REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT, dated as of April 3, 2000 (this
"Agreement"), is made by and among NOVOSTE CORPORATION, a Florida corporation,
with headquarters located at 0000 Xxxxx Xxxxxxxx Xxxxxxxxx, Xxxxxxxx, XX 00000
(the "Company"), and President and Fellows of Harvard College (the "Investor").
RECITALS:
A. In connection with the Securities Purchase Agreement dated April 3,
2000 between the Investor and the Company (the "Purchase Agreement"), the
Company has agreed, upon the terms and subject to the conditions of the Purchase
Agreement, to sell to the Investor 150,000 shares of the Company's Common Stock
(the "Common Shares").
B. In order to induce the Investor to execute and deliver the Purchase
Agreement, the Company has agreed to provide certain registration rights under
the Securities Act and applicable state securities laws with respect to the
Common Shares.
In consideration of the premises and the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Company and the Investor hereby agree as follows:
ARTICLE I
DEFINITIONS
Capitalized terms used and not otherwise defined herein have the
respective meanings given them set forth in the Purchase Agreement. In addition,
as used in this Agreement, the following terms have the following meanings:
1.1 "Common Shares" means the shares of Common Stock sold pursuant to the
Purchase Agreement.
1.2 "Investor" means the Investor and any of its transferees or assignees
who agree to become bound by the provisions of this Agreement in accordance with
Article IX hereof.
1.3 "Registrable Securities" means the Common Shares sold pursuant to the
Purchase Agreement and any shares of capital stock issued or issuable from time
to time (with any adjustments) in exchange for or otherwise with respect to the
Common Shares.
1.4 "Registration Period" means the period between the date of this
Agreement and the earlier of (i) the date on which all of the Registrable
Securities have been sold by the Initial Investors and no further Registrable
Securities may be issued in the future, or (ii) the date on which all the
Registrable Securities (in the opinion of the Investors' counsel) may be
immediately sold by the Investor without registration and without restriction
(including without limitation as to volume by each holder thereof) as to the
number of Registrable Securities to be sold, pursuant to Rule 144(k) or
otherwise.
1.5 "Registration Statement" means a Registration Statement of the Company
filed under the Securities Act.
1.6 The terms "register," "registered," and "registration" refer to a
registration effected by preparing and filing a Registration Statement or
statements in compliance with the Securities Act and pursuant to Rule 415 and
the declaration or ordering of effectiveness of such Registration Statement by
the SEC.
1.7 "Rule 415" means Rule 415 under the Securities Act, or any successor
Rule providing for offering securities on a continuous basis, and applicable
rules and regulations thereunder.
ARTICLE II
REGISTRATION
2.1 Mandatory Registration. The Company will use best efforts to file with
the SEC a Registration Statement on Form S-3 registering the Registrable
Securities for resale within 15 business days after the Closing Date of the
purchase of the Common Shares under the Purchase Agreement. If Form S-3 is not
available at that time, then the Company will file a Registration Statement on
such form as is then available to effect a registration of the Registrable
Securities, subject to the consent of the Investor, which consent will not be
unreasonably withheld.
2.2 Effectiveness of the Registration Statement. The Company will use its
best efforts to cause the Registration Statement to be declared effective by the
SEC as soon as practicable after filing, and in any event no later than the 45th
day after the Closing Date (the "Required Effective Date"). However, so long as
the Company filed the Registration Statement within 15 business days after the
Closing Date, if the Registration Statement receives SEC review, then the
Required Effective Date will be the 75th day after the Closing Date. The
Company's best efforts will include, but will not be limited to, promptly
responding to all comments received from the staff of the SEC. If the Company
receives notification from the SEC that the Registration Statement will receive
no action or review from the SEC, then the Company will cause the Registration
Statement to become effective within five business days after such SEC
notification. Once the Registration Statement is declared effective by the SEC,
the Company will cause the Registration Statement to remain effective throughout
the Registration Period, except as permitted under Section 3.
2.3 Payments by the Company. If (i) at any time after effectiveness of the
Registration Statement, sales cannot be made thereunder for any reason, other
than suspension of effectiveness of the Registration Statement as described in
Section 3.6, for a period of more than 10 consecutive business days, or 30 days
in the aggregate, during any 12-month period or (ii) the Common Stock is not
listed or included for quotation on Nasdaq, Nasdaq SmallCap, the NYSE or AMEX
for more than an aggregate of 10 business days in any 12-month period, then the
Company will thereafter make cash payments to Investor as partial compensation
for such delay. The amount of the cash payment made to Investor will be equal to
1% of the purchase price paid for the Common Shares purchased by the Investor
and not previously sold by the Investor for each 30-day period following the
Effective Date that sales cannot be made under the effective Registration
Statement or the Common Stock is not listed or included for quotation on Nasdaq,
Nasdaq SmallCap, the NYSE or AMEX. These payments will be prorated on a daily
basis during each 30 day period and will be paid to Investor in cash within five
business days following the end of each month after the 10th day that sales
could not
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be made. Nothing herein limits Investor's right to pursue actual damages for the
occurrence of the events set forth in this Section 2.3.
2.4 Effect of Late Registration. If the Registration Statement has not
been declared effective by the Required Effective Date, then the Company will
make cash payments to Investor as partial compensation for such delay (the "Late
Registration Payments"). The Late Registration Payments will be equal to 1% of
the purchase price paid for the Common Shares purchased by Investor and not
previously sold by Investor for each 30-day period after the Required Effective
Date. The Late Registration Payments will be prorated on a daily basis during
each 30 day period and will be paid to the Investor in cash within five business
days after the earlier of (i) the end of each applicable 30-day period following
the Required Effective Date or (ii) the effective date of the Registration
Statement. Nothing herein limits Investor's right to pursue actual damages for
the Company's failure to file a Registration Statement or to have it declared
effective by the SEC on or prior to the Required Effective Date in accordance
with the terms of this Agreement.
2.5 Piggyback Registrations.
(a) If, at any time prior to the expiration of the Registration
Period, a Registration Statement is not effective with respect to all of the
Registrable Securities and the Company decides to register any of its securities
for its own account or for the account of others, then the Company will promptly
give the Investor written notice thereof and will use its best efforts to
include in such registration all or any part of the Registrable Securities
requested by Investor to be included therein (excluding any Registrable
Securities previously included in a Registration Statement). This requirement
does not apply to Company registrations on Form S-4 or S-8 or their equivalents
relating to equity securities to be issued solely in connection with an
acquisition of any entity or business or equity securities issuable in
connection with stock option or other employee benefit plans. The Investor must
give its request for registration under this paragraph to the Company in writing
within 15 days after receipt from the Company of notice of such pending
registration. If the registration for which the Company gives notice is a public
offering involving an underwriting, the Company will so advise the Investor as
part of the above-described written notice. In that event, if the managing
underwriter(s) of the public offering impose a limitation on the number of
shares of Common Stock that may be included in the Registration Statement
because, in such underwriter(s)' judgment, such limitation would be necessary to
effect an orderly public distribution, then the Company will be obligated to
include only such limited portion, if any, of the Registrable Securities with
respect to which Investor has requested inclusion hereunder. Any exclusion of
Registrable Securities will be made pro rata among all holders of the Company's
securities seeking to include shares of Common Stock in proportion to the number
of shares of Common Stock sought to be included by those holders. However, the
Company will not exclude any Registrable Securities unless the Company has first
excluded all outstanding securities the holders of which are not entitled by
right to inclusion of securities in such Registration Statement or are not
entitled pro rata inclusion with the Registrable Securities.
(b) No right to registration of Registrable Securities under this
Section 2.5 limits in any way the registration required under Section 2.1 above.
The obligations of the Company under this Section 2.5 expire upon the earlier of
(i) the effectiveness of the Registration Statement filed pursuant to Section
2.1 above, provided that if such effectiveness is subsequently suspended or a
stop order is issued, then the obligations of the Company under this Section 2.5
will continue to be in effect, (ii) after the Company has afforded the
opportunity for the Investor to exercise registration rights under this Section
2.5 for two registrations (provided, however, that the Investor that has had
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any Registrable Securities excluded from any Registration Statement in
accordance with this Section 2.5 may include in any additional Registration
Statement filed by the Company the Registrable Securities so excluded), (iii)
when all of the Registrable Securities held by Investor may be sold by Investor
under Rule 144(k) without being subject to any volume restrictions, or (iv) the
second anniversary of the date of this Agreement.
2.6 Eligibility to use Form S-3. The Company represents and warrants that
it meets the requirements for the use of Form S-3 for registration of the sale
by the Investor of the Registrable Securities. The Company will file all reports
required to be filed by the Company with the SEC in a timely manner so as to
preserve its eligibility for the use of Form S-3.
ARTICLE III
ADDITIONAL OBLIGATIONS OF THE COMPANY
3.1 Continued Effectiveness of Registration Statement. Subject to the
limitations set forth in Section 3.6, the Company will use its best efforts to
keep the Registration Statement covering the Registrable Securities effective
under Rule 415 at all times during the Registration Period. In the event that
the number of shares available under a Registration Statement filed pursuant to
this Agreement is insufficient to cover all of the Registrable Securities
issued, the Company will (if permitted) amend the Registration Statement or file
a new Registration Statement (on the short form available therefor, if
applicable), or both, so as to cover all of the Registrable Securities. The
Company will file such amendment or new Registration Statement as soon as
practicable, but in no event later than 30 business days after the necessity
therefor arises (based upon the market price of the Common Stock and other
relevant factors on which the Company reasonably elects to rely). The Company
will use its best efforts to cause such amendment or new Registration Statement
to become effective as soon as is practicable after the filing thereof, but in
no event later than 90 days after the date on which the Company reasonably first
determines (or reasonably should have determined) the need therefor.
3.2 Accuracy of Registration Statement. Any Registration Statement
(including any amendments or supplements thereto and prospectuses contained
therein) filed by the Company covering Registrable Securities will not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein, or necessary to make the statements therein, in
light of the circumstances in which they were made, not misleading. The Company
will prepare and file with the SEC such amendments (including post-effective
amendments) and supplements to the Registration Statement and the prospectus
used in connection with the Registration Statement as may be necessary to permit
sales pursuant to the Registration Statement at all times during the
Registration Period, and, during such period, will comply with the provisions of
the Securities Act with respect to the disposition of all Registrable Securities
of the Company covered by the Registration Statement until the termination of
the Registration Period, or if earlier, until such time as all of such
Registrable Securities have been disposed of in accordance with the intended
methods of disposition by the seller or sellers thereof as set forth in the
Registration Statement.
3.3 Furnishing Documentation. The Company will furnish to Investor whose
Registrable Securities are included in a Registration Statement, or to its legal
counsel, (a) promptly after each document is prepared and publicly distributed,
filed with the SEC or received by the Company, one copy of any Registration
Statement filed pursuant to this Agreement and any amendments thereto, each
preliminary prospectus and final prospectus and each amendment or supplement
thereto; and (b) a number of copies of a prospectus, including a preliminary
prospectus, and all amendments and
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supplements thereto, and such other documents as the Investor may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by the Investor. The Company will immediately notify by facsimile the
Investor whose Registrable Securities are included in any Registration Statement
of the effectiveness of the Registration Statement and any post-effective
amendment.
3.4 Additional Obligations. The Company will use its best efforts to (a)
register and qualify the Registrable Securities covered by a Registration
Statement under such other securities or blue sky laws of such jurisdictions as
Investor who holds (or has the right to hold) Registrable Securities being
offered reasonably requests, (b) prepare and file in those jurisdictions any
amendments (including post-effective amendments) and supplements to such
registrations and qualifications as may be necessary to maintain their
effectiveness during the Registration Period, (c) take any other actions
necessary to maintain such registrations and qualifications in effect at all
times during the Registration Period, and (d) take any other actions reasonably
necessary or advisable to qualify the Registrable Securities for sale in such
jurisdictions. Notwithstanding the foregoing, the Company is not required, in
connection such obligations, to (i) qualify to do business in any jurisdiction
where it would not otherwise be required to qualify but for this Section 3.4,
(ii) subject itself to general taxation in any such jurisdiction, (iii) file a
general consent to service of process in any such jurisdiction where it has not
so consented, (iv) provide any undertakings that cause material expense or
burden to the Company, or (v) make any change in its charter or bylaws, which in
each case the Board of Directors of the Company determines to be contrary to the
best interests of the Company and its stockholders.
3.5 Underwritten Offerings. The Investor may select underwriters
reasonably acceptable to the Company for an offering pursuant to a Registration
Statement or any amendment or supplement thereto under this Agreement, and the
Company will enter into and perform its obligations under an underwriting
agreement in usual and customary form including, without limitation, customary
indemnification and contribution obligations, with the managing underwriter of
such offering.
3.6 Suspension of Registration.
(a) The Company will notify (by telephone and also by facsimile and
reputable overnight courier) the Investor who holds Registrable Securities being
sold pursuant to a Registration Statement of the happening of any event of which
the Company has knowledge as a result of which the prospectus included in the
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, in light of the circumstances under
which they were made, not misleading. The Company will make such notification as
promptly as practicable after the Company becomes aware of the event (but in no
event, without the prior written consent of the Investor, will the Company
disclose to Investor any of the facts or circumstances regarding the event),
will promptly (but in no event more than ten business days) prepare a supplement
or amendment to the Registration Statement to correct such untrue statement or
omission, and will deliver a number of copies of such supplement or amendment to
Investor as Investor may reasonably request.
(b) Notwithstanding the obligations under Section 3.6(a), if in the
good faith judgment of the Company, following consultation with legal counsel,
it would be detrimental to the Company and its stockholders for resales of
Registrable Securities to be made pursuant to the Registration Statement due to
(i) the existence of a material development or potential material
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development involving the Company which the Company would be obligated to
disclose in the Registration Statement, which disclosure would be premature or
otherwise inadvisable at such time or would have a Material Adverse Effect upon
the Company and its stockholders, or (ii) in the good faith judgment of the
Company's Board of Directors, it would adversely affect or require premature
disclosure of the filing of a Company-initiated registration of any class of its
equity securities, the Company will have the right to suspend the use of the
Registration Statement for a period of not more than ninety days, provided,
however, that the Company may so defer or suspend the use of the Registration
Statement no more than one time in any twelve-month period.
(c) Subject to the Company's rights under this Section 3, the
Company will use its best efforts to prevent the issuance of any stop order or
other suspension of effectiveness of a Registration Statement and, if such an
order is issued, will use its best efforts to obtain the withdrawal of such
order at the earliest possible time and to notify the Investor that holds
Registrable Securities being sold (or, in the event of an underwritten offering,
the managing underwriters) of the issuance of such order and the resolution
thereof.
(d) Notwithstanding anything to the contrary contained herein or in
the Purchase Agreement, if the use of the Registration Statement is suspended by
the Company, the Company will promptly give notice of the suspension to Investor
whose securities are covered by the Registration Statement, and will promptly
notify Investor as soon as the use of the Registration Statement may be resumed.
Notwithstanding anything to the contrary contained herein or in the Purchase
Agreement, the Company will cause the Transfer Agent to deliver unlegended
shares of Common Stock to a transferee of Investor in accordance with the terms
of the Purchase Agreement in connection with any sale of Registrable Securities
with respect to which Investor has entered into a contract for sale prior to
receipt of notice of such suspension and for which Investor has not yet settled.
3.7 Review by the Investor. The Company will permit a single firm of legal
counsel, designated by the Investor to review the Registration Statement and all
amendments and supplements thereto (as well as all requests for acceleration or
effectiveness thereof) a reasonable period of time prior to their filing with
the SEC, and will not file any document in a form to which such counsel
reasonably objects, unless otherwise required by law in the opinion of the
Company's counsel. The sections of any such Registration Statement including
information with respect to the Investor, the Investor's beneficial ownership of
securities of the Company or the Investor's intended method of disposition of
Registrable Securities must conform to the information provided to the Company
by Investor.
3.8 Comfort Letter; Legal Opinion. At the request of Investor and on the
date that Registrable Securities are delivered to an underwriter for sale in
connection with the Registration Statement, the Company will furnish to the
Investor and the underwriters (i) a letter, dated such date, from the Company's
independent certified public accountants, in form and substance as is
customarily given by independent certified public accountants to underwriters in
an underwritten public offering, addressed to the underwriters; and (ii) an
opinion, dated such date, from counsel representing the Company for purposes of
the Registration Statement, in form and substance as is customarily given in an
underwritten public offering, addressed to the underwriters and Investor.
3.9 Due Diligence; Confidentiality.
(a) The Company will make available for inspection by Investor whose
Registrable Securities are being sold pursuant to a Registration Statement, any
underwriter
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participating in any disposition pursuant to the Registration Statement, and any
attorney, accountant or other agent retained by Investor or underwriter
(collectively, the "Inspectors"), all pertinent financial and other records,
pertinent corporate documents and properties of the Company (collectively, the
"Records"), as each Inspector reasonably deems necessary to enable the Inspector
to exercise any due diligence responsibility. The Company will cause its
officers, directors and employees to supply all information that any Inspector
may reasonably request for purposes of performing such due diligence.
(b) Each Inspector will hold in confidence, and will not make any
disclosure (except to an Investor) of, any Records or other information that the
Company determines in good faith to be confidential, and of which determination
the Inspectors are so notified, unless (i) the disclosure of such Records is
necessary to avoid or correct a misstatement or omission in any Registration
Statement, (ii) the release of such Records is ordered pursuant to a subpoena or
other order from a court or government body of competent jurisdiction, (iii) the
information in such Records has been made generally available to the public
other than by disclosure in violation of this or any other agreement (to the
knowledge of the relevant Inspector), (iv) the Records or other information was
developed independently by an Inspector without breach of this Agreement, (v)
the information was known to the Inspector before receipt of such information
from the Company, or (vi) the information was disclosed to the Inspector by a
third party without restriction. The Company is not required to disclose any
confidential information in the Records to any Inspector unless and until such
Inspector has entered into a confidentiality agreement (in form and substance
satisfactory to the Company) with the Company with respect thereto,
substantially in the form of this Section 3.9. Each Investor will, upon learning
that disclosure of Records containing confidential information is sought in or
by a court or governmental body of competent jurisdiction or through other
means, give prompt notice to the Company and allow the Company, at the Company's
expense, to undertake appropriate action to prevent disclosure of, or to obtain
a protective order for, the Records deemed confidential. Nothing herein will be
deemed to limit the Investor's ability to sell Registrable Securities in a
manner that is otherwise consistent with applicable laws and regulations.
(c) The Company will hold in confidence, and will not make any
disclosure of, information concerning Investor provided to the Company under
this Agreement unless (i) disclosure of such information is necessary to comply
with federal or state securities laws, (ii) the disclosure of such information
is necessary to avoid or correct a misstatement or omission in any Registration
Statement, (iii) the release of such information is ordered pursuant to a
subpoena or other order from a court or governmental body of competent
jurisdiction, (iv) such information has been made generally available to the
public other than by disclosure in violation of this Agreement or any other
agreement (v) the information was disclosed to the Company by a third party
without restriction or (vi) Investor consents to the form and content of any
such disclosure. If the Company learns that disclosure of such information
concerning Investor is sought in or by a court or governmental body of competent
jurisdiction or through other means, the Company will give prompt notice to
Investor prior to making such disclosure and allow Investor, at its expense, to
undertake appropriate action to prevent disclosure of, or to obtain a protective
order for, such information.
3.10 Listing. The Company will (i) cause all of the Registrable Securities
covered by each Registration Statement to be listed on each national securities
exchange on which securities of the same class or series 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 (ii) to the extent the securities
of the same class or series are not then listed on a national securities
exchange, secure the designation and quotation of all of the Registrable
Securities covered by each Registration Statement on Nasdaq and,
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without limiting the generality of the foregoing, arrange for at least two
market makers to register with the National Association of Securities Dealers,
Inc. as such with respect to such Registrable Securities.
3.11 Transfer Agent; Registrar. The Company will provide a transfer agent
and registrar, which may be a single entity, for the Registrable Securities not
later than the effective date of the Registration Statement.
3.12 Share Certificates. The Company will cooperate with Investor who
holds Registrable Securities being sold and with the managing underwriter(s), if
any, to facilitate the timely preparation and delivery of certificates (not
bearing any restrictive legends) representing Registrable Securities to be
offered pursuant to a Registration Statement and will enable such certificates
to be in such denominations or amounts as the case may be, and registered in
such names as the Investor or the managing underwriter(s), if any, may
reasonably request, all in accordance with Article V of the Purchase Agreement.
3.13 Plan of Distribution. At the request of the Investor with Registrable
Securities registered pursuant to a Registration Statement, the Company will
promptly prepare and file with the SEC such amendments (including post-effective
amendments) and supplements to the Registration Statement, and the prospectus
used in connection with the Registration Statement, as may be necessary in order
to change the plan of distribution set forth in such Registration Statement.
3.14 Securities Laws Compliance. The Company will comply with all
applicable laws related to any Registration Statement relating to the sale of
Registrable Securities and to offering and sale of securities and with all
applicable rules and regulations of governmental authorities in connection
therewith (including, without limitation, the Securities Act, the Exchange Act
and the rules and regulations promulgated by the SEC).
3.15 Further Assurances. The Company will take all other reasonable
actions as Investor or the underwriters, if any, may reasonably request to
expedite and facilitate disposition by such Investor of the Registrable
Securities pursuant to the Registration Statement.
ARTICLE IV
OBLIGATIONS OF THE INVESTOR
4.1 Investor Information. As a condition to the obligations of the Company
to complete any registration pursuant to this Agreement with respect to the
Registrable Securities of Investor, Investor will furnish to the Company such
information regarding itself, the Registrable Securities held by it and the
intended method of disposition of the Registrable Securities held by it as is
reasonably required by the Company to effect the registration of the Registrable
Securities. At least 10 business days prior to the first anticipated filing date
of a Registration Statement for any registration under this Agreement, the
Company will notify Investor of the information the Company requires from
Investor if the Investor elects to have any of its Registrable Securities
included in the Registration Statement. If, within three business days prior to
the filing date, the Company has not received the requested information from
Investor, then the Company may file the Registration Statement without including
Registrable Securities of Investor.
4.2 Further Assurances. Investor will cooperate with the Company, as
reasonably requested by the Company, in connection with the preparation and
filing of any Registration
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Statement hereunder, unless Investor has notified the Company in writing of
Investor's election to exclude all of Investor's Registrable Securities from the
Registration Statement.
4.3 Suspension of Sales. Upon receipt of any notice from the Company of
the happening of any event of the kind described in Section 3.6, Investor will
immediately discontinue disposition of Registrable Securities pursuant to the
Registration Statement covering such Registrable Securities until it receives
copies of the supplemented or amended prospectus contemplated by Section 3.6. If
so directed by the Company, Investor will deliver to the Company (at the expense
of the Company) or destroy (and deliver to the Company a certificate of
destruction) all copies in the Investor's possession (other than a limited
number of file copies) of the prospectus covering such Registrable Securities
that is current at the time of receipt of such notice.
4.4 Underwritten Offerings.
(a) If Investor determines to engage the services of an underwriter,
Investor will enter into and perform its obligations under an underwriting
agreement, in usual and customary form, including, without limitation, customary
indemnification and contribution obligations, with the managing underwriter of
such offering, and will take such other actions as are reasonably required in
order to expedite or facilitate the disposition of the Registrable Securities.
(b) Without limiting any Investor's rights under Section 2.1 hereof,
Investor may not participate in any underwritten distribution hereunder unless
Investor (a) agrees to sell its Registrable Securities on the basis provided in
its underwriting arrangements, (b) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements, and (c)
agrees to pay its pro rata share of all underwriting discounts and commissions
and other fees and expenses of investment bankers and any manager or managers of
such underwriting, and legal expenses of the underwriter, applicable with
respect to its Registrable Securities, in each case to the extent not payable by
the Company under the terms of this Agreement.
ARTICLE V
EXPENSES OF REGISTRATION
The Company will bear all reasonable expenses, other than underwriting
discounts and commissions, and transfer taxes, if any, incurred in connection
with registrations, filings or qualifications pursuant to Articles II and III of
this Agreement, including, without limitation, all registration, listing and
qualifications fees, printers and accounting fees, the fees and disbursements of
counsel for the Company, and the reasonable fees and disbursements of one firm
of legal counsel selected by Investor pursuant to Section 3.7 hereof.
ARTICLE VI
INDEMNIFICATION
In the event that any of Registrable Securities are included in a
Registration Statement under this Agreement:
6.1 To the extent permitted by law, the Company will indemnify and hold
harmless Investor, any underwriter (as defined in the Securities Act) for the
Investor, any directors or officers of Investor or such underwriter and any
person who controls Investor or such underwriter within the
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meaning of the Securities Act or the Exchange Act (each, an "Indemnified
Person") against any losses, claims, damages, expenses or liabilities (joint or
several) (collectively, and together with actions, proceedings or inquiries by
any regulatory or self-regulatory organization, whether commenced or threatened
in respect thereof, "Claims") to which any of them become subject under the
Securities Act, the Exchange Act or otherwise, insofar as such Claims arise out
of or are based upon any of the following statements, omissions or violations in
a Registration Statement (including any exhibits or schedules thereto) filed
pursuant to this Agreement, any amendment or supplement thereof or any
prospectus (preliminary or final) included therein: (a) any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or any amendment or supplement thereof or 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, (b) any untrue
statement or alleged untrue statement of a material fact contained in the
prospectus (as it may be amended or supplemented) or the omission or alleged
omission to state therein any material fact necessary to make the statements
made therein, in light of the circumstances under which the statements therein
were made, not misleading, or (c) any violation or alleged violation by the
Company of the Securities Act, the Exchange Act or any other law, including
without limitation any state securities law or any rule or regulation thereunder
(the matters in the foregoing clauses (a) through (c) being, collectively,
"Violations"). Subject to the restrictions set forth in Section 6.3 with respect
to the number of legal counsel, the Company will reimburse Investor and each
such underwriter or controlling person and each such other Indemnified Person,
promptly as such expenses are incurred and are due and payable, for any legal
fees or other reasonable expenses incurred by them in connection with
investigating or defending any Claim. Notwithstanding anything to the contrary
contained herein, the indemnification agreement contained in this Section 6.1
(i) does not apply to a Claim arising out of or based upon a Violation that
occurs in reliance upon and in conformity with information furnished in writing
to the Company by any Indemnified Person expressly for use in connection with
the preparation of the Registration Statement (including any exhibits or
schedules thereto) or any such amendment thereof or supplement thereto, if such
prospectus was timely made available by the Company pursuant to Section 3.3
hereof; and (ii) does not apply to amounts paid in settlement of any Claim if
such settlement is made without the prior written consent of the Company, which
consent will not be unreasonably withheld. This indemnity obligation will remain
in full force and effect regardless of any investigation made by or on behalf of
the Indemnified Persons and will survive the transfer of the Registrable
Securities by the Investors under Article IX of this Agreement.
6.2 In connection with any Registration Statement in which Investor is
participating, Investor will indemnify and hold harmless, to the same extent and
in the same manner set forth in Section 6.1 above, the Company, each of its
directors, each of its officers who signs the Registration Statement, each
person, if any, who controls the Company within the meaning of the Securities
Act or the Exchange Act, and any other stockholder selling securities pursuant
to the Registration Statement or any of its directors or officers or any person
who controls such stockholder within the meaning of the Securities Act or the
Exchange Act (each an "Indemnified Person") against any Claim to which any of
them may become subject under the Securities Act, the Exchange Act or otherwise,
insofar as such Claim arises out of or is 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 to the Company by
Investor expressly for use in connection with such Registration Statement.
Subject to the restrictions set forth in Section 6.3, Investor will promptly
reimburse any legal or other expenses (promptly as such expenses are incurred
and due and payable) reasonably incurred by them in connection with
investigating or defending any such Claim. However, the indemnity agreement
contained in this Section 6.2 does not apply to amounts paid in settlement of
any Claim if such settlement is effected without the prior written consent of
Investor,
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which consent will not be unreasonably withheld, and Investor not will be liable
under this Agreement (including this Section 6.2 and Article VII) for the amount
of any Claim that exceeds the net proceeds actually received by Investor as a
result of the sale of Registrable Securities pursuant to such Registration
Statement. This indemnity will remain in full force and effect regardless of any
investigation made by or on behalf of an Indemnified Party and will survive the
transfer of the Registrable Securities by the Investors under Article IX of this
Agreement.
6.3 Promptly after receipt by an Indemnified Person under this Article VI
of notice of the commencement of any action (including any governmental action),
such Indemnified Person will, if a Claim in respect thereof is to be made
against any indemnifying party under this Article VI, deliver to the
indemnifying party a written notice of the commencement thereof. The
indemnifying party may participate in, and, to the extent the indemnifying party
so desires, jointly with any other indemnifying party similarly given notice,
assume control of the defense thereof with counsel mutually satisfactory to the
indemnifying parties and the Indemnified Person. In that case, the indemnifying
party will diligently pursue such defense. If, in the reasonable opinion of
counsel retained by the indemnifying party, the representation by such counsel
of the Indemnified Person and the indemnifying party would be inappropriate due
to actual or potential conflicts of interest between the Indemnified Person and
any other party represented by such counsel in such proceeding or the actual or
potential defendants in, or targets of, any such action including the
Indemnified Person, and any such Indemnified Person reasonably determines that
there may be legal defenses available to such Indemnified Person that are
different from or in addition to those available to the indemnifying party, then
the Indemnified Person is entitled to assume such defense and may retain its own
counsel, with the fees and expenses to be paid by the indemnifying party. The
failure to deliver written notice to the indemnifying party within a reasonable
time of the commencement of any such action does not relieve an indemnifying
party of any liability to an Indemnified Person under this Article VI, except to
the extent that the indemnifying party is prejudiced in its ability to defend
such action. The indemnification required by this Article VI will be made by
periodic payments of the amount thereof during the course of the investigation
or defense, as such expense, loss, damage or liability is incurred and is due
and payable.
ARTICLE VII
CONTRIBUTION
To the extent that any indemnification provided for herein is prohibited
or limited by law, the indemnifying party will make the maximum contribution
with respect to any amounts for which it would otherwise be liable under Article
VI to the fullest extent permitted by law. However, (a) no contribution will be
made under circumstances where the maker would not have been liable for
indemnification under the fault standards set forth in Article VI, (b) no seller
of Registrable Securities guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) will be entitled to contribution
from any seller of Registrable Securities who was not guilty of such fraudulent
misrepresentation, and (c) contribution (together with any indemnification or
other obligations under this Agreement) by any seller of Registrable Securities
will be limited in amount to the net amount of proceeds received by such seller
from the sale of such Registrable Securities.
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ARTICLE VIII
EXCHANGE ACT REPORTING
In order to make available to Investor the benefits of Rule 144 or any
similar rule or regulation of the SEC that may at any time permit Investor to
sell securities of the Company to the public without registration, the Company
will:
(a) File with the SEC in a timely manner, and make and keep
available, all reports and other documents required of the Company under the
Securities Act and the Exchange Act so long as the Company remains subject to
such requirements (it being understood that nothing herein limits the Company's
obligations under Section 4.3 of the Purchase Agreement) and the filing and
availability of such reports and other documents is required for the applicable
provisions of Rule 144; and
(b) Furnish to Investor, so long as Investor holds Registrable
Securities, promptly upon the Investor's request, (i) a written statement by the
Company that it has complied with the reporting requirements of Rule 144, the
Securities Act and the Exchange Act, (ii) a copy of the most recent annual or
quarterly report of the Company and such other reports and documents filed by
the Company with the SEC and (iii) such other information as may be reasonably
requested to permit the Investors to sell such securities pursuant to Rule 144
without registration.
ARTICLE IX
ASSIGNMENT OF REGISTRATION RIGHTS
The rights of Investor hereunder, including the right to have the Company
register Registrable Securities pursuant to this Agreement, will be
automatically assigned by Investor to transferees or assignees of all or any
portion of the Registrable Securities, but only if (a) the Investor agrees in
writing with the transferee or assignee to assign such rights, and a copy of
such agreement is furnished to the Company within a reasonable time after such
assignment, (b) the Company is, within a reasonable time after such transfer or
assignment, furnished with written notice of the name and address of such
transferee or assignee and the securities with respect to which such
registration rights are being transferred or assigned, (c) after such transfer
or assignment, the further disposition of such securities by the transferee or
assignee is restricted under the Securities Act and applicable state securities
laws, (d) at or before the time the Company received the written notice
contemplated by clause (b) of this sentence, the transferee or assignee agrees
in writing with the Company to be bound by all of the provisions contained
herein, (e) such transfer is made in accordance with the applicable requirements
of the Purchase Agreement, and (f) the transferee is an "accredited investor" as
that term is defined in Rule 501 of Regulation D.
ARTICLE X
AMENDMENT OF REGISTRATION RIGHTS
This Agreement may be amended and the obligations hereunder may be waived
(either generally or in a particular instance, and either retroactively or
prospectively) only with the written consent of the Company and Investor. Any
amendment or waiver effected in accordance with this Article X is binding upon
Investor and the Company.
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ARTICLE XI
MISCELLANEOUS
11.1 Conflicting Instructions. A person or entity is deemed to be a holder
of Registrable Securities whenever such person or entity owns of record such
Registrable Securities. If the Company receives conflicting instructions,
notices or elections from two or more persons or entities with respect to the
same Registrable Securities, the Company will act upon the basis of
instructions, notice or election received from the registered owner of such
Registrable Securities.
11.2 Notices. Any notices required or permitted to be given under the
terms of this Agreement will be given as set forth in the Purchase Agreement.
11.3 Waiver. Failure of any party to exercise any right or remedy under
this Agreement or otherwise, or delay by a party in exercising such right or
remedy, does not operate as a waiver thereof.
11.4 Governing Law. This Agreement will be governed by and interpreted in
accordance with the laws of the State of New York without regard to the
principles of conflict of laws. The parties hereto hereby submit to the
exclusive jurisdiction of the United States federal and state courts located in
the State of New York with respect to any dispute arising under this Agreement,
the agreements entered into in connection herewith or the transactions
contemplated hereby or thereby.
11.5 Severability. If any provision of this Agreement is invalid or
unenforceable under any applicable statute or rule of law, then such provision
will be deemed modified in order to conform with such statute or rule of law.
Any provision hereof that may prove invalid or unenforceable under any law will
not affect the validity or enforceability of any other provision hereof.
11.6 Entire Agreement. This Agreement and the Purchase Agreement
(including all schedules and exhibits thereto) constitute the entire agreement
among the parties hereto with respect to the subject matter hereof and thereof.
There are no restrictions, promises, warranties or undertakings, other than
those set forth or referred to herein or therein. This Agreement supersedes all
prior agreements and understandings among the parties hereto with respect to the
subject matter hereof.
11.7 Successors and Assigns. Subject to the requirements of Article IX
hereof, this Agreement inures to the benefit of and is binding upon the
successors and assigns of each of the parties hereto. Notwithstanding anything
to the contrary herein, including, without limitation, Article IX, the rights of
an Investor hereunder are assignable to and exercisable by a bona fide pledgee
of the Registrable Securities in connection with an Investor's margin or
brokerage accounts.
11.8 Use of Pronouns. All pronouns refer to the masculine, feminine or
neuter, singular or plural, as the context may require.
11.9 Headings. The headings of this Agreement are for convenience of
reference only, are not part of this Agreement and do not affect its
interpretation.
11.10 Counterparts. This Agreement may be executed in two or more
counterparts, each of which is deemed an original but all of which constitute
one and the same agreement. This
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Agreement, once executed by a party, may be delivered to the other party hereto
by facsimile transmission, and facsimile signatures are binding on the parties
hereto.
11.11 Further Assurances. Each party will do and perform, or cause to be
done and performed, all such further acts and things, and will execute and
deliver all other agreements, certificates, instruments and documents, as
another party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
11.12 No Strict Construction. The language used in this Agreement is
deemed to be the language chosen by the parties to express their mutual intent,
and no rules of strict construction will be applied against any party.
IN WITNESS WHEREOF, the undersigned Investor and the Company have caused
this Agreement to be duly executed as of the date first above written.
NOVOSTE CORPORATION:
By: __________________________________
Name:
Title:
PRESIDENT AND FELLOWS OF HARVARD COLLEGE:
By: Harvard Management Co., Inc.
By: __________________________________
Name:
Title:
By: __________________________________
Name:
Title:
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