EXHIBIT 10.2
REGISTRATION RIGHTS AGREEMENT
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This Registration Rights Agreement is made and entered into as of the 31st day
of January, 2001, by and among Medi-Ject Corporation, a Minnesota corporation
(the "Company") and Permatec Holding AG, a company organized in Switzerland
("Permatec").
RECITALS
A. Permatec and the Company have entered into that certain Stock Purchase
Agreement, dated as of July 14, 2000, as amended as of October 17, 2000 and as
of November 30, 2000, (the "Purchase Agreement") by and among Medi-Ject
Corporation, Permatec Holding AG, Permatec Pharma AG, Permatec Technologie AG
and Permatec NV.
B. It is a condition to the transactions contemplated in the Purchase
Agreement that the Company provide the registration rights provided herein and
the parties hereto desire to provide for such rights on the terms and conditions
contained herein.
NOW, THEREFORE, in consideration of the premises and covenants contained
herein, the parties hereto agree as follows:
1. Defined Terms. Unless otherwise noted, all capitalized terms used herein
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shall have the meanings afforded them in the Purchase Agreement.
2. Registration Rights. The Company covenants and agrees as follows:
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2.1 Piggyback Registration. If the Company proposes to claim an exemption
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under Section 3(b) for a public offering of any of its securities or to register
under the Securities Act of 1933 (the "Securities Act") (except by a claim of
exemption or registration statement on a form that does not permit the inclusion
of shares by its security holders) any of its securities, it will give written
notice to Permatec as the registered holder of shares of Common Stock of the
Company received under the Purchase Agreement (the "Shares") (Shares referred to
herein as "Registrable Stock") of its intention to do so and, on the written
request of Permatec given within twenty (20) days after receipt of any such
notice, the Company will cause all shares of Registrable Stock as to which
Permatec has requested registration, to be included in such notification or
registration statement proposed to be filed by the Company; provided, however,
that (i) the Company shall not be required to include any such shares of
Registrable Stock in any such registration if Permatec is able to sell such
Registrable Stock during the three-month period beginning on the date such
notice is received by Permatec, without restriction pursuant to Rule 144(k)
under the Securities Act; (ii) the Company shall not be required to give such
notice with respect to, or to include such Registrable Stock in, any such
registration which is primarily (A) a registration of a stock option plan or
other employee benefit plan or of securities issued or issuable pursuant to any
such plan such as a registration on Form S-8, or (B) a registration of
securities proposed to be issued in exchange for securities or assets of, or in
connection with a merger or consolidation with, another corporation such as a
registration on Form S-4; (iii) the Company may, in its sole discretion, suspend
the
effectiveness of or withdraw any such registration statement and abandon the
proposed offering in which Permatec had requested to participate; and (iv) if
the offering to which the registration statement relates is to be distributed by
or through an underwriter, Permatec shall agree, as a condition to the inclusion
of its securities in such registration, to sell the securities held by such
holder through such underwriter on the same terms and conditions as the
underwriter agrees to sell securities on behalf of the Company and not to sell,
transfer, pledge, assign or otherwise dispose of any shares of Common Stock not
sold by Permatec in such offering for such period (up to (180) days after the
effective date of the registration statement) as may be required by the
underwriter.
2.2 Registration - General Provisions. In connection with the
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registration of the Registrable Stock under the Securities Act, the Company
will:
(a) prepare and file with the Commission a registration statement with
respect to such securities and use its best efforts to cause such registration
statement to become effective as soon as possible after the date it is filed and
keep the prospectus which is a part of such registration statement current until
the earlier of the date on which: (i) all such shares have been sold, or (ii) 90
days after the date it is declared effective by the Commission (the
"Effectiveness Period");
(b) prepare and file with the Commission such amendments to such
registration statement and supplements to the prospectus contained therein as
may be necessary to keep such registration statement effective for the
Effectiveness Period referred to in Section 2.2(a) above;
(c) at the request of Permatec, provide Permatec's legal counsel with
reasonable opportunities to review and comment on, and otherwise participate in,
the preparation of such registration statement;
(d) furnish to Permatec and to the underwriters of the securities
being registered, if any, such reasonable number of copies of the registration
statement, preliminary prospectus, final prospectus and such other documents as
Permatec and the underwriters may reasonably request in order to facilitate the
public offering of such securities;
(e) use its best efforts to register or qualify the securities covered
by such registration statement under such state securities or blue sky laws of
such jurisdictions as Permatec may reasonably request in writing within 30 days
following the original filing of such registration statement, except that the
Company shall not for any purpose be required to execute a general consent to
service of process (which shall not include a "Uniform Consent to Service of
Process" or other similar consent to service of process which relates only to
actions or proceedings arising out of or in connection with the sale of
securities, or out of a violation of the laws of the jurisdiction requesting
such consent) or to qualify to do business as a foreign corporation in any
jurisdiction wherein it is not so qualified;
(f) notify Permatec, promptly after it shall receive notice thereof,
of the time when such registration statement has become effective or a
supplement to any prospectus forming a part of such registration statement has
been filed with the Commission;
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(g) notify Permatec promptly of any request by the Commission for the
amending or supplementing of such registration statement or prospectus or for
additional information;
(h) provide Permatec with customary opinions and accountants' cold
comfort letter;
(i) prepare and file with the Commission, promptly upon the request of
Permatec, any amendments or supplements to such registration statement or
prospectus which, in the opinion of Permatec's legal counsel, if any (and
concurred in by counsel for the Company), is required under the Securities Act
or the rules and regulations promulgated thereunder in connection with the
distribution of the shares of the Company's common stock by Permatec;
(j) prepare and promptly file with the Commission and promptly notify
Permatec of the filing of such amendment or supplement to such registration
statement or prospectus as may be necessary to correct any statements or
omissions if, at the time when a prospectus relating to such securities is
required to be delivered under the Securities Act, any event shall have occurred
as the result of which any such prospectus or any other prospectus as then in
effect would include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances in which they were made, not misleading; and
(k) advise Permatec, and Permatec's legal counsel, if any, promptly
after it shall receive notice or obtain knowledge thereof, of the issuance of
any stop order by the Commission suspending the effectiveness of such
registration statement or the initiation or threatening of any proceeding for
that purpose and promptly use its best efforts to prevent the issuance of any
stop order or to obtain its withdrawal if such stop order should be issued.
2.3 Registration Expenses. The Company shall pay all Registration
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Expenses (as defined below) in connection with the inclusion of shares of the
Company's common stock in any registration statement, or application to register
or qualify such shares under state securities laws, filed by the Company
hereunder, other than as set forth herein. For purposes of this Agreement, the
term "Registration Expenses" means the filing fees payable to the Commission,
any state agency and the NASD; the fees and expenses of the Company's legal
counsel and independent certified public accountants in connection with the
preparation and filing of the registration statement (and all amendments and
supplements thereto) with the Commission; and all expenses relating to the
printing of the registration statement, prospectuses and various agreements
executed in connection with the registration statement. Notwithstanding the
foregoing, Permatec will pay the fees and expenses of any legal counsel Permatec
may engage, as well as Permatec's share of any custodian fees or commission or
discounts or transfer taxes which may be payable to any underwriter and any
other expenses incurred by Permatec not expressly included herein.
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3. Indemnification; Contribution.
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(a) To the extent permitted by law, the Company will indemnify
Permatec, each of its officers, directors, members and partners, and each person
controlling Permatec, with respect to which registration, qualification or
compliance has been effected pursuant to this Agreement, each director and
controlling person of the Company and each officer of the Company who signed the
registration statement, and each underwriter, if any, and each person who
controls any underwriter, against all claims, losses, damages and liabilities
(or actions, proceedings or settlements, if such settlements are effected with
the written consent of the Company, in respect thereof) arising out of or based
on any untrue statement (or alleged untrue statement) of a material fact
contained in any prospectus, offering circular or other document (including any
related registration statement, notification or the like) incident to any such
registration, qualification or compliance, or any omission (or alleged omission)
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, or any violation by the Company of
the Securities Act or the Securities Exchange Act of 1934 (the "Exchange Act")
or any rule or regulation thereunder applicable to the Company and relating to
action or inaction required of the Company in connection with any such
registration, qualification or compliance, and will reimburse Permatec, each of
its officers, directors, members and partners, and each person controlling
Permatec, each such director, controlling person and officer, each such
underwriter and each person who controls any such underwriter, for any legal and
any other expenses reasonably incurred in connection with investigating and
defending or settling any such claim, loss, damage, liability, action or
proceeding; provided, however, that the Company will not be liable in any such
case to the extent that any such claim, loss, damage, liability or expense
arises out of or is based on any untrue statement or omission made in such
registration statement, prospectus, offering circular or other document in
reliance upon and in conformity with written information furnished to the
Company by Permatec and stated to be specifically for use therein.
(b) To the extent permitted by law, Permatec will indemnify the Company,
each director, officer and controlling person of the Company and each officer of
the Company who signed the registration statement, and each underwriter, if any,
and each person who controls any underwriter, against all claims, losses,
damages and liabilities (or actions, proceedings or settlements, if such
settlements are effected with the written consent of Permatec, in respect
thereof) arising out of or based on any untrue statement (or alleged untrue
statement) of a material fact contained in any prospectus, offering circular or
other document in which Permatec's shares are included (including any related
registration statement, notification or the like) incident to any such
registration, qualification or compliance, or any omission (or alleged omission)
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to the extent that any
such claim, loss, damage, liability or expense arises out of or is based on any
untrue statement or omission made in such registration statement, prospectus,
offering circular or other document in reliance upon and in conformity with
written information furnished to the Company by Permatec and stated to be
specifically for use therein, or any violation by Permatec of the Securities Act
or the Exchange Act or any rule or regulation thereunder applicable to Permatec
and relating to action or inaction required of Permatec in connection with any
such registration, qualification or compliance, and will reimburse the Company,
each of its officers, directors, and each person controlling the Company, each
such underwriter and each person who controls any such underwriter, for any
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legal and any other expenses reasonably incurred in connection with
investigating and defending or settling any such claim, loss, damage, liability,
action or proceeding.
(c) The party entitled to indemnification under this Section 3 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or any litigation resulting
therefrom, shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld), and the Indemnified Party may participate in such
defense at such party's expense, except that if the defendants in any action
include both the Indemnified Party and the Indemnifying Party and there is a
conflict of interest which would prevent counsel for the Indemnifying Party from
also representing the Indemnified Party, the Indemnified Party or Parties shall
have the right to select separate counsel to participate in the defense of such
action on behalf of such Indemnified Party or Parties and to be indemnified for
the expense of such separate Counsel, 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 under this Agreement, unless such failure
to notify materially and adversely affects the Indemnifying Party's ability to
defend such action. No Indemnifying Party, in the defense of any such claim or
litigation, shall, except with the consent of each Indemnified Party, consent to
entry of any judgment or enter into any settlement which 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. Each Indemnified Party shall furnish such information regarding
itself or the claim in question as an Indemnifying Party may reasonably request
in writing and as shall be reasonably required in connection with the defense of
such claim and litigation resulting therefrom.
(d) If the indemnification provided for in this Section 3 shall for any
reason be unenforceable by an Indemnified Party, although otherwise available in
accordance with its terms, then each Indemnifying Party shall, in lieu of
indemnifying such Indemnified Party, contribute to the amount paid or payable by
such Indemnified Party as a result of the losses, claims, damages, liabilities
or expenses with respect to which such Indemnified Party has claimed
indemnification, in such proportion as is appropriate to reflect the relative
fault of the Indemnified Party on the one hand and the Indemnifying Party on the
other in connection with the statement or omissions which resulted in such
losses, claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company on one
hand and Permatec on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting expenses) received by
the Company bear to the total proceeds received by Permatec, in each case as set
forth in the table on the cover page of the prospectus. The relative fault, in
the case of an untrue statement, alleged untrue statement, omission or alleged
omission, shall be determined by, among other things, whether such statement,
alleged statement, omission or alleged omission relates to information supplied
by the Indemnifying Party or the Indemnified Party, and such parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement, alleged statement, omission or alleged omission. The Company and
Permatec agree
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that it would not be just and equitable if contribution pursuant hereto were to
be determined by pro rata allocation or by any other method of allocation which
does not take into account such equitable consideration. The amount paid or
payable by an Indemnified Party as a result of the losses, claims, damages,
liabilities or expenses referred to herein shall be deemed to include any legal
or other expense reasonably incurred by such Indemnified Party in connection
with investigating or defending against any action or claim which is the subject
hereof. In no case, however, shall Permatec be responsible for a portion of the
contribution obligation in excess of the net proceeds to Permatec of securities
sold as contemplated herein. No person guilty of fraudulent misrepresentation
(within the meaning of Section11(f) of the Securities Act) shall be entitled to
contribution from any person who is not guilty of such fraudulent
misrepresentation.
4. Miscellaneous.
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(a) Except as otherwise provided herein, the provisions of this
Agreement may not be amended, modified or supplemented, and waivers or consents
to or departures from the provisions hereof may not be given or made unless the
Company has obtained the written consent of Permatec.
(b) All notices and other communications provided for or permitted
hereunder shall be made by hand delivery, facsimile, overnight courier or
registered first-class mail to the address of the party set forth on the
signature page. All such notices and communications shall be deemed to have been
duly given: when delivered, if by hand, overnight courier or mail; or when
transmission is confirmed by the sending unit, if by facsimile.
(c) This Agreement may be executed in any number of counterparts and by
the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
(d) The headings to this Agreement are for convenience of reference
only and shall not limit or otherwise affect the meaning hereof.
(e) This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Minnesota without giving effect to the
principles of conflicts of law thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the date indicated
above.
MEDI-JECT CORPORATION
/s/ Franklin Pass
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By: Franklin Pass, M.D.
Its: President and Chief Executive Officer
Address: 000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000
PERMATEC HOLDING AG
/s/ Xx. Xxxxxxx Xxxxxxx
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By: Xx. Xxxxxxx Xxxxxxx
Its: Chairman
Address: Xxxxxxxxxxxxxx 00
XX-0000, Xxxxxxxxx, Xxxxxxxxxxx
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