EXHIBIT 99.4
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and entered
into as of this 27th day of November, 2002 by and among TRINITY BIOTECH PLC, a
corporation organized under the laws of the Republic of Ireland (the "Company"),
and the persons identified as Purchasers pursuant to that certain Purchase
Agreement of even date herewith by and among the Company and such Purchasers
(the "Purchase Agreement"). The parties hereby agree as follows:
1. Definitions.
Capitalized terms used herein but not otherwise defined shall have the
meaning ascribed thereto in the Purchase Agreement. As used in this Agreement,
the following terms shall have the following meanings:
"Additional Registrable Securities" shall mean any shares of Common Stock
which are included within the definition of Registrable Securities but not
included in any Registration Statement filed pursuant to Section 2(a)(i) below.
"ADRs" means the Company's American Depository Receipts, each representing
one share of Common Stock, which are quoted on the Nasdaq Small-Cap Market of
The Nasdaq Stock Market.
"Common Stock" shall mean the Company's Class "A" Ordinary Shares, nominal
value IR(pound)0.01 per share.
"Conversion Price" shall have the meaning set forth in the Notes.
"Prospectus" shall mean the prospectus included in any Registration
Statement, as amended or supplemented by any prospectus supplement, with respect
to the terms of the offering of any portion of the Registrable Securities or
Additional Registrable Securities covered by such Registration Statement and by
all other amendments and supplements to the prospectus, including post-effective
amendments and all material incorporated by reference in such prospectus.
"Purchasers" shall mean the purchasers identified in the Purchase Agreement
and any subsequent holder of any Notes, Warrants, Registrable Securities or
Additional Registrable Securities as a result of a transfer of such securities.
"Register," "registered" and "registration" refer to a registration made by
preparing and filing a registration statement or similar document in compliance
with the 1933 Act (as defined below), and the declaration or ordering of
effectiveness of such registration statement or document.
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"Registrable Securities" shall mean (i) the Underlying Shares, the Warrant
Shares and any other shares of Common Stock, represented by the ADRs, issued or
issuable (a) upon conversion of, or payment of interest or repayment of
principal under, the Notes, and upon the exercise of the Warrants, or (b) upon
any distribution with respect to, any exchange for or any replacement of such
Notes or Warrants, or (c) upon any conversion, exercise or exchange of any
securities issued in connection with any such distribution, exchange or
replacement; (ii) securities, represented by the ADRs, issued or issuable upon
any stock split, stock dividend, recapitalization or similar event with respect
to such shares of Common Stock; and (iii) any other security, represented by the
ADRs, issued as a dividend or other distribution with respect to, in exchange
for, or in replacement of, the securities referred to in the preceding clauses.
"Registration Statement" shall mean any registration statement of the
Company filed under the 1933 Act that covers the resale of any of the
Registrable Securities or Additional Registrable Securities pursuant to the
provisions of this Agreement, amendments and supplements to such Registration
Statement, including post-effective amendments, all exhibits and all material
incorporated by reference in such Registration Statement.
"SEC" means the U.S. Securities and Exchange Commission.
"1933 Act" means the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.
"1934 Act" means the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder.
2. Registration.
(a) Registration Statements.
(i) Registrable Securities. Promptly following the closing of the
purchase and sale of Notes and Warrants contemplated by the Purchase
Agreement (the "Closing Date") (but no later than thirty (30) days after
the Closing Date), the Company shall prepare and file with the SEC one
Registration Statement on Form F-3 (or, if Form F-3 is not then available
to the Company, on such form of registration statement as is then available
to effect a registration for resale of the Registrable Securities, subject
to the Purchasers' consent), covering the resale of the Registrable
Securities in an amount equal to 175% of the number of Underlying Shares
issuable upon full conversion of the Notes at the Conversion Price as of
the filing date plus 100% of the number of shares of Common Stock necessary
to permit the exercise in full of the Warrants (in each case without regard
to any restrictions on beneficial ownership). Such Registration Statement
also shall cover, to the extent allowable under the 1933 Act and the rules
promulgated thereunder (including Rule 416), such indeterminate number of
additional shares of Common Stock resulting from stock splits, stock
dividends or similar transactions with respect to the Registrable
Securities. No securities shall be included in the Registration Statement
without the consent of the Purchasers other than the Registrable
Securities. The Registration Statement (and each amendment or supplement
thereto) shall be provided in accordance with Section 3(c) to the
Purchasers and their counsel prior to its filing or other submission.
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(ii) Additional Registrable Securities. At any time and from time to
time upon the written demand of any Purchaser following the existence of
any Additional Registerable Securities, and in any event within thirty (30)
days following such demand, the Company shall prepare and file with the SEC
one Registration Statement on Form F-3 (or, if Form F-3 is not then
available to the Company, on such form of registration statement as is then
available to effect a registration for resale of the Additional Registrable
Securities) covering the resale of the Additional Registrable Securities in
an amount equal to the number of Additional Registrable Securities. Such
Registration Statement also shall cover, to the extent allowable under the
1933 Act and the rules promulgated thereunder (including Rule 416), such
indeterminate number of additional shares of Common Stock resulting from
stock splits, stock dividends or similar transactions with respect to the
Additional Registrable Securities. The Registration Statement (and each
amendment or supplement thereto) shall be provided in accordance with
Section 3(c) to the Purchaser and its counsel prior to its filing or other
submission.
(b) Expenses. The Company will pay all expenses associated with each
registration, including the Purchasers' reasonable expenses (including
reasonable attorneys fees), in connection with the registration but excluding
discounts, commissions, fees of underwriters, selling brokers, dealer managers
or similar securities industry professionals.
(c) Effectiveness.
(i) The Company shall use its best efforts to have each Registration
Statement declared effective as soon as practicable. If (A) the
Registration Statement covering Registrable Securities is not declared
effective by the SEC within ninety (90) days following the Closing Date (or
140 days following the Closing Date in the event of a full SEC review of
the Registration Statement), or the Registration Statement covering
Additional Registrable Securities is not declared effective by the SEC
within three (3) months following demand of a Purchaser relating to the
Additional Registrable Securities to be covered thereby (or four (4) months
following such demand in the event of a full SEC review of the Registration
Statement) (each of the foregoing deadlines, a "Registration Date"), (B)
after a Registration Statement has been declared effective by the SEC,
sales cannot be made pursuant to such Registration Statement for any reason
(including without limitation by reason of a stop order, or the Company's
failure to update the Registration Statement) but except as excused
pursuant to subparagraph (ii) below, (C) the ADRs generally or the
Registrable Securities (or Additional Registrable Securities after issuance
and registration) specifically are not listed or included for quotation on
the Nasdaq National Market System, the Nasdaq Small-Cap Market, the New
York Stock Exchange or the American Stock Exchange (each an "Approved
Market") or trading of the Common Stock is suspended or halted thereon, or
(D) the Company fails, refuses or is otherwise unable to timely issue
Underlying Shares upon conversion of Notes or Warrant Shares upon exercise
of the Warrants, in accordance with the terms of the Notes and Warrants, or
unlegended certificates for ADRs as required under the Agreements, in each
case within ten (10) days following the Purchaser's written demand for
issuance of such Underlying Shares or Warrant Shares or certificates, then
the Company will make pro-rata payments to the Purchaser as liquidated
damages and not as a penalty, in an amount equal to 2% of the sum of the
aggregate principal amount then outstanding under the Notes (1.25% for any
Blackout Period due solely to clause (A) above) for each month (or portion
thereof) following the Registration Date during which any of the events
described in (A), (B), (C) or (D) above occurs and is continuing (the
"Blackout Period"). Each such payment shall be due and payable within five
(5) days of the end of each month (or ending portion thereof) of the
Blackout Period until the termination of the Blackout Period. Such payments
shall be in partial compensation to the Purchasers, and shall not
constitute the Purchasers' exclusive remedy for such events. The Blackout
Period shall terminate upon (w) the effectiveness of the applicable
Registration Statement in the case of (A) and (B) above; (x) listing or
inclusion and/or trading of the ADRs on an Approved Market in the case of
(C) above; (y) delivery of such shares or ADRs in the case of (D) above;
and (z) in the case of the events described in (A) or (B) above, the
earlier termination of the Registration Period (as defined in Section 3(a)
below). The amounts payable as liquidated damages pursuant to this
paragraph shall be payable, at the option of the Purchasers, in lawful
money of the United States or in shares of Common Stock, represented by
ADRs, at the lower of the Conversion Price or the closing bid price of the
ADRs on the Principal Market on the last trading day of the applicable
month, and amounts payable as liquidated damages shall be paid monthly
within five (5) business days of the last day of each month following the
commencement of the Blackout Period until the termination of the Blackout
Period. Amounts payable as liquidated damages hereunder shall cease when a
Purchaser no longer holds Notes, Warrants, Registrable Securities or
Additional Registrable Securities, as applicable.
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(ii) For not more than five (5) consecutive trading days or for a
total of not more than twenty (20) trading days in any consecutive twelve
(12) month period, the Company may delay the disclosure of material
non-public information concerning the Company, by terminating or suspending
effectiveness of any registration contemplated by this Section, the
disclosure of which at the time is not, in the good faith opinion of the
Company, in the best interests of the Company (an "Allowed Delay");
provided, that the Company shall promptly (a) notify the Purchasers in
writing of the existence of (but in no event, without the prior written
consent of a Purchaser, shall the Company disclose to such Purchaser any of
the facts or circumstances regarding) material non-public information
giving rise to an Allowed Delay, and (b) advise the Purchasers in writing
to cease all sales under the Registration Statement until the end of the
Allowed Delay.
(d) Underwritten Offering. If any offering pursuant to a Registration
Statement pursuant to Section 2(a) hereof involves an underwritten offering, the
Company shall have the right to select an investment banker and manager to
administer the offering, which investment banker or manager shall be reasonably
satisfactory to the Purchasers.
3. Company Obligations. The Company will use its best efforts to effect the
registration of the Registrable Securities and Additional Registrable Securities
in accordance with the terms hereof, and pursuant thereto the Company will, as
expeditiously as possible:
(a) use its best efforts to cause such Registration Statement to become
effective and to remain continuously effective for a period (the "Registration
Period") that will terminate upon the earlier of (i) the date on which all
Registrable Securities or Additional Registrable Securities have been sold (and
no Notes or Warrants remain outstanding), (ii) the date on which all Registrable
Securities or Additional Registrable Securities, as the case may be, may be sold
pursuant to Rule 144(k) (and no Notes or Warrants remain outstanding), and (iii)
the sixth anniversary of the Closing Date.
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(b) prepare and file with the SEC such amendments and post-effective
amendments to the Registration Statement and the Prospectus as may be necessary
to keep the Registration Statement effective for the period specified in Section
3(a) and to comply with the provisions of the 1933 Act and the 1934 Act with
respect to the distribution of all Registrable Securities and Additional
Registrable Securities; provided that, at a time reasonably prior to the filing
of a Registration Statement or Prospectus, or any amendments or supplements
thereto, the Company will furnish to the Purchasers copies of all documents
proposed to be filed, which documents will be subject to the comments of the
Purchasers;
(c) permit counsel designated by the Purchasers to review each Registration
Statement and all amendments and supplements thereto no fewer than seven (7)
business days prior to their filing with the SEC and not file any document to
which such counsel reasonably objects;
(d) furnish to the Purchasers and their legal counsel (i) promptly after
the same is prepared and publicly distributed, filed with the SEC, or received
by the Company, one copy of any Registration Statement and any amendment
thereto, each preliminary prospectus and Prospectus and each amendment or
supplement thereto, and each letter written by or on behalf of the Company to
the SEC or the staff of the SEC, and each item of correspondence from the SEC or
the staff of the SEC, in each case relating to such Registration Statement
(other than any portion of any thereof which contains information for which the
Company has sought confidential treatment), and (ii) such number of copies of a
Prospectus, including a preliminary prospectus, and all amendments and
supplements thereto and such other documents as each Purchaser may reasonably
request in order to facilitate the disposition of the Registrable Securities and
Additional Registrable Securities owned by such Purchaser;
(e) in the event the Company selects an underwriter for the offering, the
Company shall enter into and perform its reasonable obligations under an
underwriting agreement, in usual and customary form, including, without
limitation, customary indemnification and contribution obligations, with the
underwriter of such offering;
(f) if required by the underwriter, or if any Purchaser is described in the
Registration Statement as an underwriter, the Company shall furnish, on the
effective date of the Registration Statement, on the date that Registrable
Securities or Additional Registrable Securities, as applicable, are delivered to
an underwriter, if any, for sale in connection with the Registration Statement
and at periodic intervals thereafter from time to time on request, (i) an
opinion, dated as of such date, from independent legal counsel representing the
Company for purposes of such Registration Statement, in form, scope and
substance as is customarily given in an underwritten public offering, addressed
to the underwriter and any such Purchaser and (ii) a letter, dated such date,
from the Company's independent certified public accountants in form and
substance as is customarily given by independent certified public accountants to
underwriters in an underwritten public offering, addressed to the underwriter
and any such Purchaser;
(g) make effort to prevent the issuance of any stop order or other
suspension of effectiveness and, if such order is issued, obtain the withdrawal
of any such order at the earliest possible moment;
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(h) furnish to each Purchaser at least five copies of the Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules by air mail or reputable courier within three (3)
business days of the effective date thereof;
(i) prior to any public offering of Registrable Securities or Additional
Registrable Securities, use its best efforts to register or qualify or cooperate
with the Purchasers and their counsel in connection with the registration or
qualification of such Registrable Securities or Additional Registrable
Securities, as applicable, for offer and sale under the securities or blue sky
laws of such jurisdictions requested by the Purchaser and do any and all other
reasonable acts or things necessary or advisable to enable the distribution in
such jurisdictions of the Registrable Securities or Additional Registrable
Securities covered by the Registration Statement;
(j) cause all Registrable Securities or Additional Registrable Securities
covered by a Registration Statement to be listed on each securities exchange,
interdealer quotation system or other market on which similar securities issued
by the Company are then listed at all times during the Registration Period;
(k) immediately notify the Purchasers, at any time when a Prospectus
relating to the Registrable Securities or Additional Registrable Securities is
required to be delivered under the 1933 Act, upon discovery that, or upon the
happening of any event as a result of which, the Prospectus included in such
Registration Statement, as then in effect, includes an untrue statement of a
material fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein not misleading in the light of the
circumstances then existing, and at the request of any such holder, promptly
prepare and furnish to such holder a reasonable number of copies of a supplement
to or an amendment of such Prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such Registrable Securities or Additional
Registrable Securities, as applicable, such Prospectus shall not include an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading in
the light of the circumstances then existing; and
(l) otherwise use its best efforts to comply with all applicable rules and
regulations of the SEC under the 1933 Act and the 1934 Act, take such other
actions as may be reasonably necessary to facilitate the registration of the
Registrable Securities and Additional Registrable Securities, if applicable,
hereunder; and make available to its security holders, as soon as reasonably
practicable, but not later than the Availability Date (as defined below), an
earnings statement covering a period of at least twelve months, beginning after
the effective date of each Registration Statement, which earnings statement
shall satisfy the provisions of Section 11(a) of the 1933 Act (for the purpose
of this subsection 3(l), "Availability Date" means the 45th day following the
end of the fourth fiscal quarter that includes the effective date of such
Registration Statement, except that, if such fourth fiscal quarter is the last
quarter of the Company's fiscal year, "Availability Date" means the 90th day
after the end of such fourth fiscal quarter).
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4. Due Diligence Review; Information. The Company shall make available,
during normal business hours, for inspection and review by the Purchasers who
may be deemed an underwriter, advisors to and representatives of such Purchasers
(who may or may not be affiliated with the Purchasers and who are reasonably
acceptable to the Company), and any underwriter participating in any disposition
of Common Stock on behalf of the Purchasers pursuant to the Registration
Statement or amendments or supplements thereto or any blue sky, NASD or other
filing, all financial and other records, all SEC Documents and other filings
with the SEC, and all other corporate documents and properties of the Company as
may be reasonably necessary for the purpose of establishing a due diligence
defense under applicable securities laws and such other reasonable purposes, and
cause the Company's officers, directors and employees, within a reasonable time
period, to supply all such information reasonably requested by such Purchasers
or any such representative, advisor or underwriter in connection with such
Registration Statement (including, without limitation, in response to all
questions and other inquiries reasonably made or submitted by any of them),
prior to and from time to time after the filing and effectiveness of the
Registration Statement for the sole purpose of enabling such Purchasers and such
representatives, advisors and underwriters and their respective accountants and
attorneys to conduct initial and ongoing due diligence with respect to the
Company and the accuracy of the Registration Statement.
The Company shall not disclose material nonpublic information to the
Purchasers, or to advisors to or representatives of the Purchasers, unless prior
to disclosure of such information the Company identifies such information as
being material nonpublic information and provides the Purchasers, such advisors
and representatives with the opportunity to accept or refuse to accept such
material nonpublic information for review. The Company may, as a condition to
disclosing any material nonpublic information hereunder, require the Purchasers'
advisors and representatives to enter into a confidentiality agreement
(including an agreement with such advisors and representatives prohibiting them
from trading in Common Stock during such period of time as they are in
possession of material nonpublic information) in form reasonably satisfactory to
the Company and the Purchasers. Nothing herein shall require the Company to
disclose material nonpublic information to the Purchasers or their advisors or
representatives.
5. Obligations of the Purchasers.
(a) Each Purchaser shall furnish in writing to the Company such information
regarding itself, the Registrable Securities or Additional Registrable
Securities, as applicable, held by it and the intended method of disposition of
the Registrable Securities or Additional Registrable Securities, as applicable,
held by it, as shall be reasonably required to effect the registration of such
Registrable Securities or Additional Registrable Securities, as applicable, and
shall execute such documents in connection with such registration as the Company
may reasonably request. At least fifteen (15) business days prior to the first
anticipated filing date of any Registration Statement, the Company shall notify
each Purchaser of the information the Company requires from such Purchaser if
such Purchaser elects to have any of the Registrable Securities or Additional
Registrable Securities included in the Registration Statement.
(b) Each Purchaser, by its acceptance of the Registrable Securities and
Additional Registrable Securities, if any, agrees to cooperate with the Company
as reasonably requested by the Company in connection with the preparation and
filing of a Registration Statement hereunder, unless such Purchaser has notified
the Company in writing of its election to exclude all of its Registrable
Securities or Additional Registrable Securities, as applicable, from the
Registration Statement. Each Purchaser agrees to comply with the applicable
prospectus delivery requirements under the 1933 Act in connection with any
resales of Registrable Securities pursuant to the Registration Statement.
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(c) In the event the Company determines to engage the services of an
underwriter which engagement is reasonably acceptable to the Purchasers, each
Purchaser agrees to enter into and perform its obligations under an underwriting
agreement, in usual and customary form, including, without limitation, customary
indemnification and contribution obligations, with the managing underwriter of
such offering and take such other actions as are reasonably required in order to
expedite or facilitate the dispositions of the Registrable Securities or
Additional Registrable Securities, as applicable.
(d) Each Purchaser agrees that, upon receipt of any notice from the Company
of the happening of any event rendering a Registration Statement no longer
effective, such Purchaser will immediately discontinue disposition of
Registrable Securities or Additional Registrable Securities pursuant to the
Registration Statement covering such Registrable Securities or Additional
Registrable Securities, until the Purchaser's receipt of the copies of the
supplemented or amended prospectus filed with the SEC and declared effective
and, if so directed by the Company, the Purchaser shall deliver to the Company
(at the expense of the Company) or destroy all copies in the Purchaser's
possession of the prospectus covering the Registrable Securities or Additional
Registrable Securities, as applicable, current at the time of receipt of such
notice.
(e) No Purchaser may participate in any third party underwritten
registration hereunder unless it (i) agrees to sell the Registrable Securities
or Additional Registrable Securities, as applicable, on the basis provided in
any underwriting arrangements in usual and customary form entered into by the
Company, (ii) completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents reasonably required
under the terms of such underwriting arrangements, and (iii) agrees to pay its
pro rata share of all underwriting discounts and commissions and any expenses in
excess of those payable by the Company pursuant to the terms of this Agreement.
6. Indemnification.
(a) Indemnification by Company. The Company agrees to indemnify and hold
harmless, to the fullest extent permitted by law, the Purchasers, each of their
officers, directors, partners and employees and each person who controls the
Purchasers (within the meaning of the 0000 Xxx) against all losses, claims,
damages, liabilities, costs (including, without limitation, reasonable
attorney's fees) and expenses imposed on such person caused by (i) any untrue or
alleged untrue statement of a material fact contained in any Registration
Statement, Prospectus or any preliminary prospectus or any amendment or
supplement thereto or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as the same are based upon any
information furnished in writing to the Company by such Purchasers, expressly
for use therein, or (ii) any violation by the Company of any federal, state or
common law, rule or regulation applicable to the Company in connection with any
Registration Statement, Prospectus or any preliminary prospectus, or any
amendment or supplement thereto, and shall reimburse in accordance with
subparagraph (c) below, each of the foregoing persons for any legal and any
other expenses reasonably incurred in connection with investigating or defending
any such claims. The foregoing is subject to the condition that, insofar as the
foregoing indemnities relate to any untrue statement, alleged untrue statement,
omission or alleged omission made in any preliminary prospectus or Prospectus
that is eliminated or remedied in any Prospectus or amendment or supplement
thereto, the above indemnity obligations of the Company shall not inure to the
benefit of any indemnified party if a copy of such corrected Prospectus or
amendment or supplement thereto had been provided to such indemnified party and
was not sent or given by such indemnified party at or prior to the time such
action was required of such indemnified party by the 1933 Act and if delivery of
such Prospectus or amendment or supplement thereto would have eliminated (or
been a sufficient defense to) any liability of such indemnified party with
respect to such statement or omission. Indemnity under this Section 5(a) shall
remain in full force and effect regardless of any investigation made by or on
behalf of any indemnified party and shall survive the permitted transfer of the
Registrable Securities and Additional Registrable Securities.
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(b) Indemnification by Holder. In connection with any registration pursuant
to the terms of this Agreement, each Purchaser will furnish to the Company in
writing such information as the Company reasonably requests concerning the
holders of Registrable Securities and Additional Registrable Securities or the
proposed manner of distribution for use in connection with any Registration
Statement or Prospectus and agrees, severally but not jointly, to indemnify and
hold harmless, to the fullest extent permitted by law, the Company, its
directors, officers, employees, stockholders and each person who controls the
Company (within the meaning of the 0000 Xxx) against any losses, claims,
damages, liabilities and expense (including reasonable attorney's fees)
resulting from any untrue statement of a material fact or any omission of a
material fact required to be stated in the Registration Statement or Prospectus
or preliminary prospectus or amendment or supplement thereto or necessary to
make the statements therein not misleading, to the extent, but only to the
extent that such untrue statement or omission is contained in any information
furnished in writing by such Purchaser to the Company specifically for inclusion
in such Registration Statement or Prospectus or amendment or supplement thereto
and that such information was substantially relied upon by the Company in
preparation of the Registration Statement or Prospectus or any amendment or
supplement thereto. In no event shall the liability of a Purchaser be greater in
amount than the dollar amount of the proceeds (net of all expenses paid by such
Purchaser and the amount of any damages such holder has otherwise been required
to pay by reason of such untrue statement or omission) received by such
Purchaser upon the sale of the Registrable Securities or Additional Registrable
Securities included in the Registration Statement giving rise to such
indemnification obligation.
(c) Conduct of Indemnification Proceedings. Any person entitled to
indemnification hereunder shall (i) give prompt notice to the indemnifying party
of any claim with respect to which it seeks indemnification and (ii) permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party; provided that any person entitled to
indemnification hereunder shall have the right to employ separate counsel and to
participate in the defense of such claim, but the fees and expenses of such
counsel shall be at the expense of such person unless (a) the indemnifying party
has agreed to pay such fees or expenses, or (b) the indemnifying party shall
have failed to assume the defense of such claim and employ counsel reasonably
satisfactory to such person or (c) in the reasonable judgment of any such
person, based upon written advice of its counsel, a conflict of interest exists
between such person and the indemnifying party with respect to such claims (in
which case, if the person notifies the indemnifying party in writing that such
person elects to employ separate counsel at the expense of the indemnifying
party, the indemnifying party shall not have the right to assume the defense of
such claim on behalf of such person); and provided, further, that the failure of
any indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations hereunder, except to the extent that such
failure to give notice shall materially adversely affect the indemnifying party
in the defense of any such claim or litigation. It is understood that the
indemnifying party shall not, in connection with any proceeding in the same
jurisdiction, be liable for fees or expenses of more than one separate firm of
attorneys at any time for all such indemnified parties. No indemnifying party
will, except with the consent of the indemnified party, consent to entry of any
judgment or enter into any settlement that does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such indemnified party
of a release from all liability in respect of such claim or litigation.
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(d) Contribution. If for any reason the indemnification provided for in the
preceding paragraphs (a) and (b) is unavailable to an indemnified party or
insufficient to hold it harmless, other than as expressly specified therein,
then the indemnifying party shall contribute to the amount paid or payable by
the indemnified party as a result of such loss, claim, damage or liability in
such proportion as is appropriate to reflect the relative fault of the
indemnified party and the indemnifying party, as well as any other relevant
equitable considerations. No person guilty of fraudulent misrepresentation
within the meaning of Section 11(f) of the 1933 Act shall be entitled to
contribution from any person not guilty of such fraudulent misrepresentation. In
no event shall the contribution obligation of a holder of Registrable Securities
or Additional Registrable Securities be greater in amount than the dollar amount
of the proceeds (net of all expenses paid by such holder and the amount of any
damages such holder has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission) received by it upon
the sale of the Registrable Securities or Additional Registrable Securities
giving rise to such contribution obligation.
7. Miscellaneous.
(a) Amendments and Waivers. This Agreement may be amended only by a writing
signed by the parties hereto. The Company may take any action herein prohibited,
or omit to perform any act herein required to be performed by it, only if the
Company shall have obtained the written consent to such amendment, action or
omission to act, of the Purchasers affected by such amendment, action or
omission to act.
(b) Notices. All notices and other communications provided for or permitted
hereunder shall be made as set forth in Section 9.4 of the Purchase Agreement.
(c) Assignments and Transfers by Purchasers. This Agreement and all the
rights and obligations of any Purchaser hereunder may be assigned or transferred
to any transferee or assignee of the Notes, Warrants or Registrable Securities.
A Purchaser may make such assignment or transfer to any transferee or assignee
of any Debenture, Warrant, Registrable Securities or Additional Registrable
Securities, provided that (i) such transfer is made expressly subject to this
Agreement and the transferee agrees in writing to be bound by the terms and
conditions hereof, and (ii) the Company is provided with written notice of such
assignment.
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(d) Assignments and Transfers by the Company. This Agreement may not be
assigned by the Company without the prior written consent of the Purchasers, but
after notice duly given, the Company shall assign its rights and delegate its
duties hereunder to any successor-in-interest corporation, and such
successor-in-interest shall assume such rights and duties, in the event of a
merger or consolidation of the Company with or into another corporation or the
sale of all or substantially all of the Company's assets (and it shall be a
condition to any such merger, consolidation or sale that such
successor-in-interest assume in writing all obligations hereunder).
(e) Benefits of the Agreement. The terms and conditions of this Agreement
shall inure to the benefit of and be binding upon the respective permitted
successors and assigns of the parties. Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the parties hereto or
their respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
(f) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. This Agreement may be
executed by facsimile.
(g) Titles and Subtitles. The titles and subtitles used in this Agreement
are used for convenience only and are not to be considered in construing or
interpreting this Agreement.
(h) Severability. If one or more provisions of this Agreement are held to
be unenforceable under applicable law, such provision shall be excluded from
this Agreement and the balance of this Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its terms
to the fullest extent permitted by law.
(i) Further Assurances. The parties shall execute and deliver all such
further instruments and documents and take all such other actions as may
reasonably be required to carry out the transactions contemplated hereby and to
evidence the fulfillment of the agreements herein contained.
(j) Entire Agreement. This Agreement, together with the Purchase Agreement,
Notes and Warrants and documents contemplated thereby, is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein. This Agreement, together with
the Purchase Agreement, Notes and Warrants and documents contemplated thereby,
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
(k) Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York without regard to principles
of conflicts of law. The parties hereby agree that all actions or proceedings
arising directly or indirectly from or in connection with this Agreement shall
be litigated only in the Supreme Court of the State of New York or the United
States District Court for the Southern District of New York located in New York
County, New York. The parties consent to the jurisdiction and venue of the
foregoing courts and consent that any process or notice of motion or other
application to either of said courts or a judge thereof may be served inside or
outside the State of New York or the Southern District of New York by registered
mail, return receipt requested, directed to the party being served at its
address set forth in this Agreement (and service so made shall be deemed
complete three (3) days after the same has been posted as aforesaid) or by
personal service or in such other manner as may be permissible under the rules
of said courts. The Company irrevocably waives, to the fullest extent permitted
by law, any objection which it may now or hereafter have to the laying of the
venue of any such suit, action, or proceeding brought in such a court and any
claim that suit, action, or proceeding has been brought in an inconvenient
forum. The Company hereby waives any right to a jury trial in connection with
any litigation pursuant to this Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have executed this
Registration Rights Agreement as of the date first written above.
THE COMPANY:
TRINITY BIOTECH PLC
By: /s/ Xxxxxxx Xxxxxx
-------------------
Name: Xxxxxxx Xxxxxx
Title: CFO
THE PURCHASERS:
THE TAIL WIND FUND LTD.
By: TAIL WIND ADVISORY AND
MANAGEMENT LTD., as
investment manager
By: /s/ Xxxxx Xxxxx
---------------
Name: Xxxxx Xxxxx
Title: CEO
SOLOMON STRATEGIC HOLDINGS, INC.
By: /s/ Xxxxxx X. XxxXxxxxx
-----------------------
Name: Xxxxxx X. XxxXxxxxx
Title: Director
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