Exhibit 4.2 Investor Registration Rights Agreement
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT ("Agreement") is made as of August
22, 2001, by and among American Bio Medica Corporation, a New York corporation
(the "Company"), and the persons signing the signature page of this Agreement
who have entered into Subscription Agreements, dated August 2001, to purchase
the Company's common stock (the "Shareholders").
RECITALS
A. Pursuant to Subscription Agreements, dated August 2001 (the
"Subscription Agreements"), the Shareholders have purchased shares (the "Common
Shares") of the Company's common stock, par value $0.01 per share ("Common
Stock"), and warrants (the "Common Stock Warrants") entitling the holders
thereof to purchase the number of shares (the "Warrant Shares") of Common Stock
as set forth therein.
B. To induce the Shareholders to purchase Common Shares and Common
Stock Warrants, the Company has agreed to provide the Shareholders with certain
registration rights described herein.
THEREFORE, in consideration of the promises and the mutual covenants
and agreements contained in the Subscription Agreements and other good and
valuable consideration, receipt of which is hereby acknowledged, the parties
hereby agree as follows:
1. Definitions. For purposes of this Agreement, the following terms
shall have the following meanings:
Person. An individual, partnership, corporation, limited liability
company, trust or unincorporated organization, or a government or
agency or political subdivision thereof.
Prospectus. The prospectus included in any Registration Statement,
as amended or supplemented by any prospectus supplement, including
post-effective amendments and all material incorporated by reference in
the prospectus.
Registration Statement. Any registration statement of the Company
which covers any of the Registrable Securities (as defined in Section 2
hereof) pursuant to the provisions of this Agreement, including the
registration statement and amendments and post-effective amendments
thereto, the Prospectus and supplements therein, all exhibits and all
material incorporated by reference in the registration statement.
SEC. The U.S. Securities and Exchange Commission.
Securities Act. The Securities Act of 1933, as amended.
Shares. The Common Shares and the Warrant Shares.
2. Securities Subject to this Agreement. The securities entitled to the
benefit of this Agreement are all the Shares and the Common Stock Warrants (the
"Registrable Securities"); provided, however, that the Shares and the Common
Stock Warrants shall be Registrable Securities only for so long as the Shares
and the Common Stock Warrants continue to be Restricted Securities. For purposes
of this Agreement, the Shares and the Common Stock Warrants shall be Restricted
Securities as of the date of this Agreement. The Shares and the Common Stock
Warrants shall cease to be Restricted Securities when (1) the Company has
effectively registered the Shares and the Common Stock Warrants under the
Securities Act and the Shareholders who own the Shares and the Common Stock
Warrants, have disposed of the Shares and the Common Stock Warrants in
accordance with the Registration Statement covering the Shares and the Common
Stock Warrants, (2) the Shareholders who own Shares and Common Stock Warrants,
shall be eligible to sell the Shares and the Common Stock Warrants to the public
in accordance with all applicable conditions of Rule 144 (or any similar
provisions then in force) under the Securities Act, or such Shares and Common
Stock Warrants may be sold pursuant to Rule 144(k) (or any similar provision
then in force) under the Securities Act, and are freely tradable after such sale
by the transferee, (3) the Shareholders have otherwise transferred the Shares
and the Common Stock Warrants (except as otherwise provided in Section 7(h)
hereof), or (4) such Shares or Common Stock Warrants shall have ceased to be
outstanding.
3. Registration of Registrable Securities. On or before the later of
(i) August 15, 2001 or (ii) the thirtieth business day after the date American
Bio Medica issues Common Shares and Common Stock Warrants, the Company will use
its best efforts to cause a Registration Statement to be filed with the SEC
covering the Registrable Securities. The Company shall also use its commercially
reasonable efforts to cause such Registration Statement to become effective
within 45 days after such filing (or 90 days if reviewed by the Staff of the
SEC) and, subject to the provisions of Section 2 hereof, remain effective until
two years after the last date Common Shares and Common Stock Warrants are issued
to such Shareholders pursuant to the Subscription Agreements.
4. Registration Procedures.
(a) The Company shall:
(i) furnish to the Shareholders, without charge, at least one
signed copy of the Registration Statement and any post-effective
amendment thereto, including financial statements and schedules, all
documents incorporated by reference therein and all exhibits
(including those incorporated by reference);
(ii) deliver to the Shareholders, without charge, as many
copies of the Prospectus (including each preliminary Prospectus) and
any amendment or supplement thereto as they may reasonably request,
but only while the Company is required to cause the Registration
Statement to remain effective;
(iii) prior to any public offering of Registrable Securities,
register or qualify or cooperate with the Shareholders and their
respective counsel in connection with the registration or
qualification of the Registrable Securities for offer and sale under
the securities laws of the various states (the "Blue Sky Laws") and
do any and all other acts or things reasonably necessary or
advisable to effect the registration or qualification of the
Registrable Securities covered by the Registration Statement in the
various states; provided, however, that in no event shall the
Company be obligated to qualify to do business in any jurisdiction
where it is not now qualified or to take any action which would
subject it to taxation or service of process in suits other than
those arising out of the offer or sale of the securities covered by
such Registration Statement in any jurisdictions where it is not now
so subject;
(iv) cooperate with the Shareholders to prepare and deliver
timely certificates representing Registrable Securities to be sold
and not bearing any restrictive legends; and issue the Registrable
Securities in the denominations and register them in the names the
Shareholders may request at least two (2) business days prior to any
sale of Registrable Securities;
(v) use its best efforts to cause a Notification Form for
Listing of Additional Shares to be filed with The Nasdaq Stock
Market with respect to the Registrable Securities being registered
or to cause similar required forms to be filed with the market on
which similar securities issued by the Company are then listed or
traded; and
(vi) make available to the Shareholders and any attorney or
accountant retained by the Shareholders for inspection all financial
and other records, pertinent corporate documents and properties of
the Company, and cause the Company's officers, directors and
employees to supply all information that the participating
Shareholders, the Shareholders' representatives, attorneys or
accountants may reasonably request in connection with the
registration; provided, that such Persons shall keep confidential
any records, information or documents that the Company designates as
confidential unless a court or administrative agency requires the
disclosure of the records, information or documents.
(b) Each of the Shareholders agrees to furnish the Company with any
information regarding the Shareholders and the distribution of the
Registrable Securities as the Company may from time to time reasonably
request.
(c) The Shareholders agree that, upon receipt of any notice from the
Company of the happening of any of the following: (i) the SEC's
issuance of any stop order denying or suspending the effectiveness of
the Registration Statement or the initiation or threatening of any
proceeding for that purpose, (ii) the Company's receipt of any stop
order denying registration or suspending the qualification of the
Registrable Securities for sale or the initiation or threatening of any
proceeding for such purpose, or (iii) the happening of any event which
makes any statement made in the Registration Statement, the Prospectus
or any document incorporated by reference therein untrue or which
requires any change in the Registration Statement, the Prospectus or
any document incorporated by reference therein to make the statements
not include an untrue statement of material fact or not omit any
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then
existing, the Shareholders shall discontinue the disposition of
Registrable Securities until the Shareholders receive a supplemented or
amended Prospectus from the Company or until the Company advises the
Shareholders in writing that the participating Shareholders may resume
the use of the Prospectus, and have received copies of any additional
or supplemental filings which are incorporated by reference in the
Prospectus. If the Company so directs, the Shareholders will deliver to
the Company all copies, other than permanent file copies then in the
Shareholders' possession, of the Prospectus covering the Registrable
Securities at the time the Shareholders received the notice.
5. Registration Expenses. Regardless of when the Registration Statement
becomes effective, the Company shall bear all costs and expenses incident to the
Company's performance of, or compliance with, this Agreement, including without
limitation all registration and filing fees, fees and expenses of compliance
with the Blue Sky Laws, printing expenses, messenger, telephone and delivery
expenses, and fees and disbursements of counsel for the Company, all independent
certified public accountants of the Company, and fees and expenses of other
Persons retained by the Company relating to the distribution of the Registrable
Securities (all such expenses being called "Registration Expenses"). The
participating Shareholders shall in all cases bear all discounts, fees or
commissions incident to the sale of the Shareholders' Registrable Securities and
any fees of any attorney or accountant retained by any of the Shareholders.
6. Indemnification.
(a) Indemnification by the Company. The Company agrees to indemnify
and hold harmless, to the full extent permitted by law, the
Shareholders against all losses, claims, damages, liabilities and
expenses, joint or several, to which the Shareholders may become
subject under the Securities Act or any state securities law, or any
rule or regulation promulgated under the Securities Act or otherwise
which arise out of, or are caused by, the Company's violation of the
Securities Act or any state securities laws, or any rule or regulation
promulgated under the Securities Act, including, but not limited to,
any untrue or alleged untrue statement of a material fact contained in
any Registration Statement, Prospectus or preliminary Prospectus or in
any application or other request that the Company files, including any
application or request filed under the Blue Sky Laws, 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, except insofar as the same are based upon an untrue or
alleged untrue statement or omission or alleged omission so made which
is contained in information furnished to the Company by any of the
Shareholders expressly for use therein or by any Shareholder's failure
to deliver a copy of the Registration Statement or Prospectus after the
Company has furnished the participating Shareholders with a copy of the
same. The Company will reimburse the Shareholders for any legal or
other expense the Shareholders reasonably incur in connection with
investigating or defending any such loss, claim, damage, liability,
action or proceeding. The Company will also indemnify the selling
brokers, dealer managers and similar securities industry professionals
participating in the distribution, their officers and directors and
each Person who controls such persons (within the meaning of the
Securities Act) to the same extent as provided above with respect to
the indemnification of the Shareholders, if requested.
(b) Indemnification by the Shareholders. In connection with any
Registration Statement in which any Shareholder's Registrable
Securities are registered and sold, the participating Shareholders
shall furnish to the Company the information and affidavits as the
Company reasonably requests for use in connection with any Registration
Statement or Prospectus and agree, jointly and severally, to indemnify
and hold harmless, to the full extent permitted by law, the Company,
its officers directors and each Person who controls the Company (within
the meaning of the Securities Act) against any losses, claims, damages,
liabilities and expenses resulting from any untrue or alleged untrue
statement of a material fact or any omission or alleged omission of a
material fact required to be stated in the Registration Statement,
Prospectus, preliminary Prospectus or any application filed under the
Blue Sky Laws or necessary to make the statements therein not
misleading, to the extent, but only to the extent, that the untrue
statement or omission is contained in any information or affidavit so
furnished by the Shareholder to the Company specifically for inclusion
in the Registration Statement, Prospectus or application filed under
the Blue Sky Laws. The Company shall be entitled to receive indemnities
from selling brokers, dealer managers and similar securities industry
professionals participating in the distribution, to the same extent as
provided above with respect to information so furnished by the Persons
specifically for inclusion in any Prospectus or Registration Statement.
(c) Conduct of Indemnification Proceedings. Any Person entitled to
indemnification hereunder shall (1) promptly notify the indemnifying
party of any claim with respect to which it seeks indemnification and
(2) permit such indemnifying party to assume the defense of such claim
with counsel reasonably satisfactory to the indemnified party. Any
Person entitled to indemnification hereunder shall have the right to
employ separate counsel and to participate in the defense of the claim,
but the fees and expenses of the counsel shall be at the expense of the
Person unless (A) the indemnifying party has agreed to pay the fees or
expenses, (B) the indemnifying party shall have failed to assume the
defense of the claim and employ counsel reasonably satisfactory to the
Person, or (C) in the reasonable judgment of the Person, based upon
advice of its counsel, a conflict of interest may exist between the
Person and the indemnifying party with respect to the claims (in which
case, if the Person notifies the indemnifying party in writing that the
Person elects to employ separate counsel at the expense of the
indemnifying party, the indemnifying party shall not have the right to
assume the defense of the claim on behalf of the Person). The
indemnifying party will not be subject to any liability for any
settlement made without its consent. The indemnifying party, however,
may not unreasonably withhold its consent. No indemnifying party will
be required to consent to the entry of any judgment or to enter into
any settlement which does not include as an unconditional term the
claimant's or plaintiff's release of the indemnified party from all
liability in respect to the claim or litigation. An indemnifying party
who is not entitled to, or elects not to, assume the defense of a claim
shall not be obligated to pay the fees and expenses of more than one
counsel for all parties indemnified by the indemnifying party with
respect to the claim, unless in the reasonable judgment of any
indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with
respect to the claim, in which event the indemnifying party shall be
obligated to pay the fees and expenses of such additional counsel or
counsels.
(d) Contribution. If for any reason the indemnification provided for
in the preceding clauses (a) and (b) is unavailable to an indemnified
party or insufficient to hold it harmless as contemplated by the
preceding clauses (a) and (b), then the indemnifying party shall
contribute to the amount paid or payable by the indemnified party as a
result of the loss, claim, damage liability or expense in the
proportion as is appropriate to reflect (1) the relative benefits
received by the indemnified party and the indemnifying party, (2) the
relative fault of the indemnified party and the indemnifying party, and
(3) any other relevant equitable considerations.
(e) The indemnities provided in this Section 6 shall survive the
Shareholders' transfer of any Registrable Securities.
7. Miscellaneous.
(a) Other Agreements. The Shareholders acknowledge that the Company
has granted registration rights to others and the rights granted in
this Agreement are subject to those rights already granted.
(b) Amendments and Waivers. No amendment, modification, supplement
or waiver of any provision of this Agreement is binding on any party
unless the party consents in writing thereto.
(c) Notices. Any notice or other communication required or which may
be given under this Agreement shall be in writing and either delivered
personally to the addressee, telegraphed, telecopied or telexed to the
addressee, sent by overnight courier to the addressee or mailed,
certified or registered mail, postage prepaid, and shall be deemed
given when so delivered personally, telegraphed, telecopied or telexed
to the addressee, or, if sent by overnight courier, on the day delivery
is guaranteed by such courier, or, if mailed, three business days after
the date of mailing, as follows:
(i) to the Shareholders, at the most current address given by
the Shareholders to the Company pursuant to the Subscription
Agreements or otherwise.
(ii) To American Bio Medica at:
American Bio Medica Corporation
000 Xxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxx 00000
Attention: President
With a copy to:
Fulbright & Xxxxxxxx L.L.P.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxx, Esq.
Any of the foregoing may change its address for notices by notice to
the other parties.
(d) Governing Law and Forum. The laws of the State of New York shall
govern this Agreement, its construction, and the determination of any
rights, duties or remedies of the parties arising out of, or relating
to, this Agreement (regardless of the laws that might otherwise govern
under applicable New York principles of conflicts of law). The parties
acknowledge that the United States District Court for the Southern
District of New York or the New York Supreme Court for the County of
Columbia shall have exclusive jurisdiction over any case or controversy
arising out of, or relating to, this Agreement and that all litigation
arising out of, or relating to, this Agreement shall be commenced in
the United States District Court for the Southern District of New York
or in the Columbia County (New York) Supreme Court. Each of the parties
consents to be subject to personal jurisdiction of the courts of New
York, including the federal courts in New York.
(e) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
(f) Interpretation. The Section headings contained in this Agreement
are for the purposes of reference, are not part of the agreement of the
parties and shall not in any way affect the meaning or interpretation
of this Agreement.
(g) Severability. If any provision of this Agreement is determined
to be illegal or invalid, such illegality or invalidity shall have no
effect on the other provisions of this Agreement, and all other
provisions of this Agreement shall remain valid, operative and
enforceable.
(h) Assignment. The rights granted to the Shareholders pursuant to
this Agreement shall not be assignable without the written consent of
the Company.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
AMERICAN BIO MEDICA CORPORATION
By: /s/ Xxxx Xxxxxxxxx
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Xxxx Xxxxxxxxx
President
INVESTORS
/s/ A. Xxxxx Xxxxxx
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/s/ Xxxxxx S, Xxxxxxxx
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Xxx Xxxxx W.G. Limited
/s/ A.S. Xxxxxxx
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Its: Director
/s/ Xxxxxx X. Xxxxxx
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/s/ Xxxxx X. Rochester
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/s/ X.X. Xxxxxxxx
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/s/ X.X. Xxxxxxxx
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Xxxxx Xxxxxx & Co., Inc. Profit Sharing Plan
/s/ A. Xxxxx Xxxxxx
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Its: President & Chief Executive Officer
/s/ Xxxxx X. Xxxxxxxxx
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/s/ Xxxxx X. Xxxxxx
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/s/ Xxxx X. Xxxxx, MD
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/s/ E. Xxxxxx Xxxxxxxx
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/s/ Xxxxx Xxxxx
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Pequod Investments, L.P.
/s/ Xxxxxxxx Xxxxxx
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Its: General Partner
Pequod International, LTD.
/s/ Xxxxxxxx Xxxxxx
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Its: Investment Advisor
Kingsbridge Capital, LTD.
/s/ Xxxx Xxxxxx
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Its: Director
M.K. Global Technology Partners, L.P.
/s/ Xxxxx Xxxxxxx
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X.X. Capital Corp.
Its: President & CEO
Aspira Capital Management, L.P.
/s/ Xxxxx Xxxxxxx
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X.X. Capital Corp.
Its: President & CEO
/s/ Xxxxx Xxxxxxx
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/s/ Xxxx X. Xxxxxx
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/s/ Xxxxx X. Xxxxxx
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/s/ Xxxxx Xxxxx
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/s/ Xxxxxxx X. Xxxxx
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