AMENDMENT NO. 1 TO REGISTRATION RIGHTS AGREEMENT
Exhibit 10.4
Confidential
EXECUTION VERSION
EXECUTION VERSION
THIS AMENDMENT NO. 1 TO REGISTRATION RIGHTS AGREEMENT (this “Amendment”), is dated and
entered into as of June 30, 2006, between PharmaBio Development Inc., a North Carolina
corporation, doing business as NovaQuest (the “Investor”) and OrthoLogic Corp., a
Delaware corporation (the “Company”).
W I T N E S S E T H:
WHEREAS, pursuant to that certain Common Stock and Warrant Purchase Agreement by and between
the Company and the Investor dated as of February 24, 2006 (the “Agreement”), as modified
by that certain letter agreement between the Investor and the Company regarding a waiver of
blocking events of even date herewith (the “Waiver”), the parties desire that, upon the
terms and subject to the conditions thereof, the Company shall issue to the Investor, and, subject
to the terms and conditions thereof, the Investor shall purchase from the Company, from time to
time as provided in the Agreement, shares of the Company’s common stock, par value $0.0005 per
share (“Common Shares”), and Warrants to purchase shares of such Common Shares as described
therein (the “Warrant Shares” and, together with the Common Shares, the “Common
Stock”);
WHEREAS, pursuant to the terms of, and in partial consideration for, the Investor’s commitment
to enter into the Agreement, the Company provided the Investor with certain registration rights
with respect to the Common Stock as set forth in that certain Registration Rights Agreement dated
as of February 24, 2006 (the “Rights Agreement”); and
WHEREAS, in connection with the Waiver, the Investor and the Company desire to amend the
Rights Agreement pursuant to Section 9(a) thereof as described herein.
AGREEMENT
NOW THEREFORE, the parties agree as follows:
1. Defined Terms. All initially capitalized terms used but not defined in this
Amendment shall have the meanings assigned to them in the Rights Agreement.
2. Amendments to Prior Rights Agreement. The Rights Agreement is hereby amended as
follows:
a. Section 2(a) of the Rights Agreement is deleted in its entirety and replaced with the
following new Section 2(a):
“(a) Subject to the terms and conditions of this Rights Agreement,
the Company shall, upon the earlier of (i) 10 business days
following the Third Closing Date (as defined in Section 2.02(b) of
the Purchase Agreement) or (ii) 10 Business Days following the
Company’s failure to deliver not less than 10 Business Days before
the Third Closing Date written notice of its intent to sell the
Common Stock associated with the Third Closing Date as contemplated
by Section 2.02(b) of the Purchase Agreement (the “Filing
Deadline”), file with the Commission an appropriate registration
statement on Form S-3 (or any successor or other appropriate form)
under the Securities Act for the registration of the Common Stock
(the “Registration Statement”), and thereafter shall use its
best efforts to cause such Registration Statement to be declared
effective as promptly as practicable. Furthermore, at the time of
filing of the Registration Statement, the Company shall file (A)
such blue sky filings as shall have been requested by the Investor;
and (B) any required filings with the National Association of
Securities Dealers, Inc. or exchange or market where the Common
Stock is traded.”
b. The following Section 2(c) is added to the provisions of the Rights Agreement:
“(c) Notwithstanding anything herein to the contrary, if the Company is not
permitted to register for resale under the Securities Act the Warrant Shares
issuable under the Class B Warrant, the Class C Warrant and/or the Class D
Warrant (the “Unvested Warrant Shares”), then: (i) the Company’s obligations
hereunder to register the Common Stock for resale initially shall apply only
to Common Stock other than the Unvested Warrant Shares; (ii) the Company
shall be required hereunder to register the Unvested Warrant Shares for
resale as and to the extent that such shares may then be acquired upon
exercise of the relevant warrant agreements and upon receipt of a written
request from the Investor for such registration; and (iii) the Filing
Deadline in respect of any portion of the Unvested Warrant Shares shall be
45 days following the Company’s receipt from the Investor of a written
request for registration of such portion of the Unvested Warrant Shares
which Investor is then entitled to purchase under the relevant warrant
agreement.”
c. The following Section 2(d) is added to the provisions of the Rights Agreement:
“(d) If the Registration Statement is not filed within thirty (30)
days following the Third Closing Date (a “Registration
Default”), the Company shall make cash payments (as liquidated
damages and not as a penalty) to Investor equal to one percent (1%)
of the aggregate purchase price paid by Investor for the Common
Stock
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for each thirty (30) day period (pro rated for partial periods) in
which a Registration Default exists, up to a maximum of six percent
(6%) of the aggregate purchase price paid by Investor for the Common
Stock. Each such payment required to be made under this Section
2(d) shall be made within five (5) Business Days following the last
day of each calendar month in which a Registration Default exists.
Any such payment made following such five (5) Business Day window
shall be subject to interest at the lower of twelve percent (12%)
and the maximum rate permitted by applicable law. Any such payment
shall be in addition to any other remedies available to Investor at
law or in equity, whether pursuant to the terms hereof, the
Agreement or otherwise.”
3. Representations of the Company. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware. The Company has
all necessary corporate power and authority to carry on its business as now conducted. The
Company has all necessary corporate power and authority to execute and deliver this Amendment and
to consummate the transactions contemplated hereby and by the Rights Agreement. The execution and
delivery of this Amendment and consummation of the transactions contemplated hereby and by the
Rights Agreement have been duly authorized by all necessary corporate action on the part of the
Company and no other corporate proceedings on the part of the Company are necessary to authorize
this Amendment or to consummate the transactions contemplated hereby or by the Rights Agreement.
This Amendment has been duly and validly executed and delivered by the Company and constitutes a
valid, legal and binding agreement of the Company, enforceable against the Company in accordance
with its terms.
4. No Other Amendments. The Rights Agreement, as amended by this Amendment, is and
shall continue to be in full force and effect and is hereby in all respects ratified and confirmed.
5. Headings. The section headings herein are for convenience of reference only and
shall not affect the interpretation of this Amendment. All paragraph references herein are to
sections of this Amendment unless specified otherwise.
6. Governing Law. This Amendment, including, without limitation, the interpretation,
performance, enforcement, breach or termination thereof and any remedies relating thereto, shall be
governed by and construed in accordance with the laws of the State of North Carolina, as applied to
agreements executed and performed entirely in the State of North Carolina, without regard to
conflicts of law rules.
[signature page follows]
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[Signature Page to Amendment No. 1 to Registration Rights Agreement]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of
the date first above written.
| OrthoLogic Corp. | ||||
By:
|
/s/ Xxx X. Xxxxxx | |||
| Name: Xxx X. Xxxxxx | ||||
| Title: CFO | ||||
| PharmaBio Development Inc. (D/B/A NovaQuest) |
||||
By:
|
/s/ Xxxxxxx X. Xxxxxx | |||
| Name: Xxxxxxx X. Xxxxxx | ||||
| Title: Vice President, Corporate Development | ||||
