent’s transfer agent and registrar; provided, however, that Registration Expenses shall not include, and Parent shall not have any obligation to pay, (a) underwriting or placement agent fees, including discounts and commissions with respect to shares sold by a Holder pursuant to this Agreement, (b) except to the extent expressly provided otherwise in the foregoing, and without prejudice to Section 4.1, any legal fees and expenses of counsel to any Holder or underwriter or any other expenses incurred by or on behalf of any Holder or the Securityholder Representative or (c) any expenses related to the transfer of Registrable Securities by a Holder pursuant to Section 6.6, including expenses related to the preparation and filing of an amended prospectus.
(m) “Rule 144” means Rule 144 under the Securities Act or any successor rule.
(n) “Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
(o) “Selling Holder” means a Holder who is selling Registrable Securities pursuant to a registration statement.
“Agreement” | Preamble | |
“Company” | Preamble | |
“Contingent Payment Parent Shares” | Section 2.1(b) | |
“Contingent Payment Registration Statement” | Section 2.1(b) | |
“Holder” and “Holders” | Preamble | |
“Initial Parent Shares” | Section 2.1(a) | |
“Initial Registration Statement” | Section 2.1(a) | |
“Inspectors” | Section 3.1(k) | |
“Merger Agreement” | Recitals | |
“Merger Sub” | Recitals | |
“Parent” | Preamble | |
“Parent Underwritten Offering” | Section 2.3 | |
“Permitted Underwritten Offering” | Section 2.2(a) | |
“Records” | Section 3.1(k) | |
“Reinstatement Event” | Definition of Registrable Securities | |
“Representative Losses” | Section 6.1(b) | |
“Securityholder Representative” | Preamble | |
“Violation” | Section 4.1 |
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ARTICLE 2
Section 2.1 Shelf Registration.
(a) Initial Registration Statement.
(i) Parent shall use its reasonable best efforts to prepare and file with the Commission as promptly as practicable and in any event within twenty-five (25) Business Days following the Closing Date a registration statement (the “Initial Registration Statement”) on Form S-3, Form S-1 or such other form that is then available to Parent and use its reasonable best efforts to cause such registration statement to become effective as promptly as practicable, in each case registering the offering and sale of a number of Parent Shares equal to the sum of (x) the Parent Shares to be issued under the Merger Agreement at Closing as part of the Closing Payment and (y) the Parent Shares that are expected to be issued in connection with a Relaunch Milestone Payment under the Merger Agreement ((x) and (y) together, the “Initial Parent Shares”) by the Holders thereof; provided that during such twenty-five Business Day-period (as such period may be extended pursuant to the subsequent proviso) Parent shall not be required to file such Initial Registration Statement before it has available for filing with the Commission historical financial statements of the Company and pro forma financial statements relating to the acquisition effected by the Merger that comply in all material respects with Rule 3-05 and Article 11 of Regulation S-X and Item 9.01 of Form 8-K; provided further that if such historical financial statements or pro forma financial information are not available at the end of such twenty-five Business Day-period, such period shall be extended by an additional ten (10) Business Days. To the extent Parent is then eligible therefor, the Initial Registration Statement shall be an automatic shelf registration statement as defined in Rule 405 under the Securities Act. Parent shall, subject to Section 2.7, keep the Initial Registration Statement, once effective, continuously effective to the extent provided in clause (ii) below, until all Initial Parent Shares covered thereby have ceased to be Registrable Securities. The Initial Registration Statement shall have a reasonable and customary plan of distribution (excluding underwritten offerings, except Permitted Underwritten Offerings and Parent Underwritten Offerings).
(ii) If either:
(A) the Initial Registration Statement has ceased to be effective prior to the date on which all Initial Parent Shares covered thereby have ceased to be Registrable Securities; or
(B) all Initial Parent Shares have ceased to be Registrable Securities, but have thereafter become Registrable Securities again pursuant to a Reinstatement Event and no registration statement is then effective that would permit the public offering and sale of such Initial Parent Shares on a continuous basis pursuant to Rule 415 under the Securities Act;
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then, in each case, Parent shall prepare and file with the Commission as promptly as practicable, but in any event within thirty (30) Business Days thereof, a new Initial Registration Statement in accordance with clause (i) of this subsection (a) with respect to all Initial Parent Shares that are then Registrable Securities, and use its reasonable best efforts to cause such registration statement to become effective.
(b) Contingent Payment Registration Statement.
(i) If any Parent Shares are issued on a Contingent Payment Date as a Milestone Payment or a Revenue Payment and those Parent Shares are not otherwise covered by the Initial Registration Statement and are then Registrable Securities (any such Parent Shares, “Contingent Payment Parent Shares”), then Parent shall prepare and file with the Commission as promptly as practicable, but in any event within thirty (30) Business Days of such issuance a registration statement (a “Contingent Payment Registration Statement”) on Form S-3, Form S-1 or such other form that is then available to Parent, and use its reasonable best efforts to cause such registration statement to become effective as promptly as practicable, in each case registering the offering and sale of such Contingent Payment Parent Shares by the Holders thereof. To the extent Parent is then eligible therefor, the Contingent Payment Registration Statement shall be an automatic shelf registration statement as defined in Rule 405 under the Securities Act. Parent shall, subject to Section 2.7, keep such Contingent Payment Registration Statement, once effective, continuously effective to the extent provided in clause (ii) below until all Contingent Payment Shares covered thereby have ceased to be Registrable Securities. Each Contingent Payment Registration Statement shall include a reasonable and customary plan of distribution (excluding underwritten offerings, except Permitted Underwritten Offerings and Parent Underwritten Offerings).
(ii) If either:
(A) such Contingent Payment Registration Statement has ceased to be effective prior to the date on which the Contingent Payment Shares covered thereby have ceased to be Registrable Securities; or
(B) all such Contingent Payment Parent Shares have ceased to be Registrable Securities, but have thereafter become Registrable Securities again pursuant to a Reinstatement Event and no registration statement is then effective that would permit the public offering and sale of such Contingent Payment Parent Shares on a continuous basis pursuant to Rule 415 under the Securities Act;
then, in each case, Parent shall prepare and file with the Commission as promptly as practicable, but in any event within thirty (30) Business Days thereof, a new Contingent Payment Registration Statement in accordance with clause (i) of this subsection (b) with respect to all such Contingent Payment Parent Shares that are then Registrable Securities, and use its reasonable best efforts to cause such registration statement to become effective.
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Section 2.2 Underwritten Offerings.
(a) Subject to Section 2.3 through Section 2.7, Designated Holders shall be entitled to offer and sell their Registrable Securities pursuant to an underwritten public offering; provided that the number of Registrable Securities to be sold in such offering is equal to or greater than six (6) times the average daily trading volume in Parent Common Stock reported as “VWAP Volume” by Bloomberg (or any successor provider using similar methodology) during the 30 trading days prior to the delivery of the notice described in Section 2.2(b) (each such underwritten offering, a “Permitted Underwritten Offering”).
(b) Designated Holders intending to participate in any Permitted Underwritten Offering must notify Parent thereof in a written notice delivered by the Securityholder Representative that includes all information typically included in a selling stockholder notice and questionnaire. Parent shall select the managing underwriter and any additional underwriters to be used in connection with a Permitted Underwritten Offering, subject to the prior written consent of the Securityholder Representative, such consent not to be unreasonably withheld or delayed. Notwithstanding anything else herein, in no event shall Designated Holders be entitled to effect more than one (1) Permitted Underwritten Offering in any twelve month period or more than three (3) Permitted Underwritten Offerings during the term of this Agreement.
(c) Parent shall prepare and file with the Commission as promptly as practicable, and in any event within thirty (30) Business Days of the notice described in Section 2.2(b), a registration statement on an appropriate form under the Securities Act covering the Permitted Underwritten Offering, and use its reasonable best efforts to cause such registration statement to become effective as promptly as practicable. To the extent that Parent is then eligible therefor, such registration statement shall be an automatic shelf registration statement as defined in Rule 405 under the Securities Act.
(d) Parent’s obligations under this Section 2.2 are subject to Section 2.7, and in the event that Parent exercises any of its rights under Section 2.7, the Securityholder Representative may, by giving written notice to Parent within five (5) Business Days of receipt of notice from Parent under Section 2.7, terminate such Permitted Underwritten Offering, and any offering so terminated shall not count towards the limitation on the number of Permitted Underwritten Offerings in Section 2.2(b), but any Permitted Underwritten Offering that is terminated for any other reason shall count towards such limitation.
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untrue statement of material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading.
ARTICLE 3
(a) prepare and file with the Commission such amendments, post-effective amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to maintain the effectiveness of such registration and to comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by such registration statement during the period in which such registration statement is required to be kept effective pursuant to Section 2.1; provided, however, that before filing such registration statement or any amendments or supplements thereto or the prospectus used in connection therewith, Parent will furnish copies of all such documents proposed to be filed (other than Exchange Act documents incorporated by reference), to counsel for the Selling Holders, the underwriters in a Permitted Underwritten Offering or Parent Underwritten Offering and counsel for such underwriters of Registrable Securities covered by such registration statement, provide reasonable time for the Securityholder Representative, such underwriters (if any) and their respective counsel to comment upon such documents if so requested by the Securityholder Representative or any such underwriters and consider all such comments reasonably requested by the Securityholder Representative, underwriters (if any) and their respective counsel, it being agreed that references to counsel for the Selling Holders in this Section 3.1(a) shall refer to one counsel designated by the Securityholder Representative; and provided further that, in the case of a Parent Underwritten Offering, Parent shall be required to consider only those comments that are received within one (1) Business Day of the date on which Parent has provided the relevant document;
(b) furnish to each Holder of Registrable Securities being registered and the underwriters in a Permitted Underwritten Offering or Parent Underwritten Offering, if any, without charge, such number of conformed copies of such registration statement and of each such amendment and supplement thereto (in each case including all exhibits)
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other than those which are being incorporated into such registration statement by reference, such number of copies of the prospectus contained in such registration statements (including each complete prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act in conformity with the requirements of the Securities Act as the Securityholder Representative or managing underwriter, if any, may reasonably request, in each case to the extent any such documents are not available on XXXXX;
(c) register or qualify all Registrable Securities under such other securities or “blue sky” laws of such jurisdictions as the Securityholder Representative and the underwriters of the securities being registered, if any, shall reasonably request, to keep such registration or qualification in effect for so long as such registration statement is required to be kept effective, and take any other action which may be reasonably necessary to enable the Holders to consummate the disposition in such jurisdiction of the Registrable Securities owned by the Holders; provided that Parent shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to the service of process in any state or jurisdiction in which it is not now qualified or has not now so consented;
(d) notify the Securityholder Representative if at any time a prospectus relating to the Registrable Securities is required to be delivered under the Securities Act, Parent becomes aware of the happening of any event as a result of which the applicable registration statement or the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, at the request of the Securityholder Representative, promptly prepare and furnish to the Holders a reasonable number of copies of a supplement to or an amendment of such registration statement or such prospectus as may be necessary so that such registration statement or, as thereafter delivered to the purchasers of such securities, 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, in light of the circumstances under which they were made, not misleading, in each case to the extent such documents are not available on XXXXX;
(e) comply or continue to comply with the Securities Act and the Exchange Act and with all applicable rules and regulations of the Commission thereunder so as to enable any Holder to sell its Registrable Securities pursuant to Rule 144, including without limitation to make and keep public information available, as those terms are understood and defined in Rule 144(c)(1), and, upon written request by such Holder and to the extent permitted by law, reasonably cooperate in the removal of restrictive legends on such Registrable Securities to enable such sale;
(f) provide a transfer agent and registrar for all Registrable Securities covered by a registration statement not later than ten (10) Business Days prior to the anticipated effective date of such registration statement;
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(g) notify the Securityholder Representative, promptly after it shall receive notice thereof, of the time when such registration statement, or any post-effective amendments to the registration statement, shall have become effective, or a supplement to any prospectus forming part of such registration statement has been filed;
(h) notify the Securityholder Representative of any request by the Commission for the amendment or supplement of such registration statement or prospectus for additional information to the extent such request relates to the plan of distribution or information about the Selling Holders;
(i) advise the Securityholder Representative, promptly after it shall receive notice or obtain knowledge thereof, of (i) the issuance of any stop order, injunction or other order or requirement by the Commission suspending the effectiveness of such registration statement or the initiation or threatening of any proceeding for such purpose and use all commercially reasonable efforts to prevent the issuance of any stop order, injunction or other order or requirement or to obtain its withdrawal if such stop order, injunction or other order or requirement should be issued, (ii) the issuance by any state securities or other regulatory authority of any order suspending the qualification or exemption from qualification of any of the Registrable Securities under state securities or “blue sky” laws or the initiation or threat of initiation of any proceedings for that purpose and (iii) the removal of any such stop order, injunction or other order or requirement or proceeding or the lifting of any such suspension;
(j) use commercially reasonable efforts to obtain as soon as practicable the lifting of any stop order that might be issued suspending the effectiveness of such registration statement;
(k) make available for inspection by any underwriter participating in any Permitted Underwritten Offering or Parent Underwritten Offering and any attorney, accountant or other professional retained by such underwriter (collectively, the “Inspectors”), during normal business hours, all financial and other records, pertinent corporate documents and properties of Parent (collectively, the “Records”) as shall be reasonably requested, and cause Parent’s officers, directors and authorized employees to supply all information reasonably requested by any such Inspector in connection with establishing a defense under Section 11 of the Securities Act with respect to such registration statement. Records which Parent determines, in good faith, to be confidential and which it notifies the Inspectors are confidential shall not be disclosed by the Inspectors unless (i) the disclosure of the information contained in such Records to the underwriter is necessary to avoid or correct a misstatement or omission in such registration statement, (ii) such disclosure is necessary to establish a due diligence defense for the underwriter, or (iii) the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, provided, however, that the foregoing inspecting and information gathering shall be conducted by one counsel designated by the managing underwriter in the Permitted Underwritten Offering or Parent Underwritten Offering, as applicable;
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(l) with respect to Permitted Underwritten Offerings only, furnish to each underwriter, if any, a signed counterpart, addressed to such underwriter, of (i) an opinion or opinions of counsel to Parent and updates thereof and customary negative assurance letters and (ii) if eligible under applicable accounting standards, a comfort letter or comfort letters from Parent’s independent public accountants, each in customary form and covering such matters of the type customarily covered by opinions or comfort letters, as the case may be, as the managing underwriter reasonably requests; and
(m) if a disposition of Registrable Securities takes the form of a Permitted Underwritten Offering or Parent Underwritten Offering, enter into a written underwriting, placement or similar agreements with any underwriters, placement agents or brokers in such form and containing such provisions as are customary for an issuer in connection with a secondary sale of equity securities pursuant to an underwritten public offering and use its commercially reasonable efforts to facilitate such Permitted Underwritten Offering (including by making members of senior management of Parent reasonably available, subject to availability and without undue disruption to Parent’s operations, to participate in customary brief due diligence calls with the underwriters, but not including any “road-show” or other marketing activities other than one customary investor call per offering if so recommended by the managing underwriter).
Section 3.2 Covenants of Holders.
(a) In connection with the filing of any registration statement covering Registrable Securities pursuant to this Agreement, each Selling Holder shall furnish in writing to Parent through the Securityholder Representative at least ten (10) Business Days prior to the filing of a registration statement to be filed hereunder such information regarding such Holder (and any of its Affiliates), the Registrable Securities to be sold, the intended method of distribution of such Registrable Securities and such other information requested by Parent as is necessary or it reasonably deems advisable for inclusion in the registration statement relating to such offering pursuant to the Securities Act and as is typically included in a selling stockholder notice and questionnaire, all of which information Parent shall have requested before the fifteenth Business Day prior to the filing of such registration statement. Each such Selling Holder agrees to notify Parent as promptly as practicable of any inaccuracy or change in information previously furnished by such Selling Holder to Parent or of the occurrence of any event in either case as a result of which any prospectus relating to such registration statement contains or would contain an untrue statement of a material fact regarding such Selling Holder or such Selling Holder’s intended method of disposition of such Registrable Securities or omits to state any material fact regarding such Selling Holder or such Selling Holder’s intended method of disposition of such Registrable Securities necessary in order to make the statements therein not misleading in light of the circumstances then existing, and promptly to furnish to Parent any additional information required to correct and update any previously furnished information or required so that such prospectus shall not contain, with respect to such Selling Holder or such Selling Holder’s intended method of disposition of Registrable Securities, an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in light of the circumstances then existing. Each Selling Holder agrees to deliver or cause delivery of the prospectus contained in any registration statement to any purchaser of
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the Registrable Securities covered by such registration statement from such Holder to the extent required by law.
(b) Each Holder agrees by acquisition of the Registrable Securities that (i) upon receipt of any notice from Parent pursuant to Section 2.7 that the use of a prospectus included in a registration statement is suspended, such Holder will forthwith discontinue its disposition of Registrable Securities pursuant to the registration statement relating to such Registrable Securities until such Holder’s receipt of a notice from Parent pursuant to Section 2.7 that such suspension has been terminated; (ii) upon receipt of any notice from Parent of the happening of any event of the kind described in Section 3.1(d), such Holder will forthwith discontinue its disposition of Registrable Securities pursuant to the registration statement relating to such Registrable Securities until such Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.1(d); (iii) upon receipt of any notice from Parent of the happening of any event of the kind described in clause (i) of Section 3.1(i), such Holder will discontinue its disposition of Registrable Securities pursuant to such registration statement until such Holder’s receipt of the notice described in clause (iii) of Section 3.1(i); and (iv) upon receipt of any notice from Parent of the happening of any event of the kind described in clause (ii) of Section 3.1(i), such Holder will discontinue its disposition of Registrable Securities pursuant to such registration statement in the applicable state jurisdiction(s) until such Holder’s receipt of the notice described in clause (iii) of Section 3.1(i). Each Holder shall treat all notices received from Parent pursuant to Section 2.3, Section 2.7, Section 3.1(d) or Section 3.1(i), including the fact that any such notice has been received, in the strictest confidence.
ARTICLE 4
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shall Parent be liable 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 (x) a Violation which occurs in reliance upon and in conformity with information with respect to such Selling Holder, underwriter or controlling person furnished in writing expressly for use in connection with such registration by such Selling Holder, underwriter or controlling person or (y) a sale of Registrable Securities by such Selling Holder in violation of Section 3.2(b).
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indemnifying party of any liability to the indemnified party under this Article 4 except to the extent the indemnifying party was materially prejudiced by such failure (and, in any event, the omission so to deliver written notice to the indemnifying party will not relieve it of any liability that it may have to any indemnified party otherwise than under this Article 4). No indemnifying party, in the defense of any pending or threatened claim or litigation, shall, except with the consent of each indemnified party, consent to entry of any judgment or enter into any settlement unless such settlement (i) includes 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 and (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified party. 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. For purposes of this Section 4.3, all Holders and their respective Affiliates and the Securityholder Representative together shall be deemed to constitute one indemnified party that is represented by the Securityholder Representative.
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extent set forth herein with respect to indemnification of Parent, to the extent that the provisions on indemnification and contribution contained in the underwriting agreement entered into in connection with a Permitted Underwritten Offering are in conflict with the foregoing provisions, the provisions in the underwriting agreement shall control.
ARTICLE 5
ARTICLE 6
Section 6.1 Securityholder Representative.
(a) By delivering a signature page to this Agreement or otherwise becoming a party hereto, each Holder designates and appoints the Securityholder Representative as such Holder’s agent and attorney-in-fact with full power and authority to act for and on behalf of such Holder in all matters pertaining to this Agreement. Notices and communications sent to the Securityholder Representative by Parent shall be deemed notices and communications to each of the Holders, and notices and communications sent to Parent by the Securityholder Representative shall be deemed notices and communications by each of the Holders, in each case for all purposes under this Agreement. Any document delivered to the Securityholder Representative pursuant to this Agreement shall be deemed delivered to each Holder. A decision, consent, waiver, instruction or any other act or omission to act on the part of the Securityholder Representative shall constitute an act or omission by each of the Holders and shall be final, binding and conclusive upon each of them. Parent may conclusively rely upon such act or omission on the part of the Securityholder Representative as being the act or omission of each of the Holders, and Parent and each of its directors, officers, employees and agents are hereby relieved from any liability for any acts or omissions on their part taken in accordance with any such act or omission on the part of the Securityholder Representative. As used in this
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Agreement, the term “Securityholder Representative” includes any successor Securityholder Representative appointed in accordance with the terms of its engagement.
(b) The Holders shall indemnify, defend and hold the Securityholder Representative harmless against, and the Securityholder Representative shall have no liability to the Holders in respect of, any and all losses, liabilities, expenses, damages, claims, penalties, fines, forfeitures, actions, out of pocket fees, costs and expenses (including reasonable and documented fees and expenses of counsel) (collectively, “Representative Losses”) arising out of or in connection with the Securityholder Representative’s execution and performance of the Transaction Documents, in each case as such Representative Loss is suffered or incurred absent the Securityholder Representative’s or its Affiliates’ gross negligence, fraud or willful misconduct. The Securityholder Representative may, in its discretion, direct the disbursement of a portion of any payment payable to the Holders pursuant to the Merger Agreement as reimbursement in respect of any such Representative Loss, prior to disbursing the remaining amount of such payment to the Holders. Notwithstanding anything to the contrary herein, the provisions of Section 6.7 of the Merger Agreement shall be deemed incorporated by reference herein and shall apply with respect to the parties hereto mutatis mutandis and to the extent that there is any conflict between the provisions of this Section 6.1 and Section 6.7 of the Merger Agreement, the provisions of Section 6.7 of the Merger Agreement shall govern. For the avoidance of doubt, this Section 6.1(b) is an agreement solely among the Securityholder Representative and the Holders and shall in no way be binding on Parent.
Section 6.2 Termination; Survival.
(a) Subject subsections (b) and (c) below, the rights of each Holder under this Agreement shall terminate upon the earlier of (i) the date that all of the Registrable Securities held by such Holder cease to be Registrable Securities, and (ii) one year from the date of this Agreement.
(b) If any Registrable Securities have ceased to be Registrable Securities but have subsequently become Registrable Securities again pursuant to a Reinstatement Event, the rights of the Holder of such Registrable Securities under this Agreement shall be reinstated with respect to such Registrable Securities and shall terminate upon the earlier of (i) the date that such Registrable Securities have subsequently ceased to be Registrable Securities and (ii) the first anniversary of the Reinstatement Event.
(c) The rights of the Designated Holders to request a Permitted Underwritten Offering under Section 2.2 shall terminate on the tenth anniversary hereof.
(d) Unless previously terminated pursuant to subsections (a), (b) or (c) of this Section 6.2, the rights of all Holders under this Agreement shall terminate six months after the tenth anniversary hereof.
(e) The obligations of the parties under Article 4, Section 6.15, Section 6.16 and Section 6.17 and any claim based on fraud or intentional misrepresentation, shall survive the termination of this Agreement.
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If to the Securityholder Representative or any Holder, to the Securityholder Representative at:
Shareholder Representative Services LLC | ||
0000 00xx Xxxxxx, Xxxxx 000 | ||
Xxxxxxxxx: (000) 000-0000 | ||
Email: xxxxx@xxxxxxxxxxxxxx.xxx | ||
Attention: Managing Director |
with a copy to (which shall not constitute notice) to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP | ||
0000 Xxxxxx xx xxx Xxxxxxxx | ||
Xxx Xxxx, XX 00000-0000 | ||
Facsimile: (000) 000-0000 | ||
Email: | xxxxxxxx@xxxxxxxxx.xxx | |
xxxxxxxx@xxxxxxxxx.xxx |
Attention: | Xxxxxx X. Xxxxxxx, Esq. | |
Xxxxx X. Xxxxxxx, Esq. |
If to Parent to:
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HeartWare International, Inc. | ||
000 Xxxxxxx Xxxxxx, Xxxxx 000 | ||
Xxxxxxxxxx, XX 00000 | ||
Facsimile: (000) 000-0000 | ||
Email: xxxxxx@xxxxxxxxxxxx.xxx | ||
Attention: Xxxxxxxx Xxxxx, Esq. |
with a copy to (which shall not constitute notice) to:
Shearman & Sterling LLP | ||
000 Xxxxxxxxx Xxxxxx | ||
Xxx Xxxx, XX 00000 | ||
Facsimile: (000) 000-0000 | ||
Email: | xxxxxxx@xxxxxxxx.xxx | |
xxxxxx.xxxx@xxxxxxxx.xxx |
Attention: | Xxxxx X’Xxxxx, Esq. | |
Xxxxxx Xxxx, Esq. |
Each notice shall be in writing and shall be sent to the party to receive it, postage prepaid by certified mail, return receipt requested, or by a nationally recognized overnight courier service that provides tracking and proof of receipt. Notices shall be deemed delivered upon receipt, except that in the case of email or facsimile transmission, notices shall be deemed delivered immediately (so long as confirmation of transmission is electronically or mechanically generated and kept on file by the sending party).
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and provisions of this Agreement to prevent breaches or threatened breaches of, or to enforce compliance with, the covenants and obligations of the parties under this Agreement.
Section 6.15 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF.
Section 6.16 Jurisdiction. The parties agree that any suit, action or other proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby shall be brought in any state or federal court located in Wilmington, Delaware, and each of the parties hereby irrevocably consents to the exclusive jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action or other proceeding and irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or other proceeding in any such court or that any such suit, action or other proceeding brought in any such court has been brought in an inconvenient forum. Process in any such suit, action or other proceeding may be served on any party anywhere in the world, whether within or without the jurisdiction of any such court. Without limiting the foregoing, each party agrees that service of process on such party as provided in Section 6.5 shall be deemed effective service of process on such party.
[Signature Page Follows]
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HEARTWARE INTERNATIONAL, INC. | ||||
By: | /s/ Xxxxx Xxxxx | |||
Name: | Xxxxx Xxxxx | |||
Title: | Senior Vice President | |||
SHAREHOLDER REPRESENTATIVE SERVICES LLC, solely in its capacity as the Securityholder Representative | ||||
By: | /s/ W. Xxxx Xxxxxx | |||
Name: | W. Xxxx Xxxxxx | |||
Title: | Managing Director | |||
COÖPERATIEVE AAC LS U.A. | ||||
By: | Forbion I Management B.V. | |||
By: | /s/ M.A. van Osch | |||
Name: | M.A. van Osch | |||
Title: | Director | |||
By: | /s/ H.A. Slootweg | |||
Name: | H.A. Slootweg | |||
Title: | Director | |||
FORBION CO-INVESTMENT COÖPERATIEF U.A. | ||||
By: | Forbion I Management B.V. | |||
By: | /s/ M.A. van Osch | |||
Name: | M.A. van Osch | |||
Title: | Director | |||
By: | /s/ H.A. Slootweg | |||
Name: | H.A. Slootweg | |||
Title: | Director |
FORBION CO-INVESTMENT II COÖPERATIEF U.A. | ||||
By: | Forbion I Co II Management B.V. | |||
By: | /s/ M.A. van Osch | |||
Name: | M.A. van Osch | |||
Title: | Director | |||
By: | /s/ H.A. Slootweg | |||
Name: | H.A. Slootweg | |||
Title: | Director | |||
M&F LIFE SCIENCES HOLDINGS I, LLC | ||||
By: | /s/ Xxxx Xxxx | |||
Name: | Xxxx Xxxx | |||
Title: | Authorized Signatory | |||
OBP IV-HOLDINGS LLC | ||||
By: | OBP Management IV, L.P., | |||
its General Partner | ||||
By: | /s/ Xxxxx Xxxxxxx | |||
Name: | Xxxxx Xxxxxxx | |||
Title: | Authorized Signatory | |||
MRNA II - HOLDINGS LLC | ||||
By: | MRNA Fund II L.P. | |||
By: | OBP Management IV, L.P., | |||
its General Partner | ||||
By: | /s/ Xxxxx Xxxxxxx | |||
Name: | Xxxxx Xxxxxxx | |||
Title: | Authorized Signatory |
FOUNDATION MEDICAL PARTNERS II, L.P. | ||||
By: | Foundation Medical Managers II, LLC | |||
By: | /s/ Xxx Xxxxxx | |||
Name: | Xxx Xxxxxx | |||
Title: | Authorized Signatory | |||
CREDIT LYONNAIS VENTURE CAPITAL (SCR) | ||||
CREDIT AGRICOLE EUROPE INNOVATION 2008 | ||||
CAPITAL INVEST PME | ||||
LCL INNOVATION 2007 | ||||
LCL INNOVATION 2008 | ||||
By: | Omnes Capital, | |||
its General Partner | ||||
By: | /s/ Alexia Perouse | |||
Name: | Alexia Perouse | |||
Title: | Co-Head Venture Capital | |||
SBBM CORPORATION | ||||
By: | /s/ Xxxxx Xxxxxx | |||
Name: | Xxxxx Xxxxxx | |||
Title: | Director | |||
XXXXXX X. XXXX REVOCABLE TRUST | ||||
By: | /s/ Xxxxx Paris | |||
Name: | Xxxxx Paris | |||
Title: | Trustee and executrix of estate |
FLEA STREET TRANSLATIONAL, LLC | ||||
By: | /s/ Xxx Xxxxxxx | |||
Name: | Xxx Xxxxxxx | |||
Title: | Managing Member | |||
PAULO, LLC | ||||
By: | /s/ Xxxx Xxxxxxxxx | |||
Name: | Xxxx Xxxxxxxxx | |||
Title: | Authorized Signatory | |||
ACCELERATED HOLDING CORPORATION | ||||
By: | /s/ Xxxx X. Xxxxxxxxxx | |||
Name: | Xxxx X. Xxxxxxxxxx | |||
Title: | Chief Financial Officer | |||
XXXXXX XXXX, MD | ||||
/s/ Xxxxxx Xxxx, MD | ||||
XXXXXX XXXXXXX, MD | ||||
/s/ Xxxxxx Xxxxxxx, MD | ||||
XXXX XXXXX | ||||
/s/ Xxxx Xxxxx |
XXXXXX XXXXXXXX | ||
/s/ Xxxxxx Xxxxxxxx | ||
XXXX XXXX | ||
/s/ Xxxx Xxxx | ||
XXXXX XXXXXXXXXX | ||
/s/ Xxxxx Xxxxxxxxxx | ||
XXXXXXX XXXXXXX | ||
/s/ Xxxxxxx Xxxxxxx | ||
XXXXXX XXXXXXXXX | ||
/s/ Xxxxxx Xxxxxxxxx | ||
XXXXX XXXXXXXXX | ||
/s/ Xxxxx Xxxxxxxxx | ||
XXXX XXXXX, MD | ||
/s/ Xxxx Xxxxx, MD | ||
XXXXXXXX XXXXX | ||
/s/ Xxxxxxxx Xxxxx | ||
SQUARE 1 BANK | ||
By: | /s/ Xxx Xxx | |
Name: Xxx Xxx | ||
Title: Client Manager | ||
SVB FINANCIAL GROUP | ||
By: | /s/ Xxxxxxx Xxxxx | |
Name: Xxxxxxx Xxxxx | ||
Title: Treasurer | ||
XXXXXX XXXXXXXX | ||
/s/ Xxxxxx Xxxxxxxx |