Exhibit 4.5
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "Agreement") made as of the 23rd day
of October, 2001, by and between EP MEDSYSTEMS, INC. (the "Company") and
MEDTRONIC, INC. (the "Purchaser").
RECITALS
WHEREAS, the Company and the Purchaser are parties to a Preferred Stock
Purchase Agreement, dated as of October 23, 2001 (the "Purchase Agreement"); and
WHEREAS, in order to induce the Company to enter into the Purchase
Agreement and to induce the Purchaser to invest funds in the Company pursuant to
the Purchase Agreement, the Purchaser and the Company hereby agree that this
Agreement shall govern the rights of the Purchaser to cause the Company to
register shares of Common Stock issuable to the Purchasers upon the conversion
of the Preferred Shares acquired pursuant to the Purchase Agreement and certain
other matters as set forth herein;
NOW, THEREFORE, in consideration of the mutual promises herein made, and
in consideration of the representations, warranties and covenants herein
contained, the parties hereto agree as follows. Capitalized terms used herein
and not otherwise defined shall have the meanings ascribed to them in the
Purchase Agreement.
SECTION 1. REGISTRATION RIGHTS
The Company covenants and agrees as follows:
1.1 Definitions. For purposes of this Section 1:
(a) The term "Act" means the Securities Act of 1933, as
amended.
(b) The term "Form S-3" means such form under the Act as in
effect on the date hereof or any registration form under the Act subsequently
adopted by the SEC which permits inclusion or incorporation of substantial
information by reference to other documents filed by the Company with the SEC.
(c) The term "Holder" means the Purchaser and any transferees
of Registrable Securities permitted in accordance with Section 1.12.
(d) The term "Other Securities" means all securities which may
be, or are requested to be, included in a registration, other than newly issued
shares of Common Stock issued upon conversion of the Preferred Shares not issued
pursuant to the exercise or conversion of warrants, options or other convertible
securities, except as provided in the registration rights agreements and letter
agreements identified in Schedule 2.10 hereto.
Ex.4.5 - Page 1
(e) The term "register," "registered," and "registration"
refer to a registration effected by preparing and filing a registration
statement or similar document in compliance with the Act, and the declaration or
ordering of effectiveness of such registration statement or document.
(f) The term "Registrable Securities" means (i) the Common
Stock issued or issuable upon conversion of the Preferred Shares purchased
pursuant to the Purchase Agreement, and (ii) any Common Stock of the Company
issued as (or issuable upon the conversion or exercise of any warrant, right or
other security that is issued as) a dividend or other distribution with respect
to, or in exchange for, or in replacement of, the shares referenced in (i) above
(collectively, the "Common Shares").
(g) "Registration Statements" means, collectively, the
registration under the Securities Act on Form S-3 or any successor form of the
Registrable Securities, including the Shelf Registration Statement (as defined
below) and "Registration Statement" shall mean, individually, any such
Registration Statement.
(h) The term "SEC" means the Securities and Exchange
Commission.
1.2 Shelf Registration.
(a) If, at any time after the Purchaser has a right to convert
the Preferred Shares to Common Stock, the Purchaser requests in writing, the
Company shall promptly, subject to the limitations specified in this Agreement,
(i) file a shelf registration statement on Form S-3 or, if a Form S-3 is not
available for use by the Company, any other form available to the Company as
soon as practicable but in any event within thirty (30) days from the date of
such written request (the "Filing Date") covering the registration under the Act
of all requested Common Shares then outstanding to be offered or sold on a
delayed or continuous basis as provided by this Agreement, pursuant to Rule 415
of the Act (the "Shelf Registration Statement"); and (ii) maintain the
effectiveness of the Shelf Registration Statement until such date as is the
earlier of (A) the date on which all of the Registrable Securities have been
sold and (B) the date on which the Registrable Securities may be immediately
sold without restriction (including without limitation as to volume by each
Holder thereof) and without registration under the Securities Act.
(b) If any offering pursuant to Section l.2 (a) hereof
involves an underwritten offering, an underwriter will be selected by the
Holders of at least three-fourths (3/4) of the Registrable Securities then
outstanding and shall be acceptable to the Company. In such event, the right of
any Holder to include its Registrable Securities in such registration shall be
conditioned upon such Holder's participation in such underwriting and the
inclusion of such Holder's Registrable Securities in the underwriting to the
extent provided herein. All Holders proposing to distribute Registrable
Securities through such underwriting shall (together with the Company as
provided in Section 1.4(e)) enter into an underwriting agreement in customary
form with the underwriter or underwriters selected for such underwriting.
Notwithstanding any other provision of this Section 1.2, if the underwriter
advises the Holders in writing that marketing factors require a limitation of
the number of shares to be underwritten, then the number of shares of
Registrable Securities that may be included in the underwriting shall be
allocated among all
Ex.4.5 - Page 2
Holders thereof in proportion (as nearly as practicable) to the amount of
Registrable Securities of the Company owned by each Holder and requested by such
Holder to be included in such underwriting; provided, however, that the number
of shares of Registrable Securities to be included in such underwriting shall
not be reduced unless all Other Securities are first entirely excluded from the
underwriting.
(c) Notwithstanding the foregoing, if the Company shall
furnish to the Holders a certificate signed by the Chief Executive Officer or
President of the Company stating that, in the good faith judgment of the Board
of Directors of the Company, it would be seriously detrimental (a "Detrimental
Condition") to the Company and its shareholders for a registration statement to
be filed or to become or remain effective, as the case may be, (i) the Company
shall have the right to defer taking action with respect to the filing of the
Shelf Registration Statement, as the case may be, for a period of not more than
ninety (90) days after the Filing Date, (ii) in case a Shelf Registration
Statement has been filed but has not become effective, the Company may cause
such registration statement to be withdrawn or may postpone amending or
supplementing such registration statement until such Detrimental Condition no
longer exists, but in no event for more than ninety (90) days, (iii) in case a
Shelf Registration Statement has been filed and has become effective, the
Company may postpone amending or supplementing such registration statement until
such Detrimental Condition no longer exists, but in no event for more than
ninety (90) days or (iv) require all Holders to suspend or cease selling any
Registrable Securities until such Detrimental Condition no longer exists, but in
no event for more than ninety (90) days, provided that the Company's right
pursuant to this Section 1.2(c) to give notice of a Detrimental Condition may
not be exercised more than once in any twelve (12) month period hereunder. The
Company shall give written notice of its determination to postpone or withdraw a
registration statement and of the fact that the Detrimental Condition for such
postponement or withdrawal no longer exists, in each case, promptly after the
occurrence thereof. The following events or circumstances may be a Detrimental
Condition: a pending material acquisition, merger or sale or purchase of assets,
pending or threatened material litigation, pending or threatened material
regulatory or governmental action, pending material change in the business,
prospects, condition (financial or other) or properties of the Company in each
case, only for so long as disclosure thereof has not been made in any press
release or any filing under the Securities and Exchange Act of 1934, as amended
(the "Exchange Act"). The foregoing list is for illustrative purposes only and
is not meant to be exclusive.
(d) If the Company shall give any notice of postponement or
withdrawal of any registration statement or of suspension of selling the
Registrable Securities in accordance with subsection (c) above, the Company
shall not, during the period of postponement, withdrawal or suspension pursuant
to clauses (i), (ii), (iii) or (iv) of the prior paragraph, register any Common
Stock, other than pursuant to a registration statement on Form S-4 or S-8 (or an
equivalent registration form then in effect). Each Holder of Registrable
Securities agrees that, upon receipt of any notice from the Company that the
Company has determined to withdraw any registration statement pursuant to the
immediately preceding paragraph, such Holder will discontinue its disposition of
Registrable Securities pursuant to such registration statement and, if so
directed by the Company, will deliver to the Company (at the Company's expense)
all copies, other than permanent file copies, then in such Holder's possession
of the prospectus covering such Registrable Securities that was in effect at the
time of receipt of such notice. If the Company shall have withdrawn or
prematurely terminated a
Ex.4.5 - Page 3
registration statement filed under this Section 1.2 (whether pursuant to the
immediately preceding paragraph, or as a result of any stop order, injunction or
other order or requirement of the SEC or any other governmental agency or
court), the Company shall not be considered to have effected an effective
registration for the purposes of this Agreement until the Company shall have
filed a new registration statement covering the Registrable Securities covered
by the withdrawn registration statement and such registration statement shall
have been declared effective and shall not have been withdrawn. If the Company
shall give any notice of withdrawal or postponement of a registration statement,
the Company shall, at such time as the Detrimental Condition that caused such
withdrawal or postponement no longer exists (but in no event later than ninety
(90) days after the date of the postponement or withdrawal), use its reasonable
best efforts to effect the registration under the Act of the Registrable
Securities covered by the withdrawn or postponed registration statement in
accordance with this Section 1.2 (unless the Holder shall have withdrawn such
request).
1.3 Company Registration. If (but without any obligation to do so)
the Company proposes to register (including for this purpose a registration
effected by the Company for stockholders other than the Holders) any of its
stock or other securities under the Act in connection with the public offering
of such securities (other than a registration relating solely to the sale of
securities to participants in a Company stock option, stock purchase or similar
plan or a SEC Rule 145 transaction) at any time after the date hereof, the
Company shall, at such applicable time, promptly give each Holder of Registrable
Securities written notice of such registration. Upon the written request of each
Holder of such securities given within twenty (20) days after mailing of such
notice by the Company in accordance with Section 2.5, the Company shall, subject
to the provisions of Section 1.8 and Section 2.10, cause to be registered under
the Act only those securities held by each Holder properly noticed pursuant to
this Section 1.3 that each such Holder has requested to be registered. No
registration effected pursuant to this Section 1.3 shall relieve the Company of
its obligations to effect the required registration pursuant to Section 1.2. Any
Holder shall have the right to withdraw his request for inclusion of its
properly noticed securities under this Section 1.3 in any registration statement
pursuant to this Section 1.3 by giving written notice to the Company of its
request to withdraw prior to the filing of such registration statement.
1.4 Obligations of the Company. When required under this Section 1
to effect the registration of the Registrable Securities, the Company shall, as
expeditiously as reasonably possible:
(a) Prepare and file with the SEC a Shelf Registration
Statement or, if applicable, any other form of registration statement, as the
case may be, with respect to the Registrable Securities and use its reasonable
best efforts to cause such registration statement to become effective within one
hundred twenty (120) days after such registration statement was filed and to
keep such Shelf Registration Statement effective for the period specified in
Section 1.2(a); provided, however, that before filing a registration statement
or prospectus or any amendments or supplements thereto, or comparable statements
under securities or "blue sky" laws of any jurisdiction, the Company will
furnish to one counsel for the Holders (the "Holders' Counsel") participating in
the planned offering (selected by the Holders of three-fourths of the
Registrable Securities then outstanding included in such registration), and the
underwriters, if
Ex.4.5 - Page 4
any, copies of all such documents proposed to be filed (including all exhibits
thereto), which documents will be subject to the reasonable review and
reasonable comment of such counsel.
(b) Prepare and file with the SEC as soon as practicable such
amendments and supplements to such registration statement and the prospectus
used in connection with such registration statement as may be necessary to
comply with the provisions of the Act with respect to the disposition of all
securities covered by such registration statement.
(c) Furnish to the Holders whose Registrable Securities are
covered by the Shelf Registration Statement such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Act, and such other documents as they may reasonably request
in order to facilitate the disposition of Registrable Securities owned by them.
(d) Use its best efforts to register and qualify the
securities covered by the Shelf Registration Statement under such other
securities or "blue sky" laws of such jurisdictions as shall be reasonably
requested by the Holders whose Registrable Securities are covered by the Shelf
Registration Statement; provided that the Company shall not be required in
connection therewith or as a condition thereto to qualify to do business or to
file a general consent to service of process in any such states or jurisdictions
unless the Company is already subject to service in such jurisdiction.
(e) In the event that the Registrable Securities are to be
sold through an underwritten public offering, enter into and perform its
obligations under an underwriting agreement, in usual and customary form, with
the managing underwriter of such offering. The Holders proposing to distribute
Registrable Securities through such underwritten public offering shall also
enter into and perform their obligations under such an agreement.
(f) In the event that the Registrable Securities are to be
sold through an underwritten public offering, use its reasonable best efforts to
furnish, on the date that such Registrable Securities are delivered to the
underwriters for sale in connection with a registration pursuant to this Section
1, (i) an opinion, dated such date, of the counsel representing the Company for
the purposes of such registration, in form and substance as is customarily given
to underwriters in an underwritten public offering, addressed to the
underwriters, and (ii) a letter, dated such date, from the independent certified
public accountants of the Company addressed to the underwriters, stating that
such accountants are independent public accountants within the meaning of the
Act and the applicable published rules and regulations thereunder, and otherwise
in form and in substance as is customarily given by independent certified public
accountants to underwriters in connection with an underwritten public offering.
(g) Promptly notify (i) each Holder selling Registrable
Securities covered by such registration statement and each managing underwriter,
if any: (A) when the registration statement, the prospectus or any prospectus
supplement related thereto or post-effective amendment to the registration
statement has been filed and, with respect to the registration statement or any
post-effective amendment, when the same has become effective, (B) of the
issuance by the SEC of any stop order suspending the effectiveness of the
registration statement or the initiation of any proceedings for that purpose,
(C) of the receipt by the Company
Ex.4.5 - Page 5
of any notification with respect to the suspension of the qualification of any
Registrable Securities for sale under the securities or "blue sky" laws of any
jurisdiction or the initiation of any proceeding for such purpose, and (D) when
a prospectus relating to the registration statement is required to be delivered
under the Act of the happening of any event as a result of which the prospectus
included in such registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in the
light of the circumstances then existing; and (ii) Holders' Counsel and each
managing underwriter of any request by the SEC for amendments or supplements to
such registration statement or prospectus related thereto or for additional
information. If the notification relates to an event described in clause (i)(D),
the Company shall, in accordance with paragraph (b) of this Section 1.4,
promptly prepare and file with the SEC and furnish to each Holder selling
Registrable Securities covered by such registration statement and each managing
underwriter, if any, a reasonable number of copies of a prospectus supplemented
or amended so that, as thereafter delivered to the purchasers of such
Registrable Securities, 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 in the light of the circumstances
under which they were made not misleading.
(h) Cooperate with the selling Holders of Registrable
Securities and the managing underwriter, if any, to facilitate the timely
preparation and delivery of certificates not bearing any restrictive legends
representing the Registrable Securities to be sold, and cause such Registrable
Securities to be issued in such denominations and registered in such names in
accordance with the underwriting agreement prior to any sale of Registrable
Securities to the underwriters or, if not an underwritten offering, in
accordance with the instructions of the selling Holders of Registrable
Securities and instruct any transfer agent and registrar of Registrable
Securities to release any stop transfer orders in respect thereto.
(i) Comply with all applicable rules and regulations of the
SEC, and make generally available to its security holders, as soon as reasonably
practicable after the effective date of the registration statement (and in any
event within sixteen (16) months thereafter), an earnings statement (which need
not be audited) covering the period of at least twelve consecutive months
beginning with the first day of the Company's first calendar quarter after the
effective date of the registration statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the Act and Rule 158 thereunder.
(j) (i) Cause all such Registrable Securities covered by such
Registration Statement to be listed on the principal securities exchange on
which similar securities issued by the Company are then listed (if any), if the
listing of such Registrable Securities is then permitted under the rules of such
exchange, or (ii) if no similar securities are then so listed, to either cause
all such Registrable Securities to be listed on a national securities exchange
or to secure designation of all such Registrable Securities as a National
Association of Securities Dealers, Inc. Automated Quotation System ("NASDAQ")
"national market system security" within the meaning of Rule 11Aa 2-1 of the
Exchange Act or, failing that, secure NASDAQ authorization for such shares and,
without limiting the generality of the foregoing, use its reasonable best
efforts to take all actions that may be required by the Company as the issuer of
such Registrable Securities in order to facilitate the managing underwriter's
arranging for the
Ex.4.5 - Page 6
registration of at least two market makers as such with respect to such shares
with the National Association of Securities Dealers, Inc. (the "NASD").
(k) Provide and cause to be maintained a transfer agent and
registrar for all such Registrable Securities covered by such registration
statement not later than the effective date of such Registration Statement.
(l) Deliver promptly to Holders' Counsel and each underwriter,
if any, copies of all correspondence between the SEC and the Company, its
counsel or auditors and all memoranda relating to discussions with the SEC or
its staff with respect to the registration statement, other than those portions
of any such memoranda which contain information subject to attorney-client
privilege with respect to the Company, and, upon receipt of such confidentiality
agreements as the Company may reasonably request, make reasonably available for
inspection by Holders' Counsel, by any underwriter, if any, participating in any
disposition to be effected pursuant to such registration statement and any
attorney, accountant or other agent retained by any such underwriter, all
pertinent financial and other records, pertinent corporate documents and
properties of the Company, and cause all of the Company's officers, directors
and employees to supply all information reasonably requested by Holders' Counsel
or such underwriter, attorney, accountant or agent in connection with such
registration statement.
(m) Use reasonable best efforts to obtain the withdrawal of
any order suspending the effectiveness of the registration statement.
(n) Upon written request, furnish to each Holder participating
in the offering and the managing underwriter, without charge, at least one
conformed copy of the registration statement and any post-effective amendments
thereto, including financial statements and schedules, all documents
incorporated therein by reference and all exhibits (including those incorporated
by reference).
1.5 Furnish Information. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Section 1
(including without limitation, to maintain the accuracy of information
previously furnished by the Holders for use in the Shelf Registration Statement)
with respect to the Registrable Securities of the Holders whose Registrable
Securities are covered by the Shelf Registration Statement that each of such
Holders shall furnish to the Company such information regarding itself, the
Registrable Securities held by it, and the intended method of disposition of
such securities as shall be reasonably requested by the Company or required to
effect the registration of such Holders' Registrable Securities.
1.6 Expenses of Registration.
(a) "Expenses" shall mean any and all fees and expenses
incident to the Company's performance of or compliance with this Article 1,
including, without limitation: (i) SEC, stock exchange or NASD registration and
filing fees and all listing fees and fees with respect to the inclusion of
securities in NASDAQ, (ii) fees and expenses of compliance with state securities
or "blue sky" laws and in connection with the preparation of a "blue sky"
survey, including without limitation, reasonable fees and expenses of "blue sky"
counsel, (iii) printing and copying expenses, (iv) messenger and delivery
expenses, (v) fees and disbursements of
Ex.4.5 - Page 7
counsel for the Company and (vi) fees and disbursements of the Company's
independent public accountants (including the expenses of any audit and/or "cold
comfort" letter) and fees and expenses of other persons, including special
experts, retained by the Company.
(b) The Company shall pay all Expenses (other than
underwriting discounts and commissions and any transfer taxes) with respect to
any registration pursuant to Section 1.2, whether or not such registration
statement becomes effective or remains effective for the period contemplated by
Section 1.2(a).
(c) Notwithstanding the foregoing, (i) the provisions of this
Section 1.6 shall be deemed amended to the extent necessary to cause these
expense provisions to comply with "blue sky" laws of each state in which the
offering is made and (ii) in connection with any registration hereunder, each
Holder of Registrable Securities being registered shall pay all underwriting
discounts and commissions and any transfer taxes, if any, attributable to the
sale of such Registrable Securities, pro rata with respect to payments of
discounts and commissions in accordance with the number of shares sold in the
offering by such Holder, and (iii) the Company shall, in the case of all
registration under this Section 1, be responsible for all its internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties).
1.7 Expenses of Company Registration. The Company shall bear and pay
all Expenses incurred in connection with any registration filing or
qualification of Registrable Securities with respect to the registrations
pursuant to Section 1.3 for each Holder (which right may be assigned as provided
in Section 1.12), but excluding underwriting discounts and commissions and
transfer taxes, if any, relating to Registrable Securities.
1.8 Underwriting Requirements. In connection with any offering
involving an underwriting of shares of the Company's capital stock, the Company
shall not be required under Section 1.3 to include any of the Holders'
securities in such underwriting unless such Holders accept the terms of the
underwriting as agreed upon between the Company and the underwriters selected by
the Company (or by other persons entitled to select the underwriters), and then
only in such quantity as the underwriters determine in their sole discretion
will not jeopardize the success of the offering by the Company. If the total
amount of securities, including Registrable Securities, requested by
shareholders to be included in such offering exceeds the amount of securities
sold other than by the Company that the underwriters determine in their sole
discretion is compatible with the success of the offering, then the Company
shall be required to include in the offering only that number of such
securities, including Registrable Securities, that the underwriters determine in
their sole discretion will not jeopardize the success of the offering (the
securities so included to be apportioned as provided in Section 2.10 and
thereafter pro rata among the selling shareholders according to the total amount
of securities entitled to be included therein owned by each selling shareholder
or in such other proportions as shall mutually be agreed to by such selling
shareholders, with Other Securities being eliminated in their entirety first).
For purposes of the preceding parenthetical concerning apportionment, for any
selling shareholder that is a Holder of Registrable Securities and that is a
partnership or corporate partners, retired partners and shareholders of such
Holder, or the estates and family members of any such partners and retired
partners and any trusts for the benefit of any of the foregoing persons shall be
deemed to be a single "selling shareholder," and any pro-rata reduction with
Ex.4.5 - Page 8
respect to such "selling shareholder" shall be based upon the aggregate amount
of shares carrying registration rights owned by all entities and individuals
included in such "selling shareholder," as defined in this sentence.
1.9 Delay of Registration. The Holders shall not have any right to
obtain or seek an injunction restraining or otherwise delaying any such
registration as the result of any controversy that might arise with respect to
the interpretation or implementation of this Section 1.
1.10 Indemnification. In the event any Registrable Securities are
included in a registration statement under this Section 1:
(a) To the extent permitted by law, the Company will indemnify
and hold harmless the Holder whose Registrable Securities are covered by a
Registration Statement, its directors, officers, fiduciaries, employees and
shareholders, members, managers, or general or limited partners (and the
directors, officers, employees and shareholders thereof), any underwriter (as
defined in the Act) for such Holders and each person, if any, who controls such
Holders or underwriter within the meaning of the Act or the Exchange Act, and
each officer, director, employee, shareholder or partner of such underwriter,
against any losses, claims, damages, or liabilities (joint or several) or
actions or proceedings (whether commenced or threatened) and expenses (including
reasonable fees of counsel and any amounts paid in any settlement effected with
the Company's prior written consent), to which they may become subject under the
Act, the Exchange Act or any state securities law, insofar as such losses,
claims, damages, or liabilities (or actions or proceedings in respect thereof)
("Claims") or expenses arise out of or are based upon any of the following
statements, omissions or violations (each, a "Violation"): (i) any untrue
statement or alleged untrue statement of a material fact contained in such
registration statement, including any preliminary prospectus, summary prospectus
or final prospectus contained therein or any amendments or supplements thereto,
together with documents incorporated by reference therein, (ii) the omission or
alleged omission to state therein a material fact required to be stated therein,
or necessary to make the statements therein not misleading, or (iii) any
violation or alleged violation by the Company of the Act, the Exchange Act, any
state securities law or any rule or regulation promulgated under the Act, the
Exchange Act, any state securities law or NASDAQ; and the Company will pay, as
incurred, to such Holders, and each such underwriter or controlling person any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability, expense or
action or proceeding; provided, however, that (A) the indemnity agreement
contained in this Section 1.10 shall not apply to amounts paid in settlement of
any such Claim if such settlement is effected without the consent of the Company
(which consent shall not be unreasonably withheld), (B) the Company shall not be
liable in any case for any such Claim to the extent that it arises out of or is
based upon a Violation which occurs in reliance upon and in conformity with
written information furnished expressly for use in connection with such
registration by any such Holders, or any such underwriter or controlling person.
Such indemnity and reimbursement of expenses shall remain in full force and
effect regardless of any investigation made by or on behalf of such indemnified
party and shall survive the transfer of such securities by such Holder.
Ex.4.5 - Page 9
(b) To the extent permitted by law, each Holder whose
Registrable Securities are covered by a Registration Statement will, severally
and not jointly, indemnify and hold harmless the Company, each of its directors,
officers, fiduciaries and employees and each person, if any, who controls the
Company within the meaning of the Act or the Exchange Act, any underwriter, and
any controlling person of any such underwriter, against any losses, claims,
damages, or liabilities (joint or several) to which any of the foregoing persons
may become subject, under the Act, or the Exchange Act, 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 by such Holder expressly for use
in connection with such registration; and such Holder will pay, as incurred, any
legal or other expenses reasonably incurred by any person intended to be
indemnified pursuant to this Section 1.10, in connection with investigating or
defending any such Claim; provided, however, that the indemnity agreement
contained in this Section 1.10 shall not apply to amounts paid in settlement of
any such Claim if such settlement is effected without the consent of such
Holder, which consent shall not be unreasonably withheld; provided that, in no
event shall any indemnity under this Section 1.10 exceed the net proceeds from
the offering received by such Holder. Such indemnity and reimbursement of
expenses shall remain in full force and effect regardless of any investigation
made by or on behalf of such indemnified party and shall survive the transfer of
such securities by such Holder.
(c) Promptly after receipt by an indemnified party under this
Section 1.10 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 1.10, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party
(together with all other indemnified parties) shall have the right to retain one
separate counsel, with the fees and expenses to be paid by the indemnifying
party, if (i) representation of such indemnified party by the counsel retained
by the indemnifying party would be inappropriate due to actual or potential
differing interests between such indemnified party and any other party
represented by such counsel in such proceeding; or (ii) the indemnifying party
fails to take reasonable steps necessary to defend diligently the action or
proceeding within thirty (30) days after receiving notice from such indemnified
party. The failure to deliver written notice to the indemnifying party within a
reasonable time of the commencement of any such action, if prejudicial to its
ability to defend such action, shall relieve such indemnifying party of any
liability to the indemnified party under this Section 1.10, but the omission so
to deliver written notice to the indemnifying party will not relieve it of any
liability that it may have to any indemnified party otherwise than under this
Section 1.10.
(d) If the indemnification provided for in this Section 1.10
is held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any Claim or expense referred to therein, then the
indemnifying party, in lieu of indemnifying such indemnified party hereunder,
shall contribute to the amount paid or payable by such indemnified party as a
result of such Claim or expense in such proportion as is appropriate to reflect
the relative fault of the indemnifying party on the one hand and of the
indemnified party on the other in connection with the statements or omissions
that resulted in such Claim or expense as well as
Ex.4.5 - Page 10
any other relevant equitable considerations. The relative fault of the
indemnifying party and of the indemnified party shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission to state a material fact relates to information
supplied by the indemnifying party or by the indemnified party and the parties'
relative intent, knowledge, access to information, and opportunity to correct or
prevent such statement or omission. If, however, the allocation provided in the
first sentence of this paragraph is not permitted by applicable law, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified parry in such proportion as is appropriate to reflect not only such
relative faults but also the relative benefits of the indemnifying party and the
indemnified party as well as any other relevant equitable considerations. The
parties hereto agree that it would not be just and equitable if contributions
pursuant to this Section 1.10(d) were to be determined by pro rata allocation or
by any other method of allocation which does not take account of the equitable
considerations referred to in the preceding sentences of this Section 1.10(d).
The amount paid or payable in respect of any Claim shall be deemed to include
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending such Claim. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. Notwithstanding anything in this Section 1.10(d)
to the contrary, no indemnifying party (other than the Company) shall be
required pursuant to this Section 1.10(d) to contribute any amount in excess of
the net proceeds received by such indemnifying party from the sale of
Registrable Securities in the offering to which the Claims of the indemnified
parties relate, less the amount of any indemnification payment made by such
indemnifying party pursuant to Section 1.10(b).
(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public offering are
in conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control.
(f) The obligations of the Company and Holders under this
Section 1.10 shall survive the completion of any offering of Registrable
Securities in a registration statement under this Section 1, and otherwise.
1.11 Reports Under the Securities Exchange Act of 1934. With a view
to making available to the Holders the benefits of Rule 144 promulgated under
the Act and any other rule or regulation of the SEC that may at any time permit
a Holder to sell securities of the Company to the public without registration or
pursuant to a registration on Form S-3, the Company agrees to:
(a) make and keep public information available, as those terms
are understood and defined in SEC Rule 144, at all times;
(b) take such action as is necessary to maintain the Holder's
ability to utilize Form S-3 for the sale of their Registrable Securities;
(c) file with the SEC in a timely manner all reports and other
documents required of the Company under the Act and the Exchange Act; and
Ex.4.5 - Page 11
(d) furnish to any Holder, so long as the Holder owns over one
percent (1%) of the outstanding common stock of the Company, forthwith upon
request (i) a written statement by the Company that it has complied with the
reporting requirements of SEC Rule 144, the Act and the Exchange Act (at any
time after it so qualifies), (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 in
availing any Holder of any rule or regulation of the SEC which permits the
selling of any such securities without registration or pursuant to such form.
1.12 Assignment of Registration Rights.
(a) The rights to cause the Company to register Registrable
Securities pursuant to this Section 1 may be assigned (but only with all related
obligations) by a Holder to a transferee or assignees of such securities who
acquires at least one percent (1%) of the Registrable Securities (as adjusted
for stock splits, combinations and the like), provided: (i) the Company is,
within a reasonable time after such transfer, 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 assigned; (ii) such
transferee or assignee agrees in writing to be bound by and subject to the terms
and conditions of this Agreement, including, without limitation, the provisions
of Section 1.14 below; and (iii) such assignment shall be effective only if such
transfer is exempt from registration under the Act and in accordance with the
terms of the Purchase Agreement. For the purposes of determining the number of
shares of Registrable Securities held by a transferee or assignee, the holding
of transferees and assignees of a partnership who are partners or retired
partners of such partnership (including spouses and ancestors, lineal
descendants and siblings of such partners or spouses who acquire Registrable
Securities by gift, will or intestate succession) shall be aggregated together
with the partnership; provided that all assignees and transferees who would not
qualify individually for assignment of registration rights shall have a single
attorney-in-fact for the purpose of exercising any rights, receiving notices or
taking any action under this Section 1.
(b) Subject to clause (a) above, the right to have the Company
register the Registrable Securities pursuant to this Section 1 may not otherwise
be assigned; provided, however, that (i) any heir or the estate of a Holder
which acquires the Registrable Securities from such Holder by will or intestate
succession shall be entitled to have the Company register the Registrable
Securities pursuant to this Section 1 (provided that such heirs or such estate
shall have a single attorney-in-fact for the purpose of exercising any rights,
receiving any notices or taking any action under this Section 1), and (ii) any
individual Holder may sell, assign or transfer Registrable Securities to his or
her spouse or children or to a trust established for the benefit of his or her
spouse, children or himself or herself, and such transferee shall he entitled to
have the Company register the Registrable Securities pursuant to this Section 1,
if, and only if, such transferee agrees in writing to be bound by the terms of
this Agreement. In each such event and for purposes of this Agreement, the term
"Holder" as used herein shall include all such heirs, such estate or such
transferees.
1.13 Limitations on Subsequent Registration Rights. From and after
the date of this Agreement, the Company shall not, without the prior written
consent of the Holders of three-fourths of the Registrable Securities then
outstanding, enter into any agreement with any holder
Ex.4.5 - Page 12
or prospective holder of any securities of the Company that would allow such
holder or prospective holder to include such securities in any registration
filed under Section 1.2 hereof, unless under the terms of such agreement, such
holder or prospective holder may include such securities in any such
registration only to the extent that the inclusion of his securities will not
reduce the amount of the Registrable Securities of the Holders that is included.
1.14 "Market Stand-Off" Agreement. Each Holder hereby agrees that,
during the period of duration specified by the Company and an underwriter of
Common Stock or other securities of the Company, following the effective date of
a registration statement of the Company filed under the Act, it shall not, to
the extent requested by the Company and such underwriter, directly or indirectly
sell, offer to sell, contract to sell (including, without limitation, any short
sale), grant any option to purchase or otherwise transfer or dispose of (other
than to donees who agree to be similarly bound) any securities of the Company
held by it at any time during such period except Common Stock included in such
registration, and each Holder agrees to enter into an agreement to such effect
with such underwriter; provided, however, that (a) all affiliates, officers and
directors of the Company enter into similar agreements, (b) such market
stand-off time period shall not exceed ninety (90) days, and (c) the market
stand-off period provided by this Section 1.14 shall be effective with respect
to only one registration statement designated by the Company. If the
underwriters agree to any waivers of such restrictions, then the Holders shall
be entitled to sell, transfer or dispose of the same number or amount of
securities of the Company as the person or entity receiving such waiver, upon
the same terms and conditions set forth in such waiver,
In order to enforce the foregoing covenant, the Company may impose
stop-transfer instructions with respect to the Registrable Securities of the
Holders (and the shares or securities of every other person subject to the
foregoing restriction) until the end of such period.
1.15 No Required Sale. Nothing in this Agreement shall be deemed to
create an independent obligation on the part of any Holder to sell any
Registrable Securities pursuant to any effective registration statement.
SECTION 2. MISCELLANEOUS
2.1 Successors and Assigns. Except as otherwise provided herein, and
provided that the transfer or assignment is in accordance with the terms hereof,
the terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and permitted assigns of the parties
(including any permitted transferees of any shares of Registrable Securities).
Nothing in this Agreement, express or implied, is intended to confer upon any
party other than the parties hereto or their respective successors and permitted
assigns any rights, remedies, obligations, or liabilities under or by reason of
this Agreement, except as expressly provided in this Agreement.
2.2 Governing Law. This Agreement shall be governed by and construed
under the laws of the State of New Jersey without regard to principles of
conflicts or choice of laws.
Ex.4.5 - Page 13
2.3 Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
2.4 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.
2.5 Notices. Any notice or other communications required or
permitted hereunder shall be deemed given when delivered personally, or upon
receipt by the party entitled to receive the notice when sent by registered or
certified mail, postage prepaid, or by a recognized international overnight
courier service addressed as follows or to such other address or addresses as
may hereafter be furnished in writing by notice similarly given by one party to
the other:
To the Company: EP MedSystems, Inc.
000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxx Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx, Chief Executive Officer
To the Purchaser: Medtronic, Inc.
000 Xxxxxxxxx Xxxxxxx XX
Xxxxxxxxxxx, XX 00000-0000
with separate copies thereof addressed to
Attention: General Counsel
Mail Stop LC400
Telecopier No.: (000) 000-0000
and
Attention: Vice President and Chief Development Officer
Mail Stop LC390
Telecopier No.: (000) 000-0000
2.6 Amendments and Waivers. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the Holders of
three-fourths of the Registrable Securities then outstanding. Any amendment or
waiver effected in accordance with this Section 2.6 shall be binding upon each
Holder of any Registrable Securities then outstanding, each future Holder of all
such Registrable Securities, and the Company.
2.7 Severability. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, such provision shall be excluded
from this Agreement and the balance of the Agreement shall be interpreted as if
such provision were so excluded and shall be enforceable in accordance with its
terms.
Ex.4.5 - Page 14
2.8 Nominees for Beneficial Owners. If Registrable Securities are
held by a nominee for the beneficial owner thereof, the beneficial owner thereof
may, at its option, be treated as the Holder of such Registrable Securities for
purposes of any request or other action by any Holder or Holders of Registrable
Securities pursuant to this Agreement (or any determination of any number or
percentage of shares constituting Registrable Securities held by any Holder or
Holders of Registrable Securities contemplated by this Agreement), provided that
the Company shall have received assurances reasonably satisfactory to it of such
beneficial ownership.
2.9 No Inconsistent Agreements. Except as provided in Schedule 2.10
hereto, the rights granted to the Holders of Registrable Securities hereunder do
not in any way conflict with and are not inconsistent with any other agreements
to which the Company is a party or by which it is bound. Without the prior
written consent of the Holders of the majority of the Registrable Securities
then outstanding, neither the Company nor any Holder will, on or after the date
of this Agreement, enter into any agreement with respect to its securities which
is inconsistent with the rights granted in this Agreement or otherwise conflicts
with the provisions hereof, other than any lock-up agreement with the
underwriters in connection with any registered offering effected hereunder,
pursuant to which the Company shall agree not to register for sale, and the
Company shall agree not to sell or otherwise dispose of, Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock, for
a specified period following the registered offering.
2.10 Prior Registration Rights. Each Purchaser acknowledges that its
rights and obligations under this Agreement are granted subject to the prior
registration rights identified in Schedule 2.10 hereto.
2.11 No Piggyback on Registrations. Except as provided in Schedule
2.10 hereto, neither the Company nor any of its security holders (other than the
Holders in such capacity pursuant hereto) may include securities of the Company
in a registration statement hereunder, and the Company shall not after the date
hereof enter into any agreement providing such right to any of its security
holders, unless the right so granted is subject in all respects to the prior
rights in full of the Holders set forth herein (but only to the extent such
rights are then in effect), and is not otherwise in conflict with the provisions
of this Agreement.
2.12 Entire Agreement. This Agreement (including the Exhibits
hereto, if any) constitutes the full and entire understanding and agreement
between the parties with regard to the subjects hereof and thereof.
[signature page follows]
Ex.4.5 - Page 15
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first above written.
EP MEDSYSTEMS, INC.
By: s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Chief Executive Officer
MEDTRONIC, INC.
By: s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President and Chief Development
Officer
Ex.4.5 - Page 16
SCHEDULE 2.10
1. Registration Rights Agreement between the Company and the Purchasers named
therein, dated as of March 28, 2001.
2. Registration Rights Agreement between the Company and the Purchasers named
therein, dated as of August 31, 1999
3. Registration Rights Agreement between the Company and the Purchasers named
therein, dated April 9, 1998.
Ex.4.5 - Page 17
