REGISTRATION RIGHTS AGREEMENT
Exhibit 10.2
Execution Copy
This Registration Rights Agreement (the “Agreement”) is made and entered into as of this
December 29, 2009, by and among Osteologix, Inc., a Delaware corporation (the “Company”), and the
“Holders” executing this Agreement and named in that certain Purchase Agreement by and among the
Company and the Holders dated the date hereof (the “Purchase Agreement”).
The parties hereby agree as follows:
1. Certain Definitions.
As used in this Agreement, the following terms shall have the following meanings:
“Affiliate” means, with respect to any person, any other person which directly or indirectly
controls, is controlled by, or is under common control with, such person.
“Affiliated Holder” means Nordic Biotech Opportunity Fund K/S, and any successor and assigns
or permitted transferee of the Affiliated Holder who is a subsequent holder of any Registrable
Securities transferred by the Affiliated Holder.
“Business Day” means a day, other than a Saturday or Sunday, on which banks in Xxx Xxxx Xxxx
xxx Xxx Xxxxxxxxx, Xxxxxxxxxx are open for the general transaction of business.
“Common Stock” means the Company’s common stock, par value $0.0001 per share, and any
securities into which such shares may hereinafter be reclassified.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
“Holders” means collectively, the Purchasers and the Affiliated Holder.
“Major Purchaser” means any Holder (other than the Affiliated Holder) that purchased 500,000
Shares, or more, pursuant to the Purchase Agreement. For purposes of this Agreement, the Shares
purchased by a Holder shall include the Shares of all of its related persons that have also
purchased Shares under the Purchase Agreement.
“Offering” means the purchase and sale of Shares pursuant to the Purchase Agreement.
“Purchasers” means the Purchasers identified in the Purchase Agreement (other than the
Affiliated Holder) and any successor and assigns or permitted transferee of any Purchaser who is a
subsequent holder of any Registrable Securities.
“Prospectus” means the prospectus included in any Registration Statement (including, without
limitation, a prospectus that includes any information previously omitted from a prospectus filed
as part of an effective registration statement in reliance upon Rule 430A
promulgated under the Securities Act), as amended or supplemented by any prospectus
supplement, with respect to the terms of the offering of any portion of the Registrable Securities
covered by such Registration Statement and by all other amendments and supplements to the
Prospectus, including post-effective amendments and all material incorporated by reference or
deemed to be incorporated by reference in such Prospectus.
“Register,” “registered” and “registration” refer to a registration made by preparing and
filing a Registration Statement or similar document in compliance with the Securities Act (as
defined below), and the declaration or ordering of effectiveness of such Registration Statement or
document.
“Registrable Securities” means (i) the Shares, and (ii) any other securities issued or
issuable with respect to or in exchange for the Shares; provided, that a security held by
Holder shall cease to be a Registrable Security upon (A) a sale by such Holder pursuant to a
Registration Statement or Rule 144 under the Securities Act or (B) such security becoming eligible
for sale by such Holder pursuant to Rule 144 without volume limitations.
“Registration Statement” means any registration statement or statements of the Company filed
under the Securities Act and (in each case) the Prospectus that covers the resale of any of the
Registrable Securities pursuant to the provisions of this Agreement (including each of the
Registration Statements referred to in Section 2), amendments and supplements to each such
Registration Statement and Prospectus, including pre- and post-effective amendments, all exhibits
and all material filed and incorporated by reference or deemed to be incorporated by reference in
each such Registration Statement.
“Required Holders” means the Holders holding a majority of the Registrable Securities.
“Required Purchasers” mean the Purchasers holding a majority of the Registrable Securities
then owned by the Purchasers.
“Rule 416” and “Rule 429” mean “Rule 416” and “Rule 429,” respectively, each as promulgated by
the SEC pursuant to the Securities Act, as either such Rule may be amended from time to time, or
any similar rule or regulation hereafter adopted by the SEC having substantially the same effect as
such Rule.
“SEC” means the U.S. Securities and Exchange Commission.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
“Shares” means the shares of Common Stock issued to the Holders pursuant to the Purchase
Agreement and any shares of Common Stock issued or issuable to the Holders upon any stock split,
dividend or other distribution, recapitalization or similar event with respect to the foregoing.
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2. Registration.
(a) Initial Registration Statement. Promptly following the closing of the purchase
and sale of the securities contemplated by the Purchase Agreement (the “Closing Date”), and subject
to the purchase and sale of Shares in the Offering by Persons other than Affiliated Holder with an
aggregate purchase price of at least $1,000,000, but in any event no later than ten (10) days after
the deadline for filing the Company’s Form 10-K for the year ended December 3, 2008 with the SEC
(the “Filing Deadline”), the Company shall prepare and file with the SEC a Registration Statement
covering the resale by the Purchasers of all Registrable Securities then held by the Purchasers.
Such Registration Statement shall be on Form S-1 or Form S-3, as available (the “Registration
Statement”), or other appropriate form in accordance herewith and shall include the plan of
distribution attached hereto as Exhibit A (except as otherwise directed by the Purchasers).
Such Registration Statement also shall cover, to the extent allowable under the Securities Act
(including Rule 416), such indeterminate number of additional shares of Common Stock resulting from
stock splits, stock dividends or similar transactions with respect to the Registrable Securities.
Such Registration Statement shall not include any shares of Common Stock or other securities for
the account of any holder without the prior written consent of the Required Purchasers, except for
shares of Common Stock held by the Company’s stockholders (other than the Affiliated Holder) having
“piggyback” registration rights expressly set forth in registration rights agreements entered into
by the Company prior to the date hereof. A copy of the initial filing of the Registration
Statement (and each pre-effective amendment thereto) shall be provided to the Purchasers and their
counsel at least three (3) Business Days prior to filing. If the Registration Statement covering
the Registrable Securities is not filed with the SEC on or prior to the Filing Deadline (or if it
is filed without giving the Purchasers the opportunity to review and comment on the same as
required above, the Company shall not be deemed to have satisfied such filing requirement), then in
addition to any other rights each Purchaser may have hereunder or under applicable law, the Company
will pay (i) an amount in cash to each Purchaser other than the Affiliated Holder, as partial
liquidated damages and not as a penalty, equal to 1.0% of the aggregate purchase price paid for
Registrable Securities by such Purchaser pursuant to the Purchase Agreement up to a maximum amount
of all liquidated damages payable under this Agreement to any Purchaser of 10% of the purchase
price paid for Registrable Securities by such Purchaser pursuant to the Purchase Agreement and (ii)
for each thirty- (30) day period or pro rata for any portion thereof following the Filing Deadline
for which the Registration Statement has not been filed or reviewed pursuant to the terms hereof,
an amount in cash to each Purchaser other than the Affiliated Holder, as partial liquidated damages
and not as a penalty, equal to 1.0% of the aggregate purchase price paid for Registrable Securities
by such Purchaser pursuant to the Purchase Agreement up to a maximum amount of all liquidated
damages payable under this Agreement to any Purchaser of 10% of the purchase price paid for
Registrable Securities by such Purchaser pursuant to the Purchase Agreement. The amounts payable
as partial liquidated damages pursuant to this paragraph shall be paid within three (3) Business
Days of the Filing Deadline and monthly thereafter within three (3) Business Days of the last day
of each month following the commencement of the Filing Deadline until the Registration Statement
has been reviewed by the Purchasers and filed with the SEC as required herein. If the Company
fails to pay any partial liquidated damages pursuant to this section in full within seven (7)
calendar days after the date payable, the Company will pay interest thereon at a rate of 12% per
annum (or such lesser amount that is permitted to be paid by applicable law) to the Purchaser,
accruing daily from the date such payments are due until such
amounts, plus all such interest thereon, are paid in full. Payments to be made pursuant to
Section 2(a)(ii) shall apply on a daily pro-rata basis for any portion of a month prior to the
review and filing of the Registration Statement required herein. All payments shall be in
immediately available cash funds. In all cases, regardless of whether a Registration Statement has
been declared effective, no liquidated damages shall accrue or be payable with respect to
securities that are eligible for sale under Rule 144 without volume limitations.
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(b) Registration by the Affiliated Holder. At any time after the earlier of the date
that is six (6) months after the Closing Date and thirty (30) days after the date of effectiveness
of any Registration Statement filed in accordance with Section 2(a) herein, each Affiliated Holder
may request, no more than one time, that the Company shall prepare and file with the SEC, a
Registration Statement covering the resale by such Affiliated Holder of all Registrable Securities
then held by such Affiliated Holder. Promptly following any such request but no later than thirty
(30) Business Days after such request, the Company shall prepare and file with the SEC a
Registration Statement covering the resale by such Affiliated Purchaser of all Registrable
Securities then held by such Affiliated Purchaser; provided, that the Company shall not be
required to file any Registration Statement under this Section 2(b) if the filing of such
Registration Statement would cause the Company to file financial statements in advance of the date
that the Company would have otherwise been required to file such financial statements under the
Exchange Act. Such Registration Statement shall be on Form S-1 or Form S-3, as available, or other
appropriate form in accordance herewith and shall include the plan of distribution attached hereto
as Exhibit A (except as otherwise directed by such Affiliated Holder). Such Registration
Statement also shall cover, to the extent allowable under the Securities Act (including Rule 416),
such indeterminate number of additional shares of Common Stock resulting from stock splits, stock
dividends or similar transactions with respect to the Registrable Securities. Such Registration
Statement shall not include any shares of Common Stock or other securities for the account of any
holder without the prior written consent of the Affiliated Purchaser that requested such
Registration Statement under this Section 2(b). A copy of the initial filing of the Registration
Statement (and each pre-effective amendment thereto) shall be provided to the Affiliated Purchaser
and their counsel at least three (3) Business Days prior to filing. Notwithstanding the foregoing,
(i) if the board of directors of the Company determines in good faith that any such registration
would be materially detrimental to the Company, the Company may defer such registration for no more
than ninety (90) days in any twelve (12) month period. Further, notwithstanding any other
agreement between an Affiliated Holder and the Company, each Affiliated Holder agrees that it will
not elect to cause the Company to register any other securities held by such Affiliated Holder for
resale prior to the date set forth in this Section 2(b).
(c) Expenses. The Company will pay all expenses associated with each registration,
including filing and printing fees, the Company’s counsel and accounting fees and expenses, costs
associated with clearing the Registrable Securities for sale under applicable state securities
laws, listing fees, reasonable out-of-pocket fees and expenses of one counsel to all Major
Purchasers (which fees and expenses shall not exceed $15,000) and the Major Purchasers’ reasonable
out-of-pocket expenses in connection with the registration, but excluding discounts, commissions,
fees of underwriters, selling brokers, dealer managers or similar securities industry professionals
with respect to the Registrable Securities being sold.
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(d) Additional Registration Statements. If at any time the SEC takes the position
that the offering of some or all of the Registrable Securities in a Registration Statement is not
eligible to be made on a delayed or continuous basis under the provisions of Rule 415 or requires
any Purchaser in connection with a Registration Statement filed under Section 2(a) or the
Affiliated Holder in connection with a Registration Statement filed under Section 2(b) to be named
as an “underwriter,” the Company shall use its commercially reasonable efforts to persuade the SEC
that the offering contemplated by the Registration Statement is a valid secondary offering and not
an offering “by or on behalf of the issuer” as defined in Rule 415 and that none of the Purchasers
or the Affiliated Holder, as the case may be, is an “underwriter.” The Purchasers or the
Affiliated Holder, as applicable, shall have the right to participate or have their counsel
participate in any meetings or discussions with the SEC regarding the SEC’s position and to comment
or have their counsel comment on any written submission made to the SEC with respect thereto. No
such written submission shall be made to the SEC to which the Purchasers’ or Affiliated Holder’s
counsel, as applicable, reasonably objects, which determination shall be made in the sole
discretion of the Company and its counsel. In the event that, despite the Company’s commercially
reasonable efforts and compliance with the terms of this Section 2(d), the SEC refuses to alter its
position, the Company shall remove from the Registration Statement such portion of the Registrable
Securities (the “Cut Back Shares”) and/or agree to such restrictions and limitations on the
registration and resale of the Registrable Securities as the SEC may require to assure the
Company’s compliance with the requirements of Rule 415; provided, however, that the
Company shall not agree to name any Purchaser or the Affiliated Holder as an “underwriter” in such
Registration Statement without the prior written consent of such Purchaser or the Affiliated Holder
(collectively, the “SEC Restrictions”). Any cut-back imposed on the Purchasers or the Affiliated
Holder pursuant to this Section 2(d) shall, unless the SEC Restrictions otherwise require or
provide and unless otherwise directed in writing by a Purchaser or the Affiliated Holder as to its
Registrable Securities, will be applied as follows: (i) first, to Registrable Securities
represented by the Shares held by the Affiliated Holder (applied, in the case that some of such
shares of Common Stock may be registered, to the Affiliated Holder(s) on a pro rata basis based on
the total number of unregistered Shares held by any Affiliated Holder); and second, to Registrable
Securities represented by the Shares held by Purchasers (applied, in the case that some of such
shares of Common Stock may be registered, to the Purchasers on a pro rata basis based on the total
number of unregistered Shares held by any Purchaser). No liquidated damages shall accrue on or as
to any Cut Back Shares until such time as the Company is able to effect the registration of the Cut
Back Shares in accordance with any SEC Restrictions (such date, the “Restriction Termination
Date”). From and after the Restriction Termination Date, all of the provisions of this Section 2
(including the liquidated damages provisions) shall again be applicable to the Cut Back Shares;
provided, however, that for such purposes, the Filing Deadline with respect to any
such Cut Back Shares shall be the 45th day following the Restriction Termination Date.
(e) Effectiveness.
(i) The Company shall use commercially reasonable efforts to cause the Registration
Statement(s) to be declared effective by the SEC as soon as practicable (including filing with the
SEC a request for acceleration of its effectiveness in accordance with Rule 461 within five (5)
Business Days of the date that the Company is notified (orally or in writing, whichever is earlier)
by the staff of the SEC that a Registration Statement will not be
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reviewed, or not be subject to further review), with respect to the initial Registration
Statement(s) filed pursuant to Sections 2(a) and 2(b) hereof, but in any event no later than one
hundred and twenty (120) days after filing. The Company shall notify the Purchasers or the
applicable Affiliated Holder by facsimile or e-mail as promptly as practicable, and in any event,
within twenty-four (24) hours, after any Registration Statement is declared effective and shall
simultaneously provide the Purchasers or the applicable Affiliated Holder with copies of any
related Prospectus to be used in connection with the sale or other disposition of the securities
covered thereby. If (A) (i) the Registration Statement is not declared effective by the SEC prior
to the earlier of five (5) Business Days after the staff of the SEC shall have informed the Company
(orally or in writing, whichever is earlier) that such Registration Statement will not be reviewed
by the staff of the SEC or not be subject to further review or (ii) one hundred and twenty (120)
days after filing, other than as a result of limitations imposed by the SEC or (B) after a
Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to
such Registration Statement for any reason (including without limitation by reason of a stop order,
or the Company’s failure to update the Registration Statement), but excluding the inability of any
Purchaser to sell the Registrable Securities covered thereby due to market conditions and except as
excused pursuant to Section 2(e)(ii) below, then, until the shares are eligible for resale under
Rule 144, in addition to any other rights each Purchaser may have hereunder or under applicable
law, the Company will pay (i) an amount in cash to each Purchaser other than the Affiliated Holder,
as partial liquidated damages and not as a penalty, equal to 1.0% of the aggregate purchase price
paid for Registrable Securities by such Purchaser pursuant to the Purchase Agreement up to a
maximum amount of all liquidated damages payable under this Agreement to any Purchaser of 10% of
the purchase price paid for Registrable Securities by such Purchaser pursuant to the Purchase
Agreement and (ii) for each thirty- (30) day period or pro rata for any portion thereof following
the occurrence of an event set forth in any of (A) or (B) above an amount in cash to each Purchaser
other than the Affiliated Holder, as partial liquidated damages and not as a penalty, equal to 1.0%
of the aggregate purchase price paid for Registrable Securities by such Purchaser pursuant to the
Purchase Agreement up to a maximum amount of all liquidated damages payable under this Agreement to
any Purchaser of 10% of the purchase price paid for Registrable Securities by such Purchaser
pursuant to the Purchase Agreement. The amounts payable as partial liquidated damages pursuant to
this paragraph shall be paid within three (3) Business Days of the occurrence of an event set forth
in any of (A) or (B) above and monthly thereafter within three (3) Business Days of the last day of
each month following the occurrence of an event set forth in any of (A) or (B) above until such
events are cured. If the Company fails to pay any partial liquidated damages pursuant to this
section in full within seven (7) days after the date payable, the Company will pay interest thereon
at a rate of 12% per annum (or such lesser amount that is permitted to be paid by applicable law)
to the Purchaser, accruing daily from the date such payments are due until such amounts, plus all
such interest thereon, are paid in full. Such payments shall be made to each Purchaser in
immediately available cash funds. For purposes of the obligations of the Company under this
Agreement, except in the case of any Purchasers who elect in writing not to have its Registrable
Securities included in the Registration Statement, no Registration Statement shall be considered
“effective” with respect to any Registrable Securities unless such Registration Statement lists the
Purchasers of such Registrable Securities as “Selling Stockholders” and includes such other
information as is required to be disclosed with respect to such Purchasers to permit them to sell
all of their Registrable Securities pursuant to such Registration Statement.
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(ii) The Holders hereby acknowledge that there may occasionally be times when the Company must
suspend the use of the Prospectus until such time as an amendment to the Registration Statement has
been filed by the Company and declared effective by the SEC or until the Company has amended or
supplemented such Prospectus. Each Holder hereby covenants that it will not sell any securities
pursuant to the Prospectus during the period commencing at the time at which the Company gives such
Holder notice of the suspension of the use of the Prospectus and ending at the time the Company
gives such Holder notice that such Holder may thereafter effect sales pursuant to the Prospectus.
Notwithstanding anything herein to the contrary, the Company shall not suspend use of the
Registration Statement by any Holder unless in the good faith determination of the Company such
suspension is required by the federal securities laws, including without limitation, the rules and
regulations promulgated thereunder; provided, however, that (i) except as otherwise
provided by clause (ii) below, in the event that such suspension is required by the need for an
amendment or supplement to the Registration Statement or the Prospectus, the Company shall promptly
file such required amendments or supplements as shall be necessary for the disposition of the
Registrable Securities to recommence and (ii) if the Board of Directors has determined in good
faith that offers and sales pursuant to the Prospectus should not be made by reason of the presence
of material undisclosed circumstances or developments with respect to which the disclosure that
would be required in the Registration Statement would be premature or would have a material adverse
effect on the Company and its business, the Company may suspend the use of the Prospectus and defer
the filing of any required amendment or supplement for the minimum period of time necessary to
avoid such material adverse effect (an “Allowed Delay”); provided, further, that in
the case of clause (ii) above, the Company shall not be entitled to exercise its right to block
such sales or suspend use of the Prospectus more than three times (not to exceed thirty (30) days
each) during the effectiveness of the Registration Statement nor more than a total of thirty (30)
days in any twelve (12)-month period.
3. Company Obligations. The Company will use all reasonable efforts to effect the
registration of the Registrable Securities in accordance with the terms hereof, and pursuant
thereto the Company will, as expeditiously as possible (but subject to Section 2(e)(ii)):
(a) use all reasonable efforts to cause such Registration Statement to become effective and,
to remain continuously effective for a period that will terminate upon the earlier of (i) the date
on which all Registrable Securities covered by such Registration Statement as amended from time to
time, have been sold; and (ii) the date on which all Registrable Securities covered by such
Registration Statement may be sold without volume limitations pursuant to Rule 144 (the
“Effectiveness Period”) and advise the Purchasers in writing when the Effectiveness Period has
expired;
(b) (i) prepare and file with the SEC such amendments and post-effective amendments to such
Registration Statement and the Prospectus as may be necessary to keep such Registration Statement
effective for the Effectiveness Period; (ii) cause the related Prospectus to be amended or
supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed
pursuant to Rule 424; (iii) respond as promptly as reasonably practicable to any comments received
from the SEC with respect to such Registration Statement or any amendment thereto and, as promptly
as reasonably practicable, upon request, provide the Purchasers true and complete copies of all
correspondence from and to the SEC relating to such
Registration Statement; and (iv) comply with the provisions of the Securities Act and the
Exchange Act with respect to the distribution of all of the Registrable Securities covered by such
Registration Statement;
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(c) Use all reasonable efforts to (i) prevent the issuance of any stop order or other
suspension of effectiveness and, (ii) if such order is issued, obtain the withdrawal of any such
order at the earliest possible moment;
(d) prior to any resale of Registrable Securities, use all reasonable efforts to register or
qualify or cooperate with the Holders and their counsel in connection with the registration or
qualification of such Registrable Securities for offer and sale under the securities or blue sky
laws of such jurisdictions requested by the Holders and do any and all other commercially
reasonable acts or things necessary or advisable to enable the distribution in such jurisdictions
of the Registrable Securities covered by the Registration Statement; provided, however, that the
Company shall not be required in connection therewith or as a condition thereto to (i) qualify to
do business in any jurisdiction where it would not otherwise be required to qualify but for this
Section 3(d), (ii) subject itself to general taxation in any jurisdiction where it would not
otherwise be so subject but for this Section 3(d) or (iii) file a general consent to service of
process in any such jurisdiction;
(e) use all reasonable efforts to cause all Registrable Securities covered by a Registration
Statement to be listed on each securities exchange, interdealer quotation system or other market
(including the OTC-BB) on which similar securities issued by the Company are then listed or traded;
(f) promptly notify the Purchasers and/or the applicable Affiliated Holder, at any time when a
Prospectus relating to Registrable Securities is required to be delivered under the Securities Act
(including during any period when the Company is in compliance with Rule 172), upon discovery that,
or upon the happening of any event as a result of which, the Prospectus included in a Registration
Statement, as then in effect, includes 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 then existing, and at the request of any such holder,
promptly prepare, file with the SEC pursuant to Rule 172 and furnish to such holder a supplement to
or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include an
untrue statement of a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading in light of the circumstances then
existing;
(g) promptly notify the Purchasers and/or the applicable Affiliated Holder (i) of any request
by the SEC or any other Federal or state governmental authority during the period of effectiveness
of each Registration Statement for amendments or supplements to such Registration Statement or
Prospectus or for additional information; (ii) of the issuance by the SEC or any other federal or
state governmental authority of any stop order suspending the effectiveness of the Registration
Statement covering any or all of the Registrable Securities or the initiation of any proceedings
for that purpose; (iii) of the receipt by the Company of any notification with respect to the
suspension of the qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction, or the initiation or threatening of
any proceeding for such purpose; and (iv) of the occurrence of any event or passage of time
that makes the financial statements included in such Registration Statement ineligible for
inclusion therein;
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(h) with a view to making available to the Purchasers and the Affiliated Holder the benefits
of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any
time permit the Purchasers or the Affiliated Holder to sell shares of Common Stock to the public
without registration, the Company covenants and agrees to: (i) make and keep public information
available, as those terms are understood and defined in Rule 144, until the earlier of (A) six
months after such date as all of the Registrable Securities may be resold pursuant to Rule 144 or
any other rule of similar effect or (B) such date as all of the Registrable Securities shall have
been resold; (ii) file with the SEC in a timely manner all reports and other documents required of
the Company under the Exchange Act (whether or not such reports and other documents are required to
be filed under the Exchange Act); and (iii) furnish to each Purchaser and Affiliated Holder upon
request, as long as such Purchaser or Affiliated Holder owns any Registrable Securities, (A) a
written statement by the Company that it has complied with the reporting requirements of the
Exchange Act and (B) such other information as may be reasonably requested in order to avail such
Purchaser or Affiliated Holder of any rule or regulation of the SEC that permits the selling of any
such Registrable Securities without registration; and
(i) the Company represents and warrants that (A) since December 31, 2008 through the date of
this Agreement, it has filed with the SEC in a timely manner all reports and other documents
required of the Company under the Exchange Act and (B) neither the Company nor any of its
consolidated or unconsolidated subsidiaries have, since the end of the last fiscal year for which
certified financial statements of the Company and its consolidated subsidiary were included in a
report filed pursuant to Section 13(a) or 15(d) of the Exchange Act through the date of this
Agreement: (1) failed to pay any dividend or sinking fund installment on preferred stock; or (2)
defaulted (x) on any installment or installments on indebtedness for borrowed money, or (y) on any
rental on one or more long term leases, which defaults in the aggregate are material to the
financial position of the Company and its consolidated and unconsolidated subsidiaries, taken as a
whole.
4. Information. The Company shall not disclose material nonpublic information to the
Purchasers, or to advisors to or representatives of the Purchasers, unless prior to disclosure of
such information the Company identifies such information as being material nonpublic information
and provides the Purchasers, such advisors and representatives with the opportunity to accept or
refuse to accept such material nonpublic information for review and any Purchaser wishing to obtain
such information enters into an appropriate confidentiality agreement with the Company with respect
thereto. The Purchasers and the Affiliated Holder agree and acknowledge that their access to
documents in connection with any review by the SEC of a Registration Statement, and their
participation in any related meetings or discussion with the Company or the SEC in connection
therewith in accordance with Section 2(d) may expose them to material nonpublic information and
that the Company will request the execution of appropriate confidentiality agreements as a
condition to providing any such access to any Purchaser or Affiliated Holder.
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5. Obligations of the Holders.
(a) Each Holder shall promptly furnish in writing 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 shall be reasonably required to effect the registration of
such Registrable Securities and shall execute such documents in connection with such registration
as the Company may reasonably request. At least five (5) Business Days prior to the first
anticipated filing date of any Registration Statement, the Company shall notify each Holder of the
information the Company requires from such Holder if such Holder elects to have any of the
Registrable Securities included in the Registration Statement. A Holder shall provide such
information to the Company at least two (2) Business Days prior to the first anticipated filing
date of such Registration Statement if such Holder elects to have any of the Registrable Securities
included in the Registration Statement.
(b) Each Holder, by its acceptance of the Registrable Securities agrees to cooperate with the
Company as reasonably requested by the Company in connection with the preparation and filing of a
Registration Statement hereunder, unless such Holder has notified the Company in writing of its
election to exclude all of its Registrable Securities from such Registration Statement.
(c) Each Holder agrees that, upon receipt of any notice from the Company of either (i) the
commencement of an Allowed Delay pursuant to Section 2(e)(ii), or (ii) the happening of an event
pursuant to Section 3(f) hereof, such Holder will immediately discontinue disposition of
Registrable Securities pursuant to the Registration Statement covering such Registrable Securities,
until the Holder is advised by the Company that a supplemented or amended prospectus has been filed
with the SEC and until any related post-effective amendment is declared effective and, if so
directed by the Company, the Holder shall deliver to the Company or destroy (and deliver to the
Company a certificate of destruction) all copies in the Holder’s possession of the Prospectus
covering the Registrable Securities current at the time of receipt of such notice.
6. Indemnification.
(a) Indemnification by the Company. The Company will indemnify and hold harmless each
Holder and its officers, directors, members, partners, employees, attorneys and agents, successors
and assigns, and each other person, if any, who controls such Holder within the meaning of the
Securities Act, against any losses, claims, damages or liabilities, joint or several, to which they
may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon: (i) any untrue
statement or alleged untrue statement of any material fact contained in any Registration Statement,
any preliminary prospectus or final prospectus contained therein, or any amendment or supplement
thereof; (ii) the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading; (iii) any violation or
alleged violation by the Company of the Securities Act, Exchange Act or any state securities law,
or any rule or regulation thereunder, in connection with the performance of its obligations under
this Agreement; or (iv) any failure to register or qualify the Registrable Securities included in
any such Registration in any state where the Company or
10
its agents has affirmatively undertaken or agreed in writing that the Company will undertake
such registration or qualification on a Holder’s behalf and will reimburse such Holder, and each
such officer, director or member and each such controlling person for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any such loss, claim,
damage or liability (or action in respect thereof); provided, however, that the
Company will not be liable for amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of the Company, which
consent shall not be unreasonably withheld, and the Company will not be liable in any such case to
the extent that any such loss, claim, damage, liability or expense arises out of or is based upon
(i) an untrue statement or alleged untrue statement or omission or alleged omission made in the
Registration Statement, the Prospectus or any amendment or supplement thereto in reliance upon and
in conformity with written information furnished to the Company by or on behalf of the Holder
expressly for use therein; (ii) the failure of the Holder to comply with the covenants and
agreements contained in Section 5 hereof and Section 6(a) of the Purchase Agreement respecting the
sale of the Shares; (iii) the inaccuracy of any representation or warranty made by the Holder
herein; or (iv) the use by such Holder of an outdated or defective Prospectus after the Company has
notified such Holder that the Prospectus is outdated or defective.
(b) Indemnification by the Holders. Each Holder agrees, severally but not jointly, to
indemnify and hold harmless, to the fullest extent permitted by law, the Company, its directors,
officers, employees, stockholders and each person who controls the Company (within the meaning of
the Securities Act) against any losses, claims, damages, liabilities and expense (including
reasonable attorney fees) resulting from any untrue statement of a material fact or any omission of
a material fact required to be stated in the Registration Statement or Prospectus or preliminary
prospectus or amendment or supplement thereto or necessary to make the statements therein not
misleading, to the extent, but only to the extent that such untrue statement or omission is
contained in any information furnished in writing by such Holder to the Company specifically for
inclusion in such Registration Statement or Prospectus or amendment or supplement thereto and will
reimburse the Company, its directors, officers, employees, stockholders and each person who
controls the Company (within the meaning of the Securities Act) for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any such loss, claim,
damage or liability (or action in respect thereof). In no event shall the liability of a Holder be
greater in amount than the dollar amount of the proceeds (net of all expense paid by such Holder in
connection with any claim relating to this Section 6) received by such Holder upon the sale of the
Registrable Securities included in the Registration Statement giving rise to such indemnification
obligation.
(c) Conduct of Indemnification Proceedings. Any person entitled to indemnification
hereunder shall (i) give prompt notice to the indemnifying party of any claim with respect to which
it seeks indemnification and (ii) permit such indemnifying party to assume the defense of such
claim with counsel reasonably satisfactory to the indemnified party; provided, that any
person entitled to indemnification hereunder shall have the right to employ separate counsel and to
participate in the defense of such claim, but the fees and expenses of such counsel shall be at the
expense of such person unless (a) the indemnifying party has agreed to pay such fees or expenses,
(b) the indemnifying party shall have failed to assume the defense of such claim and employ counsel
reasonably satisfactory to such person or (c) in the reasonable judgment of any such person, based
upon written legal opinion of its counsel satisfactory to the
11
indemnifying party, a conflict of interest exists between such person and the indemnifying
party with respect to such claims (in which case, if the person notifies the indemnifying party in
writing that such person elects to employ separate counsel at the expense of the indemnifying
party, the indemnifying party shall not have the right to assume the defense of such claim on
behalf of such person); and provided, further, that the failure of any indemnified
party to give notice as provided herein shall not relieve the indemnifying party of its obligations
hereunder, except to the extent that such failure to give notice shall materially adversely affect
the indemnifying party in the defense of any such claim or litigation. It is understood that the
indemnifying party shall not, in connection with any proceeding in the same jurisdiction, be liable
for fees or expenses of more than one separate firm of attorneys at any time for all such
indemnified parties. No indemnifying party will, except with the consent of the indemnified party,
consent to entry of any judgment or enter into any settlement that does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a
release from all liability in respect of such claim or litigation.
(d) Contribution. If for any reason the indemnification provided for in the preceding
paragraphs 6(a) and 6(b) is unavailable to an indemnified party or insufficient to hold it
harmless, other than as expressly specified therein, then the indemnifying party shall contribute
to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or
liability in such proportion as is appropriate to reflect the relative fault of the indemnified
party and the indemnifying party, as well as any other relevant equitable considerations. No
person guilty of fraudulent misrepresentation within the meaning of Section 11(f) of the Securities
Act shall be entitled to contribution from any person not guilty of such fraudulent
misrepresentation. In no event shall the contribution obligation of a holder of Registrable
Securities be greater in amount than the dollar amount of the proceeds (net of all expenses paid by
such Holder in connection with any claim relating to this Section 6 and the amount of any damages
such holder has otherwise been required to pay by reason of such untrue or alleged untrue statement
or omission or alleged omission) received by it upon the sale of the Registrable Securities giving
rise to such contribution obligation.
7. Miscellaneous.
(a) Amendments and Waivers. This Agreement may be amended, modified or waived only by
a writing signed by the Company, the Major Purchasers and the Affiliated Purchasers.
(b) Notices. All notices and other communications provided for or permitted hereunder
shall be made as set forth in Section 10 of the Purchase Agreement.
(c) Assignments and Transfers by Holders. The provisions of this Agreement shall be
binding upon and inure to the benefit of the Holders and their respective successors and assigns.
A Holder may transfer or assign, in whole or from time to time in part, to one or more persons its
rights hereunder in connection with the transfer of Registrable Securities by such Holder to such
person; provided, that (i) such Holder complies with all laws applicable thereto and
provides written notice of assignment to the Company promptly after such assignment is effected and
(ii) the transferee agrees in writing to be bound by this Agreement as if it were a party hereto.
12
(d) Assignments and Transfers by the Company. This Agreement may not be assigned by
the Company (whether by operation of law or otherwise) without the prior written consent of the
Required Holders; provided, however, that the Company may assign its rights and
delegate its duties hereunder to any surviving or successor corporation in connection with a merger
or consolidation of the Company with another corporation, or a sale, transfer or other disposition
of all or substantially all of the Company’s assets to another corporation, without the prior
written consent of the Required Holders and the Affiliated Holder, after notice duly given by the
Company to each Holder.
(e) Benefits of the Agreement. The terms and conditions of this Agreement shall inure
to the benefit of and be binding upon the respective permitted successors and assigns of the
parties. Nothing in this Agreement, express or implied, is intended to confer upon any party other
than the parties hereto or their respective successors and assigns any rights, remedies,
obligations, or liabilities under or by reason of this Agreement, except as expressly provided in
this Agreement.
(f) Counterparts; Electronic Execution. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which together shall constitute
one and the same instrument. This Agreement may also be executed via e-mail or facsimile, which
shall be deemed an original.
(g) Titles and Subtitles. The titles and subtitles used in this Agreement are used
for convenience only and are not to be considered in construing or interpreting this Agreement.
(h) Severability. Any provision of this Agreement that is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions hereof but shall be
interpreted as if it were written so as to be enforceable to the maximum extent permitted by
applicable law, and any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction. To the extent
permitted by applicable law, the parties hereby waive any provision of law which renders any
provisions hereof prohibited or unenforceable in any respect.
(i) Further Assurances. The parties shall execute and deliver all such further
instruments and documents and take all such other actions as may reasonably be required to carry
out the transactions contemplated hereby and to evidence the fulfillment of the agreements herein
contained.
(j) 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. This
Agreement supersedes all prior agreements and understandings between the parties with respect to
such subject matter.
13
(k) Governing Law; Consent to Jurisdiction; Waiver of Jury Trial. This Agreement
shall be governed by, and construed in accordance with, the internal laws of the State
of New York without regard to the choice of law principles thereof. Each of the parties
hereto irrevocably submits to the exclusive jurisdiction of the courts of the State of New York
located in New York County and the United States District Court for the Southern District of New
York for the purpose of any suit, action, proceeding or judgment relating to or arising out of this
Agreement and the transactions contemplated hereby. Service of process in connection with any such
suit, action or proceeding may be served on each party hereto anywhere in the world by the same
methods as are specified for the giving of notices under this Agreement. Each of the parties
hereto irrevocably consents to the jurisdiction of any such court in any such suit, action or
proceeding and to the laying of venue in such court. Each party hereto irrevocably waives any
objection to the laying of venue of any such suit, action or proceeding brought in such courts and
irrevocably waives any claim that any such suit, action or proceeding brought in any such court has
been brought in an inconvenient forum. EACH OF THE PARTIES HERETO WAIVES ANY RIGHT TO REQUEST A
TRIAL BY JURY IN ANY LITIGATION WITH RESPECT TO THIS AGREEMENT AND REPRESENTS THAT COUNSEL HAS BEEN
CONSULTED SPECIFICALLY AS TO THIS WAIVER.
(l) Obligations of Holders. The Company acknowledges that the obligations of each
Holder under this Agreement are several and not joint with the obligations of any other Holder, and
no Holder shall be responsible in any way for the performance of the obligations of any other
Holder under this Agreement. The decision of each Holder to enter into to this Agreement has been
made by such Holder independently of any other Holder. The Company further acknowledges that
nothing contained in this Agreement, and no action taken by any Holder pursuant hereto, shall be
deemed to constitute the Holders as a partnership, an association, a joint venture or any other
kind of entity, or create a presumption that the Holders are in any way acting in concert or as a
group with respect to such obligations or the transactions contemplated hereby. Each Holder shall
be entitled to independently protect and enforce its rights, including without limitation, the
rights arising out of this Agreement, and it shall not be necessary for any other Holder to be
joined as an additional party in any proceeding for such purpose.
Each Holder has been represented by its own separate legal counsel in their review and
negotiation of this Agreement and with respect to the transactions contemplated hereby. The
Company has elected to provide all Holders with the same terms and Agreement for the convenience of
the Company and not because it was required or requested to do so by the Holders. The Company
acknowledges that such procedure with respect to this Agreement in no way creates a presumption
that the Holders are in any way acting in concert or as a group with respect to this Agreement or
the transactions contemplated hereby or thereby.
[Signature pages follow]
14
IN WITNESS WHEREOF, the parties have executed this Agreement or caused their duly authorized
officers to execute this Agreement as of the date first above written.
| OSTEOLOGIX, INC. |
||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: | Xxxxxxx X. Xxxxx | |||
| Title: | CEO | |||
Signature Page to Registration Rights Agreement
| PURCHASERS: NORDIC BIOTECH OPPORTUNITY FUND K/S |
||||
| By: | /s/ Xxxxxxxxx Xxxxxx | |||
| Name: | X. Xxxxxx | |||
| Title: | Partner | |||
| By: | /s/ Xxxxxxxxx Xxxxxx | |||
| Name: | for X. Xxxxxxxxxxxx by POA | |||
| Title: | Partner | |||
Signature Page to Registration Rights Agreement
EXHIBIT A
PLAN OF DISTRIBUTION
The shares of common stock offered by this prospectus are being offered by selling
stockholders and their donees, pledgees, transferees or other successors-in-interest. The common
stock may be sold, transferred or otherwise disposed of on any stock exchange, the OTC Bulletin
Board or any other market or trading facility on which the shares are traded or in private
transactions. These dispositions may be at fixed prices, at prevailing market prices at the time
of sale, at prices related to the prevailing market price, at varying prices determined at the time
of sale, or at negotiated prices.
The selling stockholders may use any one or more of the following methods when disposing of
shares or interests therein:
| • | ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers; | ||
| • | block trades in which the broker-dealer will attempt to sell the shares as agent, but may position and resell a portion of the block as principal to facilitate the transaction; | ||
| • | through brokers, dealers or underwriters who may act solely as agents; | ||
| • | purchases by a broker-dealer as principal and resale by the broker-dealer for its account; | ||
| • | an exchange distribution in accordance with the rules of the applicable exchange; | ||
| • | privately negotiated transactions; | ||
| • | short sales effected after the date the registration statement of which this Prospectus is a part is declared effective by the SEC; | ||
| • | through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise; | ||
| • | broker-dealers may agree with the selling stockholders to sell a specified number of such shares at a stipulated price per share; or | ||
| • | a combination of any such methods of sale. |
The selling stockholders may, from time to time, pledge or grant a security interest in some
or all of the shares of common stock owned by them and, if they default in the performance of their
secured obligations, the pledgees or secured parties may offer and sell the shares of common stock,
from time to time, under this prospectus, or under an amendment or supplement to this prospectus
under Rule 424(b)(3) or other applicable provision of the Securities Act amending the list of
selling stockholders to include the pledgee, transferee or other successors in interest as selling
stockholders under this prospectus. The selling stockholders also may transfer
the shares of common stock in other circumstances, in which case the transferees, pledgees or
other successors in interest will be the selling beneficial owners for purposes of this prospectus.
A-1
In connection with the sale of our common stock or interests therein, the selling stockholders
may enter into hedging transactions with broker-dealers or other financial institutions, which may
in turn engage in short sales of the common stock in the course of hedging the positions they
assume. The selling stockholders may also sell shares of our common stock short and deliver these
securities to close out their short positions, or loan or pledge the common stock to broker-dealers
that in turn may sell these securities. The selling stockholders may also enter into option or
other transactions with broker-dealers or other financial institutions or the creation of one or
more derivative securities which require the delivery to such broker-dealer or other financial
institution of shares offered by this prospectus, which shares such broker-dealer or other
financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect
such transaction).
Brokers, dealers, underwriters or agents participating in the distribution of the common stock
as agents may receive compensation in the form of commissions, discounts or concessions from the
selling stockholders and/or purchasers of the common stock for whom the broker-dealers may act as
agents. The compensation paid to a particular broker-dealer may be less than or in excess of
customary concessions, but except as set forth in a supplement to this prospectus, in the case of
an agency transaction not in excess of a customary brokerage commission in compliance with NASDR
Rule 2440; and in the case of a principal transaction a markup or markdown in compliance with NASDR
IM-2440. In no event shall any broker-dealer receive fees, commissions and markups that, in the
aggregate, would exceed eight percent (8%). At the time a particular offer of shares of common
stock is made, a prospectus supplement will be distributed that will set forth the names of any
agents, underwriters or dealers, any compensation from the selling stockholders and any other
required information. Neither we nor the selling stockholders can presently estimate the amount of
compensation that any agent will receive. We know of no existing arrangements between the selling
stockholders, any other stockholders, broker, dealer, underwriter or agent relating to the sale or
distribution of our common stock.
The selling stockholders also may resell all or a portion of the shares in open market
transactions in reliance upon Rule 144 under the Securities Act of 1933, provided that they meet
the criteria and conform to the requirements of that rule.
Any selling stockholder who is a registered broker-dealer will be deemed to be an underwriter.
Each of [
] and [
] are broker dealers or broker dealer
affiliates. Each of [
] and [
] and entities associated with or
controlled by these entities are underwriters within the meaning of the Securities Act in
connection with the sale of securities under this prospectus. In addition, each of the other
selling stockholders may be deemed to be underwriters within the meaning of the Securities Act of
1933. See “Selling Stockholders.” Any profits on the sale of the common stock sold under this
prospectus by selling stockholders who are or who are deemed to be underwriters, and any discount,
commissions or agent’s commissions received by such selling stockholders may be deemed to be
underwriting discounts and commissions under the Securities Act. Because the selling stockholders
are or may be deemed to be underwriters, the selling stockholders will be subject to prospectus
delivery requirements of the Securities Act, including
Rule 172 thereunder. Underwriters are subject to certain statutory liabilities, including but
not limited to, Section 11, 12 and 17 of the Securities Act. We are also required to pay certain
fees and expenses incurred by us incidental to the registration of the shares of common stock.
A-2
To the extent required, the shares of our common stock to be sold, the names of the selling
stockholders, the respective purchase prices and public offering prices, the names of any agents,
dealer or underwriter, any applicable commissions or discounts with respect to a particular offer
will be set forth in an accompanying prospectus supplement or, if appropriate, a post-effective
amendment to the registration statement that includes this prospectus.
In order to comply with the securities laws of some states, if applicable, the common stock
may be sold in these jurisdictions only through registered or licensed brokers or dealers. In
addition, in some states the common stock may not be sold unless it has been registered or
qualified for sale or an exemption from registration or qualification requirements is available and
is complied with.
Under applicable rules and regulations under the Exchange Act, any person engaged in the
distribution of the securities offered under this prospectus may not simultaneously engage in
market making activities with respect to the common stock for the applicable restricted period, as
defined in Regulation M, prior to the commencement of the distribution. In addition, the selling
stockholders will be subject to applicable provisions of the Exchange Act and the rules and
regulations thereunder, including Regulation M, which may limit the timing of purchases and sales
of shares of the common stock by the selling stockholders or any other person. We intend to make
copies of this prospectus available to the selling stockholders and have informed them of the need
to deliver a copy of this prospectus to each purchaser at or prior to the time of the sale.
We have agreed to indemnify the selling stockholders against liabilities, including
liabilities under the Securities Act and state securities laws, relating to the registration of the
shares offered by this prospectus.
We have agreed to keep the registration statement of which this prospectus constitutes a part
effective until the earlier of (1) such time as all of the shares covered by this prospectus have
been disposed of or (2) the date on which all of the shares may be sold without volume limitations
pursuant to Rule 144 of the Securities Act.
A-3
