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EXHIBIT 10.84
EXHIBIT B
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT ("Agreement") is entered into as of
February 20, 1996, by and among American BioMed, Inc., a Delaware corporation
("Company") and the subscribers ("Subscribers") to the Company's offering of
shares of (i) 1996 Series A Convertible Preferred Stock, par value $.001 per
share (the "Preferred Shares") and/or (ii) Common Stock, par value $.001 per
share (the "Common Shares") pursuant to the Securities Purchase Agreement
between the Company and the Subscribers of even date herewith ("Subscription
Agreement").
1. DEFINITIONS. For purposes of this Agreement:
(a) The term "register," "registered," and "registration" refer to a
registration effected by preparing and filing a registration statement or
similar document in compliance with the Securities Act of 1933 (the "Act") and,
to the extent possible, in compliance with Rule 415 under the Act, and the
declaration or ordering of effectiveness of such registration statement or
document;
(b) The term "Registrable Securities" means (i) the Common Shares and
(ii) the Common Stock or other securities issuable or issued (x) upon
conversion of the Preferred Shares and (y) in exchange for or as a dividend or
distribution on the Common Stock referred to in clause (x) hereof (the
"Conversion Shares"); provided, however, that, notwithstanding the foregoing,
the term Registrable Securities does not include securities that at the time
the determination is being made, in the written opinion of the Company=s
counsel (in form, substance and scope reasonably acceptable to the Holders),
may be immediately sold or transferred in the United States by the Holder
thereof without registration under the Act free of any restrictive legend.
(c) The number of shares of "Registrable Securities then outstanding"
shall be determined by the aggregate number of (i) Commons Shares which have
been issued pursuant to the Subscription Agreement and (ii) Conversion Shares
which have been issued or are issuable upon conversion of the Preferred Shares
at the time of such determination; and
(d) The term "Holder" means any person owning or having the right to
acquire Registrable Securities or any permitted assignee thereof.
2. DEMAND REGISTRATION.
(a) At any time beginning after the end of the Restricted Period (as
defined in the Subscription Agreement), the Holders of at least 20% of the
Registrable Securities then outstanding may notify the Company in writing that
they demand that the Company file a registration statement
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under the Act covering the registration of all of the Registrable Securities.
Upon receipt of such notice, the Company shall, within ten (10) days, give
written notice of such request to all Holders and shall, subject to the
limitations of subsection 2(b), effect as soon as practicable, and in any event
within 60 days of the receipt of such request, the registration under the Act
of all Registrable Securities which the Holders request, by notice given to the
Company within (10) days of receipt of the Company's notice, to be registered
as expeditiously as reasonably possible after the mailing of such notice by the
Company (a "Demand Registration").
(b) If the Holders initiating the registration request hereunder
("Initiating Holders") intend to distribute the Registrable Securities covered
by their request by means of an underwriting, they shall so advise the Company
as part of their request made pursuant to this Section 2 and the Company shall
include such information in the written notice referred to in subsection 2(a).
In such event, the right of any Holder to include his Registrable Securities in
such registration shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's Registrable Securities in the
underwriting (unless otherwise mutually agreed by a majority in interest of the
Initiating Holders and such Holder) to the extent provided herein. All Holders
proposing to distribute their securities through such underwriting shall
(together with the Company as provided in subsection 6(f)) enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting by a majority in interest of the Initiating
Holders, and reasonably acceptable to the Company.
(c) The Company is obligated to effect only three (3) demand
registrations pursuant to Section 2 of this Agreement. The Company agrees to
include all Registrable Securities held by all Holders in such Registration
Statement without cutback or reduction. In the event the Company is unable to
fulfill its obligation of the preceding sentence with respect to any
registration, such registration shall not be counted as a Demand Registration
under this Agreement for any Holder of Registrable Securities which were not
included in such Registration Statement.
3. PIGGYBACK REGISTRATION. If (but without any obligation to do so) the
Company proposes to register (including, for this purpose, a registration
effected by the Company for shareholders other than the Holders) any of its
Common Stock under the Act in connection with the public offering of such
securities for cash (other than a registration on Form S-8 or on Form S-4), the
Company shall, at such time, promptly give each Holder written notice of such
registration. Upon the written request of each Holder given by fax within ten
(10) days after mailing such notice by the Company, which request shall state
the intended method of disposition of such shares of such Holder, the Company
shall cause to be registered under the Act all of the Registrable Securities
that each such Holder has requested to be registered (a "Piggyback
Registration").
4. LIMITATION ON OBLIGATION TO REGISTER.
(a) In the case of a Piggyback Registration on an underwritten public
offering by the Company, if the managing underwriter determines and advises in
writing that the inclusion in the registration statement of all Registrable
Securities proposed to be included would interfere with the
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successful marketing of the securities proposed to be registered by the
Company, then the number of such Registrable Securities to be included in the
registration statement shall be allocated among all Holders who had requested
Piggyback Registration, in the proportion that the number of Registrable Shares
which each such Holder seeks to register bears to the total number of
Registrable Securities sought to be included by all Holders; provided that in
no event shall the number of Registrable Securities be less than 50% of the
total number of shares included in such registration.
(b) Notwithstanding anything to the contrary herein, the Company shall
have the right (i) to defer the initial filing or request for acceleration of
effectiveness of any Demand Registration or Piggyback Registration or (ii)
after effectiveness, to suspend effectiveness of any such registration
statement, if, in the good faith judgment of the board of directors of the
Company and upon the advice of counsel to the Company, such delay in filing or
requesting acceleration of effectiveness or such suspension of effectiveness is
necessary in light of the existence of material non-public information
(financial or otherwise) concerning the Company, disclosure of which at the
time is not, in the opinion of the board of directors of the Company upon the
advice of counsel (A) otherwise required and (B) in the best interests of the
Company; provided, however, that the Company will not delay or suspend
effectiveness of such registration for more than three months from the date of
the demand, unless it is then engaged in an acquisition that would make such
registration impracticable, in which case it will use its best efforts to
eliminate such impracticability as soon as possible.
(c) Notwithstanding anything to the contrary contained herein, if
Common Shares or Conversion Shares referred to in Section 1(b) above, in the
written opinion of Company=s counsel (in form, substance and scope reasonably
acceptable to the Holders), may be immediately sold or transferred in the
United States by the Holder thereof without registration free of any
restrictive legend, no registration in respect thereof need be effected by the
Company hereunder.
5. OBLIGATIONS TO INCREASE AVAILABLE SHARES. In the event that the number
of shares available under a registration statement filed pursuant to Section 2
is insufficient to cover all of the Registrable Securities then outstanding,
the Company shall amend that registration statement, or file a new registration
statement, or both, so as to cover all shares of Registrable Securities then
outstanding. The Company shall effect such amendment or new registration within
sixty (60) days of the date the registration statement filed under Section 2 is
insufficient to cover all the shares of Registrable Securities then
outstanding. Any Registration Statement filed hereunder shall, to the extent
permissible by the Rules of the Securities and Exchange Commission, state that,
in accordance with Rule 416 under the Act, such Registration Statement also
covers such indeterminate numbers of additional shares of Common Stock as may
become issuable upon conversion of the Preferred Shares to prevent dilution
resulting from stock changes or by reason of changes in the conversion price in
accordance with the terms thereof.
6. OBLIGATIONS OF THE COMPANY. Whenever required under this Agreement to
effect the registration of any Registrable Securities, the Company shall, as
expeditiously as reasonably possible:
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(a) prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best efforts to cause such
registration statement to become effective.
(b) Prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection with such
registration statement as may be necessary to keep the registration statement
effective and comply with the provisions of the Act with respect to the
disposition of all securities covered by such registration statement.
(c) With respect to any Demand Registration, use best efforts to keep
such registration statement effective until the Holders of Registrable
Securities covered by such registration statement have completed the
distribution described in the registration statement.
(d) Furnish to the Holders such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Act, and such other documents as they may reasonably request in order to
facilitate the disposition of Registrable Securities owned by them.
(e) Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or Blue Sky
laws of such jurisdictions as shall be reasonably requested by the Holders of
the Registrable Securities covered by such registration statement, provided
that the Company shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions.
(f) In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter of such offering. Each Holder participating
in such underwriting shall also enter into and perform its obligations under
such an agreement.
(g) Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Act of the happening of any event as a
result of which the prospectus included in such registration statement, as then
in effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing.
(h) Furnish, at the request of any Holder requesting registration of
Registrable Securities pursuant to this Agreement, on the date that such
Registrable Securities are delivered to the underwriters for sale in connection
with a registration pursuant to this Agreement, if such securities are being
sold through underwriters, or, if such securities are not being sold through
underwriters, on the date that the registration statement with respect to such
securities becomes effective, (i) an opinion, dated such date, of the counsel
representing the Company for the purposes of such registration, in form and
substance as is customarily given to underwriters in an underwritten public
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offering, addressed to the underwriters, if any, and to the Holders requesting
registration of Registrable Securities and (ii) a letter dated such date, from
the independent certified public accountants of the Company, in form and
substance as is customarily given by independent certified public accountants
to underwriters in an underwritten public offering, addressed to the
underwriters, if any, and to the Holders requesting registration of Registrable
Securities.
(i) If requested by any Holder, promptly include in any Registration
Statement or prospectus, pursuant to a supplement or post-effective amendment
if necessary, such information as such Holder may reasonably request to have
included therein, including, without limitation, information relating to the
"plan of distribution" of the Registrable Securities, the purchase price being
paid therefor and any other terms of the offering of the Registrable Securities
to be sold in such offering; and make all required filings of such prospectus
supplement or post-effective amendment as soon as practicable after the Company
is notified of the matters to be included in such prospectus supplement or
post-effective amendment;
(j) make available at reasonable times for inspection by the Holders
and any attorney or accountant retained by such Holders, all financial and
other records, pertinent corporate documents and properties of the Company and
cause the Company's officers, directors and employees to supply all information
reasonably requested by any such Holder, attorney or accountant in connection
with such Registration Statement or any post-effective amendment thereto
subsequent to the filing thereof and prior to its effectiveness; provided,
that, any person to whom information is provided under this clause (j) agrees
in writing to maintain the confidentiality of such information to the extent
such information is not in the public domain; and
(k) have stop orders lifted as soon as practicable.
7. Furnish Information. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Agreement that
the selling Holders shall furnish to the Company such information regarding
themselves, the Registrable Securities held by them, and the intended method of
disposition of such securities as shall be required to effect the registration
of their Registrable Securities or to determine that registration is not
required pursuant to Rule 144 or other applicable provision of the Act.
8. Expenses of Demand Registration. All expenses other than underwriting
discounts and commissions incurred in connection with registrations, filings or
qualifications pursuant to Section 2, including (without limitation) all
registration, filing and qualification fees, printers' and accounting fees,
fees and disbursements of counsel for the Company, and including the reasonable
fees and disbursements incurred of only one counsel for the selling Holders,
shall be borne by the Company; provided, however, that the Company shall not be
required to pay for any expenses of any registration proceeding begun pursuant
to Section 2 if the registration request is subsequently withdrawn at the
request of the Holders of a majority of the Registrable Securities to be
registered (in which case all Holders who had requested such registration shall
bear such expenses prorated, based on the number of shares included in the
Registration Statement); provided further, however,
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that if at the time of such withdrawal, the Holders have learned of a material
adverse change in the condition, business, or prospects of the Company from
that known to the Holders at the time of their request, then the Holders shall
not be required to pay any of such expenses and shall retain their rights
pursuant to Section 2.
9. Expenses of Company Registration. The Company shall bear and pay all
expenses incurred in connection with any registration, filing or qualification
of registrable Securities with respect to the registrations pursuant to Section
2 for each Holder, including (without limitation) all registration, filing, and
qualification fees, printers and accounting fees relating or apportionable
thereto (and including the reasonable fees and disbursements incurred of only
one counsel for the selling Holders selected by them), but excluding
underwriting discounts and commissions relating to Registrable Securities.
10. Indemnification. In the event any Registrable Securities are included
in a registration statement under this Agreement:
(a) To the extent permitted by law, the Company will indemnify and
hold harmless each "Holder Indemnified Persons" (defined for purposes of this
Section 9 as each Holder, the shareholders, parties, employees, agents,
officers and directors of each Holder acting in their capacity as such, any
underwriter (as defined in the Act) for such Holder and each person, if any,
who controls such Holder or underwriter within the meaning of the Act or the
Securities Exchange Act of 1934, as amended (the "1934 Act")), against any
losses, claims, damages, expenses, or liabilities (joint or several) ("Losses")
to which they may become subject under the Act, the 1934 Act or other federal
or state law, insofar as such Losses (or actions in respect thereof) arise out
of or are based upon any of the following statements, omissions or violations
(collectively a "Violation"): (i) any untrue statement of a material fact
contained in such registration statement, including any preliminary prospectus
or final prospectus contained therein or any amendments or supplements thereto,
(ii) the omission to state therein a material fact required to be stated
therein, or necessary to make the statements therein not misleading, or (iii)
any violation by the Company of the Act, the 1934 Act, any state securities law
or any rule or regulation promulgated under the Act, the 1934 Act or any state
securities law; and the Company will reimburse each such Holder Indemnified
Person for any legal or other expenses reasonably incurred by him, her or it in
connection with investigating or defending any such Loss or action; provided,
however, that the indemnity agreement contained in this subsection 9(a) shall
not apply to amounts paid in settlement of any such Loss or action if such
settlement is effected without the consent of the Company (which consent shall
not be unreasonably withheld), nor shall the Company be liable in any such case
for any such Loss or action to the extent that it arises out of or is based
upon a Violation which occurs (i) in reliance upon and in conformity with
written information furnished expressly for use in connection with such
registration by any such Holder Indemnified Person, or (ii) the failure of such
Holder Indemnified Person to deliver a copy of the registration statement or
the prospectus, or any amendments or supplements thereto, after the Company or
underwriters has furnished such person with a sufficient number of copies of
the same.
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(b) To the extent permitted by law, each selling Holder will indemnify
and hold harmless the "Company Indemnified Persons" (defined for the purpose of
this Section 9 as the Company, each of its directors in their capacity as such,
each of its officers who have signed the registration statement in their
capacity as such, each person, if any, who controls the Company within the
meaning of the Act in their capacity as such, any underwriter and any other
Holder Indemnified person selling securities in such registration statement),
against any Loss (joint or several) to which the Company or any such director,
officer, controlling person, or underwriter or controlling person, or other
such Holder Indemnified Person may become subject under the Act, the 1934 Act
or other federal or state law, insofar as such Loss (or actions in respect
thereto) arise out of or are based upon any Violation, in each case to the
extent (and only to the extent) that such Violation occurs in reliance upon and
in conformity with written information furnished by such Holder expressly for
use in connection with such registration; and each such Holder will reimburse
any legal or other expenses reasonably incurred by the Company and any such
Company Indemnified Person in connection with investigating or defending any
such Loss or action; provided, however, that the indemnity agreement contained
in this subsection 10(b) shall not apply to amounts paid in settlement of any
such Loss or action if such settlement is effected without the consent of the
Holder, which consent shall not be unreasonably withheld; provided further,
however, that, in no event shall any indemnity under this subsection 10(b)
exceed the net proceeds from the offering received by such Holder.
(c) Promptly after receipt by an indemnified party under this Section
10 of notice of the commencement of any action (including any governmental
action), such indemnified party will, if a claim in respect thereof is to be
made against any indemnifying party under this Section 10, deliver to the
indemnifying party similarly noticed, to assume the defense thereof with
counsel mutually satisfactory to the parties; provided, however, that an
indemnified party shall have the right to retain its own counsel, with the
reasonably incurred fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by
such counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action, if prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
10, but the omission so to deliver written notice to the indemnifying party
will not relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 10.
(d) The obligations of the Company and Holders under this Section 10
shall survive the completion of any offering of Registrable Securities in a
registration statement under this Agreement.
11. Reports Under Securities Exchange Act of 1934. With a view to making
available to the Holders the benefits of Rule 144 promulgated under the Act and
any other rule or regulation of the SEC that may at any time permit a Holder to
sell securities of the Company to the public without registration, the Company
agrees to:
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(a) make and keep public information available, as those terms are
understood and defined in SEC Rule 144, at all times;
(b) file with the SEC in a timely manner all reports and other
documents required of the Company under the Act and the 1934 Act; and
(c) furnish to any Holder, so long as the Holder owns any Registrable
Securities, forthwith upon request (i) a written statement by the Company, if
true, that it has complied with the reporting requirements of SEC Rule 144 (at
any time after ninety (90) days after the effective date of the first
registration statement filed by the Company), the Act and the 1934 Act (at any
time after it has become subject to such reporting requirements), (ii) a copy
of the most recent annual or quarterly report of the Company and such other
reports and documents so filed by the Company, and (iii) such other information
as may be reasonably requested in availing any Holder of any rule or regulation
of the SEC which permits the selling of any such securities without
registration.
12. Amendment of Registration Rights. Any provisions of this Agreement may
be amended and the observance thereof may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with the
written consent of the Company and the holders of a majority of the aggregate
number of Common Shares or Conversion Shares. Any amendment or waiver effected
in accordance with this paragraph shall be binding upon each Holder, each
future holder, and the Company.
13. Notices. All notices required or permitted under this Agreement shall
be made in writing signed by the party making the same, shall specify the
section under this Agreement pursuant to which it is given, and shall be
addressed if to (i) the Company at President, American BioMed, Inc., 10077
Xxxxxx'x Xxxx Xxxx, xxxxx 000, Xxx Xxxxxxxxx, Xxxxx 00000, Telecopy No.
(000)-000-0000 and (ii) the Holders at their respective last address as the
party shall have furnished in writing as a new address to be entered on such
register. Any notice, except as otherwise provided in this Agreement, shall be
made by fax and shall be deemed given at the time of transmission of the fax.
14. Termination. This Agreement shall terminate on the later to occur of
(a) the date that is three years from the date of this Agreement and (b) the
date any distribution of Registrable Securities described in a registration
statement filed pursuant to this Agreement is completed; but without prejudice
to (i) the parties' rights and obligations arising from breaches of this
Agreement occurring prior to such termination or (ii) other indemnification
obligations under this Agreement.
15. Assignment. No assignment, transfer or delegation, whether by
operation of law or otherwise, of any rights or obligations under this
Agreement by the Company or any Holder, respectively, shall be made without the
prior written consent of the majority in interest of the Holders and the
Company, respectively; provided that the rights of a Holder may be transferred
to a subsequent holder of the Holder's Registrable Securities (provided such
transferee shall provide to the Company, together with or prior to such
transferee's request to have such Registrable Securities included in a Demand
Registration or Piggyback Registration, a writing executed by such
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transferee agreeing to be bound as a Holder by the terms of this Agreement);
and provided further that the Company may transfer its rights and obligations
under this Agreement to a purchaser of all or a substantial portion of its
business if the obligations of the Company under this Agreement are assumed in
connection with such transfer, either by merger or other operation of law
(which may include without limitation a transaction whereby the Registrable
Securities are converted into securities of the successor in interest) or by
specific assumption executed by the transferee.
17. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware applicable to agreements made
in and wholly to be performed in that jurisdiction, except for matters arising
under the Act or the Securities Exchange Act of 1934, which matters shall be
construed and interpreted in accordance with such laws. Any action brought to
enforce, or otherwise arising out of, this Agreement shall be heard and
determined only in either a federal or state court sitting in the County of
Kent in the State of Delaware.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
AMERICAN BIOMED, INC.
By:
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President
SUBSCRIBER
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Subscriber's Name
By:
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(Signature)
Address:
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