EXHIBIT 10.3
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REGISTRATION RIGHTS AGREEMENT
among
NITINOL MEDICAL TECHNOLOGIES, INC.,
and
the Individuals and Entities Listed on
Schedule A attached hereto
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Dated as of March 30, 1999
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TABLE OF CONTENTS
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1. Definitions 1
2. Securities Subject to this Agreement 3
(a) Registrable Securities 3
(b) Holders of Registrable Securities 3
3. Demand Registration 3
(a) Request for Demand Registration 3
(b) Effective Demand Registration 4
(c) Expenses 4
(d) Underwriting Procedures 4
(e) Selection of Underwriters 5
(f) Limitations on Demand Registrations. 5
4. Piggy-Back Registration 6
(a) Piggy-Back Rights 6
(b) Priority of Registrations 7
(c) Expenses 7
(d) Conditions and Limitations on Piggy-Back Registrations 7
5. Holdback Agreements 8
(a) Restrictions on Public Sale by Holders 8
(b) Restrictions on Public Sale by the Company 8
6. Registration Procedures 8
(a) Obligations of the Company 8
(b) Seller Information 11
(c) Notice to Discontinue 11
7. Registration Expenses 12
8. Indemnification; Contribution 12
(a) Indemnification by the Company 12
(b) Indemnification by Holders 13
(c) Conduct of Indemnification Proceedings 13
(d) Contribution 14
9. Rule 144; Other Exemptions 14
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10. Certain Limitations on Registration Rights 15
11. Miscellaneous. 15
(a) Recapitalizations, Exchanges, etc 15
(b) Remedies 15
(c) Amendments and Waivers 15
(d) Notices 15
(e) Assignment of Rights 16
(f) Counterparts 16
(g) Headings 16
(h) Governing Law 17
(i) Jurisdiction 17
(j) Severability 17
(k) Rules of Construction 17
(l) Entire Agreement 17
(m) Further Assurances 17
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REGISTRATION RIGHTS AGREEMENT
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REGISTRATION RIGHTS AGREEMENT, dated as of March 30, 1999, among
NITINOL MEDICAL TECHNOLOGIES, INC., a Delaware corporation (the Company"), and
the individuals and entities listed on Schedule A attached hereto (the "ITC
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Shareholders").
WHEREAS, the Company, Image Technologies Corporation, a Delaware
corporation ("ITC"), and the ITC Shareholders have entered into an Amended and
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Restated Stockholders' Option Agreement of even date herewith (the "Option
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Agreement") pursuant to which each of the ITC Shareholders has granted to the
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Company an option (the "Option") to purchase all shares of common stock, par
value $.01 per share (the "Shares"), of ITC owned by such ITC Shareholders;
WHEREAS, a portion of the purchase price to be paid for such Shares
upon exercise of the Option shall be paid in shares of common stock, par value
$.001 per share, of the Company and the Company has agreed to provide
registration rights with respect to such Shares as set forth in this Agreement.
The parties hereby agree as follows:
1. Definitions. As used in this Agreement, and unless the context
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requires a different meaning, the following terms have the meanings indicated:
"Act" means the Securities Act of 1933, as amended, and the rules
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and regulations of the SEC promulgated hereunder.
"Approved Underwriter" has the meaning assigned such term in
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Section 3(e).
"Approved Underwriter Amount" has the meaning assigned such term
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in Section 3(d).
"Business Day" means any day other than a Saturday, Sunday or
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other day on which commercial banks in the City of Boston are authorized or
required by law or executive order to close.
"Common Stock" means the Common Stock, $0.001 par value, of the
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Company, or any other capital stock of the Company into which such stock is
reclassified or reconstituted.
"Company Underwriter" has the meaning assigned such term in
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Section 4(a).
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"Demand Registration" has the meaning assigned such term in
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Section 3(a).
"Exchange Act" means the Securities and Exchange Act of 1934, as
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amended, and the rules and regulations of the SEC thereunder.
"Holder" has the meaning assigned such term in Section 2(b).
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"Holders' Counsel" means (a) with respect to any Demand Registration
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that has been requested pursuant to Section 3, the one counsel selected by the
Initiating Holders holding a majority of the Registrable Securities held by all
Initiating Holders being registered in such registration, and (b) with respect
to a request for registration of Registrable Securities pursuant to Section 4,
the one counsel selected by the Holders holding a majority of the Registrable
Securities being registered in such registration.
"Indemnified Party" has the meaning assigned such term in
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Section 8(c).
"Indemnifying Party" has the meaning assigned such term in
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Section 8(c).
"Initiating Holders" has the meaning assigned to such term in
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Section 3(a).
"Inspector" has the meaning assigned such term in Section 6(a)(viii).
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"NASD" has the meaning assigned such term in Section 6(a)(xv).
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"NMT Shares" means the Common Stock, any class of common stock of the
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Company authorized after the date of this Agreement, or any other class of stock
resulting from successive changes or reclassifications of the NMT Shares.
"Other Investors" means holders of the Common Stock of the Company not
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entitled to distribute such shares of Common Stock to the public pursuant to
Rule 144(k) (or any successor provision then in effect) under the Act.
"Person" means any individual, firm, corporation, partnership, trust,
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incorporated or unincorporated association, joint venture, joint stock company,
government (or an agency or political subdivision thereof) or other entity of
any kind, and shall include any successor (by merger or otherwise) of any such
entity.
"Registrable Securities" means, subject to Section 2(a), each of the
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following: (a) any shares of Common Stock of the Company acquired by the Holder
in consideration for the Company's exercise of its option under the Option
Agreement and (b) any shares of Common Stock issued or issuable in respect of
shares of Common Stock
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issued pursuant to clause (a) above by way of a stock dividend or stock split or
in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization or otherwise.
"Registration Expenses" has the meaning assigned such term in
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Section 7.
"SEC" means the Securities and Exchange Commission.
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"Total Securities" has the meaning assigned such term in
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Section 4(a).
"Underwriters" has the meaning assigned such term in Section 6(d).
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"Valid Business Reason" has the meaning assigned such term in
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Section 3(f).
2. Securities Subject to this Agreement.
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(a) Registrable Securities. For the purposes of this Agreement,
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Registrable Securities will cease to be Registrable Securities when (i) a
registration statement covering such Registrable Securities has been declared
effective under the Act by the SEC and such Registrable Securities have been
disposed of pursuant to such effective registration statement or (ii)
Registrable Securities proposed to be sold in a single sale are or, in the
opinion of counsel satisfactory to the Company and the Holder, each in their
reasonable judgment, may, be distributed to the public pursuant to Rule 144 in
compliance with the requirements of paragraphs (c), (e), (f) and (g) of Rule 144
(notwithstanding the provisions of paragraph (k) of such Rule) (or any successor
provision then in effect) under the Act.
(b) Holders of Registrable Securities. Each ITC Shareholder
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shall be deemed a holder of Registrable Securities (a "Holder"). If the Company
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receives conflicting instructions, notices or elections from two or more persons
with respect to the same Registrable Securities, the Company may act upon the
basis of the instructions, notice or election received from the registered owner
of such Registrable Securities.
3. Demand Registration.
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(a) Request for Demand Registration. Subject to Section 3(f)
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below, at any time beginning six (6) months after the closing of the purchase of
the Shares by the Company pursuant to the Option Agreement the Holders holding
at least 25% of the Registrable Securities held by all of the Holders (the
"Initiating Holders") may request in writing the registration of Registrable
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Securities under the Act, and under the securities or blue sky laws of any
jurisdictions designated by such holder or holders (a registration under this
Section 3(a) that satisfies the requirements set forth in Section 3(b) is
referred to herein as a "Demand Registration"). Notwithstanding the foregoing,
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in no event shall the Company
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be required to effect more than one Demand Registration. The request for a
Demand Registration by the Initiating Holders in respect thereof shall specify
the amount of the Registrable Securities proposed to be sold, the intended
method of disposition thereof and the jurisdictions in which registration is
desired. Upon a request for a Demand Registration, the Company shall promptly
take such steps as are necessary or appropriate to prepare for the registration
of the Registrable Securities to be registered. Within fifteen (15) days after
the receipt of such request, the Company shall give written notice thereof to
all other Holders and include in such registration all Registrable Securities
held by a Holder from whom the Company has received a written request for
inclusion therein at least ten (10) days prior to the filing of the registration
statement. Such request will also specify the number of Registrable Securities
to be registered, the intended method of disposition thereof and the
jurisdictions in which registration is desired. Subject to Section 3(d), the
Company shall be entitled to include in any registration statement and offering
made pursuant to a Demand Registration, authorized but unissued shares of Common
Stock, shares of Common Stock held by the Company as treasury shares or shares
of Common Stock held by Stockholders other than the Holders; provided, that such
inclusion shall be permitted only to the extent that it is pursuant to and
subject to the terms of the underwriting agreement or arrangements, if any,
entered into by the Initiating Holders exercising the Demand Registration
rights.
(b) Effective Demand Registration. The Company shall use its
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best efforts to cause such Demand Registration to become effective not later
than ninety (90) days after it receives a request under Section 3(a). A
registration requested pursuant to Section 3(a) hereof shall not count as a
demand to which the Holders are entitled thereunder unless such registration
statement is declared effective and remains effective for at least ninety
(90) days.
(c) Expenses. In any registration initiated as a Demand
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Registration, the Company shall pay all Registration Expenses in connection
therewith, whether or not such requested Demand Registration becomes effective.
(d) Underwriting Procedures. If the Initiating Holders holding a
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majority of the Registrable Securities held by all Initiating Holders so elect,
the offering of such Registrable Securities pursuant to such requested Demand
Registration shall be in the form of a firm commitment underwritten offering and
the managing underwriter or underwriters selected for such offering shall be the
Approved Underwriter selected in accordance with Section 3(e). In such event,
if the Approved Underwriter advises the Company in writing that, in its opinion,
the aggregate amount of such Registrable Securities requested to be included in
such offering (including those securities requested by the Company to be
included in such registration) is sufficiently large to have an adverse effect
on the success of such offering, then the Company shall include in such
registration only the aggregate amount of Registrable Securities that in the
opinion of the Approved Underwriter may be sold without any such effect on the
success of such offering (the "Approved Underwriter Amount"), and (i) each
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Holder shall be entitled to have included in such registration Registrable
Securities equal to its pro rata portion of the Approved Underwriter
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Amount, as based on the amounts of Registrable Securities sought to be
registered by the Holders in their requests for participation in the Demand
Registration and (ii) to the extent that the number of Registrable Securities to
be included by the Holders is less than the Approved Underwriter Amount,
securities that the Company proposes to register shall also be included.
If, as a result of the proration provision of this Section 3(d), any
Holder shall not be entitled to include all Registrable Securities in a
registration that such Holder has requested to be included, such Holder may
elect to withdraw his request to include Registrable Securities in such
registration or may reduce the number requested to be included; provided,
however, that (x) such request must be made in writing prior to the earlier of
the execution of the underwriting agreement or the execution of the custody
agreement with respect to such registration and (y) such withdrawal or reduction
shall be irrevocable.
(e) Selection of Underwriters. If any requested Demand
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Registration is in the form of an underwritten offering, the Initiating Holders
holding a majority of the Registrable Securities held by all Initiating Holders
to be included in the requested Demand Registration shall select and obtain an
investment banking firm of national reputation to act as the managing
underwriter of the offering (the "Approved Underwriter"); provided, that such
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underwriter shall be reasonably satisfactory to the Company.
(f) Limitations on Demand Registrations. The Demand Registration
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rights granted to the Holders in Section 3(a) are subject to the following
limitations: (i) the Demand Registration must include Registrable Securities
having an aggregate market value of at least $5,000,000.00, which market value
shall be determined by multiplying the number of Registrable Securities to be
included in the Demand Registration by the proposed per share offering price
(provided that the limitation set forth in this clause (i) shall not be in
effect at any time the Holders' Registrable Securities are not able to be sold
under Rule 144 under the Act because of the Company's failure to comply with the
information requirements thereunder, unless at such time, the Company's outside
counsel (which shall be reasonably acceptable to the Holders requesting such
registration) delivers a written opinion of counsel to such Holders to the
effect that such Holders' Registrable Securities may be publicly offered and
sold without registration under the Act); and (ii) if the Board of Directors of
the Company, in its good faith judgment, determines that any registration of
Registrable Securities should not be made or continued because it would
materially interfere with any material financing, acquisition, corporate
reorganization or merger or other transaction involving the Company or any of
its subsidiaries (a "Valid Business Reason"), the Company may (x) postpone
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filing a registration statement relating to a Demand Registration until such
Valid Business Reason no longer exists, but in no event for more than ninety
(90) days, and, (y) in case a registration statement has been filed relating to
a Demand Registration, if the Valid Business Reason has not resulted from
actions taken by the Company, the Company, upon the approval of a majority of
the Company's Board of Directors, may cause such registration statement to be
withdrawn and its effectiveness terminated or may postpone amending or
supplementing such registration statement; the Company shall give written notice
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of its determination to postpone or withdraw a registration statement and of the
fact that the Valid Business Reason for such postponement or withdrawal no
longer exists, in each case, promptly after the occurrence thereof.
Notwithstanding anything to the contrary contained herein, the Company may not
postpone or withdraw a filing under Section 3(f)(ii) hereof more than once in
any twelve-month period.
Each Holder of Registrable Securities agrees that, upon receipt of any
notice from the Company that the Company has determined to withdraw any
registration statement pursuant to clause (ii) above, such Holder will
discontinue its disposition of Registrable Securities pursuant to such
registration statement and, if so directed by the Company, will deliver to the
Company (at the Company's expenses) all copies, other than permanent file
copies, then in such Holder's possession, of the prospectus covering such
Registrable Securities that was in effect at the time of receipt of such notice.
If the Company shall give any notice of postponement or withdrawal of a
registration statement, the Company shall, at such time as the Valid Business
Reason that caused such postponement or withdrawal no longer exists (but in no
event no later than ninety (90) days after the date of the postponement), use
its best efforts to promptly effect the registration under the Act of the
Registrable Securities covered by the postponed or withdrawn registration
statement in accordance with this Section 3 (unless the Holder(s) delivering the
Demand Registration request shall have withdrawn such request, in which case the
Company shall not be considered to have effected an effective registration for
the purposes of this Agreement), and such registration shall not be postponed or
withdrawn pursuant to clause (ii) above.
4. Piggy-Back Registration.
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(a) Piggy-Back Rights. Beginning six (6) months after the
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closing of the purchase of the Shares by the Company pursuant to the Option
Agreement, if the Company proposes to file a registration statement under the
Act with respect to an offering by the Company for its own account of any class
of security (other than a registration statement on Form S-4 or S-8 (or any
successor form thereto)) under the Act, then the Company shall give written
notice of such proposed filing to each of the Holders at least twenty (20) days
before the anticipated filing date, and such notice shall describe in detail the
proposed registration and distribution (including those jurisdictions where
registration under the securities or blue sky laws is intended) and offer such
Holders the opportunity to register the number of Registrable Securities as each
such Holder may request (a "Piggy-Back Registration"). The Company shall use its
best efforts (within ten (10) days of the notice provided for in the preceding
sentence) to permit the Holders who have requested to participate in the
registration for such offering to include such Registrable Securities in such
offering on the same terms and conditions as the securities of the Company
included therein. Notwithstanding the foregoing, in no event shall the Company
be required to effect more than one Piggy-Back Registration. Notwithstanding the
foregoing, if such registration involves an underwritten offering and the
managing underwriters or underwriters (the "Company Underwriter") shall advise
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the Holders of Registrable Securities in writing that, in its opinion, the total
amount of securities requested to be included in such offering (the "Total
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Securities") is sufficiently large so as to have an adverse effect on the
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success of the distribution of the Total Securities, then the Company shall
include in such registration, to the extent of the number of Registrable
Securities which the Company is so advised can be sold in (or during the time
of) such offering, first, all Common Stock or securities convertible into, or
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exchangeable or exercisable for, Common Stock that the Company proposed to
register for its own account, second, all securities proposed to be registered
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by Stockholders of the Company other than the Holders pursuant to any
registration rights agreements entered into by the Company prior to the date of
this Agreement, third, all securities proposed to be registered by all Holders,
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pro rata among such Holders, fourth, all securities proposed to be registered by
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Other Investors, pro rata among such Other Investors and fifth, all other
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securities proposed to be registered.
(b) Priority of Registrations. Subject to the provisions of
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Section 3(f)(ii), if the Company proposes to register securities pursuant to
Section 4(a) hereof on the same day that the Holders request a registration
pursuant to Section 3(a) hereof, then the Demand Registration requested pursuant
to Section 3(a) hereof shall be given priority.
(c) Expenses. The Company shall bear all Registration Expenses
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in connection with a registration pursuant to this Section 4.
(d) Conditions and Limitations on Piggy-Back Registrations. If,
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at any time after giving written notice of its intention to register any
securities and prior to the effective date of the registration statement filed
in connection with such registration, the Company shall determine for any reason
not to register or to delay registration of such securities, the Company may, at
its election, give written notice of such determination to all Holders of record
of Registrable Securities and (i) in the case of a determination not to
register, shall be relieved of its obligation to register the Registrable
Securities in connection with such abandoned registration, without prejudice,
however, to the rights of Holders under Sections 5, 3 and 4 and (ii) in the case
of a determination to delay the registration of its securities, shall be
permitted to delay the registration of such Registrable Securities for the same
period as the delay in registering such other equity securities.
Any Holder shall have the right to withdraw its request for
inclusion of its Registrable Securities in any registration statement pursuant
to this Section 4 by giving written notice to the Company of its request to
withdraw; provided, however, that (i) such request must be made in writing prior
to the earlier of the execution of the underwriting agreement or the execution
of the custody agreement with respect to such registration and (ii) such
withdrawal shall be irrevocable and, after making such withdrawal, a Holder
shall no longer have any right to include Registrable Securities in the
registration as to which such withdrawal was made.
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5. Holdback Agreements.
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(a) Restrictions on Public Sale by Holders. To the extent not
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inconsistent with applicable law, each Holder agrees not to effect any public
sale or distribution of any Registrable Securities being registered or of any
securities convertible into or exchangeable or exercisable for such Registrable
Securities, including a sale pursuant to Rule 144 under the Act, during the
ninety (90) day period beginning on the effective date of such Demand
Registration or Piggy-Back Registration or other underwritten offering (except
as part of such registration), if and to the extent requested by the Company
Underwriter, in the case of an underwritten public offering.
(b) Restrictions on Public Sale by the Company. The Company
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agrees not to effect any public sale or distribution of any of its securities
for its own account (except pursuant to registrations on Form S-4 or S-8 (or any
successor form thereto) under the Act) during the ninety (90) day period
beginning on the effective date of any registration statement in which the
Holders are participating.
6. Registration Procedures.
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(a) Obligations of the Company. Whenever registration of
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Registrable Securities has been requested pursuant to Section 3 or 4 of this
Agreement, the Company shall use its best efforts to effect the registration and
sale of such Registrable Securities in accordance with the intended method of
distribution thereof as quickly as practicable, and in connection with any such
request, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC (in any event not later
than sixty (60) Business Days after receipt of a request to file a registration
statement with respect to Registrable Securities) a registration statement on
any form on which registration is requested for which the Company then
qualifies, which counsel for the Company and Holders' Counsel shall deem
appropriate and which shall be available for the sale of such Registrable
Securities in accordance with the intended method of distribution thereof, and
use its best efforts to cause such registration statement to become effective;
provided, however, that before filing a registration statement or prospectus or
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any amendments or supplements thereto, the Company shall (A) provide Holders'
Counsel with an adequate and appropriate opportunity to participate in the
preparation of such registration statement and each prospectus included therein
(and each amendment or supplement thereto) to be filed with the SEC, which
documents shall be subject to the review of Holders' Counsel, and (B) notify
Holders' Counsel and each seller of Registrable Securities pursuant to such
registration statement of any stop order issued or threatened by the SEC and
take all reasonable action required to prevent the entry of such stop order or
to remove it if entered;
(ii) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as
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may be necessary to keep such registration statement effective and to comply
with the provisions of the Act with respect to the disposition of all
Registrable Securities covered by such registration statement until the earlier
of (a) such time as all of such Registrable Securities and other securities have
been disposed of in accordance with the intended methods of disposition by the
sellers thereof set forth in such registration statement and (b) 180 days after
the effective date of such registration statement, except with respect to any
such registration statement filed pursuant to Rule 415 (or any successor Rule)
under the Act if the Company is eligible to file a registration statement on
Form S-3, in which case such period shall be two (2) years;
(iii) as soon as reasonably possible, furnish to each
seller of Registrable Securities, prior to filing a registration statement,
copies of such registration statement as it is proposed to be filed, and
thereafter such number of copies of such registration statement, each amendment
and supplement thereto (in each case including all exhibits thereto), the
prospectus included in such registration statement (including each preliminary
prospectus) and such other documents as each such seller may reasonably request
in order to facilitate the disposition of the Registrable Securities owned by
such seller;
(iv) use its best efforts to register or qualify such
Registrable Securities under such other securities or blue sky laws of such
jurisdictions as any seller of Registrable Securities may request, and to
continue such qualification in effect in each such jurisdiction for as long as
is permissible pursuant to the laws of such jurisdiction, or for as long as any
such seller requests or until all of such Registrable Securities are sold,
whichever is shortest, and do any and all other acts and things which may be
reasonably necessary or advisable to enable any such seller to consummate the
disposition in such jurisdictions of the Registrable Securities owned by such
seller; provided, however, that the Company shall not be required to (A) qualify
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generally to do business in any jurisdiction where it would not otherwise be
required to qualify but for this Section 6(a)(iv), (B) subject itself to
taxation in any such jurisdiction or (C) consent to general service of process
in any such jurisdiction;
(v) use its best efforts to obtain all other approvals,
covenants, exemptions or authorizations from such governmental agencies or
authorities as may be necessary to enable the sellers of such Registrable
Securities to consummate the disposition of such Registrable Securities;
(vi) notify each seller of Registrable Securities at any
time when a prospectus relating thereto is required to be delivered under the
Act, upon discovery that, or upon the happening of any event as a result of
which, the prospectus included in such registration statement contains an untrue
statement of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not misleading in
light of the circumstances under which they were made, and the Company shall
promptly prepare a supplement or amendment to such prospectus and furnish to
each such seller a reasonable number of copies of a supplement to or amendment
of such prospectus as may be necessary so that, after delivery to the purchasers
of such Registrable Securities, such
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prospectus shall not contain an 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 in light of the circumstances under which they
were made;
(vii) enter into and perform customary agreements
(including an underwriting agreement in customary form with the Approved
Underwriter or Company Underwriter, if any, selected as provided in Section 3 or
4; provided, that the underwriting agreement, if any, shall be reasonably
satisfactory in form and substance to the Company) and take such other actions
as are reasonably required in order to expedite or facilitate the disposition of
such Registrable Securities;
(viii) make available for inspection by any seller of
Registrable Securities, any managing underwriter participating in any
disposition pursuant to such registration statement, Holders' Counsel and any
attorney, accountant or other agent retained by any such seller or any managing
underwriter (each, an "Inspector" and, collectively, the "Inspectors"), all
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financial and other records, pertinent corporate documents and properties of the
Company and any subsidiaries thereof as may be in existence at such time
(collectively, the "Records") as shall be reasonably necessary to enable them to
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exercise their due diligence responsibility, and cause the Company's and any
subsidiaries' officers, directors and employees, and the independent public
accountants of the Company, to supply all information reasonably requested by
any such Inspector in connection with such registration statement; provided,
that such Inspector agrees to keep all such information confidential.
(ix) obtain a "cold comfort" letter from the Company's
independent public accountants in customary form and covering such matters of
the type customarily covered by "cold comfort" letters, as Holders' Counsel or
the managing underwriter reasonably request;
(x) furnish, at the request of any seller of Registrable
Securities on the date such securities are delivered to the underwriters for
sale pursuant to such registration or, if such securities are not being sold
through underwriters, on the date the registration statement with respect to
such securities becomes effective, an opinion, dated such date, of counsel
representing the Company for the purposes of such registration, addressed to the
underwriters, if any, and to the seller making such request, covering such legal
matters with respect to the registration in respect of which such opinion is
being given as such seller may reasonably request and as are customarily
included in such opinions;
(xi) otherwise use its best efforts to comply with all
applicable rules and regulations of the SEC, and make available to its security
holders, as soon as reasonably practicable but no later than fifteen (15) months
after the effective date of the registration statement, an earnings statement
covering a period of twelve (12) months beginning after the effective date of
the registration statement, in a manner which satisfies the provisions of
Section 11(a) of the Act;
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(xii) cause all such Registrable Securities to be listed on
each securities exchange on which similar securities issued by the Company are
then listed (if any) if the listing of such Registrable Securities is then
permitted under the rules of such exchange or, if no similar securities are then
so listed, cause all such Registrable Securities to be listed on an exchange on
which the Initiating Holders request that such Registrable Securities be listed,
subject to the satisfaction of the applicable listing requirements of each such
exchange;
(xiii) keep each seller of Registrable Securities advised
in writing as to the initiation and progress of any registration under Section 3
or 4 hereunder;
(iv) provide officers' certificates and other customary
closing documents;
(xv) cooperate with each seller of Registrable Securities
and each underwriter participating in the disposition of such Registrable
Securities and their respective counsel in connection with any filings required
to be made with the National Association of Securities Dealers, Inc. (the
"NASD"); and
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(xvi) use its best efforts to take all other steps necessary
to effect the registration of the Registrable Securities contemplated hereby.
(b) Seller Information. The Company may require as a condition
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precedent of the Company's obligations under this Section 6 that each seller of
Registrable Securities as to which any registration is being effected furnish to
the Company such information regarding such seller and the distribution of such
securities as the Company may from time to time reasonably request in writing.
(c) Notice to Discontinue. Each Holder agrees that, upon receipt
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of any notice from the Company of the happening of any event of the kind
described in Section 6(a)(vi), such Holder shall forthwith discontinue
disposition of Registrable Securities pursuant to the registration statement
covering such Registrable Securities until such Holder's receipt of the copies
of the supplemented or amended prospectus contemplated by Section 6(a)(vi) and,
if so directed by the Company, such Holder shall deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in such
Holder's possession, of the prospectus covering such Registrable Securities
which is current at the time of receipt of such notice. If the Company shall
give any such notice, the Company shall extend the period during which such
registration statement shall be maintained effective pursuant to this Agreement
(including, without limitation, the period referred to in Section 6(a)(ii)) by
the number of days during the period from and including the date of the giving
of such notice pursuant to Section 6(a)(vi) to and including the date when the
Holder shall have received the copies of the supplemented or amended prospectus
contemplated by and meeting the requirements of Section 6(a)(vi).
-11-
7. Registration Expenses. The Company shall pay all expenses
---------------------
(other than underwriting discounts and commissions) arising from or incident to
the performance of, or compliance with, this Agreement, including, without
limitation, (a) SEC, stock exchange and NASD registration and filing fees,
(b) all fees and expenses incurred in complying with securities or blue sky
laws (including, without limitation, reasonable fees, charges and disbursements
of counsel in connection with blue sky qualifications of the Registrable
Securities), (c) all printing, messenger and delivery expenses, (d) the fees,
charges and disbursements of counsel to the Company and of its independent
public accountants and any other accounting and legal fees, charges and expenses
incurred by the Company (including, without limitation, any expenses arising
from any special audits incident to or required by any registration or
qualification) and (e) the reasonable fees, charges and expenses of any special
experts retained by the Company in connection with a requested Demand
Registration or Piggy-Back Registration pursuant to the terms of this Agreement,
regardless of whether the registration statement filed in connection with such
registration is declared effective. In connection with each registration
hereunder, the Company shall reimburse the Holders of Registrable Securities
being registered in such registration for the reasonable fees, charges and
disbursements of not more than one Holders' Counsel. All of the expenses
described in this Section 7 are referred to in this Agreement as "Registration
------------
Expenses." Notwithstanding the foregoing provisions of this Section 7, in
--------
connection with any registration hereunder, each Holder of Registrable
Securities being registered shall pay all underwriting discounts and commissions
and any capital gains, income or transfer taxes, if any, attributable to the
sale of such Registrable Securities, pro rata with respect to payments of
--- ----
discounts and commissions in accordance with the number of shares sold in the
offering.
8. Indemnification; Contribution.
-----------------------------
(a) Indemnification by the Company. In the event of any proposed
------------------------------
registration of securities of the Company pursuant to Section 3 or Section 4,
the Company agrees to indemnify and hold harmless each Holder, its directors,
officers, partners, employees, advisors and agents, and each Person who controls
(within the meaning of the Act or the Exchange Act) such Holder, to the extent
permitted by law, from and against any and all losses, claims, damages, expenses
(including, without limitation, reasonable costs of investigation and fees,
disbursements and other charges of counsel) or other liabilities resulting from
or arising out of or based upon any untrue, or alleged untrue, statement of a
material fact contained in any registration statement, prospectus or preliminary
prospectus or notification or offering circular (as amended or supplemented if
the Company shall have furnished any amendments or supplements thereto) 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 caused by or contained in any
information furnished in writing to the Company by or on behalf of such Holder
expressly for use therein. The Company shall also indemnify any underwriters of
the Registrable Securities, their officers, directors and employees, and each
Person who controls any such underwriter (within
-12-
the meaning of the Act and the Exchange Act) to the same extent as provided
above with respect to the indemnification of the Holders of Registrable
Securities.
(b) Indemnification by Holders. In connection with any proposed
--------------------------
registration in which a Holder is participating pursuant to Section 3 or 4
hereof, each such Holder shall furnish to the Company in writing such
information with respect to such Holder as the Company may reasonably request or
as may be required by law for use in connection with any registration statement
or prospectus to be used in connection with such registration and each Holder
agrees to indemnify and hold harmless the Company, any underwriter retained by
the Company and their respective directors, officers, employees and each Person
who controls (within the meaning of the Act and the Exchange Act) the Company or
such underwriter to the same extent as the foregoing indemnity from the Company
to the Holders (subject to the proviso to this sentence and applicable law), but
only with respect to any such information furnished in writing by or on behalf
of such Holder expressly for use therein; provided, however, that the liability
-------- -------
of any Holder under this Section 8(b) shall be limited to the amount of the net
proceeds received by such Holder in the offering giving rise to such liability.
(c) Conduct of Indemnification Proceedings. Any Person entitled
--------------------------------------
to indemnification hereunder (the "Indemnified Party") agrees to give prompt
-----------------
written notice to the indemnifying party (the "Indemnifying Party") after the
------------------
receipt by the Indemnified Party of any written notice of the commencement of
any action, suit, proceeding or investigation or threat thereof made in writing
for which the Indemnified Party intends to claim indemnification or contribution
pursuant to this Agreement; provided, that, the failure so to notify the
-------- ----
Indemnifying Party shall not relieve the Indemnifying Party of any liability
that it may have to the Indemnified Party hereunder. If notice of commencement
of any such action is given to the Indemnifying Party as above provided, the
Indemnifying Party shall be entitled to participate in and, to the extent it may
wish, jointly with any other Indemnifying Party similarly notified, to assume
the defense of such action at its own expense, with counsel chosen by it and
satisfactory to such Indemnified Party. The Indemnified Party shall have the
right to employ separate counsel in any such action and participate in the
defense thereof, but the fees and expenses of such counsel (other than
reasonable costs of investigation) shall be paid by the Indemnified Party unless
(i) the Indemnifying Party agrees to pay the same, (ii) the Indemnifying Party
fails to assume the defense of such action with counsel satisfactory to the
Indemnified Party in its reasonable judgment, (iii) the named parties to any
such action (including any impleaded parties) have been advised by such counsel
that either (A) representation of such Indemnified Party and the Indemnifying
Party by the same counsel would be inappropriate under applicable standards of
professional conduct or (B) there may be one or more legal defenses available to
it which are different from or additional to those available to the Indemnifying
Party; provided, however, that the Indemnifying Party shall only have to pay the
fees and expenses of one firm of counsel for all Indemnified Parties in each
jurisdiction, except to the extent representation of all Indemnified Parties by
the same counsel is inappropriate under applicable standards of professional
conduct. In either of such cases the Indemnifying Party shall not have the
right to assume the defense of such action on behalf
-13-
of such Indemnified Party. No Indemnifying Party shall be liable for any
settlement entered into without its written consent, which consent shall not be
unreasonably withheld. No Indemnifying Party shall, without the written consent
of the Indemnified Party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the Indemnified Party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment
(A) includes an unconditional release of the Indemnified Party from all
liability arising out of such action or claim and (B) does not include a
statement as to or an admission of fault, culpability or a failure to act, by or
on behalf of any Indemnified Party. The rights accorded to any Indemnified Party
hereunder shall be in addition to any rights that such Indemnified Party may
have at common law, by separate agreement or otherwise.
(d) Contribution. If the indemnification provided for in
------------
Section 8(a) from the Indemnifying Party is unavailable to an Indemnified Party
in respect of any losses, claims, damages, expenses or other liabilities
referred to therein, then the Indemnifying Party, in lieu of indemnifying such
Indemnified Party, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such losses, claims, damages, expenses or other
liabilities in such proportion as is appropriate to reflect the relative fault
of the Indemnifying Party and Indemnified Party in connection with the actions
which resulted in such losses, claims, damages, expenses or other liabilities,
as well as any other relevant equitable considerations. The relative faults of
such Indemnifying Party and Indemnified Party 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 to
state a material fact, was made by, or relates to information supplied by, such
Indemnifying Party or Indemnified Party, and the Indemnifying Party's and
Indemnified Party's relative intent, knowledge, access to information and
opportunity to correct or prevent such action. The amount paid or payable by a
party as a result of the losses, claims, damages, expenses or other liabilities
referred to above shall be deemed to include, subject to the limitations set
forth in Section 8(a), 8(b) and 8(c), any legal or other fees, charges or
expenses reasonably incurred by such party in connection with any investigation
or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 8(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
No person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution pursuant to this Section
8(d).
9. Rule 144; Other Exemptions; Legend Removal. (a) The Company
------------------------------------------
covenants that it shall file any reports required to be filed by it under the
Exchange Act and the rules and regulations adopted by the SEC thereunder, and
that it shall take such further action as each Holder may reasonably request
(including, but not limited to, providing any information necessary to comply
with Rules 144 and 144A under the Act), all to the extent
-14-
required from time to time to enable such Holder to sell Registrable Securities
without registration under the Act within the limitation of the exemptions
provided by (i) Rule 144 or Rule 144A under the Act, as such rules may be
amended from time to time, or (ii) any other rules or regulations now existing
or hereafter adopted by the SEC. The Company shall, upon the request of any
Holder, deliver to such Holder a written statement as to whether the Company has
complied with such requirements.
(b) The Company agrees to remove relevant restrictive
legends from stock certificates representing Registrable Shares, at the request
of the Holder thereof, at such time as such Registrable Shares become eligible
for resale pursuant to Rule 144(k) under the Act.
10. Certain Limitations on Registration Rights. In the case of a
------------------------------------------
registration under Section 4 if the Company has determined to enter into an
underwriting agreement in connection therewith, no person may participate in
such registration unless such person (a) agrees to sell such person's securities
on the basis provided therein and (b) completes and executes all questionnaires,
powers of attorney, indemnities, lock-up agreements, underwriting agreements and
other documents reasonably required under the terms of such underwriting
agreements.
11. Miscellaneous.
-------------
(a) Recapitalizations, Exchanges, etc. The provisions of this
---------------------------------
Agreement shall apply, to the full extent set forth herein with respect to the
NMT Shares, to any and all shares of capital stock of the Company or any
successor or assign of the Company (whether by merger, consolidation, sale of
assets or otherwise) which may be issued in respect of, in exchange for or in
substitution of, the NMT Shares and shall be appropriately adjusted for any
stock dividends, splits, reverse splits, combinations, recapitalizations and the
like occurring after the date hereof.
(b) Remedies. The Holders, in addition to being entitled to
--------
exercise all rights granted by law, including recovery of damages, shall 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 the provisions of this Agreement
and hereby agrees to waive in any action for specific performance the defense
that a remedy at law would be adequate.
(c) Amendments and Waivers. Except as otherwise provided herein,
----------------------
the provisions of this Agreement may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions of such section may
not be given unless the Company has obtained the prior written consent of the
Holders holding at least a majority of the Registrable Securities.
(d) Notices. All notices, demands and other communications
-------
provided for or permitted hereunder shall be made in writing and shall be by
registered or certified first-class mail, return receipt requested, telecopier,
courier service or personal delivery:
-15-
(i) if to the Company:
Nitinol Medical Technologies, Inc.
00 Xxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxxxxxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Chief Executive Officer
with a copy to:
Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx, Esquire
(ii) if to a Holder:
To such Holder at his or her address set forth on
Schedule A attached hereto.
----------
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; when delivered by
courier, if delivered by commercial overnight courier service; five Business
Days after being deposited in the mail, postage prepaid, if mailed; and when
receipt is acknowledged, if telecopied.
(e) Assignment of Rights. The rights and obligations of each
--------------------
Holder under this Agreement may only be assigned by such Holder to any person or
entity which is a partner, stockholder or affiliate of such Holder, and such
transferee shall be deemed a "Holder" for purposes of this Agreement; provided
that each such transferee agrees in a written instrument delivered to the
Company to be bound by the provisions of this Agreement.
(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 an 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.
-16-
(h) Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the laws of the State of Delaware, without regard
to the principles of conflicts of law of such State.
(i) Jurisdiction. Each party to this Agreement hereby
------------
irrevocably agrees that any legal action or proceeding arising out of or
relating to this Agreement or any agreements or transactions contemplated hereby
may be brought in the courts of the Commonwealth of Massachusetts and hereby
expressly submits to the personal jurisdiction and venue of such courts for the
purposes thereof and expressly waives any claim of improper venue and any claim
that such courts are an inconvenient forum. Each party hereby irrevocably
consents to the service of process of any of the aforementioned courts in any
such suit, action or proceeding by the mailing of copies thereof by registered
or certified mail, postage prepaid, to the address set forth in Section 10(e),
such service to become effective 10 days after such mailing.
(j) Severability. If any one or more of the provisions contained
------------
herein, or the application thereof in any circumstance, is held invalid, illegal
or unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired, it being intended that all
of the rights and privileges of the Holders shall be enforceable to the fullest
extent permitted by law.
(k) Rules of Construction. Unless the context otherwise
---------------------
requires, "or" is not exclusive, and references to sections or subsections refer
to sections or subsections of this Agreement.
(l) Entire Agreement. This Agreement is intended by the parties
----------------
as a final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings in respect of the subject matter contained
herein, other than those set forth or referred to herein. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
(m) Further Assurances. Each of the parties shall execute such
------------------
documents and perform such further acts as may be reasonably required or
desirable to carry out or to perform the provisions of this Agreement.
-17-
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed and delivered by their respective officers hereunto duly authorized on
the date first above written.
NITINOL MEDICAL TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President of Finance and
Administration and Chief Financial Officer
/s/ Xxxxx X. Xxxxxxx
-------------------------------------------------
Xxxxx X. Xxxxxxx
-------------------------------------------------
Xxxx Xxxxxx f/b/o Xxxxxxx X. Xxxxxxxx
-------------------------------------------------
Xxxxxxx X. Xxxxxxxx
/s/ Xxxx X. Xxxxxxxx
-------------------------------------------------
Xxxx X. Xxxxxxxx
/s/ Xxxx X. Xxxxxxxx
-------------------------------------------------
Xxxx X. Xxxxxxxx
/s/ Xxxxxx X. Xxxxxx
-------------------------------------------------
Xxxxxx X. Xxxxxx
-------------------------------------------------
Xxx X. Xxxxxxxxx
-18-
-------------------------------------------------
Xxxxxxx X. Xxxx
/s/ Xxxxxx X. Xxxxxxxx
-------------------------------------------------
Xxxxxx X. Xxxxxxxx
-------------------------------------------------
Xxxxx Xxx and Xxxxx Xxxxxxxxx
-------------------------------------------------
Xxxxx X. Xxxxxx
-------------------------------------------------
Xxxxxx Xxx Xxxxxxxx, Xx.
-------------------------------------------------
Xxxxxxx Xxxxxx
-------------------------------------------------
Xxxx Xxxxxx
-------------------------------------------------
Xxxx Xxxxxxx
-------------------------------------------------
Xxxxxx Xxxxxx
-------------------------------------------------
Xxxx Xxx Xxxxxxx
-------------------------------------------------
J. Xxxx Xxxxxxxx
-19-
-------------------------------------------------
J. Xxxx Xxxxxxxx c/o Xxxxxxxxx X. Xxxxxxxx
-------------------------------------------------
Xxxxx Xxxxx
THE XXXXX FAMILY TRUST
By:
---------------------------------------------
Name:
Title:
XXXXXXXXX OIL CO., INC.
By:
---------------------------------------------
Name:
Title:
XXXXXXX X. XXXXXXXXX REVOCABLE TRUST
By:
---------------------------------------------
Name:
Title:
XXXXXXX XXX XXXXX REVOCABLE TRUSTS
By:
---------------------------------------------
Name:
Title:
-20-
XXXXXXX XXXXXX XXXXX REVOCABLE TRUSTS
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------------------
Name:
Title:
XXXXXX PARTNERS, L.P.
By:
---------------------------------------------
Name:
Title:
DELAWARE GUARANTY & TRUST, F/B/O XXXX X. XXXXXX XXX
By:
---------------------------------------------
Name:
Title:
--------------------------------------
Xxxxxx X. Xxxxxxxx
--------------------------------------
Xxxx Xxxxxxxxx
--------------------------------------
Xxxxxx Xxxxxxx
PINOTAGE, LLC
By: /s/ Xxxxxx Xxx Xxxxxxxx
----------------------------------
Name: Xxxxxx Xxx Xxxxxxxx
Title: President
-21-
JUNEWICZ & CO., INC.
By:
----------------------------------
Name:
Title:
______________________________________
Marc Van Lith
ARGO CAPITAL PARTNERS I, L.P.
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
----------------------------------
Name:
Title:
-22-
Schedule A
----------
Name and Address of Number of Stockholder
Stockholder Shares/1/
------------------------ ---------------------
Xxxxx X. Xxxxxxx 188,036
0 Xxxxxx Xxxxx
Xxxxxxxx, XX 000000
Xxxx Xxxxxx f/b/o 200,000
Xxxxxxx X. Xxxxxxxx
X.X. Xxx 000000
Xxxxxx, Xxxxx 00000
Xxxxxxx X. Xxxxxxxx 24,563
X.X. Xxx 000000
Xxxxxx, XX 00000
Xxxx X. Xxxxxxxx 16,666
000 Xxxxxxxx Xxxxx
Xxxxxx Xxxx, XX 00000
Xxxx X. Xxxxxxxx 16,666
000 Xxxxxxxx Xxxxx
Xxxxxx Xxxx, XX 00000
Xxxxxx X. Xxxxxx 50,000
000 Xxxxxx Xxxx Xxxxx
Xxxxxx Xxxx, XX 00000
Xxx X. Xxxxxxxxx 5,556
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
Xxxxxxx X. Xxxx 5,556
0000 Xxxxxx Xxxx Xxxxx
Xxxxxx Xxxx, XX 00000
-----------------
/1/ Represents shares of Common Stock of the Company unless otherwise
indicated.
-23-
Xxxxxx X. Xxxxxxxx, President 16,668
Instramed Surgical Associates, Inc.
000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Xxxxx Xxx and Xxxxx Xxxxxxxxx 25,000
00000 Xxxxxxxx Xxxxx Xxxxxxx
Xxx. 0000
Xxxxxx Xxxx, XX 00000
Xxxxx X. Xxxxxx 29,249
00 Xxx Xxxx Xxxx
Xxxxxxxxx, XX 00000
Xxxxxx Xxx Xxxxxxxx, Xx. 25,000
0000 Xxxxxxx Xxxx
Xxxxxx, XX 00000
Xxxxxxx Xxxxxx 10,571
000 Xxxx 00xx Xxxxxx
Xxx. 00X
Xxx Xxxx, XX 00000
Xxxx Xxxxxx 3,571
000 Xxxxxxxx Xxxxx
Xxxx Xxxxxx, XX 00000
Xxxx Xxxxxxx 7,142
000 Xxxx 00xx Xxxxxx
Xxx. 00X
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxx 7,142
000 Xxxx 00xx Xxxxxx, Xxx. 00X
Xxx Xxxx, XX 00000
Xxxx Xxx Xxxxxxx 3,571
000 Xxxxxxxxx Xxxxx Xxxx
Xxxxxx, XX 00000
J. Xxxx Xxxxxxxx 11,071
Junewicz & Co., Inc.
00 Xxxxxxxxxxx Xxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
-24-
J. Xxxx Xxxxxxxx c/o 1,313; Warrant to purchase
Xxxxxxxxx X. Xxxxxxxx 17,737 shares of Common
Junewicz & Company Stock/2/
00 Xxxxxxxxxxx Xxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
Xxxxx Xxxxx 15,000
0 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxx
Xxxxx Family Trust 13,888
c/o The Xxxxx Family Trust
0000 Xxxxxxx Xxxx Xxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
Xxxxxxxxx Oil Co., Inc. 12,776
000 X. Xxxxx Xxxxxx, Xxxxx X
Xxxxxxxxxxxx, Xxxxxxxx 00000
Xxxxxxx X. Xxxxxxxxx 11,250
Revocable Trust
000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
Xxxxxxx Xxx Xxxxx Revocable 3,571
Trust
[address]
Xxxxxxx Xxxxxx Xxxxx 3,571
Revocable Trust
[address]
-----------------
/2/ In the event the Purchaser converts the principal amount borrowed by the
Company under the Loan and Security Agreement into additional shares of
Series A Preferred, Junewicz & Company shall be entitled to receive a
warrant to purchase a number of shares of Common Stock equal to 5% of the
number of additional share of Series A Preferred issued to the Purchaser.
If the principal amount of the loan equals $2,000,000 and such principal
amount is converted into additional shares of Series A Preferred, Junewicz
shall be entitled to receive a warrant to purchase 27,405 shares of Common
Stock of the Company.
-25-
Xxxxxx Partners, L.P. 30,063
Xxxxxx Management
000 Xxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
Delaware Guaranty & Trust, 15,031
f/b/o Xxxx X. Xxxxxx XXX
Xxxxxx Management
000 Xxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx X. Xxxxxxxx 1,500
0000 Xxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Xxxx Xxxxxxxxx 1,000
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Xxxxxx Xxxxxxx 5,000
000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx, Xxxxxxxxx
0000
Pinotage, LLC 384,689
00000 Xxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxx 00000
-26-
Junewicz & Co., Inc. Warrants to purchase 76
00 Xxxxxxxxxxx Xxxxx shares of Common Stock/3/
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Marc Van Lith Warrants to purchase
000 Xxxx 00xx Xxxxxx 10,735 shares of Common
Apt. 5(f) Stock.
Xxx Xxxx, Xxx Xxxx 00000
Argo Capital Partners I L.P. 120,361/4/
0000 Xxxxx Xxxxxxx
Xxxxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Total: 1,265,041 shares of
Common Stock and
warrants to purchase
28,548 shares of Common
Stock.
-----------------
/3/ In the event the Purchaser converts the principal amount borrowed by the
Company under the Loan and Security Agreement into additional shares of
Series A Preferred, Junewicz & Company shall be entitled to receive a
warrant to purchase a number of shares of Common Stock equal to 5% of the
number of additional share of Series A Preferred issued to the Purchaser.
If the principal amount of the loan equals $2,000,000 and such principal
amount is converted into additional shares of Series A Preferred, Junewicz
shall be entitled to receive a warrant to purchase 27,405 shares of Common
Stock of the Company.
/4/ Subject to adjustment as provided in the Stock Purchase Agreement of even
date herewith by and among ITC, Xxxxxx Xxx Xxxxxxxx, Xxxxx X. Xxxxxxx, the
Company and Argo Capital Partners I L.P.
-27-
