REGISTRATION RIGHTS AGREEMENT
This
Registration Rights Agreement (the “Agreement”)
is made and entered into as of this 29th day of October, 2004 by and among IMCOR
Pharmaceutical Co., a Nevada corporation (the “Company”),
Xxxxxxx-Xxxxx Squibb Company (the “Purchaser”),
a Delaware corporation and Xxxxxxx-Xxxxx Squibb Medical Imaging, Inc.
(“BMSMI”),
a Delaware corporation.
The
parties hereby agree as follows:
1. Certain
Definitions.
Capitalized terms used and not otherwise defined herein that are defined in the
Purchase Agreement will have the meanings given such terms in the Purchase
Agreement. 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.
“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
Price”
as of any date means (a) the closing bid price of one share of Common Stock
as reported on The Nasdaq SmallCap Market (“Nasdaq”)
or other national securities exchange or OTC bulletin board on which the
Company’s shares may be quoted or listed on such date, (b) if no closing
bid price is available, the average of the high bid and the low asked price
quoted on Nasdaq on such date, or (c) if the shares of Common Stock are not
then quoted on Nasdaq, the value of one share of Common Stock on such date as
shall be determined in good faith by the Board of Directors of the Company and
the Purchaser, provided,
that if the Board of Directors of the Company and the Purchaser are unable to
agree upon the value of a share of Common Stock pursuant to this subpart (c),
the Company and the Purchaser shall jointly select an appraiser who is
experienced in such matters to determine the Closing Price. The decision of such
appraiser shall be final and conclusive, and the cost of such appraiser shall be
borne one-half by the Company and one-half by the Purchaser.
“Common
Stock”
shall mean the Company’s common stock, par value $0.001 per share.
“Holder”
or “Holders”
shall mean the holder or holders, as the case may be, from time to time of
Registrable Securities.
“Other
Investor Registration Statement”
shall mean one or more registration statements to be filed or filed covering the
resale of the shares of Common Stock acquired by investors in transactions other
than the private placement which closed in April and June 2004.
“Prospectus”
shall mean the prospectus included in any Registration Statement, 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 such
Registration Statement and by all other amendments and supplements to the
prospectus, including post-effective amendments and all material incorporated by
reference in such prospectus.
“Purchase
Agreement”
that certain Securities Purchase Agreement, of even date herewith, by and
between the Company and the Purchaser.
“Purchaser”
shall mean the Purchaser identified in the Purchase Agreement and any Affiliate
or permitted transferee of any Purchaser who is a subsequent
Holder.
“Register,”
“registered”
and “registration”
refer to a registration made by preparing and filing a Registration Statement or
similar document in compliance with the 1933 Act, and the declaration or
ordering of effectiveness of such Registration Statement or
document.
“Registrable
Securities”
shall mean the shares of Common Stock issued or issuable to the Purchaser upon
conversion of the Series A Convertible Preferred Stock pursuant to the Purchase
Agreement; provided,
that,
a security shall cease to be a Registrable Security upon (A) sale pursuant
to a Registration Statement or Rule 144 under the 1933 Act, or
(B) such security becoming eligible for sale by the Holder pursuant to
Rule 144(k).
“Registration
Statement”
shall mean any registration statement of the Company filed under the 1933 Act
that covers the resale of the Registrable Securities pursuant to the provisions
of this Agreement, amendments and supplements to such Registration Statement,
including post-effective amendments, all exhibits and all material incorporated
by reference in such Registration Statement.
“SEC”
means the U.S. Securities and Exchange Commission.
“Series
A Convertible Preferred Stock”
means the $0.01 par value preferred stock of the Company purchased pursuant to
the Purchase Agreement and having the rights, powers and preferences set forth
in the Certificate of Designation to the Amended Articles.
“1933
Act”
means the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
“1934
Act”
means the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
“2004
Investor Registration Statement”
shall mean the registration statement to be filed or filed covering the resale
of the shares of Common Stock and warrants to purchase shares of Common Stock
acquired by investors in that certain private placement which closed in April
and June 2004.
2. Registration.
(a) Registration
Statements.
The Company agrees that at any time beginning six months after the first
issuance of a share of Series A Convertible Preferred Stock (the “Original
Issue Date”),
upon the written request of the Purchaser (a “Demand
Registration”),
it will file a Registration Statement on Form SB-2 under the 1933 Act
covering the resale of the number of shares of Registrable Securities specified
in such request; provided that the Company shall not be required to file more
than four Registration Statements that become effective and remain effective for
the period specified in Section 3(a); and provided further that promptly
following any date on which the Company becomes eligible to use a Registration
Statement on Form S-3 to register Registrable Securities for resale, but in no
event more than 20 days after such date, the Company shall file a shelf
Registration Statement on Form S-3 covering the Registrable Securities (or a
post-effective amendment on Form S-3 to any then effective Registration
Statement) and shall cause such Registration Statement to be declared effective
as soon as possible thereafter, but in any event by the 90th
day following the date on which the Company files such Form S-3. The
Registration Statement shall contain (except if otherwise required pursuant to
written comments received from the SEC upon a review of such Registration
Statement) the “Plan of Distribution” attached hereto as Annex
A.
Such Registration Statement also shall cover, to the extent allowable under the
1933 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 “Selling Stockholders” and “Plan of Distribution” sections of
the Registration Statement (and each amendment or supplement thereto, and each
request for acceleration of effectiveness thereof) and any risk factor contained
in such document that addresses specifically this transaction or the selling
stockholders, shall be provided in accordance with Section
3(c)
to the Holders prior to its filing or other submission.
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(b) Piggy-Back
Registrations.
If at any time while a Registration Statement is required to be effective
hereunder there is not an effective Registration Statement covering all of the
Registrable Securities that are subject to a Demand Registration and the Company
shall determine to prepare and file with the SEC a registration statement
relating to an offering for its own account or the account of others under the
1933 Act of any of its equity securities, other than with respect to (i) the
2004 Investor Registration Statement, (ii) the Other Investor Registration
Statement or (iii) any registration statement on Form S-4 or Form S-8
(each as promulgated under the 0000 Xxx) or their then equivalents relating to
equity securities to be issued solely in connection with any acquisition of any
entity or business or equity securities issuable in connection with stock option
or other employee benefit plans, then the Company shall send to each Holder
written notice of such determination and, if within fifteen days after receipt
of such notice, any such Holder shall so request in writing, the Company shall
include in such registration statement all or any part of such Registrable
Securities such holder requests to be registered, subject to customary
underwriter cutbacks applicable to all holders of registration rights.
(c) Expenses.
The Company will pay all expenses associated with each registration hereunder,
including filing and printing fees, counsel and accounting fees and expenses,
costs associated with clearing the Registrable Securities for sale under
applicable state securities laws, listing fees and the Holder’s reasonable
expenses in connection with the registration, but excluding discounts,
commissions, fees of Holder’s counsel, and fees of underwriters, selling
brokers, dealer managers or similar securities industry professionals with
respect to the Registrable Securities being sold.
(d) Delays
in Effectiveness.
For not more than twenty-five (25) consecutive days or for a total of not more
than forty (40) days in any twelve (12) month period, the Company may delay the
disclosure of material non-public information concerning the Company, by
delaying the inclusion of such information in a Registration Statement required
by a Demand Registration or suspending the use of any Prospectus included in any
registration contemplated by this Section containing such information, the
disclosure of which at the time would be, in the good faith opinion of the
Company, materially detrimental to the Company (an “Allowed
Delay”);
provided,
that the Company shall promptly (a) notify the Holders in writing of the
existence of (but in no event, without the prior written consent of a Purchaser,
shall the Company disclose to such Purchaser any of the facts or circumstances
regarding) material non-public information giving rise to an Allowed Delay, and
(b) advise the Holders in writing to cease all sales under the Registration
Statement until the end of the Allowed Delay.
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(e) Underwritten
Offering.
If any offering pursuant to a Registration Statement pursuant to Section
2(a)
hereof involves an underwritten offering, the Company shall have the right to
select an investment banker and manager to administer the offering, which
investment banker or manager shall be reasonably satisfactory to the Holders
holding a majority of the Registrable Securities.
3. Company
Obligations.
Upon a Demand Registration, the Company will effect the registration of the
Registrable Securities in accordance with the terms hereof, and pursuant thereto
the Company will, as expeditiously as possible:
(a) use
its reasonable best efforts to cause such Registration Statement to become
effective and to remain effective (i) for a period sufficient to complete the
distribution of the Registrable Securities, in the case of a Registration
Statement made on Form SB-2, or (ii) continuously, in the case of a shelf
Registration Statement made on Form S-3; but in no event later than such time as
the Registrable Securities covered thereby are no longer “Registrable
Securities” under the definition thereof;
(b) prepare
and file with the SEC such amendments and post-effective amendments to the
Registration Statement and the Prospectus as may be necessary to keep the
Registration Statement effective for the relevant period specified in
Section 3(a)
hereof and to comply with the provisions of the 1933 Act and the 1934 Act with
respect to the distribution of all of the Registrable Securities covered
thereby;
(c) provide
copies to and permit the Holders to review the “Selling Stockholders” and “Plan
of Distribution” sections of each Registration Statement and any risk factor
that addresses specifically this transaction or the selling stockholders under
the Registration Statement and all amendments and supplements thereto, no fewer
than five (5) Business Days prior to their filing with the SEC and not, without
the consent of such Holder, file any Registration Statement that contains
disclosure regarding a Holder that differs in any material respect with the
disclosure set forth in the Selling Holder Questionnaire (as hereinafter
defined) provided by such Holder for use in such Registration
Statement;
(d) furnish
to the Holders (i) promptly after the same is prepared and publicly
distributed, filed with the SEC, or received by the Company (but not later than
two (2) Business Days after the filing date, receipt date or sending date, as
the case may be) one (1) copy of any Registration Statement and any amendment
thereto, each preliminary prospectus and Prospectus and each amendment or
supplement thereto, and each letter written by or on behalf of the Company to
the SEC or the staff of the SEC, and each item of correspondence from the SEC or
the staff of the SEC, in each case relating to such Registration Statement
(other than any portion of any thereof which contains information for which the
Company has sought confidential treatment or believes might constitute material
and non-public information concerning the Company), and (ii) such number of
copies of a Prospectus, including a preliminary prospectus, and all amendments
and supplements thereto and such other documents as each Holder may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such Holder that are covered by the related Registration
Statement;
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(e) in
the event of an underwritten offering hereunder wherein the Company selects an
underwriter, the Company shall enter into and perform its reasonable obligations
under an underwriting agreement, in usual and customary form, including, without
limitation, customary indemnification and contribution obligations, with the
underwriter of such offering;
(f) if
required by the underwriter, or if any Holder is described in the Registration
Statement as an underwriter, the Company shall furnish, on the effective date of
the Registration Statement (except with respect to clause (i) below) and on
the date that Registrable Securities are delivered to an underwriter, if any,
for sale in connection with the Registration Statement (including any Holder
deemed to be an underwriter), (i) (A) in the case of an underwritten
offering, an opinion, dated as of the closing date of the sale of Registrable
Securities to the underwriters, from legal counsel representing the Company for
purposes of such Registration Statement, in form, scope and substance as is
customarily given in an underwritten public offering, addressed to the
underwriters and the Holders participating in such underwritten offering or
(B) in the case of an “at the market” offering, an opinion, dated as of or
promptly after the effective date of the Registration Statement to the Holders,
from legal counsel representing the Company for purposes of such Registration
Statement, in form, scope and substance as is customarily given in a public
offering, addressed to the Holders, and (ii) a letter, dated as of the
effective date of such Registration Statement and confirmed as of the applicable
dates described above, from the Company’s independent certified public
accountants in form and substance as is customarily given by independent
certified public accountants to underwriters in an underwritten public offering,
addressed to the underwriters (including any Holder deemed to be an
underwriter);
(g) use
its reasonable best 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;
(h) prior
to any public offering of Registrable Securities, use its reasonable best
efforts to register or qualify or cooperate with the 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 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;
(i) use
its reasonable best efforts to cause all Registrable Securities covered by a
Registration Statement to be listed on each securities exchange, interdealer
quotation system or other market on which similar securities issued by the
Company are then listed;
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(j) immediately
notify the Holders, at any time when a Prospectus relating to Registrable
Securities is required to be delivered under the 1933 Act, 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 Holder, promptly
prepare and furnish to such Holder a reasonable number of copies of a supplement
to or an amendment of such Prospectus as may be necessary so that, as thereafter
delivered to the Holders of such Registrable Securities, such Prospectus shall
not include an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing; and
(k) otherwise
comply with all applicable rules and regulations of the SEC under the 1933 Act
and the 1934 Act, use its reasonable best efforts to take such other actions as
may be reasonably necessary to facilitate the registration of the Registrable
Securities hereunder; and make available to its security holders, as soon as
reasonably practicable, but not later than the Availability Date (as defined
below), an earnings statement covering a period of at least twelve (12) months,
beginning after the effective date of each Registration Statement, which
earnings statement shall satisfy the provisions of Section 11(a) of the
1933 Act (for the purpose of this Section
3(k),
“Availability
Date”
means the 45th day following the end of the fourth fiscal quarter that includes
the effective date of such Registration Statement, except that, if such fourth
fiscal quarter is the last quarter of the Company’s fiscal year, “Availability
Date”
means the 90th day after the end of such fourth fiscal quarter).
4. Obligations
of the Holders.
(a) Each
Holder agrees to furnish to the Company a completed Questionnaire in the form
attached to this Agreement as Annex
B
(a “Selling
Holder Questionnaire”).
The Company shall not be required to include the Registrable Securities of a
Holder in a Registration Statement and shall not be required to pay any partial
liquidated or other damages under Section 2(e) hereof to a Holder who fails
to furnish to the Company a completed Selling Holder Questionnaire at least two
(2) Business Days prior to the date a Registration Statement is required to be
filed in accordance with the requirements set forth in
Section 2(a).
(b) Each
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 a Registration Statement hereunder, unless such Holder
has notified the Company in writing of its election to exclude all of its
Registrable Securities from such Registration Statement.
(c) Each
Holder covenants and agrees that it will comply with the prospectus delivery
requirements of the 1933 Act as applicable to it in connection with sales of
Registrable Securities pursuant to the Registration Statement.
(d) Each
Holder agrees that, upon receipt of any notice from the Company of either
(A) the commencement of an Allowed Delay pursuant to Section 2(c)(ii)
or (B) the happening of an event pursuant to Section 3(j)
hereof, such Holder will immediately discontinue disposition of Registrable
Securities pursuant to the Registration Statement covering such Registrable
Securities, until the Holder’s receipt of the copies of the supplemented or
amended prospectus filed with the SEC and declared effective and, if so directed
by the Company, the Holder shall deliver to the Company (at the expense of the
Company) or destroy (and deliver to the Company a certificate of destruction)
all copies in the Holder’s possession of the Prospectus covering the Registrable
Securities current at the time of receipt of such notice.
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(e) No
Holder may participate in any third party underwritten registration hereunder
unless it (i) agrees to sell the Registrable Securities on the basis
provided in any underwriting arrangements in usual and customary form entered
into by the Company, (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements, and (iii) agrees to
pay its pro rata share of all underwriting discounts and commissions.
Notwithstanding the foregoing, no Holder shall be required to make any
representations to such underwriter, other than those with respect to itself and
the Registrable Securities owned by it, including its right to sell the
Registrable Securities, and any indemnification in favor of the underwriter by
the Holders shall be several and not joint and limited in the case of any
Holder, to the proceeds received by such Holder from the sale of its Registrable
Securities. The scope of any such indemnification in favor of an underwriter
shall be limited to the same extent as the indemnity provided in
Section 5(a) hereof.
5. Indemnification.
(a) Indemnification
by the Company.
The Company will indemnify and hold harmless each Holder and its officers,
directors, members, employees and agents, successors and assigns, and each other
person, if any, who controls such Holder within the meaning of the 1933 Act,
against any losses, claims, damages or liabilities, joint or several, to which
such Holder, officer, director, member, or controlling person may become subject
under the 1933 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) any blue sky application or other document executed by the Company
specifically for that purpose or based upon written information furnished by the
Company filed in any state or other jurisdiction in order to qualify any or all
of the Registrable Securities under the securities laws thereof (any such
application, document or information herein called a “Blue
Sky Application”);
(iii) 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; (iv) any violation by the Company or its agents of any rule or
regulation promulgated under the 1933 Act applicable to the Company or its
agents and relating to action or inaction required of the Company in connection
with such registration; or (v) 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 a Holder’s behalf
(the undertaking of any underwriter chosen by the Company being attributed to
the Company) and will reimburse such 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, liability or action; provided, however, that the
Company will not be liable in any such case if and to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission so made in
conformity with information furnished by or on behalf of such Holder or any such
controlling person in writing specifically for use in such Registration
Statement or Prospectus.
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(b) Indemnification
by the Holders.
Each 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 successors and each person who controls the Company
(within the meaning of the 0000 Xxx) 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 the 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
such untrue statement or omission is contained in any information furnished in
writing by or on behalf of such Holder to the Company specifically for inclusion
in such Registration Statement or Prospectus or amendment or supplement thereto.
In no event shall the liability of a Holder be greater in amount than the dollar
amount of the proceeds (net of all expense paid by such Holder and the amount of
any damages such holder has otherwise been required to pay by reason of such
untrue statement or omission) received by such Holder upon the sale of the
Registrable Securities 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 separate counsel shall be at the expense of such
person unless (a) the indemnifying party has agreed to pay such fees or
expenses, or (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
advice of its counsel, 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.
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(d) Contribution.
If for any reason the indemnification provided for in the preceding
paragraphs (a) and (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 1933 Act shall be entitled to
contribution from any person not guilty of such fraudulent misrepresentation. In
no event shall the contribution obligation of a holder of Registrable Securities
be greater in amount than the dollar amount of the proceeds (net of all expenses
paid by such holder and the amount of any damages such 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.
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 may 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 hereunder other than the Registrable Securities, and the
Company shall not after the date hereof enter into any agreement providing any
such right to any of its security holders.
(c) Amendments
and Waivers.
The provisions of this Agreement, including the provisions of this section, may
not be amended, modified or supplemented, and waivers or consents to departures
from the provisions hereof may not be given, unless the same shall be in writing
and signed by the Company and the Holder or Holders (as applicable) of no less
than a majority in interest 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
certain Holders and that does not directly or indirectly affect the rights of
other Holders may be given by Holders of at least a majority of the Registrable
Securities to which such waiver or consent relates.
(d) Notices.
All notices and other communications provided for or permitted hereunder shall
be made as set forth in the Purchase Agreement or, with respect to a Holder, to
such other address as provided in writing by a Holder to the
Company.
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(e) Assignments
and Transfers by Holders.
The provisions of this Agreement shall be binding upon and inure to the benefit
of the Holders and their respective successors and assigns. A 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 Holder to such person, provided that such Holder complies
with all laws applicable thereto and provides written notice of assignment to
the Company promptly after such assignment is effected.
(f) Assignments
and Transfers by the Company.
This Agreement may not be assigned by the Company (whether by operation of law
or otherwise), provided,
however,
that the Company must 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.
(g) 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.
Other than with respect to indemnified parties hereunder who are not parties to
this Agreement, 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.
(h) Counterparts;
Faxes.
This Agreement may be executed in two or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the
same instrument. This Agreement may also be executed via facsimile, which shall
be deemed an original.
(i) 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.
(j) 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, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. 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.
(k) Further
Assurances.
The parties hereto 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.
(l) Entire
Agreement.
This Agreement and the Purchase Agreement (and the Exhibits and Schedules
annexed thereto) are intended by the parties hereto 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 and therein. This Agreement and the Purchase Agreement
(and the Exhibits and Schedules annexed thereto) supersede all prior agreements
and understandings between the parties with respect to such subject
matter.
10
(m) Governing
Law; Consent to Jurisdiction.
All questions concerning the construction, validity, enforcement and
interpretation of this Agreement shall be governed by and construed and enforced
in accordance with the internal laws of the State of New York, without regard to
the principles of conflicts of law thereof. Each party agrees that all
proceedings concerning the interpretations, enforcement and defense of the
transactions contemplated by this Agreement (whether brought against a party
hereto or its respective affiliates, employees or agents) may be commenced
non-exclusively in the state and federal courts sitting in the City of New York,
Borough of Manhattan, (the “New
York Courts”).
Each party hereto hereby irrevocably submits to the non-exclusive jurisdiction
of the New York Courts for the adjudication of any dispute hereunder or in
connection herewith or with any transaction contemplated hereby or discussed
herein, and hereby irrevocably waives, and agrees not to assert in any
proceeding, any claim that it is not personally subject to the jurisdiction of
any New York Court, or that such proceeding has been commenced in an improper or
inconvenient forum. Each party hereto hereby irrevocably waives personal service
of process and consents to process being served in any such proceeding by
mailing a copy thereof via registered or certified mail or overnight delivery
(with evidence of delivery) to such party at the address in effect for notices
to it under this Agreement and agrees that such service shall constitute good
and sufficient service of process and notice thereof. Nothing contained herein
shall be deemed to limit in any way any right to serve process in any manner
permitted by law. Each party hereto hereby irrevocably waives, to the fullest
extent permitted by applicable law, any and all right to trial by jury in any
proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby. If either party shall commence a proceeding to enforce any
provisions of this Agreement, then the prevailing party in such proceeding shall
be reimbursed by the other party for its attorney’s reasonable fees and other
costs and expenses incurred with the investigation, preparation and prosecution
of such proceeding.
(n) Cumulative
Remedies.
The remedies provided herein are cumulative and not exclusive of any remedies
provided by law.
(o) Independent
Nature of Holders Obligations and Rights.
The obligations of each Holder hereunder is several and not joint with the
obligations of any other Holder hereunder, and no Holder shall be responsible in
any way for the performance of the obligations of any other Holder hereunder.
Nothing contained herein or in any other agreement or document delivered at any
closing, and no action taken by any Holder pursuant hereto or thereto, shall be
deemed to constitute the Holder as a partnership, an association, a joint
venture or any other kind of entity, or create a presumption that the Holder are
in any way acting in concert with respect to such obligations or the
transactions contemplated by this Agreement. Each Holder shall be entitled to
protect and enforce its rights, including without limitation the rights arising
out of this Agreement, and it shall not be necessary for any other Holder to be
joined as an additional party in any proceeding for such purpose.
Signature
pages follow.
11
IN
WITNESS WHEREOF, the parties have executed this Agreement or caused their duly
authorized officers to execute this Agreement as of the date first above
written.
| Company:
By:
Xxxxx X. Xxxxxxxx
Name:
Xxxxx X. Xxxxxxxx
Title:
President |
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 above
written.
|
Purchaser:
Xxxxxxx-Xxxxx
Squibb Medical Imaging, Inc.
By:
Xxxx Xxxxxxxx
Name:
Xxxx
Xxxxxxxx
Title:
President,
BMSMI
Xxxxxxx-Xxxxx
Squibb Company
By:
Xxxx Xxxxxxxx
Name:
Xxxx
Xxxxxxxx
Title:
President,
BMSMI |
13
Annex
A
Plan
of Distribution
The
Selling Stockholders and any of their pledgees, donees, transferees, assignees
and successors-in-interest may, from time to time, sell any or all of their
shares of Common Stock on any stock exchange, market or trading facility on
which the shares are traded or in private transactions. These sales may be at
fixed or negotiated prices. 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 Investors; |
| · | 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; |
| · | to cover short sales made after the date that this Registration Statement is declared effective by the Commission; |
| · | broker-dealers may agree with the Selling Stockholders to sell a specified number of such shares at a stipulated price per share; |
| · | a combination of any such methods of sale; and |
| · | any other method permitted pursuant to applicable law. |
The
Selling Stockholders may also sell shares under Rule 144 under the
Securities Act, if available, rather than under this prospectus.
Broker-dealers
engaged by the Selling Stockholders may arrange for other brokers-dealers to
participate in sales. Broker-dealers may receive commissions or discounts from
the Selling Stockholders (or, if any broker-dealer acts as agent for the
purchaser of shares, from the purchaser) in amounts to be negotiated. The
Selling Stockholders do not expect these commissions and discounts to exceed
what is customary in the types of transactions involved.
The
Selling Stockholders may from time to time pledge or grant a security interest
in some or all of the Shares owned by them and, if they default in the
performance of their secured obligations, the pledgees or secured parties may
offer and sell shares of Common Stock from time to time under this prospectus,
or under an amendment to this prospectus under Rule 424(b)(3) or other
applicable provision of the Securities Act of 1933 amending the list of selling
stockholders to include the pledgee, transferee or other successors in interest
as selling stockholders under this prospectus.
14
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 addition, upon the Company being notified in writing by a
Selling Stockholder that a donee or pledge intends to sell more than 500 shares
of Common Stock, a supplement to this prospectus will be filed if then required
in accordance with applicable securities law.
The
Selling Stockholders also may transfer 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.
The
Selling Stockholders and any broker-dealers or agents that are involved in
selling the shares may be deemed to be “underwriters” within the meaning of the
Securities Act in connection with such sales. In such event, any commissions
received by such broker-dealers or agents 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. Discounts, concessions, commissions and
similar selling expenses, if any, that can be attributed to the sale of
Securities will be paid by the Selling Stockholder and/or the Purchaser. Each
Selling Stockholder has represented and warranted to the Company that it
acquired the securities subject to this registration statement in the ordinary
course of such Selling Stockholder’s business and, at the time of its purchase
of such securities such Selling Stockholder had no agreements or understandings,
directly or indirectly, with any person to distribute any such securities.
The
Company has advised each Selling Stockholder that it may not use shares
registered on this Registration Statement to cover short sales of Common Stock
made prior to the date on which this Registration Statement shall have been
declared effective by the Commission. If a Selling Stockholder uses this
prospectus for any sale of the Common Stock, it will be subject to the
prospectus delivery requirements of the Securities Act. The Selling Stockholders
will be responsible to comply with the applicable provisions of the Securities
Act and Exchange Act, and the rules and regulations thereunder promulgated,
including, without limitation, Regulation M, as applicable to such Selling
Stockholders in connection with resales of their respective shares under this
Registration Statement.
The
Company is required to pay all fees and expenses incident to the registration of
the shares, but the Company will not receive any proceeds from the sale of the
Common Stock. The Company has agreed to indemnify the Selling Stockholders
against certain losses, claims, damages and liabilities, including liabilities
under the Securities Act. If the Selling Stockholders use this prospectus for
any sale of the Common Stock, they will be subject to the prospectus delivery
requirements of the Securities Act.
15
Annex B
Selling
Securityholder Notice and Questionnaire
The
undersigned beneficial owner of common stock (the “Common
Stock”),
of IMCOR Pharmaceutical Co. (the “Company”)
understands that the Company has filed or intends to file with the Securities
and Exchange Commission (the “SEC”)
a Registration Statement for the registration and resale of the Registrable
Securities, in accordance with the terms of the Registration Rights Agreement,
dated as of [l],
2004 (the “Registration
Rights Agreement”),
among the Company and the Purchaser named therein. A copy of the Registration
Rights Agreement is available from the Company upon request at the address set
forth below. All capitalized terms used and not otherwise defined herein shall
have the meanings ascribed thereto in the Registration Rights
Agreement.
The
undersigned hereby provides the following information to the Company and
represents and warrants that such information is accurate:
QUESTIONNAIRE
| 1. | Name. |
| (a) | Full Legal Name of Selling Securityholder |
| (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 Securityholder: |
Telephone:
Fax:
Contact
Person:
16
| 3. | Beneficial Ownership of Registrable Securities: |
| (a) | Type and Principal Amount of Registrable Securities beneficially owned: |
| 4. | Broker-Dealer Status: |
| (a) | Are you a broker-dealer? |
Yes o No o
Note:
If yes, the SEC’s staff has indicated that you should be identified as an
underwriter in the Registration Statement.
| (b) | Are you an affiliate of a broker-dealer? |
Yes o No o
| (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
o No o
Note:
If no, the SEC’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 Securityholder. |
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 by the Selling Securityholder: |
17
| 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:
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 for the Registration Statement.
By
signing below, the undersigned consents to the disclosure of the information
contained herein in its answers to Items 1 through 6 and the inclusion of
such information in the Registration Statement and the related prospectus. The
undersigned understands that such information will be relied upon by the Company
in connection with the preparation or amendment of the Registration Statement
and the related prospectus.
IN
WITNESS WHEREOF the undersigned, by authority duly given, has caused this Notice
and Questionnaire to be executed and delivered either in person or by its duly
authorized agent.
|
Dated:
|
Beneficial
Owner:
|
|
By:
Name:
Title:
|
18
