EXHIBIT 10.2
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and entered
into as of September 28, 2001, between Organogenesis, Inc., a corporation
organized and existing under the laws of the State of Delaware (the "Company"),
and Novartis Pharma AG, a corporation organized under the laws of Switzerland
("Novartis", or individually and with its permitted successors and assigns, the
"Investor"). This Agreement is made pursuant to the Securities Purchase
Agreement, dated as February 23, 2001 among the Company and the Investor (the
"Securities Purchase Agreement"). Capitalized terms used herein and not
otherwise defined herein shall have the respective meanings set forth in the
Securities Purchase Agreement.
WHEREAS, in order to induce the Company to enter into the Securities
Purchase Agreement and to induce the Investor to invest funds in the Company
pursuant to the Securities Purchase Agreement, the Investor and the Company
hereby agree that this Agreement shall govern the rights of the Investor to
cause the Company to register for resale the shares of Common Stock issuable to
the Investor and certain other matters as set forth herein:
NOW, THEREFORE, the parties hereto mutually agree as follows:
SECTION 1. DEFINITIONS. As used in this Agreement, the following terms
shall have the following meanings:
"Advice" shall have the meaning set forth in Section 3.
"Affiliate" means, with respect to any Person, any other Person that
directly or indirectly controls or is controlled by or under common control with
such Person. For the purposes of this definition, "Control," when used with
respect to any Person, means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or otherwise;
and the terms of "Affiliated," "Controlling" and "Controlled" have meanings
correlative to the foregoing.
"Business Day" shall mean any day, other than a Saturday, Sunday or one on
which banks are authorized by law to close in New York, New York.
"Closing(s)" shall have the meaning set forth in the Securities Purchase
Agreement.
"Closing Date(s)" shall have the meaning set forth in the Securities
Purchase Agreement.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means the Company's Common Stock, par value $.01 per share,
and any other common equities issued by the Company, and any other shares of
stock issued or issuable with respect thereto (whether by way of a stock
dividend or stock split or in exchange for or in replacement of such shares or
otherwise in connection with a combination of shares, recapitalization, merger,
consolidation or other corporate reorganization).
"Effectiveness Date" means the forty-fifth (45th) day following the
applicable Filing Date.
"Effectiveness Period" shall have the meaning set forth in Section 2(a).
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Filing Date" means the tenth Business Day following any Closing Date if
the Resale Registration Statement is not effective as of such Closing Date;
provided, that, if the Resale Registration Statement is effective as of any
Closing and subsequently the effectiveness of such Resale Registration Statement
is suspended or otherwise withdrawn or limited by the Commission, the Filing
Date shall mean the tenth Business Day following such action by the Commission.
"Holder" or "Holders" means the holder or holders, as the case may be, from
time to time of Registrable Securities including, without limitation, the
Investor.
"Indemnified Party" shall have the meaning set forth in Section 5(c).
"Indemnifying Party" shall have the meaning set forth in Section 5(c).
"Investor" has the meaning specified in the Introduction to this Agreement.
"Losses" shall have the meaning set forth in Section 5(a).
"Person" means an individual or a corporation, partnership, trust,
incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or political subdivision
thereof) or other entity of any kind.
"Proceeding" means an action, claim, suit, investigation or proceeding
(including, without limitation, an investigation or partial proceeding, such as
a deposition), whether commenced or threatened.
"Prospectus" means the prospectus included in the Registration Statement
(or Resale Registration Statement, as the case may be) (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 the Registration Statement (or
Resale Registration Statement, as the case may be), and 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
effected by preparing and filing one or more registration statements of the
Company in compliance with the Securities Act and the declaration or ordering of
effectiveness of such registration statement(s) by the Commission.
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"Registrable Securities" means shares of Common Stock held by the Investor
at any time (it being understood that for the purposes of this Agreement, a
Person will be deemed to be a holder of Registrable Securities whenever such
Person has the right to acquire or obtain from the Company any Registrable
Securities, whether or not such acquisition has actually been effected)
including, without limitation, the Underlying Shares issuable upon conversion or
redemption (as applicable) of the Preferred Stock or the Convertible Notes shall
be deemed Registrable Securities, whether or not such issuance has actually been
effected.
"Registration Statement" means the registration statements contemplated by
Section 2(a), including (in each case) the Prospectus, amendments and
supplements to such registration statement or Prospectus, including pre- and
post-effective amendments, all exhibits thereto, and all material incorporated
by reference or deemed to be incorporated by reference in such registration
statement.
"Resale Registration Statement" means the registration statements
contemplated by Section 2(c), including (in each case) the Prospectus,
amendments and supplements to such registration statement or Prospectus,
including pre- and post-effective amendments, all exhibits thereto, and all
material incorporated by reference or deemed to be incorporated by reference in
such registration statement.
"Rule 144" means Rule 144 promulgated by the Commission pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission having substantially the
same effect as such Rule.
"Rule 158" means Rule 158 promulgated by the Commission pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission having substantially the
same effect as such Rule.
"Securities Act" means the Securities Act of 1933, as amended.
Section 2. Registration. (a) Mandatory Registration. On or prior to each
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Filing Date, the Company shall prepare and file with the Commission a
Registration Statement covering all or any such portion of the Registrable
Securities issued at the Closing and any other Registrable Securities
beneficially owned by the Investor as the Investor shall specify by written
notice given to the Company. The Registration Statement shall be on Form S-3
pursuant to Rule 415 of the Securities Act or any successor rule providing for
the offering of securities on a continuous basis (except if otherwise directed
by the Investor in accordance herewith or if the Company is not then eligible to
register for resale the Registrable Securities on Form S-3 pursuant to Rule 415,
then such registration shall be on any available form as determined by the
Investor). The Company shall (i) not permit any securities other than the
Registrable Securities to be included in the Registration Statement and (ii) use
its best efforts to cause the Registration Statement to be declared effective
under the Securities Act as promptly as possible after the filing thereof; but
in any event prior to the Effectiveness Date, and to keep such Registration
Statement continuously effective under the Securities Act until the earlier of
(A) the sale of all of the Registrable Securities included in such Registration
Statement; or (B) such time as in the opinion of counsel to the Company (in form
and substance reasonably satisfactory to the Investor) that all of the
Registrable Securities included in
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such Registration Statement are eligible for resale pursuant to Rule 144(k) of
the Securities Act (the "Effectiveness Period"); provided, however, that the
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Company shall not be deemed to have used its best efforts to keep the
Registration Statement effective during the Effectiveness Period if it
voluntarily takes any action that would result in the Investor not being able to
sell the Registrable Securities covered by such Registration Statement during
the Effectiveness Period, unless such action is required under applicable law or
the Company has filed a post-effective amendment to the Registration Statement
and the Commission has not declared it effective. If the Investor intends to
distribute the Registrable Securities covered by the Registration Statement by
means of an underwriting, the Investor shall promptly notify the Company.
(b) Piggy-Back Registrations. If at any time after each Closing Date, the
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Company proposes to register (including for this purpose a registration effected
by the Company for stockholders other than the Investor) any of its stock or
other securities under the Securities Act in connection with the public offering
of such securities other than (i) a registration relating solely to the sale of
securities to current or former employees, officers, advisors, consultants or
directors of the Company or any subsidiary of the Company pursuant to a stock
purchase plan or stock option or stock awards approved by the Board of Directors
of the Company, (ii) a registration on Form S-4 or any similar successor form or
(iii) a registration on any form which does not include substantially the same
information as would be required to be included in a registration statement
covering the sale of the Registrable Securities, the Company shall at such time,
give the Investor written notice of its intention to effect such registration at
least fifteen (15) days before the anticipated filing of any such registration
statement of the Company. Upon the written request of the Investor given within
ten (10) days after giving of such notice by the Company pursuant to the terms
of this Agreement, the Company shall use its best efforts to include in such
registration statement all or any part of the Registrable Securities the
Investor requests to be registered. No rights to registration of Registrable
Securities under this Section shall be construed to limit any registration
otherwise required hereunder. Notwithstanding the foregoing, if the proposed
offering under this Section 2(b) is to be effectuated through an underwritten
public offering and if the managing underwriter shall advise the Company and the
Holders of Registrable Securities in writing that, in its opinion, the inclusion
of all of the Registrable Securities could materially adversely affect the
offering, then the managing underwriter may elect to exclude all or such portion
of such Registrable Securities from such offering; provided that the managing
underwriter may only exclude any of the Registrable Securities to the same
extent on a pro rata basis, that it excludes securities of other holders. The
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Company shall have the right to withdraw any such proposed registration
statement, or to withdraw the same after the filing, but prior to the effective
date thereof without thereby incurring any liability to the holders of
Registrable Securities.
(c) Resale Registration. If at any time prior to 60 days after delivery
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of a Put Option Notice, in the good-faith reasonable judgement of the Investor,
the public resale of the Registrable Securities to be issued at the Closing
relating to such Put Option Notice by the Investor shall be restricted or
limited (as to amount or timing) by the terms and conditions of the Securities
Act and the rules and regulations promulgated thereunder (including, without
limitation, by reason of the Holder's status as an Affiliate of the Company or
the failure of the Company to effect the registration statement relating to the
registered issuance of the Securities and/or the Underlying Shares to the
Investor pursuant to Sections 7.5 and 9.5 of the Securities Purchase Agreement,
and as a consequence of such failure, the Registrable Securities to be issued at
the Closing relating to
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such Put Option Notice will not be freely tradeable by the Investor) as of such
Closing, then, upon request of the Investor, the Company shall promptly file a
registration statement on Form S-3 (the "Resale Registration Statement")
pursuant to Rule 415 of the Securities Act or any successor rule providing for
the offering of securities on a continuous basis (except if otherwise directed
by the Investor in accordance herewith or if the Company is not then eligible to
register for resale the Registrable Securities on Form S-3 pursuant to Rule 415,
then such registration shall be on any available form as determined by the
Investor) registering the resale of the Registrable Securities to be issued at
the Closing relating to such Put Option Notice by the Investor. The Company
shall (i) not permit any securities other than the Registrable Securities to be
included in the Resale Registration Statement and (ii) use it best efforts to
cause the Resale Registration Statement to be declared effective under the
Securities Act as promptly as possible after the filing thereof, but in any
event prior to the applicable Closing Date, and to keep such Resale Registration
Statement continuously effective under the Securities Act until the earlier of
(A) the sale of all of the Registrable Securities included in such Resale
Registration Statement or (B) the expiration of the Effectiveness Period. If
the Investor intends to distribute the Registrable Securities covered by the
Resale Registration Statement by means of an underwriting, the Investor shall
promptly notify the Company.
(d) Liquidated Damages. If the Registration Statement referred to in
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Section 2(a) is not filed on or before the Filing Date or is not declared
effective on or before the Effectiveness Date, the Conversion Price of the
Convertible Notes shall be decreased as provided in Section 5.4 of the
Convertible Notes.
3. Registration Procedures. In connection with the Company's registration
obligations pursuant to Section 2(a) or Section 2(c) of this Agreement, the
Company shall:
(a) Prepare and file with the Commission on or prior to the Filing Date
(or if registration is to be made pursuant to Section 2(c) as promptly as
practicable after the Investor request for such filing), a Registration
Statement (or Resale Registration Statement, as the case may be) in accordance
with the method or methods of distribution thereof as specified by the Investor,
and cause the Registration Statement (or Resale Registration Statement, as the
case may be) to become effective as soon as possible, but in no event later than
the Effectiveness Date (or if registration is to be made pursuant to Section
2(c), the applicable Closing Date), and to remain effective as provided herein;
provided, however, that not less than seven (7) Business Days prior to the
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filing of the Registration Statement (or Resale Registration Statement, as the
case may be) or any related Prospectus or any amendment or supplement thereto
(including any document that would be incorporated or deemed to be incorporated
therein by reference), the Company shall (i) furnish to the Investor copies of
all such documents proposed to be filed, which documents (other than those
incorporated or deemed to be incorporated by reference) will be subject to the
review of the Investor and its counsel, and (ii) cause its officers and
directors, counsel and independent certified public accountants to respond to
such inquiries as shall be necessary, in the reasonable opinion of counsel to
the Investor, to conduct a reasonable investigation within the meaning of the
Securities Act. The Company shall not file the Registration Statement (or
Resale Registration Statement, as the case may be) or any such Prospectus or any
amendments or supplements thereto to which the Investor or its counsel, shall
reasonably object in writing within five (5) Business Days of their receipt
thereof.
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(b) (i) Prepare and file with the Commission such amendments, including
post-effective amendments, to the Registration Statement (or Resale Registration
Statement, as the case may be) as may be necessary to keep the Registration
Statement (or Resale Registration Statement, as the case may be) continuously
effective as to the applicable Registrable Securities for the Effectiveness
Period and prepare and file with the Commission such additional registration
statements in order to register for resale under the Securities Act all of the
Registrable Securities; (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 (or any similar provisions then in
force) promulgated under the Securities Act; (iii) respond as promptly as
practicable to any comments received from the Commission with respect to the
Registration Statement (or Resale Registration Statement, as the case may be) or
any amendment thereto and promptly provide the Investor true and complete copies
of all correspondence from and to the Commission relating to the Registration
Statement (or Resale Registration Statement, as the case may be); and (iv)
comply with the provisions of the Securities Act and the Exchange Act with
respect to the disposition of all Registrable Securities covered by the
Registration Statement (or Resale Registration Statement, as the case may be)
during the applicable period in accordance with the intended methods of
disposition by the Investor thereof set forth in the Registration Statement (or
Resale Registration Statement, as the case may be) as so amended or in such
Prospectus as so supplemented.
(c) Notify the Investor and its counsel immediately (and, in the case
of(c)(i)(A) below, not less than five (5) Business Days prior to such filing)
and (if requested by the Investor) confirm such notice in writing no later than
one (1) Business Day following the day (i)(A) when a Prospectus or any
Prospectus supplement or post-effective amendment to the Registration Statement
(or Resale Registration Statement, as the case may be) is proposed to be filed;
(B) when the Commission notifies the Company whether there will be a "review" of
such Registration Statement (or Resale Registration Statement, as the case may
be) and whenever the Commission comments in writing on such Registration
Statement (or Resale Registration Statement, as the case may be) and (C) with
respect to the Registration Statement (or Resale Registration Statement, as the
case may be) or any post-effective amendment, when the same has become
effective; (ii) of any request by the Commission or any other Federal or state
governmental authority for amendments or supplements to the Registration
Statement (or Resale Registration Statement, as the case may be) or Prospectus
or for additional information; (iii) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement (or Resale
Registration Statement, as the case may be) covering any or all of the
Registrable Securities or the initiation of any Proceedings for that purpose;
(iv) if at any time any of the representations and warranties of the Company
contained in any agreement contemplated hereby ceases to be true and correct in
all material respects; (v) 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 (vi) of
the occurrence of any event that makes any statement made in the Registration
Statement (or Resale Registration Statement, as the case may be) or Prospectus
or any document incorporated or deemed to be incorporated therein by reference
untrue in any material respect or that requires any revisions to the
Registration Statement (or Resale Registration Statement, as the case may be),
Prospectus or other documents so that, in the case of the Registration Statement
(or Resale Registration Statement, as the case may be) or the Prospectus, as the
case may be, it will not contain any untrue statement of a material fact
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or omit to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading.
(d) Use its best efforts to prevent the issuance of, or, if issued, obtain
the withdrawal of (i) any order suspending the effectiveness of the Registration
Statement (or Resale Registration Statement, as the case may be) or (ii) any
suspension of the qualification (or exemption from qualification) of any of the
Registrable Securities for sale in any jurisdiction, at the earliest practicable
moment.
(e) Furnish to each of the Investor and its counsel, without charge, at
least one conformed copy of the Registration Statement (or Resale Registration
Statement, as the case may be) and each amendment thereto, including financial
statements and schedules, all documents incorporated or deemed to be
incorporated therein by reference, and all exhibits to the extent requested by
such Person (including those previously furnished or incorporated by reference)
promptly after the filing of such documents with the Commission.
(f) Promptly deliver to the Investor, without charge, as many copies of
the Prospectus or Prospectuses (including each form of prospectus) and each
amendment or supplement thereto as the Investor may reasonably request; and the
Company hereby consents to the use of such Prospectus and each amendment or
supplement thereto by the Investor in connection with the offering and sale of
the Registrable Securities covered by such Prospectus and any amendment or
supplement thereto.
(g) Use its best efforts to register or qualify or cooperate with the
Investor and its counsel in connection with the registration or qualification
(or exemption from such registration or qualification) of such Registrable
Securities for offer and sale under the securities or Blue Sky laws of such
jurisdictions within the United States as the Investor or, in the case of an
underwritten public offering, the managing underwriter shall request in writing,
to keep each such registration or qualification (or exemption therefrom)
effective during the Effectiveness Period and to do any and all other acts or
things necessary or advisable to enable the disposition in such jurisdictions of
the Registrable Securities covered by a Registration Statement (or Resale
Registration Statement, as the case may be); provided, however, that the Company
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shall not be required to qualify generally to do business in any jurisdiction
where it is not then so qualified or to take any action that would subject it to
general service of process in any such jurisdiction where it is not then so
subject or subject the Company to any material tax in any such jurisdiction
where it is not then so subject.
(h) Cooperate with the Investor to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold pursuant
to a Registration Statement (or Resale Registration Statement, as the case may
be), which certificates shall be free of all restrictive legends (other than
legends relating to the existence of any shareholder rights or similar agreement
then in effect to which the Investor is a party and which legend appears on all
other certificates for the Company's Common Stock), and to enable such
Registrable Securities to be in such denominations and registered in such name
as the Investor may request at least two Business Days prior to any sale of
Registrable Securities.
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(i) Upon the occurrence of any event contemplated by Section 3(c)(vi), as
promptly as practicable, prepare a supplement or amendment, including a post-
effective amendment, to the Registration Statement (or Resale Registration
Statement, as the case may be) or a supplement to the related Prospectus or any
document incorporated or deemed to be incorporated therein by reference, and
file any other required document so that, as thereafter delivered, neither the
Registration Statement (or Resale Registration Statement, as the case may be)
nor such Prospectus will contain 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 light of the circumstances under which they were made,
not misleading.
(j) If a requested registration pursuant to Section 2(a) or 2(c) hereof
involves an underwritten public offering, then the managing underwriter shall be
chosen by the Investor, with the approval of the Company (which approval shall
not be unreasonably withheld). The Company shall promptly enter into an
underwriting agreement with the Investor's proposed underwriter(s) in such form
and containing such provisions as are customary in the securities business for
such an arrangement between such underwriter(s) and companies of the Company's
size and investment stature. The Company shall require all other holders of
Registrable Securities, if any, who are entitled to participate in any such
registration to sign the underwriting agreement and the Company shall condition
such Holder's participation in such underwritten public offering on the
fulfillment of this condition. The Company shall furnish on the date that the
Registrable Shares are delivered to the underwriters for sale pursuant to such
registration (x) an opinion of counsel covering those legal matters that are
customary for such an underwriting and (y) a letter dated as of the date thereof
from an independent public accountant covering those accounting matters that are
customary for such an underwriting.
(k) Use its best efforts to cause all Registrable Securities covered by
such Registration Statement (or Resale Registration Statement, as the case may
be) to be listed on the American Stock Exchange or Other Exchange pursuant to
terms of the Securities Purchase Agreement.
(l) Make available for inspection by the Investor, a representative of the
Investor and an attorney or accountant retained by the Investor or underwriters,
at the offices where normally kept, during reasonable business hours, all
financial and other records, pertinent corporate documents and properties of the
Company and its subsidiaries, and cause the officers, directors, agents and
employees of the Company and its subsidiaries to supply all information in each
case reasonably requested by the Investor, its attorney or accountant in
connection with the Registration Statement (or Resale Registration Statement, as
the case may be); provided, however, that any information that is determined in
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good faith by the Company in writing to be of a confidential nature at the time
of delivery of such information shall not be available to such Persons unless
and until such Persons shall have entered into a customary confidentiality
agreement with the Company with respect thereto.
(m) Comply with all applicable rules and regulations of the Commission and
make generally available to its security holders earning statements satisfying
the provisions of Section 11(a) of the Securities Act and Rule 158 not later
than 45 days after the end of any 12-month period (or 90 days after the end of
any 12-month period if such period is a fiscal year) commencing on the first day
of the first fiscal quarter of the Company after the effective date of the
Registration
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Statement (or Resale Registration Statement, as the case may be), which
statement shall cover said 12-month period, or such shorter periods as is
consistent with the requirements of Rule 158.
(n) The Company may require the Investor to furnish to the Company such
information regarding the distribution of such Registrable Securities as is
required by law to be disclosed in the Registration Statement (or Resale
Registration Statement, as the case may be) and the Company may exclude from
registration the Registrable Securities should the Investor unreasonably fail to
furnish such information within a reasonable time after receiving such request.
(o) If the Registration Statement (or Resale Registration Statement, as
the case may be) refers to the Investor by name or otherwise as the holder of
any securities of the Company, then the Investor shall have the right to require
(if such reference to the Investor by name or otherwise is not required by the
Securities Act or any similar Federal statute then in force) the deletion of the
reference to the Investor in any amendment or supplement to the Registration
Statement (or Resale Registration Statement, as the case may be) filed or
prepared subsequent to the time that such reference ceases to be required.
The Investor agrees by its acquisition of such Registrable Securities that,
upon receipt of a notice from the Company of the occurrence of any event of the
kind described in Section 3(c)(ii), 3(c)(iii), 3(c)(v) or 3(c)(vi), the Investor
shall forthwith discontinue disposition of such Registrable Securities until the
Investor's receipt of the copies of the supplemented Prospectus and/or amended
Registration Statement (or Resale Registration Statement, as the case may be)
contemplated by Section 3(b) and/or 3(f), or until it is advised in writing (the
"Advice") by the Company that the use of the applicable Prospectus may be
resumed, and, in either case, has received copies of any additional or
supplemental filings that are incorporated or deemed to be incorporated by
reference in such Prospectus or Registration Statement (or Resale Registration
Statement, as the case may be).
Notwithstanding anything to the contrary in this Section 3, if, after the
Registration Statement (or Resale Registration Statement, as the case may be)
becomes effective, the Board of Directors of the Company, acting in good faith,
determines there is a reasonable likelihood that disclosure in the Prospectus,
or any other action taken in connection with such prospectus, would interfere in
any material respect with any financing (other than through the sale of
securities), acquisition, merger, consolidation, tender offer or any similar
transaction that would require disclosure pursuant to the Exchange Act, then the
Company shall have the right to defer filing for the period (the "Grace Period")
during which such disclosure would materially and adversely interfere with such
transaction; provided, that (x) the Company shall promptly notify the Investor
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in writing of the existence of material non-public information giving rise to a
Grace Period and the date on which the Grace Period will begin, and (y) notify
the Investor in writing of the date on which the Grace Period will end; and,
provided further that (A) the Company may not defer the filing for a period of
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more than 30 days, (B) the Company shall not defer its obligation in this manner
more than once in any twelve-month period, (C) the Company shall delay during
any such period the filing or effectiveness of any other registration statement
required pursuant to the registration rights of the holders of any other
securities and (D) during such period the sale of shares by officers and
directors of the Company shall be prohibited in accordance with the Company's
xxxxxxx xxxxxxx policy. For purposes of determining the length of a Grace
Period above,
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the Grace Period shall begin on and include the date the Investor receives the
notice referred to in clause (x) of this paragraph and shall end on and include
the date the Investor receives the notice referred to in clause (y) of this
paragraph.
4. Registration Expenses. All fees and expenses incident to the performance of
or compliance with this Agreement by the Company shall be borne by the Company
and whether or not the Registration Statement (or Resale Registration Statement,
as the case may be) is filed or becomes effective and whether or not any
Registrable Securities are sold pursuant to the Registration Statement (or
Resale Registration Statement, as the case may be). The fees and expenses
referred to in the foregoing sentence shall include, without limitation, (i) all
registration, qualification and filing fees (including, without limitation, fees
and expenses (A) with respect to filings required to be made with The American
Stock Exchange and each Other Exchange on which Registrable Securities are
required hereunder to be listed and (B) in compliance with state securities or
Blue Sky laws, (ii) printing expenses (including, without limitation, expenses
of printing certificates for Registrable Securities and of photocopying
prospectuses), (iii) messenger, telephone and delivery expenses, (iv) escrow
fees, (iv) fees and disbursements of counsel for the Company, (vi) Securities
Act liability insurance, if the Company so desires such insurance, and (vii)
fees and expenses of all other Persons retained by the Company in connection
with the consummation of the transactions contemplated by this Agreement
including the reasonable fees and expenses of one special counsel for the
Investor. In addition, the Company shall be responsible for all of its internal
expenses incurred in connection with the consummation of the transactions
contemplated by this Agreement (including, without limitation, all salaries and
expenses of its officers and employees performing legal or accounting duties),
the expense of any annual audit, the fees and expenses incurred in connection
with the listing of the Registrable Securities on any Other Exchange as required
hereunder. Any fees of counsel to the Investor, except those otherwise covered
by this paragraph, shall be borne by the Investor.
5. Indemnification.
(a) Indemnification by the Company. The Company shall, notwithstanding
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any termination of this Agreement, indemnify and hold harmless the Investor, its
officers, directors, agents and employees, each Person who controls the Investor
(within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act) and the officers, directors, agents and employees of each such
controlling Person, to the fullest extent permitted by applicable law, from and
against any and all losses, claims, damages, liabilities, reasonable costs
(including, without limitation, attorneys' fees) and expenses (collectively,
"Losses"), as incurred, arising out of or relating to any untrue or alleged
untrue statement of a material fact contained in the Registration Statement (or
Resale Registration Statement, as the case may be), any Prospectus or any form
of prospectus or in any amendment or supplement thereto or in any preliminary
prospectus, or arising out of or relating to any omission or alleged omission of
a material fact required to be stated therein or necessary to make the
statements therein (in the case of any Prospectus, preliminary prospectus or
form of prospectus or supplement thereto, in light of the circumstances under
which they were made) not misleading, except to the extent, but only to the
extent, that such untrue statements or omissions are based solely upon
information regarding the Investor furnished in writing to the Company by or on
behalf of the Investor expressly for use therein. The Company shall notify the
Investor promptly
10
of the institution, threat or assertion of any Proceeding of which the Company
is aware in connection with the transactions contemplated by this Agreement.
(b) Indemnification by the Investor. The Investor shall indemnify and
-------------------------------
hold harmless the Company, its officers, directors, agents and employees, each
Person who controls the Company (within the meaning of Section 15 of the
Securities Act and Section 20 of the Exchange Act), and the directors, officers,
agents or employees of such controlling Persons, to the fullest extent permitted
by applicable law, from and against all Losses arising solely out of or based
solely upon any untrue statement of a material fact contained in the
Registration Statement (or Resale Registration Statement, as the case may be),
any Prospectus, or any form of prospectus, or arising solely out of or based
solely upon any omission of a material fact required to be stated therein 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 so furnished in writing by the Investor to the Company specifically
for inclusion in the Registration Statement (or Resale Registration Statement,
as the case may be) or such Prospectus. In no event shall the liability of the
Investor hereunder be greater in amount than the dollar amount of the gross
proceeds received by the Investor upon the sale of the Registrable Securities
giving rise to such indemnification obligation.
(c) Conduct of Indemnification Proceedings. If any Proceeding shall be
--------------------------------------
brought or asserted against any Person entitled to indemnity hereunder (an
"Indemnified Party"), such Indemnified Party promptly shall notify the Person
from whom indemnity is sought (the "Indemnifying Party") in writing, and the
Indemnifying Party shall have the right to participate in, and to the extent the
Indemnifying Party so desires, to assume the defense thereof; including the
employment of counsel reasonably satisfactory to the Indemnified Party and the
payment of all fees and expenses incurred in connection with defense thereof;
provided, that the failure of any Indemnified Party to give such notice shall
not relieve the Indemnifying Party of its obligations or liabilities pursuant to
this Agreement, except (and only) to the extent that it shall be finally
determined by a court of competent jurisdiction (which determination is not
subject to appeal or further review) that such failure shall have proximately
and materially adversely prejudiced the Indemnifying Party.
An Indemnified Party shall have the right to employ separate counsel in any
such Proceeding and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such Indemnified Party or
Parties unless: (1) the Indemnifying Party has agreed in writing to pay such
fees and expenses; or (2) the Indemnifying Party shall have failed promptly to
assume the defense of such Proceeding and to employ counsel reasonably
satisfactory to such Indemnified Party in any such Proceeding; or (3) such
Indemnified Party shall have been advised by counsel that a conflict of interest
is likely to exist if the same counsel were to represent such Indemnified Party
and the Indemnifying Party (in which case, if such Indemnified Party notifies
the Indemnifying Party in writing that it elects to employ separate counsel at
the expense of the Indemnifying Party, the Indemnifying Party shall not have the
right to assume the defense thereof and such counsel shall be at the expense of
the Indemnifying Party). The Indemnifying Party shall not be liable for any
settlement of any such Proceeding effected without its written consent, which
consent shall not be unreasonably withheld. No Indemnifying Party shall,
without the prior written consent of the Indemnified Party, effect any
settlement of any pending Proceeding in respect of which any Indemnified Party
is a party, unless such settlement includes an
11
unconditional release of such Indemnified Party from all liability on claims
that are the subject matter of such Proceeding.
All fees and expenses of the Indemnified Party (including reasonable fees
and expenses to the extent incurred in connection with investigating or
preparing to defend such Proceeding in a manner not inconsistent with this
Section) shall be paid to the Indemnified Party, as incurred, within 30 days of
written notice thereof to the Indemnifying Party (regardless of whether it is
ultimately determined that an Indemnified Party is not entitled to
indemnification hereunder; provided, that the Indemnifying Party may require
such Indemnified Party to undertake to reimburse all such fees and expenses to
the extent it is finally determined that such Indemnified Party is not entitled
to indemnification hereunder).
(d) Contribution. If a claim for indemnification under Section 5(a) or
------------
5(b) is unavailable to an Indemnified Party because of a failure or refusal of a
governmental authority to enforce such indemnification in accordance with its
terms (by reason of public policy or otherwise), then each Indemnifying Party,
in lieu of indemnifying such Indemnified Party, shall contribute to the amount
paid or payable by such Indemnified Party as a result of such Losses, in such
proportion as is appropriate to reflect the relative limit of the Indemnifying
Party and Indemnified Party in connection with the actions, statements or
omissions that resulted in such Losses as well as any other relevant equitable
considerations. The relative fault of such Indemnifying Party and Indemnified
Party shall be determined by reference to, among other things, whether any
action in question, including any untrue or alleged untrue statement of a
material fact or omission or alleged omission of a material fact, has been taken
or made by, or relates to information supplied by, such Indemnifying Party or
Indemnified Party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action, statement or
omission. The amount paid or payable by a party as a result of any Losses shall
be deemed to include, subject to the limitations set forth in Section 5(c), any
reasonable attorneys' or other reasonable fees or expenses incurred by such
party in connection with any Proceeding to the extent such party would have been
indemnified for such fees or expenses if the indemnification provided for in
this Section was available to such party in accordance with its terms.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 5(d) were determined by pro rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 5(d), each Investor shall not be
required to contribute, in the aggregate, any amount in excess of the amount by
which the proceeds actually received by such Investor from the sale of the
Registrable Securities subject to the Proceeding exceeds the amount of any
damages that the Investor has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. 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 who was
not guilty of such fraudulent misrepresentation.
The indemnity and contribution agreements contained in this Section 5 are
in addition to any liability that the Indemnifying Parties may have to the
Indemnified Parties.
12
6. Rule 144. The Company covenants that it shall file the reports required to
be filed by it under the Securities Act and the Exchange Act and the rules and
regulations adopted by the Commission thereunder in a timely manner. The
Company further covenants that it will take such further action and provide any
information as the Investor may reasonably request, all to the extent required
from time to time to enable the Investor to sell Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by (i) Rule 144 of the Securities Act or any similar rule or regulation
hereafter adopted by the Commission and (ii) Rule 144A of the Securities Act or
any similar rule or regulation hereafter adopted by the Commission. Upon the
request of the investor, the Company shall deliver to the Investor a written
certification of a duly authorized officer as to whether it has complied with
such requirements.
7. Miscellaneous.
(a) Remedies. In the event of a breach by the Company or by the Investor,
--------
of any of their obligations under this Agreement, the Investor or the Company,
as the case may be, in addition to being entitled to exercise all rights granted
by law and under this Agreement, including recovery of damages, will be entitled
to specific performance of its rights under this Agreement. The Company and the
Investor agree that monetary damages would not provide adequate compensation for
any losses incurred by reason of a breach by it of any of the provisions of this
Agreement and hereby further agrees that, in the event of any action for
specific performance in respect of such breach, it shall waive the defense that
a remedy at law would be adequate.
(b) No Inconsistent Agreements. Neither the Company nor any of its
--------------------------
subsidiaries has, as of the date hereof; nor shall the Company or any of its
subsidiaries, on or after the date of this Agreement, enter into any agreement
with respect to its securities that is inconsistent with the rights granted to
the Investor in this Agreement or otherwise conflicts with the provisions
hereof. Except as described herein, neither the Company nor any of its
subsidiaries has previously entered into any agreement granting any registration
rights with respect to any of its securities to any Person.
(c) No Piggyback on Registrations. Except as set forth herein, neither
-----------------------------
the Company nor any of its security holders (other than the Investor hereto) may
include securities of the Company in the Registration Statement (or Resale
Registration Statement, as the case may be) other than the Registrable
Securities, and the Company shall not enter into any agreement providing any
such right to any of its securityholders.
(d) Amendments and Waivers. The provisions of this Agreement may not be
----------------------
amended or waived without the express written consent of the Investor.
(e) Notices. Unless otherwise provided, all notices, requests, consents
-------
and other communications hereunder to any party shall be given in writing and
shall be deemed effectively given upon personal delivery to the party to be
notified or duly sent by first class registered or certified mail, or other
courier service, postage prepaid, or telecopied with a confirmation copy by
regular mail, and addressed or telecopied to the party to be notified at the
address or telecopier number indicated for such party at the address or
telecopier number, as the case may be, set forth below or such other address or
telecopier number, as the case may be, as may hereafter be designated in writing
by the addressees to the addressor listing all parties:
13
To the Company: Organogenesis, Inc.
000 Xxx Xxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Chief Financial Officer
Fax: (000) 000-0000
With a copy (which shall Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP
not constitute notice) to: 000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
To the Investor: Novartis Pharma AG
Xxxxxxxxxxxx 00
XX-0000 Xxxxx
Xxxxxxxxxxx
Attention: Xxxxxx X. Xxxxx
Fax: 00 00 000 00 00
With a copy to: Xxxx Xxxxxxxx, Esq.
Vice President and Associate General Counsel
Novartis Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
and Xxxxxx X. Xxxxxx, Esq.
Xxxxx Xxxxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
All such notices, requests, consents and other communications shall be
deemed to have been received: (a) in the case of personal delivery, on the date
of such delivery; (b) in the case of mailing, on the seventh Business Day
following the date of such mailing; and (c) in the case of facsimile
transmission, when confirmed by facsimile machine report.
(f) Successors and Assigns. This Agreement shall inure to the benefit of
----------------------
and be binding upon the successors and permitted assigns of each of the parties
and shall inure to the benefit of the Investor. The Company may not assign its
rights or obligations hereunder without the prior written consent of the
Investor.
14
(g) Assignment of Registration Rights. The rights of the Investor
---------------------------------
hereunder, including the right to have the Company register for resale
Registrable Securities in accordance with the terms of this Agreement, shall be
automatically assignable by the Investor to any assignee or transferee of all or
a portion of the Convertible Notes, the Preferred Stock or the Registrable
Securities if: (i) the Investor agrees in writing with the transferee or
assignee to assign such rights, and a copy of such agreement is furnished to the
Company within a reasonable time after such assignment, (ii) the Company is,
within a reasonable time after such proposed transfer or assignment, furnished
with written notice of (a) the name and address of such transferee or assignee,
and (b) the securities with respect to which such registration rights are being
transferred or assigned and (iii) at or before the time the Company receives the
written notice contemplated by clause (ii) of this Section, the transferee or
assignee agrees in writing to be bound by all of the provisions of this
Agreement. The rights to assignment shall apply to the Investor (and to
subsequent) successors and assigns.
(h) Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which when so executed shall be deemed to be an original
and, all of which taken together shall constitute one and the same Agreement.
In the event that any signature is delivered by facsimile transmission, such
signature shall create a valid binding obligation of the party executing (or on
whose behalf such signature is executed) the same with the same force and effect
as if such facsimile signature were the original thereof.
(i) Governing Law. This Agreement shall be governed by and construed
-------------
under the laws of the State of New York (without regard to the conflict of law
principles thereof). Each of the parties irrevocably submits to the exclusive
jurisdiction of (a) the Supreme Court of the State of New York, and (b) the
United States District Court for the Southern District of New York, for the
purposes of any suit, action or other proceeding arising out of this Agreement
or any transaction contemplated hereby. Each of the parties agrees to commence
any action, suit or proceeding relating hereto in the United States District
Court for the Southern District of New York or if such suit, action or other
proceeding may not be brought in such court for jurisdictional purposes, in the
Supreme Court of the State of New York.
(j) Cumulative Remedies. The remedies provided herein are cumulative and
-------------------
not exclusive of any remedies provided by law.
(k) Severability. If any term, provision, covenant or restriction of this
------------
Agreement is held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall in
no way be affected, impaired or invalidated, and the parties hereto shall use
their reasonable efforts to find and employ an alternative means to achieve the
same or substantially the same result as that contemplated by such term,
provision, covenant or restriction. It is hereby stipulated and declared to be
the intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.
(l) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
15
IN WITNESS WHEREOF, the parties have executed this REGISTRATION RIGHTS AGREEMENT
as of the date first written above.
ORGANOGENESIS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxx, M.D.
-------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx, M.D.
-------------------------------------------
Title: President & CEO
-------------------------------------------
NOVARTIS PHARMA AG
Date: 3 October 2001
By: /s/ Xxxxxxx Xxxxxxxxx
-------------------------------------------
Name: Xxxxxxx Xxxxxxxxx
-------------------------------------------
Title: Head Business Unit Transplantation
-------------------------------------------
NOVARTIS PHARMA AG
Date: 3 October 2001
By: /s/ Xxxxxxxx Xxxxxx
-------------------------------------------
Name: Xxxxxxxx Xxxxxx
-------------------------------------------
Title: Senior Legal Counsel
-------------------------------------------
16
