Exhibit 10.24
REGISTRATION RIGHTS AND VOTING AGREEMENT
THIS AGREEMENT is made as of March 27, 2001, by and among UroMed
Corporation, a Massachusetts corporation ("UroMed") and the parent of
Providence Merger Corporation, a California corporation ("Merger Sub"), the
stockholders of SSGI, a California corporation (the "Company"), listed on the
signature pages attached hereto (the "Stockholders"), Xxxxxx Xxxxxx, as
representative (the "Representative") of the Stockholders, and the Xxxxxx
Family Trust - 1997, (the "Trust").
This Agreement is made pursuant to an Agreement and Plan of Merger and
Reorganization, dated as of March 26, 2001 (the "Merger Agreement"), by and
among UroMed, Merger Sub, the Company, the Stockholders and the Trust,
whereunder Merger Sub will be merged with and into the Company, the separate
existence of Merger Sub will cease and the Company will continue in existence
as the surviving corporation in the merger. Except as otherwise defined herein,
the capitalized terms used in this Agreement shall have the meanings assigned
to such terms in the Merger Agreement.
In order to induce the Stockholders and the Trust to enter into the Merger
Agreement and to consummate the transactions contemplated thereby, UroMed has
agreed to provide the registration rights set forth in this Agreement.
The parties hereto agree as follows:
1. Definitions.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means the common stock, $0.01 par value per share, of
UroMed.
"Company" has the meaning specified in the preamble.
"Merger Agreement" has the meaning specified in the preamble.
"Person" means an individual, partnership, corporation, association,
trust, joint venture, unincorporated organization, or any government,
governmental department or agency or political subdivision thereof.
"Registrable Securities" means (a) any shares of Common Stock issued or
issuable under the Merger Agreement to (i) the Stockholders or the Trust in
exchange for the shares of common stock of the Company owned by the
Stockholders and (ii) to Xxx X. Xxxxx, Xxxxxx Xxx, Xxxxx Xxxxxx and Xxxx Xxxxxx
in exchange for the discharge of the Company's indebtedness to them, and (b)
any securities issued or issuable with respect to the securities referred to in
clause (a) by way of a stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization. As to any particular Registrable Securities, such securities
will cease to be Registrable Securities when they have been distributed to the
public through a broker, dealer or market purchaser in compliance with Rule 144
under the Securities Act (or any similar rule then in force) or sold pursuant
to an effective registration statement under the Securities Act.
"Registration Expenses" has the meaning specified in ss.4.
"Registration Statement" has the meaning specified in ss.2.
"Securities Act" means the Securities Act of 1933, as amended, or any
successor federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"Stockholders" has the meaning specified in the preamble.
"Trust" has the meaning specified in the preamble.
"UroMed" has the meaning specified in the preamble.
2. Registration on Form S-3. Within sixty (60) days after the Closing (as
defined in the Merger Agreement), UroMed will prepare and file with the
Commission a registration statement on Form S-3 or other appropriate form
covering all of the Registrable Securities (the "Registration Statement"). The
Registration Statement will permit delayed or continuous offerings pursuant to
Rule 415 under the Securities Act.
3. Registration Procedures.
UroMed agrees to use commercially reasonable best efforts to effect the
registration of the Registrable Securities in accordance with the intended
method of disposition thereof, and pursuant thereto UroMed will as
expeditiously as possible:
(a) use reasonable efforts to cause the Registration Statement to
become effective (provided that before filing the Registration Statement
or prospectus or any amendments or supplements thereto, UroMed will
furnish to one counsel, selected by the Representative, copies of all such
documents proposed to be filed, which documents will be subject to the
timely review of such counsel);
(b) prepare and file with the Commission such amendments and
supplements to the Registration Statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective until the earlier of one year after the filing date or
such time as all of the Registrable Securities covered by such
registration statement have been sold and to comply with the provisions of
the Securities Act with respect to the disposition of all securities
covered by the Registration Statement during such effective period in
accordance with the intended methods of disposition by the sellers thereof
set forth in the Registration Statement;
(c) furnish to each seller of Registrable Securities such number of
copies of the Registration Statement, each amendment and supplement
thereto, the prospectus included in the Registration Statement (including
each preliminary prospectus) and such other documents as each such seller
may reasonably request in order to facilitate the disposition of the
Registrable Securities owned by each such seller;
(d) use commercially reasonable best efforts to register or qualify
the Registrable Securities under such other securities or blue sky laws of
such states of the United States as any seller reasonably requests and do
any and all other acts and things which may be reasonably necessary or
advisable to enable such seller to consummate the disposition in such
jurisdictions of the Registrable Securities owned by such seller; provided
that UroMed will not be required (i) to qualify generally to do business
in any jurisdiction where it would not otherwise be required to qualify
but for this subparagraph (d), (ii) to subject itself to taxation in any
such jurisdiction or (iii) to consent to general service of process in any
such jurisdiction;
(e) notify each seller of the Registrable Securities, at any time when
a prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in the Registration Statement contains an untrue
statement of a material fact or omits any fact necessary to make the
statements therein not misleading, and, at the request of any such seller,
UroMed will promptly prepare (and, when completed, give notice to each
seller of Registrable Securities) a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus will not contain an untrue
statement of a material fact or omit to state any fact necessary to make
the statements therein not misleading; provided that upon such
notification by UroMed, each seller of the Registrable Securities will not
offer or sell Registrable Securities until UroMed has notified such seller
that it has prepared a supplement or amendment to such prospectus and
delivered copies of such supplement or amendment to such seller;
(f) cause all the Registrable Securities to be listed on each
securities exchange on which similar securities issued by UroMed are then
listed;
(g) in the event of the issuance of any stop order suspending the
effectiveness of the Registration Statement, or of any order suspending or
preventing the use of any related prospectus or suspending the
qualification of any Registrable Securities included in the Registration
Statement for sale in any jurisdiction, UroMed will use commercially
reasonable best efforts promptly to obtain the withdrawal of such order.
4. Registration Expenses.
All expenses incident to UroMed's performance of or compliance with this
Agreement, including without limitation all registration and filing fees, fees
and expenses of compliance with securities or blue sky laws, printing expenses,
messenger and delivery expenses, and fees and disbursements of counsel for
UroMed and all independent certified public accountants and other Persons
retained by UroMed, UroMed's internal expenses (including, without limitation,
all salaries and expenses of its officers and employees performing legal or
accounting duties), the expense of any annual audit or quarterly review, the
expense of any liability insurance for UroMed and its board of directors and
the expenses and fees for listing the securities to be registered on each
securities exchange on which similar securities issued by UroMed are then
listed (all such expenses being herein called "Registration Expenses"), will be
borne by UroMed.
5. Indemnification.
(a) UroMed agrees to indemnify, protect, defend and hold harmless, to the
extent permitted by law, each holder of Registrable Securities, its officers
and directors and each Person who controls such holder (within the meaning of
the Securities Act) against all losses, claims, damages and liabilities caused
by any untrue or alleged untrue statement of material fact contained in the
Registration Statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein
not misleading, except insofar as the same are (i) caused by or contained in
any information furnished to UroMed by such holder for use therein, (ii) caused
by such holder's failure to deliver a copy of the Registration Statement or
prospectus or any amendments or supplements thereto after UroMed has furnished
such holder with a sufficient number of copies of the same, or (iii) caused by
such holder's sale of Registrable Securities in violation of the proviso to
Section 3(e) hereof.
(b) In connection with the Registration Statement, each holder of
Registrable Securities will furnish to UroMed in writing such information and
affidavits as UroMed reasonably requests for use in connection with any such
registration statement or prospectus and, to the extent permitted by law, will
indemnify UroMed, its directors and officers and each Person who controls
UroMed (within the meaning of the Securities Act) against any losses, claims,
damages and liabilities resulting from any untrue or alleged untrue statement
of material fact contained in the Registration Statement, prospectus or
preliminary prospectus or any amendment thereof or supplement thereto or any
omission or alleged omission of a material fact required to be stated therein
or necessary to make the statements therein not misleading.
(c) Any Person entitled to indemnification hereunder will (i) give prompt
written notice to 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 between such indemnified and indemnifying
parties may exist with respect to such claim, permit such indemnifying party to
assume the defense of such claim with counsel reasonably satisfactory to the
indemnified party. If such defense is assumed, the indemnifying party will not
be subject to any liability for any settlement made by the indemnified party
without its consent (but such consent will not be unreasonably withheld). 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 a
conflict of interest may exist between such indemnified party and any other of
such indemnified parties with respect to such claim. Subject to the foregoing
terms and provisions of this ss.5(c), each indemnifying party hereunder will
reimburse the person entitled to indemnification hereunder for all legal and
other expenses reasonably incurred in connection with investigating and
defending the action or claim for which such indemnified party seeks
indemnification, as such expenses are incurred.
(d) The indemnification provided for under this Agreement will remain in
full force and effect regardless of any investigation made by or on behalf of
the indemnified party or any officer, director or controlling Person of such
indemnified party and will survive the transfer of securities.
6. Voting; Board of Directors.
(a) Each of Xxxxxx Xxxxxx, Xxxxxxx Xxxxxx and the Trust agree that in
connection with any vote of the stockholders of UroMed that each shall vote all
Registrable Securities held by him, her, or it (and to cause any Registrable
Securities held by his, her or its Affiliates to be voted), either (i) in
accordance with the recommendation of UroMed's Board of Directors or (ii) in
the same proportion as UroMed's unaffiliated holders of common stock, with
UroMed's Board of Directors having the right from time to time to elect between
(i) and (ii) above; provided, that such restriction upon each of Xx. Xxxxxx,
Xx. Xxxxxx and the Trust shall terminate upon Xx. Xxxxxx'x removal from
UroMed's board of directors pursuant to Section 6(b) below (but shall not
terminate upon Xx. Xxxxxx'x voluntary resignation from UroMed's board of
directors). In the event either Xx. Xxxxxx, Xx. Xxxxxx or the Trust transfer
any of the common stock held by them to an Affiliate, other than pursuant to
Rule 144 or a registration statement, each will cause such Affiliate to agree
in writing to be bound by this Section 6. Each of Xx. Xxxxxx, Xx. Xxxxxx and
the Trust agree that each of their shares may contain a legend referencing this
Section 6.
(b) Xxxxxx Xxxxxx'x acknowledges and agrees that he may be removed from
UroMed's board of directors, with or without cause, upon a request for removal
by a majority of the board of directors in effect at such time and upon such
request, he shall immediately resign from UroMed's board of directors.
7. Lock Up.
Each Stockholder and the Trust agreenot to effect (and to cause its
Affiliates not to effect) any sale, distribution, pledge or other transfer of
any kind (including any "hedging" or other transaction intended to shift or
limit risk of ownership) of Registrable Securities (or any interest therein),
including a sale pursuant to Rule 144 (or any similar provision then in force)
under the Securities Act, during the 120-day period beginning on date hereof.
Xxxxxx Xxxxxx, Xxxxxxx Xxxxxx and the Trust each further agree not to sell,
distribute, pledge or otherwise transfer more than twenty-five percent (25%) of
the Registrable Securities held by him, her it, as applicable, them in any
twelve month period and in the case of Xx. Xxxxxx, hereby acknowledges , agrees
that he is subject to and shall abide by the UroMed policies governing sales of
UroMed Common Stock by UroMed officers and directors.
Notwithstanding the above, each of the Stockholders and the Trust shall be
permitted, during the 120-day period beginning on date hereof, to transfer the
Registrable Securities to a newly formed entity, with such transfer subject to
the prior approval of UroMed.
8. Miscellaneous.
(a) No Inconsistent Agreements. UroMed will not hereafter enter into any
agreement with respect to its securities which is inconsistent with the rights
granted to the holders of Registrable Securities under this Agreement.
(b) Adjustments Affecting Registrable Securities. UroMed will not take any
action, or permit any change to occur, with respect to its securities which
would materially and adversely affect the ability of the holders of Registrable
Securities to include such Registrable Securities in a registration undertaken
pursuant to this Agreement or which would materially and adversely affect the
marketability of such Registrable Securities.
(c) Remedies. Except as otherwise expressly provided herein, nothing
herein expressed or implied is intended or shall be construed to confer upon or
to give any Person, other than the parties hereto and their respective
shareholders, any rights or remedies under or by reason of this Agreement.
(d) Amendments and Waivers. Except as otherwise provided herein, the
provisions of this Agreement may be amended or waived only upon the prior
written consent of UroMed and the Representative (if, and only to the extent
that, the rights and obligations of such parties hereto are adversely
affected).
(e) Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective heirs, successors and
permitted assigns. Neither this Agreement nor the obligations of any party
hereunder shall be assignable or transferable by such party without the prior
written consent of the other parties hereto. In addition, whether or not any
express assignment has been made, the provisions of this Agreement which are
for the benefit of purchasers or holders of Registrable Securities are also for
the benefit of, and enforceable by, any subsequent holder of Registrable
Securities.
(f) Severability. In the event that any covenant, condition, or other
provision herein contained is held to be invalid, void, or illegal by any court
of competent jurisdiction, the same shall be deemed to be severable from the
remainder of this Agreement and shall in no way affect, impair, or invalidate
any other covenant, condition, or other provision contained herein.
(g) Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
(h) Sections and Section Headings. The headings of sections and
subsections are for reference only and shall not limit or control the meaning
thereof.
(i) Governing Law. This Agreement shall be construed and enforced in
accordance with, and rights of the parties shall be governed by, the internal
laws of the Commonwealth of Massachusetts (without reference to principles of
conflicts or choice of law that would cause the application of the internal
laws of any other jurisdiction).
(j) Submission to Jurisdiction; Waivers. Each of the parties hereto, for
itself and on behalf of its successors, assigns and transferees, hereby
irrevocably and unconditionally:
(i) submits for itself and its property in any legal action or
proceeding relating to this Agreement or for recognition and enforcement of any
judgment in respect thereof, to the exclusive general jurisdiction of the
courts of the Commonwealth of Massachusetts, the courts of the United States of
America for the District of Massachusetts, and appellate courts from any
thereof;
(ii) consents that any such action or proceeding may be brought in
such courts, and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or
claim the same;
(iii) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail (or
any substantially similar form of mail), postage prepaid, at its address as
provided in clause (k) hereof or at such other address as it shall have
notified each of the other parties hereto in the manner provided in clause (k)
hereof;
(iv) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law; and
(v) waives trial by jury in any legal action or proceeding relating to
this Agreement and for any counterclaim therein.
(k) Arbitration.
(i) All disputes or claims arising under or in any way relating to
this Agreement shall be settled by arbitration before a panel of three
arbitrators (with one designated by UroMed and one designated by the
Stockholders and the Trust, and the third arbitrator designated by the first
two) pursuant to the rules of the American Arbitration Association. Any
arbitrator designated by UroMed or the Stockholders and the Trust must be an
"Independent Person." For the purposes of this Section 8(k), an "Independent
Person" shall be an individual who is not and has not been (i) a director,
officer, employee, agent or shareholder of any party hereto, (ii) a consultant
to any party hereto, (iii) a person with a direct or indirect financial
interest in any contract with any party hereto, (iv) a director, officer or key
employee of a company at a time when such company was party to a contract with
any party hereto, or (v) a relative of any person referred to in clauses (i),
(ii), (iii) or (iv) above. As used in the immediately preceding sentence, the
term "any party hereto" shall be deemed to include any affiliates of the
parties hereto. Any such arbitration shall take place in Boston, Massachusetts.
Arbitration may be commenced at any time by UroMed or the Stockholders or the
Trust giving written notice to the other party hereto that such dispute has
been referred to arbitration under this Section 8(k). The third arbitrator
shall be selected as prescribed above, but if the first two arbitrators do not
so agree within 30 days after the date of the notice referred to above, the
selection shall be made pursuant to the rules of the American Arbitration
Association from the Commercial Arbitration Panel maintained by such
Association. Any award rendered by the arbitrators shall be conclusive and
binding upon the parties hereto; provided, however, that any such award shall
be accompanied by a written opinion of the arbitrators giving the reasons for
the award. In making such award, the arbitrators shall be authorized to award
interest on any amount awarded. This provision for arbitration shall be
specifically enforceable by the Stockholders, the Trust and UroMed and the
decision of the arbitrators in accordance herewith shall be final and binding
and there shall be no right of appeal therefrom. Each of the Stockholders, the
Trust and UroMed shall pay its own expenses of arbitration and the expenses of
the arbitrators shall be equally shared; provided, however, that if in the
opinion of the arbitrators any claim for indemnification or any defense or
objection thereto was frivolous or in bad faith, the arbitrators may assess, as
part of the award, all or any part of the arbitration expenses of the other
party (including reasonable attorneys' fees) and of the arbitrators against the
party raising such unreasonable claim, defense or objection.
(ii) To the extent that arbitration may not be legally permitted
hereunder and the Stockholders, the Trust and UroMed do not at the time of such
dispute or claim mutually agree to submit such dispute or claim to arbitration
either the Stockholders, or the Trust or UroMed may commence a civil action in
a court of appropriate jurisdiction to resolve disputes or claims hereunder.
Nothing contained in this Section 8(k) shall prevent the Stockholders, the
Trust and UroMed from settling any dispute or claim by mutual agreement at any
time.
(iii) Neither the Stockholders, nor the Trust, nor UroMed shall be
precluded hereby from seeking, from the courts of any jurisdiction, provisional
or equitable remedies of a type not available in arbitration, including without
limitation, temporary restraining orders and preliminary or permanent
injunctions, nor shall the pursuit of such provisional or equitable relief
constitute a waiver or modification of such party's right and obligation to
arbitrate any related or unrelated dispute which is otherwise subject to
arbitration under this Agreement, unless such waiver is expressed in writing
and signed by such party. In the event any person not a party to this Agreement
shall commence any interpleader or similar action which either directly or
indirectly raises issues which are subject to arbitration hereunder, the
Stockholders, the Trust and UroMed shall seek a stay of such proceedings
pending arbitration in accordance with this Agreement.
(l) Notices. All notices, demands and other communications hereunder shall
be in writing or by written telecommunication, and shall be deemed to have been
duly given if delivered personally or if mailed by certified mail, return
receipt requested, postage prepaid, or if sent by overnight courier, or sent by
written telecommunication, as follows:
If to UroMed:
UroMed Corporation
0000 Xxxxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxxxx
President and CEO
With a copy to:
Xxxx X. Xxxxxxxxxxxx, Esq.
Xxxxxxx Xxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
If to the Representative:
c/o SSGI
0000 Xxxxxxxxx Xxxxx, Xxxxx 00
Xxxxx, Xxxxxxxxxx 00000
With a copy to:
W. Xxxxxxx Xxxxxx, Esq.
Xxxxx & Xxxxx, P.C.
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000-0000
Any such notice shall be effective (a) if delivered personally, when
received, (b) if sent by overnight courier, when receipted for, (c) if mailed,
three (3) days after being mailed as described above, and (d) if sent by
written telecommunication, when dispatched.
(m) Entire Agreement. This Agreement contains the entire understanding of
the parties, supersedes all prior agreements and understandings relating to the
subject matter hereof.
(n) Further Assurances. The parties agree to take such reasonable steps
and execute such other and further documents as may be necessary or appropriate
to cause the terms and conditions contained herein to be carried into effect.
(o) Public Statements or Releases. Each of the parties hereto agrees that
prior to the consummation of the Closing no party to this Agreement will make,
issue or release any public announcement, statement or acknowledgment of the
existence of, or reveal the status of, this Agreement or the transactions
provided for herein, without first obtaining the consent of the other party
hereto. Nothing contained in this Section clause (n) shall prevent either party
from making such disclosures as such party may consider necessary to satisfy
such party's legal or contractual obligations.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement as of the date first above written.
UROMED CORPORATION
By: /s/ Xxxxxx Xxxxxxxxxx
Xxxxxx Xxxxxxxxxx
President and CEO
REPRESENTATIVE:
/s/ Xxxxxx Xxxxxx
Xxxxxx Xxxxxx
STOCKHOLDERS:
/s/ Xxxxxx Xxxxxx
Xxxxxx Xxxxxx
/s/ Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxx
TRUST:
XXXXXX FAMILY TRUST - 1997
By: /s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
By: /s/ Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxx
