REGISTRATION RIGHTS AGREEMENT
Exhibit
10.2
THIS
REGISTRATION RIGHTS AGREEMENT (this
“Agreement”), dated
as of May 6, 2005, is made and entered into by and among Theragenics
Corporation, a Delaware corporation (the “Company”),
Xxxxxxx X. Xxxxxxxx and Xxxxxxx X. Xxxxxxxx, each a resident of the State of
Washington (collectively, the “Stockholders”). The
Company and the Stockholders are sometimes herein individually referred to as a
“Party” and,
collectively, as the “Parties.”
W I T N E S S E T H:
WHEREAS, in
connection with the sale of one hundred percent (100%) of the issued and
outstanding capital stock of C.P. Medical Corporation, an Oregon corporation
(the “Transaction”),
pursuant to the terms and conditions of that certain Stock Purchase Agreement,
dated as of April 26, 2005 (the “Stock
Purchase Agreement”), by
and among the Company and the Stockholders, the
Company will issue shares of common stock, par value $.01 per share (the
“Common
Stock”) to the
Stockholders;
WHEREAS, as a
condition to the consummation of the Transaction, the Company is obligated to
provide the Stockholders with certain registration rights with respect to the
Common Stock; and
WHEREAS, the
Company and the Stockholders desire to enter into this Agreement pursuant to
which the Company shall register with the SEC the offer and sale by the
Stockholders of the shares of Common Stock received by the Stockholders in
connection with the Transaction, subject to the terms and conditions of this
Agreement.
NOW,
THEREFORE, for
good and valuable consideration, the premises and the mutual covenants herein
contained, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
Section
1. Definitions.
As used
in this Agreement, the capitalized terms shall have the meanings set forth
below.
(a)
“Agent” shall
mean any Person authorized to act and who acts on behalf of a Party with respect
to the transactions contemplated by this Agreement.
(b)
“Agreement” shall
have the meaning set forth in the introductory paragraph to this
Agreement.
(c)
“Business
Day” shall
mean any day on which commercial banks are not authorized or required by law to
close in the State of Georgia.
(d)
“Common
Stock” shall
have the meaning set forth in the first recital of this
Agreement.
(e)
“Company” shall
have the meaning set forth in the introductory paragraph to this
Agreement.
(f)
“Effectiveness
Period” shall
have the meaning set forth in Section 3 of this Agreement.
(g)
“Indemnified
Party” shall
have the meaning set forth in Section 6(c) of this Agreement.
(h)
“Indemnifying
Party” shall
have the meaning set forth in Section 6(c) of this Agreement.
(i)
“Party” shall
have the meaning set forth in the introductory paragraph to this
Agreement.
(j)
“Person” shall
mean an individual, partnership, corporation, trust or unincorporated
organization, or a government or agency or political subdivision
thereof.
(k)
“Prospectus” shall
mean the prospectus included in the 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 covered by the
Registration Statement and all other amendments and supplements to the
Prospectus, including post-effective amendments and all material incorporated by
reference in such Prospectus.
(l)
“Required
Registration Filing Date” shall
mean August 15, 2005.
(m)
“Registration
Statement” shall
have the meaning set forth in Section 3 of this Agreement.
(n)
“Registrable
Securities” shall
mean shares of Common Stock issued by, or issuable to, the Company to a
Stockholder pursuant to the Stock Purchase Agreement.
(o)
“Restricted
Securities” shall
mean the Registrable Securities upon original issuance thereof, subject to the
provisions of Section 2(a) of this Agreement.
(p)
“Securities
Act” shall
mean the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder, as in effect from time to time.
(q)
“SEC” shall
mean the Securities and Exchange Commission.
(r)
“Stock
Purchase Agreement” shall
have the meaning set forth in the first recital of this Agreement.
(s)
“Transaction” shall
have the meaning set forth in the first recital of this
Agreement.
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(t) “Withdrawn
Registration Statement” shall
have the meaning set forth in Section 5(a) of this Agreement.
Section
2.
Securities
Subject to this Agreement.
(a)
Registrable
Securities. The
securities entitled to the benefits of Sections 3 and 4 of this Agreement are
the Registrable Securities; however, with
respect to any particular Registrable Security, only so long as such security
continues to be a Restricted Security. A Registrable Security ceases to be a
Restricted Security when (i) it has been effectively registered under the
Securities Act and disposed of in accordance with the Registration Statement,
(ii) it has been distributed pursuant to Rule 144 or Rule 145 (or any similar
provisions then in force) under the Securities Act, (iii) it has otherwise been
transferred in a private transaction in which the transferor’s rights under this
Agreement are not assigned, or (iv) it ceases to be outstanding.
(b)
Holders
of Registrable Securities. Any
reference herein to a “Holder” or “Holders” of Registrable Securities shall mean
any Stockholder.
Section
3.
Required
Registration.
The
Company shall prepare
and file with the SEC, as soon as practicable following the date hereof, but no
later than the Required
Registration Filing Date,
a
Registration Statement on Form S-3 pursuant
to Rule 415 of the Securities Act (the
“Registration
Statement”) with
respect to all
of the
Registrable Securities,
and use its commercially reasonable efforts to cause such Registration Statement
to become effective as soon
as practicable thereafter. After
the Registration Statement filed pursuant to this Section 3 has become
effective, the Company shall use its commercially reasonable efforts to keep
such Registration Statement (on Form S-3 or such other form as may then be
available to the Company) effective for a period (the “Effectiveness
Period”) equal
to (i) five years from the initial date that the SEC declares such Registration
Statement effective (subject to any extension pursuant to Sections 5(b) and 5(c)
hereof, or, if such Registration Statement is not effective during any period
within such five-year period, such five-year period shall be extended by the
number of days that the Registration Statement is not effective), or (ii) such
shorter period which shall terminate when all of the Registrable Securities have
been sold, or are eligible to be sold within a single three-month period
pursuant to Rule 144 or any successor thereto. The Company represents and
warrants that it is eligible to register the Registrable Securities on Form S-3
under the Securities Act.
Section
4. Registration
Procedures.
With
respect to the registration of the Registrable Securities pursuant to this
Agreement, the Company will as promptly as reasonably practicable:
(a)
before
filing the Registration Statement, the Prospectus or any amendments or
supplements thereto (excluding documents to be incorporated by reference therein
filed after the effectiveness of the Registration Statement), the Company will,
no later than five (5) Business Days prior to filing, furnish to the Holders
copies of all such documents in substantially the form proposed to be filed
(including documents incorporated therein by
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reference
other than documents previously filed with the SEC), to enable the Holders to
review such documents prior to the filing thereof, and the Company shall make
such reasonable changes thereto (including changes to documents incorporated by
reference other than documents previously filed with the SEC) as may be
reasonably requested by the Holders;
(b)
prepare
and file with the SEC such amendments and post-effective amendments to the
Registration Statement as may be necessary to keep the Registration Statement
continuously effective for the Effectiveness Period; cause the Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented to be
filed with the SEC pursuant to Rule 424 under the Securities Act; and comply
with the provisions of the Securities Act with respect to the disposition of all
securities covered by such Registration Statement during the applicable period
in accordance with this paragraph (b) and the intended methods of disposition by
the Holders thereof set forth in such Registration Statement or supplement to
the Prospectus;
(c)
notify
the Holders promptly, and confirm such notice in writing, (1) when the
Prospectus or any Prospectus supplement or post-effective amendment has been
filed, and, with respect to the Registration Statement or any post-effective
amendment, when the same has become effective, (2) of any request by the SEC for
amendments or supplements to the Registration Statement or the Prospectus or for
additional information, (3) of the issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement or the initiation of
any proceedings for that purpose, (4) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, (5) of the happening of any
event which makes any statement made in the Registration Statement, the
Prospectus or any document incorporated therein by reference untrue or which
requires the making of any changes in the Registration Statement, the Prospectus
or any document incorporated therein by reference in order to make the
statements therein not misleading, so that, in the case of the Registration
Statement, it will not contain any 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, and that in the case of the Prospectus,
it will not contain any 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, in light of the circumstances under which they were made, not
misleading, and (6)of the Company’s good faith determination that it is
appropriate to amend the Registration Statement or supplement the Prospectus
before sales of the Registrable Securities continue.
(d)
use its
commercially reasonable efforts to obtain the withdrawal of any order suspending
the effectiveness of the Registration Statement at the earliest possible
time;
(e)
furnish
to the Holders, without charge, a reasonable number of conformed copies of the
Registration Statement and any post-effective amendment thereto, including
financial statements and schedules, all documents incorporated therein by
reference and all exhibits (including those incorporated by
reference);
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(f)
deliver
to the Holders as many copies of the Prospectus (including each preliminary
prospectus) and any amendment or supplement thereto as such Persons may
reasonably request; the Company hereby consents to the use of the Prospectus or
any amendment or supplement thereto by the Holders in connection with the
offering and sale of the Registrable Securities covered by the Prospectus or any
amendment or supplement thereto;
(g)
prior to
the date on which the Registration Statement is declared effective, use its
commercially reasonable efforts to register or qualify such Registrable
Securities for offer and sale under the securities or blue sky laws of such
jurisdictions as any Stockholder reasonably requests in writing and do any and
all other acts or things necessary or advisable to enable the disposition in
such jurisdictions of the Registrable Securities covered by the Registration
Statement; provided, that
the Company will not be required to qualify generally to do business in any
jurisdiction where it is not then so qualified or to take any action which would
subject it to general service of process in any such jurisdiction where it is
not then so subject;
(h)
cooperate
with the Holders to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold and not bearing any
restrictive legends; and enable such Registrable Securities to be in such
denominations and registered in such names as the Holders may request at least
two (2) Business Days prior to any such sale of Registrable
Securities;
(i)
upon the
occurrence of any event contemplated by paragraph (c)(5) above, prepare a
supplement or post-effective amendment to the Registration Statement or the
Prospectus or any document incorporated therein by reference or file any other
required document so that, as thereafter delivered to the purchasers of the
Registrable Securities, the Prospectus will not contain an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading; and
(j)
provide a
transfer agent and registrar for all Registrable Securities.
The
Company may require the Holders to furnish to the Company such information and
documents regarding the distribution of the Registrable Securities by the
Holders as the Company may from time to time reasonably request in writing, and
the Company’s obligations with respect to registration are subject to such
information being provided on a timely basis.
Each of
the Holders hereby agrees by acquisition of the Registrable Securities that,
upon receipt of any notice from the Company of the happening of any event of the
kind described in Section 4(c)(5) hereof, such Holder will forthwith discontinue
disposition of Registrable Securities until such Holder’s receipt of the copies
of the supplemented or amended Prospectus contemplated by Section 4(i) hereof,
or until it is advised in writing by the Company that the use of the Prospectus
may be resumed, and has received copies of any additional or supplemental
filings which are incorporated by reference in the Prospectus, and, if so
directed by the Company, each Holder will deliver to the Company (at the
Company’s expense) all copies, other than permanent file copies then in such
Holder’s possession, of the Prospectus covering such Registrable Securities
current at the time of receipt of such notice.
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Section
5.
Effect
of Withdrawal and Suspension.
(a)
Withdrawal. If the
Company shall withdraw the Registration Statement prior to the expiration of the
Effectiveness Period (a “Withdrawn
Registration Statement”), the
Holders that continue to hold the Registrable Securities, which shares were
covered by the Withdrawn Registration Statement, shall be entitled to an
additional Registration Statement, and the Company shall use its commercially
reasonable efforts to (i) prepare and file with the SEC, as soon as practicable
following the date of withdrawal of the Withdrawn Registration Statement, an
additional Registration Statement on Form S-3, and (ii) keep such additional
Registration Statement effective for the remainder of the Effectiveness Period
of the Withdrawn Registration Statement. The Company shall reimburse the Holders
for all reasonable legal and other advisory fees incurred by the Stockholders in
connection with the Withdrawn Registration Statement.
(b)
Intentionally
Omitted.
(c)
Suspended
Sales. If the
Company shall give any notice to suspend the disposition of Registrable
Securities pursuant to Section 4(c)(5) hereof, the Company shall extend the
period of time during which the Company is required to maintain the
effectiveness of the Registration Statement pursuant to Section 3 of this
Agreement by the number of days during the period from and including the date of
the giving of such notice to and including the date the Holders either are
advised by the Company that the use of the Prospectus may be resumed or receive
copies of the supplemented or amended Prospectus contemplated by Section
4(j).
Section
6.
Indemnification.
(a)
Indemnification
by Company. The
Company will indemnify and hold harmless, to the full extent permitted by law,
each Holder and their Agents against all losses, claims, damages, liabilities
and expenses to which any such Person may be subject, under the Securities Act
or otherwise, and reimburse all such Persons for any legal or other expenses
incurred with investigating or defending against any such losses, claims,
damages or liabilities, insofar as such losses, claims, damages or liabilities
arise out of or are based upon any untrue or alleged untrue statement of a
material fact contained in a Registration Statement, Prospectus or preliminary
prospectus 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, or any violation or alleged violation by the Company of the
Securities Act, the Securities Exchange Act of 1934, as amended, or applicable
“blue sky” laws, except insofar as the same arise out of or are based upon an
untrue statement of a material fact or omission of a material fact required to
be stated therein or necessary to make the statements therein not misleading,
which statement or omission is made therein in reliance upon and in conformity
with information furnished to the Company by such Holder, expressly for use
therein.
(b)
Indemnification
by Holders. Each
Holder will, severally but not jointly, indemnify and hold harmless, to the full
extent permitted by law, the Company, its directors and officers and each Person
who controls the Company (within the meaning of the Securities Act) against any
losses, claims, damages, liabilities and expenses to which any such Person may
be subject, under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities arise out of or are based upon any untrue or
alleged untrue statement of a material fact
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contained
in the Registration Statement or Prospectus or preliminary prospectus or any
omission or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, to the extent, but only
if and to the extent, that such untrue or alleged untrue statement or omission
or alleged omission is made therein in reliance upon and in conformity with the
information furnished by such Holder or any Agent of a Holder specifically for
inclusion therein.
(c)
Conduct
of Indemnification Proceedings. Any
Person entitled to indemnification (the “Indemnified
Party”)
hereunder will (i) give prompt notice to the indemnifying party (the
“Indemnifying
Party”) of any
claim with respect to which it seeks indemnification, and (ii) unless, in such
Indemnified Party’s reasonable judgment, a conflict of interest may exist
between such Indemnified Party and Indemnifying Party with respect to such
claim, permit such Indemnifying Party to assume at its own expense the defense
of such claim with counsel reasonably satisfactory to the Indemnified Party. The
Indemnified Party shall have the right to participate in the conduct of such
defense by the Indemnifying Party provided that it will pay for the fees of its
own counsel. Whether or not such defense is assumed by the Indemnifying Party,
the Indemnifying Party will not be subject to any liability for any settlement
made without its consent. No Indemnifying Party will consent to entry into any
judgment or enter into any settlement which 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 to such claim or litigation. An
Indemnifying Party who is not entitled to, or elects not to, assume the defense
of a claim will not be obligated to pay the fees and expenses of more than one
counsel for all parties indemnified by such Indemnifying Party with respect to
such claim, unless in the reasonable judgment of any Indemnified Party and any
other of such Indemnified Parties with respect to such claim, such Indemnified
Parties reasonably believe that due to conflict of interests, one counsel will
not be in a position to adequately represent all Indemnified Parties, in which
event the Indemnifying Party shall be obligated to pay the fees and expenses of
such additional counsel or counsels. Failure to give prompt written notice shall
not release the Indemnifying Party from its obligations hereunder, except to the
extent that the Indemnifying Party demonstrates that the defense of such claim
has been materially prejudiced by the Indemnified Party’s failure to give such
notice.
(d)
Continued
Effect. The
indemnification provided for under this Agreement shall remain in full force and
effect regardless of any investigation made by or on behalf of the Indemnified
Party or any officer, director, Agent or person who controls such Indemnified
Party and shall survive the transfer of securities.
(e)
Contribution. If the
indemnification provided for in Section 6(a) or 6(b) is due in accordance with
the terms hereof, but is held by a court of competent jurisdiction to be
unavailable or unenforceable with respect to any losses, claims, damages,
liabilities or expenses referred to herein, then each Indemnifying Party in lieu
of indemnifying such Indemnified Party shall contribute to the amount paid or
payable by such Indemnified Party as a result of the losses, liabilities, claims
or damages referred to in Section 6(a) or 6(b) in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party on the one
hand and any Indemnified Party on the other hand in connection with the
statements or omissions which resulted in such losses, liabilities, claims or
damages. The relative fault shall be determined by
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reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information initially supplied or developed by the Indemnifying Party
or such Indemnified Party and the Parties’ relative intent, knowledge, access to
information and opportunity to correct such untrue statement or omission. The
amount paid by an Indemnified Party as a result of the losses, liabilities,
claims or damages referred to in the first sentence of this Section 6(e) shall
be deemed to include any legal or other expenses reasonably incurred by such
Indemnified Party in connection with investigating or defending any action or
claim which is the subject of this Section 6(e). 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.
Section
7.
Miscellaneous.
(a)
Termination. This
Agreement shall terminate upon termination of the Company’s obligations under
Section 3 of this Agreement, and shall thereupon be of no further force and
effect; provided that
Section 6 shall survive the termination of this Agreement.
(b)
No
Inconsistent Agreements. The
Company will not on or after the date of this Agreement enter into any agreement
with respect to its securities which is inconsistent with the rights granted to
the Stockholders or otherwise conflicts with the provisions hereof.
(c)
Notices. All
notices, requests, demands and other communications required or permitted to be
given hereunder shall be given in accordance with Section 10.01 of the Stock
Purchase Agreement.
(d)
Entire
Agreement. This
Agreement contains the entire agreement among the Parties with respect to the
subject matter hereof, and supersedes all prior agreements, written or oral,
with respect thereto.
(e)
Waivers
and Amendments. This
Agreement may be amended, superseded, cancelled, renewed or extended, and the
terms hereof may be waived, only by a written instrument signed by the Parties
or, in the case of a waiver, by the Party waiving compliance. No delay on the
part of any Party in exercising any right, power or privilege hereunder shall
operate as a waiver thereof.
(f)
Remedies
Cumulative. No
remedy made available by any of the provisions of this Agreement is intended to
be exclusive of any other remedy, and each and every remedy shall be cumulative
and shall be in addition to every other remedy given hereunder or now or
hereafter existing at law or in equity; provided, however, that in no event
shall any party be entitled to recover more than once in respect of any
claim.
(g)
Binding
Effect; No Assignment. This
Agreement shall be binding upon and inure to the benefit of the Parties and
their respective successors. This Agreement is not assignable by the
Stockholders without the prior written consent of the Company and any other
purported assignment shall be null and void.
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(h) Counterparts. This
Agreement may be executed by the Parties hereto in multiple counterparts, each
of which when so executed and delivered shall be an original, but all such
counterparts shall together constitute one and the same instrument.
(i) Interpretive
Provisions.
(i) The words
“hereof,” “herein,” “hereunder” and “hereto” and words of similar import when
used in this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement. Except as expressly set forth herein,
the term “including” when used with or without the term “without limitation”
shall be deemed to be inclusive, and not to the exclusion of any other item
except when used with a negative predicate.
(ii) All
references herein to Sections, subsections, and clauses shall be deemed
references to such parts of this Agreement, unless the context shall otherwise
require.
(j) Headings. The
headings in this Agreement are for reference only and shall not affect the
interpretation of this Agreement.
(k) Severability
of Provisions. If any
provision or any portion of any provision of this Agreement or the application
of such provision or any portion thereof to any Person or circumstance, shall be
held invalid or unenforceable, the remaining portion of such provision and the
remaining provisions of this Agreement, or the application of such provision or
portion of such provision as is held invalid or unenforceable to persons or
circumstances other than those as to which it is held invalid or unenforceable,
shall not be affected thereby.
(l) Choice
of Law. This
Agreement shall be governed and construed in accordance with the laws of the
State of Georgia without regard to the conflicts of laws principles thereof.
Each Party hereby irrevocably submits to the exclusive jurisdiction of Xxxxxx
County, State of Georgia, in any action or proceeding arising out of or relating
to this Agreement and hereby irrevocably agrees, on behalf of itself and on
behalf of such Party’s successor’s, that all claims in respect of such action or
proceeding may be heard and determined in any such court and irrevocably waives
any objection such Party may now or hereafter have as to the venue of any such
suit, action or proceeding brought in such a court or that such court is an
inconvenient forum.
(m) Waiver
of Jury Trial. The
Parties hereby waive trial by jury in any judicial proceeding involving,
directly or indirectly, any matter (whether in tort, contract or otherwise) in
any way arising out of, related to, or connected with this
Agreement.
(n) Expenses. The
Company shall pay all expenses associated with the preparation of the
Registration Statement and the maintaining of its effectiveness. However, the
Holders shall be responsible for the filing fees.
[The
Remainder of This Page Has Been Intentionally Left Blank]
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IN
WITNESS WHEREOF, the
Parties have executed this Agreement as of the date first above
written.
|
COMPANY:
THERAGENICS
CORPORATION
By:
/s/
M. Xxxxxxxxx Xxxxxx
Name:
M.
Xxxxxxxxx Xxxxxx
Title:
Chief
Executive Officer
STOCKHOLDERS:
By:
/s/
Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx
By:
/s/
Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx |
[Signature
Page to Registration Rights Agreement]
