Exhibit 10.3
UroMed Corporation
6% Convertible Subordinated Notes due October 5, 2003
Registration Rights Agreement
Dated as of
October 15, 1996
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.,
PaineWebber Incorporated,
▇.▇. ▇▇▇▇▇▇ Securities Inc.,
c/o Goldman, ▇▇▇▇▇ & Co.,
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
UroMed Corporation, a Massachusetts corporation (the "Company"), proposes
to issue and sell to ▇▇▇▇▇▇▇, Sachs & Co., PaineWebber Incorporated and ▇.▇.
▇▇▇▇▇▇ Securities Inc. (the "Purchasers"), upon the terms set forth in a
purchase agreement dated October 8, 1996 (the "Purchase Agreement") between the
Purchasers and the Company, its 6% Convertible Subordinated Notes due October
15, 2003 (the "Securities"). As an inducement to the Purchasers to enter into
the Purchase Agreement and in satisfaction of a condition to the obligations of
the Purchasers thereunder, the Company agrees with the Purchasers, (i) for the
benefit of the Purchasers and (ii) for the benefit of the holders and beneficial
owners from time to time of the Securities and the Common Stock, no par value
per share (the "Stock"), of the Company issuable upon conversion of such
Securities (collectively, the "Registrable Securities"), including the
Purchasers (each of the foregoing, including such beneficial owners, a "Holder"
and, together, the "Holders"), as follows:
1. Definitions. (a) Capitalized terms used herein without
definition shall have the meanings ascribed thereto in the Purchase
Agreement. As used in this Agreement, the following defined terms shall have
the following meanings:
"Act" or "Securities Act" means the United States Securities Act of 1933,
as amended.
"Affiliate" of any specified person means any other person which, directly
or indirectly, is in control of, is controlled by, or is under common control
with such specified person. For purposes of this definition, control of a person
means the power, direct or indirect, to direct or cause the direction of the
management and
-2-
policies of such person whether by contract or otherwise; and the
terms "controlling" and "controlled" have meanings correlative to the foregoing.
"Closing Date" means the First Time of Delivery as defined in the
Purchase Agreement.
"Commission" means the United States Securities and Exchange Commission.
"DTC" means The Depository Trust Company.
"Effectiveness Period" has the meaning set forth in Section 2(b) hereof.
"Exchange Act" means the United States Securities Exchange Act of 1934,
as amended.
"Indenture" means the Indenture, dated as of as of October 15, 1996, and
as the same may be amended from time to time, between the Company and State
Street Bank and Trust Company, as Trustee.
"Managing Underwriters" means the investment banker or investment bankers
and manager or managers that shall administer an underwritten offering, if any,
as set forth in Section 6 hereof.
"Person" means an individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
"Prospectus" means the prospectus included in any Shelf Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Registrable Securities.
"Shelf Registration" means a registration effected pursuant to
Section 2 hereof.
"Shelf Registration Statement" means a shelf registration statement of the
Company pursuant to the provisions of Section 2 hereof filed with the Commission
which covers some or all of the Registrable Securities, as applicable, on an
appropriate form under Rule 415 under the Act, or any similar rule that may be
adopted by the Commission, amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
-3-
Prospectus contained therein, all exhibits thereto and all material incorporated
by reference therein.
"Underwriter" means any underwriter of Registrable Securities in
connection with an offering thereof under a Shelf Registration Statement.
(b) Wherever there is a reference in this Agreement to a percentage of the
"principal amount" of Registrable Securities or to a percentage of Registrable
Securities, Stock shall be treated as representing the principal amount of
Securities which was surrendered for conversion or exchange in order to receive
such number of shares of Stock. References in this Agreement to Registrable
Statements covered by the Shelf Registration Statement at any time mean the
Registrable Securities that, at such time, are registered under such statement
and have not been sold pursuant thereto (or pursuant to Rule 144 such that they
have ceased to be subject to transfer restrictions under the Act as provided by
the Indenture).
2. Shelf Registration. (a) The Company shall, within 90 calendar days
following the Closing Date, file with the Commission a Shelf Registration
Statement relating to the offer and sale of the Registrable Securities by
Holders from time to time in accordance with the methods of distribution elected
by such Holders and set forth in such Shelf Registration Statement and,
thereafter, shall use its reasonable best efforts to cause such Shelf
Registration Statement to be declared effective under the Act within 180
calendar days following the Closing Date; provided, however, that no Holder
shall be entitled to have Registrable Securities covered by such Shelf
Registration unless such Holder is in compliance with Section 3(m) hereof.
(b) The Company shall use its reasonable best efforts:
(i) To keep the Shelf Registration Statement continuously effective
in order to permit the Prospectus forming part thereof to be usable by
Holders for a period of three years from the later of (x) the date the
Shelf Registration Statement is declared effective and (y) the last Time
of Delivery, or such shorter period that will terminate upon the earlier
of the following: (A) when all the unconverted Securities, together with
all shares of Stock and any other securities) issued upon conversion of
any converted Securities, that are covered by the Shelf Registration
Statement have been transferred pursuant to the Shelf Registration
Statement or have been transferred pursuant to Rule 144 under the Act or
otherwise transferred in a manner that results in delivery of a new
security not subject to transfer restrictions under the Act as provided by
the Indenture and (B) when, in the written opinion of independent counsel
to the Company, all outstanding Registrable Securities held by persons
that are not Affiliates of the Company may be resold without registration
under the Act pursuant to Rule 144(k) under the Act or any
-4-
successor or analogous provision thereto (in any such case, such period
being called the "Effectiveness Period");
(ii) After the effectiveness of the Shelf Registration Statement,
promptly upon the request of any Holder, to take any action reasonably
necessary to register the sale of any Registrable Securities of such
Holder, including, without limitation, any action necessary to identify
such Holder as a selling securityholder in a Prospectus supplement; and
(iii) If at any time, the Securities, pursuant to Article Twelve
(excluding Section 12.12) of the Indenture, are convertible into
securities other than the Company's Stock, the Company shall, or shall
cause any successor under the Indenture to, cause such securities to be
included in the Shelf Registration Statement no later than the date on
which the Securities may then be convertible into such securities. No
later than such date, the Company shall cause any such successor to
execute and deliver a written agreement to the Trustee under the
Indenture, for the benefit of the Holders, providing such Holders with the
benefits provided to them under this Agreement, but with respect to such
other securities (treating the issuer of such other securities as the
Company for this purpose).
The Company shall be deemed not to have used its reasonable best efforts
to keep the Shelf Registration Statement effective during the requisite period
if the Company voluntarily takes any action that would result in Holders of
Registrable Securities covered thereby not being able to offer and sell any such
Registrable Securities during that period, unless such action is required by
applicable law and the Company thereafter promptly complies with the
requirements of paragraph 3(i) below.
(c) The Company may suspend the use of the Prospectus for a period not to
exceed 30 days in any three-month period or four periods not to exceed an
aggregate of 60 days in any 12-month period if the Board of Directors of the
Company shall have determined in good faith that because of valid business
reasons (not including avoidance of the Company's obligations hereunder),
including the acquisition or divestiture of assets, pending corporate
developments and similar events, it is in the best interests of the Company to
suspend such use, and prior to suspending such use the Company provides the
Holders with written notice of such suspension, which notice need not specify
the nature of the event giving rise to such suspension.
3. Registration Procedures. In connection with the Shelf Registration
Statement, the following provisions shall apply:
-5-
(a) The Company shall furnish to the Purchasers, prior to the filing
thereof with the Commission, a copy of the Shelf Registration Statement,
and each amendment thereto and each amendment or supplement, if any, to
the Prospectus included therein, and shall use its best efforts to reflect
in each such document, when so filed with the Commission, such comments as
the Purchasers reasonably may propose.
(b) The Company shall promptly take such action as may be necessary
so that (i) each of the Shelf Registration Statement and any amendment
thereto and the Prospectus forming part thereof and any amendment or
supplement thereto (and each report or other document incorporated therein
by reference in each case) complies in all material respects with the
Securities Act and the Exchange Act and the respective rules and
regulations thereunder, (ii) each of the Shelf Registration Statement and
any amendment thereto does not, when it becomes effective, contain 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 and (iii) each of the Prospectus forming part of the Shelf
Registration Statement, and any amendment or supplement to such
Prospectus, does not at any time include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
(c)(1) The Company shall promptly advise the Purchasers and, in the
case of clause (i), the Holders and, if requested by the Purchasers or any
Holder, confirm such advice in writing:
(i) when the Shelf Registration Statement and any amendment
thereto has been filed with the Commission and when the Shelf
Registration Statement or any post-effective amendment thereto has
become effective; and
(ii) of any request by the Commission for amendments or
supplements to the Shelf Registration Statement or the Prospectus
included therein or for additional information.
(2) The Company shall promptly advise the Purchasers and the Holders and,
if requested by the Purchasers or any Holder, confirm such advice in writing of:
(i) the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration Statement
or the initiation of any proceedings for such purpose;
-6-
(ii) the receipt by the Company of any notification with
respect to the suspension of the qualification of the securities
included in the Shelf Registration Statement for sale in any
jurisdiction or the initiation of any proceeding for such purpose;
and
(iii) the happening of any event that requires the making of
any changes in the Shelf Registration Statement or the Prospectus
included therein so that, as of such date, such Shelf Registration
Statement and Prospectus do not contain an untrue statement of a
material fact and do not omit to state a material fact required to
be stated therein or necessary to make the statements therein (in
the case of the Prospectus, in light of the circumstances under
which they were made) not misleading (which advice shall be
accompanied by an instruction to the Holders to suspend the use of
the Prospectus until the requisite changes have been made).
Each Holder of Registrable Securities agrees, as a consequence of its
inclusion in the Shelf Registration Statement, to cease any use of a Prospectus
in the event the Company provides a notice pursuant to Section 2(c) or this
Section 3(c), and not to use a Prospectus until receipt of notice from the
Company authorizing such Holder to use a Prospectus and, in the case of any
notice delivered pursuant to Section 3.2(c)(iii) above, receipt of an updated
Prospectus.
(d) The Company shall use its reasonable best efforts to prevent the
issuance, and if issued to obtain the withdrawal, of any order suspending
the effectiveness of the Shelf Registration Statement at the earliest
possible time.
(e) The Company shall, during the Effectiveness Period, furnish to
each Holder of Registrable Securities included within the coverage of the
Shelf Registration Statement, without charge, at least one copy of the
Shelf Registration Statement and all post-effective amendments thereto,
including financial statements and schedules, and, if the Holder so
requests in writing, all reports, other documents and exhibits (including
those incorporated by reference).
(f) The Company shall, during the Effectiveness Period, deliver to
each Holder of Registrable Securities included within the coverage of the
Shelf Registration Statement, without charge, as many copies of the
Prospectus (including each preliminary Prospectus) included in such Shelf
Registration Statement and any amendment or supplement thereto as such
Holder may reasonably request; and the Company consents (except during the
continuance of any event described in Section 3(c)(2)(iii) above) to the
use of the Prospectus and any amendment or supplement thereto by each of
the Holders of Registrable Securities in connection with the offering and
sale of
-7-
the Registrable Securities covered by the Prospectus and any amendment or
supplement thereto during the Effectiveness Period.
(g) Prior to any offering of Registrable Securities pursuant to the
Shelf Registration Statement, the Company shall use its reasonable best
efforts to (1) register or qualify or cooperate with the Holders of
Registrable Securities included therein and their respective counsel in
connection with the registration or qualification of such Registrable
Securities for offer and sale under the securities or "blue sky" laws of
such jurisdictions within the United States as any such Holder may
reasonably request, (2) keep such registrations or qualifications in
effect and comply with such laws so as to permit the continuance of offers
and sales in such jurisdictions for so long as may be necessary to enable
any Holder or underwriter, if any, to complete its distribution of
Registrable Securities pursuant to the Shelf Registration Statement, and
(3) take any and all other actions necessary or advisable to enable the
disposition in such jurisdictions of such Registrable Securities;
provided, however, that in no event shall the Company be obligated to (i)
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction where it would not otherwise be required to so qualify but
for this Section 3(g) or (ii) file any general consent to service of
process or become subject to taxation in any jurisdiction where it is not
as of the date hereof so subject.
(h) Unless any Registrable Securities shall be in book-entry only
form, the Company shall cooperate with the Holders of Registrable
Securities to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold pursuant to
the Shelf Registration Statement free of any restrictive legends and in
such permitted denominations and registered in such names as Holders may
request in connection with the sale of Registrable Securities pursuant to
such Shelf Registration Statement.
(i) Upon the occurrence of any event contemplated by paragraph
3(c)(2)(iii) above, the Company shall promptly prepare a post-effective
amendment or supplement to the Shelf Registration Statement or the related
Prospectus, or any document incorporated therein by reference, or file any
other required document so that, as thereafter delivered to purchasers of
the Registrable Securities included therein, the Prospectus will not
include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading. If the
Company notifies the Holders of the occurrence of any event contemplated
by paragraph 3(c)(2)(iii) above, each Holder agrees, as a consequence of
the inclusion of any of its Registrable Securities in a Shelf Registration
Statement, to suspend the use of the Prospectus until the requisite
changes to the Prospectus have been made.
-8-
(j) Not later than the effective date of the initial Shelf
Registration Statement, the Company shall provide a CUSIP number for the
Registrable Securities that are debt securities.
(k) The Company shall use its reasonable best efforts to comply with
all applicable rules and regulations of the Commission and shall make
generally available to its security holders or otherwise provide in
accordance with Section 11(a) of the Securities Act as soon as practicable
after the effective date of the applicable Shelf Registration Statement an
earnings statement satisfying the provisions of Section 11(a) of the
Securities Act.
(l) Not later than the effective date of the initial Shelf
Registration Statement, the Company shall cause the Indenture to be
qualified under the Trust Indenture Act of 1939, as amended.
(m) The Company shall require each Holder of Registrable Securities
to be sold pursuant to a Shelf Registration Statement to complete and
return to the Company a questionnaire substantially in the form of the
Notice of Registration Statement and Selling Securityholder Questionnaire
(the "Notice and Questionnaire") set forth in Appendix A hereto providing
such information regarding the Holder and the distribution of such
Holder's Registrable Securities as may be required by applicable law or
regulation for inclusion in such Shelf Registration Statement. The Company
shall mail the Notice and Questionnaire to each Holder prior to the filing
of the Shelf Registration Statement. The Company shall include in the
Registration Statement all Registrable Securities which any Holder shall
have elected (each, an "Electing Holder") to include in the Shelf
Registration Statement as specified in a signed and completed Notice and
Questionnaire returned to the Company on or prior to the 60th calendar day
after the date the Notice and Questionnaire is mailed to all Holders (the
"Initial Questionnaire Deadline"). (For purposes of this Agreement, by
electing to include any Registrable Securities in the Shelf Registration
Statement and unless it specifies otherwise an Electing Holder shall be
deemed to have elected also to include in the Shelf Registration Statement
all Stock (and other securities) that may be issued from time to time on
conversion of such Registrable Securities before they are sold pursuant to
the Shelf Registration Statement.) As used herein, the term "Specified
Registrable Securities" shall mean all Registrable Securities that the
Electing Holders have elected to include in the Registration Statement as
provided in the preceding sentences on or prior to the Initial
Questionnaire Deadline. The Company shall include in the Shelf
Registration Statement as of the Effective Time the Specified Registrable
Securities of all Electing Holders who shall have returned a Notice and
Questionnaire on or prior to the date 10 calendar days prior to the
Effective Time and reasonably promptly
-9-
after receipt of a returned Notice and Questionnaire in the case of all
other Electing Holders. Each person acquiring Specified Registrable
Securities from an Electing Holder at any time (including after the date
on which such Electing Holder provided the Company its Notice and
Questionnaire) shall also be entitled to have such Specified Registrable
Securities included in the Registration Statement for its own account so
long as such person provides the Company with an updated and signed Notice
and Questionnaire. Any such transferee shall be entitled to have its
Specified Registrable Securities included in the Registration Statement
(i) at the Effective Time, if the updated Notice and Questionnaire is
received by the Company on or prior to the date 10 calendar days prior to
the Effective Time and (ii) in all other cases, reasonably promptly after
the Company receives the updated Notice and Questionnaire. In the case of
any Specified Registrable Securities to be included in the Registration
Statement pursuant to clause (ii) of the preceding sentence, the Company
shall effect such inclusion by filing such post-effective amendments to
the Registration Statement or supplements to the Prospectus as may be
required by the Rules and Regulations to permit the resale of such
Specified Registrable Securities for the accounts of the respective
Holders.
(n) In the event of a single underwritten offering as set forth in
Section 6 hereof, the Company shall, if requested, promptly include or
incorporate in a Prospectus supplement or post-effective amendment to a
Shelf Registration Statement, such information as the Managing
Underwriters reasonably agree should be included therein and to which the
Company does not reasonably object and shall make all required filings of
such Prospectus supplement or post-effective amendment as soon as
practicable after it is notified of the matters to be included or
incorporated in such Prospectus supplement or post-effective amendment.
(o) The Company shall enter into such customary agreements
(including an underwriting agreement in customary form in the event of a
single underwritten offering as set forth in Section 6 hereof) and take
all other appropriate action in order to expedite and facilitate the
registration and disposition of the Registrable Securities, and in
connection therewith, if an underwriting agreement is entered into, cause
the same to contain indemnification provisions and procedures
substantially identical to those set forth in Section 5 hereof with
respect to all parties to be indemnified pursuant to Section 5 hereof.
(p) The Company shall:
(i)(A) make reasonably available for inspection by the Holders
of Registrable Securities to be registered under a Shelf
Registration Statement, any underwriter participating in any
disposition pursuant to
-10-
such Shelf Registration Statement, and any attorney, accountant or
other agent retained by such Holders or any such underwriter all
relevant financial and other records, pertinent corporate documents
and properties of the Company and its subsidiaries, and (B) cause
the Company's officers, directors and employees to supply all
information reasonably requested by such Holders or any such
underwriter, attorney, accountant or agent in connection with the
Shelf Registration Statement, in each case, as is customary for
similar due diligence examinations; provided, however, that all
records, information and documents that are designated in writing by
the Company, in good faith, as confidential shall be kept
confidential by such Holders and any such underwriter, attorney,
accountant or agent, unless such disclosure is made in connection
with a court proceeding or required by law, or such records,
information or documents become available to the public generally or
through a third party without an accompanying obligation of
confidentiality and the Company may require that such Holders or any
such underwriter, attorney, accountant and agent execute a customary
confidentiality agreement to the foregoing effect with respect to
such information; and provided further that, if the foregoing
inspection and information gathering would otherwise disrupt the
Company's conduct of its business, such inspection and information
gathering shall, to the greatest extent possible, be coordinated on
behalf of such Holders and the other parties entitled thereto by one
counsel designated by and on behalf of such Holders;
(ii) make such representations and warranties to the Holders
of Registrable Securities registered under the Shelf Registration
Statement and to the Managing Underwriters, if any, in form,
substance and scope as are customarily made by the Company to
underwriters in primary underwritten offerings of equity and
convertible debt securities and covering matters including, but not
limited to, those set forth in the Purchase Agreement;
(iii) obtain opinions of counsel to the Company and updates
thereof (which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the Managing Underwriters, if
any) addressed to each selling Holder and the underwriters, if any,
covering such matters as are customarily covered in opinions
requested in underwritten offerings and such other matters as may be
reasonably requested by such Holders and underwriters (it being
agreed that the matters to be covered by such opinion or written
statement by such counsel delivered in connection with such opinions
shall include in customary form, without limitation, as of the date
of the opinion and as of the effective date of the Shelf
Registration Statement or most recent
-11-
post-effective amendment thereto, as the case may be, the absence
from such Shelf Registration Statement and the Prospectus included
therein, as then amended or supplemented, including the documents
incorporated by reference therein, of an untrue statement of a
material fact or the omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein (in the case of the Prospectus, in light of the
circumstances under which they were made) not misleading;
(iv) obtain "cold comfort" letters and updates thereof from
the independent public accountants of the Company (and, if
necessary, from the independent public accountants of any subsidiary
of the Company or of any business acquired by the Company for which
financial statements and financial data are, or are required to be,
included in the Shelf Registration Statement), addressed to each
such Holder of Registrable Securities registered thereunder (if such
holder has provided such letter, representations or documentation,
if any, required for such cold comfort letter to be so addressed)
and the underwriters, in customary form and covering matters of the
type customarily covered in "cold comfort" letters in connection
with primary underwritten offerings;
(v) deliver such documents and certificates as may be
reasonably requested by any such Holders and the Managing
Underwriters, if any, including, without limitation, certificates to
evidence compliance with Section 3(i) hereof and with any conditions
contained in the underwriting agreement or other agreements entered
into by the Company.
The foregoing actions set forth in clauses (ii), (iii), (iv), and (v) of
this Section 3(p) shall be applicable only to a single underwritten
offering conducted pursuant to Section 6 hereof and shall be performed at
each closing under any underwritten offering to the extent required
thereunder.
(q) The Company will use its reasonable best efforts to cause the
Stock issuable upon conversion of the Securities to be listed for
quotation on the Nasdaq National Market or other stock exchange or trading
system on which the Stock primarily trades on or prior to the
effectiveness of the initial Shelf Registration Statement hereunder.
(r) In the event that any broker-dealer registered under the
Exchange Act shall be an "Affiliate" (as defined in Rule 2720(b)(i) of the
Rules of Conduct of the National Association of Securities Dealers, Inc.
(the "NASD") (or any successor or analogous provision thereto)) of the
Company
-12-
or has a "Conflict of Interest" (as defined in Rule 2720(b)(7) of the
Rules of Conduct of the NASD (or any successor an analogous provision
thereto)) and such broker-dealer shall underwrite, participate as a member
of an underwriting syndicate or selling group or "assist in the
distribution" (within the meaning of such Schedule) of any Registrable
Securities, whether as a holder of such Registrable Securities or as an
underwriter, a placement or sales agent or a broker or dealer in respect
thereof, or otherwise, assist such broker-dealer in complying with the
requirements of such Schedule, including, without limitation, by (A)
engaging a "qualified independent underwriter" (as defined in such
Schedule) to participate in the preparation of the registration statement
relating to such Registrable Securities, to exercise usual standards of
due diligence in respect thereto and to recommend the public offering
price of such Registrable Securities, (B) indemnifying such qualified
independent underwriter to the extent of the indemnification of
underwriters provided in Section 5 hereof, and (C) providing such
information to such broker-dealer as may be required in order for such
broker-dealer to comply with the requirements of the Rules of Fair
Practice of the NASD.
(s) The Company shall use its reasonable best efforts to take all
other steps necessary to effect the registration, offering and sale of the
Registrable Securities covered by the Shelf Registration Statement
contemplated hereby.
4. Registration Expenses. Except as otherwise provided in Section 6, the
Company shall bear all fees and expenses incurred in connection with the
performance of its obligations under Sections 2, 3 and 6 hereof. In addition, in
the event of an underwritten offering conducted pursuant to Section 6 hereof, or
if in any other event the Company requires that time inspection and information
gathering be coordinated by counsel for the Holders as provided in Section
3(p)(i), the Company shall pay the fees and expenses of a single counsel
selected by the Holders of not less than 25% of the Registrable Securities
included in such underwritten offering (or, in any such other event, included in
the Shelf Registration Statement) to represent them. The Holders participating
in such offering (or, in any such other event, participating in such inspection
and information gathering) shall be responsible, on a pro rata basis based on
the respective amount of their Registrable Securities included in such offering
for all fees and expenses of such counsel in excess of $75,000.
5. Indemnification and Contribution. (a) In connection with any Shelf
Registration Statement, the Company shall indemnify and hold harmless the
Purchasers, each Holder, each underwriter who participates in an offering of
Registrable Securities, each person, if any, who controls any of such parties
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act and each of their respective directors, officers, employees,
trustees and agents, against any and all loss, liability, claim, damage and
expense whatsoever, as incurred
-13-
(including any amounts paid in settlement of any investigation, litigation,
proceeding or claim, joint or several, or incurred in investigating, preparing
or defending against any litigation, or any investigation or proceeding by any
court or governmental agency or body, commenced or threatened, or any claim
whatsoever), arising out of or based upon, any untrue statement or alleged
untrue statement of a material fact contained in any Shelf Registration
Statement (or any amendment thereto) covering Registrable Securities, including
all documents incorporated therein by reference, or the omission or alleged
omission therefrom of a material fact required to be stated therein or necessary
to make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained in any
Prospectus (or any amendment or supplement thereto) or the omission or alleged
omission therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided that the Company shall not be liable under this clause (i)
for any settlement of any action effected without its written consent, which
consent shall not be unreasonably withheld; and provided further that this
indemnity shall not apply to any loss, liability, claim, damage or expense to
the extent arising out of (x) an untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with written
information furnished to the Company by the Purchasers, such Holder or any
underwriter in writing expressly for use in the Shelf Registration Statement (or
any amendment thereto) or any Prospectus (or any amendment or supplement
thereto) or (y) (1) the use of a Prospectus during any period when its use has
been suspended pursuant to Section 2(c) or 3(c)(2) after the Company has
provided written notice of such suspension to the applicable Purchaser, Holder
or underwriter, unless, in the case of suspension pursuant to Section 2(c) or
3(c)(2)(iii), the untrue statement(s) or omission(s) or alleged untrue
statement(s) or omission(s) giving rise to such loss, liability, claim, damage
or expense was (were) not corrected in the Prospectus available for use at the
end of the period of suspension or (2) the use of an outdated Prospectus after
the Company has provided an updated Prospectus correcting the untrue statement
or alleged untrue statement or omission or alleged omission giving rise to the
loss, liability, claim, damage or expense and furnished copies to the applicable
Purchaser, Holder or underwriter. Any amounts advanced by the Company to an
indemnified party pursuant to this Section 5 as a result of such losses shall be
returned to the Company if it shall be finally determined by such a court in a
judgment not subject to appeal or further review that such indemnified party was
not entitled to indemnification by the Company.
(b) Each Holder agrees, as a consequence of the inclusion of any of its
Registrable Securities in a Shelf Registration Statement, severally and not
jointly, to indemnify and hold harmless the Company, the Purchasers, each
underwriter who participates in an offering of Registrable Securities and the
other selling Holders and each of their respective directors, officers
(including each officer of the Company who signed the Shelf Registration
Statement), employees, trustees and agents and
-14-
each Person, if any, who controls the Company, the Purchasers, any underwriter
or any other selling Holder within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act, from and against any and all loss,
liability, claim, damage and expense whatsoever described in the indemnity
contained in Section 5(a) hereof, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Shelf Registration Statement (or any amendment thereto) or any Prospectus (or
any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by such selling Holder expressly
for use in the Shelf Registration Statement (or any amendment thereto) or any
Prospectus (or any amendment or supplement thereto); provided, however, that, no
Holder shall be liable for any claims hereunder in excess of the amount of net
proceeds received by such Holder from the sale of Registrable Securities
pursuant to the Shelf Registration Statement.
(c) Each indemnified party shall give prompt notice to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, enclosing a copy of all papers served on such indemnified
party, but failure to so notify an indemnifying party shall not relieve such
indemnifying party of any liability which it may have to the indemnified party
otherwise than on account of this indemnity agreement. An indemnifying party may
participate at its own expense in the defense of any such action. If an
indemnifying party so elects within a reasonable time after receipt of such
notice, such indemnifying party, jointly with any other indemnifying party, may
assume the defense of such action with counsel chosen by it and approved by the
indemnified party or parties defendant in such action, provided that if any such
indemnified party reasonably determines that there may be legal defenses
available to such indemnified party which are different from or in addition to
those available to such indemnifying party or that representation of such
indemnifying party and any indemnified party by the same counsel would present a
conflict of interest, then such indemnifying party or parties shall not be
entitled to assume such defense. If an indemnifying party is not entitled to
assume the defense of such action as a result of the proviso to the preceding
sentence, counsel for such indemnifying party shall be entitled to conduct the
defense of such indemnifying party and counsel for each indemnified party or
parties shall be entitled to conduct the defense of such indemnified party or
parties. If an indemnifying party assumes the defense of an action in accordance
with and as permitted by the provisions of this paragraph, such indemnifying
party shall not be liable for any fees and expenses of counsel for the
indemnified parties incurred thereafter in connection with such action. In no
event shall the indemnifying party or parties be liable for the fees and
expenses of more than one counsel (in addition to any local counsel) separate
from its own counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances.
-15-
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnity provision provided for in this Section 5 is
for any reason held to be unavailable to an indemnified party although
applicable in accordance with its terms, then each indemnifying party shall
contribute to the aggregate losses, liabilities, claims, damages and expenses of
the nature contemplated by said indemnity agreement incurred by such indemnified
party, as incurred; provided that 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 that was not guilty of such
fraudulent misrepresentation. Each such indemnifying party shall contribute to
such aggregate losses, liabilities, claims, damages and expenses of such
indemnified party of the nature contemplated by such indemnity agreement in such
proportion as shall be appropriate to reflect the relative fault of such
indemnifying party, on the one hand, and such indemnified party, on the other
hand, with respect to the statements or omissions which resulted in such loss,
liability, claim, damage or expense, or action in respect thereof, as well as
any other relevant equitable considerations. The relative fault of an
indemnifying party, on the one hand, and of an indemnified party, 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
indemnifying party, on the one hand, or by or on behalf of such indemnified
party, on the other, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company, the Purchasers and the Holders of the Registrable Securities agree
that it would not be just and equitable if contribution pursuant to this Section
5(d) were to be determined by pro rata allocation or by any other method of
allocation that does not take into account the relevant equitable
considerations. For purposes of this Section 5(d), each director, officer,
employee, trustee, agent and Person, if any, who controls a Purchaser or Holder
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act shall have the same rights to contribution as such Purchaser or
Holder, as the case may be, and each director, officer, employee, trustee and
agent of the Company, and each Person, if any, who controls the Company within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act shall have the same rights to contribution as the Company. No party shall be
liable for contribution with respect to any action, suit, proceeding or claim
settled without its written consent, which consent shall not be unreasonably
withheld.
6. Underwritten Offering. The Holders of Registrable Securities covered by
the Shelf Registration Statement who desire to do so may sell such Registrable
Securities (in whole or in part at its election) in one underwritten offering,
provided that the Holders of at least 33-1/3% in aggregate principal amount of
the Registrable Securities then covered by the
-16-
Shelf Registration Statement shall request such an offering and at least such
aggregate principal amount of such securities shall be included in such
offering. Upon receipt of such a request, the Company shall provide all Holders
of Registrable Securities then covered by the Shelf Registration Statement a
written notice of and opportunity to participate in the offering on a pro rata
basis (based on the respective numbers of their Registrable Securities then
covered by the Shelf Registration Statement). In any such underwritten offering,
the investment banker or bankers and manager or managers that will administer
the offering will be selected by, and the underwriting arrangements with respect
thereto will be approved by (including size of the offering but subject to the
preceding sentence) the Holders of a majority of the registrable Securities to
be included in such offering; provided, however, that such investment bankers
and managers and underwriting arrangements must be reasonably satisfactory to
the Company. No Holder may participate in any underwritten offering contemplated
hereby unless such Holder (a) agrees to sell such Holder's Registrable
Securities to be included in accordance with any approved underwriting
arrangements and (b) completes and executes all reasonable questionnaires,
powers of attorney, indemnities, underwriting agreements, lock-up letters and
other documents required under the terms of such approved underwriting
arrangements. The Holders participating in any underwritten offering shall be
responsible for any underwriting discounts and commissions and fees and, subject
to Section 4 hereof, expenses of their own counsel. The Company shall pay all
expenses customarily borne by issuers, including but not limited to filing fees,
the fees and disbursements of its counsel and independent public accountants and
any printing expenses incurred in connection with such underwritten offering.
Notwithstanding the foregoing or the provisions of Section 3(n) hereof, upon
receipt of a request from the Managing Underwriter, if any, or a representative
of Holders of a majority of the Registrable Securities to be included in the
underwritten offering to prepare and file an amendment or supplement to the
Shelf Registration Statement and Prospectus in connection with an underwritten
offering, the Company may delay the filing of any such amendment or supplement
for up to 90 days if the Board of Directors of the Company shall have determined
in good faith that the Company has a bona fide business reason for such delay.
7. Miscellaneous.
(a) Other Registration Rights. The Company may grant registration rights
that would permit any Person that is a third party the right to piggyback on any
Shelf Registration Statement and in any underwritten offering pursuant to
Section 6 hereof, provided that if the Managing Underwriter, if any, of such
offering notifies the Company and the selling Holders that the total amount of
securities which the selling Holders and the holders of such piggyback rights
intend to include in any Shelf Registration Statement is so large as to
materially threaten the success of such offering (including the price at which
such securities can be sold), then the amount, number or kind of securities to
be offered for the account of holders of such piggyback rights will be reduced
(i) in the case of any registration rights granted by the Company prior to the
date of this Agreement, pro rata with the Registrable Securities based on the
respective amounts of securities included in the Shelf
-17-
Registration Statement and participating in such underwritten offering, to the
extent necessary to reduce the total amount of securities to be included in such
offering to the amount, number and kind recommended by the Managing Underwriter,
if any and (ii) in the case of any registration rights granted by the Company
after the date of this Agreement, to the extent necessary to reduce the total
amount of securities to be included in such offering to the amount, number and
kind recommended by the Managing Underwriter, if any, prior to any reduction in
the amount of Registrable Securities to be included in such Shelf Registration
Statement.
(b) Amendments and Waivers. This Agreement, including this Section 7(b),
may be amended, and waivers or consents to departures from the provisions hereof
may be given, only by a written instrument duly executed by the Company and
either (i) the Purchasers or (ii) the Holders of a majority in aggregate
principal amount of Registrable Securities that (i) at any time before
effectiveness of the Shelf Registration Statement, are then outstanding and (ii)
at any time after effectiveness, are then covered by the Shelf Registration
Statement; provided that no such amendment, waiver or consent shall adversely
affect the rights and obligations of any person under Section 5 with regard to
securities sold pursuant to the Shelf Registration Statement prior thereto
without such person's consent. Each Holder of Registrable Securities outstanding
at the time of any such amendment, waiver or consent or thereafter shall be
bound by any amendment waiver or consent effected pursuant to this Section 7(b),
whether or not any notice, writing or marking indicating such amendment, waiver
or consent appears on the Registrable Securities or is delivered to such Holder.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telex, telecopier, or air courier guaranteeing overnight delivery:
(1) if to a Holder, at the most current address given by such
Holder to the Company pursuant to the Notice and Questionnaire;
(2) if to the Purchasers, initially at the address set forth in
the Purchase Agreement; and
(3) if to the Company, initially at the address set forth in
the Purchase Agreement.
All such notices and communications shall be deemed to have been duly given when
received.
The Purchasers or the Company by notice to the other may designate
additional or different addresses for subsequent notices or communications.
-18-
(d) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties and the
Holders, including, without the need for an express assignment or any consent by
the Company thereto, subsequent Holders of Registrable Securities. The Company
hereby agrees to extend the benefits of this Agreement to any Holder of
Registrable Securities and any such Holder may specifically enforce the
provisions of this Agreement as if an original party hereto.
(e) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) Headings. The headings in this agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York, without giving effect
to any provisions relating to conflicts of laws.
(h) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
hereto shall be enforceable to the fullest extent permitted by law.
-19-
Please confirm that the foregoing correctly sets forth the agreement
between the Company and you.
Very truly yours,
UroMed Corporation
By:.
--------------------------------
Name:
Title:
The foregoing Registration Rights Agreement is hereby confirmed and accepted as
of the date first above written.
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
PaineWebber Incorporated
▇.▇. ▇▇▇▇▇▇ Securities Inc.
By: ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
---------------------------------
(▇▇▇▇▇▇▇, Sachs & Co.)
Appendix A
UROMED CORPORATION
INSTRUCTION TO DTC PARTICIPANTS
-------------------------------
(Date of Mailing)
URGENT - IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE [DATE]
---------------------------
The Depository Trust Company ("DTC") has identified you as a DTC
Participant through which beneficial interests in the UroMed Corporation (the
"Company") 6% Convertible Subordinated Notes due October 15, 2003 (the "Notes")
are held. The Notes are identified by CUSIP Nos. ______ and _______.
In accordance with the terms of the Registration Rights Agreement, dated
as of October 15, 1996, between the Company and the Purchasers named thereon
(the "Registration Rights Agreement"), the Company is in the process of
registering the Notes under the Securities Act of 1933 for resale by the
beneficial owners thereof. In order to have their Notes included in the
registration statement, the beneficial owners must complete and return the
enclosed Notice of Registration Statement and Selling Securityholder
Questionnaire (the "Notice and Questionnaire). A copy of the Registration Rights
Agreement is attached to the Notice and Questionnaire.
It is important that beneficial owners of the Notes receive a copy of the
enclosed materials as soon as possible as their rights to have the Notes
included in the registration statement depend upon their returning the Notice
and Questionnaire by [DEADLINE FOR RESPONSE]. Please forward a copy of the
enclosed documents to each beneficial owner that holds interests in the Notes
through you. If you require more copies of the enclosed materials or have any
questions pertaining to this matter, please contact [Name, address and telephone
number of contact at the Company].
A-2-
UroMed Corporation
Notice of Registration Statement
and
Selling Securityholder Questionnaire
------------------------------------
(Date)
UroMed Corporation (the "Company") has filed with the United States
Securities and Exchange Commission (the "Commission") a preliminary registration
statement on Form S-3 (the "Registration Statement") for the registration and
resale under Rule 415 of the Securities Act of 1933, as amended (the "Securities
Act"), of the Company's 6% Convertible Subordinated Notes due October 15, 2003
(CUSIP Nos. ______________ and ___________) (the "Notes"), and the shares of
common stock, no par value, issuable upon conversion thereof (the "Common
Stock", and together with the Notes, the "Registrable Securities"), in
accordance with the terms of the Registration Rights Agreement, dated as of
October 15, 1996 (the "Registration Rights Agreement"), between the Company and
the Purchasers named therein (the "Purchasers"). A copy of the Registration
Rights Agreement is attached hereto. All capitalized terms not otherwise defined
herein shall have the meaning ascribed thereto in the Registration Rights
Agreement.
In order to have Registrable Securities included in the Registration
Statement, this Notice of Registration Statement and Selling Securityholder
Questionnaire ("Notice and Questionnaire") must be completed, executed and
delivered to the Company's counsel at the address set forth herein for receipt
ON OR BEFORE [DEADLINE FOR RESPONSE]. Unless the Company otherwise consents,
beneficial owners of Registrable Securities who do not complete, execute and
return this Notice and Questionnaire by such date (i) will not be named as
selling securityholders in the Registration Statement and related Prospectus and
(ii) may not sell their Registrable Securities pursuant thereto.
Certain legal consequences arise from being named as a selling
securityholder in the Registration Statement and related Prospectus.
Accordingly, holders and beneficial owners of Registrable Securities are advised
to consult their own securities law counsel regarding the consequences of being
named or not being named as a selling securityholder in the Registration
Statement and related Prospectus.
ELECTION
The undersigned holder (the "Selling Securityholder") of Registrable
Securities hereby elects to include in the Registration Statement the
Registrable
A-3-
Securities beneficially owned by it and listed below in Item (3) (unless
otherwise specified under Item 3). The undersigned agrees to be bound with
respect to such Registrable Securities by the terms and conditions of this
Notice and Questionnaire and the Registration Rights Agreement.
The Selling Securityholder hereby undertakes, in accordance with Section 5
of the Registration Rights Agreement, to indemnify and hold harmless the
Company, each Purchaser and the other Selling Securityholders and each of their
respective directors, officers, employees, trustees and agents and each person,
if any, who controls the Company or any Purchaser within the meaning of either
Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), from and against any and all loss,
liability, claim, damage and expense whatsoever described in the indemnity
contained in Section 5(a) of the Registration Rights Agreement, as incurred, but
only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or any amendment
thereto) or Prospectus (or any amendment or supplement thereto) in reliance upon
and in conformity with information furnished in writing herein to the Company by
such Selling Securityholder; provided, however, that the Selling Securityholder
shall not be liable for any claims hereunder in excess of the amount of net
proceeds received by such Selling Securityholder from the sale of Registrable
Securities pursuant to the Registration Statement. The undersigned further
undertakes, if applicable, to comply with the provisions of Sections 5(c) and
(d) of the Registration Rights Agreement that are applicable to the undersigned.
The Selling Securityholder agrees, as a consequence of its inclusion in
the Shelf Registration Statement, to cease any use of a Prospectus in the event
the Company provides a notice pursuant to Section 2(c) or Section 3(c) of the
Registration Rights Agreement, and not to use a Prospectus until receipt of
notice from the Company authorizing the Selling Securityholder to use a
Prospectus and, in the case of any notice delivered pursuant to Section
3.2(c)(iii) of the Registration Rights Agreement, receipt of an updated
Prospectus.
Upon any sale of Registrable Securities pursuant to the Registration
Statement under the Securities Act, the Selling Securityholder will be required
to deliver to the Company and Trustee the Notice of Transfer set forth in Annex
1 attached to this Notice and Questionnaire (completed and signed) and hereby
undertakes to do so.
The Selling Securityholder hereby provides the following information to
the Company and represents and warrants that such information is accurate and
complete:
A-4-
QUESTIONNAIRE
(1) (a) Full Legal Name of Selling Securityholder:
------------------------------------------------------------
(b) Full Legal Name of Registered Holder (if not the same as in (a)
above) of Registrable Securities Listed in (3) below:
------------------------------------------------------------
(c) Full Legal Name of DTC Participant (if applicable and if not the
same as (b) above) Through Which Registrable Securities Listed in
(3) below are Held:
(2) Address for Notices to Selling Securityholder:
------------------------------------------------------------
------------------------------------------------------------
------------------------------------------------------------
Telephone: _____________________
Fax: _____________________
Contact Person: _____________________
(3) Beneficial Ownership of Registrable Securities:
Except as set forth below, the undersigned Selling Securityholder does not
beneficially own any Notes or shares of Common Stock previously issued upon
conversion of any Note.
Principal amount of Notes beneficially owned:_________________
CUSIP # of Notes beneficially owned:_________________________
Number of shares of Common Stock beneficially owned and issued to date
upon conversion of Notes (if any):_____________________
A-5-
(4) Other Shares of Common Stock or Other Securities of the Company Owned
by the Selling Securityholder:
Except as set forth below, and under Item (3) above, the undersigned
Selling Securityholder is not the beneficial or registered owner of any shares
of Common Stock or any other securities of the Company.
State any exceptions here:
(5) Relationships with the Company:
Except as set forth below, neither the Selling Securityholder nor any of
its affiliates, officers, directors or principal equity holders (5% or more) has
held any position or office or has had any other material relationship with the
Company (or its predecessors or affiliates) during the past three years.
State any exceptions here:
(6) Plan of Distribution:
Except as set forth below, the undersigned Selling Securityholder intends
to distribute the Registrable Securities listed above in Item (3) only as
follows: Such Registrable Securities may be sold from time to time directly by
the undersigned Selling Securityholder or, alternatively, through underwriters,
broker-dealers or agents. Such Registrable Securities may be sold in one or more
transactions at fixed prices, at prevailing market prices at the time of sale,
at varying prices determined at the time of sale, or at negotiated prices. Such
sales may be effected in transactions (which may involve crosses or block
transactions) (i) on any national securities exchange or quotation service on
which the Registered Securities may be listed or quoted at the time of sale,
(ii) in the over-the-counter market, (iii) in transactions otherwise than on
such exchanges or services or in the over-the-counter market, or (iv) through
the writing of options. In connection with sales of the Registrable Securities
or otherwise, the Selling Securityholder may enter into hedging transactions
with broker-dealers, which may in turn engage in short sales of the Registrable
Securities in the course of hedging the positions they assume. The Selling
Securityholder may also sell Registrable Securities short and deliver
Registrable Securities to close out such short positions, or loan or pledge
Registrable Securities to broker-dealers that in turn may sell such securities.
State any exceptions here:
A-6-
Note: In no event will such method(s) of distribution take the
form of an underwritten offering of the Registrable Securities
without the prior agreement of the Company.
The Selling Securityholder acknowledges that it understands its obligation
to comply with the provisions of the Exchange Act, and the rules thereunder,
relating to stock manipulation, particularly Rule 10b-6 thereunder (or any
successor rules), in connection with the offering of its Registrable Securities
covered by the Registration Statement. The Selling Securityholder agrees that
neither it nor any person acting on its behalf, will bid for, or purchase any
securities of the Company in violation of such provisions, so long as the
Registrable Securities beneficially owned by it are being offered pursuant to
the Registration Statement.
In the event that the Selling Securityholder transfers all or any portion
of the Registrable Securities listed in Item (3) above after the date on which
such information is provided to the Company, the Selling Securityholder agrees
to notify the transferee(s) at the time of the transfer of the transferee(s)
rights and obligations under this Notice and Questionnaire and the Registration
Rights Agreement.
By signing below, the Selling Securityholder consents to the disclosure of
the information contained herein in its answers to Items (1) through (6) above
and the inclusion of such information in the Registration Statement and related
Prospectus. The Selling Securityholder understands that such information will be
relied upon by the Company in connection with the preparation of the
Registration Statement and related Prospectus.
In accordance with the Selling Securityholder's obligation under Section
3(m) of the Registration Rights Agreement to provide such information as may be
required by law for inclusion in the Registration Statement, the Selling
Securityholder agrees to promptly notify the Company of any inaccuracies or
changes in the information provided herein which may occur subsequent to the
date hereof at any time while the Registration Statement remains in effect. All
notices hereunder and pursuant to the Registration Rights Agreement shall be
made in writing, by hand-delivery, first-class mail, or air courier guaranteeing
overnight delivery as follows:
(i) To the Company:
UroMed Corporation
▇▇ ▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
(ii) With a copy to:
A-7-
▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
Once this Notice and Questionnaire is executed by the Selling
Securityholder and received by the Company's counsel, the terms of this Notice
and Questionnaire, and the representations and warranties contained herein,
shall be binding on, shall inure to the benefit of and shall be enforceable by
the respective successors, heirs, personal representatives, and assigns of the
Company and the Selling Securityholder (with respect to the Registrable
Securities beneficially owned by such Selling Securityholder and listed in Item
(3) above. This Agreement shall be governed in all respects by the laws of the
State of New York.
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused
this Notice and Questionnaire to be executed and delivered either in person or
by its duly authorized agent.
Dated:_________________
-------------------------------------------
Selling Securityholder
(Print/type full legal name of beneficial
owner of Registrable Securities)
By:________________________________________
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON
OR BEFORE [DEADLINE FOR RESPONSE] TO THE COMPANY'S COUNSEL AT:
▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
ANNEX 1
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
State Street Bank and Trust Company, as Trustee
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
Re: UroMed Corporation (the "Company")
6% Convertible Subordinated Notes
due October 15, 2003 (the "Notes")
Dear Sirs:
Please be advised that _____________________ has transferred
$_________________ aggregate principal amount of the above-referenced Notes or
____________ shares of the Company's common stock, no par value, issued on
conversion of Notes ("Stock") pursuant to the Registration Statement on Form S-3
(File No. 333-_____) filed by the Company.
We hereby certify that the prospectus delivery requirements, if any, of
the Securities Act of 1933, as amended, have been satisfied with respect to the
transfer described above and that the above-named beneficial owner of the Notes
or Stock is named as a Selling Securityholder in the Prospectus dated
______________, ____ or in amendments or supplements thereto, and that the
aggregate principal amount of the Notes or number of shares of Stock transferred
are [a portion of] the Notes or Stock listed in such Prospectus as amended or
supplemented opposite such owner's name.
Dated:
Very truly yours,
------------------------
(Name)
By:_________________________
(Authorized Signature)
