EXHIBIT 10.31
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
AMONG
PHARMANETICS, INC.
AND
THE SHAREHOLDERS LISTED ON EXHIBIT A HERETO
DATED MAY 1, 2003
REGISTRATION RIGHTS AGREEMENT
This Agreement, dated May 1, 2003, is entered into by and among
PharmaNetics, Inc., a North Carolina corporation (the "Company"), Camden
Partners Strategic Fund II-A, L.P., a Delaware limited partnership, Camden
Partners Strategic Fund II-B, L.P., a Delaware limited partnership
(collectively, "Camden") and other parties identified as Series B Preferred
Shareholders on Exhibit A hereto, as may be amended from time to time
(collectively with Camden, the "Series B Preferred Shareholders").
Reference is made to the Preferred Stock Purchase Agreement dated as of May
1, 2003 (the "Purchase Agreement"), by and between the Company and the Series B
Preferred Shareholders pursuant to which, among other things, the Company will
issue and sell to the Series B Preferred Shareholders upon the terms set forth
therein 95,800 shares of Series B Convertible Preferred Stock, no par value, of
the Company (the "Series B Preferred Stock"), and warrants to purchase 510,932
shares of the Company's common stock, no par value (the "Common Stock") . The
Company agrees with the Series B Preferred Shareholders for the benefit of the
Covered Holders (as defined herein) from time to time of the Registrable
Securities (as defined herein) as follows:
1. Definitions. (a) As used in this Agreement and except as otherwise
defined herein, the following defined terms shall have the following meanings:
"Affiliate" of any specified Person means any other Person which, directly
or indirectly, is in control of, is controlled by, or is under common control
with such specified Person. For purposes of this definition, control of a Person
means the power, direct or indirect, to direct or cause the direction of the
management and policies of such Person whether by contract or otherwise; and the
terms "controlling" and "controlled" have meanings correlative to the foregoing.
"Applicable Securities" means in relation to a Registration
Statement the Registrable Securities identified in the related Demand Notice or
Piggy-back Notice.
"Bayer Agreement" means that certain Common Stock Purchase Agreement dated
as of April 23, 2001, between the Company and Bayer Corporation.
"Bayer Securities" means any shares of Common Stock of the Company or other
securities that may be "Registrable Securities" under the Bayer Agreement.
"Commission" means the United States Securities and Exchange Commission.
"Common Stock" means the Company's common stock, no par value.
"Covered Holder" means each of (i) the Series B Preferred Shareholders and
any of their respective Affiliates that acquires Registrable Securities from any
Series B Preferred Shareholder or any of their respective Affiliates and (ii)
any other Series B Preferred Shareholder that holds a minimum of 20 percent of
the Series B Preferred Stock.
"Demand Notice" means a notice given by Covered Holders pursuant to Section
2(a).
"Effective Time" means the date on which the Commission declares a
Registration Statement effective or on which a Registration Statement otherwise
becomes effective.
"Effectiveness Period" means as to a Registration Statement the period
during which such Registration Statement is effective.
"Electing Holder" means, with respect to a Registration, any Covered Holder
that has delivered a completed and signed Notice and Questionnaire to the
Company in accordance with the provisions hereof.
"Exchange Act" means the United States Securities Exchange Act of 1934, as
amended.
"Notice and Questionnaire" means a Notice of Registration Statement and
Selling Shareholder Questionnaire substantially in the form of Exhibit B hereto.
"Person" means an individual, partnership, corporation, trust, limited
liability company or unincorporated organization, or other entity or
organization, including a government or agency or political subdivision thereof.
"Piggy-back Notice" means a Notice given by a Covered Holder pursuant to
Section 3(a) hereof.
"Prospectus" means the prospectus (including, without limitation, any
preliminary prospectus, any final prospectus and any prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
Registration Statement in reliance upon Rule 430A under the Act) included in a
Registration Statement, as amended or supplemented by any prospectus supplement
with respect to the terms of the offering of any portion of the Applicable
Securities covered by a Registration Statement and by all other amendments and
supplements to such prospectus, including all material incorporated by reference
in such prospectus and all documents filed after the date of such prospectus by
the Company under the Exchange Act and incorporated by reference therein.
"Registrable Securities" means the Common Stock issuable upon conversion of
the Series B Preferred Stock, as well as any Common Stock that may
-2-
be purchased if any, pursuant to the Warrants (as defined in the Purchase
Agreement) upon exercise of the Warrants and any securities issued in respect of
the rights of the holders under Article Two of the Second Amended and Restated
Articles of Incorporation, in each case, until any such security is effectively
registered under the Securities Act and disposed of in accordance with the
Registration Statement covering it, or is distributed to the public by the
holder thereof pursuant to Rule 144.
"Registration" means a registration under the Securities Act effected
pursuant to Section 2 or Section 3 hereof.
"Registration Expenses" means all expenses incident to the Company's
performance of or compliance with any Registration of Registrable Securities
pursuant to this Agreement, including, without limitation, (a) all registration,
filing and National Association of Securities Dealers, Inc. fees, (b) all fees
and expenses of complying with securities or blue sky laws, (c) all word
processing, duplicating and printing expenses, messenger and delivery expenses,
(d) the fees and disbursements of counsel for the Company and of its independent
public accountants, including the expenses of any special audits or "comfort"
letters required by or incident to such performance and compliance, (e) premiums
and other costs of policies of insurance obtained by the Company against
liabilities arising out of the public offering of Registrable Securities being
registered, (f) any fees and disbursements of underwriters customarily paid by
issuers, but excluding the Electing Holders' pro rata portion of any
underwriting discounts and commissions and transfer taxes, if any, relating to
Registrable Securities, and (g) the reasonable fees and disbursements of one
counsel designated by the majority of Electing Holders.
"Registration Statement" means a registration statement filed under the
Securities Act by the Company pursuant to the provisions of Section 2 or Section
3 hereof, including the Prospectus contained therein, any amendments and
supplements to such registration statement, including post-effective amendments,
and all exhibits and all material incorporated by reference in such registration
statement.
"Rule 144" means Rule 144 promulgated by the Commission under the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission.
"S-3 Eligible" means that the Company meets the registrant requirements and
transaction requirements for the use of Form S-3 of the Commission, as set forth
in the General Instructions to such Form.
"Securities Act" means the United States Securities Act of 1933, as
amended.
-3-
"Underwriter" means any underwriter of Applicable Securities designated by
either the Company or the Covered Holders pursuant to Section 2(e) hereof.
(b) The words "include," "includes" and "including," when used in this
Agreement, shall be deemed to be followed by the words "without limitation."
2. Demand Registration. (a) The Covered Holders shall have the right, on
one occasion, to require the Company (subject to the next sentence) to use its
reasonable best efforts to register for offer and sale, pursuant to a
Registration Statement on Form S-1 or Form S-3 (including a shelf registration
pursuant to Rule 415), all or a portion of the Registrable Securities then
outstanding; provided, however, that, without limiting the foregoing, so long as
the Company is S-3 Eligible, then the Covered Holders shall also have the right,
on not more than one occasion every six months, to require the Company to
register for offer and sale pursuant to a Registration Statement on Form S-3 if
so requested by a majority of the Covered Holders (which majority shall be
calculated based on the number of Registrable Securities held by all Covered
Holders) all or a portion of the Registrable Securities then outstanding with an
expected aggregate offering price of at least $1,000,000. As promptly as
practicable after the Company receives a notice from the Covered Holders (a
"Demand Notice") demanding that the Company register for offer and sale under
the Securities Act Registrable Securities, subject to Section 2(b), the Company
shall (i) file with the Commission a Registration Statement relating to the
offer and sale of the Applicable Securities and, thereafter, (ii) use all
reasonable efforts to cause such Registration Statement to be declared effective
under the Securities Act as promptly as practicable after the date of filing of
such Registration Statement; provided, however, that no Covered Holder shall be
entitled to be named as a selling shareholder in the Registration Statement or
to use the Prospectus forming a part thereof for resales of Registrable
Securities unless such Covered Holder is an Electing Holder. All Electing
Holders shall enter into such underwriting, custody and other agreements as
shall be customary in connection with registered secondary offerings or
necessary or appropriate in connection with the offering. Subject to Section
2(b), the Company shall use all reasonable efforts to keep each Registration
Statement continuously effective in order to permit the Prospectus forming a
part thereof to be usable by Covered Holders for resales of Registrable
Securities for an Effectiveness Period ending on the earlier of (i) 90 days from
the Effective Time of such Registration Statement (or such longer period, not to
exceed 120 days, as in the judgment of counsel for the underwriters a prospectus
is required by law to be delivered in connection with sales of Registrable
Securities by an underwriter or dealer in accordance with the plan of
distribution included in such Registration Statement) and (ii) such time as all
of such securities have been disposed of by the Electing Holders.
-4-
(b) If the Company determines in good faith based upon the advice of
counsel that the use of such Registration would result in a disclosure of
information that would materially and adversely affect any proposed or pending
material acquisition, merger, business combination or other material transaction
involving the Company and that such disclosure is not in the best interests of
the Company and its shareholders, the Company shall have the right (i) to
postpone (or, if necessary or advisable, withdraw) the filing, or delay the
effectiveness, of a Registration Statement, (ii) to fail to keep such
Registration Statement continuously effective and (iii) not to amend or
supplement the Registration Statement or included Prospectus after the
effectiveness of the Registration Statement; provided that no one such
postponement shall exceed 90 days in any six-month period and all such
postponements shall not exceed 120 days in the aggregate in any 12-month period.
The Company shall advise the Series B Preferred Shareholders of any such
determination as promptly as practicable.
(c) The Company may include in any registration requested pursuant to
Section 2(a) hereof other securities for sale for its own account or for the
account of another Person, provided that such inclusion shall not affect the
number of Applicable Securities that can be sold in the related offering. In
connection with an underwritten offering, if the managing underwriter or
underwriters advise the Company in writing that in its or their opinion the
number of Applicable Securities requested by Covered Holders to be registered
exceeds the number which can be sold in such offering, the Company shall include
in such Registration the number of Applicable Securities that, in the opinion of
such managing underwriter or underwriters, can be sold as follows: (i) first,
the Applicable Securities requested to be registered, pro rata among the Covered
Holders that have requested their Applicable Securities to be registered, (ii)
second, any Bayer Securities requested to be registered, and (iii) third, any
other securities requested to be included in such Registration.
(d) The Covered Holders requesting any Registration pursuant to Section
2(a) hereof shall have the right to withdraw such request, without such
Registration being deemed to have been effected (and, therefore, requested) for
purposes of Section 2(a), (i) prior to the time the Registration Statement in
respect of such Registration has been declared effective, (ii) upon the issuance
by a governmental agency or the Commission of a stop order, injunction or other
order which interferes with such Registration, (iii) upon the Company availing
itself of Section 2(b) hereof, or (iv) if such Covered Holders are prevented
pursuant to Section 2(c) hereof from selling all of the Applicable Securities
they requested to be registered. Notwithstanding the foregoing, the Registration
requested by such Covered Holders shall be deemed to have been effected (and,
therefore, requested) for purposes of Section 2(a) hereof if the Covered Holders
withdraw any Registration request pursuant to Section 2(a) hereof (i) after the
Commission filing fee is paid in full with respect to all Applicable Securities
requested to be registered or (ii) as a result of the provisions of Section 2(c)
hereof in
-5-
circumstances where at least 75 percent of the Applicable Securities requested
to be included in such Registration by the Covered Holders demanding such
Registration have been included, and in each case, (x) the Company has not
availed itself of Section 2(b) or Section 7(j) with respect to such Registration
request or (y) the Company has availed itself of Section 2(b) or Section 7(j)
hereof and the withdrawal request is not made within 10 days after the
termination of the suspension period occasioned by the Company's exercise of its
rights under Section 2(b) or Section 7(j) hereof. If the Covered Holders
withdraw a request pursuant to Section 2(a) but the Company nevertheless
determines to complete, within 30 days after such withdrawal, the Registration
so requested as to securities other than the Applicable Securities, such Covered
Holders shall be entitled to participate in such Registration pursuant to
Section 3 hereof, but in such case the Intended Offering Notice (as defined in
Section 3) shall be required to be given to the Covered Holders at least 10
business days prior to the anticipated filing date of the registration statement
and such Covered Holders shall be required to give the Piggy-back Notice no
later than 5 business days after the Company's delivery of such Intended
Offering Notice.
(e) In the event that any Registration pursuant to this Section 2 shall
involve, in whole or in part, an underwritten offering, one co-lead managing
underwriter shall be selected by the Company and shall be reasonably acceptable
to the Covered Holders participating therein, and the other co-lead managing
underwriter shall be selected by the Covered Holders representing a majority of
the Registrable Securities participating therein and shall be reasonably
acceptable to the Company.
3. Piggy-back Registration. (a) If at any time the Company intends to file
on its behalf or on behalf of any of its shareholders (including Covered
Holders, with respect to Registrable Securities, and Bayer Corporation or its
permitted transferees, with respect to Bayer Securities) a registration
statement in connection with a public offering of any securities of the Company
on a form and in a manner that would permit the registration for offer and sale
under the Securities Act of Registrable Securities of Common Stock held by such
Covered Holder, other than a registration statement on Form S-8 or Form S-4 or
any successor form or other forms promulgated for similar purposes, then the
Company shall give written notice (an "Intended Offering Notice") of such
intention to each Covered Holder at least 30 business days prior to the
anticipated filing date of such registration statement. Such Intended Offering
Notice shall offer to include in such registration statement for offer to the
public such number or amount of Registrable Securities as each such Covered
Holder may request, subject to the conditions set forth herein, and shall
specify, to the extent then known, the number and class of securities proposed
to be registered, the proposed date of filing of such registration statement,
any proposed means of distribution of such securities, any proposed managing
underwriter or underwriters of such securities and (if available or as soon as
available) a good faith estimate (which may be a range) by the Company of the
-6-
proposed maximum offering price of such securities, as such price is proposed to
appear on the facing page of such registration statement. Any Covered Holder
desiring to have Registrable Securities included in such registration statement
and offered to the public shall so advise the Company in writing (the written
notice of any such Covered Holder being a "Piggy-back Notice") not later than 10
business days after the Company's delivery to the Covered Holders of the
Intended Offering Notice, setting forth the number of Registrable Securities
such Covered Holder desires to have included in the registration statement and
offered to the public. Upon the request of the Company, such Covered Holders
shall enter into such underwriting, custody and other agreements as shall be
customary in connection with registered secondary offerings or necessary or
appropriate in connection with the offering. No Covered Holder shall be entitled
to be named as a selling shareholder in the Registration Statement or to use the
Prospectus forming a part thereof for sales of Registrable Securities unless
such Covered Holder is an Electing Holder.
(b) No Covered Holder shall be entitled to be named as a selling
shareholder in the Registration Statement as of the Effective Time, and no
Covered Holder shall be entitled to use the Prospectus forming a part thereof
for sales of Registrable Securities at any time, unless such Covered Holder has
returned a completed and signed Notice and Questionnaire to the Company at least
two business days before the anticipated filing date specified in the Intended
Offering Notice.
(c) In connection with an underwritten offering, if the managing
underwriter or underwriters advise the Company in writing that in its or their
opinion the number of securities proposed to be registered exceeds the number
that can be sold in such offering, the Company shall include in such
Registration the number of securities that, in the opinion of such managing
underwriter or underwriters, can be sold as follows: (i) first, the securities
that the Company proposes to sell on its behalf or, if the offering is a demand
registration the securities proposed to be sold, for the shareholder or
shareholders initiating such demand registration, as the case may be, (ii)
second, the Applicable Securities and Bayer Securities requested to be included
in such Registration, pro rata among the Electing Holders who are Covered
Holders that have requested their Applicable Securities to be included therein
and the holders of the Bayer Securities who have requested inclusion of such
securities and (iii) third, other securities requested to be included in such
Registration; provided, however, the Electing Holders and the holders of Bayer
Securities desiring to have securities included in such an underwritten offering
(other than in the case of a Registration requested pursuant to Section 2(a)
hereof) shall not be reduced to less than 20 percent of the aggregate securities
to be sold in such offering, split in equal one-half parts (10 percent each)
between the Electing Holders and the holders of the Bayer Securities.
Notwithstanding the provisions of this Section 3(c), if the Registration was
initiated at the request of the holders of the Bayer Securities pursuant to
their demand
-7-
rights as set forth in the Bayer Agreement, priority in underwriter cutbacks
with respect to such Registration shall be governed by the provisions of the
Bayer Agreement, provided that the Electing Holders who are Covered Holders that
have requested inclusion of their Applicable Securities to be included therein
shall have priority over any other persons, other than Covered Holders as
defined in the Bayer Agreement, holding securities requested to be included in
such Registration, and the twenty percent requirement set forth in the previous
sentence shall not apply to any such Registration initiated at the request of
the holders of the Bayer Securities.
(d) The rights of the Covered Holders pursuant to Section 2 hereof and
this Section 3 are cumulative, and the exercise of rights under one such Section
shall not exclude the subsequent exercise of rights under the other such
Section. Notwithstanding anything herein to the contrary, the Company may
abandon and/or withdraw any registration (other than pursuant to Section 2
hereof) as to which any right under this Section 3 may exist at any time and for
any reason without liability hereunder. In such event, the Company shall so
notify each Covered Holder that has delivered a Piggy-back Notice to participate
therein.
(e) Except for registration rights granted by the Company after the date
hereof which are subordinate to the rights of the Covered Holders pursuant to
Section 2 hereof and this Section 3, prior to the termination of this Agreement,
the Company shall not grant any registration rights to any other Person without
the consent of holders of a majority of the Registrable Securities then
outstanding.
4. Registration Procedures. In connection with a Registration Statement,
the following provisions shall apply:
(a) The Company shall furnish to each Electing Holder, prior to the
Effective Time, a copy of the Registration Statement initially filed with the
Commission, and shall furnish to such Electing Holders copies of each amendment
thereto and each amendment or supplement, if any, to the Prospectus included
therein.
(b) In respect of a Registration Statement under Section 2, the Company
shall use reasonable efforts to promptly take such action as may be reasonably
necessary so that (i) each of the Registration Statement and any amendment
thereto and the Prospectus forming part thereof and any amendment or supplement
thereto (and each report or other document incorporated therein by reference in
each case), when it becomes effective, complies in all material respects with
the Securities Act and the Exchange Act and the respective rules and regulations
thereunder, (ii) each of the Registration Statement and any amendment thereto
does not, when it becomes effective, 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 not misleading and (iii) each of the
-8-
Prospectus forming part of the Registration Statement, and any amendment or
supplement to such Prospectus, does not at any time during the period during
which the Company is required to keep a Registration Statement continuously
effective under Section 2(a) include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading.
Notwithstanding the foregoing provisions of this Section 4(b), the Company
shall notify each Electing Holder at any time after effectiveness of a
Registration Statement (when a Prospectus relating thereto is required to be
delivered under the Securities Act) of the happening of any event or other
circumstance as the result of which (i) the Prospectus included in such
Registration Statement, as then in effect, would include an untrue statement of
a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading in light of the
circumstances then existing, or (ii) the continued effectiveness of such
Registration Statement or a subsequent Registration Statement, and the use of
such Prospectus, would otherwise have a material and adverse effect on any
proposed or pending material acquisition, merger, business combination or other
material transaction involving the Company, and, upon receipt of such notice and
until the Company makes available to each Electing Holder a supplemented or
amended Prospectus, each Electing Holder shall not offer or sell any Registrable
Securities pursuant to such Registration Statement and shall (at the Company's
expense) return all copies of such Prospectus to the Company if requested to do
so by it. As promptly as practicable following any such occurrence, the Company
shall prepare and furnish to each Electing Holder a reasonable number of copies
of a supplement or an amendment to such Prospectus as may be necessary so that,
as thereafter delivered to subsequent purchasers of the Registrable Securities,
such Prospectus shall meet the requirements of the Securities Act and relevant
state securities laws; provided that the Company's obligations under and actions
pursuant to this paragraph shall be subject to the provisions, including time
limits, of Section 2(b).
(c) The Company shall, promptly upon learning thereof, advise each
Electing Holder, and shall confirm such advice in writing if so requested by any
such Electing Holder:
(i) when the Registration Statement and any amendment thereto has
been filed with the Commission and when the Registration Statement or any
post-effective amendment thereto has become effective;
(ii) of any request by the Commission for amendments or supplements
to the Registration Statement or the Prospectus included therein or for
additional information;
-9-
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for such purpose;
(iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the securities included
in the Registration Statement for sale in any jurisdiction or the
initiation of any proceeding for such purpose; and
(v) of the happening of any event or the existence of any state
of facts that requires the making of any changes in the Registration
Statement or the Prospectus included therein so that, as of such date, such
Registration Statement and Prospectus do not contain an untrue statement of
a material fact and do not omit to state a material fact required to be
stated therein or necessary to make the statements therein (in the case of
the Prospectus, in light of the circumstances under which they were made)
not misleading (which advice shall be accompanied by an instruction to such
Electing Holders to suspend the use of the Prospectus until the requisite
changes have been made).
(d) The Company shall use reasonable efforts to prevent the issuance,
and if issued to obtain the withdrawal, of any order suspending the
effectiveness of the Registration Statement at the earliest possible time.
(e) The Company shall furnish to each Electing Holder, without
charge, at least one copy of the Registration Statement and all post-effective
amendments thereto, including financial statements and schedules, and, if such
holder so requests in writing, all reports, other documents and exhibits that
are filed with or incorporated by reference in the Registration Statement.
(f) The Company shall, during the period during which the Company is
required to keep a Registration Statement continuously effective under Section
2(a) or elects to keep effective under Section 3(a), deliver to each Electing
Holder, without charge, as many copies of the Prospectus (including each
preliminary Prospectus) included in the Registration Statement and any amendment
or supplement thereto as such Electing Holder may reasonably request; and the
Company consents (except during the continuance of any event described in
Section 2(b) or Section 4(c)(v) hereof) to the use of the Prospectus, with any
amendment or supplement thereto, by each of the Electing Holders in connection
with the offering and sale of the Applicable Securities covered by the
Prospectus and any amendment or supplement thereto during such period.
(g) Prior to any offering of Applicable Securities pursuant to the
Registration Statement, the Company shall use all reasonable efforts (i) to
register or qualify or cooperate with the Electing Holders and their respective
-10-
counsel in connection with the registration or qualification of such Applicable
Securities for offer and sale under the securities or "blue sky" laws of such
jurisdictions within the United States as any Electing Holder may reasonably
request, (ii) to keep such registrations or qualifications in effect and comply
with such laws so as to permit the continuance of offers and sales in such
jurisdictions for the period during which the Company is required to keep a
Registration Statement continuously effective under Section 2(a) and (iii) to
take any and all other actions reasonably requested by an Electing Holder which
are necessary or advisable to enable the disposition in such jurisdictions of
such Applicable Securities; provided, however, that in no event shall the
Company be obligated (i) to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction where it would not otherwise be required to so
qualify but for this Agreement or (ii) to file any general consent to service of
process or subject itself to tax in any jurisdiction where it is not so subject.
(h) The Company shall cooperate with the Electing Holders to
facilitate the timely preparation and delivery of certificates representing
Applicable Securities to be sold pursuant to the Registration Statement, which
certificates shall comply with the requirements of any United States securities
exchange or automated quotation system upon which any Applicable Securities are
listed or quoted (provided that nothing herein shall require the Company to list
any Registrable Securities on any securities exchange or automated quotation
system on which they are not currently listed), and which certificates, upon
sale or disposition pursuant to an effective Registration Statement under this
Agreement, shall be free of any restrictive legends and in such permitted
denominations and registered in such names as Electing Holders may request in
connection with the sale of Applicable Securities pursuant to the Registration
Statement.
(i) Not later than the Effective Time of the Registration Statement,
the Company shall use reasonable efforts to provide any required CUSIP number
for any Applicable Securities.
(j) The Company shall, in the event of an underwriting of Applicable
Securities, enter into indemnification provisions and procedures substantially
identical to those set forth in Section 6 hereof with respect to all parties to
be indemnified pursuant to Section 6 hereof, provided that the applicable
Electing Holders do the same.
(k) The Company shall use reasonable efforts to:
(i) cooperate with the Electing Holders and their advisors in
their efforts to conduct appropriate due diligence as is customary for a
company of the size and character of the Company and make such reasonable
representations and warranties in the applicable underwriting agreement to
the Underwriters, in form, substance and scope as are
-11-
customarily made by the Company to underwriters in underwritten offerings
of equity and/or convertible securities, as applicable;
(ii) in connection with any underwritten offering, obtain
opinions of counsel to the Company (which counsel and opinions (in form,
scope and substance) shall be reasonably satisfactory to the Underwriters)
addressed to the Underwriters, covering such matters that the Company
customarily covers in opinions requested in secondary underwritten
offerings of equity and/or convertible securities, as applicable, to the
extent reasonably required by the applicable underwriting agreement;
(iii) in connection with any underwritten offering, obtain "cold
comfort" letters and updates thereof from the independent public
accountants of the Company (and, if necessary, from the independent public
accountants of any Subsidiary (as defined in the Purchase Agreement) of the
Company or of any business acquired by the Company for which financial
statements and financial data are, or are required to be, included in the
Registration Statement), addressed to each Electing Holder participating in
such underwritten offering (if such Electing Holder has provided such
letter, representations or documentation, if any, required for such cold
comfort letter to be so addressed) and the Underwriters, in customary form
and covering matters of the type customarily covered in "cold comfort"
letters in connection with underwritten offerings of Company securities;
and
(iv) in connection with any underwritten offering, deliver such
documents and certificates as may be reasonably requested by any Electing
Holders participating in such underwritten offering and the Underwriters,
if any, including, without limitation, certificates to evidence compliance
with any conditions contained in the underwriting agreement or other
agreements entered into by the Company.
(l) In respect of a Registration Statement under Section 2,
the Company shall use reasonable efforts to take all other steps reasonably
necessary to effect the timely registration, offering and sale of the Applicable
Securities covered by the Registration Statements contemplated hereby.
5. Registration Expenses. The Company shall bear the Registration
Expenses in connection with the performance of its obligations under Sections 2,
3 and 4 hereof. Each Electing Holder shall bear its pro rata portion of
underwriters' discounts and commissions and transfer taxes, if any, relating to
the Registrable Securities.
6. Indemnification and Contribution. (a) Upon the Registration of
Applicable Securities pursuant to Section 2 or 3 hereof, the Company shall
indemnify and hold harmless each Electing Holder and each Underwriter, selling
-12-
agent or other securities professional, if any, which facilitates the
disposition of Applicable Securities, and each of their respective officers,
directors, employees and agents and each person who controls such Electing
Holder, Underwriter, selling agent or other securities professional within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
(each such person being sometimes referred to as an "Indemnified Person")
against any losses, claims, damages or liabilities, joint or several, to which
such Indemnified Person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement
under which such Applicable Securities are to be registered under the Securities
Act, or any Prospectus contained therein or furnished by the Company to any
Indemnified Person, or any amendment or supplement thereto, or arise out of or
are based upon 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 in light of the circumstances in which they were made, and the
Company hereby agrees to reimburse such Indemnified Person for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such action or claim as such expenses are incurred; provided,
however, that the Company shall not be liable to any such Indemnified Person in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in such Registration Statement or
Prospectus, or amendment or supplement, in reliance upon and in conformity with
written information furnished to the Company by such Indemnified Person
expressly for use therein. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of the Company or any of
the prospective sellers, or any of their respective Affiliates, directors,
officers, employees, agents or controlling Persons and shall survive the
transfer of securities by any Electing Holder.
(b) Each Electing Holder agrees, as a consequence of the inclusion of
any of such Holder's Applicable Securities in such Registration Statement, and
each Underwriter, selling agent or other securities professional, if any, which
facilitates the disposition of Applicable Securities shall agree, as a
consequence of facilitating such disposition of Applicable Securities, severally
and not jointly, to indemnify and hold harmless the Company, its directors and
officers and each person, if any, who controls the Company within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act,
against any losses, claims, damages or liabilities to which the Company or such
other persons may become subject, under the Securities Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in such Registration Statement or Prospectus, or
any amendment or supplement, or
-13-
arise out of or are based upon 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, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by such Holder, Underwriter, selling agent
or other securities professional expressly for use therein. Such indemnity shall
remain in full force and effect regardless of any investigation made by or on
behalf of the Company, the underwriters or any of the prospective sellers, or
any of their respective Affiliates, directors, officers or controlling Persons
and shall survive the transfer of securities by any Electing Holder. In no event
shall the liability of any Electing Holder hereunder be greater in amount than
the dollar amount of the net proceeds received by that Electing Holder upon the
sale of the Registrable Securities giving rise to the indemnification
obligation.
(c) Promptly after receipt by any Person entitled to indemnity (an
"Indemnitee") under Section 6(a) or (b) hereof of notice of the commencement of
any action or claim, such Indemnitee shall, if a claim in respect thereof is to
be made against an indemnifying party under this Section 6 (an "Indemnitor"),
notify such Indemnitor in writing of the commencement thereof, but the omission
so to notify the Indemnitor shall not relieve it from any liability which it may
have to any Indemnitee except to the extent of any actual prejudice. In case any
such action shall be brought against any Indemnitee and the Indemnitee shall
notify an Indemnitor of the commencement thereof, such Indemnitor shall be
entitled to participate therein and, jointly with any other Indemnitor similarly
notified, to assume the defense thereof, with counsel satisfactory to such
Indemnitee, and, after notice from the Indemnitor to such Indemnitee of its
election so to assume the defense thereof, such Indemnitor shall not be liable
to such Indemnitee under this Section 6 for any legal expenses of other counsel
or any other expenses, in each case subsequently incurred by such Indemnitee, in
connection with the defense thereof. No Indemnitor shall, without the prior
written consent of the Indemnitee, effect the settlement or compromise of, or
consent to the entry of any judgment with respect to, any pending or threatened
action or claim in respect of which indemnification or contribution may be
sought hereunder (whether or not the Indemnitee is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the Indemnitee from all liability arising
out of such action or claim and (ii) does not include a statement as to, or an
admission of, fault, culpability or a failure to act, by or on behalf of any
Indemnitee.
(d) If the indemnification provided for in this Section 6 is
unavailable to or insufficient to hold harmless an Indemnitee under Section 6(a)
or (b) hereof in respect of any losses, claims, damages or liabilities (or
actions in respect thereof) referred to therein, then each Indemnitor, in lieu
of indemnifying the Indemnitee, shall contribute to the amount paid or payable
by such Indemnitee
-14-
as a result of such losses, claims, damages or liabilities (or actions in
respect thereof) in such proportion as is appropriate to reflect the relative
fault of the Indemnitor and the Indemnitee in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative fault of such Indemnitor and Indemnitee shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by such Indemnitor or by such
Indemnitee, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The parties
hereto agree that it would not be just and equitable if contribution pursuant to
this Section 6(d) were determined solely by pro rata allocation (even if the
Electing Holders or any Underwriters, selling agents or other securities
professionals or all of them were treated as one entity for such purpose) or by
any other method of allocation which does not take account of the equitable
considerations referred to in this Section 6(d). The amount paid or payable by
an Indemnitee as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above shall be deemed to include any
legal or other fees or expenses reasonably incurred by such Indemnitee in
connection with investigating or defending any such action or claim. 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 obligations of the Electing
Holders and any Underwriters, selling agents or other securities professionals
in this Section 6(d) to contribute shall be several in proportion to the
percentage of principal amount of Applicable Securities registered or
underwritten, as the case may be, by them and not jointly and shall be subject
to the limitations set forth in the last sentence of Section 6(b).
(e) The obligations of the Company under this Section 6 shall be in
addition to any liability which the Company may otherwise have to any Indemnitee
and the obligations of any Indemnified Person under this Section 6 shall be in
addition to any liability which such Indemnified Person may otherwise have to
the Company. The remedies provided in this Section 6 are not exclusive and shall
not limit any rights or remedies that may otherwise be available to an
Indemnitee at law or in equity.
7. Miscellaneous. (a) This Agreement, including this Section 7(a), may be
amended, and waivers or consents to departures from the provisions hereof may be
given, only by a written instrument duly executed, (x) in the case of an
amendment, by the Company and (i) the Covered Holders representing a majority of
Registrable Securities at the time outstanding (who shall be deemed to be acting
for themselves and as agents for each Covered Holder), and (ii) any Covered
Holder on whom such amendment would have an adverse effect materially
disproportionate to the Covered Holders in general, or (y) in the case of a
waiver or consent, by the party against whom the waiver or consent, as the case
may be, is to be effective.
-15-
Each Holder of Registrable Securities outstanding at the time of any such
amendment, waiver or consent or thereafter shall be bound by any amendment,
waiver or consent effected pursuant to this Section 7(a), whether or not any
notice, writing or marking indicating such amendment, waiver or consent appears
on the Registrable Securities or is delivered to such holder. Further if at any
time a Covered Holder no longer holds Registrable Securities, the consent of
such Covered Holder shall no longer be required to amend this agreement or to
waive or consent to departures from the provisions hereof.
(b) All notices, requests and other communications to any party
hereunder shall be in writing (including facsimile transmission) and shall be
given as follows:
if to the Company, to:
PharmaNetics, Inc.
0000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Chief Executive Officer
Fax: (000) 000-0000
with a copy (which shall not constitute notice) to:
Wyrick, Robbins, Xxxxx & Xxxxxx LLP
The Summit
0000 Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Fax: (000) 000-0000
if to any Series B Preferred Shareholder or any Covered Holder, to:
Such Series B Preferred Shareholder or Covered Holder
as shown on Exhibit A hereof.
with a copy (which shall not constitute notice) to:
Xxxxx & Xxxxxxx L.L.P.
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Fax: (000) 000-0000
-16-
(c) The parties to this Agreement intend that all Covered Holders of
Registrable Securities shall be entitled to receive the benefits of and shall be
bound by the terms and provisions of this Agreement by reason of electing to
have Applicable Securities included in a Registration Statement. Except as
provided herein respecting Covered Holders, the terms and provisions of this
Agreement shall not be assignable or transferable and there shall be no
third-party beneficiaries hereto. All the terms and provisions of this Agreement
shall be binding upon, shall inure to the benefit of and shall be enforceable by
the respective legal successors and permitted assigns of the parties hereto and
any Covered Holder.
(d) This Agreement may be executed in any number of counterparts and
by the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
(e) The headings in this Agreement are for convenience of reference
only and shall not limit or otherwise affect the meaning hereof.
(f) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NORTH CAROLINA, WITHOUT GIVING EFFECT TO ANY
PROVISIONS RELATING TO CONFLICTS OF LAWS.
(g) The provisions of this Agreement shall be deemed severable and
the invalidity or unenforceability of any provision shall not affect the
validity or enforceability of the other provisions hereof. If any provision of
this Agreement, or the application thereof to any Person or entity or any
circumstance, is invalid or unenforceable, (i) a suitable and equitable
provision shall be substituted therefor in order to carry out, so far as may be
valid and enforceable, such provision and (ii) the remainder of this Agreement
and the application of such provision to other Persons, entities or
circumstances shall not be affected by such invalidity or unenforceability, nor
shall such invalidity or unenforceability affect the validity or enforceability
of such provision, or the application thereof, in any other jurisdiction.
(h) The respective indemnities, agreements, representations,
warranties and other provisions set forth in this Agreement or made pursuant
hereto shall remain in full force and effect, regardless of any investigation
(or any statement as to the results thereof) made by or on behalf of any
Electing Holder, any director, officer or partner of such Electing Holder, any
agent or Underwriter, any director, officer or partner of such agent or
Underwriter, or any controlling person of any of the foregoing, and shall
survive the transfer and registration of the Applicable Securities of such
Holder.
-17-
(i) Each Covered Holder and Electing Holder shall cooperate with
respect to any Registration effected under this Agreement and shall provide such
information, documents, and instruments as may be reasonably requested in
connection therewith.
(j) Each Covered and Electing Holder agrees, if so requested by the
managing underwriter or underwriters in any underwritten offering of the
Company's securities (based on the negative impact that the inclusion of such
Covered and Electing Holder's Registrable Securities would have on the pricing
of such offering), not to effect any sale or distribution of Registrable
Securities during the 7 days prior to and the 90 days after any registration
statement for any underwritten offering of the Company's securities (either for
its own account or for the benefit of the holders of any securities of the
Company) has become effective (or such shorter period of time that is sufficient
and appropriate, in the opinion of the managing underwriter, in order to
complete the sale and distribution of securities included in such registration).
(k) The obligations of the Company hereunder shall terminate upon
the earlier of (i) the date upon which there ceases to be more than twenty
percent (20%) of the Registrable Securities outstanding, and (ii) the fifth
anniversary of the date of this Agreement.
(l) The Company shall have no liability to any Covered Holder for
any actions taken or omitted on the basis of actions of the Series B Preferred
Shareholders as agents for the Covered Holders.
(m) The Company shall use reasonable efforts to timely file all
reports required to be filed with respect to the Company under Section 13 or
Section 15(d) of the Exchange Act for so long as the Company has obligations
hereunder.
(n) Promptly after the date on which a registration statement filed
by the Company under the Securities Act becomes effective, the Company shall
undertake to make publicly available, and available to the Electing Holders,
such information as is necessary to enable the Electing Holders to make sales of
Registrable Securities pursuant to Rule 144. The Company shall furnish to any
Holder, upon request, a written statement executed by the Company as to the
steps it has taken to comply with the current public information requirements of
Rule 144.
-18-
IN WITNESS WHEREOF, the parties hereto have caused this Registration Rights
Agreement to be executed by their respective authorized officers as of the day
and year first above written.
PHARMANETICS, INC.
By:_______________________________________
Name:
Title:
SHAREHOLDERS:
CAMDEN PARTNERS STRATEGIC
FUND II-A, L.P.
By: Camden Partners Strategic II, LLC,
Its General Partner
By:_______________________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Member
CAMDEN PARTNERS STRATEGIC
FUND II-B, L.P.
By: Camden Partners Strategic II, LLC,
Its General Partner
By:_______________________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Member
AIG DKR SOUNDSHORE PRIVATE
INVESTORS HOLDING FUND LTD.
By:________________________________
Name: Xxxxxxx Xxxxxx
Title: Authorized Signatory
REGISTRATION RIGHTS AGREEMENT SIGNATURE PAGE
BAYSTAR CAPITAL II, LP, a Delaware limited
partnership
By: BayStar Capital Management, LLC,
Its General Partner
By:___________________________________________
Name: Xxxxxx X. Xxxxx
Title: Managing Member
REGISTRATION RIGHTS AGREEMENT SIGNATURE PAGE
CAPITAL VENTURES INTERNATIONAL
By: Heights Capital Management,
Its Authorized Agent
By:__________________________________
Name: Xxxxxx Xxxxxxxx
Title: Investment Manager
REGISTRATION RIGHTS AGREEMENT SIGNATURE PAGE
CRESTVIEW CAPITAL FUND I, LP
By:____________________________________
Name: Xxxxxxx Xxxx
Title: Managing Partner
CRESTVIEW CAPITAL FUND II, LP
By:____________________________________
Name: Xxxxxxx Xxxx
Title: Managing Partner
CRESTVIEW CAPITAL OFFSHORE FUND, INC.
By:____________________________________
Name: Xxxxxxx Xxxx
Title: Secretary
REGISTRATION RIGHTS AGREEMENT SIGNATURE PAGE
MAINFIELD ENTERPRISES INC.
By:_____________________________________________
Name: Xxxxxxx X. Xxxxxxxxx
Title: Attorney-in-Fact
REGISTRATION RIGHTS AGREEMENT SIGNATURE PAGE
OMICRON MASTER TRUST
By: Omicron Capital L.P.,
As Advisor
By: Omicron Capital Inc.,
Its General Partner
By:______________________________________
Name: Xxxxxxx Xxxxxx
Title: President
REGISTRATION RIGHTS AGREEMENT SIGNATURE PAGE
SMITHFIELD FIDUCIARY LLC
By:_______________________________
Name: Xxxx X. Chill
Title: Authorized Signatory
REGISTRATION RIGHTS AGREEMENT SIGNATURE PAGE
EXHIBIT A
TO THE REGISTRATION RIGHTS AGREEMENT
DATED AS OF MAY 1, 2003
Series B Preferred Shareholders
Camden Partners Strategic Fund II-A, L.P.
Camden Partners Strategic Fund II-B, L.P.
Xxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx
and Xxxxxxx X. Berkeley
AIG DKR SoundShore Private Investors Holding Fund Ltd.
0000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Phone: (000) 000-0000
Attention: Xxxxxxx Xxxxxx
BayStar Capital I, LP
c/o BayStar Capital Management, LLC
00 X. Xxx Xxxxxxx Xxxxx Xxxx., Xxxxx 0X
Xxxxxxxx, Xxxxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxx Xxxxx
Capital Ventures International
c/o Heights Capital Management
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxx Xxxxxxxx
Crestview Capital Fund I, LP
Crestview Capital Fund II, LP
Crestview Capital Offshore Fund, Inc.
00 Xxxxxx Xxxxx, Xxxxx X
Xxxxxxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxx
Mainfield Enterprises Inc.
c/o Sage Capital Growth Inc.
000 Xxxxxxx Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxx Xxxxx
Omicron Master Trust
c/o Omicron Capital
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
Smithfield Fiduciary LLC
c/o Highbridge Capital Management, LLC
9 West 00/xx/ Xxxxxx
00/xx/ Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxx X. Xxxxxx
and Xxxx X. Chill
2
EXHIBIT B
TO THE REGISTRATION RIGHTS AGREEMENT
DATED AS OF MAY 1, 2003
PharmaNetics, Inc.
Notice of Registration Statement
and
Selling Shareholder Questionnaire
(Date)
Reference is hereby made to the Registration Rights Agreement (the
"Registration Rights Agreement") between PharmaNetics, Inc. (the "Company") and
the Series B Preferred Shareholders named therein. Pursuant to the Registration
Rights Agreement, the Company [has filed] with the United States Securities and
Exchange Commission (the "Commission") a registration statement on Form _______
(the "Registration Statement") for the registration and resale under the
Securities Act of 1933, as amended (the "Securities Act"), of the Company's
[Title of Securities] (the "Securities"). All capitalized terms not otherwise
defined herein shall have the meanings ascribed thereto in the Registration
Rights Agreement.
Each Holder of Registrable Securities is entitled to have the
Registrable Securities owned by it included in the Registration Statement. In
order to have Registrable Securities included in the Registration Statement,
this Notice of Registration Statement and Selling Shareholder Questionnaire
("Notice and Questionnaire") must be completed, executed and delivered to the
Company's counsel at the address set forth herein for receipt ON OR BEFORE
[DEADLINE FOR RESPONSE]. Holders of Registrable Securities who do not complete,
execute and return this Notice and Questionnaire by such date (i) will not be
named as selling shareholders in the Registration Statement and (ii) may not use
the Prospectus forming a part thereof for resales of Registrable Securities.
Certain legal consequences arise from being named as a selling
shareholder in the Registration Statement and related Prospectus. Accordingly,
Holders of Registrable Securities are advised to consult their own securities
law counsel regarding the consequences of being named or not being named as a
selling shareholder in the Registration Statement and related Prospectus.
ELECTION
The undersigned Holder (the "Selling Shareholder") of Registrable
Securities hereby elects to include in the Registration Statement the
Registrable Securities beneficially owned by it and listed below in Item (3).
The undersigned, by signing and returning this Notice and Questionnaire, agrees
to be bound with respect to such Registrable Securities by the terms and
conditions of this Notice and Questionnaire and the Registration Rights
Agreement, including, without limitation, Section 6 of the Registration Rights
Agreement, as if the undersigned Selling Shareholder were an original party
thereto.
Upon any sale of Registrable Securities pursuant to the Registration
Statement, the Selling Shareholder will be required to deliver to the Company
the Notice of Transfer set forth in Appendix A to the Prospectus.
The Selling Shareholder hereby provides the following information to
the Company and represents and warrants that such information is accurate and
complete:
QUESTIONNAIRE
(1) (a) Full Legal Name of Selling Shareholder:
(b) Full Legal Name of Registered Holder (if not the same as in (a)
above) of Registrable Securities Listed in (3) below:
(2) Address for Notices to Selling Shareholder:
Telephone:
Fax:
Contact Person:
(3) Except as set forth below in this Item (3), the undersigned does not
beneficially own any Securities or Common Stock.
(a) Principal amount or number of Registrable Securities (as defined
in the Registration Rights Agreement) beneficially owned:___
(b) Principal amount or number of Registrable Securities which the
undersigned wishes to be included in the Registration Statement:___
(4) Beneficial Ownership of Other Securities of the Company:
Except as set forth below in this Item (4), the undersigned Selling
Shareholder is not the beneficial or registered owner of any shares of Common
ii
Stock or any other securities of the Company, other than the Securities and
shares of Common Stock listed above in Item (3).
State any exceptions here:
(5) Relationships with the Company:
Except as set forth below, neither the Selling Shareholder nor
any of its affiliates, officers, directors or principal equity holders (5
percent or more) has held any position or office or has had any other material
relationship with the Company (or its predecessors or affiliates) during the
past three years.
State any exceptions here:
(6) Plan of Distribution:
Except as set forth below, the undersigned Selling Shareholder
intends to distribute the Registrable Securities listed above in Item (3) only
as follows (if at all): Such Registrable Securities may be sold from time to
time directly by the undersigned Selling Shareholder or, alternatively, through
underwriters, broker-dealers or agents. Such Registrable Securities may be sold
in one or more transactions at fixed prices, at prevailing market prices at the
time of sale, at varying prices determined at the time of sale, or at negotiated
prices. Such sales may be effected in transactions (which may involve crosses or
block transactions) (i) on any national securities exchange or quotation service
on which the Registered Securities may be listed or quoted at the time of sale,
(ii) in the over-the-counter market, (iii) in transactions otherwise than on
such exchanges or services or in the over-the-counter market, or (iv) through
the writing of options. In connection with sales of the Registrable Securities
or otherwise, the Selling Shareholder may enter into hedging transactions with
broker-dealers, which may in turn engage in short sales of the Registrable
Securities in the course of hedging the positions they assume. The Selling
Shareholder may also sell Registrable Securities short and deliver Registrable
Securities to close out such short positions, or loan or pledge Registrable
Securities to broker-dealers that in turn may sell such securities.
State any exceptions here:
By signing below, the Selling Shareholder acknowledges that it
understands its obligation to comply, and agrees that it will comply, with the
provisions of the Exchange Act and the rules and regulations thereunder,
particularly Regulation M.
In the event that the Selling Shareholder transfers all or any
portion of the Registrable Securities listed in Item (3) above after the date on
which such information is provided to the Company, the Selling Shareholder
agrees to notify
iii
the transferee(s) at the time of the transfer of its rights and obligations
under this Notice and Questionnaire and the Registration Rights Agreement.
By signing below, the Selling Shareholder consents to the disclosure of
the information contained herein in its answers to Items (1) through (6) above
and the inclusion of such information in the Registration Statement and related
Prospectus. The Selling Shareholder understands that such information will be
relied upon by the Company in connection with the preparation of the
Registration Statement and related Prospectus.
In accordance with the Selling Shareholder's obligation under Section 4
of the Registration Rights Agreement to provide such information as may be
required by law for inclusion in the Registration Statement, the Selling
Shareholder agrees to promptly notify the Company of any inaccuracies or changes
in the information provided herein which may occur subsequent to the date hereof
at any time while the Registration Statement remains in effect. All notices
hereunder and pursuant to the Registration Rights Agreement shall be made in
writing by hand-delivery, first-class mail, or air courier guaranteeing
overnight delivery as follows:
(i) To the Company:
PharmaNetics, Inc.
0000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Chief Executive Officer
Fax: (000) 000-0000
(ii) With a copy to:
Wyrick, Robbins, Xxxxx & Xxxxxx LLP
The Summit
0000 Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Fax: (000) 000-0000
Once this Notice and Questionnaire is executed by the Selling
Shareholder and received by the Company's counsel, the terms of this Notice and
Questionnaire, and the representations and warranties contained herein, shall be
binding on, shall inure to the benefit of and shall be enforceable by the
respective successors, heirs, personal representatives, and assigns of the
Company and the Selling Shareholder (with respect to the Registrable Securities
beneficially owned by such Selling Shareholder and listed in Item (3) above).
This Agreement shall be governed in all respects by the laws of the State of
North Carolina.
iv
IN WITNESS WHEREOF, the undersigned, by authority duly given, has
caused this Notice and Questionnaire to be executed and delivered either in
person or by its duly authorized agent.
Dated:
Selling Shareholder
By:
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON
OR BEFORE [DEADLINE FOR RESPONSE] TO THE COMPANY'S COUNSEL AT:
Wyrick, Robbins, Xxxxx & Xxxxxx LLP
The Summit
0000 Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Fax: (000) 000-0000
v
