REGISTRATION RIGHTS AGREEMENT
Exhibit 10.25
This Registration Rights Agreement (this “Agreement”) is made and entered into as
of
September 25, 2009, by and among Cardica, Inc., a Delaware corporation (the “Company”), and the
several purchasers signatory hereto (each a “Purchaser” and collectively, the “Purchasers”).
This Agreement is made pursuant to the Securities Purchase Agreement, dated as of September
25, 2009, between the Company and each Purchaser (the “Purchase Agreement”).
Now, Therefore, In Consideration of the mutual covenants contained in this Agreement,
and for other good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the Company and each of the Purchasers agree as follows:
1. Definitions. Capitalized terms used and not otherwise defined herein that are defined in
the Purchase Agreement shall have the meanings given such terms in the Purchase Agreement. As used
in this Agreement, the following terms shall have the following meanings:
“Advice” shall have the meaning set forth in Section 6(f).
“Affiliate” means, with respect to any person, any other person which directly or indirectly
controls, is controlled by, or is under common control with, such person.
“Business Day” means a day, other than a Saturday or Sunday, on which banks in New York City
are open for the general transaction of business.
“Closing” has the meaning set forth in the Purchase Agreement.
“Closing Date” has the meaning set forth in the Purchase Agreement.
“Commission” means the Securities and Exchange Commission.
“common stock” means the common stock of the Company, par value $0.001 per share, and any
securities into which such common stock may hereinafter be reclassified.
“Effective Date” means the date that the Registration Statement filed pursuant to Section 2(a)
is first declared effective by the Commission.
“Effectiveness Deadline” means, with respect to the Initial Registration Statement or the New
Registration Statement, the earlier of: (i) the 90th calendar day following the Closing
Date; provided, that, if the Commission reviews and has written comments to a filed Registration
Statement, then the Effectiveness Deadline under this clause (i) shall be the 120th
calendar day following the Closing Date, and (ii) the tenth (10th) Trading Day following
the date on which the Company is notified by the Commission that the Registration Statement will
not be reviewed or is no longer subject to further review and comments and the effectiveness of the
Registration
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Statement may be accelerated; provided, however, that if the Effectiveness Deadline falls on a
Saturday, Sunday or other day that the Commission is closed for business, the Effectiveness
Deadline shall be extended to the next Business Day on which the Commission is open for business.
“Effectiveness Period” shall have the meaning set forth in Section 2(b).
“Event” shall have the meaning set forth in Section 2(c).
“Event Date” shall have the meaning set forth in Section 2(c).
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
“Filing Deadline” means, with respect to the Registration Statement required to be filed
pursuant to Section 2(a), the 30th calendar day following the Closing Date, provided,
however, that if the Filing Deadline falls on a Saturday, Sunday or other day that the Commission
is closed for business, the Filing Deadline shall be extended to the next business day on which the
Commission is open for business.
“Holder” or “Holders” means the holder or holders, as the case may be, from time to time of
Registrable Securities.
“Indemnified Party” shall have the meaning set forth in Section 5(c).
“Indemnifying Party” shall have the meaning set forth in Section 5(c).
“Losses” shall have the meaning set forth in Section 5(a).
“Person” means an individual or corporation, partnership, trust, incorporated or
unincorporated association, joint venture, limited liability company, joint stock company,
government (or an agency or subdivision thereof) or other entity of any kind.
“Principal Market” means the Trading Market on which the common stock is primarily listed on
and quoted for trading, which, as of the Closing Date, shall be the Nasdaq Global Market.
“Proceeding” means an action, claim, suit, investigation or proceeding (including, without
limitation, an investigation or partial proceeding, such as a deposition), whether commenced or
threatened.
“Prospectus” means the prospectus included in a Registration Statement (including, without
limitation, a prospectus that includes any information previously omitted from a prospectus filed
as part of an effective registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Registrable Securities covered by a Registration Statement,
and all other amendments and supplements to the
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Prospectus, including post-effective amendments, and all material incorporated by reference or
deemed to be incorporated by reference in such Prospectus.
“Register,” “registered” and “registration” refer to a registration made by preparing
and
filing a Registration Statement or similar document in compliance with the Securities Act and
pursuant to Rule 415, and the declaration or ordering of effectiveness of such Registration
Statement or document.
“Registrable Securities” means all of (i) the Shares, (ii) the Warrant Shares and (iii) any
securities issued or issuable upon any stock split, dividend or other distribution,
recapitalization or similar event with respect to the foregoing, provided, that the Holder has
completed and delivered to the Company a Selling Stockholder Questionnaire; and provided, further,
that Shares and Warrant Shares shall cease to be Registrable Securities upon the earliest to occur
of the following: (A) sale pursuant to a Registration Statement or Rule 144 under the Securities
Act (in which case, only such security sold shall cease to be a Registrable Security); or (B)
becoming eligible for sale by the Holder, without notice or restriction, pursuant to Rule 144
provided that, if reasonably requested by the Company, such Holder shall have furnished the Company
with an opinion of counsel, reasonably satisfactory to the Company, that such disposition will not
require registration of such shares under the Securities Act.
“Registration Statements” means any one or more registration statements of the Company filed
under the Securities Act that covers the resale of any of the Registrable Securities pursuant to
the provisions of this Agreement (including without limitation the Initial Registration Statement,
the New Registration Statement and any Remainder Registration Statements), amendments and
supplements to such Registration Statements, including post-effective amendments, all exhibits and
all material incorporated by reference or deemed to be incorporated by reference in such
Registration Statements.
“Rule 144” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as
such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by
the Commission having substantially the same effect as such Rule.
“Rule 415” means Rule 415 promulgated by the Commission pursuant to the Securities Act, as
such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by
the Commission having substantially the same effect as such Rule.
“Rule 424” means Rule 424 promulgated by the Commission pursuant to the Securities Act, as
such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by
the Commission having substantially the same effect as such Rule.
“SEC Guidance” means (i) any publicly-available written or oral guidance, comments,
requirements or requests of the Commission staff and (ii) the Securities Act.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
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“Selling Stockholder Questionnaire” means a questionnaire in the form attached as Annex B
hereto, or such other form of questionnaire as may reasonably be adopted by the Company from time
to time.
“Shares” means the shares of common stock issued or issuable to the Purchasers pursuant to the
Purchase Agreement.
“Special Registration Statement” shall mean a registration statement relating to any employee
benefit plan under Form S-8 or similar form or with respect to any corporate reorganization or
other transaction under Rule 145 of the Securities Act.
“Trading Day” means (i) a day on which the common stock is listed or quoted and traded on its
Principal Market (other than the OTC Bulletin Board), or (ii) if the common stock is not listed on
a Trading Market (other than the OTC Bulletin Board), a day on which the common stock is traded in
the over-the-counter market, as reported by the OTC Bulletin Board, or (iii) if the common stock is
not quoted on any Trading Market, a day on which the common stock is quoted in the over-the-counter
market as reported in the “pink sheets” by Pink Sheets LLC (or any similar organization or agency
succeeding to its functions of reporting prices); provided, that in the event that the common stock
is not listed or quoted as set forth in (i), (ii) and (iii) hereof, then Trading Day shall mean a
Business Day.
“Trading Market” means whichever of the New York Stock Exchange, the American Stock Exchange,
the NASDAQ Global Select Market, the NASDAQ Global Market, the NASDAQ Capital Market or OTC
Bulletin Board on which the common stock is listed or quoted for trading on the date in question.
“Warrants” means the Warrants issued pursuant to the Purchase Agreement.
“Warrant Shares” means the shares of common stock issued or issuable upon exercise of the
Warrants.
2. Registration.
(a) On or prior to the Filing Deadline, the Company shall prepare and file with the Commission
a Registration Statement covering the resale of all of the Registrable Securities for an offering
to be made on a continuous basis pursuant to Rule 415 or, if Rule 415 is not available for offers
and sales of the Registrable Securities, by such other means of distribution of Registrable
Securities as the Holders may reasonably specify (the “Initial Registration Statement”). The
Initial Registration Statement shall be on Form S-3 (except if the Company is then ineligible to
register for resale the Registrable Securities on Form S-3, in which case such registration shall
be on Form S-1) subject to the provisions of Section 2(f) and shall contain (except if otherwise
required pursuant to written comments received from the Commission upon a review of such
Registration Statement) the “Plan of Distribution” section attached hereto as Annex A.
Notwithstanding the registration obligations set forth in this subsection (a) and subsections (b)
and (c) of this Section 2, in the event the Commission informs the Company that all of the
Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale
as a secondary offering on a single registration statement, the Company agrees to promptly (i)
inform each of the holders thereof and use its commercially
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reasonable efforts to file amendments to the Initial Registration Statement as required by the
Commission and/or (ii) withdraw the Initial Registration Statement and file a new registration
statement (a “New Registration Statement”), in either case covering the maximum number of
Registrable Securities permitted to be registered by the Commission, on Form S-3 or such other form
available to register for resale the Registrable Securities as a secondary offering; provided,
however, that prior to filing such amendment or New Registration Statement, the Company shall be
obligated to use its commercially reasonable efforts to advocate with the Commission for the
registration of all of the Registrable Securities in accordance with the SEC Guidance, including
without limitation, the Manual of Publicly Available Telephone Interpretations D.29.
Notwithstanding any other provision of this Agreement and subject to the payment of liquidated
damages in Section 2(c), if any SEC Guidance sets forth a limitation of the number of Registrable
Securities permitted to be registered on a particular Registration Statement as a secondary
offering (and notwithstanding that the Company used diligent efforts to advocate with the
Commission for the registration of all or a greater number of Registrable Securities), unless
otherwise directed in writing by a Holder as to its Registrable Securities, the number of
Registrable Securities to be registered on such Registration Statement will first be reduced by
Registrable Securities represented by holders of Warrant Shares (applied, in the case that some
Warrant Shares may be registered, to the Holders on a pro rata basis based on the total number of
unregistered Warrant Shares held by such Holders) and second by Registrable Securities represented
by Shares (applied, in the case that some Shares may be registered, to the Holders on a pro rata
basis based on the total number of unregistered Shares held by such Holders, subject to a
determination by the Commission that certain Holders must be reduced first based on the number of
Shares held by such Holders). In the event the Company amends the Initial Registration Statement or
files a New Registration Statement, as the case may be, under clauses (i) or (ii) above, the
Company will use its commercially reasonable efforts to file with the Commission, as promptly as
allowed by Commission or staff guidance provided to the Company or to registrants of securities in
general, one or more registration statements on Form S-3 or such other form available to register
for resale those Registrable Securities that were not registered for resale on the Initial
Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration
Statements”).
(b) The Company shall use its commercially reasonable efforts to cause each Registration
Statement to be declared effective by the Commission as soon as practicable and, with respect to
the Initial Registration Statement or the New Registration Statement, as applicable, no later than
the Effectiveness Deadline (including filing with the Commission a request for acceleration of
effectiveness in accordance with Rule 461 promulgated under the Securities Act within five (5)
Business Days after the date that the Company is notified (orally or in writing, whichever is
earlier) by the Commission that such Registration Statement will not be “reviewed,” or not be
subject to further review and the effectiveness of such Registration Statement may be accelerated)
and shall use its commercially reasonable efforts to keep each Registration Statement continuously
effective under the Securities Act until the earlier of (i) such time as all of the Registrable
Securities covered by such Registration Statement have been publicly sold by the Holders or (ii)
the date that all Shares and Warrant Shares covered by such Registration Statement cease to be
Registrable Securities hereunder (the “Effectiveness Period”). The Company shall ensure that each
Registration Statement (including any amendments or supplements thereto and prospectuses contained
therein) shall not contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein, or necessary to
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make the statements therein (in the case of prospectuses, in the light of the circumstances in
which they were made) not misleading. Each Registration Statement shall also cover, to the extent
allowable under the Securities Act and the rules promulgated thereunder (including Rule 416), such
indeterminate number of additional shares of common stock resulting from stock splits, stock
dividends or similar transactions with respect to the Registrable Securities. The Company shall
telephonically request effectiveness of a Registration Statement as of 5:00 pm Eastern Time on the
Effective Date. The Company shall promptly notify the Holders via facsimile or e-mail of the
effectiveness of a Registration Statement within one (1) Business Day of the date on which the
Company telephonically confirms effectiveness with the Commission, which confirmation shall
initially be the date requested for effectiveness of a Registration Statement. The Company shall,
by 9:30 am Eastern Time on the first Trading Day after the Effective Date, file a Rule 424(b)
prospectus with the Commission. Failure to so notify the Holders on or before the second Trading
Day after such notification or effectiveness or failure to file a final Prospectus as aforesaid
shall be deemed an Event under Section 2(c).
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to
the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as
applicable, is not declared effective by the Commission (or otherwise does not become effective)
for any reason on or prior to the Effectiveness Deadline or (iii) after its Effective Date, (A)
such Registration Statement ceases for any reason (including without limitation by reason of a stop
order, or the Company’s failure to update the Registration Statement), but excluding the inability
of any Holder to sell the Registrable Securities covered thereby due to market conditions, to
remain continuously effective as to all Registrable Securities for which it is required to be
effective or (B) the Holders are not permitted to utilize the Prospectus therein to resell such
Registrable Securities, in the case of (A) and (B), for an aggregate of more than 20 consecutive
Trading Days or for more than an aggregate of 40 Trading Days in any 12-month period (which need
not be consecutive), other than as a result of a breach of this Agreement by a Holder or a Holder’s
failure to return a Selling Stockholder Questionnaire within the time period provided by Section
2(e) hereof (any such failure or breach in clauses (i) through (iii) above being referred to as an
“Event,” and, for purposes of clauses (i) or (ii), the date on which such Event occurs, or for
purposes of clause (iii), the date on which such 20 consecutive or 40 Trading Day period (as
applicable) is exceeded, being referred to as “Event Date”), then in lieu of any other rights
available to the Holders hereunder or under applicable law: (x) within five (5) Business Days after
each such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages
and not as a penalty, equal to 1.0% of the aggregate purchase price paid by such Holder pursuant to
the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date (which
remedy shall be exclusive of any other remedies available under this Agreement or under applicable
law); and (y) on each monthly anniversary of each such Event Date (if the applicable Event shall
not have been cured by such date) until the applicable Event is cured, the Company shall pay to
each Holder an amount in cash, as liquidated damages and not as a penalty, equal to 1.0% of the
aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable
Securities then held by such Holder (which remedy shall be exclusive of any other remedies
available under this Agreement or under applicable law). The parties agree that the Company will
not be liable for liquidated damages under this Section 2(c) with respect to (AA) any Warrants or
Warrant Shares or (BB) any Shares that are excluded from the Initial Registration Statement or the
New Registration Statement, as applicable, by the Commission as a result of the
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application of Rule 415. If the Company fails to pay any liquidated damages pursuant to this
Section in full within five (5) Business Days after the date payable, the Company will pay interest
thereon at a rate of 1.5% per month (or such lesser maximum amount that is permitted to be paid by
applicable law) to the Holder, accruing daily from the date such liquidated damages are due until
such amounts, plus all such interest thereon, are paid in full. The liquidated damages pursuant to
the terms hereof shall apply on a daily pro-rata basis for any portion of a month prior to the cure
of an Event, except in the case of the first Event Date. In the event that the Company registers
some but not all of the Registrable Securities, the 1.0% of liquidated damages referred to above
for any monthly period shall be reduced to equal the percentage determined by multiplying 1.0% by a
fraction, the numerator of which shall be the number of Registrable Securities for which there is
not an effective Registration Statement at such time and the denominator of which shall be the
number of Registrable Securities at such time. The Effectiveness Deadline for a Registration
Statement shall be extended without default or liquidated damages hereunder in the event that the
Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis
results from (i) the failure of a Purchaser to timely provide the Company with information
requested by the Company and necessary to complete the Registration Statement in accordance with
the requirements of the Securities Act (in which the Effectiveness Deadline would be extended with
respect to Registrable Securities held by such Purchaser) or (ii) events or circumstances that are
not in any way attributable to the Company’s actions or inactions.
(d) The Company shall not, from the date hereof until the date that is 60 days after the
Effective Date of the Registration Statement, prepare and file with the Commission a registration
statement relating to an offering for its own account under the Securities Act of any of its equity
securities other than a registration statement on Form S-8 or, in connection with an acquisition,
on Form S-4 unless the Closing Bid Price for the Common Stock on the Trading Day prior to the date
of filing any registration statement was greater than the Purchase Price. For the avoidance of
doubt, the Company shall not be prohibited from preparing and filing with the Commission a
registration statement relating to an offering of Common Stock by existing stockholders of the
Company under the Securities Act pursuant to the terms of registration rights held by such
stockholders.
(e) Each Holder agrees to furnish to the Company a completed Questionnaire in the form
attached to this Agreement as Annex B (a “Selling Stockholder Questionnaire”) not more than ten
(10) Trading Days following the date of this Agreement. Each Holder further agrees that it shall
not be entitled to be named as a selling securityholder in a Registration Statement or use the
Prospectus for offers and resales of Registrable Securities at any time, unless such Holder has
returned to the Company a completed and signed Questionnaire. If a Holder of Registrable Securities
returns a Questionnaire after the deadline specified in the previous sentence, the Company shall
use its commercially reasonable efforts to take such actions as are required to name such Holder as
a selling security holder in the Registration Statement or any pre-effective or post-effective
amendment thereto and to include (to the extent not theretofore included) in the Registration
Statement the Registrable Securities identified in such late Questionnaire. Each Holder
acknowledges and agrees that the information in the Selling Stockholder Questionnaire will be used
by the Company in the preparation of the Registration Statement and hereby consents to the
inclusion of such information in the Registration Statement.
7.
(f) In the event that Form S-3 is not available for the registration of the resale of
Registrable Securities hereunder, the Company shall (i) register the resale of the Registrable
Securities on another appropriate form reasonably acceptable to the Holders and (ii) undertake to
register the Registrable Securities on Form S-3 as soon as such form is available, provided that
the Company shall maintain the effectiveness of the Registration Statement then in effect until
such time as a Registration Statement on Form S-3 covering the Registrable Securities has been
declared effective by the Commission.
3. Registration Procedures
In connection with the Company’s registration obligations hereunder, the Company shall:
(a) Not less than five Trading Days prior to the filing of a Registration Statement and not
less than one Trading Day prior to the filing of any related Prospectus or any amendment or
supplement thereto (except for Annual Reports on Form 10-K, and Quarterly Reports on Form 10-Q and
Current Reports on Form 8-K and any similar or successor reports), the Company shall furnish to the
Holder copies of such Registration Statement, Prospectus or amendment or supplement thereto, as
proposed to be filed, which documents will be subject to the review of such Holder (it being
acknowledged and agreed that if a Holder does not object to or comment on the aforementioned
documents within such five (5) Trading Day or one (1) Trading Day period, as the case may be, then
the Holder shall be deemed to have consented to and approved the use of such documents). The
Company shall not file any Registration Statement or amendment or supplement thereto in a form to
which a Holder reasonably objects in good faith, provided that, the Company is notified of such
objection in writing within the five (5) Trading Day or one (1) Trading Day period described above,
as applicable.
(b) (i) Prepare and file with the Commission such amendments (including post-effective
amendments) and supplements to each Registration Statement and the Prospectus used in connection
therewith as may be necessary to keep such Registration Statement continuously effective as to the
applicable Registrable Securities for its Effectiveness Period and prepare and file with the
Commission such additional Registration Statements in order to register for resale under the
Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended
or supplemented by any required Prospectus supplement (subject to the terms of this Agreement),
and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond as promptly as
reasonably practicable to any comments received from the Commission with respect to each
Registration Statement or any amendment thereto and, as promptly as reasonably possible, provide
the Holders true and complete copies of all correspondence from and to the Commission relating to
such Registration Statement that pertains to the Holders as “Selling Stockholders” but not any
comments that would result in the disclosure to the Holders of material and non-public information
concerning the Company; and (iv) comply with the provisions of the Securities Act and the Exchange
Act with respect to the disposition of all Registrable Securities covered by a Registration
Statement until such time as all of such Registrable Securities shall have been disposed of
(subject to the terms of this Agreement) in accordance with the intended methods of disposition by
the Holders thereof as set forth in such Registration Statement as so amended or in such Prospectus
as so supplemented; provided, however, that each Purchaser shall be responsible for the delivery
of the Prospectus to the Persons to whom such Purchaser sells any of the Shares or the Warrant
Shares (including in
8.
accordance with Rule 172 under the Securities Act), and each Purchaser agrees to dispose of
Registrable Securities in compliance with the plan of distribution described in the Registration
Statement and otherwise in compliance with applicable federal and state securities laws. In the
case of amendments and supplements to a Registration Statement which are required to be filed
pursuant to this Agreement (including pursuant to this Section 3(b)) by reason of the Company
filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the Exchange Act,
the Company shall have incorporated such report by reference into such Registration Statement, if
applicable, or shall file such amendments or supplements with the Commission on the same day on
which the Exchange Act report which created the requirement for the Company to amend or supplement
such Registration Statement was filed.
(c) Notify the Holders (which notice shall, pursuant to clauses (iii) through (vi) hereof, be
accompanied by an instruction to suspend the use of the Prospectus until the requisite changes have
been made) as promptly as reasonably possible (and, in the case of (i)(A) below, not less than
three Trading Days prior to such filing, in the case of (iii) and (iv) below, not more than one
Trading Day after such issuance or receipt, in the case of (v) below, not less than one Trading Day
after a determination by the Company that the financial statements in any Registration Statement
have become ineligible for inclusion therein and, in the case of (vi) below, not more than one
Trading Day after the occurrence or existence of such development) and (if requested by any such
Person) confirm such notice in writing no later than one Trading Day following the day (i)(A) when
a Prospectus or any Prospectus supplement or post-effective amendment to a Registration Statement
is proposed to be filed; (B) when the Commission notifies the Company whether there will be a
“review” of such Registration Statement and whenever the Commission comments in writing on any
Registration Statement (in which case the Company shall provide to each of the Holders true and
complete copies of all comments that pertain to the Holders as a “Selling Stockholder” or to the
“Plan of Distribution” and all written responses thereto, but not information that the Company
believes would constitute material and non-public information); and (C) with respect to each
Registration Statement or any post-effective amendment, when the same has become effective; (ii) of
any request by the Commission or any other Federal or state governmental authority for amendments
or supplements to a Registration Statement or Prospectus or for additional information that
pertains to the Holders as “Selling Stockholders” or the “Plan of Distribution”; (iii) of the
issuance by the Commission or any other federal or state governmental authority of any stop order
suspending the effectiveness of a Registration Statement covering any or all of the Registrable
Securities or the initiation of any Proceedings for that purpose; (iv) of the receipt by the
Company of any notification with respect to the suspension of the qualification or exemption from
qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation
or threatening of any Proceeding for such purpose; (v) of the occurrence of any event or passage of
time that makes the financial statements included in a Registration Statement ineligible for
inclusion therein or any statement made in such Registration Statement or Prospectus or any
document incorporated or deemed to be incorporated therein by reference untrue in any material
respect or that requires any revisions to such Registration Statement, Prospectus or other
documents so that, in the case of such Registration Statement or the Prospectus, as the case may
be, it will not contain any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein (in the case of any
Prospectus, form of prospectus or supplement thereto, in light of the circumstances under which
they were made), not misleading; and (vi) the occurrence or existence of any pending development
with respect to the
9.
Company that the Company believes may be material and that, in the determination of the
Company, makes it not in the best interest of the Company to allow continued availability of a
Registration Statement or Prospectus, provided that any and all of such information shall remain
confidential to each Holder until such information otherwise becomes public, unless disclosure by a
Holder is required by law; provided, further, that notwithstanding each Holder’s agreement to keep
such information confidential, the Holders make no acknowledgement that any such information is
material, non-public information.
(d) Use commercially reasonable efforts to avoid the issuance of, or, if issued, obtain the
withdrawal of (i) any order suspending the effectiveness of a Registration Statement, or (ii) any
suspension of the qualification (or exemption from qualification) of any of the Registrable
Securities for sale in any jurisdiction, as soon as practicable.
(e) If requested by a Holder, furnish to such Holder, without charge, at least one conformed
copy of each Registration Statement and each amendment thereto and all exhibits to the extent
requested by such Person (including those previously furnished or incorporated by reference)
promptly after the filing of such documents with the Commission; provided, that the Company shall
have no obligation to provide any document pursuant to this clause that is available on the
Commission’s XXXXX system.
(f) Prior to any resale of Registrable Securities by a Holder, use its commercially reasonable
efforts to register or qualify, unless an exemption from registration and qualification applies,
the Registrable Securities for offer and sale or resale under the securities or Blue Sky laws of
such jurisdictions within the United States as any Holder reasonably requests in writing, to keep
each such registration or qualification (or exemption therefrom) effective during the Effectiveness
Period and to do any and all other acts or things reasonably necessary to enable the disposition in
such jurisdictions of the Registrable Securities covered by the Registration Statements; provided,
that the Company shall not be required to qualify generally to do business in any jurisdiction
where it is not then so qualified or to take any action that would subject the Company to general
service of process in any jurisdiction where it is not then so subject or subject the Company to
any material tax in any such jurisdiction where it is not then so subject.
(g) If requested by the Holders, cooperate with the Holders to facilitate the timely
preparation and delivery of certificates representing Registrable Securities to be delivered to a
transferee pursuant to the Registration Statement, which certificates shall be free, to the extent
permitted by the Purchase Agreement and under law, of all restrictive legends, and to enable such
Registrable Securities to be in such denominations and registered in such names as any such Holders
may reasonably request. In connection therewith, if required by the Company’s transfer agent, the
Company shall promptly after the effectiveness of the Registration Statement cause an opinion of
counsel as to the effectiveness of the Registration Statement to be delivered to and maintained
with its transfer agent, together with any other authorizations, certificates and directions
required by the transfer agent, which authorize and direct the transfer agent to issue such
Registrable Securities without legend upon sale by the holder of such shares of Registrable
Securities under the Registration Statement.
10.
(h) Following the occurrence of any event contemplated by Section 3(c)(iii) through (vi), as
promptly as reasonably practicable, prepare a supplement or amendment, including a post-effective
amendment, to the affected Registration Statements or a supplement to the related Prospectus or any
document incorporated or deemed to be incorporated therein by reference, and file any other
required document so that, as thereafter delivered, no Registration Statement nor any Prospectus
will contain 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 the case of any Prospectus, form of
prospectus or supplement thereto, in light of the circumstances under which they were made), not
misleading.
(i) (i) In the time and manner required by the Principal Market, prepare and file with such
Trading Market an additional shares listing application covering all of the Registrable Securities,
(ii) use commercially reasonable efforts to take all steps necessary to cause such Registrable
Securities to be approved for listing on the Principal Market as soon as possible thereafter, (iii)
if requested by any Holder, provide such Holder evidence of such listing, and (iv) during the
Effectiveness Period, use commercially reasonable efforts to maintain the listing of such
Registrable Securities on the Principal Market.
(j) In order to enable the Holders to sell Shares or Warrant Shares under Rule 144, for a
period of one year from the Closing, the Company covenants to use commercially reasonable efforts
to timely file (or obtain extensions in respect thereof and file within the applicable grace
period) all reports required to be filed by the Company after the date hereof pursuant to Section
13(a) or 15(d) of the Exchange Act. During such one year period, if the Company is not required to
file reports pursuant to Section 13(a) or 15(d) of the Exchange Act, it will prepare and furnish to
the Holders and make publicly available in accordance with Rule 144(c) promulgated under the
Securities Act annual and quarterly financial statements, together with a discussion and analysis
of such financial statements in form and substance substantially similar to those that would
otherwise be required to be included in reports required by Section 13(a) or 15(d) of the Exchange
Act, as well as any other information required thereby, in the time period that such filings would
have been required to have been made under the Exchange Act. The Company further covenants that it
will use commercially reasonable efforts to take such further action as any Holder may reasonably
request, all to the extent required from time to time to enable such Person to sell Shares and
Warrant Shares without registration under the Securities Act within the limitation of the
exemptions provided by Rule 144 promulgated under the Securities Act, including compliance with the
provisions of the Purchase Agreement relating to the transfer of the Shares and Warrant Shares.
(k) The Company may require each selling Holder to furnish to the Company a certified
statement as to (i) the number of shares of common stock beneficially owned by such Holder and any
Affiliate thereof, (ii) any FINRA affiliations, (iii) any natural persons who have the power to
vote or dispose of the common stock and (iv) any other information as may be requested by the
Commission, the FINRA or any state securities commission. During any periods that the Company is
unable to meet its obligations hereunder with respect to the registration of Registrable Securities
because any Holder fails to furnish such information within three Trading Days of the Company’s
request, any liquidated damages that are accruing at such time as to such Holder only shall be
tolled and any Event that may otherwise occur solely
11.
because of such delay shall be suspended as to such Holder only, until such information is
delivered to the Company.
(l) The Company shall promptly deliver to each Holder, without charge, as many copies of the
Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement
thereto as such Persons may reasonably request. The Company hereby consents to the use of such
Prospectus and each amendment or supplement thereto by each of the Holders in connection with the
offering and sale of the Registrable Securities covered by such Prospectus and any amendment or
supplement thereto to the extent permitted by federal and state securities laws and regulations.
(m) The Company shall comply with all applicable rules and regulations of the Commission under
the Securities Act and the Exchange Act, including, without limitation, Rule 172 under the
Securities Act, file any final Prospectus, including any supplement or amendment thereof, with the
Commission pursuant to Rule 424 under the Securities Act, promptly inform the Holders in writing
if, at any time during the Effectiveness Period, the Company does not satisfy the conditions
specified in Rule 172 and, as a result thereof, the Holders are required to make available a
Prospectus in connection with any disposition of Registrable Securities and take such other actions
as may be reasonably necessary to facilitate the registration of the Registrable Securities
hereunder.
4. Registration Expenses. All fees and expenses incident to the Company’s performance of or
compliance with its obligations under this Agreement (excluding any underwriting discounts and
selling commissions and all legal fees and expenses of legal counsel for any Holder) shall be borne
by the Company whether or not any Registrable Securities are sold pursuant to a Registration
Statement. The fees and expenses referred to in the foregoing sentence shall include, without
limitation, (i) all registration and filing fees (including, without limitation, fees and expenses
(A) with respect to filings required to be made with any Trading Market on which the common stock
is then listed for trading, (B) with respect to compliance with applicable state securities or Blue
Sky laws (including, without limitation, fees and disbursements of counsel for the Company in
connection with Blue Sky qualifications or exemptions of the Registrable Securities and
determination of the eligibility of the Registrable Securities for investment under the laws of
such jurisdictions as requested by the Holders) and (C) with respect to any filing that may be
required to be made by any broker through which a Holder intends to make sales of Registrable
Securities with FINRA pursuant to NASD Rule 2710 (or any successor rule), so long as the broker is
receiving no more than a customary brokerage commission in connection with such sale, (ii) printing
expenses (including, without limitation, expenses of printing certificates for Registrable
Securities and of printing prospectuses if the printing of prospectuses is reasonably requested by
the Holders of a majority of the Registrable Securities included in the Registration Statement),
(iii) messenger, telephone and delivery expenses, (iv) fees and disbursements of counsel for the
Company, (v) Securities Act liability insurance, if the Company so desires such insurance, and (vi)
fees and expenses of all other Persons retained by the Company in connection with the consummation
of the transactions contemplated by this Agreement. In addition, the Company shall be responsible
for all of its internal expenses incurred in connection with the consummation of the transactions
contemplated by this Agreement (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expense of any annual audit
12.
and the fees and expenses incurred in connection with the listing of the Registrable
Securities on any securities exchange as required hereunder. In no event shall the Company be
responsible for any underwriting, broker or similar fees or commissions of any Holder or, except to
the extent provided for in the Transaction Documents, any legal fees or other costs of the Holders.
5. Indemnification.
(a) Indemnification by the Company. The Company shall, notwithstanding any termination of this
Agreement, indemnify, defend and hold harmless each Holder, the officers, directors, agents,
partners, members, managers, stockholders, Affiliates and employees of each of them, each Person
who controls any such Holder (within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act) and the officers, directors, partners, members, managers, stockholders, agents
and employees of each such controlling Person, to the fullest extent permitted by applicable law,
from and against any and all losses, claims, damages, liabilities, costs (including, without
limitation, reasonable costs of preparation and investigation and reasonable attorneys’ fees) and
expenses (collectively, “Losses”), as incurred, that arise out of or are based upon any untrue or
alleged untrue statement of a material fact contained in any Registration Statement, any Prospectus
or any form of prospectus, or in any amendment or supplement thereto (it being understood that the
Holder has approved Annex A hereto for this purpose) or in any preliminary prospectus, or arising
out of or relating to any omission or alleged omission to state a material fact required to be
stated therein or necessary to make the statements therein (in the case of any Prospectus or form
of prospectus or supplement thereto, in light of the circumstances under which they were made) not
misleading, except to the extent, but only to the extent, that (A) such untrue statements, alleged
untrue statements, omissions or alleged omissions are based solely upon information regarding such
Holder furnished in writing to the Company by such Holder expressly for use therein, or to the
extent that such information relates to such Holder or such Holder’s proposed method of
distribution of Registrable Securities and was reviewed and approved by such Holder expressly for
use in the Registration Statement, such Prospectus or such form of Prospectus or in any amendment
or supplement thereto (it being understood that each Holder has approved Annex A hereto for this
purpose), (B) in the case of an occurrence of an event of the type specified in Section
3(c)(iii)-(vi), related to the use by a Holder of an outdated or defective Prospectus after the
Company has notified such Holder in writing that the Prospectus is outdated or defective and prior
to the receipt by such Holder of the Advice contemplated and defined in Section 6(f) below, but
only if and to the extent that following the receipt of the Advice the misstatement or omission
giving rise to such Loss would have been corrected or (C) any such Losses arise out of the
Purchaser’s (or any other indemnified Person’s) failure to send or give a copy of the Prospectus or
supplement (as then amended or supplemented) to the Persons asserting an untrue statement or
alleged untrue statement or alleged untrue statement or omission or alleged omission at or prior to
the written confirmation of the sale of Registrable Securities to such Person if such statement or
omission was corrected in such Prospectus or supplement. The Company shall notify the Holders
promptly of the institution, threat or assertion of any Proceeding arising from or in connection
with the transactions contemplated by this Agreement of which the Company is aware. Such indemnity
shall remain in full force and effect regardless of any investigation made by or on behalf of an
Indemnified Party (as defined in Section 5(c)) and shall survive the transfer of the Registrable
Securities by the Holders.
13.
(b) Indemnification by Holders. Each Holder shall, notwithstanding any termination of this
Agreement, severally and not jointly, indemnify and hold harmless the Company, its directors,
officers, agents and employees, each Person who controls the Company (within the meaning of Section
15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, agents
or employees of such controlling Persons, to the fullest extent permitted by applicable law, from
and against all Losses, as incurred, arising out of or are based upon any untrue or alleged untrue
statement of a material fact contained in any Registration Statement, any Prospectus, or any form
of prospectus, or in any amendment or supplement thereto or in any preliminary prospectus, or
arising out of or relating to any omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein (in the case of any Prospectus, or any
form of prospectus or supplement thereto, in light of the circumstances under which they were made)
not misleading (i) to the extent, but only to the extent that, such untrue statements or omissions
are based solely upon information regarding such Holder furnished in writing to the Company by such
Holder expressly for use therein, (ii) to the extent that such information relates to such Holder
or such Holder’s proposed method of distribution of Registrable Securities and was reviewed and
approved by such Holder expressly for use in the Registration Statement (it being understood that
the Holder has approved Annex A hereto for this purpose), such Prospectus or such form of
Prospectus or in any amendment or supplement thereto or (iii) in the case of an occurrence of an
event of the type specified in Section 3(c)(iii)-(vi), to the extent related to the use by such
Holder of an outdated or defective Prospectus after the Company has notified such Holder in writing
that the Prospectus is outdated or defective and prior to the receipt by such Holder of the Advice
contemplated in Section 6(f). In no event shall the liability of any selling Holder hereunder be
greater in amount than the dollar amount of the net proceeds received by such Holder upon the sale
of the Registrable Securities giving rise to such indemnification obligation.
(c) Conduct of Indemnification Proceedings. If any Proceeding shall be brought or asserted
against any Person entitled to indemnity hereunder (an “Indemnified Party”), such Indemnified Party
shall promptly notify the Person from whom indemnity is sought (the “Indemnifying Party”) in
writing, and the Indemnifying Party shall have the right to assume the defense thereof, including
the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of all
reasonable fees and expenses incurred in connection with defense thereof; provided, that the
failure of any Indemnified Party to give such notice shall not relieve the Indemnifying Party of
its obligations or liabilities pursuant to this Agreement, except (and only) to the extent that it
shall be finally determined by a court of competent jurisdiction (which determination is not
subject to appeal or further review) that such failure shall have proximately and materially
adversely prejudiced the Indemnifying Party.
An Indemnified Party shall have the right to employ separate counsel in any such Proceeding
and to participate in the defense thereof, but the fees and expenses of such counsel shall be at
the expense of such Indemnified Party or Parties unless: (1) the Indemnifying Party has agreed in
writing to pay such fees and expenses; (2) the Indemnifying Party shall have failed promptly to
assume the defense of such Proceeding and to employ counsel reasonably satisfactory to such
Indemnified Party in any such Proceeding; or (3) the named parties to any such Proceeding
(including any impleaded parties) include both such Indemnified Party and the Indemnifying Party,
and such Indemnified Party shall have been advised by counsel that a conflict of interest exists if
the same counsel were to represent such Indemnified Party and the
14.
Indemnifying Party (in which case, if such Indemnified Party notifies the Indemnifying Party
in writing that it elects to employ separate counsel at the expense of the Indemnifying Party, the
Indemnifying Party shall not have the right to assume the defense thereof and such counsel shall be
at the expense of the Indemnifying Party); provided, that the Indemnifying Party shall not be
liable for the fees and expenses of more than one separate firm of attorneys at any time for all
Indemnified Parties. The Indemnifying Party shall not be liable for any settlement of any such
Proceeding effected without its written consent, which consent shall not be unreasonably withheld,
delayed or conditioned. No Indemnifying Party shall, without the prior written consent of the
Indemnified Party, effect any settlement of any pending Proceeding in respect of which any
Indemnified Party is a party, unless such settlement includes an unconditional release of such
Indemnified Party from all liability on claims that are the subject matter of such Proceeding.
Subject to the terms of this Agreement, all fees and expenses of the Indemnified Party
(including reasonable fees and expenses to the extent incurred in connection with investigating or
preparing to defend such Proceeding in a manner not inconsistent with this Section) shall be paid
to the Indemnified Party, as incurred, within twenty Trading Days of written notice thereof to the
Indemnifying Party; provided, that the Indemnified Party shall promptly reimburse the Indemnifying
Party for that portion of such fees and expenses applicable to such actions for which such
Indemnified Party is finally judicially determined to not be entitled to indemnification
hereunder). The failure to deliver written notice to the Indemnifying Party within a reasonable
time of the commencement of any such action shall not relieve such Indemnifying Party of any
liability to the Indemnified Party under this Section 5, except to the extent that the Indemnifying
Party is prejudiced in its ability to defend such action.
(d) Contribution. If a claim for indemnification under Section 5(a) or 5(b) is unavailable to
an Indemnified Party (by reason of public policy or otherwise), then each Indemnifying Party, in
lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such Losses, in such proportion as is appropriate to reflect the
relative fault of the Indemnifying Party and Indemnified Party in connection with the actions,
statements or omissions that resulted in such Losses as well as any other relevant equitable
considerations. The relative fault of such Indemnifying Party and Indemnified Party shall be
determined by reference to, among other things, whether any action in question, including any
untrue or alleged untrue statement of a material fact or omission or alleged omission of a material
fact, has been taken or made by, or relates to information supplied by, such Indemnifying Party or
Indemnified Party, and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such action, statement or omission. The amount paid or payable by
a party as a result of any Losses shall be deemed to include, subject to the limitations set forth
in this Agreement, any reasonable attorneys’ or other reasonable fees or expenses incurred by such
party in connection with any Proceeding to the extent such party would have been indemnified for
such fees or expenses if the indemnification provided for in this Section was available to such
party in accordance with its terms.
The parties hereto agree that it would not be just and equitable if contribution pursuant to
this Section 5(d) were determined by pro rata allocation or by any other method of allocation that
does not take into account the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 5(d), (A) no Holder shall be required to
contribute, in the aggregate, any amount in excess of the amount by which the net proceeds
15.
actually received by such Holder from the sale of the Registrable Securities subject to the
Proceeding exceeds the amount of any damages that such Holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged omission and (B) no
contribution will be made under circumstances where the maker of such contribution would not have
been required to indemnify the Indemnified Party under the fault standards set forth in this
Section 5. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.
The indemnity and contribution agreements contained in this Section are in addition to any
liability that the Indemnifying Parties may have to the Indemnified Parties and are not in
diminution or limitation of the indemnification provisions under the Purchase Agreement.
6. Miscellaneous.
(a) Remedies. In the event of a breach by the Company or by a Holder of any of their
obligations under this Agreement, each Holder or the Company, as the case may be, in addition to
being entitled to exercise all rights granted by law and under this Agreement, including recovery
of damages, will be entitled to specific performance of its rights under this Agreement. The
Company and each Holder agree that monetary damages would not provide adequate compensation for any
losses incurred by reason of a breach by it of any of the provisions of this Agreement and hereby
further agrees that, in the event of any action for specific performance in respect of such breach,
it shall waive the defense that a remedy at law would be adequate.
(b) No Piggyback on Registrations. Neither the Company nor any of its security holders (other
than the Holders in such capacity pursuant hereto) may include securities of the Company in a
Registration Statement other than the Registrable Securities, and the Company shall not prior to
the Effective Date enter into any agreement providing any such right to any of its security
holders.
(c) Entire Agreement. This Agreement is intended by the parties as a final expression of their
agreement and intended to be a complete and exclusive statement of the agreement and understanding
of the parties hereto in respect of the subject matter contained herein. This Agreement supersedes
all prior agreements and understandings between the parties with respect to such subject matter,
except for, and as provided in the Transaction Documents.
(d) Compliance. Each Holder covenants and agrees that it will comply with the prospectus
delivery requirements of the Securities Act as applicable to it (unless an exemption therefrom is
available) in connection with sales of Registrable Securities pursuant to the Registration
Statement and shall sell the Registrable Securities only in accordance with a method of
distribution described in the Registration Statement.
(e) Suspension of Trading. At any time after the Registrable Securities are covered by an
effective Registration Statement, the Company may deliver to the Holders of such Registrable
Securities a certificate (the “Suspension Certificate”) approved by the Chief Executive Officer or
Chief Financial Officer of the Company and signed by an officer of the
16.
Company stating that the effectiveness of and sales of Registrable Securities under the
Registration Statement would:
(i) materially interfere with any transaction that would require the Company to prepare
financial statements under the Securities Act that the Company would otherwise not be required to
prepare in order to comply with its obligations under the Exchange Act, or
(ii) require public disclosure of a material transaction or event prior to the time such
disclosure might otherwise be required.
Upon receipt of a Suspension Certificate by Holders of Registrable Securities, such Holders of
Registrable Securities shall refrain from selling or otherwise transferring or disposing of any
Registrable Securities then held by such Holders for a specified period of time (a “Suspension
Period”) that is customary under the circumstances (not to exceed twenty (20) days).
Notwithstanding the foregoing sentence, the Company shall be permitted to cause Holders of
Registrable Securities to so refrain from selling or otherwise transferring or disposing of any
Registrable Securities on only two (2) occasions during each twelve (12) consecutive month period
that the Registration Statement remains effective with no less than twenty (20) calendar days in
between Suspension Periods. The Company may impose stop transfer instructions to enforce any
required agreement of the Holders under this Section 6(e). Immediately after the end of any
Suspension Period, the Company shall take all necessary actions (including filing any required
supplemental prospectus) to restore the effectiveness of the applicable Registration Statement and
the ability of the Holders to publicly resell, pursuant to such effective Registration Statement,
their Registrable Securities covered by such Registration Statement.
(f) Discontinued Disposition. Each Holder further agrees by its acquisition of such
Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any
event of the kind described in Section 3(c)(iii)-(vi), such Holder will forthwith discontinue
disposition of such Registrable Securities under the Registration Statement until it is advised in
writing (the “Advice”) by the Company that the use of the applicable Prospectus (as it may have
been supplemented or amended) may be resumed. The Company may provide appropriate stop orders to
enforce the provisions of this paragraph. The Company agrees and acknowledges that any periods
during which the Holder is required to discontinue the disposition of the Registrable Securities
hereunder shall be subject to the provisions of Section 2(c) as qualified by Section 3(a).
(g) Amendments and Waivers. The provisions of this Agreement, including the provisions of this
sentence, may not be amended, modified, supplemented or waived unless the same shall be in writing
and signed by the Company and Holders holding a majority of the then outstanding Registrable
Securities. Notwithstanding the foregoing, a waiver or consent to depart from the provisions hereof
with respect to a matter that relates exclusively to the rights of Holders and that does not
directly or indirectly affect the rights of other Holders may be given by Holders of all of the
Registrable Securities to which such waiver or consent relates; provided, however, that the
provisions of this sentence may not be amended, modified or supplemented except in accordance with
the provisions of the immediately preceding sentence.
17.
(h) Term. The registration rights provided to the Holders of Registrable Securities hereunder,
and the Company’s obligation to keep the Registration Statements effective, shall terminate at such
time as there are no Registrable Securities. Notwithstanding the foregoing, Section 2(c), Section
4, Xxxxxxx 0, Xxxxxxx 0(x), Xxxxxxx 0(x), Section 6(m), Section 6(n), Section 6(o), Section 6(p)
and Section 6(q) shall survive the termination of this Agreement.
(i) Notices. Any and all notices or other communications or deliveries required or permitted
to be provided hereunder shall be delivered as set forth in the Purchase Agreement.
(j) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon
the successors and permitted assigns of each of the parties and shall inure to the benefit of each
Holder. Nothing in this Agreement, express or implied, is intended to confer upon any party other
than the parties hereto or their respective successors and assigns any rights, remedies,
obligations, or liabilities under or by reason of this Agreement, except as expressly provided in
this Agreement. The Company may not assign its rights or obligations hereunder without the prior
written consent of all the Holders of the then outstanding Registrable Securities (other than by
merger or consolidation or to an entity which acquires the Company including by way of acquiring
all or substantially all of the Company’s assets). The rights of the Holders hereunder, including
the right to have the Company register Registrable Securities pursuant to this Agreement, may be
assigned by each Holder to transferees or assignees of all or any portion of the Registrable
Securities, but only if (i) the Holder agrees in writing with the transferee or assignee to assign
such rights and related obligations under this Agreement, and for the transferee or assignee to
assume such obligations, and a copy of such agreement is furnished to the Company within a
reasonable time after such assignment, (ii) the Company is, within a reasonable time after such
transfer or assignment, furnished with written notice of the name and address of such transferee or
assignee and the securities with respect to which such registration rights are being transferred or
assigned, (iii) at or before the time the Company received the written notice contemplated by
clause (ii) of this sentence, the transferee or assignee agrees in writing with the Company to be
bound by all of the provisions contained herein that apply to the “Holders” and (iv) the transferee
is an “accredited investor,” as that term is defined in Rule 501 of Regulation D.
(k) Execution and Counterparts. This Agreement may be executed in any number of counterparts,
each of which when so executed shall be deemed to be an original and, all of which taken together
shall constitute one and the same Agreement and shall become effective when counterparts have been
signed by each party and delivered to the other party, it being understood that both parties need
not sign the same counterpart. In the event that any signature is delivered by facsimile
transmission or by e-mail delivery of a “.pdf” format data file, such signature shall create a
valid and binding obligation of the party executing (or on whose behalf such signature is executed)
with the same force and effect as if such facsimile or “.pdf” signature were the original thereof.
(l) Governing Law. All questions concerning the construction, validity, enforcement and
interpretation of this Agreement shall be determined in accordance with the provisions of the
Purchase Agreement.
18.
(m) Cumulative Remedies. The remedies provided herein are cumulative and not exclusive of any
remedies provided by law.
(n) Severability. If any term, provision, covenant or restriction of this Agreement is held by
a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use
their reasonable efforts to find and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such term, provision, covenant or
restriction. It is hereby stipulated and declared to be the intention of the parties that they
would have executed the remaining terms, provisions, covenants and restrictions without including
any of such that may be hereafter declared invalid, illegal, void or unenforceable.
(o) Headings. The headings in this Agreement are for convenience of reference only and shall
not limit or otherwise affect the meaning hereof.
(p) Currency. Unless otherwise indicated, all dollar amounts referred to in this Agreement are
in United States Dollars. All amounts owing under this Agreement are in United States Dollars. All
amounts denominated in other currencies shall be converted in the United States Dollar equivalent
amount in accordance with the applicable exchange rate in effect on the date of calculation.
(q) Further Assurances. The parties shall execute and deliver all such further instruments and
documents and take all such other actions as may reasonably be required to carry out the
transactions contemplated hereby and to evidence the fulfillment of the agreements herein
contained.
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19.
In Witness Whereof, the parties have executed this Registration Rights Agreement as
of the date first written above.
| CARDICA, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
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20.
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| NAME OF INVESTING ENTITY | ||||||
| Xxxxxx Xxxx Ventures, a California Limited Partnership | ||||||
| AUTHORIZED SIGNATORY | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxxx, Xx.
|
|||||
| Name: Xxxxxxx X. Xxxxxxx, Xx. | ||||||
| Title: Managing Director of the General Partner | ||||||
| ADDRESS FOR NOTICE | ||||||
| x/x Xxxxxx Xxxx Xxxxxxxx | ||||||
| Xxxxxx: 000 Xxxx Xxxx Xx., Xxxxx X-000 | ||||||
| Xxxx/Xxxxx/Xxx: Xxxx Xxxx, XX 00000-0000 | ||||||
| Attention: Xxxxxx Xxx | ||||||
| Tel: (000) 000-0000 | ||||||
| Fax: | ||||||
| Email: xxxxxx@xxx.xxx | ||||||
21.
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| NAME OF INVESTING ENTITY | ||||||
| G. XXXXXXX XXXXX, XX. AND XXXX XXXX XXXXX, CO-TRUSTEES OF THE XXXXX REVOCABLE TRUST U/A/D 2/3/03 | ||||||
| AUTHORIZED SIGNATORY | ||||||
| By: | /s/ Xxxxxx Xxx
|
|||||
| Name: Xxxxxx Xxx | ||||||
| Title: Power of Attorney | ||||||
| ADDRESS FOR NOTICE | ||||||
| x/x Xxxxxx Xxxx Xxxxxxxx | ||||||
| Xxxxxx: 000 Xxxx Xxxx Xx., Xxxxx X-000 | ||||||
| Xxxx/Xxxxx/Xxx: Xxxx Xxxx, XX 00000-0000 | ||||||
| Attention: Xxxxxx Xxx | ||||||
| Tel: (000) 000-0000 | ||||||
| Fax: | ||||||
| Email: xxxxxx@xxx.xxx | ||||||
22.
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| NAME OF INVESTING ENTITY | ||||||
| XXXXXXXX HOLDINGS, L.P. | ||||||
| AUTHORIZED SIGNATORY | ||||||
| By: | /s/ Xxxxxx Xxx
|
|||||
| Name: Xxxxxx Xxx | ||||||
| Title: Power of Attorney | ||||||
| ADDRESS FOR NOTICE | ||||||
| x/x Xxxxxx Xxxx Xxxxxxxx | ||||||
| Xxxxxx: 000 Xxxx Xxxx Xx., Xxxxx X-000 | ||||||
| Xxxx/Xxxxx/Xxx: Xxxx Xxxx, XX 00000-0000 | ||||||
| Attention: Xxxxxx Xxx | ||||||
| Tel: (000) 000-0000 | ||||||
| Fax: | ||||||
| Email: xxxxxx@xxx.xxx | ||||||
23.
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| NAME OF INVESTING ENTITY | ||||||
| XXXXXXX X. XXXXXXX, XX., TRUSTEE OF THE XXXXXXX X. XXXXXXX, XX. REVOCABLE TRUST U/A/D 8/5/09 | ||||||
| AUTHORIZED SIGNATORY | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxxx, Xx. | |||||
| Name: | ||||||
| Title: | Trustee | |||||
| ADDRESS FOR NOTICE | ||||||
| x/x Xxxxxx Xxxx Xxxxxxxx | ||||||
| Xxxxxx: 000 Xxxx Xxxx Xx., Xxxxx X-000 | ||||||
| Xxxx/Xxxxx/Xxx: Xxxx Xxxx, XX 00000-0000 | ||||||
| Attention: Xxxxxx Xxx | ||||||
| Tel: (000) 000-0000 | ||||||
| Fax: | ||||||
| Email: xxxxxx@xxx.xxx | ||||||
24.
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| NAME OF INVESTING ENTITY | ||||||
| YOVEST, L.P. | ||||||
| AUTHORIZED SIGNATORY | ||||||
| By: Name: |
/s/ Xxxxxxx X. Xxxxxxx, Xx.
|
|||||
| Title: Trustee of The Younger Living Trust U/A/D 1/20/95, General Partner | ||||||
| ADDRESS FOR NOTICE | ||||||
| x/x Xxxxxx Xxxx Xxxxxxxx | ||||||
| Xxxxxx: 000 Xxxx Xxxx Xx., Xxxxx X-000 | ||||||
| Xxxx/Xxxxx/Xxx: Xxxx Xxxx, XX 00000-0000 | ||||||
| Attention: Xxxxxx Xxx | ||||||
| Tel: (000) 000-0000 | ||||||
| Fax: | ||||||
| Email: xxxxxx@xxx.xxx | ||||||
25.
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| NAME OF INVESTING ENTITY | ||||||
| XXXXXXX X. XXXXX AND XXXXX X.X. XXXXX AS TRUSTEES OF XXXXXXX X. AND XXXXX X.X. XXXXX TRUST AGREEMENT DATED 2/24/99 | ||||||
| AUTHORIZED SIGNATORY | ||||||
| By: | /s/ Xxxxxxx X. Xxxxx
|
|||||
| Name: Xxxxxxx X. Xxxxx | ||||||
| Title: Trustee | ||||||
| ADDRESS FOR NOTICE | ||||||
| x/x Xxxxxx Xxxx Xxxxxxxx | ||||||
| Xxxxxx: 000 Xxxx Xxxx Xx., Xxxxx X-000 | ||||||
| Xxxx/Xxxxx/Xxx: Xxxx Xxxx, XX 00000-0000 | ||||||
| Attention: Xxxxxx Xxx | ||||||
| Tel: (000) 000-0000 | ||||||
| Fax: | ||||||
| Email: xxxxxx@xxx.xxx | ||||||
26.
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| NAME OF INVESTING ENTITY | ||||||
| XXXXX X. XXXXXXX, TRUSTEE OF THE XXXXXXX REVOCABLE TRUST U/A/D 9/28/2000 | ||||||
| AUTHORIZED SIGNATORY | ||||||
| By: | /s/ Xxxxxx Xxx
|
|||||
| Name: Xxxxxx Xxx | ||||||
| Title: Power of Attorney | ||||||
| ADDRESS FOR NOTICE | ||||||
| x/x Xxxxxx Xxxx Xxxxxxxx | ||||||
| Xxxxxx: 000 Xxxx Xxxx Xx., Xxxxx X-000 | ||||||
| Xxxx/Xxxxx/Xxx: Xxxx Xxxx, XX 00000-0000 | ||||||
| Attention: Xxxxxx Xxx | ||||||
| Tel: (000) 000-0000 | ||||||
| Fax: | ||||||
| Email: xxxxxx@xxx.xxx | ||||||
27.
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| NAME OF INVESTING ENTITY | ||||||
| XXXXX X. XXXXX AND XXXXXXXX X. X’XXXXX AS TRUSTEES OF THE WHITE FAMILY TRUST U/A/D 4/3/97 | ||||||
| AUTHORIZED SIGNATORY | ||||||
| By: | /s/ Xxxxx X. Xxxxx | |||||
| Name: Xxxxx X. Xxxxx | ||||||
| Title: Trustee | ||||||
| ADDRESS FOR NOTICE | ||||||
| x/x Xxxxxx Xxxx Xxxxxxxx | ||||||
| Xxxxxx: 000 Xxxx Xxxx Xx., Xxxxx X-000 | ||||||
| Xxxx/Xxxxx/Xxx: Xxxx Xxxx, XX 00000-0000 | ||||||
| Attention: Xxxxxx Xxx | ||||||
| Tel: (000) 000-0000 | ||||||
| Fax: | ||||||
| Email: xxxxxx@xxx.xxx | ||||||
| Email: | ||||||
28.
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| NAME OF INVESTING ENTITY | ||||||
| XXXXXXX X. XXXX AND XXXXXXXXX X. XXXX AS TRUSTEES OF XXXXXXX X. AND XXXXXXXXX X. XXXX TRUST AGREEMENT DATED 10/31/00 | ||||||
| AUTHORIZED SIGNATORY | ||||||
| By: | /s/ Xxxxxx Xxx
|
|||||
| Name: Xxxxxx Xxx | ||||||
| Title: Power of Attorney | ||||||
| ADDRESS FOR NOTICE | ||||||
| x/x Xxxxxx Xxxx Xxxxxxxx | ||||||
| Xxxxxx: 000 Xxxx Xxxx Xx., Xxxxx X-000 | ||||||
| Xxxx/Xxxxx/Xxx: Xxxx Xxxx, XX 00000-0000 | ||||||
| Attention: Xxxxxx Xxx | ||||||
| Tel: (000) 000-0000 | ||||||
| Fax: | ||||||
| Email: xxxxxx@xxx.xxx | ||||||
| Email: | ||||||
29.
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| NAME OF INVESTING ENTITY | ||||||
| XXXXXX X. XXXXXXX AND XXXXXX X. XXXXXXX AS TRUSTEES OF XXXXXXX 2003 TRUST | ||||||
| AUTHORIZED SIGNATORY | ||||||
| By: | /s/ Xxxxxx Xxx
|
|||||
| Name: Xxxxxx Xxx | ||||||
| Title: Power of Attorney | ||||||
| ADDRESS FOR NOTICE | ||||||
| x/x Xxxxxx Xxxx Xxxxxxxx | ||||||
| Xxxxxx: 000 Xxxx Xxxx Xx., Xxxxx X-000 | ||||||
| Xxxx/Xxxxx/Xxx: Xxxx Xxxx, XX 00000-0000 | ||||||
| Attention: Xxxxxx Xxx | ||||||
| Tel: (000) 000-0000 | ||||||
| Fax: | ||||||
| Email: xxxxxx@xxx.xxx | ||||||
30.
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| NAME OF INVESTING ENTITY | ||||||
| Xxxxx Fargo Bank, N.A. FBO SHV Profit Sharing Plan FBO Xxxxx X. Xxxxxxxx | ||||||
| AUTHORIZED SIGNATORY | ||||||
| By: | /s/ Xxxxx X. Xxxxxx | |||||
| Name: Xxxxx X. Xxxxxx | ||||||
| Title: Assistant Vice President Trust Officer | ||||||
| ADDRESS FOR NOTICE | ||||||
| x/x Xxxxxx Xxxx Xxxxxxxx | ||||||
| Xxxxxx: 000 Xxxx Xxxx Xx., Xxxxx X-000 | ||||||
| Xxxx/Xxxxx/Xxx: Xxxx Xxxx, XX 00000-0000 | ||||||
| Attention: Xxxxxx Xxx | ||||||
| Tel: (000) 000-0000 | ||||||
| Fax: | ||||||
| Email: xxxxxx@xxx.xxx | ||||||
| Email: | ||||||
31.
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
| NAME OF INVESTING ENTITY | ||||||
| Xxxxx Fargo Bank, N.A. FBO SHV Profit Sharing Plan FBO Xxxxxxx X. Xxxxxxx, Xx. | ||||||
| AUTHORIZED SIGNATORY | ||||||
| By: | /s/ Xxxxx X. Xxxxxx
|
|||||
| Name: Xxxxx X. Xxxxxx | ||||||
| Title: Assistant Vice President Trust Officer | ||||||
| ADDRESS FOR NOTICE | ||||||
| x/x Xxxxxx Xxxx Xxxxxxxx | ||||||
| Xxxxxx: 000 Xxxx Xxxx Xx., Xxxxx X-000 | ||||||
| Xxxx/Xxxxx/Xxx: Xxxx Xxxx, XX 00000-0000 | ||||||
| Attention: Xxxxxx Xxx | ||||||
| Tel: (000) 000-0000 | ||||||
| Fax: | ||||||
| Email: xxxxxx@xxx.xxx | ||||||
| Email: | ||||||
32.
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| NAME OF INVESTING ENTITY | ||||||
| Xxxxx Fargo Bank, N.A. FBO SHV Profit Sharing Plan FBO Xxxxx Xxxx | ||||||
| AUTHORIZED SIGNATORY | ||||||
| By: | /s/ Xxxxx X. Xxxxxx
|
|||||
| Name: Xxxxx X. Xxxxxx | ||||||
| Title: Assistant Vice President Trust Officer | ||||||
| ADDRESS FOR NOTICE | ||||||
| x/x Xxxxxx Xxxx Xxxxxxxx | ||||||
| Xxxxxx: 000 Xxxx Xxxx Xx., Xxxxx X-000 | ||||||
| Xxxx/Xxxxx/Xxx: Xxxx Xxxx, XX 00000-0000 | ||||||
| Attention: Xxxxxx Xxx | ||||||
| Tel: (000) 000-0000 | ||||||
| Fax: | ||||||
| Email: xxxxxx@xxx.xxx | ||||||
| Email: | ||||||
33.
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| NAME OF INVESTING ENTITY | ||||||
| Xxxxx Fargo Bank, N.A. FBO SHV Profit Sharing Plan FBO Xxxxx X. Xxxxx (Rollover) | ||||||
| AUTHORIZED SIGNATORY | ||||||
| By: | /s/ Xxxxx X. Xxxxxx | |||||
| Title: Assistant Vice President Trust Officer | ||||||
| ADDRESS FOR NOTICE | ||||||
| x/x Xxxxxx Xxxx Xxxxxxxx | ||||||
| Xxxxxx: 000 Xxxx Xxxx Xx., Xxxxx X-000 | ||||||
| Xxxx/Xxxxx/Xxx: Xxxx Xxxx, XX 00000-0000 | ||||||
| Attention: Xxxxxx Xxx | ||||||
| Tel: (000) 000-0000 | ||||||
| Fax: | ||||||
| Email: xxxxxx@xxx.xxx | ||||||
| Email: | ||||||
34.
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| NAME OF INVESTING ENTITY | ||||||
| Xxxxx Fargo Bank, N.A. FBO SHV Profit Sharing Plan FBO Xxxxx X. Xxxx | ||||||
| AUTHORIZED SIGNATORY | ||||||
| By: | /s/ Xxxxx X. Xxxxxx
|
|||||
| Title: Assistant Vice President Trust Officer | ||||||
| ADDRESS FOR NOTICE | ||||||
| x/x Xxxxxx Xxxx Xxxxxxxx | ||||||
| Xxxxxx: 000 Xxxx Xxxx Xx., Xxxxx X-000 | ||||||
| Xxxx/Xxxxx/Xxx: Xxxx Xxxx, XX 00000-0000 | ||||||
| Attention: Xxxxxx Xxx | ||||||
| Tel: (000) 000-0000 | ||||||
| Fax: | ||||||
| Email: xxxxxx@xxx.xxx | ||||||
| Email: | ||||||
35.
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| NAME OF INVESTING ENTITY | ||||||
| Xxxxx Fargo Bank, N.A. FBO SHV Profit Sharing Plan FBO Yu-Xxxx Xxxx | ||||||
| AUTHORIZED SIGNATORY | ||||||
| By: | /s/ Xxxxx X. Xxxxxx
|
|||||
| Name: Xxxxx X. Xxxxxx | ||||||
| Title: Assistant Vice President Trust Officer | ||||||
| ADDRESS FOR NOTICE | ||||||
| x/x Xxxxxx Xxxx Xxxxxxxx | ||||||
| Xxxxxx: 000 Xxxx Xxxx Xx., Xxxxx X-000 | ||||||
| Xxxx/Xxxxx/Xxx: Xxxx Xxxx, XX 00000-0000 | ||||||
| Attention: Xxxxxx Xxx | ||||||
| Tel: (000) 000-0000 | ||||||
| Fax: | ||||||
| Email: xxxxxx@xxx.xxx | ||||||
| Email: | ||||||
36.
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| NAME OF INVESTING ENTITY | ||||||
| Xxxxx Fargo Bank, N.A. FBO SHV Profit Sharing Plan FBO Xxxxxxxx Xxx (Rollover) | ||||||
| AUTHORIZED SIGNATORY | ||||||
| By: | /s/ Xxxxx X. Xxxxxx | |||||
| Title: Assistant Vice President Trust Officer | ||||||
| ADDRESS FOR NOTICE | ||||||
| x/x Xxxxxx Xxxx Xxxxxxxx | ||||||
| Xxxxxx: 000 Xxxx Xxxx Xx., Xxxxx X-000 | ||||||
| Xxxx/Xxxxx/Xxx: Xxxx Xxxx, XX 00000-0000 | ||||||
| Attention: Xxxxxx Xxx | ||||||
| Tel: (000) 000-0000 | ||||||
| Fax: | ||||||
| Email: xxxxxx@xxx.xxx | ||||||
| Email: | ||||||
37.
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| NAME OF INVESTING ENTITY | ||||||
| Xxxxx Fargo Bank, N.A. FBO SHV Profit Sharing Plan FBO Xxxxxx Xxx | ||||||
| AUTHORIZED SIGNATORY | ||||||
| By: | /s/ Xxxxx X. Xxxxxx
|
|||||
| Name: Xxxxx X. Xxxxxx | ||||||
| Title: Assistant Vice President Trust Officer | ||||||
| ADDRESS FOR NOTICE | ||||||
| x/x Xxxxxx Xxxx Xxxxxxxx | ||||||
| Xxxxxx: 000 Xxxx Xxxx Xx., Xxxxx X-000 | ||||||
| Xxxx/Xxxxx/Xxx: Xxxx Xxxx, XX 00000-0000 | ||||||
| Attention: Xxxxxx Xxx | ||||||
| Tel: (000) 000-0000 | ||||||
| Fax: | ||||||
| Email: xxxxxx@xxx.xxx | ||||||
38.
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| NAME OF INVESTING ENTITY | ||||||
| Xxxxxx Partners, L.P. | ||||||
| AUTHORIZED SIGNATORY | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxx
|
|||||
| Title: Managing Member | ||||||
| ADDRESS FOR NOTICE | ||||||
| Street: 000 Xxxxxxxx Xxxxxxx, Xxxxx 000 | ||||||
| Xxxx/Xxxxx/Xxx: Xxxxxxx, XX 00000 | ||||||
| Attention: Xxxxxxx X. Xxxxxx | ||||||
| Tel: 000-000-0000 | ||||||
| Fax: 000-000-0000 | ||||||
39.
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| NAME OF INVESTOR | ||||||
| Xxxxx and Xxxxx Xxxxxx | ||||||
| INVESTOR SIGNATORY | ||||||
| /s/ Xxxxx and Xxxxx Xxxxxx | ||||||
| ADDRESS FOR NOTICE | ||||||
| Street: 000 Xx. Xxxxx | ||||||
| Xxxx/Xxxxx/Xxx: Xxxxxxxxx, XX 00000 | ||||||
| Attention: Xxxxx | ||||||
| Tel: 000-000-0000 | ||||||
| Fax: | ||||||
40.
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| NAME OF INVESTOR | ||||||
| Xxxx Xxxxx | ||||||
| INVESTOR SIGNATORY | ||||||
| /s/ Xxxx Xxxxx | ||||||
| ADDRESS FOR NOTICE | ||||||
| c/o Allen & Company LLC | ||||||
| Street: | 000 Xxxxx Xxxxxx | |||||
| Xxxx/Xxxxx/Xxx: Xxx Xxxx, XX 00000 | ||||||
| Attention: | ||||||
| Tel: | ||||||
| Fax: | ||||||
41.
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| NAME OF INVESTOR | ||||
| Xxxxx Xxxxx | ||||
| INVESTOR SIGNATORY | ||||
| /s/ Xxxxx Xxxxx |
||||
| ADDRESS FOR NOTICE | ||||
| c/o Allen & Company LLC |
||||
| Street: 000 Xxxxx Xxxxxx | ||||
| Xxxx/Xxxxx/Xxx: Xxx Xxxx, XX 00000 | ||||
| Attention: | ||||
| Tel: | ||||
| Fax: | ||||
42.
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| NAME OF INVESTOR | ||||
| Xxxx Xxxxxx | ||||
| INVESTOR SIGNATORY | ||||
| /s/ Xxxx Xxxxxx
|
||||
| ADDRESS FOR NOTICE | ||||
c/o
Allen & Company LLC
|
||||
| Street: 000 Xxxxx Xxxxxx | ||||
| Xxxx/Xxxxx/Xxx: Xxx Xxxx, XX 00000 | ||||
| Attention: | ||||
| Tel: | ||||
| Fax: | ||||
43.
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| NAME OF INVESTOR | ||||
| Xxx Xxxxxx Xxxxxxx Trust | ||||
| INVESTOR SIGNATORY | ||||
| /s/ Xxx Xxxxxxx, Trustee
|
||||
| ADDRESS FOR NOTICE | ||||
| Street: X.X. Xxx 000 | ||||
| Xxxx/Xxxxx/Xxx: Xxxxxxx Xxxx, X.X. 00000 | ||||
| Attention: Xxx Xxxxxxx, Trustee | ||||
| Tel: 000-000-0000 | ||||
| Fax: 000-000-0000 | ||||
44.
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| NAME OF INVESTING ENTITY Prescott Group Capital Management AUTHORIZED SIGNATORY |
||||
| By: | /s/ Xxxx Xxxxxxxx | |||
| Name: | Xxxx Xxxxxxxx | |||
| Title: | Manager | |||
| ADDRESS FOR NOTICE | ||||
| c/o
|
||||
| Street: 0000 X. Xxxxx Xxx., Xxxxx 0000 | ||||
| City/State/Zip: Xxxxx, Xxxxxxxx 00000 | ||||
| City/State/Zip: | ||||
| Attention: | ||||
| Tel: (918) 747-33412 ext. 3(Xxxx Xxxxx) (918) 747-3412 ext. 4 (Xxxxxxx XxXxxxx) | ||||
| Fax: (000) 000-0000 | ||||
| Email: xxxx@xxxxxxxxxxxxxxx.xxx | ||||
| Email: xxxxxxx@xxxxxxxxxxxxxxx.xxx | ||||
45.
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| NAME OF INVESTING ENTITY Wasatch Ultra Growth Fund AUTHORIZED SIGNATORY |
||||
| By: | /s/ Xxxxxx Xxxxxxx | |||
| Name: | Xxxxxx Xxxxxxx | |||
| Title: | ||||
| ADDRESS FOR NOTICE | ||||
| Street: 000 Xxxxxx Xxxx Xxx., 0xx Xxxxx | ||||
| Xxxx/Xxxxx/Xxx: Xxxx Xxxx Xxxx, XX 00000 | ||||
| Attention: Xxxxx Xxxxxxxx/Xxx Xxxxxxx | ||||
| Tel: (000) 000-0000 | ||||
| Fax: | ||||
| Email: xxxxxxxxx@xxxxxxxxxxxxxxx.xxx | ||||
| Email: xxxxxxxx@xxxxxxxxxxxxxxx.xxx |
46.
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| NAME OF INVESTING ENTITY Wasatch Micro Cap Fund AUTHORIZED SIGNATORY |
||||
| By: | /s/ Xxxxxx Xxxxxxx | |||
| Name: | Xxxxxx Xxxxxxx | |||
| Title: | ||||
| ADDRESS FOR NOTICE | ||||
| Street: 000 Xxxxxx Xxxx Xxx., 0xx Xxxxx | ||||
| Xxxx/Xxxxx/Xxx: Xxxx Xxxx Xxxx, XX 00000 | ||||
| Attention: Xxxxx Xxxxxxxx/Xxx Xxxxxxx | ||||
| Tel: (000) 000-0000 | ||||
| Fax: | ||||
| Email: xxxxxxxxx@xxxxxxxxxxxxxxx.xxx | ||||
| Email: xxxxxxxx@xxxxxxxxxxxxxxx.xxx |
47.
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| NAME OF INVESTING ENTITY Wasatch Global Science & Technology Fund AUTHORIZED SIGNATORY |
||||
| By: | /s/ Xxxxxx Xxxxxxx | |||
| Name: | Xxxxxx Xxxxxxx | |||
| Title: | ||||
| ADDRESS FOR NOTICE | ||||
| Street: 000 Xxxxxx Xxxx Xxx., 0xx Xxxxx | ||||
| Xxxx/Xxxxx/Xxx: Xxxx Xxxx Xxxx, XX 00000 | ||||
| Attention: Xxxxx Xxxxxxxx/Xxx Xxxxxxx | ||||
| Tel: (000) 000-0000 | ||||
| Fax: | ||||
| Email: xxxxxxxxx@xxxxxxxxxxxxxxx.xxx | ||||
| Email: xxxxxxxx@xxxxxxxxxxxxxxx.xxx |
48.
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| NAME OF INVESTING ENTITY Wasatch Micro Cap Value Fund AUTHORIZED SIGNATORY |
||||
| By: | /s/ Xxxxxx Xxxxxxx | |||
| Name: | Xxxxxx Xxxxxxx | |||
| Title: | ||||
| ADDRESS FOR NOTICE | ||||
| Street: 000 Xxxxxx Xxxx Xxx., 0xx Xxxxx | ||||
| Xxxx/Xxxxx/Xxx: Xxxx Xxxx Xxxx, XX 00000 | ||||
| Attention: Xxxxx Xxxxxxxx/Xxx Xxxxxxx | ||||
| Tel: (000) 000-0000 | ||||
| Fax: | ||||
| Email: xxxxxxxxx@xxxxxxxxxxxxxxx.xxx | ||||
| Email: xxxxxxxx@xxxxxxxxxxxxxxx.xxx |
49.
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| NAME OF INVESTING ENTITY Wasatch Global Opportunities Fund AUTHORIZED SIGNATORY |
||||
| By: | /s/ Xxxxxx Xxxxxxx | |||
| Name: | Xxxxxx Xxxxxxx | |||
| Title: | ||||
| ADDRESS FOR NOTICE | ||||
| Street: 000 Xxxxxx Xxxx Xxx., 0xx Xxxxx | ||||
| Xxxx/Xxxxx/Xxx: Xxxx Xxxx Xxxx, XX 00000 | ||||
| Attention: Xxxxx Xxxxxxxx/Xxx Xxxxxxx | ||||
| Tel: (000) 000-0000 | ||||
| Fax: | ||||
| Email: xxxxxxxxx@xxxxxxxxxxxxxxx.xxx | ||||
| Email: xxxxxxxx@xxxxxxxxxxxxxxx.xxx |
50.
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| NAME OF INVESTING ENTITY DAFNA Life Science Ltd. AUTHORIZED SIGNATORY |
||||
| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxx, CFA | |||
| Title: Director of Risk Management and Chief Compliance Officer of Investment Manager on behalf of DAFNA Life Science Ltd. | ||||
| ADDRESS FOR NOTICE | ||||
| c/o DAFNA Capital Management, LLC | ||||
| Street: 00000 Xxxxxxxx Xxxx., Xxxxx 0000 | ||||
| Xxxx/Xxxxx/Xxx: Xxx Xxxxxxx, XX 00000 | ||||
| Attention: Xxxxx Xxxxxxx | ||||
| Tel: (000) 000-0000 | ||||
| Fax: | ||||
| Email: xxxxxxxx@XXXXXxxxxxxx.xxx |
51.
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| NAME OF INVESTING ENTITY | ||||||
| DAFNA Life Science Market Neutral Ltd. | ||||||
| AUTHORIZED SIGNATORY | ||||||
| By: | /s/ Xxxxxxx Xxxxxxx | |||||
| Name: Xxxxxxx Xxxxxxx, CFA | ||||||
| Title: Director of Risk Management and Chief Compliance Officer of Investment Manager on behalf of DAFNA Life Science Market Neutral Ltd. | ||||||
| ADDRESS FOR NOTICE | ||||||
| c/o DAFNA Capital Management, LLC | ||||||
| Street: 00000 Xxxxxxxx Xxxx., Xxxxx 0000 | ||||||
| Xxxx/Xxxxx/Xxx: Xxx Xxxxxxx, XX 00000 | ||||||
| Attention: Xxxxx Xxxxxxx | ||||||
| Tel: (000) 000-0000 | ||||||
| Fax: | ||||||
| Email: xxxxxxxx@XXXXXxxxxxxx.xxx | ||||||
52.
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| NAME OF INVESTING ENTITY | ||||||
| DAFNA Life Science Select Ltd. | ||||||
| AUTHORIZED SIGNATORY | ||||||
| By: | /s/ Xxxxxxx Xxxxxxx | |||||
| Name: Xxxxxxx Xxxxxxx, CFA | ||||||
| Title: Director of Risk Management and Chief Compliance Officer of Investment Manager on behalf of DAFNA Life Science Select Ltd. | ||||||
| ADDRESS FOR NOTICE | ||||||
| c/o DAFNA Capital Management, LLC | ||||||
| Street: 00000 Xxxxxxxx Xxxx., Xxxxx 0000 | ||||||
| Xxxx/Xxxxx/Xxx: Xxx Xxxxxxx, XX 00000 | ||||||
| Attention: Xxxxx Xxxxxxx | ||||||
| Tel: (000) 000-0000 | ||||||
| Fax: | ||||||
| Email: xxxxxxxx@XXXXXxxxxxxx.xxx | ||||||
53.
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| NAME OF INVESTING ENTITY | ||||||
| Xxxxx Xxx Corporation | ||||||
| AUTHORIZED SIGNATORY | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||||
| Xxxxx Xxx Corporation | ||||||
| Xxxxxxx Capital Management Inc., Attorney-In-Fact By Xxxxxxx X. Xxxxxxx, Executive Vice President |
||||||
| ADDRESS FOR NOTICE | ||||||
| Street: 000 Xxxx Xxxx Xxxxxx | ||||||
| Xxxx/Xxxxx/Xxx: Xxxxxxx, XX 00000-0000 | ||||||
| Attention: Xxxxxxx X. Xxxxxxx | ||||||
| Tel: (000) 000-0000 | ||||||
| Fax: (000) 000-0000 | ||||||
| Email: xxxxxx@xxxxxxxxxx.xxx | ||||||
54.
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| NAME OF INVESTING ENTITY | ||||||
| Xxxxxx X. Xxxxxxx | ||||||
| AUTHORIZED SIGNATORY | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||||
| Xxxxxx X. Xxxxxxx | ||||||
| Xxxxxxx Capital Management Inc., Attorney-In-Fact By Xxxxxxx X. Xxxxxxx, Executive Vice President |
||||||
| ADDRESS FOR NOTICE | ||||||
| Street: 000 Xxxx Xxxx Xxxxxx | ||||||
| Xxxx/Xxxxx/Xxx: Xxxxxxx, XX 00000-0000 | ||||||
| Attention: Xxxxxxx X. Xxxxxxx | ||||||
| Tel: (000) 000-0000 | ||||||
| Fax: (000) 000-0000 | ||||||
| Email: xxxxxx@xxxxxxxxxx.xxx | ||||||
55.
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| NAME OF INVESTING ENTITY | ||||||
| Xxxxxxx X. Xxxxxx Trustee FBO Xxxxxxx X. Xxxxxx Revocable Trust u/a/ dtd 7/3/96 | ||||||
| AUTHORIZED SIGNATORY | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||||
| Xxxxxxx X. Xxxxxx Trustee FBO Xxxxxxx X. Xxxxxx Revocable Trust u/a/ dtd 7/3/96 | ||||||
| Xxxxxxx Capital Management Inc., Attorney-In-Fact By Xxxxxxx X. Xxxxxxx, Executive Vice President |
||||||
| ADDRESS FOR NOTICE | ||||||
| Street: 000 Xxxx Xxxx Xxxxxx | ||||||
| Xxxx/Xxxxx/Xxx: Xxxxxxx, XX 00000-0000 | ||||||
| Attention: Xxxxxxx X. Xxxxxxx | ||||||
| Tel: (000) 000-0000 | ||||||
| Fax: (000) 000-0000 | ||||||
| Email: xxxxxx@xxxxxxxxxx.xxx | ||||||
56.
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| NAME OF INVESTING ENTITY | ||||||
| Xxxx X. Xxxxxxx | ||||||
| AUTHORIZED SIGNATORY | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||||
| Xxxx X. Xxxxxxx | ||||||
| Xxxxxxx Capital Management Inc., Attorney-In-Fact By Xxxxxxx X. Xxxxxxx, Executive Vice President |
||||||
| ADDRESS FOR NOTICE | ||||||
| Street: 000 Xxxx Xxxx Xxxxxx | ||||||
| Xxxx/Xxxxx/Xxx: Xxxxxxx, XX 00000-0000 | ||||||
| Attention: Xxxxxxx X. Xxxxxxx | ||||||
| Tel: (000) 000-0000 | ||||||
| Fax: (000) 000-0000 | ||||||
| Email: xxxxxx@xxxxxxxxxx.xxx | ||||||
57.
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| NAME OF INVESTING ENTITY | ||||||
| Xxxxx Xxxxxxx as Custodian FBO Xxxxxx X. Xxxxxxxxx XXX | ||||||
| AUTHORIZED SIGNATORY | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||||
| Xxxxx Xxxxxxx as Custodian FBO Xxxxxx X. Xxxxxxxxx XXX | ||||||
| Xxxxxxx Capital Management Inc., Attorney-In-Fact By Xxxxxxx X. Xxxxxxx, Executive Vice President |
||||||
| ADDRESS FOR NOTICE | ||||||
| Street: 000 Xxxx Xxxx Xxxxxx | ||||||
| Xxxx/Xxxxx/Xxx: Xxxxxxx, XX 00000-0000 | ||||||
| Attention: Xxxxxxx X. Xxxxxxx | ||||||
| Tel: (000) 000-0000 | ||||||
| Fax: (000) 000-0000 | ||||||
58.
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| NAME OF INVESTING ENTITY | ||||||
| Xxxxxx X. Xxxxxx | ||||||
| AUTHORIZED SIGNATORY | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||||
| Xxxxxx X. Xxxxxx | ||||||
| Xxxxxxx Capital Management Inc., Attorney-In-Fact By Xxxxxxx X. Xxxxxxx, Executive Vice President |
||||||
| ADDRESS FOR NOTICE | ||||||
| Street: 000 Xxxx Xxxx Xxxxxx | ||||||
| Xxxx/Xxxxx/Xxx: Xxxxxxx, XX 00000-0000 | ||||||
| Attention: Xxxxxxx X. Xxxxxxx | ||||||
| Tel: (000) 000-0000 | ||||||
| Fax: (000) 000-0000 | ||||||
59.
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| NAME OF INVESTING ENTITY | ||||||
| Preventive Cardiovascular Nurses Association | ||||||
| AUTHORIZED SIGNATORY | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||||
| Preventive Cardiovascular Nurses Association | ||||||
| Xxxxxxx Capital Management Inc., Attorney-In-Fact By Xxxxxxx X. Xxxxxxx, Executive Vice President |
||||||
| ADDRESS FOR NOTICE | ||||||
| Street: 000 Xxxx Xxxx Xxxxxx | ||||||
| Xxxx/Xxxxx/Xxx: Xxxxxxx, XX 00000-0000 | ||||||
| Attention: Xxxxxxx X. Xxxxxxx | ||||||
| Tel: (000) 000-0000 | ||||||
| Fax: (000) 000-0000 | ||||||
60.
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| NAME OF INVESTING ENTITY | ||||||
| Xxxxxx X. & Xxxxx X. Xxxxxx TTEE’s FBO Xxxxx X. Xxxxxx Trust U/A dtd 8/29/96 | ||||||
| AUTHORIZED SIGNATORY | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||||
| Xxxxxx X. & Xxxxx X. Xxxxxx TTEE’s FBO Xxxxx X. Xxxxxx Trust U/A dtd 8/29/96 | ||||||
| Xxxxxxx Capital Management Inc., Attorney-In-Fact By Xxxxxxx X. Xxxxxxx, Executive Vice President |
||||||
| ADDRESS FOR NOTICE | ||||||
| Street: 000 Xxxx Xxxx Xxxxxx | ||||||
| Xxxx/Xxxxx/Xxx: Xxxxxxx, XX 00000-0000 | ||||||
| Attention: Xxxxxxx X. Xxxxxxx | ||||||
| Tel: (000) 000-0000 | ||||||
| Fax: (000) 000-0000 | ||||||
61.
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| NAME OF INVESTING ENTITY | ||||||
| Xxxxx & Xxxxxx Xxxxxx Trustees FBO Xxxxx & Xxxxxx Xxxxx Revocable Trust u/a/ dtd 10/23/97 | ||||||
| AUTHORIZED SIGNATORY | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||||
| Xxxxx & Xxxxxx Xxxxxx Trustees FBO Xxxxx & Xxxxxx Xxxxx Revocable Trust u/a/ dtd 10/23/97 | ||||||
| Xxxxxxx Capital Management Inc., Attorney-In-Fact By Xxxxxxx X. Xxxxxxx, Executive Vice President |
||||||
| ADDRESS FOR NOTICE | ||||||
| Street: 000 Xxxx Xxxx Xxxxxx | ||||||
| Xxxx/Xxxxx/Xxx: Xxxxxxx, XX 00000-0000 | ||||||
| Attention: Xxxxxxx X. Xxxxxxx | ||||||
| Tel: (000) 000-0000 | ||||||
| Fax: (000) 000-0000 | ||||||
62.
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| NAME OF INVESTING INDIVIDUAL | ||||||
| Xxxxxxx X. Xxxxxxx | ||||||
| AUTHORIZED SIGNATORY | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||||
| Name: Xxxxxxx X. Xxxxxxx | ||||||
| Title: | ||||||
| ADDRESS FOR NOTICE | ||||||
| x/x Xxxxxxx Xxxxx & Xx | ||||||
| Xxxxxx: 000 Xxxx Xxxxx Xx. | ||||||
| Xxxx/Xxxxx/Xxx: Xxxxxxx, XX 00000 | ||||||
| Attention: | ||||||
| Tel: (000) 000-0000 | ||||||
| Fax: | ||||||
| Email: xxx@xxxxxxx.xxx | ||||||
63.
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| NAME OF INVESTING INDIVIDUAL | ||||||
| Xxxxx Xxxxxx | ||||||
| AUTHORIZED SIGNATORY | ||||||
| By: | /s/ Xxxxx Xxxxxx | |||||
| Name: Xxxxx Xxxxxx | ||||||
| Title: | ||||||
| ADDRESS FOR NOTICE | ||||||
| x/x | ||||||
| Xxxxxx: 0 Xxxxxxxxxx Xxxxx | ||||||
| Xxxx/Xxxxx/Xxx: Xxx Xxxxxxxx, XX 00000 | ||||||
| Attention: Xxxxx Xxxxxx | ||||||
| Tel: (000) 000-0000 | ||||||
| Fax: (000) 000-0000 | ||||||
| Email: Xxxxx@xxxxxx.xxx | ||||||
64.
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| NAME OF INVESTING INDIVIDUAL | ||||||
| Xxxxxxx X. Xxxxxx | ||||||
| AUTHORIZED SIGNATORY | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||||
| Name: Xxxxxxx X. Xxxxxx | ||||||
| Title: | ||||||
| ADDRESS FOR NOTICE | ||||||
| c/o Cardica, Inc. | ||||||
| Street: 000 Xxxxxxx Xxxxx | ||||||
| Xxxx/Xxxxx/Xxx: Xxxxxxx Xxxx, XX 00000 | ||||||
| Attention: Xxxxxxx X. Xxxxxx | ||||||
| Tel: (000) 000-0000 | ||||||
| Fax: | ||||||
| Email: xxxxxx@xxxxxxx.xxx | ||||||
65.
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| NAME OF INVESTING INDIVIDUAL | ||||||
| Xxxxxx X. Xxxxxx and
Xxxxx X. Xxxxxx, Trustees Xxxxxx Family 1999 Trust UA Dated 10/12/99 |
||||||
| AUTHORIZED SIGNATORY | ||||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||||
| Name: Xxxxxx X. Xxxxxx | ||||||
| Title: Trustee | ||||||
| ADDRESS FOR NOTICE | ||||||
| c/o Cardica, Inc. | ||||||
| Street: 000 Xxxxxxx Xxxxx | ||||||
| Xxxx/Xxxxx/Xxx: Xxxxxxx Xxxx, XX 00000 | ||||||
| Attention: Xxxxxx X. Xxxxxx | ||||||
| Tel: (000) 000-0000 | ||||||
| Fax: | ||||||
| Email: xxxxxx@xxxxxxx.xxx | ||||||
66.
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| NAME OF INVESTING INDIVIDUAL | ||||||
| Xxxxx X. Xxxxxx | ||||||
| By: | /s/ Xxxxx X. Xxxxxx | |||||
| Name: Xxxxx X. Xxxxxx | ||||||
| ADDRESS FOR NOTICE | ||||||
| c/o Cardica, Inc. | ||||||
| Street: 000 Xxxxxxx Xxxxx | ||||||
| Xxxx/Xxxxx/Xxx: Xxxxxxx Xxxx, XX 00000 | ||||||
| Attention: Xxxxx X. Xxxxxx | ||||||
| Tel: (000) 000-0000 | ||||||
| Fax: | ||||||
| Email: xxxxxx@xxxxxxx.xxx | ||||||
67.
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| NAME OF INVESTING INDIVIDUAL | ||||||
| Xxxxxxxxx X. Xxxxx | ||||||
| AUTHORIZED SIGNATORY | ||||||
| By: | /s/ Xxxxxxxxx X. Xxxxx | |||||
| Name: Xxxxxxxxx X. Xxxxx | ||||||
| ADDRESS FOR NOTICE | ||||||
| c/o Cardica, Inc. | ||||||
| Street: 000 Xxxxxxx Xxxxx | ||||||
| Xxxx/Xxxxx/Xxx: Xxxxxxx Xxxx, XX 00000 | ||||||
| Attention: | ||||||
| Tel: (000) 000-0000 | ||||||
| Fax: | ||||||
|
|
||||||
| Email: xxxxxx@xxxxxxx.xxx | ||||||
68.
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| NAME OF INVESTING INDIVIDUAL | ||||||
| J. Xxxxxxx Xxxx | ||||||
| AUTHORIZED SIGNATORY | ||||||
| By: | /s/ J. Xxxxxxx Xxxx | |||||
| Name: J. Xxxxxxx Xxxx | ||||||
| ADDRESS FOR NOTICE | ||||||
| c/o Xxxxxxxx Xxxxxxx Research Foundation | ||||||
| Street: 000 X. Xxxxx Xxxxx, Xxxxx 0000 | ||||||
| Xxxx/Xxxxx/Xxx: Xxxx, XX 00000 | ||||||
| Street: (000) 000-0000 | ||||||
| City/State/Zip: | ||||||
| Attention: | ||||||
| Tel: | ||||||
| Fax: | ||||||
| Email: Xxxx.xxxx@xxxxx.xxx | ||||||
69.
Annex A
PLAN OF DISTRIBUTION
We are registering the shares of common stock issued to the selling stockholders and issuable
upon exercise of the warrants issued to the selling stockholders to permit the resale of these
shares of common stock by the holders of the shares of common stock and warrants from time to time
after the date of this prospectus. We will not receive any of the proceeds from the sale by the
selling stockholders of the shares of common stock. We will bear all fees and expenses incident to
our obligation to register the shares of common stock.
The selling stockholders may sell all or a portion of the shares of common stock beneficially
owned by them and offered hereby from time to time directly or through one or more underwriters,
broker-dealers or agents. If the shares of common stock are sold through underwriters or
broker-dealers, the selling stockholders will be responsible for underwriting discounts or
commissions or agent’s commissions. The shares of common stock may be sold on any national
securities exchange or quotation service on which the securities may be listed or quoted at the
time of sale, in the over-the-counter market or in transactions otherwise than on these exchanges
or systems or in the over-the-counter market and in one or more transactions at fixed prices, at
prevailing market prices at the time of the sale, at varying prices determined at the time of sale,
or at negotiated prices. These sales may be effected in transactions, which may involve crosses or
block transactions. The selling stockholders may use any one or more of the following methods when
selling shares:
| • | ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers; | ||
| • | block trades in which the broker-dealer will attempt to sell the shares as agent but may position and resell a portion of the block as principal to facilitate the transaction; | ||
| • | purchases by a broker-dealer as principal and resale by the broker-dealer for its account; | ||
| • | an exchange distribution in accordance with the rules of the applicable exchange; | ||
| • | privately negotiated transactions; | ||
| • | settlement of short sales entered into after the effective date of the registration statement of which this prospectus is a part; | ||
| • | broker-dealers may agree with the selling stockholders to sell a specified number of such shares at a stipulated price per share; | ||
| • | through the writing or settlement of options or other hedging transactions, whether such options are listed on an options exchange or otherwise; | ||
| • | a combination of any such methods of sale; and | ||
| • | any other method permitted pursuant to applicable law. |
70.
The selling stockholders also may resell all or a portion of the shares in open market
transactions in reliance upon Rule 144 under the Securities Act, as permitted by that rule, or
Section 4(1) under the Securities Act, if available, rather than under this prospectus, provided
that they meet the criteria and conform to the requirements of those provisions.
Broker-dealers engaged by the selling stockholders may arrange for other broker-dealers to
participate in sales. If the selling stockholders effect such transactions by selling shares of
common stock to or through underwriters, broker-dealers or agents, such underwriters,
broker-dealers or agents may receive commissions in the form of discounts, concessions or
commissions from the selling stockholders or commissions from purchasers of the shares of common
stock for whom they may act as agent or to whom they may sell as principal. Such commissions will
be in amounts to be negotiated, but, except as set forth in a supplement to this Prospectus, in the
case of an agency transaction will not be in excess of a customary brokerage commission in
compliance with NASD Rule 2440; and in the case of a principal transaction a markup or markdown in
compliance with NASD IM-2440.
In connection with sales of the shares of common stock or otherwise, the selling stockholders
may enter into hedging transactions with broker-dealers or other financial institutions, which may
in turn engage in short sales of the shares of common stock in the course of hedging in positions
they assume. The selling stockholders may also sell shares of common stock short and if such short
sale shall take place after the date that this Registration Statement is declared effective by the
Commission, the selling stockholders may deliver shares of common stock covered by this prospectus
to close out short positions and to return borrowed shares in connection with such short sales. The
selling stockholders may also loan or pledge shares of common stock to broker-dealers that in turn
may sell such shares, to the extent permitted by applicable law. The selling stockholders may also
enter into option or other transactions with broker-dealers or other financial institutions or the
creation of one or more derivative securities which require the delivery to such broker-dealer or
other financial institution of shares offered by this prospectus, which shares such broker-dealer
or other financial institution may resell pursuant to this prospectus (as supplemented or amended
to reflect such transaction). Notwithstanding the foregoing, the selling stockholders have been
advised that they may not use shares registered on this registration statement to cover short sales
of our common stock made prior to the date the registration statement, of which this prospectus
forms a part, has been declared effective by the SEC.
The selling stockholders may, from time to time, pledge or grant a security interest in some
or all of the warrants or shares of common stock owned by them and, if they default in the
performance of their secured obligations, the pledgees or secured parties may offer and sell the
shares of common stock from time to time pursuant to this prospectus or any amendment to this
prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act of 1933, as
amended, amending, if necessary, the list of selling stockholders to include the pledgee,
transferee or other successors in interest as selling stockholders under this prospectus. The
selling stockholders also may transfer and donate the shares of common stock in other circumstances
in which case the transferees, donees, pledgees or other successors in interest will be the selling
beneficial owners for purposes of this prospectus.
71.
The selling stockholders and any broker-dealer or agents participating in the distribution of
the shares of common stock may be deemed to be “underwriters” within the meaning of Section 2(11)
of the Securities Act in connection with such sales. In such event, any commissions paid, or any
discounts or concessions allowed to, any such broker-dealer or agent and any profit on the resale
of the shares purchased by them may be deemed to be underwriting commissions or discounts under the
Securities Act. Selling Stockholders who are “underwriters” within the meaning of Section 2(11) of
the Securities Act will be subject to the prospectus delivery requirements of the Securities Act
and may be subject to certain statutory liabilities of, including but not limited to, Sections 11,
12 and 17 of the Securities Act and Rule 10b-5 under the Securities Exchange Act of 1934, as
amended, or the Exchange Act.
Each selling stockholder has informed the Company that it is not a registered broker-dealer
and does not have any written or oral agreement or understanding, directly or indirectly, with any
person to distribute the common stock. Upon the Company being notified in writing by a selling
stockholder that any material arrangement has been entered into with a broker-dealer for the sale
of common stock through a block trade, special offering, exchange distribution or secondary
distribution or a purchase by a broker or dealer, a supplement to this prospectus will be filed, if
required, pursuant to Rule 424(b) under the Securities Act, disclosing (i) the name of each such
selling stockholder and of the participating broker-dealer(s), (ii) the number of shares involved,
(iii) the price at which such the shares of common stock were sold, (iv) the commissions paid or
discounts or concessions allowed to such broker-dealer(s), where applicable, (v) that such
broker-dealer(s) did not conduct any investigation to verify the information set out or
incorporated by reference in this prospectus, and (vi) other facts material to the transaction. In
no event shall any broker-dealer receive fees, commissions and markups, which, in the aggregate,
would exceed eight percent (8%).
Under the securities laws of some states, the shares of common stock may be sold in such
states only through registered or licensed brokers or dealers. In addition, in some states the
shares of common stock may not be sold unless such shares have been registered or qualified for
sale in such state or an exemption from registration or qualification is available and is complied
with.
There can be no assurance that any selling stockholder will sell any or all of the shares of
common stock registered pursuant to the shelf registration statement, of which this prospectus
forms a part.
Each selling stockholder and any other person participating in such distribution will be
subject to applicable provisions of the Securities Exchange Act of 1934, as amended, and the rules
and regulations thereunder, including, without limitation, Regulation M of the Exchange Act, which
may limit the timing of purchases and sales of any of the shares of common stock by the selling
stockholder and any other participating person. Regulation M may also restrict the ability of any
person engaged in the distribution of the shares of common stock to engage in market-making
activities with respect to the shares of common stock. All of the foregoing may affect the
marketability of the shares of common stock and the ability of any person or entity to engage in
market-making activities with respect to the shares of common stock.
72.
We will pay all expenses of the registration of the shares of common stock pursuant to the
registration rights agreement, including, without limitation, Securities and Exchange Commission
filing fees and expenses of compliance with state securities or “blue sky” laws; provided,
however, that each selling stockholder will pay all underwriting discounts and selling commissions,
if any, and any legal expenses incurred by it. We will indemnify the selling stockholders against
certain liabilities, including some liabilities under the Securities Act, in accordance with a
registration rights agreement, or the selling stockholders will be entitled to contribution. We may
be indemnified by the selling stockholders against civil liabilities, including liabilities under
the Securities Act, that may arise from any written information furnished to us by the selling
stockholders specifically for use in this prospectus, in accordance with the related registration
rights agreements, or we may be entitled to contribution.
73.
Annex B
CARDICA, INC.
SELLING STOCKHOLDER NOTICE AND QUESTIONNAIRE
The undersigned holder of shares of the common stock, par value $0.001 per share, of Cardica,
Inc., a Delaware corporation (the “Company”), issued pursuant to a certain Securities Purchase
Agreement by and among the Company and the Purchasers named therein,
dated as of September 25,
2009 (the “Agreement”), understands that the Company intends to file with the Securities and
Exchange Commission a registration statement on Form S-3 (the “Resale Registration Statement”) for
the registration and the resale under Rule 415 of the Securities Act of 1933, as amended (the
“Securities Act”), of the Registrable Securities in accordance with the terms of the Agreement. All
capitalized terms not otherwise defined herein shall have the meanings ascribed thereto in the
Agreement.
In order to sell or otherwise dispose of any Registrable Securities pursuant to the Resale
Registration Statement, a holder of Registrable Securities generally will be required to be named
as a selling stockholder in the related prospectus or a supplement thereto (as so supplemented, the
“Prospectus”), deliver the Prospectus to purchasers of Registrable Securities (including pursuant
to Rule 172 under the Securities Act) and be bound by the provisions of the Agreement (including
certain indemnification provisions, as described below). Holders must complete and deliver this
Notice and Questionnaire in order to be named as selling stockholders in the Prospectus. Holders
of Registrable Securities who do not complete, execute and return this Notice and Questionnaire
within ten (10) Trading Days following the date of the Agreement (1) will not be named as selling
stockholders in the Resale Registration Statement or the Prospectus and (2) may not use the
Prospectus for resales of Registrable Securities.
Certain legal consequences arise from being named as a selling stockholder in the Resale
Registration Statement and the Prospectus. Holders of Registrable Securities are advised to consult
their own securities law counsel regarding the consequences of being named or not named as a
selling stockholder in the Resale Registration Statement and the Prospectus.
NOTICE
The undersigned holder (the “Selling Stockholder”) of Registrable Securities hereby gives
notice to the Company of its intention to sell or otherwise dispose of Registrable Securities owned
by it and listed below in Item (3), unless otherwise specified in Item (3), pursuant to the Resale
Registration Statement. The undersigned, by signing and returning this Notice and Questionnaire,
understands and agrees that it will be bound by the terms and conditions of this Notice and
Questionnaire and the Agreement.
The undersigned hereby provides the following information to the Company and represents and
warrants that such information is accurate and complete:
74.
QUESTIONNAIRE
| 1. | Name. |
| (a) | Full Legal Name of Selling Stockholder: |
| (b) | Full Legal Name of Registered Holder (if not the same as (a) above) through which Registrable Securities Listed in Item 3 below are held: |
| (c) | Full Legal Name of Natural Control Person (which means a natural person who directly or indirectly alone or with others has power to vote or dispose of the securities covered by the questionnaire): |
| 2. | Address for Notices to Selling Stockholder: |
Telephone: |
|||
Fax: |
||||
Contact Person: |
|||
E-mail address of Contact Person: |
|||
75.
| 3. | Beneficial Ownership of Registrable Securities Issuable Pursuant to the Purchase Agreement: |
| (a) | Type and Number of Registrable Securities beneficially owned and issued pursuant to the Agreement: | ||
| (b) | Number of shares of common stock to be registered pursuant to this Notice for resale: | ||
| 4. | Broker-Dealer Status: |
| (a) | Are you a broker-dealer? |
| Yes | No | |||||||||||
| (b) | If “yes” to Section 4(a), did you receive your Registrable Securities as compensation for investment banking services to the Company? |
| Yes | No | |||||||||||
| Note: | If no, the Commission’s staff has indicated that you should be identified as an underwriter in the Registration Statement. |
| (c) | Are you an affiliate of a broker-dealer? |
| Yes | No | |||||||||||
| Note: | If yes, provide a narrative explanation below: |
76.
| (c) | If you are an affiliate of a broker-dealer, do you certify that you bought the Registrable Securities in the ordinary course of business, and at the time of the purchase of the Registrable Securities to be resold, you had no agreements or understandings, directly or indirectly, with any person to distribute the Registrable Securities? |
| Yes | No | |||||||||||
| Note: | If no, the Commission’s staff has indicated that you should be identified as an underwriter in the Registration Statement. |
| 5. | Beneficial Ownership of Other Securities of the Company Owned by the Selling Stockholder. | |
| Except as set forth below in this Item 5, the undersigned is not the beneficial or registered owner of any securities of the Company other than the Registrable Securities listed above in Item 3. |
| (a) | Type and amount of other securities beneficially owned: | ||
77.
| 6. | Relationships with the Company: | |
| Except as set forth below, neither the undersigned nor any of its affiliates, officers, directors or principal equity holders (owners of 5% of more of the equity securities of the undersigned) has held any position or office or has had any other material relationship with the Company (or its predecessors or affiliates) during the past three years. | ||
| State any exceptions here: | ||
| 7. | Plan of Distribution: |
The undersigned has reviewed the form of Plan of Distribution attached as Annex A to the
Registration Rights Agreement, and hereby confirms that, except as set forth below, the information
contained therein regarding the undersigned and its plan of distribution is correct and complete.
State any exceptions here:
***********
The undersigned agrees to promptly notify the Company of any inaccuracies or changes in the
information provided herein that may occur subsequent to the date hereof and prior to the effective
date of any applicable Resale Registration Statement. All notices hereunder and pursuant to the
Agreement shall be made in writing, by hand delivery, confirmed or facsimile transmission,
first-class mail or air courier guaranteeing overnight delivery at the address set forth below. In
the absence of any such notification, the Company shall be entitled to continue to rely on the
accuracy of the information in this Notice and Questionnaire.
By signing below, the undersigned consents to the disclosure of the information contained
herein in its answers to Items (1) through (7) above and the inclusion of such information in the
Resale Registration Statement and the Prospectus. The undersigned understands that such information
will be relied upon by the Company in connection with the preparation or amendment of any such
Registration Statement and the Prospectus.
78.
By signing below, the undersigned acknowledges that it understands its obligation to comply,
and agrees that it will comply, with the provisions of the Exchange Act and the rules and
regulations thereunder, particularly Regulation M in connection with any offering of Registrable
Securities pursuant to the Resale Registration Statement. The undersigned also acknowledges that it
understands that the answers to this Questionnaire are furnished for use in connection with
Registration Statements filed pursuant to the Registration Rights Agreement and any amendments or
supplements thereto filed with the Commission pursuant to the Securities Act.
The undersigned hereby acknowledges and is advised of the following Interpretation A.65 of the
July 1997 SEC Manual of Publicly Available Telephone Interpretations regarding short selling:
“An Issuer filed a Form S-3 registration statement for a secondary offering of common stock
which is not yet effective. One of the selling stockholders wanted to do a short sale of common
stock “against the box” and cover the short sale with registered shares after the effective date.
The issuer was advised that the short sale could not be made before the registration statement
become effective, because the shares underlying the short sale are deemed to be sold at the time
such sale is made. There would, therefore, be a violation of Section 5 if the shares were
effectively sold prior to the effective date.”
By returning this Questionnaire, the undersigned will be deemed to be aware of the foregoing
interpretation.
I confirm that, to the best of my knowledge and belief, the foregoing statements (including
without limitation the answers to this Questionnaire) are correct.
In Witness Whereof the undersigned, by authority duly given, has caused this
Questionnaire to be executed and delivered either in person or by its duly authorized agent.
| Dated: | Beneficial Owner: | |||||||
| By: | ||||||||
| Title: | ||||||||
PLEASE FAX A COPY OF THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE, AND RETURN THE ORIGINAL
BY OVERNIGHT MAIL, TO:
Xxxx X. Xxxxxxx, Esq.
|
Tel: (000) 000-0000 | |
Cooley Godward Kronish LLP
|
Fax: (000) 000-0000 | |
Five Palo Alto Square
|
Email: xxxxxxxx@xxxxxx.xxx | |
0000 Xx Xxxxxx Xxxx |
||
Xxxx Xxxx, XX 00000-0000 |
79.
