EXHIBIT 10.10
EXECUTION COPY -
INVESTOR RIGHTS AGREEMENT
INVESTOR RIGHTS AGREEMENT made as of September 15, 2000 by and among (i)
Given Imaging Ltd., an Israeli corporation (the "Company"), (ii) the Purchasers
listed on Exhibit A (the "Purchasers") of that certain Preferred Share Purchase
Agreement of even date herewith (the "Series A Purchase Agreement"), (iii) the
existing holders of Ordinary Shares in the Company listed on EXHIBIT A hereto
(the "Ordinary Shareholders"), and (iv) the Bridge Purchasers (as defined in the
Series A Purchase Agreement). Such parties may become party to this Agreement
upon executing and delivering signature pages hereto no later than October 8,
2000, except that the Bridge Purchasers may become party to this Agreement upon
executing and delivering signature pages hereto no later than October 30, 2000.
The Purchasers, the Ordinary Shareholders and the Bridge Purchasers may be
referred to herein individually as an "Investor," and collectively as the
"Investors". An Investor who is both a Purchaser and an Ordinary Shareholder
will be deemed, for the purpose of this Agreement, as a Purchaser with respect
to the Series A Shares held thereby, and as an Ordinary Shareholders with
respect to the Ordinary Shares held thereby at the date hereof.
WHEREAS, the Company proposes to issue and sell an aggregate of up to
11,911,557 Series A Convertible Preferred Shares, par value NIS 0.01 per share,
to the Purchasers pursuant to the Series A Purchase Agreement and additional
3,138,876 of such shares (collectively, the "Series A Shares"), to the Bridge
Purchasers pursuant to the Bridge Agreements (as defined in the Series A
Purchase Agreement);
WHEREAS, as a condition to entering into the Series A Purchase Agreement,
the Purchasers have requested that the Company extend to them registration
rights and certain other rights and covenants as set forth herein;
WHEREAS, as a condition to approving the Company's entering into the
Series A Purchase Agreement, the Ordinary Shareholders have requested that the
Company extend to them registration rights and certain other rights and
covenants as set forth herein
WHEREAS, the Board of Directors of the Company has determined that it is
in the best interests of the Company that the Company enter into this Agreement;
NOW, THEREFORE, in consideration of the covenants and agreements set forth
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby mutually acknowledged, the parties hereto
covenant and agree as follows:
GENERAL PROVISIONS
1.1 SHARES SUBJECT TO THIS AGREEMENT. The Investors expressly agree that
the terms and restrictions of this Agreement shall apply to all shares of the
Company's share capital which any of them now owns or hereafter acquires by any
means, including without limitation by purchase, assignment or operation of law,
or as a result of any share dividend, share split, reorganization,
reclassification, whether voluntary or involuntary, or other similar
transaction, and to any shares of the Company's share capital of any successor
in interest of the Company,
whether by sale, merger, consolidation or other similar transaction, or by
purchase, assignment or operation of law (the "Shares").
1.2 NO PARTNERSHIP RELATIONSHIP. Notwithstanding, but not in limitation
of, any other provision of this Agreement, the parties understand and agree that
the creation, management and operation of the Company shall not create or imply
a general partnership between or among the Investors and shall not make any
Investor the agent or partner of any other Investor for any purpose.
1.3 CERTAIN DEFINITIONS. As used in this Agreement, the following terms
shall have the following respective meanings:
"AFFILIATE" has the meaning ascribed to that term in Rule 12b-2 under the
Exchange Act, or any successor rule.
"AMENDED ARTICLES" shall mean the Amended and Restated Articles of
Association as adopted or as shall be adopted by the Company pursuant to the
Series A Purchase Agreement, as they may hereafter be amended in accordance with
their terms on the date hereof.
"COMMISSION" shall mean the Securities and Exchange Commission and any
successor agency of the Federal government administering the Securities Act and
the Exchange Act.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as amended,
and any similar or successor Federal statute, and the rules and regulations of
the Commission thereunder, all as the same shall be in effect from time to time.
"INITIAL PUBLIC OFFERING" shall mean the Company's first firm commitment
underwritten public offering of its Ordinary Shares registered under the
Securities Act.
"ORDINARY SHARES" shall mean (i) the ordinary shares, NIS 0.01 par value
per share, of the Company, (ii) any other capital shares of the Company, however
designated, authorized on or after the date hereof, which shall neither be
limited to a fixed sum or percentage of par value in respect of the rights of
the holders thereof to participate in dividends nor entitled to a preference
prior or equal to any class of preferred shares of the Company in the
distribution of assets upon the voluntary or involuntary liquidation,
dissolution or winding up of the Company; and (iii) any other securities into
which or for which any of the securities described in (i) or (ii) may be
converted or exchanged pursuant to any recapitalization, reorganization, merger,
consolidation, sale of assets or other similar event.
"ORDINARY REGISTRABLE SECURITIES" shall mean Registrable Securities (other
than Registrable Securities as defined in clauses (i) or (ii) in the definition
of Registrable Securities) held by the Ordinary Shareholders on the date hereof.
"PERSON" means an individual, corporation, partnership, joint venture,
trust or unincorporated organization, or a government or any agency or political
subdivision thereof.
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"QUALIFIED PUBLIC OFFERING" shall mean a public offering of Ordinary
Shares of the Company, pursuant to a registration statement filed with the
Commission under the Securities Act on Form F-1 or its then equivalent, in which
(i) the aggregate gross proceeds to the Company equals or exceeds US$30,000,000
at a pre-money valuation of the Company of not less than US$150,000,000 pursuant
to which the Ordinary Shares are listed for trading on a national US stock
exchange or over-the-counter market.
The terms "REGISTER", "REGISTERED" and "REGISTRATION" shall refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act and applicable rules and regulations
thereunder, and the declaration or ordering of the effectiveness of such
registration statement, or, as the context may require, under the Exchange Act
or applicable state securities laws.
"REGISTRABLE SECURITIES" shall mean (i) Ordinary Shares or other
securities issued or issuable pursuant to the conversion of the Series A
Preferred Shares; (ii) Ordinary Shares or other securities issued or issuable
with respect to the Series A Shares by reason of any share split, share
dividend, recapitalization, reorganization, merger, consolidation, sale of
assets or similar event (a "Reorganization"), (iii) Ordinary Shares held by the
Ordinary Shareholders on the date hereof (and expressly excluding any such
shares acquired by the Ordinary Shareholders after the date hereof other than as
described in the immediately following clause (iv)), (iv) other Ordinary Shares
or other securities issued or issuable with respect to such Ordinary Shares in
connection with any Reorganization, excluding in any event securities which have
been (a) registered under the Securities Act pursuant to an effective
registration statement filed thereunder and disposed of in accordance with the
registration statement covering them, (b) publicly sold pursuant to Rule 144
under the Securities Act, or (c) sold by a person in a transaction in which the
holder's registration rights have not been assigned in accordance with Section
3.14 hereof. Wherever reference is made in this Agreement to a request or
consent of holders of a certain percentage of Registrable Securities, or a right
attaching to holders of Registrable Securities, the determination of such
percentage shall be calculated on the basis of shares of Ordinary Shares issued
or issuable upon conversion of the Series A Preferred Shares, and such right
shall likewise inure to the benefit of the holders of Series A Preferred Shares,
even if such conversion has not been effected.
"REGISTRATION EXPENSES" shall mean the expenses so described in Section
4.8.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended, and
any similar or successor Federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect from time to time.
"SERIES A SHARES" and "SERIES A PREFERRED SHARES" shall mean the Series A
Convertible Preferred Shares.
"SERIES A REGISTRABLE SECURITIES" shall mean Registrable Securities (other
than Ordinary Registrable Securities) held by Purchasers.
"SELLING EXPENSES" shall mean the expenses so described in Section 3.8.
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"SUBSIDIARY" or "SUBSIDIARIES" shall mean any corporation, partnership,
trust or other entity of which the Company and/or any of its other Subsidiaries
directly or indirectly owns at the time a majority of the outstanding shares of
any class of equity security of such corporation, partnership, trust or other
entity.
2. PERCENTAGE MAINTENANCE RIGHTS
2.1 GRANT OF PREEMPTIVE RIGHTS. The Company and the Ordinary Shareholders
hereby grant the holders of Series A Preferred Shares the preemptive percentage
maintenance rights set forth in the Amended Articles, the terms of which are
hereby incorporated herein by reference; PROVIDED that in addition to the
foregoing purchase right OrbiMed Advisors LLC and its Affiliates or funds under
its control (collectively, "OrbiMed"), and no other Series A Holder, shall have
the one-time right to purchase in the Initial Public Offering the greater of (i)
that number of securities issued in the such issuance that would maintain
OrbiMed's proportionate ownership of Ordinary Shares as of the date immediately
preceding such issuance or (ii) 10% of the securities issued in such new
issuance (provided that if, due to interpretations by the staff of the
Commission, such purchase might cause material difficulties in implementing such
Initial Public Offering, the Company and OrbiMed agree to negotiate in good
faith modifications to such purchase right to eliminate such difficulties).
3. TRANSFER OF REGISTRABLE SECURITIES; REGISTRATION
3.1 RESTRICTIVE LEGEND. Each certificate representing Series A Shares and
Registrable Securities issued on or after the date hereof ("Restricted
Securities") shall, except as otherwise provided in this Section 3.1 or in
Section 3.2, be stamped or otherwise imprinted with a legend substantially in
the following form (in addition to any legend required under applicable state
securities laws):
"The securities represented by this certificate have not been registered
under the Securities Act of 1933 or any other securities laws. These
securities have been acquired for investment and not with a view to
distribution or resale. Such securities may not be offered for sale, sold,
delivered after sale, transferred, pledged or hypothecated in the absence
of an effective registration statement covering such securities under the
Securities Act of 1933 and any other applicable securities laws, unless
the holder shall have obtained an opinion of counsel reasonably
satisfactory to the corporation that such registration is not required."
Upon request of a holder of such a certificate, the Company shall remove
the foregoing legend from the certificate or issue to such holder a new
certificate therefor free of any transfer legend, if there is an effective
registration statement covering the securities represented by such certificate
or, with such request, the Company shall have received either the opinion
referred to in Section 3.2(a)(i) or the "no-action" letter referred to in
Section 3.2(a)(ii).
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3.2 NOTICE OF PROPOSED TRANSFER.
(a) Prior to any proposed sale, pledge, hypothecation or other transfer of
any Restricted Securities (other than under the circumstances described in
Section 3.3, 3.4 or 3.5), the holder thereof shall give written notice to the
Company of its intention to effect such sale, pledge, hypothecation or other
transfer. Each such notice shall describe the manner of the proposed sale,
pledge, hypothecation or other transfer and, if requested by the Company shall
be accompanied by either (i) an opinion of counsel reasonably satisfactory to
the Company to the effect that the proposed sale, pledge, hypothecation or other
transfer may be effected without registration under the Securities Act or (ii) a
"no action" letter from the Commission to the effect that the distribution of
such securities without registration will not result in a recommendation by the
staff of the Commission that action be taken with respect thereto, whereupon the
holder of such share shall be entitled to transfer such share in accordance with
the terms of its notice. Each certificate for Restricted Securities transferred
as above provided shall bear the appropriate restrictive legend set forth in
Section 3.1, except that such certificate shall not bear such legend if (i) such
transfer is in accordance with the provisions of Rule 144 (or any other rule
permitting public sale without registration under the Securities Act) or (ii)
the opinion of counsel or "no-action" letter referred to above is to the further
effect that the transferee and any subsequent transferee (other than an
Affiliate of the Company) would be entitled to transfer such securities in a
public sale without registration under the Securities Act or that such legend is
not required to establish compliance with any provisions of the Securities Act.
Notwithstanding any other provision hereof, the restrictions provided for in
this Section 3.2 shall not apply to securities which are not required to bear
the legend prescribed by Section 3.1 in accordance with the provisions of that
Section. The Company will not unreasonably refuse to accept an opinion of
counsel required hereby signed by the original holder's counsel (it being agreed
that an opinion of Xxxxxxxx Xxxxx & Deutsch LLP shall be considered
satisfactory).
(b) No such opinion of counsel or "no action" letter from the Commission,
as set forth in Section 3.2(a) above, shall be required in the event of a sale,
pledge, hypothecation or other transfer of any Registrable Securities to (i) any
Affiliate of a Purchaser, including, without limitation, any venture capital
limited partnership now existing or hereafter formed which controls, is
controlled by or is under common control with such Investor; (ii) one or more
partners or members of the transferor (in the case of a transferor that is a
partnership, limited liability company or fund), to a shareholder (in the case
of a transferor that is a corporation) or to a trust grantor (in the case of a
transferor that is a trust) in each case in respect of the beneficial interest
of such partner, shareholder or trust; or (iii) any successors or assigns of any
of the foregoing persons, provided that the transferee agrees in writing to be
subject to this Agreement to the same extent as if such transferee were
originally a signatory.
3.3 REQUIRED REGISTRATION.
(a) At any time after the Initial Public Offering, one or more of the
holders of Series A Shares (the "Series A Investors") constituting at least 20%
of the total number of Registrable Securities then outstanding and held by the
Series A Investors (or their "permitted transferees" (as defined in the Amended
Articles)) may request the Company to register for sale under the Securities Act
all or any portion of the shares of Registrable Securities held by such
requesting holder or holders for sale in the manner specified in such notice;
PROVIDED, HOWEVER,
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that the proposed offering price of the Registrable Securities held by such
holder or holders must be at least US$5,000,000.
(b) Following receipt of any notice under this Section 3.3, the Company
shall promptly notify all holders of Registrable Securities from whom notice has
not been received and such holders shall then be entitled within thirty (30)
days after receipt of such notice from the Company to request the Company to
include in the requested registration all or any portion of their shares of
Registrable Securities. The Company shall use its best efforts to register under
the Securities Act, for public sale in accordance with the method of disposition
specified in the notice from requesting holders described in paragraph (a)
above, within 180 days of its receipt of such notice, the number of shares of
Registrable Securities specified in such notice (and in all notices received by
the Company from other holders within thirty (30) days after the receipt of such
notice by such holders). The Company shall be obligated to register the
Registrable Securities pursuant to this Section 3.3 on two (2) occasions only,
provided, however, that such obligation shall be deemed satisfied only when a
registration statement covering all shares of Registrable Securities specified
in notices received as aforesaid (except to the extent reduced by the managing
underwriter, if any, pursuant to Section 3.3(d)), for sale in accordance with
the method of disposition specified by the requesting holders, shall have become
effective and, if such method of disposition is a firm commitment underwritten
public offering, all such shares shall have been sold pursuant thereto.
Notwithstanding anything to the contrary contained herein, no request may be
made under this Section 3.3 during the period commencing 60 days prior to the
Company's good faith estimate of the effectiveness of a registration statement
filed by the Company covering a firm commitment underwritten public offering
(other than pursuant to this Section 3.3) and prior to the later to occur of the
completion of the period of distribution for such offering or 120 days after the
effective date of such registration statement.
(c) If the holders requesting such registration intend to distribute the
Registrable Securities covered by their request by means of an underwriting,
they shall so advise the Company as a part of their request made pursuant to
this Section 3.3 and the Company shall include such information in the written
notice referred to in paragraph (b) above. The right of any holder to
registration pursuant to this Section 3.3 shall be conditioned upon such
holder's agreeing to participate in such underwriting and to permit inclusion of
such holder's Registrable Securities in the underwriting. If such method of
disposition is an underwritten public offering, the Company may designate the
managing underwriter(s) of such offering, which managing underwriter(s) shall be
reasonably acceptable to the holders of at least a majority in interest of the
shares of Registrable Securities to be sold in such offering. A holder may elect
to include in such underwriting all or a part of the Registrable Securities it
holds.
(d) A registration statement filed pursuant to this Section 3.3 may,
subject to the following provisions, include (i) Ordinary Shares for sale by the
Company for its own account, (ii) Ordinary Shares held by officers or directors
of the Company and (iii) Ordinary Shares held by persons who by virtue of
agreements with the Company in compliance with the provisions of Section 3.13
hereof are entitled to include such shares in such registration (the "Other
Shareholders"), in each case for sale in accordance with the method of
disposition specified by the requesting holders. If such registration shall be
underwritten, the Company, such officers and directors and Other Shareholders
proposing to distribute their shares through such
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underwriting shall enter into an underwriting agreement in customary form with
the representative of the underwriter or underwriters selected for such
underwriting on terms no less favorable to such officers, directors or Other
Shareholders than the terms afforded the holders of Registrable Securities. If
and to the extent that the managing underwriter determines that marketing
factors require a limitation on the number of shares to be included in such
registration, then the Ordinary Shares held by officers or directors (other than
Registrable Securities) of the Company or by Other Shareholders (other than
Registrable Securities) and Ordinary Shares to be sold by the Company for its
own account shall be excluded from such registration to the extent so required
by such managing underwriter, and unless the holders of such shares and the
Company have otherwise agreed in writing, such exclusion shall be applied first
to the Ordinary Shares of the Company to be included for its own account to the
extent required by the managing underwriter, and then to the shares held by the
directors and officers and the Other Shareholders to the extent required by the
managing underwriter, ratable among them on the basis of the respective number
of shares held by each of them. If the managing underwriter determines that
marketing factors require a limitation of the number of Registrable Securities
to be registered under this Section 3.3, then Registrable Securities shall be
excluded in such manner that the securities to be sold shall be allocated among
the selling holders pro rata based on their ownership of Registrable Securities.
In any event all securities to be sold other than Series A Registrable
Securities will be excluded prior to any exclusion of Series A Registrable
Securities. No Registrable Securities or any other security excluded from the
underwriting by reason of the underwriter's marketing limitation shall be
included in such registration. If any holder of Registrable Securities, officer,
director or Other Shareholder who has requested inclusion in such registration
as provided above, disapproves of the terms of the underwriting, such holder of
securities may elect to withdraw therefrom by written notice to the Company and
the managing underwriter. The securities so withdrawn shall also be withdrawn
from registration. Except for registration statements on Form X-0, X-0 or any
comparable form or successor thereto, the Company will not file with the
Commission any other registration statement with respect to its Ordinary Shares,
whether for its own account or that of other shareholders, from the date of
receipt of a notice from requesting holders pursuant to this Section 3.3 until
the completion of the period of distribution of the registration contemplated
thereby or 120 days after the effective date of such registration, whichever is
earlier, if in the good faith judgment of the managing underwriter marketing
factors would materially adversely affect the price of the Registrable
Securities subject to such underwritten registration.
3.4 REQUIRED REGISTRATION OF ORDINARY SHARES.
(a) At any time after the earlier of (i) 18 months following the Initial
Public Offering or (ii) the earlier of the completion of the period of
distribution under Section 3.3 or 120 days after the effective date of such
registration under Section 3.3, one or more of the Ordinary Shareholders holding
Registrable Securities constituting at least 20% of the total number of Ordinary
Shares then outstanding may request the Company to register for sale under the
Securities Act all or any portion of the Ordinary Shares held by such requesting
holder or holders for sale in the manner specified in such notice; PROVIDED,
HOWEVER, that the proposed offering price of the Ordinary Shares held by such
holder or holders must be at least US$5,000,000.
(b) Following receipt of any notice under this Section 3.4, the Company
shall
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promptly notify all holders of Registrable Securities from whom notice has
not been received and such holders shall then be entitled within thirty (30)
days after receipt of such notice from the Company to request the Company to
include in the requested registration all or any portion of their Ordinary
Shares. The Company shall use its best efforts to register under the Securities
Act, for public sale in accordance with the method of disposition specified in
the notice from requesting holders described in paragraph (a) above, within 180
days of its receipt of such notice, the number of shares of Registrable
Securities specified in such notice (and in all notices received by the Company
from other holders within thirty (30) days after the receipt of such notice by
such holders). The Company shall be obligated to register the Ordinary Shares
pursuant to this Section 3.4 on three (3) occasions only, provided, however,
that such obligation shall be deemed satisfied only when a registration
statement covering all shares of Ordinary Shares specified in notices received
as aforesaid (except to the extent reduced by the managing underwriter pursuant
to Section 3.4(d)) shall have become effective and, if such method of
disposition is a firm commitment underwritten public offering, all such shares
shall have been sold pursuant thereto. Notwithstanding anything to the contrary
contained herein, no request may be made under this Section 3.4 during the
period commencing 60 days prior to the Company's good faith estimate of the
effectiveness of a registration statement filed by the Company covering a firm
commitment underwritten public offering (other than pursuant to this Section
3.4) and prior to the later to occur of the completion of the period of
distribution for such offering or 120 days after the effective date of such
registration statement.
(c) If the holders requesting such registration intend to distribute the
Registrable Securities covered by their request by means of an underwriting,
they shall so advise the Company as a part of their request made pursuant to
this Section 3.4 and the Company shall include such information in the written
notice referred to in paragraph (b) above. The right of any holder to
registration pursuant to this Section 3.4 shall be conditioned upon such
holder's agreeing to participate in such underwriting and to permit inclusion of
such holder's Ordinary Shares in the underwriting. If such method of disposition
is an underwritten public offering, the Company may designate the managing
underwriter(s) of such offering, which managing underwriter(s) shall be
reasonably acceptable to the holders of at least a majority in interest of the
shares of Registrable Securities to be sold in such offering. A holder may elect
to include in such underwriting all or a part of the Registrable Securities it
holds.
(d) A registration statement filed pursuant to this Section 3.4 may,
subject to the following provisions, include (i) Ordinary Shares for sale by the
Company for its own account, (ii) Ordinary Shares held by officers or directors
of the Company and (iii) Ordinary Shares held by Other Shareholders (as defined
in Section 3.3(d)), in each case for sale in accordance with the method of
disposition specified by the requesting holders. If such registration shall be
underwritten, the Company, such officers and directors and Other Shareholders
proposing to distribute their shares through such underwriting shall enter into
an underwriting agreement in customary form with the representative of the
underwriter or underwriters selected for such underwriting on terms no less
favorable to such officers, directors or Other Shareholders than the terms
afforded the holders of Registrable Securities. If and to the extent that the
managing underwriter determines that marketing factors require a limitation on
the number of shares to be included in such registration, then the Ordinary
Shares held by officers or directors (other than
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Registrable Securities) of the Company or by Other Shareholders (other than
Registrable Securities) and Ordinary Shares to be sold by the Company for its
own account shall be excluded from such registration to the extent so required
by such managing underwriter, and unless the holders of such shares and the
Company have otherwise agreed in writing, such exclusion shall be applied first
to the Ordinary Shares of the Company to be included for its own account to the
extent required by the managing underwriter, and then to the shares held by the
directors and officers and the Other Shareholders to the extent required by the
managing underwriter, ratable among them on the basis of the respective number
of shares held by each of them. If the managing underwriter determines that
marketing factors require a limitation of the number of Registrable Securities
to be registered under this Section 3.4, then Registrable Securities shall be
excluded in such manner that the securities to be sold shall be allocated among
the selling holders pro rata based on their ownership of Registrable Securities.
In any event all securities to be sold other than Ordinary Registrable
Securities will be excluded prior to any exclusion of Ordinary Registrable
Securities. No Registrable Securities or any other security excluded from the
underwriting by reason of the underwriter's marketing limitation shall be
included in such registration. If any holder of Registrable Securities, officer,
director or Other Shareholder who has requested inclusion in such registration
as provided above, disapproves of the terms of the underwriting, such holder of
securities may elect to withdraw therefrom by written notice to the Company and
the managing underwriter. The securities so withdrawn shall also be withdrawn
from registration. Except for registration statements on Form X-0, X-0 or any
comparable form or successor thereto, the Company will not file with the
Commission any other registration statement with respect to its Ordinary Shares,
whether for its own account or that of other shareholders, from the date of
receipt of a notice from requesting holders pursuant to this Section 3.3 until
the completion of the period of distribution of the registration contemplated
thereby or 120 days after the effective date of such registration, whichever is
earlier, if in the good faith judgment of the managing underwriter marketing
factors would materially adversely affect the price of the Registrable
Securities subject to such underwritten registration.
3.5 INCIDENTAL REGISTRATION. If the Company at any time following the
Initial Public Offering proposes to register any of its securities under the
Securities Act for sale to the public, whether for its own account or for the
account of other security holders or both (except with respect to registration
statements on Forms X-0, X-0 or any successor to such forms or another form not
available for registering the Registrable Securities for sale to the public),
each such time it will promptly give written notice to all holders of the
Registrable Securities of its intention so to do. Upon the written request of
any such holder, received by the Company within thirty (30) days after the
giving of any such notice by the Company, to register any or all of its
Registrable Securities, the Company will use its reasonable best efforts to
cause the Registrable Securities as to which registration shall have been so
requested to be included in the securities to be covered by the registration
statement proposed to be filed by the Company, all to the extent requisite to
permit the sale or other disposition by the holder (in accordance with its
written request) of such Registrable Securities so registered. If the
registration of which the Company gives notice is for a registered public
offering involving an underwriting, the Company shall so advise the holders of
Registrable Securities as a part of the written notice given pursuant to this
Section 3.5. In such event the right of any holder of Registrable Securities to
registration pursuant to this Section 3.5 shall be conditioned upon such
holder's participation in such underwriting to the extent provided herein. All
holders of Registrable Securities proposing to distribute their securities
through such underwriting shall (together with the Company and the
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other shareholders distributing their securities through such underwriting)
enter into an underwriting agreement in customary form with the underwriter or
underwriters selected for underwriting by the Company. Notwithstanding any other
provision of this Section 3.5, if the underwriter determines that marketing
factors require a limitation on the number of shares to be underwritten, the
Company shall so advise all holders of securities requesting registration of any
limitations on the number of shares to be underwritten, and the number of shares
of securities that are entitled to be included in the registration and
underwriting shall be allocated (i) first to the party initiating such
registration procedure (whether the Company for selling Ordinary Shares for its
own account or any Other Shareholder entitled to request and initiate such
registration); (ii) then, to the holders of Registrable Securities requesting
registration pursuant to this Section 3.5 and Other Shareholders requesting
registration pursuant to similar rights, in proportion, as nearly as
practicable, to the respective amounts of securities owned by them; and (iii)
then, to the Company with respect to Ordinary Shares being sold for its own
account (unless allocated first under clause (i) above). Notwithstanding the
foregoing provisions, the Company may withdraw any registration statement
referred to in this Section 3.5 without thereby incurring any liability to the
holders of Registrable Securities. If any holder of Registrable Securities
disapproves of the terms of any such underwriting, it may elect to withdraw
therefrom by written notice to the Company and the underwriter. Any Registrable
Securities or other securities excluded or withdrawn from such underwriting
shall be withdrawn from such registration.
3.6 REGISTRATION ON FORM F-3.
(a) In addition to the rights provided in Sections 3.3 and 3.4, provided
that at least nine (9) months have elapsed since the most recent registration in
which the shareholder seeking to make a request under this Section 3.6 was
entitled to request that any of its Registrable Securities be included therein,
if at any time (i) any holder or holders of the Registrable Securities request
that the Company file a registration statement on Form F-3 or any comparable or
successor form thereto for a public offering of all or any portion of the shares
of Registrable Securities held by such requesting holder or holders, the
reasonably anticipated aggregate price to the public of which would exceed
US$5,000,000, and (ii) the Company is a registrant entitled to use Form F-3 or
any comparable or successor form thereto to register such shares, then the
Company shall use its best efforts to register under the Securities Act on Form
F-3 or any comparable or successor form thereto, for public sale in accordance
with the method of disposition specified in such notice, the number of
Registrable Securities specified in such notice. Whenever the Company is
required by this Section 3.6 to use its best efforts to effect the registration
of Registrable Securities, each of the procedures and requirements of Section
3.3 and 3.4 (with all holders of Registrable Securities being treated equally),
including but not limited to the requirement that the Company notify all holders
of Registrable Securities from whom notice has not been received and provide
them with the opportunity to participate in the offering, shall apply to such
registration, PROVIDED, HOWEVER, that except as provided above, there shall be
no limitation on the number of registrations on Form F-3 which may be requested
and obtained under this Section 3.6.
(b) The Company shall use its best efforts to qualify for registration on
Form F-3 or any comparable or successor form or forms; and to that end the
Company shall register (whether or not required by law to do so) the Ordinary
Shares under the Exchange Act in
10
accordance with the provisions of that Act following the effective date of the
first registration of any securities of the Company on Form F-1 or any
comparable or successor form.
3.7 REGISTRATION PROCEDURES. If and whenever the Company is required by
the provisions of Section 3.3, 3.4, 3.5 or 3.6 to use its best efforts to effect
the registration of any Registrable Securities under the Securities Act, the
Company will, as expeditiously as possible:
(a) prepare and file with the Commission a registration statement (which,
in the case of an underwritten public offering pursuant to Section 3.3 or 3.4,
shall be on Form F-1 or other form of general applicability satisfactory to the
managing underwriter selected as therein provided) with respect to such
securities including executing an undertaking to file post-effective amendments
and use its best efforts to cause such registration statement to become and
remain effective for the period of the distribution contemplated thereby
(determined as provided below);
(b) prepare and file with the Commission such amendments and supplements
to such registration statement and the prospectus used in connection therewith
as may be necessary to keep such registration statement effective for the period
specified herein and comply with the provisions of the Securities Act with
respect to the disposition of all Registrable Securities covered by such
registration statement in accordance with the sellers' intended method of
disposition set forth in such registration statement for such period;
(c) furnish to each seller of Registrable Securities and to each
underwriter such number of copies of the registration statement and each such
amendment and supplement thereto (in each case including all exhibits) and the
prospectus included therein (including each preliminary prospectus) as such
persons reasonably may request in order to facilitate the public sale or other
disposition of the Registrable Securities covered by such registration
statement;
(d) use its best efforts to register or qualify the Registrable Securities
covered by such registration statement under the securities or "blue sky" laws
of such jurisdictions as the sellers of Registrable Securities or, in the case
of an underwritten public offering, the managing underwriter reasonably shall
request, PROVIDED, HOWEVER, that the Company shall not for any such purpose be
required to qualify generally to transact business as a foreign corporation in
any jurisdiction where it is not so qualified or to consent to general service
of process in any such jurisdiction, unless the Company is already subject to
service in such jurisdiction;
(e) use its best efforts to list the Registrable Securities covered by
such registration statement with any securities exchange on which the Ordinary
Shares of the Company are then listed;
(f) comply with all applicable rules and regulations under the Securities
Act and Exchange Act relating to such registration;
(g) immediately notify each seller of Registrable Securities and each
underwriter under such registration statement, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act, of the
happening of any event of which the Company has knowledge as a result of which
the prospectus contained in such registration
11
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 in light of the circumstances then
existing, and promptly prepare and furnish to such seller a reasonable number of
copies of a prospectus supplemented or amended so that, as thereafter delivered
to the purchasers of such Registrable Securities, 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 light of the circumstances then existing;
(h) if the offering is underwritten and at the request of any seller of
Registrable Securities, use its best efforts to furnish on the date that
Registrable Securities are delivered to the underwriters for sale pursuant to
such registration: (i) an opinion dated such date of counsel representing the
Company for the purposes of such registration, addressed to the underwriters to
such effects as reasonably may be requested by counsel for the underwriters, and
(ii) a letter dated such date from the independent public accountants retained
by the Company, addressed to the underwriters stating that they are independent
public accountants within the meaning of the Securities Act and that, in the
opinion of such accountants, the financial statements of the Company included in
the registration statement or the prospectus, or any amendment or supplement
thereof, comply as to form in all material respects with the applicable
accounting requirements of the Securities Act, and such letter shall
additionally cover such other financial matters (including information as to the
period ending no more than five (5) business days prior to the date of such
letter) with respect to such registration as such underwriters reasonably may
request;
(i) make available for inspection by each seller of Registrable
Securities, any underwriter participating in any distribution pursuant to such
registration statement, and any attorney, accountant or other agent retained by
such seller or underwriter, all at the cost and expense of such sellers or
underwriters, as the case may be, reasonable access to all financial and other
records, pertinent corporate documents and properties of the Company, as such
parties may reasonably request, and cause the Company's officers, directors and
employees to supply all information reasonably requested by any such seller,
underwriter, attorney, accountant or agent in connection with such registration
statement, all subject to the recipients' signing non-disclosure undertakings in
form designated by the Company;
(j) cooperate with the selling holders of Registrable Securities and the
managing underwriter, if any, to facilitate the timely preparation and delivery
of certificates representing Registrable Securities to be sold, such
certificates to be in such denominations and registered in such names as such
holders or the managing underwriter may request at least two business days prior
to any sale of Registrable Securities;
(k) permit any holder of Registrable Securities which holder, in the sole
and exclusive judgment, exercised in good faith, of such holder, would be deemed
to be a controlling person of the Company, to participate in good faith in the
preparation of such registration statement and to require the insertion therein
of material, furnished to the Company in writing, which in the reasonable
judgment of such holder and its counsel, reasonably concurred in by the
Company's counsel, should be included; and
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(l) in the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement reasonably acceptable to
the Company, in usual and customary form, with the managing underwriter of such
offering.
For purposes of this Agreement, the period of distribution of Registrable
Securities in a firm commitment underwritten public offering shall be deemed to
extend until each underwriter has completed the distribution of all securities
purchased by it, and the period of distribution of Registrable Securities in any
other registration shall be deemed to extend until the earlier of the sale of
all Registrable Securities covered thereby or 180 days after the effective date
thereof, PROVIDED, HOWEVER, in the case of any registration of Registrable
Securities on Form F-3 or a comparable or successor form which are intended to
be offered on a continuous or delayed basis, such 180 day-period shall be
extended, if necessary, to keep the registration statement effective until all
such Registrable Securities are sold (but in no event longer than nine months
after the effective date of such registration statement), provided that Rule
415, or any successor rule under the Securities Act, permits an offering on a
continuous or delayed basis, and provided further that applicable rules under
the Securities Act governing the obligation to file a posteffective amendment,
permit, in lieu of filing a post-effective amendment which (y) includes any
prospectus required by Section 10(a)(3) of the Securities Act or (z) reflects
facts or events representing a material or fundamental change in or omission
from the information set forth in the registration statement, the incorporation
by reference of information required to be included in (y) and (z) above
contained in periodic reports filed pursuant to Section 13 or 15(d) of the
Exchange Act in the registration statement.
In connection with each registration hereunder, the sellers of Registrable
Securities will furnish to the Company in writing such information requested by
the Company with respect to themselves and the proposed distribution by them as
shall be reasonably necessary in order to assure compliance with Federal and
applicable state securities laws.
3.8 EXPENSES.
(a) All expenses incurred by the Company in complying with Sections 3.3,
3.4, 3.5 and 3.6, including, without limitation, all registration and filing
fees, printing expenses, fees and disbursements of counsel and independent
public accountants for the Company, fees and expenses (including counsel fees)
incurred in connection with complying with state securities or "blue sky" laws,
fees of the National Association of Securities Dealers, Inc., transfer taxes,
fees of transfer agents and registrars, costs of any insurance which might be
obtained by the Company with respect to the offering by the Company, and fees
and disbursements of one counsel selected by the holders of at least two-thirds
(2/3) of the Registrable Securities being sold, but excluding any Selling
Expenses, are called "Registration Expenses". All underwriting discounts and
selling commissions applicable to the sale of Registrable Securities are called
"Selling Expenses".
(b) The Company will pay all Registration Expenses in connection with each
registration statement under Section 3.3, 3.4, 3.5 or 3.6; provided, that, in
the event of a registration pursuant to Section 3.3 or 3.4 hereof which is
withdrawn at the request of the Investors other than (i) as a result of the
Company's failure to perform its obligations hereunder,
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(ii) as a result of a cutback by the underwriter of such registration in the
amount of Registrable Securities which may be included in such registration by
more than 25% or (iii) as a result of information concerning a materially
adverse change in the Company's business or financial condition that is made
known to the Investors after the date on which such registration was requested,
the Investors shall pay the Registration Expenses with respect to such
registration. In the event that a registration pursuant to Section 3.3 hereof is
withdrawn pursuant to clauses (i), (ii) or (iii) of this Section 3.8(b), the
Investors shall, immediately following such withdrawal, be entitled to that
number of registration requests pursuant to Section 3.3 or 3.4 hereof to which
they would have been entitled not taking into account the withdrawn request. All
Selling Expenses in connection with each registration statement under Section
3.3, 3.4, 3.5 or 3.6 shall be borne by the participating sellers in proportion
to the number of shares registered by each, or by such participating sellers
other than the Company (except to the extent the Company shall be a seller) as
they may agree.
3.9 INDEMNIFICATION AND CONTRIBUTION.
(a) In the event of a registration of any of the Registrable Securities
under the Securities Act pursuant to Section 3.3, 3.4, 3.5 or 3.6, the Company
will indemnify and hold harmless each holder of Registrable Securities, its
officers, directors and partners, each underwriter of such Registrable
Securities thereunder and each other person, if any, who controls such holder or
underwriter within the meaning of the Securities Act (each, an "Indemnitee"),
against any losses, claims, damages or liabilities, joint or several, to which
such Indemnitee may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon (i) any untrue statement or alleged
untrue statement of any material fact contained in any prospectus, offering
circular or other document incident to such registration (including any related
notification, registration statement under which such Registrable Securities
were registered under the Securities Act pursuant to Section 3.3, 3.4, 3.5, or
3.6 any preliminary prospectus or final prospectus contained therein, or any
amendment or supplement thereof), (ii) any blue sky application or other
document executed by the Company specifically for that purpose or based upon
written information furnished by the Company filed in any state or other
jurisdiction in order to qualify any or all of the Registrable Securities under
the securities laws thereof (any such application, document or information
herein called a "Blue Sky Application"), (iii) any omission or alleged omission
to state in any such registration statement, prospectus, amendment or supplement
or in any Blue Sky Applications executed or filed by the Company, a material
fact required to be stated therein or necessary to make the statements therein
not misleading, or (iv) any violation by the Company of the Securities Act or
any rule or regulation promulgated under the Securities Act or any state law
applicable to the Company and relating to action or inaction required of the
Company in connection with such registration, and will reimburse each Indemnitee
for any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action,
promptly after being so incurred, PROVIDED, HOWEVER, that the Company will not
be liable to an Indemnitee if and to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission so made in conformity
with written information furnished by such Indemnitee, in writing specifically
for use in such registration statement or prospectus; PROVIDED FURTHER, however,
that, other than in a firm commitment underwriting, the
14
foregoing indemnity agreement with respect to any preliminary prospectus shall
not inure to the benefit of any Indemnitee from whom the person asserting any
such losses, claims, damages or liabilities purchased shares in the offering, if
a copy of the prospectus (as then amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) was not sent or given by
or on behalf of such Indemnitee to such person, if required by law so to have
been delivered, at or prior to the written confirmation of the sale of the
shares to such person, and if the prospectus (as so amended or supplemented)
would have cured the defect giving rise to such loss, claim, damage or
liability.
(b) In the event of a registration of any of the Registrable Securities
under the Securities Act pursuant to Section 3.3, 3.4, 3.5 or 3.6, each seller
of such Registrable Securities thereunder, severally and not jointly, will
indemnify and hold harmless the Company, each person, if any, who controls the
Company within the meaning of the Securities Act, each officer of the Company
who signs the registration statement, each director of the Company, each other
seller of Registrable Securities, each underwriter and each person who controls
any underwriter within the meaning of the Securities Act, against all losses,
claims, damages or liabilities, joint or several, to which the Company or such
officer, director, other seller, underwriter or controlling person may become
subject under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in any prospectus, offering circular or other document incident to
such registration (including any related notification, registration statement
under which such Registrable Securities were registered under the Securities Act
pursuant to Section 3.3, 3.4, 3.5 or 3.6, any preliminary prospectus or final
prospectus contained therein, or any amendment or supplement thereof), or any
Blue Sky Application or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse the
Company and each such officer, director, other seller, underwriter and
controlling person for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action, promptly after being so incurred, PROVIDED, HOWEVER, that
such seller will be liable hereunder in any such case if and only to the extent
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in reliance upon and in conformity with information pertaining to such
seller, as such, furnished in writing to the Company by such seller specifically
for use in such registration statement or prospectus; and PROVIDED FURTHER,
HOWEVER, that the liability of each seller hereunder shall be limited to the
proceeds received by such seller from the sale of Registrable Securities covered
by such registration statement. Not in limitation of the foregoing, it is
understood and agreed that the indemnification obligations of any seller
hereunder pursuant to any underwriting agreement entered into in connection
herewith shall be limited to (or be reasonably comparable to, in the event an
underwriter reasonably requires the use of its form of underwriting agreement)
the obligations contained in this subparagraph (b).
(c) Promptly after receipt by an indemnified party hereunder of notice of
the commencement of any action, such indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party hereunder, notify
the indemnifying party in writing thereof, but the omission so to notify the
indemnifying party shall not relieve it from any liability which it
15
may have to such indemnified party other than under this Section 3.9 and shall
only relieve it from any liability which it may have to such indemnified party
under this Section 3.9 if and to the extent the indemnifying party is prejudiced
by such omission. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate in and, to the
extent it shall wish, to assume and undertake the defense thereof with counsel
selected by such indemnifying party, and, after notice from the indemnifying
party to such indemnified party of its election so to assume and undertake the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under this Section 3.9 for any legal expenses subsequently incurred by
such indemnified party in connection with the defense thereof other than
reasonable costs of investigation and of liaison with counsel so selected,
PROVIDED, HOWEVER, that, if the defendants in any such action include both the
indemnified party and the indemnifying party and the counsel selected by the
indemnifying party shall have reasonably concluded that there may be deemed to
conflict with the interests of the indemnifying party, the indemnified party
shall have the right to select a separate counsel and to assume such legal
defenses and otherwise to participate in the defense of such action, with the
expenses and fees of such separate counsel and other expenses related to such
participation to be reimbursed by the indemnifying party. No indemnifying party,
in the defense of any such claim or action, shall, except with the consent of
each indemnified party, consent to entry of 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 action, and no indemnified party shall
consent to entry of any judgment or settle such claim or litigation without the
prior written consent of the indemnifying party, which consent shall not be
unreasonably withheld. Each indemnified party shall furnish such information
regarding itself or the claim in question as an indemnifying party may
reasonably request in writing and as shall be reasonably required in connection
with defense of such claim and litigation resulting therefrom.
(d) In order to provide for just and equitable contribution to joint
liability under the Securities Act in any case in which either (i) any
indemnified party makes a claim for indemnification pursuant to this Section 3.9
but it is judicially determined (by the entry of a final judgment or decree by a
court of competent jurisdiction and the expiration of time to appeal or the
denial of the last right of appeal) that such indemnification may not be
enforced in such case notwithstanding the fact that this Section 3.9 provides
for indemnification in such case, or (ii) contribution under the Securities Act
may be required on the part of any such indemnified party in circumstances for
which indemnification is provided under this Section 3.9; then, and in each such
case, the indemnifying party shall, in lieu of indemnifying such indemnified
party, contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities to which such party may be
subject in such proportion as is appropriate to reflect the relative fault of
the indemnifying party on the one hand and the indemnified party on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and the indemnified
party shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of material fact related to information
supplied by the indemnifying party or the indemnified party and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent
16
such statement or omission. Notwithstanding the foregoing (A) no such holder of
Registrable Securities will be required to contribute any amount in excess of
the proceeds received from the sale of all such Registrable Securities offered
by it pursuant to such registration statement; and (B) no person or entity
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) will be entitled to contribution from any person or entity
who was not guilty of such fraudulent misrepresentation.
(e) The indemnities and obligations provided in this Section 3.9 shall
survive the transfer of any Registrable Securities by such holder.
3.10 CHANGES IN ORDINARY SHARES. If, and as often as, there is any change
in the Ordinary Shares by way of a share split, share dividend, combination or
reclassification, or through a merger, consolidation, reorganization or
recapitalization, or by any other means, appropriate adjustment shall be made in
the provisions hereof so that the rights and privileges granted hereby shall
continue with respect to the Ordinary Shares as so changed.
3.11 RULE 144 AND 144A REPORTING. With a view to making available the
benefits of certain rules and regulations of the Commission which may at any
time permit the sale of the Registrable Securities to the public without
registration, except as provided in paragraph (c) below, at all times after any
registration statement covering a public offering of securities of the Company
under the Securities Act shall have become effective, the Company agrees to:
(a) use its best efforts to comply with all of the applicable reporting
requirements of the Exchange Act and shall comply with all other public
information reporting requirements of the Commission as a condition to the
availability of an exemption from the Securities Act for the sale of any of the
Registrable Securities by any holder of Registrable Securities pursuant to Rule
144 or Rule 144A thereof, as amended from time to time, or any successor rule
thereto or otherwise;
(b) cooperate with each holder of Registrable Securities in supplying such
information as may be necessary for such holder of Registrable Securities to
complete and file any information reporting forms presently or hereafter
required by the Commission as a condition to the availability of an exemption
from the Securities Act under Rule 144 or Rule 144A thereunder for the sale of
any of the Registrable Securities by any holder of Registrable Securities; and
(c) furnish to each holder of Registrable Securities forthwith upon
request a written statement by the Company as to its compliance with the
reporting requirements of such Rule 144 or Rule 144A (or any successor rule)
and, at any time after it has become subject to such reporting requirements, of
the Securities Act and the Exchange Act, a copy of the most recent annual or
quarterly report of the Company, and such other reports and documents so filed
by the Company as such holder may reasonably request in availing itself of any
rule or regulation of the Commission allowing such holder to sell any
Registrable Securities without registration.
3.12 "MARKET STAND-OFF' AGREEMENT. Each of the Investors agrees, severally
17
and not jointly, if requested by the Company and an underwriter of Ordinary
Shares (or other securities) of the Company, not to sell or otherwise transfer
or dispose of any Ordinary Shares (or other securities) of the Company held by
such Investor during a period not to exceed (i) one hundred and eighty (180)
days following the effective date of the first registration statement of the
Company filed under the Securities Act and (ii) ninety (90) days following the
effective date of any subsequent registration statement filed by the Company
under the Securities Act, and to enter into an agreement to such effect;
PROVIDED that all of the Company's officers, directors and holders of at least
5% of the outstanding Ordinary Shares (or securities convertible into at least
5% of the Ordinary Shares) also enter into agreements to such effect.
The Company may impose stop-transfer instructions with respect to the
shares (or securities) subject to the foregoing restriction until the end of
said period.
3.13 LIMITATION ON SUBSEQUENT REGISTRATION RIGHTS. The Company shall not,
without the approval of the Board of Directors, including at least one of the
Preferred Directors (as defined in the Amended Articles), grant to any third
party any registration rights more favorable than, or in any way conflicting
with, any of those contained herein, so long as any of the registration rights
under this Agreement remains in effect, provided, in any event, (i) any grant of
demand or required registration rights shall provide that the Purchasers have
incidental or "piggyback" registration rights with respect thereto in accordance
with the provisions of Section 3.5 hereof, and (ii) such rights shall not become
exercisable prior to the exercise of the rights of the holders of Registrable
Securities hereunder.
3.14 ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the Company to
register Registrable Securities pursuant to this Article 3 may be assigned (but
only with all related obligations) by a holder of Registrable Securities to a
transferee or assignee of such securities who is not engaged in a business
activity competitive with the Company (as reasonably determined by the Company's
Board of Directors) and who, after such assignment or transfer, holds at least
100,000 shares of Registrable Securities (subject to appropriate adjustment for
share splits, share dividends, combinations and similar recapitalization
events), provided the Company is, within a reasonable time after such transfer,
furnished with written notice of the name and address of such transferee or
assignee and the securities with respect to which such registration rights are
being assigned; and provided, further, that such assignment shall be effective
only if (i) immediately following such transfer the further disposition of such
securities by the transferee or assignee is restricted under the Act and (ii)
the transferee or assignee shall acknowledge in writing that the transferred or
assigned Registrable Securities shall remain subject to this Agreement. For the
purposes of determining the number of shares of Registrable Securities held by a
transferee or assignee, the holdings of transferees and assignees of a
partnership who are partners or retired partners of such partnership (including
spouses and ancestors, lineal descendants and siblings of such partners or
spouses who acquire Registrable Securities by gift, will or intestate
succession) shall be aggregated together and with the partnership; provided that
all assignees and transferees who would not qualify individually for assignment
of registration rights shall have a single attorney-in-fact for the purpose of
exercising any rights, receiving notices or taking any action under this Article
3.
3.15 BLOCKAGE PERIODS. Notwithstanding any other provision of this
18
Agreement, the Company shall be permitted to defer the filing of any
registration statement under Sections 3.3, 3.4 or 3.6 if the Company's Board of
Directors determines in good faith, as certified in writing by the Company's
President or Chief Executive Officer to the holder of Registrable Securities
requesting registration pursuant to any of the said Sections, that the filing of
such a registration statement at such time would be seriously detrimental to the
business of the Company. The Company may decline to file any registration
statement for this reason only once in any 12-month period and only for a
maximum period of 90 days at any one time.
3.16 TERMINATION OF REGISTRATION RIGHTS. The rights under this Section 3
will expire with respect to each of the Investors and their respective
successors, assigns and transferees, upon the earlier of (i) five years after
the date of the Company's Initial Public Offering, or, (ii) after the Company's
Initial Public Offering with respect to a particular holder, the earlier of such
person's ceasing to hold any Registrable Securities or at such time as such
person is entitled to sell all of its Registrable Securities within a
consecutive 90-day period pursuant to Rule 144.
4. BOARD OF DIRECTORS
4.1 ELECTION OF DIRECTORS. Each Investor shall take or cause to be taken
such actions as may be required from time to time to establish and maintain the
number of persons comprising the Board of Directors and the representation
therein as set forth in the Articles of Association as adopted by the Company
pursuant to the Series A Purchase Agreement.
4.2 COMPENSATION AND REIMBURSEMENT OF DIRECTORS. Each of the Preferred
Directors shall receive 10,000 options (under the Company's option plan) to
purchase Ordinary Shares (at the price of the sale of Series A Shares to the
Purchasers) for their services on the Board. Should the Company seek to
equally incentivize any or all of the other directors in accordance with the
foregoing, the Series A Holders shall vote in favor thereof. Directors shall
be reimbursed by the Company for their travel expenses in connection with
attendance at Board meetings, in accordance with Company policy.
4.3 TERMINATION. The provisions set forth in this Article 4 shall be of no
further force and effect upon the closing of the Company's Qualified Public
Offering.
5. AFFIRMATIVE COVENANTS OF THE COMPANY
The Company covenants and agrees that, from the date of the Closing under
the Series A Purchase Agreement and thereafter so long as any Purchaser owns
Registrable Securities constituting at least five percent (5%) of the total then
outstanding shares of the Company ("Significant Purchaser"), it will perform and
observe the following covenants and provisions, and will cause each Subsidiary,
if and when such Subsidiary exists, to perform and observe the following
covenants and provisions as applicable to such Subsidiary.
5.1 FINANCIAL STATEMENTS; OTHER REPORTS. The Company and each Subsidiary
will maintain proper books of account and records in accordance with generally
accepted accounting principles applied on a consistent basis, certified by a
nationally recognized independent accounting firm, and will deliver, promptly
after the close of the applicable period,
19
quarterly and annual financial statements to each Significant Purchaser, which
shall include:
(a) as soon as available and in any event within thirty (30) days after
the end of each of the first three quarters of each fiscal year of the Company,
a consolidated balance sheet of the Company and its Subsidiaries as of the end
of such quarter and the related statements of income and shareholders' equity
and of cash flows of the Company for the period commencing at the end of the
previous fiscal year and ending with the end of such quarter, reviewed by the
independent auditors of the Company and setting forth in each case in
comparative form the corresponding figures for the corresponding period of the
preceding fiscal year, all in reasonable detail and prepared in accordance with
U.S. generally accepted accounting principles consistently applied (including an
adjustment schedule to Israeli generally accepted accounting principles), and
duly certified (subject to year-end audit adjustments) by the chief financial
officer of the Company;
(b) as soon as available and in any event within sixty (60) days after the
end of each fiscal year of the Company, a copy of the annual audited
consolidated balance sheet of the Company and its Subsidiaries as of the end of
such fiscal year and statements of income and shareholders' equity and of cash
flows of the Company for such fiscal year, setting forth in each case in
comparative form the corresponding figures for the preceding fiscal year,
including the audit letter of the Company's independent public accountants of
nationally recognized standing;
(c) promptly upon receipt thereof, any written report submitted to the
Company by independent public accountants in connection with an annual or
interim audit of the books of the Company and its Subsidiaries made by such
accountants;
(d) promptly after sending, making available, or filing the same, such
reports and financial statements as the Company shall send or make available to
the shareholders of the Company; and
(e) promptly after the occurrence thereof and in any event within five (5)
business days after it becomes aware of each occurrence, notice of any material
adverse change in the business, assets, properties, management, operations or
financial condition of the Company or its Subsidiaries.
Neither the foregoing provisions of this Section nor any other provision
of this Agreement shall be in limitation of any rights which a Purchaser may
have with respect to the books and records of the Company and its Subsidiaries,
or to inspect their properties or discuss their affairs, finances and accounts,
under the laws of the jurisdictions in which they are incorporated.
5.2 INSPECTION AND OTHER INFORMATION. Each Significant Purchaser and such
agents, advisors and counsel as such Purchaser may designate, may, at its
expense and subject to the prior signing of a non-disclosure undertaking in form
designated by the Company, visit and inspect any of the properties of the
Company and each Subsidiary, examine the books of account of the Company and
each Subsidiary, take extracts therefrom and discuss the affairs, finances and
accounts of the Company and each Subsidiary with its officers and employees and,
20
with a Company representative present at the expense of the Company, its public
accountants (and by this provision the Company and each Subsidiary hereby
authorizes said accountants to discuss with such Significant Purchaser and such
persons its finances and accounts), at reasonable times and with reasonable
prior notice during normal business hours. All such visits and inspections shall
be conducted in a manner which will not unreasonably interfere with the normal
business operations of the Company and each Subsidiary. The Company and each
Subsidiary will furnish to each such Significant Purchaser such other
information as it from time to time may reasonably request.
5.3 INDEPENDENT ACCOUNTANTS. The Company will retain independent public
accountants of recognized national standing approved by the Company's Board of
Directors who shall audit the Company's consolidated financial statements at the
end of each fiscal year. In the event the services of the independent public
accountants, so selected, or any firm of independent public accountants
hereafter employed by the Company are terminated, the Company will promptly
thereafter engage another such firm of independent public accountants of
national standing. In its notice to the Series A Holders, the Company shall
state whether the change of accountants was recommended or approved by the Board
of Directors or any committee thereof.
5.4 MAINTENANCE OF INSURANCE. The Company and each Subsidiary will
maintain insurance with financially sound and reputable insurance companies or
associations in such amounts and covering such risks as is usually carried by
companies engaged in similar businesses and owning similar properties in the
same general areas in which the Company operates, including, without limitation,
directors' and officers' liability insurance.
5.5 MAINTENANCE OF KEY-PERSON LIFE INSURANCE. The Company will reasonably
consider procuring term life insurance on the life of its President and CEO,
with a financially sound and reputable insurance company or association and in
amounts reasonably determined by the Company, which proceeds shall be payable to
the order of the Company. The Company will not cause or permit any assignment of
the proceeds of either policy or change in beneficiary, and will not borrow
against either policy.
5.6 EMPLOYEE NONDISCLOSURE AND NONCOMPETITION AGREEMENTS. The Company
shall use its best efforts to obtain, and shall cause its subsidiaries (if any)
to use their best efforts to obtain, a confidentiality, noncompetition and
work-for-hire agreement from all key employees and from any other employees who
will have access to confidential information of the Company or any of its
subsidiaries, upon their employment by the Company or any of its subsidiaries.
5.7 PRESERVATION OF CORPORATE EXISTENCE. The Company and each Subsidiary
will preserve and maintain its corporate existence, rights, franchises and
privileges in the jurisdiction of its incorporation, and qualify and remain
qualified, as a foreign corporation in each jurisdiction in which such
qualification is necessary or desirable in view of its business and operations
or the ownership of its properties. The Company and each Subsidiary shall
preserve and maintain all material licenses and other rights to use patents,
processes, licenses, trademarks, trade names, inventions, Intellectual Property
Rights or copyrights owned or possessed by it and necessary to the conduct of
its business.
21
5.8 COMPLIANCE WITH LAWS. The Company will use its best efforts to comply,
and cause each of its Subsidiaries to comply, with all applicable laws, rules,
regulations and orders of any governmental authority, noncompliance with which
could reasonably be expected to materially and adversely affect its business or
condition, financial or otherwise.
5.9 COMPENSATION. The Company and each Subsidiary shall pay to its
management compensation which is not in excess of compensation customarily paid
to management in companies of similar size, of similar maturity, and in similar
businesses and all management compensation and all policies relating thereto,
shall be approved in advance by a majority of the Company's Board of Directors.
5.10 NEW DEVELOPMENTS. The Company and each Subsidiary will employ
reasonable and customary standards as the Company will deem necessary and
appropriate in documenting and protecting all valuable technological
developments, patentable or unpatentable inventions, discoveries or improvements
by their officers, employees or consultants.
5.11 MEETINGS OF DIRECTORS AND COMMITTEES; EXPENSES OF DIRECTORS. The
Company shall hold meetings of the Company's Board of Directors (in-person or
telephonic) not less frequently than six times during any calendar year. The
Company shall promptly reimburse in full each director of the Company for all of
his or her reasonable out-of-pocket expenses incurred in attending each
in-person meeting of the Board of Directors of the Company or any committee
thereof or in connection with any special project. No action shall be taken at
any such meeting (other than an adjourned meeting reconvened for lack of quorum,
and of which meeting the Preferred Directors shall have been given notice as was
given to all directors and in accordance with the Amended Articles) unless at
least one of the Preferred Directors is present at such meeting.
5.12 PROMPT PAYMENT OF TAXES, ETC. The Company and each Subsidiary will
promptly pay and discharge, or cause to be paid and discharged, when due and
payable, all material lawful taxes, assessments and governmental charges or
levies imposed upon the income, profits, property or business of the Company or
any Subsidiary; PROVIDED, HOWEVER, that any such tax, assessment, charge or levy
need not be paid if the validity thereof shall currently be contested in good
faith by appropriate proceedings and if the Company or such Subsidiary shall
have set aside on its books adequate reserves with respect thereto, and
provided, further, that the Company and each Subsidiary will pay all such taxes,
assessments, charges or levies forthwith upon the commencement of proceedings to
foreclose any Lien which may have attached as security therefor. The Company and
each Subsidiary will promptly pay or cause to be paid when due, or in
conformance with customary trade terms, all other Indebtedness incident to
operations of the Company and each Subsidiary.
5.13 MAINTENANCE OF PROPERTIES AND LEASES. The Company will keep its
properties and those of its Subsidiaries in good repair, working order and
condition, reasonable wear and tear excepted, and from time to time make all
needful and proper repairs, renewals, replacements, additions and improvements
thereto; and the Company and its Subsidiaries will at all times comply with each
provision of all leases to which any of them is a party or under which
22
any of them occupies property if the breach of such provision could reasonably
be expected to have a material adverse effect on the condition, financial or
otherwise, or operations of the Company or such Subsidiary.
5.14 COMPLIANCE WITH AGREEMENTS. The Company and all of its Subsidiaries
shall duly comply with all of the provisions of the material contracts,
obligations, agreements, plans, arrangements and commitments to which any of
them is a party or by which any of them is bound.
5.15 AVAILABILITY OF ORDINARY SHARES. The Company will, from time to time,
in accordance with the laws of the State of Israel, increase the authorized
amount of Ordinary Shares if at any time the number of Ordinary Shares remaining
unissued and available for issuance shall be insufficient to permit conversion
of all then outstanding Preferred Shares.
5.16 SHARE DISPOSITIONS. The Option Plan maintained by the Company will
contain provisions, which, subject to exclusions approved by the Board of
Directors or Compensation Committee, will generally apply to each employee or
officer of the Company who hereafter acquires shares of the Company's share
capital from the Company, or any option or right to acquire shares of the
Company's share capital from the Company, if they have not already done so, ,
pursuant to which the Company shall have the right, exercisable subject to
applicable laws, to repurchase for fair value such shares of the Company's share
capital from such employee or officer upon the cessation of his or her
employment with the Company, whether in general or in certain circumstances
surrounding such cessation.
5.17 TERMINATION OF AFFIRMATIVE COVENANTS. The covenants set forth in this
Article 6 shall be of no further force or effect upon the closing of the
Company's Initial Public Offering.
6. NEGATIVE COVENANTS
Without limiting any other covenants or provisions hereof, the Company
covenants and agrees that it will comply with and observe the following negative
covenants and provisions, and will cause each Subsidiary to comply with and
observe such of the following covenants and provisions as are applicable to such
Subsidiary, if and when such Subsidiary exists, and will not, without first
having obtained either (y) the approval of the Board of Directors, including at
least one Preferred Director, or (z) the affirmative vote or written consent of
the holders of at least a majority of the outstanding Preferred Share, do any of
the actions set forth in the following covenants and provisions.
6.1 BUSINESS. The Company will not engage in any business other than the
business of research, development, production service and sale of products for
use in the gastrointestinal diagnostics and/or therapy.
6.2 MERGER AND SALE OF ASSETS; LIQUIDATION AND DISSOLUTION. Prior to the
second anniversary of the Closing under the Series A Purchase Agreement, the
Company will not merge or consolidate with any other Person or sell, assign,
lease or otherwise dispose of all or
23
substantially all of its assets, in one transaction or in a series of related
transactions, nor dissolve or liquidate the Company if the proceeds for such
event are less than US$300 million.
6.3 AMENDMENTS TO MEMORANDUM AND ARTICLES OF ASSOCIATION AND RIGHTS OF
PREFERRED SHARES. The Company will not amend, alter or repeal any provision of
its Memorandum or Articles of Association or take any other action which
adversely affects or compromises the rights attached to the Preferred Shares.
6.4 DISTRIBUTIONS. Neither the Company nor any Subsidiary will purchase,
redeem, retire, or otherwise acquire for value, except as contemplated by
Section 5.16 above, any shares of its share capital (or rights, options or
warrants to purchase such shares) now or hereafter outstanding, return any
capital to its shareholders (such transactions being hereinafter referred to as
"Distributions"), and neither the Company nor any Subsidiary shall declare or
pay any dividends or make any distribution of assets to its shareholders as
such, in each case unless such Distribution, dividends or asset distribution is
funded from an event approved or which does not require approval pursuant to
Section 6.2 above.
6.5 MATERIAL AGREEMENTS; DEALINGS WITH AFFILIATES. Except for existing
agreements described in the Schedules to the Series A Purchase Agreement,
neither the Company nor any Subsidiary will enter into any transaction or
agreement (i) involving the expenditure or commitment of amounts exceeding
US$500,000, individually or in the aggregate, within 18 months of the Closing
under the Series A Purchase Agreement unless contemplated within in an annual
budget approved by the Board of Directors, or (ii) other than indemnification
and employment transactions in the ordinary course of the Company's business,
with any employee, officer or director or any member of their families, or any
corporation or other entity in which any one or more of such persons holds,
directly or indirectly, five percent (5%) or more of any class of share capital,
or with any other Affiliate of the Company, except agreements and transactions
on terms no less favorable to the Company or any Subsidiary than it would obtain
in a transaction between unrelated parties, and then only if such agreements or
transactions are approved by the disinterested members of the Board of
Directors.
6.6 TRANSFERS OF TECHNOLOGY. Neither the Company nor any Subsidiary will
transfer substantially all or substantially all of the Intellectual Property
Rights to any Person for a value of less than US$300 million within 2 years of
the Closing under the Series A Purchase Agreement.
6.7 RESTRICTIVE AGREEMENTS PROHIBITED. Neither the Company nor any of its
Subsidiaries shall become a party to any agreement which by its terms restricts
the Company's performance of its obligations pursuant to the terms of this
Agreement, the Series A Purchase Agreement, or the provisions relating to the
Series A Shares, included in the Amended Articles, including, but not limited
to, registration rights and the payment of dividends on, the redemption, voting
or conversion of the Series A Shares, PROVIDED, HOWEVER, that nothing in this
Section 6.7 shall prohibit any amendment of or waiver of any provision of this
Agreement or any of the foregoing agreements or the Amended Articles, if such
amendment or waiver is in accordance with the applicable provisions of this
Agreement and other applicable law.
24
6.8 MERGERS, SALE OF ASSETS, ETC. OF SUBSIDIARIES. Prior to the second
anniversary of the Closing under the Series A Purchase Agreement, the Company
shall not permit any Subsidiary to consolidate or merge into or with or sell or
transfer all or substantially all its assets, except that any Subsidiary may (i)
consolidate or merge into or with or sell or transfer assets to any other
Subsidiary, or (ii) merge into or sell or transfer assets to the Company, if the
proceeds from such transaction to the Company are less than $US300 million.
6.9 MAINTENANCE OF OWNERSHIP OF SUBSIDIARIES. Prior to the second
anniversary of the Closing under the Series A Purchase Agreement, the Company
shall not sell or otherwise transfer any shares of Share capital of any
Subsidiary, except to the Company or another Subsidiary, or permit any
Subsidiary to issue, sell or otherwise transfer any shares of its Share capital
or the Share capital of any Subsidiary, except to the Company or another
Subsidiary, if the proceeds from such transaction to the Company are less than
$US300 million.
6.11 U.S. REAL PROPERTY HOLDING CORPORATION. The Company will not be a
"United States real property holding corporation", as defined in Section
897(c)(2) of the Code and Section 1.897-2(b) of the Regulations promulgated by
the Internal Revenue Service and upon written request, will provide to any
holder of Registrable Securities a statement to the effect informing such holder
whether such interest constitutes a U.S. real property interest.
6.12 SHARE AND OPTION AGREEMENTS. Except as permitted under Section 6.2,
the Company will not (i) issue Ordinary Shares or securities convertible into
Ordinary Shares within 1 year of the Closing under the Series A Purchase
Agreement or (ii) issue share options to its officers, directors, employees or
others who render services to the Company at an exercise price less than the
price per Series A Share paid by the Purchasers, except with respect to either
of the foregoing (A) pursuant to a Share Option Plan in an aggregate amount
approved on the date hereof or such greater number of shares of Ordinary Shares
as approved by the Board of Directors, consistent with the Company's then
general compensation policy, (B) pursuant to any other share option plan
approved by the Board of Directors, (C) pursuant to a Qualified Public Offering,
(D) or pursuant to the exercise of any options existing at the date of the
Closing under the Series A Purchase Agreement..
6.13 TERMINATION OF NEGATIVE COVENANTS. The covenants set forth in this
Article 6 shall be of no further force or effect upon the closing of the Initial
Public Offering.
7. MISCELLANEOUS
7.1 NOTICES. All notices, requests, consents and other communications
hereunder shall be in writing, shall be addressed to the receiving party's
address set forth below or to such other address as a party may designate by
notice hereunder, and shall be either (i) delivered by hand, (ii) made by
telecopy or facsimile transmission, (iii) sent by overnight courier, or (iv)
sent by registered or certified mail, return receipt requested, postage prepaid.
If to the Company: Given Imaging Ltd.
0 Xx'Xxxxxx Xxxxxx
Xxx Xxxxxxxxxx Xxxx
25
P.O. Box 258
Yoqneam 00000
Xxxxxx
Attn: Xxxxxxx Xxxxx, President and CEO
000-0-000-0000 (Fax)
With a copy to: Zellermayer & Pelossof, Advocates
Xxxxxx Xxxxx
00 Xxxx Xxxxx Xxxx.
Xxx-Xxxx 00000
Israel
000-0-000-0000 (Telephone)
000-0-000-0000 (Fax)
If to the Purchasers: To the addresses set forth on Exhibit A
With copies to: Xxxxxxxx Xxxxx & Deutsch LLP
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxx, Esq.
(000) 000-0000 (Telephone)
(000) 000-0000 (Fax)
Sharir, Shiv, Xxxxxxxx & Co., Law Offices
Top Xxx building
00 Xxxxxxx Xxxxx xxxxxx
Xxx Xxxx 00000
Xxxxxx
Attn: Yoram Shiv, Adv.
Tel: +972 -3-6440105
Fax: x000-0-0000000
All notices, requests, consents and other communications hereunder shall
be deemed to have been given either (i) if by hand, at the time of the delivery
thereof to the receiving party at the address of such party set forth above,
(ii) if made by telecopy or facsimile transmission, at the time that receipt
thereof has been acknowledged by electronic confirmation or otherwise, (iii) if
sent by overnight courier, on the next business day following the day such
notice is delivered to the courier service, or (iv) if sent by registered or
certified mail, on the fifth business day following the day such mailing is
made.
7.2 ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior oral or written agreements and understandings
relating to the subject matter hereof, including the Term Sheet dated August 3,
2000 relating to the offering of the Series A Shares between the Company and
OrbiMed Advisors LLC. No statement, representation, warranty, covenant or
agreement of any kind not expressly set forth in this Agreement shall affect, or
be used to interpret, change or restrict, the express terms and
26
provisions of this Agreement.
7.3 MODIFICATIONS AND AMENDMENTS. This Agreement may be amended or
modified, and any provision hereof may be waived, only with the written consent
of (i) the Company, (ii) the holders of at least two-thirds (2/3) of the
outstanding Series A Shares and (iii) the holders of at least two-thirds (2/3)
of the outstanding Ordinary Shares held by the Ordinary Shareholders. Any waiver
or consent hereunder shall be effective only in the specific instance and for
the purpose for which it was given, and shall not constitute a continuing waiver
or consent.
7.4 ASSIGNMENT. The rights and obligations under this Agreement may not be
assigned by the Company without the prior written consent of at least a majority
of the holders of Registrable Securities, unless specifically permitted by the
terms hereof.
7.5 BENEFIT. All statements, representations, warranties, covenants and
agreements in this Agreement shall be binding on the parties hereto and shall
inure to the benefit of the respective successors and permitted assigns of each
party hereto. Nothing in this Agreement shall be construed to create any rights
or obligations except among the parties hereto, and no person or entity shall be
regarded as a third-party beneficiary of this Agreement.
7.6 GOVERNING LAW. This Agreement and the rights and obligations of the
parties hereunder shall be construed in accordance with and governed by the law
of the State of New York, without giving effect to the conflict of law
principles thereof.
7.7 JURISDICTION AND SERVICE OF PROCESS. Any legal action or proceeding
with respect to this Agreement shall be brought in the courts of the State of
New York or of the United States of America for the District of New York. By
execution and delivery of this Agreement, each of the parties hereto accepts for
itself and in respect of its property, generally and unconditionally, the
jurisdiction of the aforesaid courts. Each of the parties hereto irrevocably
consents to the service of process of any of the aforementioned courts in any
such action or proceeding by the mailing of copies thereof by certified mail,
postage prepaid, to the party at its address set forth in Section 7.1 hereof.
7.8 SEVERABILITY. In the event that any court of competent jurisdiction
shall determine that any provision, or any portion thereof, contained in this
Agreement shall be unenforceable in any respect, then such provision shall be
deemed limited to the extent that such court deems it enforceable, and as so
limited shall remain in full force and effect. In the event that such court
shall deem any such provision, or portion thereof, wholly unenforceable, the
remaining provisions of this Agreement shall nevertheless remain in full force
and effect.
7.9 INTERPRETATION. The parties hereto acknowledge and agree that: (i)
each party and its counsel reviewed and negotiated the terms and provisions of
this Agreement and have contributed to its revision; (ii) the rule of
construction to the effect that any ambiguities are resolved against the
drafting party shall not be employed in the interpretation of this Agreement;
and (iii) the terms and provisions of this Agreement shall be construed fairly
as to all parties hereto and not in favor of or against any party, regardless of
which party was generally
27
responsible for the preparation of this Agreement.
7.10 HEADINGS AND CAPTIONS. The headings and captions of the various
subdivisions of this Agreement are for convenience of reference only and shall
in no way modify or affect the meaning or construction of any of the terms or
provisions hereof.
7.11 ENFORCEMENT. Each of the parties hereto acknowledges and agrees that
the rights acquired by each party hereunder are unique and that irreparable
damage would occur in the event that any of the provisions of this Agreement to
be performed by the other parties were not performed in accordance with their
specific terms or were otherwise breached. Accordingly, in addition to any other
remedy to which the parties hereto are entitled at law or in equity, each party
hereto shall be entitled to an injunction or injunctions to prevent breaches of
this Agreement by any other party and to enforce specifically the terms and
provisions hereof in any federal or state court to which the parties have agreed
hereunder to submit to jurisdiction.
7.12 NO WAIVER OF RIGHTS, POWERS AND REMEDIES. No failure or delay by a
party hereto in exercising any right, power or remedy under this Agreement, and
no course of dealing among the parties hereto, shall operate as a waiver of any
such right, power or remedy of the party, other than as provided by Section 7.3
above. No single or partial exercise of any right, power or remedy under this
Agreement by a party hereto, nor any abandonment or discontinuance of steps to
enforce any such right, power or remedy, shall preclude such party from any
other or further exercise thereof or the exercise of any other right, power or
remedy hereunder. The election of any remedy by a party hereto shall not
constitute a waiver of the right of such party to pursue other available
remedies. No notice to or demand on a party not expressly required under this
Agreement shall entitle the party receiving such notice or demand to any other
or further notice or demand in similar or other circumstances or constitute a
waiver of the rights of the party giving such notice or demand to any other or
further action in any circumstances without such notice or demand.
7.13 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and by different parties hereto on separate counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
28
IN WITNESS WHEREOF, the parties hereto have executed this Investors Rights
Agreement or caused this Agreement to be executed by their duly authorized
representatives; as of the date first written above.
GIVEN IMAGING LTD.
By: /s/ Xxx Xxxx X. Xxxxx
-------------------------------------------
Xxx Xxxx, Xx. Xxxxxxx X. Xxxxx,
Chairman of President and Chief
The Board Executive Officer
Investors Counterpart Signature Pages Begin Next Page
29
SERIES A HOLDERS:
CADUCEUS PRIVATE INVESTMENTS, LP
By: /s/ Xxxxxxxx Xxxxxxxxxxx
-------------------------------
Name: Xxxxxxxx Xxxxxxxxxxx
Title:
ORBIMED ASSOCIATES LLC
By: /s/ Xxxxxxxx Xxxxxxxxxxx
-------------------------------
Name: Xxxxxxxx Xxxxxxxxxxx
Title:
AUBER INVESTMENTS, LTD.
By: /s/ Xxxxx Xxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxx
Title: Assist. Treas.
XXXXX XXXXX WORLDWIDE HEALTH
SCIENCES PORTFOLIO
By: /s/ Xxxxxxxx Xxxxxxxxxxx
-------------------------------
Name: Xxxxxxxx Xxxxxxxxxxx
Title:
30
FINSBURY WORLDWIDE
PHARMACEUTICAL TRUST
By: /s/ Xxxxxxxx Xxxxxxxxxxx
-------------------------------
Name: Xxxxxxxx Xxxxxxxxxxx
Title:
XXXXXXXX XXXXX & DEUTSCH LLP
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Name: Xxxxx X. Xxxxx
Title: Member
OTHER SERIES A PURCHASERS:
Name:
-----------------------------
By:
-------------------------------
31
COUNTERPART SIGNATURE PAGE (INVESTOR RIGHTS AGREEMENT)
The undersigned hereby agrees to become a party to that certain Investors
Rights Agreement dated as of September 15, 2000 (the "Agreement") among GIven
Imaging Ltd. (the "Company") and others set forth on the signature pages
thereto. From and after the undersigned's execution and delivery and the
Company's acceptance of this Counterpart Signature Page, the undersigned shall
be a party to the Agreement.
------------------------------------------------
Printed Name of Investor
------------------------------------------------
Signature of Investor
By:
---------------------------
Title:
------------------------
Address:
----------------------
------------------------------
------------------------------
Date: , 2000
-------------
Agreed and accepted:
GIVEN IMAGING LTD.
By:
---------------------------------------------
Name:
Title:
Date: , 2000
-------------
32
COUNTERPART SIGNATURE PAGE (INVESTOR RIGHTS AGREEMENT)
The undersigned hereby agrees to become a party to that certain Investors
Rights Agreement dated as of September 15, 2000 (the "Agreement") among GIven
Imaging Ltd. (the "Company") and others set forth on the signature pages
thereto. From and after the undersigned's execution and delivery and the
Company's acceptance of this Counterpart Signature Page, the undersigned shall
be a party to the Agreement.
RDC -- Xxxxxx Development Corporation Ltd.
------------------------------------------------
Printed Name of Investor
/s/ [ILLEGIBLE]
------------------------------------------------
Signature of Investor
Date: October 3, 2000
Agreed and accepted:
GIVEN IMAGING LTD.
By: /s/ Xxx Xxx Xxxxx
---------------------------------------------
Name: Xxx Xxx Xxxxx
Title: CFO
Date: October 3, 2000
33
COUNTERPART SIGNATURE PAGE (INVESTOR RIGHTS AGREEMENT)
The undersigned hereby agrees to become a party to that certain Investors
Rights Agreement dated as of September 15, 2000 (the "Agreement") among GIven
Imaging Ltd. (the "Company") and others set forth on the signature pages
thereto. From and after the undersigned's execution and delivery and the
Company's acceptance of this Counterpart Signature Page, the undersigned shall
be a party to the Agreement.
Discount Investment Corporation Ltd.
------------------------------------------------
Printed Name of Investor
/s/ [ILLEGIBLE]
------------------------------------------------
Signature of Investor
Date: October 3, 2000
Agreed and accepted:
GIVEN IMAGING LTD.
By: /s/ Xxx Xxx Xxxxx
---------------------------------------------
Name: Xxx Xxx Xxxxx
Title: CFO
Date: October 3, 2000
34
COUNTERPART SIGNATURE PAGE (INVESTOR RIGHTS AGREEMENT)
The undersigned hereby agrees to become a party to that certain Investors
Rights Agreement dated as of September 15, 2000 (the "Agreement") among GIven
Imaging Ltd. (the "Company") and others set forth on the signature pages
thereto. From and after the undersigned's execution and delivery and the
Company's acceptance of this Counterpart Signature Page, the undersigned shall
be a party to the Agreement.
Elron Electronic Industries Ltd.
------------------------------------------------
Printed Name of Investor
/s/ [ILLEGIBLE]
------------------------------------------------
Signature of Investor
Date: October 3, 2000
Agreed and accepted:
GIVEN IMAGING LTD.
By: /s/ Xxx Xxx Xxxxx
---------------------------------------------
Name: Xxx Xxx Xxxxx
Title: CFO
Date: October 3, 2000
35
COUNTERPART SIGNATURE PAGE (INVESTOR RIGHTS AGREEMENT)
The undersigned hereby agrees to become a party to that certain Investors
Rights Agreement dated as of September 15, 2000 (the "Agreement") among GIven
Imaging Ltd. (the "Company") and others set forth on the signature pages
thereto. From and after the undersigned's execution and delivery and the
Company's acceptance of this Counterpart Signature Page, the undersigned shall
be a party to the Agreement.
Xxxx Xxxxx (Professor)
------------------------------------------------
Printed Name of Investor
/s/ X. Xxxxx
------------------------------------------------
Signature of Investor
Date: 4.10.00, 2000
Agreed and accepted:
GIVEN IMAGING LTD.
By: /s/ Xxx Xxx Xxxxx
---------------------------------------------
Name: Xxx Xxx Xxxxx
Title: CFO
Date: October 3, 2000
36
COUNTERPART SIGNATURE PAGE (INVESTOR RIGHTS AGREEMENT)
The undersigned hereby agrees to become a party to that certain Investors
Rights Agreement dated as of September 15, 2000 (the "Agreement") among GIven
Imaging Ltd. (the "Company") and others set forth on the signature pages
thereto. From and after the undersigned's execution and delivery and the
Company's acceptance of this Counterpart Signature Page, the undersigned shall
be a party to the Agreement.
Adigar Techonologies Ltd.
------------------------------------------------
Printed Name of Investor
/s/ [ILLEGIBLE]
------------------------------------------------
Signature of Investor
Date: October 8, 2000
Agreed and accepted:
GIVEN IMAGING LTD.
By: /s/ Xxx Xxx Xxxxx
---------------------------------------------
Name: Xxx Xxx Xxxxx
Title: CFO
Date: October 3, 2000
37
COUNTERPART SIGNATURE PAGE (INVESTOR RIGHTS AGREEMENT)
The undersigned hereby agrees to become a party to that certain Investors
Rights Agreement dated as of September 15, 2000 (the "Agreement") among GIven
Imaging Ltd. (the "Company") and others set forth on the signature pages
thereto. From and after the undersigned's execution and delivery and the
Company's acceptance of this Counterpart Signature Page, the undersigned shall
be a party to the Agreement.
Xxx Xxxxxx
------------------------------------------------
Printed Name of Investor
/s/ Xxx Xxxxxx
------------------------------------------------
Signature of Investor
Date: October 3, 2000
Agreed and accepted:
GIVEN IMAGING LTD.
By: /s/ Xxx Xxx Xxxxx
---------------------------------------------
Name: Xxx Xxx Xxxxx
Title: CFO
Date: October 3, 2000
38
COUNTERPART SIGNATURE PAGE (INVESTOR RIGHTS AGREEMENT)
The undersigned hereby agrees to become a party to that certain Investors
Rights Agreement dated as of September 15, 2000 (the "Agreement") among GIven
Imaging Ltd. (the "Company") and others set forth on the signature pages
thereto. From and after the undersigned's execution and delivery and the
Company's acceptance of this Counterpart Signature Page, the undersigned shall
be a party to the Agreement.
Securfin S.p.A.
------------------------------------------------
Printed Name of Investor
/s/ [ILLEGIBLE]
------------------------------------------------
Signature of Investor
Date: October 3, 2000
Agreed and accepted:
GIVEN IMAGING LTD.
By: /s/ Xxx Xxx Xxxxx
---------------------------------------------
Name: Xxx Xxx Xxxxx
Title: CFO
Date: October 30, 2000
39
COUNTERPART SIGNATURE PAGE (INVESTOR RIGHTS AGREEMENT)
The undersigned hereby agrees to become a party to that certain Investors
Rights Agreement dated as of September 15, 2000 (the "Agreement") among GIven
Imaging Ltd. (the "Company") and others set forth on the signature pages
thereto. From and after the undersigned's execution and delivery and the
Company's acceptance of this Counterpart Signature Page, the undersigned shall
be a party to the Agreement.
Xxxx X. Xxxxxxxxx
------------------------------------------------
Printed Name of Investor
/s/ Xxxx X. Xxxxxxxxx
------------------------------------------------
Signature of Investor
Date: 9/22, 2000
Agreed and accepted:
GIVEN IMAGING LTD.
By: /s/ Xxx Xxx Xxxxx
---------------------------------------------
Name: Xxx Xxx Xxxxx
Title: CFO
Date: October 3, 2000
40
COUNTERPART SIGNATURE PAGE (INVESTOR RIGHTS AGREEMENT)
The undersigned hereby agrees to become a party to that certain Investors
Rights Agreement dated as of September 15, 2000 (the "Agreement") among GIven
Imaging Ltd. (the "Company") and others set forth on the signature pages
thereto. From and after the undersigned's execution and delivery and the
Company's acceptance of this Counterpart Signature Page, the undersigned shall
be a party to the Agreement.
Xxxxxx Xxxxxxx
------------------------------------------------
Printed Name of Investor
/s/ Xxxxx X. Xxxxxxx
------------------------------------------------
Signature of Investor
Date: October 3, 2000
Agreed and accepted:
GIVEN IMAGING LTD.
By: /s/ Xxx Xxx Xxxxx
---------------------------------------------
Name: Xxx Xxx Xxxxx
Title: CFO
Date: October 3, 2000
41
COUNTERPART SIGNATURE PAGE (INVESTOR RIGHTS AGREEMENT)
The undersigned hereby agrees to become a party to that certain Investors
Rights Agreement dated as of September 15, 2000 (the "Agreement") among GIven
Imaging Ltd. (the "Company") and others set forth on the signature pages
thereto. From and after the undersigned's execution and delivery and the
Company's acceptance of this Counterpart Signature Page, the undersigned shall
be a party to the Agreement.
Xxxxx Xxxxxx
------------------------------------------------
Printed Name of Investor
/s/ Xxxxx Xxxxxx
------------------------------------------------
Signature of Investor
Date: September 23, 2000
Agreed and accepted:
GIVEN IMAGING LTD.
By: /s/ Xxx Xxx Xxxxx
---------------------------------------------
Name: Xxx Xxx Xxxxx
Title: CFO
Date: October 3, 2000
42
COUNTERPART SIGNATURE PAGE (INVESTOR RIGHTS AGREEMENT)
The undersigned hereby agrees to become a party to that certain Investors
Rights Agreement dated as of September 15, 2000 (the "Agreement") among GIven
Imaging Ltd. (the "Company") and others set forth on the signature pages
thereto. From and after the undersigned's execution and delivery and the
Company's acceptance of this Counterpart Signature Page, the undersigned shall
be a party to the Agreement.
Xxxxx Xxxxxx
------------------------------------------------
Printed Name of Investor
/s/ Xxxxx X. Xxxxxx
------------------------------------------------
Signature of Investor
Date: September 22, 2000
Agreed and accepted:
GIVEN IMAGING LTD.
By: /s/ Xxx Xxx Xxxxx
---------------------------------------------
Name: Xxx Xxx Xxxxx
Title: CFO
Date: Sep. 26, 2000
43
COUNTERPART SIGNATURE PAGE (INVESTOR RIGHTS AGREEMENT)
The undersigned hereby agrees to become a party to that certain Investors
Rights Agreement dated as of September 15, 2000 (the "Agreement") among GIven
Imaging Ltd. (the "Company") and others set forth on the signature pages
thereto. From and after the undersigned's execution and delivery and the
Company's acceptance of this Counterpart Signature Page, the undersigned shall
be a party to the Agreement.
Xxxxxxx X. Xxxxx
------------------------------------------------
Printed Name of Investor
/s/ Xxxxxxx Xxxxx
------------------------------------------------
Signature of Investor
Date: September 22, 2000
Agreed and accepted:
GIVEN IMAGING LTD.
By: /s/ Xxx Xxx Xxxxx
---------------------------------------------
Name: Xxx Xxx Xxxxx
Title: CFO
Date: Sep. 26, 2000
44
COUNTERPART SIGNATURE PAGE (INVESTOR RIGHTS AGREEMENT)
The undersigned hereby agrees to become a party to that certain Investors
Rights Agreement dated as of September 15, 2000 (the "Agreement") among GIven
Imaging Ltd. (the "Company") and others set forth on the signature pages
thereto. From and after the undersigned's execution and delivery and the
Company's acceptance of this Counterpart Signature Page, the undersigned shall
be a party to the Agreement.
Xxxxxx X. Xxxxxx
------------------------------------------------
Printed Name of Investor
/s/ Xxxxxx Xxxxxx
------------------------------------------------
Signature of Investor
Date: 9/22, 2000
Agreed and accepted:
GIVEN IMAGING LTD.
By: /s/ Xxx Xxx Xxxxx
---------------------------------------------
Name: Xxx Xxx Xxxxx
Title: CFO
Date: Sep. 26, 2000
45
COUNTERPART SIGNATURE PAGE (INVESTOR RIGHTS AGREEMENT)
The undersigned hereby agrees to become a party to that certain Investors
Rights Agreement dated as of September 15, 2000 (the "Agreement") among GIven
Imaging Ltd. (the "Company") and others set forth on the signature pages
thereto. From and after the undersigned's execution and delivery and the
Company's acceptance of this Counterpart Signature Page, the undersigned shall
be a party to the Agreement.
Xxxx Xxxxxxx
------------------------------------------------
Printed Name of Investor
/s/ X. Xxxxxxx
------------------------------------------------
Signature of Investor
Date: 8/10, 2000
Agreed and accepted:
GIVEN IMAGING LTD.
By: /s/ Xxx Xxx Xxxxx
---------------------------------------------
Name: Xxx Xxx Xxxxx
Title: CFO
Date: October 3, 2000
46
COUNTERPART SIGNATURE PAGE (INVESTOR RIGHTS AGREEMENT)
The undersigned hereby agrees to become a party to that certain Investors
Rights Agreement dated as of September 15, 2000 (the "Agreement") among GIven
Imaging Ltd. (the "Company") and others set forth on the signature pages
thereto. From and after the undersigned's execution and delivery and the
Company's acceptance of this Counterpart Signature Page, the undersigned shall
be a party to the Agreement.
Xxxxxx Xxxxxxxx
------------------------------------------------
Printed Name of Investor
/s/ Xxxxxx Xxxxxxxx
------------------------------------------------
Signature of Investor
Date: October 3, 2000
Agreed and accepted:
GIVEN IMAGING LTD.
By: /s/ Xxx Xxx Xxxxx
---------------------------------------------
Name: Xxx Xxx Xxxxx
Title: CFO
Date: Oct. 30, 2000
47
COUNTERPART SIGNATURE PAGE (INVESTOR RIGHTS AGREEMENT)
The undersigned hereby agrees to become a party to that certain Investors
Rights Agreement dated as of September 15, 2000 (the "Agreement") among GIven
Imaging Ltd. (the "Company") and others set forth on the signature pages
thereto. From and after the undersigned's execution and delivery and the
Company's acceptance of this Counterpart Signature Page, the undersigned shall
be a party to the Agreement.
Jacob Benatoff
------------------------------------------------
Printed Name of Investor
/s/ Jacob Benatoff
------------------------------------------------
Signature of Investor
Date: 5-10-, 2000
Agreed and accepted:
GIVEN IMAGING LTD.
By: /s/ Xxx Xxx Xxxxx
---------------------------------------------
Name: Xxx Xxx Xxxxx
Title: CFO
Date: Oct. 30, 2000
48
EXHIBIT A
RDC Xxxxxx Development Corporation Ltd.
ThermoTrex Corporation
Discount Investment Corporation Ltd.
PEC Israel Economic Corporation
Elron Electronic Industries Ltd.
Trimaran Investment Trust
33
