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EXHIBIT 9
CARDIAC PATHWAYS CORPORATION
REGISTRATION RIGHTS AGREEMENT
This Agreement is made as of May 20, 1999 by and between Cardiac
Pathways Corporation, a Delaware corporation (the "COMPANY"), and the persons
and entities listed on the Schedule of Holders attached hereto as Schedule 1
(the "HOLDERS").
WHEREAS, pursuant to a Stock Purchase Agreement (the "STOCK PURCHASE
AGREEMENT") of even date herewith between the Company, and the Holders, the
Company is selling up to 40,000 shares of Series B Convertible Preferred Stock
convertible into shares of the Company's Common Stock, as set forth in the Stock
Purchase Agreement (the "SHARES") to the Holders for the aggregate consideration
of between $25,000,000 and $40,000,000; and
WHEREAS, to induce the Holders to enter into the Stock Purchase
Agreement, the Company has agreed to provide the Holders with certain
registration rights with respect to the Shares pursuant to the terms and
conditions of this Agreement;
NOW, THEREFORE, in consideration of the mutual promises, covenants and
conditions set forth in this Agreement, the Company and the Holders agree as
follows:
1. Certain Definitions. As used in this Agreement, the following
terms shall have the following respective meanings:
(a) Business Day. Each Monday, Tuesday, Wednesday, Thursday
and Friday that is not a day on which banking institutions in New York are
authorized or obligated by law or executive order to close.
(b) Exchange Act. The Securities Exchange Act of 1934, as
amended, or any similar federal statute and the rules and regulations of the SEC
promulgated thereunder.
(c) Losses. See Section 5(a) hereof.
(d) Prospectus. The prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
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,
including, without limitation, with respect to the terms of the offering of any
portion of the Registrable Securities covered by such Registration Statement and
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. Such Prospectus and any amendments
or supplements shall comply with the Securities Act.
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(e) Register. The terms "register," "registered" and
"registration" refer to a registration effected by preparing and filing a
registration statement in compliance with the Securities Act, and the
declaration or ordering of the effectiveness of such registration statement by
the SEC.
(f) Registrable Securities. The Shares or other securities
issued or issuable with respect to the Shares as a result of any conversion,
stock split, stock dividend, recapitalization, exchange, combination, merger,
consolidation, distribution or similar event.
(g) Registration Expenses. See Section 4 hereof.
(h) Registration Statement. Any registration statement of
the Company which covers any of the Registrable Securities pursuant to the
provisions of this Agreement, including the Prospectus, amendments and
supplements to such registration statement, including post-effective amendments,
all exhibits, and all material incorporated by reference or deemed to be
incorporated by reference in such registration statement. Such Registration
Statement and any amendments or supplements thereto shall comply with the
Securities Act.
(i) Rule 144. Rule 144 under the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.
(j) SEC. The Securities and Exchange Commission.
(k) Securities Act. The Securities Act of 1933, as amended,
and the rules and regulations promulgated by the SEC thereunder.
(l) Special Counsel. Xxxxxx Godward LLP or such other
successor counsel as shall be specified by the BankAmerica Ventures on behalf of
the Holders as special counsel to the Holders, the fees and expenses of which
will be paid by the Company pursuant to Section 4 hereof.
2. Registration.
(a) Demand Registration.
(i) Request from Holders. If the Company shall
receive at any time after May 31, 2000 a written request from the Holders of
forty five percent (45%) of the Registrable Securities then outstanding that the
Company file a registration statement under the Securities Act covering the
registration of at least twenty percent (20%) of the Registrable Securities then
outstanding and having an aggregate offering price, net of underwriting
discounts and commissions, of at least $7,500,000, then the Company shall:
(1) within ten (10) days of the receipt
thereof, give written notice of such request to all Holders; and
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(2) effect as soon as practicable, and in
any event within sixty (60) days of the receipt of such request, the
registration under the Securities Act of all Registrable Securities that the
Holders request to be registered, subject to the limitations of subsections
2(a)(ii), 2(a)(iii) and 2(a(iv), within twenty (20) days of the mailing of such
notice by the Company in accordance with Section 9(d).
(ii) Underwriting. If the Holders initiating the
registration request hereunder ("INITIATING HOLDERS") intend to distribute the
Registrable Securities covered by their request by means of an underwriting,
they shall so advise the Company as a part of their request made pursuant to
subsection 2(a)(i) and the Company shall include such information in the written
notice referred to in subsection 2(a)(i)(1). The underwriter will be selected by
the Company and shall be reasonably acceptable to a majority in interest of the
Initiating Holders. In such event, the right of any Holder to include his
Registrable Securities in such registration shall be conditioned upon such
Holder's participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting (unless otherwise mutually agreed by
a majority in interest of the Initiating Holders and such Holder) to the extent
provided herein. All Holders proposing to distribute their securities through
such underwriting shall enter into an underwriting agreement in customary form
with the underwriter or underwriters selected for such underwriting.
Notwithstanding any other provision of this Section 2(a), if the underwriter
advises the Initiating Holders in writing that marketing factors require a
limitation of the number of shares to be underwritten, then the Initiating
Holders shall so advise all Holders of Registrable Securities that would
otherwise be underwritten pursuant hereto, and the number of shares of
Registrable Securities that may be included in the underwriting shall be
allocated among all Holders electing to include shares in the offering,
including the Initiating Holders, in proportion (as nearly as practicable) to
the amount of Registrable Securities of the Company owned by each Holder;
provided, however, that for purposes of making any such reduction, each Holder
which is an LLC or a partnership, together with the affiliates, partners and
retired partners of such Holder, the estates and family members of any such
partners and retired partners and their spouses, and any trusts for the benefit
of any of the foregoing persons shall be deemed to be a single Holder of
Registrable Securities and any pro-rata reduction with respect to such Holder
shall be based upon the aggregate amount of Registrable Securities owned by all
entities and individuals included in such Holder, as defined in this proviso
(and the aggregate amount so allocated to such Holder shall be allocated among
the entities and individuals included in such Holder in such manner as such LLC
or partnership shall reasonably determined. No Registrable Securities shall be
excluded from the underwriting until all other securities proposed to be
included by the Company and its stockholder have been excluded.
If any Holder of Registrable Securities disapproves of the terms of the
underwriting, such person may elect to withdraw therefrom by written notice to
the Company, the managing underwriter and the Initiating Holders. The
Registrable Securities and/or other securities so withdrawn shall also be
withdrawn from registration, and such Registrable Securities shall not be
transferred in a public distribution prior to 180 days after the effective date
of such registration, or such other shorter period of time as the underwriters
may permit. If by the withdrawal of such Registrable Securities a greater
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number of Registrable Securities held by other Holders may be included in such
registration (up to the maximum of any limitation then imposed by the
underwriters), then the Company shall offer to all Holders, if any, whose shares
have been excluded from the registration by the terms of the preceding
paragraph, the right to include additional Registrable Securities in the same
proportion used in determining the underwriter limitation in this Section 2(a)
up to the limitation then imposed by the underwriters.
(iii) Deferral. Notwithstanding the foregoing, if the
Company shall furnish to Holders requesting a registration statement pursuant to
this Section 2(a), a certificate from the Company stating that in the good faith
judgment of the Board of Directors of the Company, it would be seriously
detrimental to the Company and its stockholders for such registration statement
to be filed and it is therefore essential to defer the filing of such
registration statement, the Company shall have the right to defer taking action
with respect to such filing for a period of not more than ninety (90) days after
receipt of the request of the Initiating Holders; provided, however, that the
Company may not utilize this right more than once in any twelve (12) month
period.
(iv) Exceptions. In addition, the Company shall not
be obligated to effect, or to take any action to effect, any registration
pursuant to this Section 2(a):
(1) After the Company has effected two
registrations pursuant to this Section 2(a) and such registrations have been
declared or ordered effective;
(2) During the period starting with the date
sixty (60) days prior to the Company's good faith estimate of the date of filing
of, and ending on a date one hundred eighty (180) days after the effective date
of, a registration subject to Section 2(b) hereof; provided that the Company is
actively employing in good faith all reasonable efforts to cause such
registration statement to be effective; or
(3) If the Initiating Holders propose to
dispose of shares of Registrable Securities that may be immediately registered
on Form S-3 pursuant to a request made pursuant to Section 2(c) below.
(b) Company Registration.
(i) Notice of Registration. If at any time or from
time to time, the Company shall determine to register any of its securities,
either for its own account or the account of a security holder or holders other
than (i) a registration relating solely to employee benefit plans, (ii) a
registration statement on Form S-4 relating to a merger or acquisition by or of
the Company or (iii) a registration relating solely to a Commission Rule 145
transaction, the Company will:
(1) promptly give to each Holder written
notice thereof; and
(2) include in such registration (and any
related qualification under blue sky laws or other compliance), and in any
underwriting involved in such registration, all the
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Registrable Securities specified in a written request or requests made within
twenty (20) days after receipt of such written notice from the Company by any
Holder, but only to the extent that such inclusion will not diminish the number
of securities included by the Company or by holders of the Company's securities
who have demanded such registration.
(ii) Underwriting. If the registration of which the
Company gives notice is for a registered public offering involving an
underwriting, the Company shall so advise the Holders as a part of the written
notice given pursuant to Section 2(b)(i). In such event, the right of any Holder
to registration pursuant to Section 2(b) shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of Registrable Securities
in the underwriting to the extent provided herein. All Holders proposing to
distribute their securities through such underwriting shall (together with the
Company and the other holders distributing their securities through such
underwriting) enter into an underwriting agreement in customary form with the
managing underwriter selected for such underwriting by the Company (or by the
holders who have demanded such registration). Notwithstanding any other
provision of this Section 2(b), if the managing underwriter determines that
marketing factors require a limitation of the number of shares to be
underwritten, the number of shares that may be included in the underwriting will
be allocated, first, to the Company; and second, to each of the Holders
requesting inclusion of their Registrable Securities in such registration
statement on a pro rata basis based on the total number of Registrable
Securities held by each such Holder; provided, however that a minimum of twenty
five percent (25%) of the shares to be underwritten will be allocated to the
Holders requesting inclusion in such offering, on a pro rata basis and provided
further, that in the event of such limitation, no third party other than a
Holder invoking the right to register shares under this Section 2(b) shall be
entitled to sell shares in such offering. To facilitate the allocation of shares
in accordance with the above provisions, the Company or the underwriters may
round the number of shares allocated to any Holder or other holder to the
nearest 100 shares. For purposes of making any pro rata reduction pursuant to
the preceding sentence, each Holder which is an LLC or a partnership together
with the affiliates, partners and retired partners of such Holder of Registrable
Securities and any pro-rata reduction with respect to such Holder shall be based
upon the aggregate amount of Registrable Securities owned by all entities and
individuals included in such Holder, as defined in this sentence (and the
aggregate amount so allocated to such Holder shall be allocated among the
entities and individuals included in such Holder in such manner as such
partnership shall reasonably determine).
The Company shall advise all Holders and other holders distributing
their securities through such underwriting of any such limitation, and the
number of shares of Registrable Securities and other securities that may be
included in the registration and underwriting shall be allocated among all
Holders and such other holders in proportion, as nearly as practicable, to the
respective amounts of Registrable Securities held by such Holders and such other
holders at the time of filing the registration statement. If any Holder or
holder disapproves of the terms of any such underwriting, he may elect to
withdraw therefrom by written notice to the Company and the managing
underwriter. Any securities excluded or withdrawn from such underwriting shall
be withdrawn from such registration, and shall not be transferred in a public
distribution prior to 180 days after the effective
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date of the registration statement relating thereto, or such other shorter
period of time as the underwriters may require. If by the withdrawal of such
Registrable Securities a greater number of Registrable Securities held by other
Holders may be included in such registration (up to the maximum of any
limitation then imposed by the underwriters), then the Company shall offer to
all Holders, if any, whose shares have been excluded from the registration by
the terms of the preceding paragraph, the right to include additional
Registrable Securities in the same proportion used in determining the
underwriter limitation in this Section 2(b)(ii) up to the limitation then
imposed by the underwriters.
(iii) Right to Terminate Registration. The Company
shall have the right to terminate or withdraw any registration initiated by it
under this Section 2(b) prior to the effectiveness of such registration, whether
or not any Holder has elected to include securities in such registration.
(iv) Other Registration Rights. No Stockholder of the
Company shall be granted rights to participate in a Company registration that
would reduce the number of shares permitted to be included by the Holders of
Registrable Securities in such registration without the consent of holders of at
least sixty six and two thirds percent (66 2/3%) of the Registrable Securities.
(c) Form S-3 Registration. If the Company shall receive at
any time after May 31, 2000 a written request or requests from the Holders of
forty five percent (45%) of the Registrable Securities then outstanding that the
Company effect a registration on Form S-3 and any related qualification or
compliance with respect to all or a part of the Registrable Securities owned by
such Holder or Holders, the Company will:
(i) promptly give written notice of the proposed
registration, and any related qualification or compliance, to all other Holders;
and
(ii) as soon as practicable, effect such registration
and all such qualifications and compliances as may be so requested and as would
permit or facilitate the sale and distribution of all or such portion of such
Holder's or Holders' Registrable Securities as are specified in such request,
together with all or such portion of the Registrable Securities of any other
Holder or Holders joining in such request as are specified in a written request
given within fifteen (15) days after receipt of such written notice from the
Company; provided, however, that the Company shall not be obligated to effect
any such registration, qualification or compliance, pursuant to this Section
2(c): (1) if Form S-3 is not available for such offering by the Holders; (2) if
the Holders, together with the holders of any other securities of the Company
entitled to inclusion in such registration, propose to sell Registrable
Securities and such other securities (if any) at an aggregate price to the
public (net of any underwriters' discounts or commissions) of less than
$2,000,000; (3) if the Company shall furnish to the Holders a certificate
stating that in the good faith judgment of the Board of Directors of the
Company, it would be seriously detrimental to the Company and its stockholders
for such Form S-3 Registration to be effected at such time, in which event the
Company shall have the right to defer the filing of the Form S-3 registration
statement for a period of not more than one hundred twenty (120) days after
receipt of the request of the Holder or Holders under this
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Section 2(c); provided, however, that the Company shall not utilize this right
more than once in any twelve (12) month period; (4) if the Company has, within
the twelve (12) month period preceding the date of such request, already
effected one (1) registration on Form S-3 for the Holders pursuant to this
Section 2(c); or (5) in any particular jurisdiction in which the Company would
be required to qualify to do business or to execute a general consent to service
of process in effecting such registration, qualification or compliance.
(d) "Market Stand-Off" Agreement. Each Holder of more than
one percent (1%) of the Company's outstanding securities hereby agrees that,
during the period of duration (not to exceed ninety (90) days) specified by the
Company and an underwriter of common stock or other securities of the Company,
following the effective date of a registration statement of the Company's
securities filed under the Securities Act, it shall not, to the extent requested
by the Company and such underwriter, directly or indirectly sell, offer to sell,
contract to sell (including, without limitation, any short sale), grant any
option to purchase or otherwise transfer or dispose of (other than to donees who
agree to be similarly bound) any securities of the Company held by it at any
time during such period, except common stock included in such registration;
provided, however, that all officers, directors and employees of the Company
enter into similar agreements. In order to enforce the foregoing covenant, the
Company may impose stop-transfer instructions with respect to the securities of
each Holder (and the shares or securities of every other person subject to the
foregoing restriction) until the end of such period.
3. Registration Procedures. In connection with the Company's
registration obligations under Section 2 hereof, the Company shall effect such
registrations to permit the sale of the Registrable Securities in accordance
with the intended method or methods of disposition thereof and pursuant thereto
the Company shall as expeditiously as possible:
(a) Prepare and file with the SEC a Registration Statement
or Registration Statements on any appropriate form under the Securities Act
available for the sale of the Registrable Securities by the Holders in
accordance with the intended method or methods of distribution thereof, and
cause each such Registration Statement to become effective and remain effective
as provided herein; provided, that before filing any such Registration Statement
or Prospectus or any amendments or supplements thereto (other than documents
that would be incorporated or deemed to be incorporated therein by reference and
that the Company is required by applicable securities laws or stock exchange
requirements to file) the Company shall furnish to the Special Counsel copies of
all such documents proposed to be filed, which documents will be subject to the
review of the Special Counsel.
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be necessary to
keep such Registration Statement continuously effective for the applicable
period specified in Section 2; cause the related Prospectus to be timely
supplemented by any required Prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 (or any similar provisions then in force) under the
Securities Act; and comply with the provisions of the Securities Act with
respect to the disposition
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of all securities covered by such Registration Statement during the applicable
period in accordance with the intended methods of disposition by the Holders set
forth in such Registration Statement as so amended or such Prospectus as so
supplemented.
(c) Notify the Holders and the Special Counsel promptly, and
(if requested by any such person) confirm such notice in writing, (i) when a
Prospectus or any Prospectus supplement or post-effective amendment has been
filed, and, with respect to a Registration Statement or any post-effective
amendment, when the same has become effective, (ii) of any request by the SEC or
any other federal or state governmental authority during the period of
effectiveness of the Registration Statement for amendments or supplements to a
Registration Statement or related Prospectus or for additional information,
(iii) of the issuance by the SEC or any other federal or state governmental
authority of any stop order suspending the effectiveness of a Registration
Statement or the initiation of any proceedings for that purpose, (iv) 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, (v) of the happening of any event which makes any
statement made in such Registration Statement or related Prospectus or any
document incorporated or deemed to be incorporated therein by reference untrue
in any material respect or which requires the making of any changes in the
Registration Statement or Prospectus so that, in the case of the Registration
Statement, it will not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make
the statements therein not misleading, and that in the case of the Prospectus,
it will not contain any untrue statement of a material fact or omit to state any
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, and (vi) of the Company's reasonable
determination that a post-effective amendment to a Registration Statement would
be appropriate.
(d) Use every reasonable effort to obtain the withdrawal of
any order suspending the effectiveness of a Registration Statement, or the
lifting of any suspension of the qualification (or exemption from qualification)
of any of the Registrable Securities for sale in any jurisdiction, at the
earliest possible moment.
(e) Subject to the last paragraph of this Section 3, if
reasonably requested by the Holders (i) promptly incorporate in a Prospectus
supplement or post-effective amendment such information as the Holders agrees
should be included therein as required by applicable law, (ii) make all required
filings of such Prospectus supplement or such post-effective amendment as soon
as practicable after the Company has received notification of the matters to be
incorporated in such Prospectus supplement or post-effective amendment, and
(iii) supplement or make amendments to any Registration Statement consistent
with clause (i) or (ii) above; provided, that the Company shall not be required
to take any actions under this Section 3(e) that are not, in the opinion of
counsel for the Company, necessary or advisable to comply with applicable law.
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(f) Furnish to the Holders and the Special Counsel, without
charge, at least one conformed copy of the Registration Statement or
Registration Statements and any post-effective amendment thereto, including
financial statements, but excluding schedules, all documents incorporated or
deemed to be incorporated therein by reference and all exhibits (unless
requested in writing by the Holders or Special Counsel).
(g) Promptly deliver to the Holders and the Special Counsel,
without charge, as many copies of the Prospectus or Prospectuses relating to
such Registrable Securities (including each preliminary prospectus) and any
amendment or supplement thereto as such persons may reasonably request; and the
Company hereby consents to the use of such Prospectus or each amendment or
supplement thereto by the Holders in connection with the offering and sale of
the Registrable Securities covered by such Prospectus or any amendment or
supplement thereto.
(h) Prior to any public offering of Registrable Securities,
to register or qualify or cooperate with the Holders and the Special Counsel in
connection with the registration or qualification (or exemption from such
registration or qualification) of such Registrable Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions within the United
States as the Holders reasonably request in writing; keep each such registration
or qualification (or exemption therefrom) effective during the period such
Registration Statement is required to be kept effective and do any and all other
acts or things necessary or advisable to enable the disposition in such
jurisdictions of the Registrable Securities covered by the applicable
Registration Statement; provided, that the Company will not be required to (i)
qualify generally to do business in any jurisdiction where it is not then so
qualified or (ii) take any action that would subject it to general service of
process in suits or to taxation in any such jurisdiction where it is not then so
subject.
(i) Cause the Registrable Securities covered by the
applicable Registration Statement to be registered with or approved by such
other governmental agencies or authorities within the United States, except as
may be required solely as a consequence of the nature of a Holder, in which case
the Company will cooperate in all reasonable respects with the filing of such
Registration Statement and the granting of such approvals, as may be necessary
to enable the Holders or to consummate the disposition of such Registrable
Securities.
(j) Upon the occurrence of any event contemplated by Section
3(c)(v) or 3(c)(vi) above, prepare a supplement or post-effective amendment to
each Registration Statement or a supplement to the related Prospectus or any
document incorporated therein by reference or file any other required document
so that, as thereafter delivered to the purchasers of the Registrable Securities
being sold thereunder, such Prospectus will not contain 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, in light of the circumstances under
which they were made, not misleading.
(k) Notwithstanding anything in this Agreement to the
contrary, a Holder shall not be entitled to sell any of such Registrable
Securities pursuant to a Registration Statement or to receive a Prospectus
relating thereto unless such Holder (A) has at such time a current intent to
sell
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such Registrable Securities, and confirms such intent in writing, and (B) has
furnished the Company promptly after the Company's request, such information
regarding the Holder and the distribution of such Registrable Securities as the
Company may from time to time reasonably request. The Company may refrain from
filing a registration for any Holder's Registrable Securities if it does not
furnish such information provided above. Each of the Holders agrees promptly to
furnish to the Company all information required to be disclosed in order to make
the information previously furnished to the Company by Holders not misleading
with respect to such Holder.
The Holders agree by acquisition of the Registrable Securities that,
upon receipt of any notice from the Company of (A) the happening of any event of
the kind described in Section 3(c)(ii), 3(c)(iii), 3(c)(iv), 3(c)(v) or 3(c)(vi)
hereof or (B) that, in the reasonable judgment of the Company, it is advisable
to suspend use of the Prospectus for a discrete period of time due to pending
corporate developments, public filings with the SEC or similar events, the
Holders will forthwith discontinue disposition of such Registrable Securities
covered by such Registration Statement or Prospectus until the Holders' receipt
of the copies of the supplemented or amended Prospectus contemplated by Section
3(j) hereof, or until it is advised in writing (the "Advice") by the Company
that the use of the applicable Prospectus may be resumed, and has received
copies of any additional or supplemental filings that are incorporated or deemed
to be incorporated by reference in such Prospectus. The Company shall use its
reasonable efforts to insure that the use of the Prospectus may be resumed as
soon as practicable.
(l) Use its best efforts to furnish, on the date that such
Registrable Securities are delivered to the underwriters for sale, if such
securities are being sold through underwriters, (i) an opinion, dated as of such
date, of the counsel representing the Company for the purposes of such
registration, in form and substance as is customarily given to underwriters in
an underwritten public offering, addressed to the Holders participating in the
offering, and (ii) a letter dated as of such date, from the independent
certified public accountants of the Company, in form and substance as is
customarily given by independent certified public accountants to underwriters in
an underwritten public offering addressed to the Holder participating in the
offering.
4. Registration Expenses. All fees and expenses incident to the
Company's performance of or compliance with this Agreement shall be borne by the
Company whether or not any of the Registration Statements become effective. Such
fees and expenses shall include, without limitation, (i) all registration and
filing fees (including, without limitation, fees and expenses (x) with respect
to filings required to be made with the National Association of Securities
Dealers, Inc. and (y) of compliance with federal securities or Blue Sky laws,
(ii) printing expenses (including, without limitation, expenses of printing
certificates for Registrable Securities in a form eligible for deposit with The
Depository Trust Company), (iii) fees and disbursements of counsel for the
Company and the Special Counsel, and (iv) Securities Act liability insurance
obtained by the Company in its sole discretion. In addition, the Company shall
pay its internal expenses (including, without limitation, all salaries and
expenses of its officers and employees performing legal or accounting duties),
the expense of any annual audit, the fees and expenses incurred in connection
with the listing of the securities to be registered on any securities exchange
on which similar securities issued by the
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Company are then listed and rating agency fees and the fees and expenses of any
person, including special experts, retained by the Company. Notwithstanding the
provisions of this Section 4, the Holders shall pay all registration expenses to
the extent that the Company is prohibited by applicable Blue Sky laws from
paying for or on behalf of the Holders.
All underwriting discounts, selling commissions and stock transfer taxes
applicable to the sale of the Registrable Securities if any, shall be paid by
the Holders.
5. Indemnification.
(a) Indemnification by the Company. The Company shall
indemnify and hold harmless, to the fullest extent permitted by law, BankAmerica
Ventures ("BAV") each of its officers, directors, partners and members and each
selling Holder and each person, if any, who controls such Holder (within the
meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange
Act) from and against all losses, liabilities, claims, damages and expenses
(including but not limited to reasonable attorney fees and any and all
reasonable expenses whatsoever incurred in investigating, preparing or defending
against litigation, commenced or threatened, or any claim whatsoever, and any
and all amounts paid in settlement of any claim or litigation) (collectively,
"LOSSES"), arising out of or based upon any untrue or alleged untrue statement
of a material fact contained in any Registration Statement, Prospectus or form
of Prospectus or in any amendment or supplement thereto or in any preliminary
prospectus, or arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading, except insofar as the same are based solely upon
information furnished in writing to the Company by BAV or any Holder expressly
for use therein; provided, that the Company shall not be liable to BAV or any
Holder (or any person controlling any of the Holders) to the extent that any
such Losses arise out of or are based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in any prospectus if either (A)
(i) BAV or any of the Holders failed to send or deliver a copy of the Prospectus
with or prior to the delivery of written confirmation of the sale by the Holders
of a Registrable Security to the person asserting the claim from which such
Losses arise and (ii) the Prospectus would have corrected such untrue statement
or alleged untrue statement or such omission or alleged omission, or (B) (x)
such untrue statement or alleged untrue statement, omission or alleged omission
is corrected in an amendment or supplement to the Prospectus and (y) having
previously been furnished by or on behalf of the Company with copies of the
Prospectus as so amended or supplemented, the Holders thereafter fail to deliver
such Prospectus as so amended or supplemented, with or prior to the delivery of
written confirmation of the sale of a Registrable Security to the person
asserting the claim from which such Losses arise. The Company shall also
indemnify each underwriter and each person who controls such person (within the
meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange
Act) to the same extent as provided above with respect to the indemnification of
the Holder.
(b) Indemnification by Holder. In connection with any
Registration Statement in which the Holders are participating, BAV or the
Holders shall furnish to the Company in writing
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such information as the Company reasonably requests for use in connection with
any Registration Statement or Prospectus and each Holder agrees to indemnify, to
the fullest extent permitted by law, the Company, its directors and officers and
each other person who controls the Company (within the meaning of Section 15 of
the Securities Act and Section 20 of the Exchange Act), from and against all
Losses in each case arising out of or based upon any untrue statement of a
material fact contained in any Registration Statement, Prospectus or preliminary
prospectus or arising out of or based upon any omission of a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, to the
extent, but only to the extent, that such untrue statement or omission is
contained in any information so furnished in writing by BAV or the Holders to
the Company expressly for use in such Registration Statement, Prospectus or
preliminary prospectus. In no event shall the liability of BAV or any of the
Holders hereunder exceed the net proceeds received from sales of its Registrable
Securities. The Company shall be entitled to receive indemnities from
underwriters participating in the distribution to the same extent as provided
above with respect to information so furnished in writing by such persons
expressly for use in any Prospectus or Registration Statement.
(c) Conduct of Indemnification Proceedings. If any person
shall be entitled to indemnity hereunder (an "INDEMNIFIED PARTY"), such
Indemnified Party shall give prompt notice to the party from which such
indemnity is sought (the "INDEMNIFYING PARTY") of any claim or of the
commencement of any proceeding with respect to which such Indemnified Party
seeks indemnification or contribution pursuant hereto; provided, that the
failure to so notify the Indemnifying Party shall not relieve the Indemnified
Party from any obligation or liability except to the extent that the Indemnified
Party has been prejudiced materially by such failure. All such fees and expenses
(including any fees and expenses incurred in connection with investigating or
preparing to defend such action or proceeding) shall be paid to the Indemnified
Party on a quarterly basis following written notice thereof to the Indemnified
Party (notwithstanding the absence of judicial determination as to the propriety
and enforceability of the Indemnified Party's obligation to reimburse the
Indemnified Party for such expense and the possibility that such payments might
later be held to have been improper by a court of competent jurisdiction). In
case any such action is brought against an Indemnified Party, the Indemnified
Party shall be entitled to participate therein and it may elect by written
notice delivered to the Indemnified Party within a reasonable period of time
after receiving the aforesaid notice from such Indemnified Party, to assume the
defense thereof with counsel reasonably satisfactory to such Indemnified Party.
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 for plaintiff to such Indemnified Party
of a release from all liability in respect to such claim or litigation.
(d) Contribution. If the indemnification provided for in
this Section 5 is unavailable to an Indemnified Party under Section 5(a) or 5(b)
hereof in respect of any Losses or is insufficient to hold such Indemnified
Party harmless, then each applicable Indemnified Party, in lieu of indemnifying
such Indemnified Party, shall, jointly and severally, contribute to the amount
paid or
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payable by such Indemnified Party as a result of such Losses, in such proportion
as is appropriate to reflect the relative fault of the Indemnified Party or
indemnifying parties, on the one hand, and such Indemnified Party, on the other
hand, in connection with the actions, statements or omissions that resulted in
such Losses as well as any other relevant equitable considerations. The relative
fault of such Indemnified Party or indemnifying parties, on the one hand, and
such Indemnified Party, on the other hand, shall be determined by reference to,
among other things, whether any action in question, including any untrue or
alleged untrue statement of a material fact or omission or alleged omission of a
material fact, has been taken or made by, or relates to information supplied by,
such Indemnified Party or Indemnified Party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
action, statement or omission. The amount paid or payable by a party as a result
of any Losses shall be deemed to include any reasonable legal or other
reasonable fees or expenses incurred by such party in connection with any
proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 5(d) were determined by pro rata
allocation or by any other method or allocation that does not take into account
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding this Section 5(d), if any of the Holders are the Indemnifying
Party, such Holders shall not be required to contribute any amount in excess of
the amount by which the net proceeds exceeds the amount of any damages which
such Holder has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. 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 who was not
guilty of such fraudulent misrepresentation.
The indemnity, contribution and expense reimbursement obligations of the
Company hereunder shall be in addition to any liability the Company may
otherwise have hereunder or otherwise. The provisions of this Section 5 shall
survive so long as Registrable Securities remain outstanding, notwithstanding
any termination of this Agreement.
6. Rule 144 Information Requirements. For so long as any
Registrable Securities are "restricted securities" under Rule 144, the Company
agrees to timely file the reports required to be filed by it under the
Securities Act and the Exchange Act.
7. Sale without Registration. The Holders agree to comply in all
respects with the provisions of this Section 7 so long as each certificate
representing the Shares is required to bear the legend in substantially the form
set forth in the Stock Purchase Agreement among the Holders and the Company (or
any similar legend). Prior to any proposed transfer of any Registrable
Securities by the Holders which shall not be registered under the Securities
Act, the Holders shall give written notice to the Company of its intention to
effect such transfer, accompanied by: (a) such information as is reasonably
necessary in order to establish that such transfer may be made without
registration under the Securities Act; and (b) at the expense of such Holder or
such Holder's transferee, an unqualified written opinion of legal counsel,
satisfactory in form and substance to the Company, to the effect that such
transfer may be made without registration under the Securities Act; provided
that
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nothing contained in this Section 7 shall relieve the Company from complying
with its obligations pursuant to Section 2 of this Agreement.
8. Transfer of Rights. The rights granted to the Holders under
Section 2 hereof may be assigned to any transferee or assignee who is (a) a
subsidiary, parent, LLC, general partner, limited partner, retired partner,
member or retired member of a Holder, (b) a Holder's ancestors, descendants or
spouse or to trusts for the benefit of such persons or such Holder or (c) a
client, employee or member of BAV, provided that (i) such transfer may otherwise
be effected in accordance with applicable securities laws, (ii) the Company is
given written notice of any such transfer five (5) Business Days prior to the
date of said transfer, stating the name and address of said transferee or
assignee and identifying the securities with respect to which such registration
rights are being assigned and (iii) the transferee or assignee of such rights is
not deemed by the Board of Directors of the Company, in its reasonable judgment,
to be a competitor of the Company and provided further that the transferee or
assignee of such rights assumes in writing in a form reasonably acceptable to
the Company the obligations of the Holders under this Agreement. Notwithstanding
the above, BAV shall be permitted to transfer or assign its rights to Bank of
America Ventures, L.P. without the requirements set forth in Section 8.
9. Miscellaneous.
(a) Remedies. In the event of a breach by the Company of its
obligations under this Agreement, the Holders, in addition to being entitled to
exercise all rights granted by law, including recovery of damages, will be
entitled to specific performance of their rights under this Agreement. The
Company agrees that monetary damages would not be adequate compensation for any
loss 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 Conflicting Agreements. The Company has not, as of
the date hereof, and shall not, on or after the date of this Agreement, enter
into any agreement with respect to its securities which materially conflicts
with the rights granted to the Holders in this Agreement.
(c) Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Company has obtained the written
consent of a majority of the Holders.
(d) Notices. All notices and other communications provided
for or permitted hereunder shall be made in writing and shall be deemed given
(i) when made, if made by hand delivery, (ii) upon confirmation, if made by
telecopier or (iii) one business day after being deposited with a reputable
next-day courier, postage prepaid, to the parties as follows:
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(i) if to the Holders, c/o BankAmerica Ventures, 000
Xxxxx Xxxx, Xxxxx 000, Xxxxxx Xxxx, Xxxxxxxxxx 00000, Attention: Xxxx Xxxxxx and
Xxxxxx X. Xxxx, or to such other address as a Holder may hereafter furnish to
the Company in writing in accordance herewith, with a copy to Xxxxx Xxxxxxxx,
Xxxxxx Godward LLP, Five Xxxx Xxxx Xxxxxx, Xxxx Xxxx, XX 00000-0000.
(ii) if to the Company, to Cardiac Pathways
Corporation, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: G.
Xxxxxxx Xxxxx, Chief Financial Officer, or to such other address as the Company
may hereafter furnish to BAV in writing in accordance herewith, with a copy to
Xxxxx X. Xxxxxxx, Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, 000 Xxxx Xxxx Xxxx, Xxxx
Xxxx, Xxxxxxxxxx 00000-0000.
(e) Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the successors and permitted assigns of each
of the parties.
(f) Counterparts. 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 original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF CALIFORNIA, WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAWS.
(i) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such
which may be hereafter declared invalid, void or unenforceable.
(j) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and is 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 the
registration rights granted by the Company with respect to the Shares. There are
no restrictions, promises, warranties or undertakings, other than those set
forth or referred to herein, with respect to the registration rights granted by
the Company with respect to the Shares. This
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Agreement supersedes all prior agreements and understandings among the parties
with respect to such registration rights.
(k) Attorneys' Fees. In any action or proceeding brought to
enforce any provision of this Agreement, or where any provision hereof is
validly asserted as a defense, the prevailing party, as determined by the court,
shall be entitled to recover reasonable attorneys' fees in addition to any other
available remedy.
(l) Further Assurances. Each of the parties hereto shall use
all reasonable efforts to take, or cause to be taken, all appropriate action, do
or cause to be done all things reasonably necessary, proper or advisable under
applicable law, and execute and deliver such documents and other papers, as may
be required to carry out the provisions of this Agreement and the other
documents contemplated hereby and consummate and make effective the transactions
contemplated hereby.
(m) Termination. This Agreement and the obligations of the
parties hereunder shall terminate upon the earlier of (i) May 20, 2004, or (ii)
or when all of the Registrable Securities have been sold or cease to be
Registrable Securities.
(n) Actions by the Holders. Any action to be taken by the
Holders pursuant to the Agreement may be taken by the Holders of a majority of
the Registrable Securities.
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The foregoing Registration Rights Agreement is hereby executed as of the
date first above written.
"COMPANY"
CARDIAC PATHWAYS CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxxx
President and Chief Executive Officer
"HOLDERS"
BANKAMERICA VENTURES
By: /s/ Anchie X. Xxx
-------------------------------------
Title: Managing Director
----------------------------------
XXXXXX XXXXXXX VENTURE PARTNERS III, L.P.
By: Xxxxxx Xxxxxxx Venture Partners III, L.L.C.
its General Partner
By: Xxxxxx Xxxxxxx Venture Capital III, Inc.,
its Institutional Managing Member
By: /s/ Xxxxx Xxxxxx
-------------------------------------
Name: Xxxxx Xxxxxx
Title: General Partner
Address: 0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
SIGNATURE PAGE - CARDIAC PATHWAYS CORPORATION
REGISTRATION RIGHTS AGREEMENT
18
XXXXXX XXXXXXX VENTURE INVESTORS III, L.P.
By: Xxxxxx Xxxxxxx Venture Partners III, L.L.C.
its General Partner
By: Xxxxxx Xxxxxxx Venture Capital III, Inc.,
its Institutional Managing Member
By: /s/ Xxxxx Xxxxxx
-------------------------------------
Name: Xxxxx Xxxxxx
Title: General Partner
Address: 0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXXXXX XXXXXXX VENTURE PARTNERS
ENTREPRENEUR FUND, L.P.
By: Xxxxxx Xxxxxxx Venture Partners III, L.L.C.
its General Partner
By: Xxxxxx Xxxxxxx Venture Capital III, Inc.,
its Institutional Managing Member
By: /s/ Xxxxx Xxxxxx
-------------------------------------
Name: Xxxxx Xxxxxx
Title: General Partner
Address: 0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXX XXXXXXX CAPITAL MANAGEMENT
By: /s/ Garreat Xxx Xxxxxxx
-------------------------------------
Name: Garreat Xxx Xxxxxxx
Title: President
Address:
SIGNATURE PAGE - CARDIAC PATHWAYS CORPORATION
REGISTRATION RIGHTS AGREEMENT
19
STATE OF WISCONSIN INVESTMENT BOARD
By: /s/ Xxxx Xxxxxx
-------------------------------------
Name: Xxxx Xxxxxx
Title: Investment Director
Address:
/s/ Xxxxxx Xxxxxxx
----------------------------------------
XXXXXX XXXXXXX
SIGNATURE PAGE - CARDIAC PATHWAYS CORPORATION
REGISTRATION RIGHTS AGREEMENT
20
Schedule 1
SCHEDULE OF HOLDERS
Number of Shares
of Registrable
Holder and Beneficial Owner Nominee and Record Holder Securities
-----------------------------------------------------------------------------------------------
BankAmerica Ventures 10,000
Xxxxxx Xxxxxxx Venture Partners III, L.P. 8,773
Xxxxxx Xxxxxxx Venture Investors III, L.P. 842
Xxxxxx Xxxxxxx Venture Partners
Entrepreneurs Fund, L.P. 385
Xxx Xxxxxxx Capital Management 5,000
State of Wisconsin Investment Board 6,000
Xxxxxx Xxxxxxx 500
