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EXHIBIT 4.4
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of March
30, 2001, is entered into between COMPUTER MOTION, INC., a Delaware corporation
(the "Company"), and Societe Generale, a bank organized under the laws of France
(the "Investor").
WHEREAS, the Company and the Investor have entered into that certain
Equity Line Financing Agreement (the "Financing Agreement"), dated as of the
date hereof, pursuant to which the Company has agreed to issue and sell to the
Investor for an aggregate purchase price of up to $12,000,000 shares Common
Stock, $0.001 par value per share (the "Common Stock"), from time to time as
provided in the Financing Agreement; and
WHEREAS, pursuant to the terms of, and in partial consideration for, the
Investor's agreement to enter into the Financing Agreement, the Company has
agreed to provide the Investor with certain registration rights with respect to
the Common Stock issued under the Financing Agreement;
NOW, THEREFORE, in consideration of the foregoing premises, the
representations, warranties, covenants and agreements contained herein and in
the Financing Agreement and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, intending to be
legally bound hereby, the parties hereto agree as follows:
ARTICLE I DEFINITIONS
SECTION 1.1 Definitions. Capitalized terms used herein and defined in
the Financing Agreement shall have the same respective meanings herein as are
ascribed to them therein. In addition, the following terms shall have the
meanings ascribed to them below:
"Investor" shall mean the Investor referenced in the preamble, and,
unless the context otherwise requires, shall include any assignee or transferee
of the Investor who becomes bound by this Agreement in accordance with Section
5.5 hereof.
"Registrable Securities" means all of the shares of Common Stock issued
under the Financing Agreement until, (i) a registration statement under the
Securities Act covering the offer and sale of such shares of Common Stock has
been declared effective by the Commission and such shares of Common Stock have
been disposed of pursuant to such effective registration statement, (ii) such
shares of Common Stock are sold under circumstances in which all of the
applicable conditions of Rule 144 (or any similar provision then in force) under
the Securities Act ("Rule 144") are met, (iii) such shares of Common Stock have
been otherwise transferred and the Company has delivered a new certificate or
other evidence of ownership for such shares of Common Stock not bearing a
restrictive legend or (iv) such time as, in the opinion of counsel to the
Company, which counsel shall be reasonably acceptable to the Investor, such
Shares of Common Stock may be sold without any time, volume or manner limitation
pursuant to Rule 144(k) (or any similar provision then in effect) under the
Securities Act.
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"Registration Statement" means the registration statement filed by the
Company pursuant to Section 2.1(a) and any additional registration statement
filed by the Company pursuant to Section 2.1(b).
"Underwriter" means a securities dealer that purchases any Registrable
Securities as principal in an underwritten offering and not as part of such
dealer's market-making activities.
ARTICLE II REGISTRATION RIGHTS
SECTION 2.1 Registration Requirements. The Company shall use its
commercially reasonable efforts to effect the registration of the Registrable
Securities (including, without limitation, the execution of an undertaking to
file post-effective amendments, appropriate qualification under applicable blue
sky or other state securities laws and appropriate compliance with applicable
regulations issued under the Securities Act) as would permit or facilitate the
sale or distribution of all the Registrable Securities in the manner (including
manner of sale) and in all states reasonably requested by the Investor. Such
commercially reasonable efforts by the Company shall include the following:
(a) The Company will as expeditiously as possible, prepare and
file with the Commission a registration statement (the "Registration Statement")
on Form S-2 (if use of such form is then available to the Company pursuant to
the rules of the Commission and, if not, on such other form promulgated by the
Commission for which the Company then qualifies and that counsel for the Company
shall deem appropriate and which form shall be available for the resale of the
Registrable Securities to be registered thereunder in accordance with the
provisions of this Agreement and in accordance with the intended method of
distribution of such Registrable Securities), and use its commercially
reasonable efforts to cause such filed Registration Statement to become
effective by the Effectiveness Deadline. The "Effectiveness Deadline" shall
mean, 180 days from the date of this Agreement. In the event the Registration
Statement shall not have been declared effective by the Commission by the
Effective Deadline, the Investor shall have the right to terminate the Financing
Agreement. The Company will as expeditiously as possible prepare and file with
the Commission such amendments and supplements to the Registration Statement and
the prospectus used in connection therewith as may be necessary to keep the
Registration Statement effective for a period of not less than: (i) in the case
of a non-underwritten offering of Registrable Securities, until there shall no
longer be any Registrable Securities or (ii) with respect to an underwritten
offering of Registrable Securities, ninety (90) days after the commencement of
the distribution of Registrable Securities covered by the Registration Statement
(but not before the expiration of the period referred to in Section 4(3) of the
Securities Act and Rule 174 thereunder, if applicable), and the Company will
comply with the provisions of the Securities Act with respect to the disposition
of all securities covered by such Registration Statement during such period in
accordance with the intended methods of disposition by the Investor as set forth
in the Registration Statement.
(b) The number of Registrable Securities covered by the initial
Registration Statement shall equal the aggregate number of Draw Down Shares
issuable pursuant to the Financing Agreement (assuming that $12,000,000 of Draw
Down Shares were to be issued at a price of $2.72 per share without regarding to
any limitation on the Company's ability to effect Draw Downs under the Financing
Agreement) or, if less, the maximum number of Registrable
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Securities that may be included in such Registration Statement in accordance
with the rules of the Commission. In the event that in the future Registrable
Securities shall consist of securities of the Company other than or in
additional to the shares of Common Stock referenced in the preceding sentence
(including additional shares of Common Stock), the Company shall as
expeditiously as possible (and in no event more than twenty (20) days from the
date of the event that results in such change) file a post-effective amendment
to the Registration Statement (or, if necessary file or cause to be filed a new
or additional Registration Statement) to reflect the registration of the offer
and resale of such additional or other securities and use its commercially
reasonable efforts to cause such post-effective amendment or new or additional
Registration Statement to become effective within ninety (90) days (or in the
event such Registration Statement is not subject to review by the Commission or,
if subject to review by the Commission, five (5) business days after the date
that the Company is first advised by the Commission, whether orally or in
writing, that such Registration Statement will not be subject to review by the
Commission or that it has no further comments in connection with its review of
the Registration Statement) from the date of the event that results in such
change. In the event the filing of a new or additional Registration Statement is
required, references herein to the Registration Statement shall also refer to
such new or additional registration statement (except that for purposes of
Section 2.1(a) above, the Effectiveness Deadline shall refer to the end of the
ninety (90) day or shorter period referenced above).
(c) The Company will, prior to filing the Registration Statement
or prospectus or any amendment or supplement thereto, furnish to the Investor,
its counsel, and each Underwriter, if any, of the Registrable Securities covered
by such Registration Statement copies of such Registration Statement and
prospectus or any amendment or supplement thereto as proposed to be filed,
together with exhibits thereto, which documents will be subject to review and
approval by the foregoing persons (such approval not to be unreasonably withheld
or delayed), and thereafter furnish to the Investor, its counsel and each
Underwriter, if any, for their review and comment such number of copies of such
Registration Statement, each amendment and supplement thereto (in each case
including all exhibits thereto and documents incorporated by reference therein),
the prospectus included in such Registration Statement (including each
preliminary prospectus) and such other documents or information as the Investor,
its counsel or each Underwriter may reasonably request in order to facilitate
the disposition of the Registrable Securities.
(d) The Company will use its commercially reasonable efforts to
(i) register or qualify such Registrable Securities under such other securities
or blue sky laws of such jurisdictions in the United States as the Investor may
reasonably (in light of its intended plan of distribution) request and (ii) if
applicable, cause such Registrable Securities to be registered with or approved
by such other governmental agencies or authorities in the United States as may
be necessary by virtue of the business and operations of the Company and do any
and all other acts and things that may be reasonably necessary or advisable to
enable the Investor to consummate the disposition of the Registrable Securities;
provided that the Company will not be required to (A) qualify generally to do
business in any jurisdiction where it would not otherwise be required to qualify
but for the fulfillment of its obligation under this paragraph (d), (B) subject
itself to taxation in any such jurisdiction or (C) consent or subject itself to
general service of process in any such jurisdiction.
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(e) The Company will promptly notify the Investor upon the
occurrence of any of the following events in respect of the Registration
Statement or related prospectus in respect of an offering of Registrable
Securities: (i) receipt of any request for additional information by the
Commission or any other federal or state governmental authority during the
period of effectiveness of the Registration Statement for amendments or
supplements to the Registration Statement or related prospectus; (ii) the
issuance by the Commission or any other federal or state governmental authority
of any stop order suspending the effectiveness of the Registration Statement or
the initiation of any proceedings for that purpose; (iii) receipt of any
notification with respect to the suspension of the qualification or exemption
from qualification of any of the Registrable Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose; (iv) the happening of any event that makes any statement made in the
Registration Statement or related prospectus or any document incorporated or
deemed to be incorporated therein by reference untrue in any material respect or
that requires the making of any changes in the Registration Statement, related
prospectus or documents so that (or the Company otherwise becomes aware of any
statement included in the Registration Statement, related prospectus or
documents that is untrue in any material respect or that requires the making of
any changes in the Registration Statement, related prospectus or documents so
that), in the case of the Registration Statement, it will not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading, and
that in the case of the related prospectus, it will not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and (v) the Company's
reasonable determination that a post-effective amendment to the Registration
Statement would be appropriate (in which event the Company will promptly make
available to the Investor any such supplement or amendment to the Registration
Statement and, as applicable, the related prospectus).
(f) The Company will enter into customary agreements (including,
if applicable, an underwriting agreement in customary form and that is
reasonably satisfactory to the Company) and take such other actions as are
reasonably required in order to expedite or facilitate the disposition of the
Registrable Securities (the Investor may, at its option, require that any or all
of the representations, warranties and covenants of the Company to or for the
benefit of any applicable Underwriter also be made to and for the benefit of the
Investor).
(g) The Company will make available to the Investor (and will
deliver to its counsel) and each Underwriter, if any, subject to restrictions
imposed by the United States federal government or any agency or instrumentality
thereof, copies of all correspondence between the Commission and the Company,
its counsel or auditors and will also make available, subject to restrictions
imposed by the United States federal government or any agency or instrumentality
thereof, for inspection by the Investor, its counsel, any Underwriter
participating in any disposition pursuant to a Registration Statement and any
attorney, accountant or other professional retained by the Investor or such
Underwriter (collectively, the "Inspectors"), all financial and other records,
pertinent corporate documents and properties of the Company (collectively, the
"Records") as shall be reasonably necessary to enable them to exercise their due
diligence responsibility, and cause the Company's officers and employees to
supply all information reasonably requested by any Inspectors in connection with
the Registration Statement. Records that the Company determines, in good faith,
to be confidential and that it
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notifies the Inspectors are confidential shall not be disclosed by the
Inspectors unless (i) the disclosure of such Records is necessary in the
reasonable opinion of the Inspectors to avoid or correct a misstatement or
omission in the Registration Statement or (ii) the disclosure or release of such
Records is requested or required pursuant to oral questions, interrogatories,
requests for information or documents or a subpoena or other order from a court
of competent jurisdiction or other process; provided that prior to any
disclosure or release pursuant to clause (ii), the Inspectors shall provide the
Company with prompt notice of any such request or requirement so that the
Company may seek an appropriate protective order or waive such Inspectors'
obligation not to disclose such Records; and, provided further, that if failing
the entry of a protective order or the waiver by the Company permitting the
disclosure or release of such Records, the Inspectors, upon written advice of
counsel, are compelled to disclose such Records, the Inspectors may disclose
that portion of the Records that counsel has advised the Inspectors that the
Inspectors are compelled to disclose. The Company may require, as a condition to
the disclosure to any Inspector of any confidential information, that such
Inspector execute and deliver to the Company a written agreement, in form and
substance reasonably satisfactory to the Company, pursuant to which such
Inspector agrees to the confidential treatment of such information as
contemplated above. Each Investor agrees that information obtained by it as a
result of such inspections (not including any information obtained from a third
party who is not prohibited from providing such information by a contractual,
legal or fiduciary obligation to the Company) shall be deemed confidential and
shall not be used by it as the basis for any market transactions in the
securities of the Company or its Affiliates unless and until such information is
made generally available to the public. Each Investor further agrees that it
will, upon learning that disclosure of such Records is sought in a court of
competent jurisdiction, give notice to the Company and allow the Company, at its
expense, to undertake appropriate action to prevent disclosure of the Records
deemed confidential.
(h) The Company will furnish to the Investor and to each
Underwriter, if any, a signed counterpart, addressed to the Investor and such
Underwriter, of (1) an opinion or opinions of counsel to the Company and (2) a
comfort letter or comfort letters from the Company's independent public
accountants, each in customary form and covering such matters of the type
customarily covered by opinions or comfort letters, as the case may be, as the
Investor or the managing Underwriter therefor reasonably requests. The Company
agrees to provide such comfort letters or review letters from its independent
public accountants and such opinions of counsel to the Company as are required
by the Financing Agreement.
(i) The Company will comply with all applicable rules and
regulations of the Commission, including, without limitation, compliance with
applicable reporting requirements under the Exchange Act, and will make
available to its security holders, as soon as reasonably practicable, an earning
statement covering a period of twelve (12) months, beginning within three (3)
months after the effective date of the Registration Statement, which earning
statement shall satisfy the provisions of Section 11(a) of the Securities Act.
(j) The Company will appoint American Stock Transfer and Trust
Company as its transfer agent and registrar for all the Registrable Securities
covered by the Registration Statement not later than the effective date of the
Registration Statement.
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(k) The Company shall take all steps necessary to enable the
Investor to avail itself of the prospectus delivery mechanism set forth in Rule
153 (or successor thereto) under the Securities Act, if available.
(l) In connection with an underwritten offering, the Company will
cooperate, to the extent reasonably requested by the managing Underwriter for
the offering or Investor, in customary efforts to sell the securities under the
offering, including, without limitation, participating in "road shows" on a
schedule as shall be reasonably satisfactory to, and not unduly burdensome on,
the Company; provided that the Company shall not be obligated to participate in
more than one such offering in any twelve (12) -month period and any such
participation by the Company shall be at the expense of the managing Underwriter
or the Investor unless the Company shall also be offering securities in such
underwritten offering.
The Company may require the Investor promptly to furnish in writing to
the Company such information regarding the intended methods of distribution of
the Registrable Securities as the Company may from time to time reasonably
request and such other information as may be legally required in connection with
such registration, including, without limitation, all such information as may be
requested by the Commission or the NASD or any state securities commission or
similar authority. If the Investor fails to provide such information requested
in connection with such registration within ten (10) business days after
receiving such written request, then the Company may cease pursuit of such
registration in respect of the Investor's Registrable Securities until such
information is provided.
The Investor agrees that, upon receipt of any notice from the Company of
the happening of any event of the kind described in Section 2.1(e) hereof, the
Investor will forthwith discontinue disposition of Registrable Securities
pursuant to the Registration Statement until the Investor's receipt of the
copies of the supplemented or amended prospectus contemplated by Section
2.1(e)(iv) hereof, and, if so directed by the Company, the Investor will deliver
to the Company all copies, other than permanent file copies then in the
Investor's possession, of the most recent prospectus covering the Registrable
Securities at the time of receipt of such notice.
SECTION 2.2 Registration Expenses. In connection with registration
hereunder, the Company shall pay the following registration expenses incurred in
connection therewith (the "Registration Expenses"): (i) all registration and
filing fees, (ii) fees and expenses of compliance with securities or blue sky
laws (including reasonable fees and disbursements of a single firm of counsel in
connection with blue sky qualifications of the Registrable Securities), (iii)
printing expenses, (iv) the Company's internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), (v) the fees and expenses incurred in connection
with the listing or quotation of the Registrable Securities, (vi) fees and
disbursements of counsel for the Company and customary fees and expenses for
independent certified public accountants retained by the Company (including the
expenses of any (A) opinion letters or costs associated with delivery by counsel
to the Company of an opinion letter or opinion letters or (B) comfort letters or
review letters or costs associated with the delivery by independent certified
public accountants of comfort letters or review letters, in each case required
by or contemplated by Section 2.1(h) hereof), and (vii) the fees and expenses of
any special experts retained by the Company in connection with such
registration. The Company shall have no obligation to pay any underwriting fees,
discounts or commissions, or any transfer
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taxes attributable to the sale of Registrable Securities, or the cost of any
special audit required by the Investor, such costs to be borne by the Investor.
ARTICLE III [INTENTIONALLY OMITTED]
SECTION 3.1
ARTICLE IV INDEMNIFICATION AND CONTRIBUTION
SECTION 4.1 Indemnification by the Company. The Company agrees to
indemnify and hold harmless the Investor, its partners, Affiliates, officers,
directors, employees and duly authorized agents, and each Person or entity, if
any, who controls the Investor within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, together with the partners,
Affiliates, officers, directors, employees and duly authorized agents of such
controlling Person or entity (collectively, the "Controlling Persons"), from and
against any loss, claim, damage, liability, reasonable attorneys' fees, costs or
expenses and costs and expenses of investigating and defending any such claim
(collectively, "Damages"), joint or several, and any action in respect thereof
to which the Investor, its partners, Affiliates, officers, directors, employees
and duly authorized agents, and any such Controlling Person may become subject
under the Securities Act or otherwise, insofar as such Damages (or proceedings
in respect thereof) arise out of, or are based upon, any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement or prospectus relating to the Registrable Securities or any
preliminary prospectus, or arises out of, or are based upon, any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein (in the case of any prospectus or
preliminary prospectus, in light of the circumstances in which they were made)
not misleading, except insofar as the same are based upon information furnished
in writing to the Company by the Investor or an Underwriter expressly for use
therein, and shall reimburse the Investor, its partners, Affiliates, officers,
directors, employees and duly authorized agents, and each such Controlling
Person for any reasonable legal and other expenses reasonably incurred by the
Investor, its partners, Affiliates, officers, directors, employees and duly
authorized agents, or any such Controlling Person in investigating or defending
or preparing to defend against any such Damages or proceedings as such expenses
are incurred; provided, however, that the Company shall not be liable to the
Investor to the extent that any such Damages arise out of or are based upon an
untrue statement or omission made in any preliminary prospectus if (i) the
Investor failed to send or deliver a copy of the final prospectus with or prior
to the delivery of written confirmation of the sale by the Investor to the
Person asserting the claim from which such Damages arise and (ii) the final
prospectus would have corrected such untrue statement or alleged untrue
statement or such omission or alleged omission; provided further, however, that
the Company shall not be liable in any such case to the extent that any such
Damages arise out of or are based upon an untrue statement or alleged untrue
statement or omission or alleged omission in any prospectus if (x) such untrue
statement or omission or alleged omission is corrected in an amendment or
supplement to such prospectus and (y) having previously been furnished by or on
behalf of the Company with copies of such prospectus as so amended or
supplemented, the Investor thereafter fails to deliver such prospectus as so
amended or supplemented prior to or concurrently with the sale of a Registrable
Security to the Person asserting the claim from which such Damages arise. The
Company also agrees to indemnify any Underwriters of the Registrable Securities,
their
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officers and directors and each Person or entity who controls such Underwriters
on customary terms.
SECTION 4.2 Indemnification by the Investor. The Investor, severally and
jointly, agrees to indemnify and hold harmless the Company, its partners,
Affiliates, officers, directors, employees and duly authorized agents and each
Person or entity, if any, who controls the Company within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act, together with the
partners, Affiliates, officers, directors, employees and duly authorized agents
of such controlling Person, to the same extent as the foregoing indemnity from
the Company to the Investor, but only with reference to information related to
the Investor or its plan of distribution furnished in writing by the Investor or
on the Investor's behalf expressly for use in any registration statement or
prospectus relating to the Registrable Securities, or any amendment or
supplement thereto, or any preliminary prospectus. In case any action or
proceeding shall be brought against the Company or its partners, Affiliates,
officers, directors, employees or duly authorized agents or any such controlling
Person or its partners, Affiliates, officers, directors, employees or duly
authorized agents, in respect of which indemnity may be sought against the
Investor, the Investor shall have the rights and duties given to the Company,
and the Company or its partners, Affiliates, officers, directors, employees or
duly authorized agents, or such controlling Person, or its partners, Affiliates,
officers, directors, employees or duly authorized agents, shall have the
comparable rights and duties given to the Investor by Section 4.1. Each Investor
also agrees to indemnify and hold harmless any Underwriters of the Registrable
Securities with reference to the same information as to which it agrees to
indemnify the Company referenced above, their officers and directors and each
Person who controls such Underwriters on customary terms. The Company shall be
entitled to receive indemnities on customary terms from Underwriters, selling
brokers, dealer managers and similar securities industry professionals
participating in the distribution, to the same extent as provided above, with
respect to information so furnished in writing by such persons specifically for
inclusion in any prospectus or the Registration Statement.
SECTION 4.3 Conduct of Indemnification Proceedings. Promptly after
receipt by any person or entity in respect of which indemnity may be sought
pursuant to Section 4.1 or 4.2 (an "Indemnified Party") of notice of any claim
or the commencement of any action, the Indemnified Party shall, if a claim in
respect thereof is to be made against the Person against whom such indemnity may
be sought (an "Indemnifying Party"), notify the Indemnifying Party in writing of
the claim or the commencement of such action; in the event an Indemnified Party
shall fail to give such notice as provided in this Section 4.3 and the
Indemnifying Party to whom notice was not given was unaware of the proceeding to
which such notice would have related and was materially prejudiced by the
failure to give such notice, the indemnification provided for in Section 4.1 or
4.2 shall be reduced to the extent of any actual prejudice resulting from such
failure to so notify the Indemnifying Party; provided, that the failure to
notify the Indemnifying Party shall not relieve it from any liability that it
may have to an Indemnified Party otherwise than under Section 4.1 or 4.2. If any
such claim or action shall be brought against an Indemnified Party, the
Indemnifying Party shall be entitled to participate therein, and, to the extent
that it wishes, jointly with any other similarly notified Indemnifying Party, to
assume the defense thereof with counsel reasonably satisfactory to the
Indemnified Party. After notice from the Indemnifying Party to the Indemnified
Party of its election to assume the defense of such claim or action, the
Indemnifying Party shall not be liable to the Indemnified Party for any legal
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or other expenses subsequently incurred by the Indemnified Party in connection
with the defense thereof other than reasonable costs of investigation; provided
that the Indemnified Party shall have the right to employ separate counsel to
represent the Indemnified Party and its controlling persons who may be subject
to liability arising out of any claim in respect of which indemnity may be
sought by the Indemnified Party against the Indemnifying Party, but the fees and
expenses of such counsel shall be for the account of such Indemnified Party
unless (i) the Indemnifying Party and the Indemnified Party shall have mutually
agreed to the retention of such counsel or (ii) in the reasonable judgment of
the Company and such Indemnified Party, representation of both parties by the
same counsel would be inappropriate due to actual or potential conflicts of
interest between them, it being understood, however, that the Indemnifying Party
shall not, in connection with any one such claim or action or separate but
substantially similar or related claims or actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for the
fees and expenses of more than one separate firm of attorneys (together with
appropriate local counsel) at any time for all Indemnified Parties or for fees
and expenses that are not reasonable. No Indemnifying Party shall, without the
prior written consent of the Indemnified Party, effect any settlement of any
claim or pending or threatened proceeding in respect of which the Indemnified
Party is or could have been a party and indemnity could have been sought
hereunder by such Indemnified Party unless such settlement includes an
unconditional release of such Indemnified Party from all liability arising out
of such claim or proceeding. Whether or not the defense of any claim or action
is assumed by an Indemnifying Party, such Indemnifying Party will not be subject
to any liability for any settlement made without its consent, which consent will
not be unreasonably withheld.
SECTION 4.4 Contribution. If the indemnification provided for in this
Article IV is unavailable to the Indemnified Parties in respect of any Damages
referred to herein, then each Indemnifying Party, in lieu of indemnifying such
Indemnified Party, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such Damages (i) as between the Company and the
Investor, on the one hand, and the Underwriters, on the other hand, in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Investor, on the one hand, and the Underwriters, on the other
hand, from the offering of the Registrable Securities, or if such allocation is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits but also the relative fault of the Company and
the Investor, on the one hand, and of the Underwriters, on the other hand, in
connection with the statements or omissions that resulted in such Damages, as
well as any other relevant equitable considerations, and (ii) as between the
Company, on the one hand, and the Investor, on the other hand, in such
proportion as is appropriate to reflect the relative fault of the Company and of
the Investor in connection with such statements or omissions, as well as any
other relevant equitable considerations. The relative benefits received by the
Company and the Investor, on the one hand, and the Underwriters, on the other
hand, shall be deemed to be in the same proportion as the total proceeds from
the offering (net of underwriting discounts and commissions but before deducting
expenses) received by the Company and the Investor bear to the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover page of the prospectus. The relative
fault of the Company and the Investor, on the one hand, and of the Underwriters,
on the other hand, shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company and the Investor or by the Underwriters. The relative
fault of the Company, on the
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one hand, and of the Investor, on the other hand, shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by such party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Investor agree that it would not be just and
equitable if contribution pursuant to this Section 4.4 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an Indemnified Party as a result of the Damages
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such Indemnified Party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 4.4, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Registrable Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission, and the Investor shall in no event be required to
contribute any amount in excess of the amount by which the total price at which
the Registrable Securities of the Investor were offered to the public (less
underwriting discounts and commissions) less the amount paid by the Investor to
the Company for the Warrants exceeds the amount of any damages that the Investor
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.
ARTICLE V MISCELLANEOUS
SECTION 5.1 Term. The registration rights provided to the holders of
Registrable Securities hereunder shall terminate on such date as there shall be
no Registrable Securities; provided, however, that the provisions of Article IV
hereof shall survive any termination of this Agreement.
SECTION 5.2 Rule 144. The Company covenants that it will file all
reports required to be filed by it under the Securities Act and the Exchange Act
and that it will take such further action as registered holders of Registrable
Securities may reasonably request, all to the extent required from time to time
to enable the Investor to sell Registrable Securities without registration under
the Securities Act within the limitation of the exemptions provided by (a) Rule
144, as such Rule may be amended from time to time, or (b) any similar rule or
regulation hereafter adopted by the Commission. If at any time the Company is
not required to file such reports, it will, upon the reasonable request of any
registered holder of Registrable Securities, make publicly available other
information so long as necessary to permit sales pursuant to Rule 144, within
the limitations of the exemption provided thereby. Upon the request of the
Investor, the Company will deliver to the Investor a written statement as to
whether it has complied with such requirements.
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SECTION 5.3 Restrictions on Sale by the Company and Others. If, and to
the extent, reasonably requested by the managing Underwriter or Underwriters in
the case of an underwritten public offering, that includes Registrable
Securities as contemplated by Section 2.1, the Company shall use commercially
reasonable efforts to cause its Affiliates to agree not to effect any public
sale or distribution of any securities similar to those being registered in
accordance with Section 2.1 hereof, or any securities convertible into or
exchangeable or exercisable for such securities, during the thirty (30) days
prior to, and during the period beginning on the effective date of the
Registration Statement (except as part of the Registration Statement) until all
of the Registrable Securities offered thereunder have been sold pursuant to such
underwritten public offering, provided, however, that such period shall not
exceed ninety (90) days.
SECTION 5.4 Amendment and Modification. Any provision of this Agreement
may be waived, provided that such waiver is set forth in a writing executed by
the party against whom the enforcement of such waiver is sought. The provisions
of this Agreement, including the provisions of this sentence, may not be
amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, unless the Company has obtained the
written consent of the Investor. No course of dealing between or among any
Persons having any interest in this Agreement will be deemed effective to
modify, amend or discharge any part of this Agreement or any rights or
obligations of any Person under or by reason of this Agreement.
SECTION 5.5 Successors and Assigns; Entire Agreement. This Agreement and
all of the provisions hereof shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns; provided,
however, that the benefits and right contemplated hereunder to be provided to
any holder of Registrable Securities shall be limited to the registered holder
thereof. The Investor may assign its rights under this Agreement to any
subsequent holder of the Registrable Securities, provided that the Company shall
have the right to require any such subsequent holder of the Registrable
Securities to execute a counterpart of this Agreement as a condition to such
holder's claim to any rights hereunder. This Agreement, together with the
Financing Agreement, sets forth the entire agreement and understanding between
the parties as to the subject matter hereof and thereof and merges and
supersedes all prior discussions, agreements and understandings (written or
oral) of any and every nature between them with respect to such subject matter.
SECTION 5.6 Separability. In the event that any provision of this
Agreement or the application of any provision hereof is declared to be illegal,
invalid or otherwise unenforceable by a court of competent jurisdiction, the
remainder of this Agreement shall not be affected except to the extent necessary
to delete such illegal, invalid or unenforceable provision unless that provision
held invalid shall substantially impair the benefits of the remaining portions
of this Agreement.
SECTION 5.7 Notices. All notices, demands, requests, consents, approvals
or other communications required or permitted to be given hereunder or that are
given with respect to this Agreement shall be in writing and shall be personally
served or deposited in the mail, registered or certified, return receipt
requested, postage prepaid, or delivered by reputable air courier service with
charges prepaid, or transmitted by hand delivery, telegram, telex or
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facsimile, addressed as set forth below, or to such other address as such party
shall have specified most recently by written notice: (i) if to the Company, to:
Computer Motion, Inc., 000 Xxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxx 00000, Attention:
Xxxxxx Xxxxxx, Facsimile No.: (000) 000-0000; with copies (which shall not
constitute notice) to: Stradling, Yocca, Xxxxxxx & Xxxxx, Attention: Xxxxxxxx
Xxxx, Facsimile No. (000) 000-0000; and (ii) if to the Investor: to the address
for notices set forth in the Financing Agreement. Notice shall be deemed given
on the date of service or transmission if personally served or transmitted by
telegram, telex or facsimile. Notice otherwise sent as provided herein shall be
deemed given on the third business day following the date mailed or on the next
business day following delivery of such notice by a reputable air courier
service.
SECTION 5.8 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAW OF THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
SECTION 5.9 Headings. The headings in this Agreement are for convenience
of reference only and shall not constitute a part of this Agreement, nor shall
they affect their meaning, construction or effect.
SECTION 5.10 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original instrument, and
all of which together shall constitute one and the same instrument.
SECTION 5.11 Further Assurances. Each party shall cooperate and take
such action as may be reasonably requested by the other party in order to carry
out the provisions and purposes of this Agreement and the transactions
contemplated hereby.
SECTION 5.12 Remedies. In the event of a breach or a threatened breach
by any party to this Agreement of its obligations under this Agreement, any
party injured or to be injured by such breach will be entitled to specific
performance of its rights under this Agreement or to injunctive relief, in
addition to being entitled to exercise all rights provided in this Agreement and
granted by law. The parties agree that the provisions of this Agreement shall be
specifically enforceable, it being agreed by the parties that the remedy at law,
including monetary damages, for breach of any such provision will be inadequate
compensation for any loss and that any defense or objection in any action for
specific performance or injunctive relief that a remedy at law would be adequate
is waived.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by the undersigned, thereunto duly authorized, as of the date first set
forth above.
COMPUTER MOTION, INC.
By: /s/ XXXXXX X. XXXXXX
------------------------------
Name: Xxxxxx X. Xxxxxx
Title:
SOCIETE GENERALE
By: /s/ GUILLANME POULET
------------------------------
Name: Guillanme Poulet
Title:
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