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EXHIBIT 2.2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is dated as of
December 28th, 2000 by and between United Therapeutics Corporation, a Delaware
corporation, with headquarters located at 0000 Xxxxxx Xxxxxx, Xxxxxx Xxxxxx,
Xxxxxxxx 00000 ("UTC"), and Medicomp, Inc. a Florida corporation, with
headquarters located at 0000 Xxxxx Xxxx, Xxxxxxxxx, Xxxxxxx 00000
("Medicomp").
WHEREAS:
A. In connection with the Asset Purchase Agreement by and among the
parties, Telemedical Procedures, LLC, a Florida limited liability company, and
UTSC Sub Acquisition, Inc., a Delaware corporation and a subsidiary of UTC, of
even date herewith (the "Asset Purchase Agreement"), UTC has agreed, upon the
terms and subject to the conditions contained therein, to issue and sell to
Medicomp 257,142 shares of its common stock, par value $.01 per share (the
"Common Stock"); and
B. To induce Medicomp to execute and deliver the Asset Purchase
Agreement, UTC has agreed to provide certain registration rights under the
Securities Act of 1933, as amended, and the rules and regulations thereunder,
or any similar successor statute (collectively, the "1933 Act"), and
applicable state securities laws;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, UTC and Medicomp
hereby agree as follows:
1. DEFINITIONS.
a. As used in this Agreement, the following terms shall have
the following meanings:
(i) "Initial Registrable Securities" means the 128,571
shares of Common Stock delivered to Medicomp at the Closing in accordance with
the terms of the Asset Purchase Agreement.
(ii) "register," "registered," and "registration" refer
to a registration effected by preparing and filing a Registration Statement or
Statements in compliance with the 1933 Act and pursuant to Rule 415 under the
1933 Act or any successor rule providing for offering securities on a
continuous basis ("Rule 415"), and the declaration or ordering of
effectiveness of such Registration Statement by the United States Securities
and Exchange Commission (the "SEC").
(iii) "Registrable Securities" means Initial Registrable
Securities and Subsequent Registrable Securities, collectively.
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(iv) "Registration Statement" means a registration
statement of UTC under the 1933 Act.
(v) "Subsequent Registrable Securities" means all or
any portion of the 128,571 shares of Common Stock delivered to the Escrow
Agent at Closing in accordance with the terms of the Asset Purchase Agreement
which are subsequently released and delivered to Medicomp in accordance with
the terms of the Escrow Agreement (the "Escrow Shares"), together with any
shares of Common Stock issued to Medicomp in accordance with Section 1.5 of
the Asset Purchase Agreement (the "Adjustment Shares").
b. Capitalized terms used herein and not otherwise defined
herein shall have the respective meanings set forth in the Asset Purchase
Agreement.
2. REGISTRATION.
a. Mandatory Registration. UTC shall prepare and, on or prior
to the date which is ninety (90) days after the Closing Date as defined in the
Asset Purchase Agreement (the "Closing Date"), file with the SEC a
Registration Statement on Form S-3 (or, if Form S-3 is not then available, on
such form of Registration Statement as is then available to effect a
registration of the Initial Registrable Securities) covering the resale of the
Initial Registrable Securities. The Registration Statement (and each amendment
or supplement thereto, and each request for acceleration of effectiveness
thereof) shall be provided to Medicomp and its counsel within a reasonable
time prior to its filing or other submission.
UTC shall prepare and, on or prior to the date which is
ninety (90) days following (i) with respect to Escrow Shares, the delivery of
the last of the Subsequent Registrable Securities to Medicomp and termination
of the Escrow Agreement and (ii) with respect to Adjustment Shares, delivery
of the Adjustment Shares to Medicomp in accordance with the terms of the Asset
Purchase Agreement (each, a "Balance Date"), file with the SEC a Registration
Statement on Form S-3 (or, if Form S-3 is not then available, on such form of
Registration Statement as is then available to effect a registration for
resale of the Subsequent Registrable Securities) covering the resale of the
Subsequent Registrable Securities. The Registration Statement (and each
amendment or supplement thereto, and each request for acceleration of
effectiveness thereof) shall be provided to Medicomp and its counsel within a
reasonable time prior to its filing or other submission. The provisions of
Section 2(b) shall be applicable with respect to each Registration Statement
filed pursuant to this Section 2(a).
b. Effectiveness. UTC shall use its best efforts to obtain
effectiveness of the Registration Statements as soon as practicable.
c. Eligibility for Form S-3. UTC represents and warrants that
it currently meets the requirements for the use of Form S-3 for registration
of the sale by Medicomp of the Registrable Securities, and UTC shall file all
reports required to be filed by UTC with the SEC in a timely manner so as to
maintain such eligibility for the use of Form S-3.
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3. OBLIGATIONS OF UTC.
In connection with the registration of the Registrable Securities, UTC
shall have the following obligations:
a. UTC shall use reasonable efforts to cause the Registration
Statements to become effective as soon as possible after such filing, and keep
the Registration Statements effective pursuant to Rule 415 at all times until
the earlier of (i) the date on which all of the Registrable Securities covered
by such Registration Statement have been sold and (ii) the date which is one
year following the date such Registration Statement is declared effective by
the SEC (the "Registration Period").
b. UTC shall prepare and file with the SEC such amendments
(including post-effective amendments) and supplements to the Registration
Statement and the prospectus used in connection with the Registration
Statement as may be necessary to keep the Registration Statement effective at
all times during the Registration Period and, during such period, comply with
the provisions of the 1933 Act with respect to the disposition of all
Registrable Securities covered by the Registration Statements.
c. UTC shall furnish to Medicomp and its legal counsel (i)
promptly after the same is prepared and publicly distributed, filed with the
SEC, or received by UTC, one copy of the Registration Statement and any
amendment thereto, each preliminary prospectus and prospectus and each
amendment or supplement thereto, and, in the case of the Registration
Statements referred to in Section 2(a), each letter written by or on behalf of
UTC 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 UTC 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 Medicomp may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by Medicomp.
d. UTC shall use reasonable efforts to register and qualify
the Registrable Securities covered by the Registration Statements under such
other securities or "blue sky" laws of such jurisdictions in the United States
as may be necessary to permit sale of the Registrable Securities as
contemplated by the Registration Statement, provided, however, that UTC shall
not be required in connection therewith or as a condition thereto to (a)
qualify to do business in any jurisdiction where it would not otherwise be
required to qualify but for this Section 3(d), (b) subject itself to general
taxation in any such jurisdiction, (c) file a general consent to service of
process in any such jurisdiction, (d) provide any undertakings that cause UTC
undue expense or burden, or (e) make any change in its charter or bylaws,
which in each case the Board of Directors of UTC determines to be contrary to
the best interests of UTC and its stockholders.
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e. As promptly as practicable after becoming aware of such
event, UTC shall notify Medicomp of the happening of any event, of which UTC
has knowledge, as a result of which the prospectus included in the
Registration Statement, as then in effect, includes an untrue statement of a
material fact or omits to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, and use reasonable
efforts promptly to prepare a supplement or amendment to the Registration
Statement to correct such untrue statement or omission, and deliver such
number of copies of such supplement or amendment to Medicomp as it may
reasonably request.
f. UTC shall use reasonable efforts to prevent the issuance
of any stop order or other suspension of effectiveness of a Registration
Statement, and, if such an order is issued, to obtain the withdrawal of such
order as soon as reasonably practicable and to notify Medicomp of the issuance
of such order and the resolution thereof.
g. UTC shall permit a single firm of counsel designated by
Medicomp to review the Registration Statement and all amendments and
supplements thereto prior to their filing with the SEC, and not file any
document in a form to which such counsel reasonably objects.
h. UTC shall use reasonable efforts to secure the designation
and quotation of the Registrable Securities covered by the Registration
Statements on the Nasdaq National Market System.
4. OBLIGATIONS OF GUARDIAN.
In connection with the registration of the Registrable Securities,
Medicomp shall have the following obligations:
a. It shall be a condition precedent to the obligations of
UTC to complete the registration pursuant to this Agreement that Medicomp
shall furnish to UTC such information regarding itself, the Registrable
Securities held by it and the intended method of disposition of the
Registrable Securities held by it as shall be reasonably required to effect
the registration of such Registrable Securities and shall execute such
documents in connection with such registration as UTC may reasonably request.
b. By Medicomp's acceptance of the Registrable Securities,
Medicomp agrees to cooperate with UTC as reasonably requested by UTC in
connection with the preparation and filing of the Registration Statements
hereunder, unless Medicomp has notified UTC in writing of Medicomp's election
to exclude all of its Registrable Securities from the Registration Statement.
c. Medicomp agrees that, upon receipt of any notice from UTC
of the happening of any event of the kind described in Section 3(e) or 3(f),
Medicomp will immediately discontinue disposition of the Registrable
Securities pursuant to the Registration Statement covering such Registrable
Securities until Medicomp's receipt of the copies of the supplemented or
amended prospectus contemplated by Section 3(e) or 3(f) and, if so directed by
UTC, Medicomp shall deliver to UTC (at the expense of UTC) or destroy (and
deliver to UTC a certificate of
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destruction) all copies in Medicomp's possession, of the prospectus covering
such Registrable Securities current at the time of receipt of such notice.
5. EXPENSES OF REGISTRATION.
All reasonable expenses, other than commissions and fees and
disbursements of counsel for Medicomp, incurred in connection with
registrations, filings or qualifications pursuant to Sections 2 and 3,
including, without limitation, all registration, listing and qualifications
fees, printers and accounting fees, and the fees and disbursements of counsel
for UTC, shall be borne by UTC.
6. INDEMNIFICATION.
In the event any Registrable Securities are included in a Registration
Statement under this Agreement:
a. To the extent permitted by law, UTC will indemnify, hold
harmless and defend (i) Medicomp and (ii) the affiliates, directors, officers,
partners, employees, agents and each person who controls Medicomp within the
meaning of the 1933 Act or the Securities Exchange Act of 1934, as amended
(the "1934 Act"), if any (each, an "Indemnified Person"), against any joint or
several losses, claims, damages, liabilities or expenses (collectively,
together with actions, proceedings or inquiries by any regulatory or
self-regulatory organization, whether commenced or threatened, in respect
thereof, "Claims") to which any of them may become subject insofar as such
Claims arise out of or are based upon: (i) any untrue statement or alleged
untrue statement of a material fact in a Registration Statement or the
omission or alleged omission to state therein a material fact required to be
stated or necessary to make the statements therein not misleading, (ii) any
untrue statement or alleged untrue statement of a material fact contained in
any preliminary prospectus if used prior to the effective date of such
Registration Statement, or contained in the final prospectus (as amended or
supplemented, if UTC files any amendment thereof or supplement thereto with
the SEC) or the omission or alleged omission to state therein any material
fact necessary to make the statements made therein, in light of the
circumstances under which the statements therein were made, not misleading, or
(iii) any violation or alleged violation by UTC of the 1933 Act, the 1934 Act,
any other law, including, without limitation, any state securities law, or any
rule or regulation thereunder relating to the offer or sale of the Registrable
Securities (the matters in the foregoing clauses (i) through (iii) being,
collectively, "Violations"). Subject to the restrictions set forth in Section
6(c) with respect to the number of legal counsel, UTC shall reimburse Medicomp
and each such controlling person, promptly as such expenses are incurred and
are due and payable, for any reasonable legal fees or other reasonable
expenses incurred by them in connection with investigating or defending any
such Claim. Notwithstanding anything to the contrary contained herein, the
indemnification agreement contained in this Section 6(a): (i) shall not apply
to a Claim arising out of or based upon a Violation which occurs in reliance
upon and in conformity with information furnished in writing to UTC by any
Indemnified Person for such Indemnified Person expressly for use in connection
with the preparation of the Registration Statement or any such amendment
thereof or supplement thereto; (ii) shall not apply to amounts paid in
settlement of any Claim if such settlement is effected without the prior
written consent of UTC; and (iii) with respect to any preliminary prospectus,
shall not inure to the benefit of any
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Indemnified Person if the untrue statement or omission of material fact
contained in the preliminary prospectus was corrected on a timely basis in the
prospectus, as then amended or supplemented, such corrected prospectus was
timely made available by UTC, and the Indemnified Person was promptly advised
in writing not to use the incorrect prospectus prior to the use giving rise to
a Violation and such Indemnified Person, notwithstanding such advise, used it.
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of the Indemnified Person and shall survive
the transfer of the Registrable Securities by Medicomp pursuant to Section 8.
b. In connection with any Registration Statement, Medicomp
agrees severally and not jointly to indemnify, hold harmless and defend, to
the same extent and in the same manner set forth in Section 6(a), UTC, each of
its directors, each of its officers who signs the Registration Statement, each
person, if any, who controls UTC within the meaning of the 1933 Act or the
1934 Act, and any stockholder selling securities pursuant to the Registration
Statement or any of its directors or officers or any person who controls such
stockholder within the meaning of the 1933 Act or the 1934 Act (collectively
and together with an Indemnified Person, an "Indemnified Party"), against any
Claim to which any of them may become subject, under the 1933 Act, the 1934
Act or otherwise, insofar as such Claim arises out of or is based upon any
Violation, in each case to the extent (and only to the extent) that such
Violation occurs in reliance upon and in conformity with written information
furnished to UTC by Medicomp expressly for use in connection with such
Registration Statement; and subject to Section 6(c) Medicomp will reimburse
any legal or other expenses (promptly as such expenses are incurred and are
due and payable) reasonably incurred by them in connection with investigating
or defending any such Claim; provided, however, that the indemnity agreement
contained in this Section 6(b) shall not apply to amounts paid in settlement
of any Claim if such settlement is effected without the prior written consent
of Medicomp, which consent shall not be unreasonably withheld. Such indemnity
shall remain in full force and effect regardless of any investigation made by
or on behalf of such Indemnified Party and shall survive the transfer of the
Registrable Securities by Medicomp pursuant to Section 8. Notwithstanding
anything to the contrary contained herein, the indemnification agreement
contained in this Section 6(b) with respect to any preliminary prospectus
shall not inure to the benefit of any Indemnified Party if the untrue
statement or omission of material fact contained in the preliminary prospectus
was corrected on a timely basis in the prospectus, as then amended or
supplemented.
c. Promptly after receipt by an Indemnified Person or
Indemnified Party under this Section 6 of notice of the commencement of any
action (including any governmental action), such Indemnified Person or
Indemnified Party shall, if a Claim in respect thereof is to be made against
any indemnifying party under this Section 6, deliver to the indemnifying party
a written notice of the commencement thereof, and the indemnifying party shall
have the right to participate in, and, to the extent the indemnifying party so
desires, jointly with any other indemnifying party similarly noticed, to
assume control of the defense thereof with counsel mutually satisfactory to
the indemnifying party and the Indemnified Person or the Indemnified Party, as
the case may be; provided, however, that an Indemnified Person or Indemnified
Party shall have the right to retain its own counsel with the fees and
expenses to be paid by the indemnifying party, if, in the reasonable opinion
of counsel retained by the indemnifying party, the representation by such
counsel of the Indemnified Person or Indemnified Party and the indemnifying
party would be inappropriate due to
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actual or potential differing interests between such Indemnified Person or
Indemnified Party and any other party represented by such counsel in such
proceeding. The indemnifying party shall pay for only one separate legal
counsel for the Indemnified Persons or the Indemnified Parties, as applicable,
and such legal counsel shall be selected by Medicomp if Medicomp is entitled
to indemnification hereunder, or UTC, if UTC is entitled to indemnification
hereunder, as applicable. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action shall not relieve such indemnifying party of any liability to the
Indemnified Person or Indemnified Party under this Section 6, except to the
extent that the indemnifying party is actually prejudiced in its ability to
defend such action. The indemnification required by this Section 6 shall be
made by periodic payments of the amount thereof during the course of the
investigation or defense, as such expense, loss, damage or liability is
incurred and is due and payable.
7. CONTRIBUTION.
To the extent any indemnification by an indemnifying party is prohibited
or limited by law, the indemnifying party agrees to make the maximum
contribution with respect to any amounts for which it would otherwise be
liable under Section 6 to the fullest extent permitted by law; provided,
however, that (i) no contribution shall be made under circumstances where the
maker would not have been liable for indemnification under the fault standards
set forth in Section 6, and (ii) no seller of Registrable Securities guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 0000
Xxx) shall be entitled to contribution from any seller of Registrable
Securities who was not guilty of such fraudulent misrepresentation.
8. AMENDMENT OF REGISTRATION RIGHTS.
Provisions of this Agreement may be amended and the observance thereof
may be waived (either generally or in a particular instance and either
retroactively or prospectively), only with written consent of UTC and Medicomp
(to the extent Medicomp still owns Registrable Securities). Any amendment or
waiver effected in accordance with this Section 8 shall be binding upon
Medicomp and UTC.
9. MISCELLANEOUS.
a. A person or entity is deemed to be a holder of Registrable
Securities whenever such person or entity owns of record such Registrable
Securities. If UTC receives conflicting instructions, notices or elections
from two or more persons or entities with respect to the same Registrable
Securities, UTC shall act upon the basis of instructions, notice or election
received from the registered owner of such Registrable Securities.
b. Notices required or permitted to be given hereunder shall
be in writing and shall be deemed to be sufficiently given when personally
delivered (by hand, by courier, by telephone line facsimile transmission or
other means) or which receipt is refused if delivered by hand or by courier or
sent by certified mail, return receipt requested, properly addressed and with
proper postage pre-paid,
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if to UTC:
United Therapeutics Corporation
0000 Xxxxxx Xxxxxx
Xxxxxx Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxxx
Chairman and CEO
with copy to:
Xxxxx Xxxx LLP
000 00xx Xxxxxx X.X.
Xxxxx 000
Xxxxxxxxxx XX 00000
Attention: XxXxxx Xxxxxx
or, in the case of Medicomp, at such address as indicated on the Asset
Purchase Agreement, or at such other address as each such party furnishes by
notice given in accordance with this Section 9(b), and shall be effective,
when personally delivered, upon receipt and, when so sent by certified mail,
four days after deposit with the United States Postal Service.
c. Failure of any party to exercise any right or remedy under
this Agreement or otherwise, or delay by a party in exercising such right or
remedy, shall not operate as a waiver thereof.
d. This Agreement shall be enforced, governed by and
construed in accordance with the laws of the State of Delaware applicable to
agreements made and to be performed entirely within such State. In the event
that any provision of this Agreement is invalid or unenforceable under any
applicable statute or rule of law, then such provision shall be deemed
inoperative to the extent that it may conflict therewith and shall be deemed
modified to conform with such statute or rule of law. Any provision hereof
which may prove invalid or unenforceable under any law shall not affect the
validity or enforceability of any other provision hereof. The parties hereto
hereby submit to the exclusive jurisdiction of the United States Federal
Courts located in the State of Maryland with respect to any dispute arising
under this Agreement or the transactions contemplated hereby.
e. This Agreement and the Asset Purchase Agreement (including
all schedules and exhibits thereto) constitute the entire agreement among the
parties hereto with respect to the subject matter hereof and thereof. There
are no restrictions, promises, warranties or undertakings, other than those
set forth or referred to herein and therein. This Agreement and the Asset
Purchase Agreement supersede all prior agreements and understandings among the
parties hereto with respect to the subject matter hereof and thereof.
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f. This Agreement shall inure to the benefit of and be
binding upon the successors and permissible assigns of each of the parties
hereto.
g. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
h. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same agreement. This Agreement, once executed by a
party, may be delivered to the other party hereto by facsimile transmission of
a copy of this Agreement bearing the signature of the party so delivering this
Agreement.
i. Each party shall do and perform, or cause to be done and
performed, all such further acts and things, and shall execute and deliver all
such other agreements, certificates, instruments and documents, as the other
party may reasonably request in order to carry out the intent and accomplish
the purposes of this Agreement and the consummation of the transactions
contemplated hereby.
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IN WITNESS WHEREOF, UTC and Medicomp have caused this Agreement to be
duly executed as of the date first above written.
UNITED THERAPEUTICS CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
Its: Chairman and CEO
MEDICOMP, INC.
By : /s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
Its: President
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