REGISTRATION RIGHTS AGREEMENT
Exhibit 10.2
Execution Copy
This Registration Rights Agreement (the “Agreement”) is made and entered into as of this
June 9, 2010, by and among Osteologix, Inc., a Delaware corporation (the “Company”), and each
Affiliated Holder (as defined hereinafter).
The parties hereby agree as follows:
1. Certain Definitions.
As used in this Agreement, the following terms shall have the following meanings:
“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.
“Affiliated Holder” means Nordic Biotech Opportunity Fund K/S and any successor and assigns or
permitted transferee of the Affiliated Holder who is a subsequent holder of any Registrable
Securities transferred by the Affiliated Holder pursuant to Section 7(c).
“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.
“Common Stock” means the Company’s common stock, par value $0.0001 per share, and any
securities into which such common stock may hereinafter be reclassified.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
“Offering” means the offer and sale of Shares pursuant to the Purchase Agreement.
“Prospectus” means the prospectus included in any 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 thereto, with respect to
the terms of the offering of any portion of the Registrable Securities covered by such Registration
Statement and by all other amendments and supplements to the Prospectus, including post-effective
amendments and all material incorporated by reference or deemed to be incorporated by reference in
such Prospectus.
“Purchase Agreement” means that certain Securities Purchase Agreement dated as of the date
hereof between the Company and Nordic Biotech Opportunity Fund K/S.
“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 (as
defined below), and the declaration or ordering of effectiveness of such Registration Statement or
document.
“Registrable Securities” means (i) the Shares, and (ii) any other securities issued or
issuable with respect to or in exchange for the Shares; provided, that a security held by
an Affiliated Holder shall cease to be a Registrable Security upon (A) a sale by such Affiliated
Holder pursuant to a Registration Statement or Rule 144 under the Securities Act or (B) such
security becoming eligible for sale by such Affiliated Holder pursuant to Rule 144 without volume
limitations.
“Registration Statement” means any registration statement or statements of the Company filed
under the Securities Act and (in each case) the related Prospectus that covers the resale of any of
the Registrable Securities pursuant to the provisions of this Agreement (including each of the
Registration Statements referred to in Section 2), amendments and supplements to each such
Registration Statement and Prospectus, including pre- and post-effective amendments, all exhibits
and all material filed and incorporated by reference or deemed to be incorporated by reference in
each such Registration Statement.
“Required Holders” means Affiliated Holders holding a majority of the Registrable Securities.
“Rule 416” and “Rule 429” mean “Rule 416” and “Rule 429,” respectively, each as promulgated by
the SEC pursuant to the Securities Act, as either such Rule may be amended from time to time, or
any similar rule or regulation hereafter adopted by the SEC having substantially the same effect as
such Rule.
“SEC” means the U.S. Securities and Exchange Commission.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
“Shares” means the shares of Common Stock issued to the Affiliated Holders pursuant to the
Purchase Agreement and any shares of Common Stock issued or issuable to the Affiliated Holders upon
any stock split, dividend or other distribution, recapitalization or similar event with respect to
the foregoing.
2. Registration.
(a) Registration by the Affiliated Holders. At any time after the date that is
six (6) months after the Closing Date, one or more Affiliated Holders may request, no more than one
time, that the Company shall prepare and file with the SEC, a Registration Statement covering the
resale by such Affiliated Holders of all Registrable Securities then held by such Affiliated
Holders. Promptly following any such request but no later than thirty (30) Business Days after
such request, the Company shall prepare and file with the SEC a Registration Statement covering the
resale by such Affiliated Holders of all Registrable Securities then held by such Affiliated
Holders; provided, that (i) the Company shall not be required to file any Registration
Statement under this Section 2(a) if the filing of such Registration Statement would cause the
Company to file financial statements in advance of the date that the Company would have otherwise
been required to file such financial statements under the Exchange Act and (ii) the Company may
include in such Registration Statement any other Registrable Securities held by such Affiliated
Holders or any other Affiliated Holders requesting registration of such
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Registrable Securities pursuant to this Agreement. Such Registration Statement shall be on
Form S-1 or Form S-3, as available, or other appropriate form in accordance herewith and shall
include the plan of distribution attached hereto as Exhibit A (except as otherwise directed
by such Affiliated Holders). Such Registration Statement also shall cover, to the extent allowable
under the Securities Act (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. Such Registration Statement shall not include any shares of Common
Stock or other securities for the account of any holder without the prior written consent of the
Affiliated Holders that requested such Registration Statement under this Section 2(a). A copy of
the initial filing of the Registration Statement (and each pre-effective amendment thereto) shall
be provided to such Affiliated Holders and their counsel at least three (3) Business Days prior to
filing. Notwithstanding the foregoing, if the board of directors of the Company determines in good
faith that any such registration would be materially detrimental to the Company, the Company may
defer such registration for no more than ninety (90) days in any twelve (12) month period.
(b) Expenses. The Company will pay all expenses associated with each registration,
including filing and printing fees, the Company’s counsel and accounting fees and expenses, costs
associated with clearing the Registrable Securities for sale under applicable state securities
laws, listing fees, reasonable out-of-pocket fees and expenses of one counsel to the Affiliated
Holders (which fees and expenses shall not exceed $15,000) and the Affiliated Holders’ reasonable
out-of-pocket expenses in connection with the registration, but excluding discounts, commissions,
fees of underwriters, selling brokers, dealer managers or similar securities industry professionals
with respect to the Registrable Securities being sold.
(c) Additional Registration Statements. If at any time the SEC takes the position
that the offering of some or all of the Registrable Securities in a Registration Statement is not
eligible to be made on a delayed or continuous basis under the provisions of Rule 415 or requires
any Affiliated Holder in connection with a Registration Statement filed under Section 2(a) to be
named as an “underwriter,” the Company shall use its commercially reasonable efforts to persuade
the SEC that the offering contemplated by the Registration Statement is a valid secondary offering
and not an offering “by or on behalf of the issuer” as defined in Rule 415 and that such Affiliated
Holder is not an “underwriter.” Such Affiliated Holder shall have the right to participate or have
their counsel participate in any meetings or discussions with the SEC regarding the SEC’s position
and to comment or have their counsel comment on any written submission made to the SEC with respect
thereto. No such written submission shall be made to the SEC to which such Affiliated Holder’s
counsel reasonably objects, which determination shall be made in the sole discretion of the Company
and its counsel. In the event that, despite the Company’s commercially reasonable efforts and
compliance with the terms of this Section 2(c), the SEC refuses to alter its position, the Company
shall remove from the Registration Statement such portion of the Registrable Securities and/or
agree to such restrictions and limitations on the registration and resale of the Registrable
Securities as the SEC may require to assure the Company’s compliance with the requirements of
Rule 415; provided, however, that the Company shall not agree to name any
Affiliated Holder as an “underwriter” in such Registration Statement without the prior written
consent of such Affiliated Holder (collectively, the “SEC Restrictions”). Any cut-back imposed on
the Affiliated Holders pursuant to this Section 2(c) shall, unless the SEC Restrictions otherwise
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require or provide and unless otherwise directed in writing by an Affiliated Holder as to its
Registrable Securities, will be applied to the Registrable Securities held by the Affiliated
Holders requesting registration on a pro rata basis based on the total number of unregistered
Shares held by such Affiliated Holders.
(d) Effectiveness.
(i) The Company shall use commercially reasonable efforts to cause each Registration Statement
to be declared effective by the SEC as soon as practicable (including filing with the SEC a request
for acceleration of its effectiveness in accordance with Rule 461 within five (5) Business Days of
the date that the Company is notified (orally or in writing, whichever is earlier) by the staff of
the SEC that such Registration Statement will not be reviewed, or not be subject to further
review), with respect to the initial Registration Statement filed pursuant to Section 2(a) hereof,
but in any event no later than one hundred and twenty (120) days after filing. The Company shall
notify the applicable Affiliated Holders by facsimile or e-mail as promptly as practicable, and in
any event, within twenty-four (24) hours, after any Registration Statement is declared effective
and shall simultaneously provide the applicable Affiliated Holders with copies of any related
Prospectus to be used in connection with the sale or other disposition of the securities covered
thereby.
(ii) The Affiliated Holders hereby acknowledge that there may occasionally be times when the
Company must suspend the use of a Prospectus until such time as an amendment to the related
Registration Statement has been filed by the Company and declared effective by the SEC or until the
Company has amended or supplemented such Prospectus. Each Affiliated Holder hereby covenants that
it will not sell any securities pursuant to any Prospectus during the period commencing at the time
at which the Company gives such Affiliated Holder notice of the suspension of the use of such
Prospectus and ending at the time the Company gives such Affiliated Holder notice that such
Affiliated Holder may thereafter effect sales pursuant to such Prospectus. Notwithstanding
anything herein to the contrary, the Company shall not suspend use of any Registration Statement by
any Affiliated Holder unless in the good faith determination of the Company such suspension is
required by federal securities laws, including without limitation, the rules and regulations
promulgated thereunder; provided, however, that (i) except as otherwise provided by
clause (ii) below, in the event that such suspension is required by the need for an amendment or
supplement to a Registration Statement or a related Prospectus, the Company shall promptly file
such required amendments or supplements as shall be necessary for the disposition of the
Registrable Securities to recommence and (ii) if the board of directors of the Company has
determined in good faith that offers and sales pursuant to a Prospectus should not be made by
reason of the presence of material undisclosed circumstances or developments with respect to which
the disclosure that would be required in the related Registration Statement would be premature or
would have a material adverse effect on the Company and its business, the Company may suspend the
use of such Prospectus and defer the filing of any required amendment or supplement for the minimum
period of time necessary to avoid such material adverse effect (an “Allowed Delay”);
provided, further, that in the case of clause (ii) above, the Company shall not be
entitled to exercise its right to block such sales or suspend use of a Prospectus more than three
times (not to exceed thirty (30) days each) during the effectiveness of the related Registration
Statement nor more than a total of thirty (30) days in any twelve (12)-month period.
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3. Company Obligations. The Company will use all reasonable efforts to effect the
registration of the Registrable Securities in accordance with the terms hereof, and pursuant
thereto the Company will, as expeditiously as possible (but subject to Section 2(d)(ii)):
(a) use all reasonable efforts to cause each Registration Statement to become effective and,
to remain continuously effective for a period that will terminate upon the earlier of (i) the date
on which all Registrable Securities covered by such Registration Statement as amended from time to
time, have been sold; and (ii) the date on which all Registrable Securities covered by such
Registration Statement may be sold without volume limitations pursuant to Rule 144
(the “Effectiveness Period”) and advise the Affiliated Holders in writing when the Effectiveness
Period has expired;
(b) (i) prepare and file with the SEC such amendments and post-effective amendments to each
Registration Statement and related Prospectus as may be necessary to keep such Registration
Statement effective for the Effectiveness Period; (ii) cause the related Prospectus to be amended
or supplemented by any required Prospectus supplement, 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 SEC with respect to such Registration Statement or any amendment thereto and, as
promptly as reasonably practicable, upon request, provide the Affiliated Holders true and complete
copies of all correspondence from and to the SEC relating to such Registration Statement; and
(iv) comply with the provisions of the Securities Act and the Exchange Act with respect to the
distribution of all of the Registrable Securities covered by such Registration Statement;
(c) Use all reasonable efforts to (i) prevent the issuance of any stop order or other
suspension of effectiveness and, (ii) if such order is issued, obtain the withdrawal of any such
order at the earliest possible moment;
(d) prior to any resale of Registrable Securities, use all reasonable efforts to register or
qualify or cooperate with the Affiliated Holders and their counsel in connection with the
registration or qualification of such Registrable Securities for offer and sale under the
securities or blue sky laws of such jurisdictions requested by the Affiliated Holders and do any
and all other commercially reasonable acts or things necessary or advisable to enable the
distribution in such jurisdictions of the Registrable Securities covered by the Registration
Statement; provided, however, that the Company shall not be required in connection therewith or as
a condition thereto to (i) qualify to do business in any jurisdiction where it would not otherwise
be required to qualify but for this Section 3(d), (ii) subject itself to general taxation in any
jurisdiction where it would not otherwise be so subject but for this Section 3(d) or (iii) file a
general consent to service of process in any such jurisdiction;
(e) use all reasonable efforts to cause all Registrable Securities covered by a Registration
Statement to be listed on each securities exchange, interdealer quotation system or other market
(including the OTC Bulletin Board) on which similar securities issued by the Company are then
listed or traded;
(f) promptly notify the applicable Affiliated Holders at any time when a Prospectus relating
to Registrable Securities is required to be delivered under the Securities Act
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(including during any period when the Company is in compliance with Rule 172), upon discovery
that, or upon the happening of any event as a result of which, the Prospectus included in a
Registration Statement, as then in effect, includes an untrue statement of a material fact or omits
to state any material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing, and at the request of any such
Affiliated Holder, promptly prepare, file with the SEC pursuant to Rule 172 and furnish to such
Affiliated Holder a supplement to or an amendment of such Prospectus as may be necessary so that
such Prospectus shall not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing;
(g) promptly notify the applicable Affiliated Holders (i) of any request by the SEC or any
other Federal or state governmental authority during the period of effectiveness of any
Registration Statement for amendments or supplements to such Registration Statement or related
Prospectus or for additional information; (ii) of the issuance by the SEC or any other federal or
state governmental authority of any stop order suspending the effectiveness of any Registration
Statement covering any or all of the Registrable Securities or the initiation of any proceedings
for that purpose; (iii) 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; and (iv) of the occurrence of any event or passage of time that makes the financial
statements included in any Registration Statement ineligible for inclusion therein;
(h) with a view to making available to the Affiliated Holders the benefits of Rule 144 (or its
successor rule) and any other rule or regulation of the SEC that may at any time permit the
Affiliated Holder to sell shares of Common Stock to the public without registration, the Company
covenants and agrees to: (i) make and keep public information available, as those terms are
understood and defined in Rule 144, until the earlier of (A) six months after such date as all of
the Registrable Securities may be resold pursuant to Rule 144 or any other rule of similar effect
or (B) such date as all of the Registrable Securities shall have been resold; (ii) file with the
SEC in a timely manner all reports and other documents required of the Company under the Exchange
Act (whether or not such reports and other documents are required to be filed under the Exchange
Act); and (iii) furnish to each Affiliated Holder upon request, as long as such Affiliated Holder
owns any Registrable Securities, (A) a written statement by the Company that it has complied with
the reporting requirements of the Exchange Act and (B) such other information as may be reasonably
requested in order to avail such Affiliated Holder of any rule or regulation of the SEC that
permits the selling of any such Registrable Securities without registration; and
(i) the Company represents and warrants that (A) since June 30, 2009 through the date of this
Agreement, it has filed with the SEC in a timely manner all reports and other documents required of
the Company under the Exchange Act and (B) neither the Company nor any of its consolidated or
unconsolidated subsidiaries have, since the end of the last fiscal year for which certified
financial statements of the Company and its consolidated subsidiary were included in a report filed
pursuant to Section 13(a) or 15(d) of the Exchange Act through the date of this Agreement:
(1) failed to pay any dividend or sinking fund installment on preferred stock; or (2) defaulted
(x) on any installment or installments on indebtedness for borrowed money, or
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(y) on any rental on one or more long term leases, which defaults in the aggregate are
material to the financial position of the Company and its consolidated and unconsolidated
subsidiaries, taken as a whole.
4. Information. The Company shall not disclose material nonpublic information to an
Affiliated Holder, or to advisors to or representatives of an Affiliated Holder who identify
themselves as such and in their capacity as such (other than a director of the Company), unless
prior to disclosure of such information the Company identifies such information as being material
nonpublic information and provides such Affiliated Holder or such advisors and representatives with
the opportunity to accept or refuse to accept such material nonpublic information for review and
any Affiliated Holder wishing to obtain such information enters into an appropriate confidentiality
agreement with the Company with respect thereto. Each Affiliated Holder agrees and acknowledges
that its access to documents in connection with any review by the SEC of a Registration Statement,
and its participation in any related meetings or discussion with the Company or the SEC in
connection therewith in accordance with Section 2(c) may expose them to material nonpublic
information and that the Company will request the execution of appropriate confidentiality
agreements as a condition to providing any such access to any Affiliated Holder.
5. Obligations of the Affiliated Holders.
(a) Each Affiliated Holder shall promptly furnish in writing to the Company such information
regarding itself, the Registrable Securities held by it and the intended method of disposition of
the Registrable Securities held by it, as shall be reasonably required to effect the registration
of such Registrable Securities and shall execute such documents in connection with such
registration as the Company may reasonably request. At least five (5) Business Days prior to the
first anticipated filing date of any Registration Statement, the Company shall notify each
Affiliated Holder of the information the Company requires from such Affiliated Holder if such
Affiliated Holder elects to have any of the Registrable Securities included in the Registration
Statement. An Affiliated Holder shall provide such information to the Company at least two (2)
Business Days prior to the first anticipated filing date of such Registration Statement if such
Affiliated Holder elects to have any of the Registrable Securities included in the Registration
Statement.
(b) Each Affiliated Holder, by its acceptance of the Registrable Securities, agrees to
cooperate with the Company as reasonably requested by the Company in connection with the
preparation and filing of any Registration Statement hereunder, unless such Affiliated Holder has
notified the Company in writing of its election to exclude all of its Registrable Securities from
such Registration Statement.
(c) Each Affiliated Holder agrees that, upon receipt of any notice from the Company of either
(i) the commencement of an Allowed Delay pursuant to Section 2(d)(ii), or (ii) the happening of an
event pursuant to Section 3(f) hereof, such Affiliated Holder will immediately discontinue
disposition of Registrable Securities pursuant to all Registration Statements covering such
Registrable Securities, until such Affiliated Holder is advised by the Company that a supplemented
or amended prospectus has been filed with the SEC and until any related post-effective amendment is
declared effective and, if so directed by the Company, such
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Affiliated Holder shall deliver to the Company or destroy (and deliver to the Company a
certificate of destruction) all copies in such Affiliated Holder’s possession of the Prospectus
covering the Registrable Securities current at the time of receipt of such notice.
6. Indemnification.
(a) Indemnification by the Company. The Company will indemnify and hold harmless each
Affiliated Holder and its officers, directors, members, partners, employees, attorneys and agents,
successors and assigns, and each other person, if any, who controls such Affiliated Holder within
the meaning of the Securities Act, against any losses, claims, damages or liabilities, joint or
several, to which they may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based
upon: (i) any untrue statement or alleged untrue statement of any material fact contained in any
Registration Statement, any preliminary prospectus or final prospectus contained therein, or any
amendment or supplement thereof; (ii) the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein not misleading;
(iii) any violation or alleged violation by the Company of the Securities Act, Exchange Act or any
state securities law, or any rule or regulation thereunder, in connection with the performance of
its obligations under this Agreement; or (iv) any failure to register or qualify the Registrable
Securities included in any such Registration in any state where the Company or its agents has
affirmatively undertaken or agreed in writing that the Company will undertake such registration or
qualification on an Affiliated Holder’s behalf and will reimburse such Affiliated Holder, and each
such officer, director or member and each such controlling person for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any such loss, claim,
damage or liability (or action in respect thereof); provided, however, that the
Company will not be liable for amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of the Company, which
consent shall not be unreasonably withheld, and the Company will not be liable in any such case to
the extent that any such loss, claim, damage, liability or expense arises out of or is based upon
(i) an untrue statement or alleged untrue statement or omission or alleged omission made in the
Registration Statement, the Prospectus or any amendment or supplement thereto in reliance upon and
in conformity with written information furnished to the Company by or on behalf of such Affiliated
Holder expressly for use therein; (ii) the failure of such Affiliated Holder to comply with the
covenants and agreements contained in Section 5 hereof and Section 6(a) of the Purchase Agreement
respecting the sale of the Shares; (iii) the inaccuracy of any representation or warranty made by
such Affiliated Holder herein; or (iv) the use by such Affiliated Holder of an outdated or
defective Prospectus after the Company has notified such Affiliated Holder that the Prospectus is
outdated or defective.
(b) Indemnification by the Affiliated Holders. Each Affiliated Holder agrees,
severally but not jointly, to indemnify and hold harmless, to the fullest extent permitted by law,
the Company, its directors, officers, employees, stockholders and each person who controls the
Company (within the meaning of the Securities Act) against any losses, claims, damages, liabilities
and expense (including reasonable attorney fees) resulting from any untrue statement of a material
fact or any omission of a material fact required to be stated in any Registration Statement or
Prospectus or preliminary prospectus or amendment or supplement thereto or necessary to make the
statements therein not misleading, to the extent, but only to the extent that
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such untrue statement or omission is contained in any information furnished in writing by such
Affiliated Holder to the Company specifically for inclusion in such Registration Statement or
Prospectus or amendment or supplement thereto and will reimburse the Company, its directors,
officers, employees, stockholders and each person who controls the Company (within the meaning of
the Securities Act) for any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage or liability (or action in respect
thereof). In no event shall the liability of an Affiliated Holder be greater in amount than the
dollar amount of the proceeds (net of all expense paid by such Affiliated Holder in connection with
any claim relating to this Section 6) received by such Affiliated Holder upon the sale of the
Registrable Securities included in the Registration Statement giving rise to such indemnification
obligation.
(c) Conduct of Indemnification Proceedings. Any person entitled to indemnification
hereunder shall (i) give prompt notice to the indemnifying party of any claim with respect to which
it seeks indemnification and (ii) permit such indemnifying party to assume the defense of such
claim with counsel reasonably satisfactory to the indemnified party; provided, that any
person entitled to indemnification hereunder shall have the right to employ separate counsel and to
participate in the defense of such claim, but the fees and expenses of such counsel shall be at the
expense of such person unless (a) the indemnifying party has agreed to pay such fees or expenses,
(b) the indemnifying party shall have failed to assume the defense of such claim and employ counsel
reasonably satisfactory to such person or (c) in the reasonable judgment of any such person, based
upon written legal opinion of its counsel satisfactory to the indemnifying party, a conflict of
interest exists between such person and the indemnifying party with respect to such claims (in
which case, if the person notifies the indemnifying party in writing that such person elects to
employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not
have the right to assume the defense of such claim on behalf of such person); and provided,
further, that the failure of any indemnified party to give notice as provided herein shall
not relieve the indemnifying party of its obligations hereunder, except to the extent that such
failure to give notice shall materially adversely affect the indemnifying party in the defense of
any such claim or litigation. It is understood that the indemnifying party shall not, in
connection with any proceeding in the same jurisdiction, be liable for fees or expenses of more
than one separate firm of attorneys at any time for all such indemnified parties. No indemnifying
party will, except with the consent of the indemnified party, consent to entry of any judgment or
enter into any settlement that does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such indemnified party of a release from all liability in respect of such
claim or litigation.
(d) Contribution. If for any reason the indemnification provided for in the preceding
paragraphs 6(a) and 6(b) is unavailable to an indemnified party or insufficient to hold it
harmless, other than as expressly specified therein, then the indemnifying party shall contribute
to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or
liability in such proportion as is appropriate to reflect the relative fault of the indemnified
party and the indemnifying party, as well as any other relevant equitable considerations. 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 not guilty of such fraudulent
misrepresentation. In no event shall the contribution obligation of an Affiliated Holder of
Registrable Securities be greater in amount than the dollar amount of the proceeds (net of all
expenses paid by such
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Affiliated Holder in connection with any claim relating to this Section 6 and the amount of
any damages such Affiliated Holder has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission) received by it upon the sale of the
Registrable Securities giving rise to such contribution obligation.
7. Miscellaneous.
(a) Amendments and Waivers. This Agreement may be amended, modified or waived only by
a writing signed by the Company and the Required Holders.
(b) Notices. All notices and other communications provided for or permitted hereunder
shall be made as set forth in Section 10 of the Purchase Agreement.
(c) Assignments and Transfers by Affiliated Holders. The provisions of this Agreement
shall be binding upon and inure to the benefit of the Affiliated Holders and their respective
successors and assigns. An Affiliated Holder may transfer or assign, in whole or from time to time
in part, to one or more persons its rights hereunder in connection with the transfer of Registrable
Securities by such Affiliated Holder to such person; provided, that (i) such Affiliated
Holder complies with all laws applicable thereto and provides written notice of assignment to the
Company promptly after such assignment is effected and (ii) the transferee agrees in writing to be
bound by this Agreement as if it were a party hereto.
(d) Assignments and Transfers by the Company. This Agreement may not be assigned by
the Company (whether by operation of law or otherwise) without the prior written consent of the
Required Holders; provided, however, that the Company may assign its rights and
delegate its duties hereunder to any surviving or successor corporation in connection with a merger
or consolidation of the Company with another corporation, or a sale, transfer or other disposition
of all or substantially all of the Company’s assets to another corporation, without the prior
written consent of the Required Holders or the Affiliated Holders, after notice duly given by the
Company to each Affiliated Holder.
(e) Benefits of the Agreement. The terms and conditions of this Agreement shall inure
to the benefit of and be binding upon the respective permitted successors and assigns of the
parties. 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.
(f) Counterparts; Electronic Execution. This Agreement may be signed in one or more
counterparts, each of which shall be deemed an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument. Signatures to this Agreement transmitted by
facsimile transmission, by electronic mail in PDF form, or by any other electronic means designed
to preserve the original graphic and pictorial appearance of a document, will be deemed to have the
same effect as physical delivery of the paper document bearing the original signatures.
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(g) Titles and Subtitles. The titles and subtitles used in this Agreement are used
for convenience only and are not to be considered in construing or interpreting this Agreement.
(h) Severability. Any provision of this Agreement that is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions hereof but shall be
interpreted as if it were written so as to be enforceable to the maximum extent permitted by
applicable law so long as the economic or legal substance of the transactions contemplated hereby
is not affected in any manner materially adverse to any party, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction. Upon such a determination, the parties shall negotiate in good faith to
modify this Agreement so as to effect the original intent of the parties as closely as possible in
an acceptable manner in order that the transactions contemplated hereby be consummated as
originally contemplated to the fullest extent possible. To the extent permitted by applicable law,
the parties hereby waive any provision of law which renders any provisions hereof prohibited or
unenforceable in any respect.
(i) 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.
(j) 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.
(k) Governing Law; Consent to Jurisdiction; Waiver of Jury Trial. This Agreement
shall be governed by, and construed in accordance with, the internal laws of the State of New York
without regard to the choice of law principles thereof. Each of the parties hereto irrevocably
submits to the exclusive jurisdiction of the courts of the State of New York located in New York
County and the United States District Court for the Southern District of New York for the purpose
of any suit, action, proceeding or judgment relating to or arising out of this Agreement and the
transactions contemplated hereby. Service of process in connection with any such suit, action or
proceeding may be served on each party hereto anywhere in the world by the same methods as are
specified for the giving of notices under this Agreement. Each of the parties hereto irrevocably
consents to the jurisdiction of any such court in any such suit, action or proceeding and to the
laying of venue in such court. Each party hereto irrevocably waives any objection to the laying of
venue of any such suit, action or proceeding brought in such courts and irrevocably waives any
claim that any such suit, action or proceeding brought in any such court has been brought in an
inconvenient forum. EACH OF THE PARTIES HERETO WAIVES ANY RIGHT TO REQUEST A TRIAL BY JURY IN ANY
LITIGATION WITH RESPECT TO THIS AGREEMENT AND REPRESENTS THAT COUNSEL HAS BEEN CONSULTED
SPECIFICALLY AS TO THIS WAIVER.
11
(l) Obligations of Affiliated Holders. The Company acknowledges that the obligations
of each Affiliated Holder under this Agreement are several and not joint with the obligations of
any other Affiliated Holder, and no Affiliated Holder shall be responsible in any way for the
performance of the obligations of any other Affiliated Holder under this Agreement. The decision
of each Affiliated Holder to enter into to this Agreement has been made by such Affiliated Holder
independently of any other Affiliated Holder. The Company further acknowledges that nothing
contained in this Agreement, and no action taken by any Affiliated Holder pursuant hereto, shall be
deemed to constitute the Affiliated Holders as a partnership, an association, a joint venture or
any other kind of entity, or create a presumption that the Affiliated Holders are in any way acting
in concert or as a group with respect to such obligations or the transactions contemplated hereby.
Each Affiliated Holder shall be entitled to independently protect and enforce its rights, including
without limitation, the rights arising out of this Agreement, and it shall not be necessary for any
other Affiliated Holder to be joined as an additional party in any proceeding for such purpose.
Each Affiliated Holder has been represented by its own separate legal counsel in their review
and negotiation of this Agreement and with respect to the transactions contemplated hereby. The
Company has elected to provide all Affiliated Holders with the same terms and Agreement for the
convenience of the Company and not because it was required or requested to do so by the Affiliated
Holders. The Company acknowledges that such procedure with respect to this Agreement in no way
creates a presumption that the Affiliated Holders are in any way acting in concert or as a group
with respect to this Agreement or the transactions contemplated hereby or thereby.
[Signature pages follow]
12
IN WITNESS WHEREOF, the parties have executed this Agreement or caused their duly authorized
officers to execute this Agreement as of the date first written above.
| OSTEOLOGIX, INC. | ||||||
| By: | /s/ Xxxxxx X. Xxxxx | |||||
| Name: | Xxxxxx Xxxxx | |||||
| Title: | President & CEO | |||||
Signature Page to Registration Rights Agreement
| AFFILIATED HOLDERS: | ||||||||
| NORDIC BIOTECH OPPORTUNITY FUND K/S | ||||||||
| By: | /s/ Xxxxxxx Xxxxxxxxxxxx | |||||||
| Name: | Xxxxxxx Xxxxxxxxxxxx | |||||||
| Title: | Partner | |||||||
| By: | /s/ Xxxxxxxxx Xxxxxx | |||||||
| Name: | Xxxxxxxxx Xxxxxx | |||||||
| Title: | Partner | |||||||
Signature Page to Registration Rights Agreement
EXHIBIT A
PLAN OF DISTRIBUTION
The shares of common stock offered by this prospectus are being offered by selling
stockholders and their donees, pledgees, transferees or other successors-in-interest. The common
stock may be sold, transferred or otherwise disposed of on any stock exchange, the OTC Bulletin
Board or any other market or trading facility on which the shares are traded or in private
transactions. These dispositions may be at fixed prices, at prevailing market prices at the time
of sale, at prices related to the prevailing market price, at varying prices determined at the time
of sale, or at negotiated prices.
The selling stockholders may use any one or more of the following methods when disposing of
shares or interests therein:
| • | 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; |
| • | through brokers, dealers or underwriters who may act solely as agents; |
| • | 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; |
| • | short sales effected after the date the registration statement of which this Prospectus is a part is declared effective by the SEC; |
| • | through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise; |
| • | broker-dealers may agree with the selling stockholders to sell a specified number of such shares at a stipulated price per share; or |
| • | a combination of any such methods of sale. |
The selling stockholders may, from time to time, pledge or grant a security interest in some
or all of the 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, under this prospectus, or under an amendment or supplement to this prospectus
under Rule 424(b)(3) or other applicable provision of the Securities Act amending 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
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the shares of common stock in other circumstances, in which case the transferees, pledgees or
other successors in interest will be the selling beneficial owners for purposes of this prospectus.
In connection with the sale of our common stock or interests therein, 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 common stock in the course of hedging the positions they
assume. The selling stockholders may also sell shares of our common stock short and deliver these
securities to close out their short positions, or loan or pledge the common stock to broker-dealers
that in turn may sell these securities. 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).
Brokers, dealers, underwriters or agents participating in the distribution of the common stock
as agents may receive compensation in the form of commissions, discounts or concessions from the
selling stockholders and/or purchasers of the common stock for whom the broker-dealers may act as
agents. The compensation paid to a particular broker-dealer may be less than or in excess of
customary concessions, but except as set forth in a supplement to this prospectus, in the case of
an agency transaction not 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-2440-1. In no event shall any broker-dealer receive fees, commissions and markups that, in
the aggregate, would exceed eight percent (8%). At the time a particular offer of shares of common
stock is made, a prospectus supplement will be distributed that will set forth the names of any
agents, underwriters or dealers, any compensation from the selling stockholders and any other
required information. Neither we nor the selling stockholders can presently estimate the amount of
compensation that any agent will receive. We know of no existing arrangements between the selling
stockholders, any other stockholders, broker, dealer, underwriter or agent relating to the sale or
distribution of our common stock.
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 of 1933, provided that they meet
the criteria and conform to the requirements of that rule.
Any selling stockholder who is a registered broker-dealer will be deemed to be an underwriter.
Each of [
] and [
] are broker dealers or broker dealer
affiliates. Each of [
] and
[
] and entities associated with or
controlled by these entities are underwriters within the meaning of the Securities Act in
connection with the sale of securities under this prospectus. In addition, each of the other
selling stockholders may be deemed to be underwriters within the meaning of the Securities Act of
1933. See “Selling Stockholders.” Any profits on the sale of the common stock sold under this
prospectus by selling stockholders who are or who are deemed to be underwriters, and any discount,
commissions or agent’s commissions received by such selling stockholders may be deemed to be
underwriting discounts and commissions under the Securities Act. Because the selling stockholders
are or may be deemed to be underwriters, the selling
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stockholders will be subject to prospectus delivery requirements of the Securities Act,
including Rule 172 thereunder. Underwriters are subject to certain statutory liabilities,
including but not limited to, Section 11, 12 and 17 of the Securities Act. We are also required to
pay certain fees and expenses incurred by us incidental to the registration of the shares of common
stock.
To the extent required, the shares of our common stock to be sold, the names of the selling
stockholders, the respective purchase prices and public offering prices, the names of any agents,
dealer or underwriter, any applicable commissions or discounts with respect to a particular offer
will be set forth in an accompanying prospectus supplement or, if appropriate, a post-effective
amendment to the registration statement that includes this prospectus.
In order to comply with the securities laws of some states, if applicable, the common stock
may be sold in these jurisdictions only through registered or licensed brokers or dealers. In
addition, in some states the common stock may not be sold unless it has been registered or
qualified for sale or an exemption from registration or qualification requirements is available and
is complied with.
Under applicable rules and regulations under the Exchange Act, any person engaged in the
distribution of the securities offered under this prospectus may not simultaneously engage in
market making activities with respect to the common stock for the applicable restricted period, as
defined in Regulation M, prior to the commencement of the distribution. In addition, the selling
stockholders will be subject to applicable provisions of the Exchange Act and the rules and
regulations thereunder, including Regulation M, which may limit the timing of purchases and sales
of shares of the common stock by the selling stockholders or any other person. We intend to make
copies of this prospectus available to the selling stockholders and have informed them of the need
to deliver a copy of this prospectus to each purchaser at or prior to the time of the sale.
We have agreed to indemnify the selling stockholders against liabilities, including
liabilities under the Securities Act and state securities laws, relating to the registration of the
shares offered by this prospectus.
We have agreed to keep the registration statement of which this prospectus constitutes a part
effective until the earlier of (1) such time as all of the shares covered by this prospectus have
been disposed of or (2) the date on which all of the shares may be sold without volume limitations
pursuant to Rule 144 of the Securities Act.
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