Exhibit 10.13
FORM OF
ATHENA MEDICAL CORPORATION
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement is entered into as of the day of
, , by and between Athena Medical Corporation, a Nevada
corporation ("Athena"), and .
The parties agree as follows:
1. Definitions
1.1 The terms "Form X-0," " Xxxx X-0" and "Form S-3" mean such respective
forms under the Securities Act of 1933, as amended ("xxx 0000 Xxx"), as in
effect on the date hereof or any successor registration forms to Form X-0,
Xxxx X-0 and Form S-3, respectively, under the 1933 Act subsequently adopted
by the Securities and Exchange Commission or any other federal agency at the
time administering the 1933 Act (the "SEC").
1.2 The terms "register," "registered," and "registration" refer to a
registration effected by preparing and filing a registration statement or
similar document in compliance with the Securities Act of 1933, as amended
(the "1933 Act"), and the declaration or ordering of effectiveness of such
registration statement or document by the SEC Securities and Exchange
Commission or any other federal agency at the time administering the 1933 Act
(the "SEC").
1.3 The term "Registrable Securities" means the shares of the common
stock of Athena (the "Common Stock") issued pursuant to the Athena Medical
Corporation Common Stock Subscription Agreement dated as of , 1996
(the "Subscription Agreement") and any Common Stock issued as a dividend or
other distribution with respect to, or in exchange for, or in replacement of,
such shares of Common Stock. As to any particular Registrable Securities, such
securities will cease to be Registrable Securities when (i) they have been
effectively registered under the 1933 Act and disposed of in accordance with
the registration statement covering them, or (ii) they may be sold by a Holder
without effective volume limitations pursuant to Rule 144 (or any similar
provision that is in force) under the 0000 Xxx.
1.4 The term "Holder" means_______________________________________
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2. Registration Rights
2.1 Incidental Registration Rights. If at any time within three (3)
years after the date hereof, Athena proposes to register any of its
securities under the 1933 Act by registration on Form X-0, X-0 or S-3 or any
successor or similar forms (except registrations on such forms solely for
registration of shares in connection with an employee benefit plan or a
merger or consolidation) in an underwritten public offering, whether or not
for sale for its own account, it will at such time give prompt written notice
to Holder of its intention to do so and of Holder's rights under this Section
2. Upon the written request of Holder made within 30 days after the receipt
of any such notice (which request shall specify the number of Registrable
Securities intended to be disposed of by Holder), Athena will use its best
efforts to effect the registration under the 1933 Act of all Registrable
Securities in connection therewith which Athena has been so requested to
to register by Holder. If the managing underwriter for any underwritten
offering in a registration pursuant to this Section 2.1 shall inform in writing
Athena and Holder of its belief that the number of securities requested to be
included in such registration would materially and adversely affect its ability
to effect such offering, then Athena will include in such registration the
number which Athena is so advised can be sold in (or during the time of) such
offering, first, all securities proposed by Athena to be sold for its own
account, and second, such Registrable Securities and other securities of Athena
requested to be included in such registration by persons (other than Holder)
exercising their incidental registration rights, pro rata on the basis of the
number of shares of such securities so proposed to be sold and so requested to
be included.
2.2 In addition to the rights set forth in Section 2.1, Athena shall file
a registration statement to include all Registrable Securities on or before
________ . It is understood that the registration statement may also include
shares of Common Stock held by other Athena shareholders and that the shares
registered thereunto will not be underwritten. Athena agrees to keep the
registration statement effective for a period of three years from its initial
effective date or until less than 100,000 Registrable Securities are
outstanding, whichever first occurs. In conjunction with the Registration,
Athena shall use its best efforts to qualify such Registrable Securities for
sale under the laws of Florida, Georgia, New Jersey, New York, Oregon and
Washington; provided that, if Athena should qualify shares of Common Stock in
other jurisdictions, it will use its best efforts to qualify such Registrable
Securities in such other jurisdictions in connection with such registration.
3. Obligation of Athena
Whenever required under this Agreement to use its best efforts to effect
the registration of Registrable Securities, Athena shall, as expeditiously as
possible:
3.1 Furnish to Holder such reasonable number of copies of a prospectus,
including any preliminary prospectus, in conformity with the requirements of
the 1933 Act, and any amendments or supplements thereto and such other
documents as Holder may reasonably request in order to facilitate the
disposition of Registrable Securities owned by Holder.
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3.2 In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter of such offering. Holder shall also enter
into and perform its obligations under such an agreement, including furnishing
any opinion of counsel or entering into a lock-up agreement reasonably
requested by the managing underwriter.
3.3 Notify Holder, at any time when a prospectus relating thereto covered
by such registration statement is required to be delivered under the 1933 Act,
of the happening of any event as a result of which the prospectus included in
such registration statement, as then in effect, includes an untrue statement of
a material fact or omits to state a material fact required to be stated therein
or necessary to make the statements therein not misleading in the light of the
circumstances then existing and promptly file such amendments and supplements
which may be required on account of such event and use its best efforts to
cause each such amendment and supplement to become effective.
4. Preparation; Information; Reasonable Investigation
4.1 Furnish Information
It shall be a condition precedent to the obligations of Athena to take
any action pursuant to this Agreement that Holder shall furnish to Athena
such information regarding Holder, the Registrable Securities held by Holder,
and the intended method of disposition of such securities as shall be
required to effect the registration of Holder's Registrable Securities.
4.2 Preparation; Reasonable Investigation
In connection with the preparation and filing of any registration
statement under the 1933 Act pursuant to this Agreement, Athena will give
Holder and Holder's counsel, accountants or underwriters the opportunity to
participate in the preparation of such registration statement, each prospectus
included therein or filed with the SEC, and each amendment thereof or
supplement thereto, and will give Holder such access to its books and records
and such opportunities to discuss the business of Athena with its officers and
the independent public accountants who have certified its financial statements
as shall be necessary, in the opinion of Holder's counsel, accountants or
underwriters, to conduct a reasonable investigation within the meaning of the
1933 Act.
5. Expenses of Registration
All expenses (other than underwriting discounts and commissions,
transfer taxes, if any, and fees and disbursements of counsel to Holder)
relating to Registrable Securities incurred in connection with the
registrations, filings or qualifications pursuant to this Agreement, including
without limitation all registration, filing and qualification fees, printing
and accounting fees, and fees and disbursements of counsel for Athena, shall be
borne by Athena.
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6. Indemnification
If any Registrable Securities are included in a registration statement
under this Agreement:;
6.1 Athena Indemnification
To the extent permitted by law, Athena will indemnify and hold harmless
Holder, the officers, directors, partners, agents and employees of Holder or
any underwriter (as defined in the 1933 Act), and each person, if any, who
controls Holder or underwriter within the meaning of the 1933 Act or the
Securities Exchange Act of 1934, as amended (the "1934 Act"), against any
losses, claims, damages or liabilities (joint or several) to which they may
become subject under the 1933 Act, the 1934 Act or other federal or state law,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any of the following statements,
omissions or violations (a "Violation"):
(i) any untrue statement or alleged untrue statement of a material
fact contained in such registration statement, including any preliminary
prospectus or final prospectus contained therein or any amendments or
supplements thereto,
(ii) the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, or
(iii) any violation or alleged violation by Athena of the 1933 Act,
the 1934 Act, any state securities law or any rule or regulation promulgated
under the 1933 Act, the 1934 Act or any state securities law.
Athena will reimburse such Holder, officer, director, partner, agent,
employee, underwriter, or 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. The indemnity agreement
contained in this Section 6.1 shall not apply to amounts paid in settlement
of any loss, claim, damage, liability or action if such settlement is
effected without the consent of Athena (which consent shall not be
unreasonably withheld), nor shall Athena be liable to Holder in any such case
for any such loss, claim, damage, liability or action (a) to the extent that
it arises out of or is based upon a Violation which occurs in reliance upon and
in conformity with written information furnished expressly for use in
connection with such registration by or on behalf of Holder or controlling
person, or (b) if such untrue statement or alleged untrue statement or omission
or alleged omission was contained in a preliminary prospectus and corrected in
a final or amended prospectus, and Holder failed to deliver a copy of the final
or amended prospectus at or prior to the confirmation of the sale of the
Registrable Securities to the person asserting any such loss, claim, damage
or liability in any case where such delivery is required by the 1933 Act.
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6.2 Holder Indemnification
To the extent permitted by law, Holder will indemnify and hold harmless
Athena, each of its directors, each of its officers who have signed the
registration statement, each person, if any, who controls Athena within the
meaning of the 1933 Act, each agent and any underwriter for Athena, and any
holder selling securities in such registration statement or any of its
directors, officers, partners, agents or employees or any person who controls
such holder or underwriter, against any losses, claims, damages or
liabilities (joint or several) to which Athena or any such director, officer,
controlling person, agent or underwriter or controlling person, or other such
holder or director, officer or controlling person, may become subject, under
the 1933 Act, the 1934 Act or other federal or state law, insofar as such
losses, claims, damages or liabilities (or actions in respect thereto) arise
out of or are based upon any Violation, in each case to the extent (and only
to the extent) that such Violation occurs in reliance upon and in conformity
with written information furnished by or on behalf of Holder expressly for
use in connection with such registration; and Holder will reimburse any legal
or other expenses reasonably incurred by Athena or any such director,
officer, controlling person, agent or underwriter or controlling person, or
other holder, officer, director, partner, agent, employee or controlling
person, in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the indemnity agreement
contained in this Section 6.2 shall not apply to amounts paid in settlement
of any such loss, claim, damage, liability or action if such settlement is
effected without the consent of Holder, which consent shall not be
unreasonably withheld, nor, in the case of a sale directly by Athena of its
securities (including a sale of such securities through any underwriter
retained by Athena to engage in a distribution solely on behalf of Athena),
shall Holder be liable to Athena in any case in which such untrue statement
or omission or alleged untrue statement or alleged omission was contained in
a preliminary prospectus and corrected in a final or amended prospectus, and
Athena failed to deliver a copy of the final or amended prospectus at or
prior to the confirmation of the sale of the securities to the person
asserting any such loss, claim, damage or liability in any case where such
delivery is required by the 1933 Act; and provided, further, that the
indemnification obligation of Holder shall be limited to the aggregate public
offering price of the Registrable Securities sold by Holder pursuant to such
registration.
6.3 Notice, Defense and Counsel
Promptly after receipt by an indemnified party under this Section 6 of
notice of the commencement of any action (including any governmental action),
such indemnified party will, if a claim in respect thereof is to be made
against any indemnifying party under this Section 6, deliver to the
indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume and control the defense thereof with counsel
mutually satisfactory to the parties; provided, however, that an indemnified
party shall have the right to retain its own counsel, with the fees and
expenses to be paid by the indemnifying party, if representation of such
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indemnified party by the counsel retained by the indemnifying party would be
inappropriate due to actual or potential differing interests between such
indemnified party and any other party represented by such counsel in such
proceeding. The failure to deliver written notice to the indemnifying party
within a reasonable time of the commencement of any such action, if prejudicial
to its ability to defend such action, shall relieve such indemnifying party
of any liability to the indemnified party under this Section 6 to the extent of
such prejudice, but the omission so to deliver written notice to the
indemnifying party will not relieve it of any liability that it may have to any
indemnified party otherwise than under this Section 6.
6.4 Survival of Rights and Obligations
The obligations of Athena and Holder under this Section 6 shall survive
the completion of any offering of Registrable Securities in a registration
statement whether under this Agreement or otherwise.
7. Reports Under the 1934 Act
With a view to making available to Holder benefits of Rule 144
promulgated under the 1933 Act and any other rule or regulation of the SEC
that may at any time permit Holder to sell securities of Athena to the public
without registration, Athena agrees to use its best efforts to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144, at all times;
(b) file with the SEC in a timely manner all reports and other
documents required of Athena under the 1933 Act and the 1934 Act; and
(c) furnish to Holder, so long as Holder owns any Registrable
Securities, forthwith upon request (i) a written statement by Athena that
it has complied with the reporting requirements of Rule 144, the 1933 Act
and the 1934 Act (at any and all times after it has become subject to such
reporting requirements), or that it qualifies as a registrant whose
securities may be resold pursuant to Form S-2 or S-3 (at any time after it
so qualifies), (ii) a copy of the most recent annual or quarterly report
of Athena and such other reports and documents so filed by Athena, and
(iii) such other information as may be reasonably requested in availing
Holder of any rule or regulation of the SEC which permits the selling of
any such securities without registration or pursuant to such form.
8. Lock-Up Agreement
Holder, if requested by Athena and an underwriter of Athena's
securities, shall agree not to sell or otherwise transfer or dispose of any
Registrable Securities or other securities of Athena held by Holder for a
specified period of time (not to exceed 90 days) following the
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effective date of a registration statement pursuant to which Athena proposes
to sell its securities to the public generally, provided, however, that holders
of at least five percent of Athena's Common Stock and all officers and
directors of Athena enter into similar agreements.
9. Assignment of Registration Rights
The right to cause Athena to register Common Stock pursuant to this
Agreement may not be assigned or transferred without the prior written
consent of Athena, which consent will not be unreasonably withheld.
10. AMENDMENT
Any provision of this Agreement may be amended and the observance
thereof may be waived (either generally or in a particular instance and either
retroactively or prospectively), only with the written consentof Athena and the
Holders of a majority of the Registrable Securities. Any amendment or waiver
effected in accordance with this Section shall be binding upon each Holder and
Athena.
11. Termination of Registration Rights
No Holder shall be entitled to exercise any right provided for in this
Agreement after five (5) years following the date hereof.
12. Attorneys' Fees
In the event any legal action is brought by any party to enforce the
terms of this Agreement, the prevailing party shall be entitled to recover
reasonable attorneys' fees and expenses in addition to any other relief
deemed appropriate by the trial court or any appellate court.
13. Successors
Subject to Section 9 hereof, this Agreement shall bind and inure to
the benefit of the successors and assigns of Athena and the Holders.
14. Entire Agreement
This Agreement constitutes the entire agreement among the parties with
respect to the subject matter hereof and supersedes all prior arrangements or
understandings.
15. Notices
All notices, requests, consents and other communications required or
provided for herein to any party shall be deemed to be sufficient if
contained in a written instrument, and shall be deemed to be given when: (a)
delivered in person; (b) sent by first-class registered or
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certified mail with postage prepaid; (c) delivered by overnight receipted
courier service; or (d) sent by facsimile transmission with delivery confirmed
and followed by delivery pursuant to (b) hereof, which notice is addressed to
the party at the address set forth below, or such other address as may
hereafter be designated in writing by the party.
If to Athena: 00000 X.X. Xxxxxx Xxxxxx, Xxxxx X-0
Xxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to: Xxxxxxx X. Xxxxxxx
Xxxxxxx Coie
0000 XX Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Holder: __________________________
__________________________
__________________________
__________________________
with a copy to: ___________________________
___________________________
___________________________
___________________________
16 Event of Default
An Event of Default shall have occurred under this Agreement if Athena
shall fail to perform any obligation under this Agreement within thirty (30)
days after notice from any Holder specifying the nature of the failure of
default.
17. Counterparts
This Agreement may be executed in any number of counterparts, and
each such counterpart shall be deemed to be an original instrument. All such
counterparts together shall constitute one agreement.
18. Hedings
The headings of the various sections of this Agreement have been inserted
for convenience of reference only and shall not be deemed to be a part of
this Agreement.
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19. Governing Law
This Agreement shall be governed by and construed in accordance with the
laws of the State of Oregon.
IN WITNESS WHEREOF, the parties hereto have executed or caused their duly
authorized representative to execute this Agreement as of the date first
hereinabove written.
Holder by: __________________________
By:__________________________
Its ________________________
ATHENA
ATHENA MEDICAL CORPORATION
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