Q-MED, INC.
000 XXXXX XXXX XXXXX
XXXXXXXX XXXXXX, XX 00000
REGISTRATION RIGHTS AGREEMENT
May 6, 1996
S. R. One, Limited
Bay Colony Executive Park
000 X. Xxxxxxxxxx Xxxx
Xxxxx, XX 00000
Reference is made to the Securities Purchase Agreement (the "Agreement")
between you (the "Holder") and Q-Med, Inc. (the "Company") in connection with
your purchase of 177,777 shares, $.001 par value, (the "Common Stock") and
warrants to purchase an additional 63,492 shares of Common Stock (the
"Warrants"). This letter sets forth the agreement of the Company to register the
shares of Common Stock purchased by you and the shares of Common Stock issuable
upon the exercise of the Warrants (collectively, the "Registrable Securities")
under the Securities Act of 1933, as amended, and your agreement with respect to
several matters as set forth below if you register the Securities.
1. CERTAIN DEFINITIONS.
As used in this Agreement, the following terms shall have the following
respective meanings:
"Commission" means the Securities and Exchange Commission, or any other
Federal agency at the time administering the Securities Act.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, or
any similar Federal statute, and the rules and regulations of the Commission
issued under such Act, as they each may, from time to time, be in effect.
"Registration Expenses" means the expenses described in paragraph 5.
"Registrable Securities" means: (i) the shares of Common Stock issued to
the Holder pursuant to the Agreement and upon exercise of the Warrants; and (ii)
any other securities of the Company issued in respect of the foregoing (because
of stock splits, stock dividends, reclassi-
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fications, recapitalizations, or similar events); provided, however, that
securities which are Registrable Securities shall cease to be Registrable
Securities upon any sale pursuant to a Registration Statement, Section 4(1) of
the Securities Act or Rule 144 under the Securities Act.
"Registration Statement" means a registration statement filed by the
Company with the Commission for a public offering and sale of securities of the
Company (other than a registration statement on Form S-8 or Form S-4, or their
successors, or any other form for a limited purpose, or any registration
statement covering only securities proposed to be issued in exchange for
securities or assets of another corporation).
"Securities Act" means the Securities Act of 1933, as amended, or any
similar Federal statute, and the rules and regulations of the Commission issued
under such Act, as they each may from time to time, be in effect.
2. SECURITIES NOT REGISTERED.
Holder understands that neither the shares of Common Stock nor the shares
of Common Stock issuable upon the exercise of the Warrants (collectively the
"Securities") are transferable in whole or in part. Holder agrees that Holder
will not attempt to dispose of the Securities or any interest therein, unless
and until or the Securities have been validly registered under the Securities
Act or the Company has determined that the intended disposition does not violate
the Securities Act or the rules and regulations of the Commission thereunder
(the Company may rely on an opinion of its counsel in making such
determination).
3. REGISTRATION.
3.1 If the Holder shall at any time on one occasion on or after May 6,
1997, give notice to the Company to the effect that the Holder contemplates (i)
the transfer of all or any part of the Registrable Shares in a manner which may
constitute a public offering thereof, then the Company shall, as soon as
practicable, but in any event within forty-five days thereafter), file a
registration statement pursuant to the Act, in order that the Securities may be
sold under the Act as promptly as practicable thereafter, and the Company will
use its best efforts to cause such registration to become effective; provided
that the Holder shall furnish the Company with appropriate information (relating
to the intentions of the Holder), in connection therewith as the Company shall
reasonably request in writing. The Company shall use its best efforts to keep
the registration statement current for a period of nine months or until all
Registrable Shares registered thereunder have been sold, which ever is sooner.
If at the time of the request, the Company has fixed plans to engage within 30
days of the date of the request a registered public offering or any other
activity which in the good faith opinion of the Board of Directors, would be
adversely affected by the requested registration, then the Company may direct
that the request be delayed for a period not to exceed 90 days from the
effective date of such registration or material activity. These demand
registration rights shall terminate December 31, 1999.
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3.2 When the Company proposes to file a Registration Statement for a
public offering, it will, prior to such filing, give written notice to the
Holder of its intention to do so. Upon the written request of the Holders of not
less than 51% of all Registrable Securities given within twenty (20) days after
the Company provides such notice (which request shall state the intended method
of disposition of such Registrable Securities), the Company shall cause all
Registrable Securities which the Company has been requested by the Holders to
register to be registered under the Securities Act to the extent necessary to
permit their sale or other disposition in accordance with the intended method of
distribution specified in the request of such Holder. The Company will only
include Registrable Securities in a Registration Statement on only one occasion
(in addition to the Registration described in Paragraph 3.1) and shall have the
right to postpone or withdraw any registration effected pursuant to this
Paragraph 3.2 without obligation to the Holder, except, in the event the
Registration Statement is withdrawn by the Company or less than all of the
Registrable Shares that the Holder has requested to be included in the
Registration Statement are included therein, the rights set forth in this
Section 3 shall apply to its next Registration Statement. The foregoing rights
shall expire and have no effect on any Registration Statement filed after
December 31, 1999. In the event the Holder is afforded an opportunity to join in
a Registration Statement (pursuant to which sales were consummated) and either
declined to join therein or included securities therein, the Holder may not
request a Registration under paragraph 3.1 until a period of six months has
elapsed after the Holder received notice of a proposed Registration.
3.3 The Holder's rights under paragraph 3.1 and 3.2 shall be subject of
the limitation that, in the event that the Company files a Registration
Statement for an underwritten public offering the inclusion of the Registrable
Securities shall be upon the condition that:
(i) if requested by the managing underwriter as a condition of the
offering, they be sold through the underwriters on the same terms
and conditions as are applicable to the Company or all other selling
stockholders of the Company; or
(ii) if such condition is imposed by the managing underwriter, and the
Holder does not wish to sell the Registrable Securities upon such
terms and conditions, the Holder will agree not to transfer or
otherwise dispose of any Registrable Securities for a period of time
from the effective date of the Registration Statement (not to exceed
60 days) specified by the managing underwriter.
4. REGISTRATION PROCEDURES.
If and whenever the Company is required by the provisions of this
Agreement to use its best efforts to effect the registration of any of the
Registrable Securities under the Securities Act, the Company shall:
(a) file with the Commission a Registration Statement with respect to such
Registrable Securities and use its best efforts to cause that Registration
Statement to become and remain effective;
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(b) as expeditiously as possible prepare and file with the Commission any
amendments and supplements to the Registration Statement and the prospectus
included in the Registration Statement as may be necessary to keep the
Registration Statement effective for a period of not less than nine months from
the effective date;
(c) as expeditiously as possible furnish to Holder such reasonable numbers
of copies of the prospectus, including a preliminary prospectus, in conformity
with the requirements of the Securities Act, and such other documents as Holder
may reasonably request in order to facilitate the public sale or other
disposition of the Registrable Securities owned by the Holder; and
(d) as expeditiously as possible use its best efforts to register or
qualify the Registrable Securities covered by the Registration Statement under
the securities or Blue Sky laws of such states as the Holders shall reasonably
request, and do any and all other acts and things that may be necessary or
desirable to enable the Holders to consummate the public sale or other
disposition in such states of the Registrable Securities owned by the Holder;
provided, however, that the Company shall not be required in connection with
this paragraph (d) to qualify as a foreign corporation or execute a general
consent to service of process in any jurisdiction.
If the Company has delivered preliminary or final prospectuses to the
Holder and, after having done so, the prospectus is amended to comply with the
requirements of the Securities Act, the Company shall promptly notify the Holder
and, if requested, the Holder shall immediately cease making offers of
Registrable Securities and return all prospectuses to the Company. The Company
shall promptly provide the Holder with revised prospectuses and, following
receipt of the revised prospectuses, the Holder shall be free to resume making
offers of the Registrable Securities.
5. ALLOCATION OF EXPENSES.
The Company will pay all Registration Expenses of all Registration
Statements under this Agreement; provided, however, that if a Registration
Statement is withdrawn at the request of the Holder (other than as a result of
information concerning the business or financial condition of the Company which
is made known to the Holder after the date on which such registration was
requested) and if the Holder elect not to have such Registration Statement
counted as a registration requested under paragraph 3.1 or 3.2, the Holder shall
pay the portion of Registration Expenses in the proportion that the market value
of their Registrable Securities included in such Registration Statement bear to
all of securities included therein. For purposes of this Section, the term
"Registration Expenses" shall mean all expenses incurred by the Company in
complying with this Agreement, including, without limitation, all registration
and filing fee, exchange listing fees, printing expenses, fees and disbursements
of counsel for the Company state Blue Sky fees and expenses, and the expense of
any special audits incident to or required by any such registration, but
excluding underwriting discounts, selling commissions and the fees and expenses
of Holder's own counsel.
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6. INDEMNIFICATION.
In the event of any registration of any of the Registrable Securities
under the Securities Act pursuant to this Agreement, the Company will indemnify
and hold harmless the seller of such Registrable Securities, each underwriter of
such Registrable Securities, and each other person, if any, who controls such
seller or underwriter within the meaning of the Securities Act or the Exchange
Act against any losses, claims, damages or liabilities, joint or several, to
which such seller, underwriter or controlling person may become subject under
the Securities Act, the Exchange Act, state securities or Blue Sky laws or
otherwise, in so far as much losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in any Registration
Statement under which such Registrable Securities were registered under the
Securities Act, any preliminary prospectus or final prospectus contained in the
Registration Statement, or any amendment or supplement to such Registration
Statement, or arise out of or are based upon the omission or alleged omission to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading; and the Company will reimburse such seller,
underwriter and each such controlling person for any legal or any other expenses
reasonably incurred by such seller, underwriter or controlling person 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 such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any untrue statement or omission made in such
Registration Statement, preliminary prospectus or prospectus, or any such
amendment or supplement, in reliance upon and in conformity with information
furnished to the Company, in writing, by or on behalf of such seller,
underwriter or controlling person specifically for use in the preparation
thereof.
In the event of any registration of any of the Registrable Securities
under the Securities Act pursuant to this Agreement, each seller of Registrable
Securities, severally and not jointly, will indemnify an hold harmless the
Company, each of its directors, and officers and each underwriter (if any) and
each person, if any, who controls the Company or any such underwriter within the
meaning of the Securities Act or the Exchange Act, against any losses, claims,
damages or liabilities, joint or several, to which the Company, such directors
and officers, underwriters or controlling person may become subject under the
Securities Act, Exchange Act, state securities or Blue Sky laws or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement under which
such Registrable Shares were registered under the Securities Act, any
preliminary prospectus or final prospectus contained in the Registration
Statement, or any amendment or supplement to the Registration Statement, or
arise out of or are based upon any omission or alleged omission to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, if the statement or omission was made in reliance upon
and in conformity with information furnished in writing to the Company by or on
behalf of such seller, specifically for use in connection with the preparation
of such Registration Statement, prospectus, amendment or
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supplement; provided, however, that the obligations of such Stockholders
hereunder shall be limited to an amount equal to the proceeds to each
Stockholder of Registrable Securities sold as contemplated herein.
Each party entitled to Indemnification under this Section 6 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom; providing, that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified party (whose approval shall not be unreasonably
withheld); and, provided, further, that the failure of any Indemnified Party to
give notice as provided herein shall not relieve the Indemnifying Party of its
obligations under this Agreement. The Indemnified party may participate in such
defense at such party's expense; provided, however, that the Indemnifying Party
shall pay such expense if representation of such Indemnified party by the
counsel retained by the Indemnifying Party would be inappropriate due to actual
or potential differing interests between the Indemnified Party and any other
party represented by such counsel in such proceeding. No Indemnifying Party, in
the defense of any such claim or litigation shall, except with the consent of
each Indemnified party, consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such Indemnified Party of a release from all
liability in respect of such claim or litigation, and no Indemnified Party shall
consent to entry of any judgment or settle such claim or litigation without the
prior written consent of the Indemnifying Party.
7. INDEMNIFICATION WITH RESPECT TO UNDERWRITTEN OFFERING.
In the event that Registrable Securities are sold pursuant to a
Registration Statement in an underwritten offering pursuant to paragraph 3.1 or
3.2, the Company agrees to enter into an underwriting agreement containing
customary representations and warranties with respect to the business and
operations of an issuer of the securities being registered and customary
covenants and agreements to be performed by such issuer, including without
limitation customary provisions with respect to indemnification by the Company
of the underwriters of such offering.
8. INFORMATION BY HOLDER.
The Holder shall furnish to the Company such information regarding such
holder and the distribution proposed by such holder as the Company may request
in writing and as shall be required in connection with any registration,
qualification or compliance referred to in this Agreement.
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9. SELECTION OF UNDERWRITER.
In the case of any Registration effected pursuant to this Agreement, the
Company shall have the right to designate the managing underwriter in any
underwritten offering, provided that such underwriter is reasonably acceptable
to the Holder.
10. SUCCESSORS AND ASSIGNS.
The provisions of this Agreement shall be binding upon, and inure to the
benefit of, the respective successors, assigns, heirs, executors and
administrators of the parties hereto, except that the rights set forth in
paragraph 3.1 shall not be assignable by Holder except in connection with a
single private sale by the Holder of at least 120,635 shares of Common Stock.
11. FURTHER ASSURANCES.
From and after the date hereof, all persons subject to or bound by this
Agreement shall from time to time, at the request of any such other person and
without further consideration, do, execute and deliver, or cause to be done,
executed and delivered, all such further acts, things and instruments as may
reasonably be requested or required more effectively to evidence and give effect
to the provisions, intent and purposes of this Agreement (including, without
limitation, certificates to the effect that this Agreement continues operative
and as to any defaults hereunder or modifications hereof).
12. NOTICES.
All notices, requests, demands, offerings, acceptances, consents and other
communications required or permitted under this Agreement shall, unless
otherwise provided, be in writing and shall be deemed to have been duly given if
personally delivered and actually received or if mailed by first class
registered or certified mail, return receipt requested, or by first class mail,
addressed to the parties hereto at their respective addresses set forth on the
first page of this Agreement or in each case to such other person or address as
may be designated by notice hereunder. Any such notice, etc. shall be deemed
given on the date of delivery, if delivered, or on the fifth day after the date
of mailing, if mailed.
13. CERTAIN OTHER AGREEMENTS.
In the event Registrable Securities are included in a Registration
Statement, you agree:
(a) to offer the Registrable Securities only in the manner set forth on the
cover page of the Prospectus included in the Registration Statement;
(b) not effect any transaction for the purpose of stabilizing the price of the
Registrable Securities offered or any securities into which the Registrable
Securities are convertible;
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(c) to supply to any broker to whom you offer registered securities a copy of
the Prospectus;
(d) to promptly report all sales made to the Company following the Company's
request for such information; and
(e) to comply with the provisions of Rule 10b-6 under the Securities Exchange
Act of 1934.
14. APPLICABLE LAW.
This Agreement shall be governed and construed under the laws of the State
of New Jersey.
S. R. ONE, LIMITED
By: /s/ Xxxxxx X. Xxxxx
--------------------------------
Xxxxxx X. Xxxxx, DVM
Vice President
Q-MED, INC.
By: /s/ Xxxxxxx X. Xxx
--------------------------------
Xxxxxxx X. Xxx, President
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