EXHIBIT 4.8
ANGEION CORPORATION
7 1/2% Senior Convertible Notes Due 2003
REGISTRATION RIGHTS AGREEMENT
New York, New York
April 14, 1998
Subscriber named on the Signature Page hereof
Ladies and Gentlemen:
Angeion Corporation, a Minnesota corporation (the "Company"),
proposes to issue and sell to you, in accordance with the Private Placement
Memorandum dated March 12, 1998 (including all exhibits thereto, the "Private
Placement Memorandum"), 7 1/2% Senior Convertible Notes Due 2003 (the "Notes").
The Notes will be convertible into shares of Common Stock, par value $0.01 per
share (the "Common Stock"), of the Company. The Company agrees with you, for the
benefit of the holders from time to time of the Notes or the Common Stock
issuable upon conversion of the Notes (including you) (each of the foregoing, a
"Holder" and together, the "Holders"), as follows:
1. Definitions.
(a) As used in this Agreement, the following capitalized terms shall
have the following meanings:
"Act" means the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Affiliate" of any specified person means any other person that,
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 policies of such person whether by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Business Day" means any day that is neither a Saturday or a Sunday
nor a day on which banking institutions in The City of New York are authorized
or obligated by law or executive order to close.
"Closing Date" has the meaning set forth in the Subscription
Agreement.
"Commission" means the Securities and Exchange Commission.
"Damages Accrual Period" has the meaning set forth in Section 2(d)
hereof.
"Damages Payment Date" has the meaning set forth in Section 2(d)
hereof.
"Deferral Period" shall have the meaning set forth in Section 2(c)
hereof.
"Event" has the meaning set forth in Section 2(d) hereof.
"Event Date" has the meaning set forth in Section 2(d) hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Holder" has the meaning set forth in the preamble hereto.
"Indenture" means the Indenture relating to the Notes between the
Company and U.S. Bank National Association, as trustee, as the same may be
amended from time to time in accordance with the terms thereof.
"Initial Placement" means the initial sale of the Notes to the
initial purchasers.
"Interest Payment Date" has the meaning set forth in the Notes.
"Liquidated Damages" has the meaning set forth in Section 2(d)
hereof.
"Majority Holders" means the Holders of a majority of the aggregate
principal amount of Notes registered under a Shelf Registration Statement then
outstanding; provided that Holders of Common Stock issued upon conversion of the
Notes shall be deemed to be Holders of the aggregate principal amount of Notes
from which such Common Stock was converted.
"Managing Underwriters" means the Underwriter or Underwriters that
shall administer an Underwritten Offering.
"Notice Holder" has the meaning set forth in Section 2(b) hereof.
"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 Notes or Common Stock issuable upon conversion
thereof, covered by such Shelf Registration Statement, and all amendments and
supplements to such prospectus, including post-effective amendments.
"Record Date" has the meaning set forth in the Notes.
"Record Holders" has the meaning set forth in Section 2(d).
"Registrable Securities" shall mean the Notes and shares of Common
Stock issued upon conversion thereof, excluding any such securities that, and
any such securities the predecessors of which, were previously sold pursuant to
an effective registration statement of the Company filed under the Act or
pursuant to Rule 144 promulgated under the Act or, which, in the written opinion
of counsel to the Company, may be sold pursuant to Rule 144 promulgated under
the Act.
"Selling Confirmation" has the meaning set forth in Section 2(b)(i).
"Selling Notice" has the meaning set forth in Section 2(b).
"Selling Period" means, with respect to a Notice Holder and a
Selling Notice given by such Notice Holder, a period of 45 calendar days
commencing on the date such Notice Holder receives a Selling Confirmation in
respect of the transactions described in such Selling Notice; provided that the
Company may defer existing Selling Periods in accordance with Section 3(c)(2).
"Shelf Registration" means a registration effected pursuant to
Section 2 hereof.
"Shelf Registration Period" has the meaning set forth in Section
2(a) hereof.
"Shelf Registration Statement" means a registration statement of the
Company pursuant to the provisions of Section 2 hereof (including additional
registration statements filed pursuant to Section 3(d)) that covers some or all
of the Notes and the Common Stock issuable upon conversion thereof, as
applicable, on an appropriate form under Rule 415 promulgated under the Act, or
any similar or successor rule that may be adopted by the Commission, and all
amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"Subscription Agreement" means the Subscription Agreement dated as
of April 3, 1998, between the Company and you.
"Trustee" means the trustee with respect to the Notes under the
Indenture.
"Underwriter" means any underwriter of Notes or Common Stock
issuable upon conversion thereof in connection with an offering thereof under a
Shelf Registration Statement.
"Underwritten Offering" means an offering in which the Notes or
Common Stock are sold to an Underwriter or with the assistance of an Underwriter
for reoffering to the public.
(b) Capitalized terms used but not defined herein shall have the
respective meanings set forth in the Private Placement Memorandum.
2. Shelf Registration; Suspension of Use of Prospectus; Liquidated
Damages.
(a) The Company shall prepare and file with the Commission, as soon
as practicable but in any event on or prior to the date 90 days following the
Closing Date, a Shelf Registration Statement under the Act on any appropriate
form under Rule 415 promulgated under the Securities Act or any similar or
successor rule or regulation registering the resale from time to time by Holders
thereof of all of the Registrable Securities. The Shelf Registration Statement
shall permit resales of Registrable Securities by Holders in the manner or
manners designated by them (including, without limitation, one or more
Underwritten Offerings by an underwriter reasonably acceptable to the Company)
from time to time, which shall be set forth in such Shelf Registration
Statement. The Company shall use its reasonable best efforts to cause the Shelf
Registration Statement to be declared effective under the Act as soon as
reasonably practicable but in any event on or prior to the date 180 days
following the Closing Date and to keep the Shelf Registration Statement
continuously effective under the Act until the earlier of (i) the second
anniversary of the Closing Date, (ii) the date on which, in the written opinion
of counsel to the Company, the Registrable Securities may be sold by all
non-affiliates of the Company pursuant to Rule 144 (or any similar or successor
provision) promulgated by the Commission and (iii) such date as of which all the
Registrable Securities have been sold pursuant to the Shelf Registration
Statement (the period ending at such earlier date, the "Shelf Registration
Period").
(b) Each Holder of Registrable Securities agrees that if such Holder
wishes to sell its Registrable Securities pursuant to the Shelf Registration
Statement and the Prospectus, it will do so only in accordance with this Section
2(b). Each Holder of Registrable Securities agrees to give written notice to the
Company at least three Business Days prior to any intended resale of Registrable
Securities under the Shelf Registration Statement, which notice shall specify
the date on which such Holder intends to begin such distribution and such
information with respect to such Holder and the intended distribution as may be
reasonably required to amend the Shelf Registration Statement or supplement the
Prospectus with respect to such intended distribution (each Holder providing the
notice described in this sentence and with respect to which the related Selling
Period is continuing or has been deferred, a "Notice Holder"; each such notice,
a "Selling Notice"). As soon as practicable after the date a Selling Notice is
received by the Company, and in any event within two Business Days after such
date, the Company shall either:
(i)(A) provide a written notice to the Notice Holder who
gave such Selling Notice instructing and notifying such Notice
Holder that the Shelf Registration Statement and Prospectus may be
used during the applicable Selling Period to effect the transactions
described in such Selling Notice, that the Company is then currently
in compliance with Section 3(b) and that the Company reaffirms the
consent granted pursuant to Section 3(f) (each such notice a
"Selling Confirmation") or (B) file a supplement to the Prospectus
or a post-effective amendment to the Shelf Registration Statement as
required by Section 3(b), use its reasonable best efforts to cause
any such amendment to become effective and immediately provide a
Selling Confirmation to such Notice Holder; or
(ii) in the event of the happening of any event of the
kind described in Section 3(c)(2)(i), 3(c)(2)(ii), 3(c)(2)(iii)(y)
or 3(c)(2)(iv) hereof, the Company shall deliver to such Notice
Holder the notice required by Section 3(c)(2) and notify the holders
that the consent granted pursuant to Section 3(f) is suspended until
further notice.
(c) Each such Notice Holder may sell all or any Registrable
Securities pursuant to the Shelf Registration Statement and the Prospectus only
during the Selling Period commencing with the earlier of (x) the date
on which such Notice Holder receives a Selling Confirmation and (y) the third
Business Day after the related Selling Notice has been received by the Company;
provided that in the event the Company elects to take the actions permitted by
Section 2(b)(ii), the commencement of the Selling Period shall be deferred until
such later date as the Company delivers a Selling Confirmation. A Notice Holder
shall not sell any Registrable Securities pursuant to the Shelf Registration
Statement or the Prospectus after the expiration of the applicable Selling
Period without giving a new Selling Notice pursuant to Section 2(b) hereof and
receiving a new Selling Confirmation. The period during which the commencement
of a Selling Period is deferred by the Company or during which an existing
Selling Period is deferred by the Company is hereinafter referred to as a
"Deferral Period." In the event that (i) the number of Deferral Periods exceeds
three in any twelve-month period or (ii) the number of days in any Deferral
Period exceeds 45 days, the Company shall be liable to pay Liquidated Damages,
in accordance with Section 2(d).
In the event the Company elects to take the actions described in
Section 2(b)(ii), the Company will, at such time as it is in compliance with
Section 3(b) and as use of the Prospectus may be resumed, immediately provide
Selling Confirmations to all Notice Holders.
(d) The parties hereto agree that the Holders of the Registrable
Securities will suffer damages, and that it would not be feasible to ascertain
the extent of such damages with precision, if (i) the Shelf Registration
Statement has not been filed on or prior to the date 90 days following the
Closing Date, (ii) the Shelf Registration Statement has not been declared
effective under the Securities Act on or before the date 180 days following the
Closing Date, (iii) prior to the end of the Shelf Registration Period, the
Commission shall have issued a stop order suspending the effectiveness of the
Shelf Registration Statement or proceedings have been initiated with respect to
the Shelf Registration Statement under Section 8(d) or 8(e) of the Act, (iv) the
aggregate number of days in any one Deferral Period exceeds 30 days or (v) the
number of Deferral Periods exceeds more than one in any three-month period or
three in any twelve-month period (each of the events of a type described in any
of the foregoing clauses (i) through (v) are individually referred to herein as
an "Event"; and the date 90 days following the Closing Date in the case of
clause (i), the date 180 days following the Closing Date in the case of clause
(ii), the date on which the effectiveness of the Shelf Registration Statement
has been suspended or proceedings with respect to the Shelf Registration
Statement under Section 8(d) or 8(e) of the Act have been commenced in the case
of clause (iii), the date on which the duration of a Deferral Period exceeds the
periods permitted by Section 2(c) hereof in the case of clause (iv), and the
date of the commencement of a Deferral Period that causes the limit on the
number of Deferral Periods under Section 2(c) hereof to be exceeded in the case
of clause (v), are each referred to herein as an "Event Date"). Events shall be
deemed to continue until the date of the termination of such Event, which shall
be the following dates with respect to the respective types of Events: the date
the Registration Statement is filed in the case of an Event of the type
described in clause (i), the date the Registration Statement is declared
effective under the Act in the case of an Event described in clause (ii), the
date that all stop orders suspending effectiveness of the Shelf Registration
Statement have been removed and the proceedings initiated with respect to the
Shelf Registration Statement under Section 8(d) or 8(e) of the Act have
terminated, as the case may be, in the case of Events of the types described in
clause (iii), termination of the Deferral Period which caused the aggregate
number of days in any one Deferral Period to exceed the number permitted by
Section 2(c) to be exceeded in the case of Events of the type described in
clause (iv), and termination of the Deferral Period the commencement of which
caused the number of Deferral Periods permitted by Section 2(c)(ii) to be
exceeded in the case of Events of the type described in clause (v).
Accordingly, upon the occurrence of any Event and until such time as
there are no Events which have occurred and are continuing (the "Damages Accrual
Period"), commencing on the Event Date on which such Damages Accrual Period
began, the Company agrees to pay, as liquidated damages, and not as a penalty,
an additional amount (the "Liquidated Damages"): (A) to each Holder of
Registrable Securities that is a Notice Holder, accruing at a rate equal to one
quarter of one percent PER ANNUM (25 basis points) on (y) where such Registrable
Securities are Notes, the aggregate principal amount of such Notes held by such
Notice Holder and (z) where such Registrable Securities are shares of Common
Stock issued upon conversion of the Notes, the aggregate principal amount of the
Notes that were converted into such shares and (B) if the Damages Accrual Period
continues for a period in excess of 30 days from the Event Date, from and after
the end of such 30-day period until such time as there are no Events which have
occurred and are continuing, to each Holder of Registrable Securities (whether
or not a Notice Holder), accruing at a rate equal to one-quarter of one percent
PER ANNUM (25 basis points) on (u) where such Registrable Securities are Notes,
the aggregate principal amount of such Notes held by such Holder and (v) where
such Registrable Securities are shares of Common Stock issued upon conversion
thereof, the aggregate principal amount of the Notes that were converted into
such shares. Notwithstanding the foregoing, no Liquidated Damages shall accrue
under clause (A) of the preceding sentence during any period for which
Liquidated Damages accrue under clause (B) of the preceding sentence or as to
any Notes or shares of Common Stock issued upon conversion thereof from and
after the earlier of (x) the date such securities are no longer Registrable
Securities, and (y) the expiration of the Shelf Registration Period. The rate of
accrual of the Liquidated Damages with respect to any period shall not exceed
the rate provided for in this paragraph notwithstanding the occurrence of
multiple concurrent Events.
Liquidated Damages, if any, due on any Notes or Common Stock issued
upon conversion thereof shall be payable on each Interest Payment Date on the
Notes accruing (or, if there are no Notes outstanding, which would have accrued)
during the Damages Accrual Period and on the Interest Payment Date immediately
following (or which would have followed) the termination of such Period (a
"Damages Payment Date"). The Company shall pay the Liquidated Damages due on any
Notes by depositing with the Trustee under the Indenture, in trust, for the
benefit of the Holders of Notes or Common Stock issued upon conversion thereof
or Notice Holders, as the case may be, entitled thereto, at least one Business
Day prior to the applicable Damages Payment Date, sums sufficient to pay the
Liquidated Damages, if any, accrued or accruing since the last preceding Damages
Payment Date to such Damages Payment Date. The Liquidated Damages, if any, shall
be paid on each Damages Payment Date to the Holders of record of the Registrable
Securities (the "Record Holders") on the Record Date immediately preceding such
Damages Payment Date by wire transfer of immediately available funds to the
accounts specified by them or by mailing checks to their registered addresses as
they appear in the Notes register or stock transfer books of the Company, if no
such accounts have been specified on or before the applicable Regular Record
Date. The Trustee shall be entitled, on behalf of the Holders of Notes, Common
Stock issued upon conversion thereof and Notice Holders, to seek any available
remedy for the enforcement of this Agreement, including for the payment of such
Liquidated Damages, if any. Notwithstanding the foregoing, the parties agree
that the sole remedy payable for a violation of the terms of this Agreement with
respect to which Liquidated Damages, if any, are expressly provided shall be
such Liquidated Damages. Nothing shall preclude a Notice Holder or Holder of
Registrable Securities from pursuing or obtaining specific performance or other
equitable relief with respect to any violation of this Agreement for which
liquidated damages are not expressly provided by this Agreement.
All of the Company's obligations set forth in this Section 2(d)
which are outstanding with respect to any Registrable Securities at the time
such security ceases to be a Registrable Security shall survive until such time
as all such obligations with respect to such security have been satisfied in
full (notwithstanding termination of the Agreement).
The parties hereto agree that the Liquidated Damages provided for in
this Section 2(d) constitute a reasonable estimate of the damages that may be
incurred by Holders of Registrable Securities by reason of the failure of the
Shelf Registration Statement to be filed or declared effective or unavailable
(absolutely or as a practical matter) for effecting resales of Registrable
Securities, as the case may be, in accordance with the provisions hereof.
3. Registration Procedures. In connection with any Shelf
Registration Statement, the following provisions shall apply:
(a) The Company shall furnish to you, prior to the filing thereof
with the Commission, a copy of any Shelf Registration Statement, and each
amendment thereof and each amendment or supplement, if any, to the Prospectus
included therein.
(b) The Company shall ensure that (i) any Shelf Registration
Statement and any amendment thereto and any Prospectus forming part thereof and
any amendment or supplement thereto comply in all material respects with the Act
and the Exchange Act and the respective rules and regulations thereunder, (ii)
any 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) any Prospectus forming part of any
Shelf Registration Statement, and any amendment or supplement to such
Prospectus, does not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading; provided
that no representation or agreement is made hereby with respect to information
with respect to you or any Holder required to be included in any Shelf
Registration or Prospectus pursuant to the Act or the rules and regulations
thereunder or provided by you, any Holder, or any Managing Underwriter
specifically for inclusion in any Shelf Registration Statement or Prospectus.
(c)(1) The Company shall advise you and the Holders and, if
requested by you or any such Holder, confirm such advice in writing:
(i) when a 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) During any Selling Period, during the deferral of any Selling
Period and within two Business Days of receipt by the Company of any Selling
Notice, the Company shall notify you and the Notice Holders and, if requested by
you or any such Notice Holder, confirm such notification in writing:
(i) of the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration Statement or
the initiation of any proceedings for that purpose;
(ii) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the
Registrable Securities included in any Shelf Registration Statement
for sale in any jurisdiction or the initiation or threat of any
proceeding for such purpose;
(iii) of (x) the suspension of the use of the Prospectus
pursuant to Section 2(b) or (y) of the happening of any event that
requires the making of any changes in the Shelf Registration
Statement or the Prospectus so that, as of such date, the statements
therein are not misleading 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 the light of the
circumstances under which they were made) not misleading; and
(iv) of the determination by the Company, in its
reasonable judgment, that it is advisable to suspend use of the
Prospectus for valid business reasons (not including avoidance of
the Company's obligations hereunder) including, among other things,
the acquisition or divestiture of assets, public filings with the
Commission, pending corporate developments and similar events;
which notice shall be accompanied by an instruction to defer the use
of the Prospectus until the Company delivers a Selling Confirmation whereupon
any existing Selling Period shall be deferred and shall recommence upon delivery
of the aforementioned Selling Confirmation; provided that such Selling Period
shall be extended by the number of days elapsed in such period prior to such
deferral.
(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 any Shelf Registration Statement at the earliest possible time,
and in any event shall within 30 days of any such order amend the Shelf
Registration Statement in a manner reasonably expected to obtain the withdrawal
of such order, or file an additional Shelf Registration Statement covering all
of the Registrable Securities (whereupon references herein to the Shelf
Registration Statement shall be deemed to include reference to such additional
filing).
(e) The Company shall furnish to each Holder of the Notes or the
Common Stock issued upon conversion thereof included within the coverage of any
Shelf Registration Statement, without charge, at least one copy of such Shelf
Registration Statement and any post effective amendment or supplement thereto,
including financial statements and schedules, and, if the Holder so requests in
writing, all exhibits (including those incorporated by reference).
(f) The Company shall, during the Shelf Registration Period, deliver
to each Holder of the Notes or the Common Stock issued upon conversion thereof
included within the coverage of any 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, except during such periods
as the Company shall have suspended the use of the Prospectus pursuant to
Section 2(b) or 3(c)(2), the Company consents to the use of the Prospectus or
any amendment or supplement thereto by each of the selling Holders in connection
with the offering and sale of the Notes or the Common Stock issued upon
conversion thereof covered by the Prospectus or any amendment or supplement
thereto.
(g) Prior to any offering of the Notes or the Common Stock issued
upon conversion thereof pursuant to any Shelf Registration Statement, the
Company shall register or qualify or cooperate with the Holders of
the Notes or the Common Stock issued upon conversion thereof included therein
and their respective counsel in connection with the registration or
qualification of such Notes or Common Stock for offer and sale under the
securities or blue sky laws of such jurisdictions as any such Holders reasonably
request in writing and do any and all other acts or things necessary or
advisable to enable the offer and sale in such jurisdictions of the Notes and
the Common Stock issued upon conversion thereof covered by such Shelf
Registration Statement; provided, however, that the Company will not be required
to qualify generally to do business in any jurisdiction where it is not then so
qualified or to take any action which would subject it to general service of
process or to taxation in any such jurisdiction where it is not then so subject.
(h) The Company shall cooperate with the Holders to facilitate the
timely preparation and delivery of certificates representing the Notes or the
Common Stock issued upon conversion thereof to be sold pursuant to any Shelf
Registration Statement free of any restrictive legends and in such denominations
and registered in such names as Holders may request in connection with sales of
the Notes or the Common Stock issued upon conversion thereof pursuant to such
Shelf Registration Statement.
(i) Upon the occurrence of any event contemplated by clause (iii) of
Section (c)(2) above, the Company shall promptly prepare a post-effective
amendment to any Shelf Registration Statement or an amendment or supplement to
the related Prospectus or file any other required document so that, as
thereafter delivered (when and as permitted pursuant to Section 2(c)) 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.
(j) 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 as soon as practicable after the effective
date of the applicable Shelf Registration Statement an earning statement
satisfying the provisions of Section 11(a) of the Act and Rule 158 promulgated
by the Commission thereunder.
(k) The Company shall cause the Indenture to be qualified under the
Trust Indenture Act in a timely manner.
(l) The Company may require each Holder of the Notes or the Common
Stock issued upon conversion thereof to be sold pursuant to any Shelf
Registration Statement to furnish to the Company such information regarding the
Holder and the distribution of such Notes or Common Stock as may, from time to
time, be required by the Act and the rules and regulations promulgated
thereunder, and the obligations of the Company to any Holder hereunder shall be
expressly conditioned on the compliance of such Holder with such request.
(m) The Company shall, if requested, use its reasonable best efforts
to promptly incorporate in a supplement to the Prospectus included in the Shelf
Registration or post-effective amendment to a Shelf Registration Statement (i)
such information as the Majority Holders or, if the Notes or Common Stock issued
upon conversion thereof are being sold in an Underwritten Offering, as the
Managing Underwriters and the Majority Holders reasonably agree should be
included therein and provide to the Company in writing for inclusion in the
Shelf Registration Statement or Prospectus, and (ii) such information as a
Holder may provide from time to time to the Company in writing for inclusion in
a Prospectus or any Shelf Registration Statement concerning such Holder and the
distribution of such Holder's Notes and Common Stock and, in either case, shall
make all required filings of such supplement or post-effective amendment as soon
as notified of the matters to be incorporated in such supplement or
post-effective amendment.
(n) The Company shall enter into such reasonable agreements as are
customary (including underwriting agreements) and take all other customary
actions in order to expedite or facilitate the registration or the disposition
of the Notes or the Common Stock issuable upon conversion thereof, and in
connection therewith, if an underwriting agreement is entered into, cause the
same to contain indemnification provisions and procedures no less favorable to
the Holders than those that are customarily made by issuers to Underwriters (or
such other provisions and procedures acceptable to the Majority Holders and the
Managing Underwriters, if any, with respect to all parties to be indemnified
pursuant to Section 5 from Holders of Notes or the Common Stock issuable upon
conversion thereof to the Company).
(o) The Company shall (i) make reasonably available for inspection
by the Holders of Notes or the Common Stock issued upon conversion thereof to be
registered under a Shelf Registration Statement, any Underwriter participating
in any disposition pursuant to such Shelf Registration Statement, and any
attorney,
accountant or other agent retained by the Holders or any such Underwriter all
relevant financial and other records, pertinent corporate documents and
properties of the Company and its subsidiaries; (ii) cause the Company's
officers, directors and employees to supply all relevant information reasonably
requested by the Holders or any such Underwriter, attorney, accountant or agent
in connection with any such Shelf Registration Statement as is customary for
similar due diligence examinations; provided, however, that any information that
is designated in writing by the Company, in its sole discretion, as confidential
at the time of delivery of such information (the "Confidential Information")
shall be kept confidential by the Holders or any such Underwriter, attorney,
accountant or agent, unless such information has become available to the public
generally or through a third party without an accompanying obligation of
confidentiality (provided, however, that in the event that any of such persons
is requested or required (by oral questions, interrogatories, requests for
information or documents, subpoena, or similar process) to disclose any of the
Confidential Information, it is agreed that such person will provide the Company
with prompt notice of such request(s) so that the Company may seek an
appropriate protective order or other appropriate remedy and/or waive such
person's compliance with this provision and in the event that such protective
order or other remedy is not obtained, or that the Company grants a waiver
hereunder, such person may furnish that portion of the confidential information
which it is legally compelled to disclose); (iii) make such representations and
warranties to the Holders of the Notes or the Common Stock issued upon
conversion thereof registered thereunder and the Underwriters, if any, in form,
substance and scope as are customarily made by issuers to Underwriters; (iv)
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; (v) obtain "cold comfort"
letters and updates thereof from the independent certified public accountants of
the Company (and, if necessary, any other independent certified 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 selling
Holder of the Notes or the Common Stock issued upon conversion thereof
registered thereunder (provided such Holder furnishes the accountants with such
representations as the accountants customarily require in similar situations)
and the Underwriters, if any, in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with primary
underwritten offerings; and (vi) deliver such documents and certificates as may
be reasonably requested by the Majority Holders and the Managing Underwriters,
if any, including those to evidence compliance with Section 3(i) and with any
customary conditions contained in the underwriting agreement or other agreement
entered into by the Company. The foregoing actions set forth in clauses (iii),
(iv), (v) and (vi) of this Section 3 (o) shall be performed at (A) the
effectiveness of such Shelf Registration Statement and each post-effective
amendment thereto and (B) each closing under any underwriting or similar
agreement as and to the extent required thereunder.
(p) 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. The Company shall bear all fees and
expenses incurred in connection with the performance of its obligations under
Sections 2 and 3 hereof and shall bear or reimburse the Holders for the
reasonable fees and disbursements (not to exceed $20,000) of one firm or counsel
designated by the Majority Holders to act as counsel for the Holders in
connection therewith. However, the Company shall not be liable for underwriting
discounts or commissions or transfer taxes payable in connection with any sale
of Notes or Common Stock issued on conversion thereof included in a Shelf
Registration Statement.
5. Indemnification; Contribution.
(a) (i) In connection with any Shelf Registration
Statement, the Company agrees to indemnify and hold harmless each
Holder of Notes or Common Stock issued upon conversion thereof
covered thereby, the directors, officers, employees and agents of
each such Holder and each person who controls any such Holder within
the meaning of either the Act or the Exchange Act against any and
all losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the Act, the
Exchange Act or other Federal or state statutory law or regulation,
at common law or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) (i) arise out of or
are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Shelf Registration Statement as
originally filed or in any amendment thereof, or in any preliminary
Prospectus or Prospectus, or in any amendment thereof or supplement
thereto, or (ii) arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements
therein not misleading, and agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action;
provided, however, that the Company will not be liable in any case
to the extent that any such loss, claim, damage or liability arises
out of or is based upon (i) any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished
to the Company by or on behalf of any such Holder specifically for
inclusion therein, (ii) use of a Shelf Registration Statement or the
related Prospectus during a period when a stop order has been issued
in respect of such Shelf Registration or any proceedings for that
purpose have been initiated or use of a Prospectus when use of such
Prospectus has been deferred pursuant to Section 2(c); provided,
further, in each case, that the Company has delivered prior notice,
and the Holders have received such prior notice, in accordance with
Section 7(c) hereof of such stop order, initiation of proceedings or
deferral or (iii) if the Holder fails to deliver a Prospectus or the
then current Prospectus. This indemnity agreement will be in
addition to any liability which the Company may otherwise have.
(ii) The Company also agrees to indemnify or contribute
to Losses, as provided in Section 5(d), of any Underwriters of the
Notes or the Common Stock issued upon conversion thereof registered
under a Shelf Registration Statement, their officers and directors
and each person who controls such Underwriters on terms that are
customarily made by issuers to Underwriters and shall, if requested
by any Holder, enter into an underwriting agreement reflecting such
agreement, as provided in Section 3(n) hereof.
(b) Each Holder of Notes or Common Stock issued upon conversion
thereof covered by a Shelf Registration Statement severally agrees to indemnify
and hold harmless (i) the Company, (ii) each of its directors, (iii) each of its
officers who signs such Shelf Registration Statement and (iv) each person who
controls the Company within the meaning of either the Act or the Exchange Act to
the same extent as the foregoing indemnity from the Company to each such Holder,
but only with reference to written information relating to such Holder furnished
to the Company by or on behalf of such Holder specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement will
be in addition to any liability which any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 5 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 5, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel (and local counsel) if (i) the use of counsel chosen by
the indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest, (ii) the actual or potential defendants in,
or targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of the institution of such action,
or (iv) the indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party; provided further,
that the indemnifying party shall not be responsible for the fees and expenses
of more than one separate counsel (together with appropriate local counsel)
representing all the indemnified parties under paragraph (a)(i), paragraph
(a)(ii) or paragraph (b) above. An indemnifying party will not, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or proceeding
and does not include an admission of fault.
(d) In the event that the indemnity provided in Section 5(a) or (b)
is unavailable to or insufficient to hold harmless an indemnified party for any
reason, then each applicable indemnifying party, in lieu of indemnifying such
indemnified party, shall have a joint and several obligation to contribute to
the aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or defending same)
(collectively "Losses") to which such indemnified party may be subject in such
proportion as is appropriate to reflect the relative benefits received by such
indemnifying party, on the one hand, and such indemnified party, on the other
hand, from the Initial Placement and the Shelf Registration Statement which
resulted in such Losses; provided, however, that in no case shall any
Underwriter be responsible for any amount in excess of the underwriting discount
or commission applicable to the Notes and the Common Stock issued upon
conversion thereof purchased by such Underwriter under the Shelf Registration
Statement which resulted in such Losses. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the indemnifying
party and the indemnified party shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of such indemnifying party, on the one hand, and such indemnified party,
on the other hand, in connection with the statements or omissions which resulted
in such Losses as well as any other relevant equitable considerations. Benefits
received by the Company shall be deemed to be equal to the sum of (x) the total
net proceeds from the Initial Placement (before deducting expenses) and (y) the
total amount of additional interest which the Company was not required to pay as
a result of registering the Notes and the Common Stock issued upon conversion
thereof covered by the Shelf Registration Statement which resulted in such
Losses. Benefits received by any other Holders shall be deemed to be equal to
the value of receiving the Notes or the Common Stock issuable upon conversion
thereof registered under the Act. Benefits received by any Underwriter shall be
deemed to be equal to the total underwriting discounts and commissions, as set
forth on the cover page of the Prospectus forming a part of the Shelf
Registration Statement which resulted in such Losses. Relative fault shall be
determined by reference to whether any alleged untrue statement or omission
relates to information provided by the indemnifying party, on the one hand, or
by the indemnified party, on the other hand. The parties agree that it would not
be just and equitable if contribution were determined by pro rata allocation or
any other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this Section
5(d), no person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. For purposes of this
Section 5, each person who controls a Holder within the meaning of either the
Act or the Exchange Act and each director, officer, employee and agent of such
Holder shall have the same rights to contribution as such Holder, and each
person who controls the Company within the meaning of either the Act or the
Exchange Act, each officer of the Company who shall have signed the Shelf
Registration Statement and each director of the Company shall have the same
rights to contribution as the Company, subject in each case to the applicable
terms and conditions of this Section 5(d).
(e) The provisions of this Section 5 will remain in full force and
effect, regardless of any investigation made by or on behalf of any Holder or
the Company or any of the officers, directors or controlling persons referred to
in Section 5 hereof, and will survive the sale by a Holder of Notes or Common
Stock issuable upon conversion thereof covered by a Shelf Registration
Statement.
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 an Underwritten Offering in accordance with the
provisions of this Section 6. In any such Underwritten Offering, the Managing
Underwriters that administer the Underwritten Offering will be selected by, and
the underwriting arrangements with respect thereto will be approved by, the
Majority Holders (if both Notes and Common Stock are to be included in such
Underwritten Offering determined in a manner analogous to that used to calculate
Majority Holders with Holders of Common Stock issued upon conversion thereof
deemed to represent the aggregate principal amount of Notes from which such
Common Stock was converted); provided, however, that (i) such Managing
Underwriters and underwriting arrangements must be reasonably satisfactory to
the Company and (ii) the Company shall not be obligated to arrange for more than
one Underwritten Offering during the Shelf Registration Period. No Holder may
participate in any such Underwritten Offering contemplated unless such Holder
(a) agrees to sell such Holder's Registrable Securities in accordance with any
approved underwriting arrangements, (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 and (c) at least 70% of the outstanding Registrable
Securities are included in such Underwritten Offering. The Holders participating
in any Underwritten Offering shall be responsible for any expenses customarily
borne by selling securityholders, including underwriting discounts and
commissions and fees and expenses of counsel to the selling securityholders and
shall reimburse the Company for the fees and disbursements of their counsel,
their independent public accountants and any printing expenses incurred in
connection with such Underwritten Offering. Notwithstanding the foregoing or the
provisions of Section 3(m) hereof, upon receipt of a request from the Managing
Underwriter or a representative of the Majority Holders 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 Company in good faith
has a valid business reason for such delay.
7. Miscellaneous.
(a) No Inconsistent Agreements. The Company has not, as of the date
hereof, entered into nor shall it, on or after the date hereof, enter into, any
agreement with respect to the Notes that conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
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 majority of the Holders. Notwithstanding the foregoing, a waiver
or consent to departure from the provisions hereof with respect to a matter that
relates exclusively to the rights of Holders whose Registrable Securities are
being sold pursuant to a Shelf Registration Statement (and that does not
directly or indirectly affect the rights of other Holders) may be given by the
Majority Holders, determined on the basis of such Registrable Securities being
sold rather than registered under such Shelf Registration Statement.
(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 you, initially at the address specified on the
signature page of the Subscription Agreement;
2. if to any other Holder, at the most current address
given by such Holder to the Company in accordance with the
provisions of this Section 7(c), which address initially is, with
respect to each Holder, the address of such Holder maintained by the
Trustee under the Indenture, with a copy in like manner to you; and
3. if to the Company, initially at its address set forth
in the Private Placement Memorandum.
All such notices and communications shall be deemed to have been
duly given when received, if delivered by hand or air courier, and when sent, if
sent by first-class mail, telex or telecopier.
You or the Company, by notice to the other, may designate additional
or different addresses for subsequent notices or communications.
(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, including, without the need for an express assignment or any consent by
the Company thereto, subsequent Holders. The Company hereby agrees to extend the
benefits of this Agreement to any Holder 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 APPLICABLE TO AGREEMENTS
MADE AND TO BE PERFORMED IN NEW YORK, WITHOUT REGARD TO THE CONFLICTS OF LAW
RULES THEREOF.
(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 shall be enforceable to the fullest extent permitted by law.
(i) Securities Held by the Company, etc. Whenever the consent or
approval of Holders of a specified percentage of principal amount of Notes or
the Common Stock issuable upon conversion thereof is required hereunder, the
Notes or the Common Stock issued upon conversion thereof held by the Company or
its Affiliates (other than subsequent Holders of the Notes or the Common Stock
issued upon conversion thereof if such subsequent Holders are deemed to be
Affiliates solely by reason of their holdings of such Notes or Common Stock)
shall not be counted in determining whether such consent or approval was given
by the Holders of such required percentage.
Please confirm that the foregoing correctly sets forth the agreement
between the Company and you.
Very truly yours,
Angeion Corporation
By
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Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of this
14th day of April 1998.
Name of Subscriber:
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By:
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Name:
Title:
