EXHIBIT 10.2
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") dated as of August
7, 2002 is entered into by and between Aspect Medical Systems, Inc., a Delaware
corporation (the "Company"), and Boston Scientific Corporation, a Delaware
corporation (the "Purchaser").
Recitals
WHEREAS, the Company and the Purchaser have entered into a Stock Purchase
Agreement of even date herewith (the "Stock Purchase Agreement"); and
WHEREAS, the Company and the Purchaser desire to provide for certain
arrangements with respect to the registration of shares of capital stock of the
Company under the Securities Act of 1933;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in this Agreement, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Certain Definitions.
As used in this Agreement, the following terms shall have the following
respective meanings:
"Affiliate" shall have the meaning assigned to it in Rule 12b-2 of the
Exchange Act.
"Combined Registrable Shares" means the Registrable Shares and the Other
Registrable Shares.
"Commission" means the Securities and Exchange Commission, or any other
federal agency at the time administering the Securities Act.
"Common Stock" means the common stock, $0.01 par value per share, of the
Company.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, or
any successor 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.
"Holders" means the Purchaser and the Stockholders and any persons to whom
the rights granted under this Agreement are transferred pursuant to Section 3.
"Other Registrable Shares" shall have the meaning specified in Section
2.1(b).
"person" (whether such term is capitalized or not) means an individual,
corporation, partnership, limited liability company, joint venture, syndicate,
person (including, without limitation, a "person" as defined in Section 13(d)(3)
of the Exchange Act), trust, association or entity.
"Prospectus" means the prospectus included in any Registration Statement,
as amended or supplemented by an amendment or prospectus supplement, including
post-effective amendments, and all material incorporated by reference or deemed
to be incorporated by reference in such Prospectus.
"Purchaser Indemnified Persons" shall have the meaning specified in
Section 2.4(a).
"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 similar limited purpose, or any registration
statement covering only securities proposed to be issued in exchange for
securities or assets of another corporation).
"Registration Expenses" means the expenses described in Section 2.3.
"Registrable Shares" means any Shares and any other shares of Common Stock
issued in respect of such Shares (because of stock splits, stock dividends,
reclassifications, recapitalizations or similar events); provided, however, that
shares of Common Stock that are Registrable Shares shall cease to be Registrable
Shares upon (i) any sale pursuant to a Registration Statement or Rule 144 under
the Securities Act or (ii) any sale in any manner to a person or entity which,
by virtue of Section 3 of this Agreement, is not entitled to the rights provided
by this Agreement.
"Securities Act" means the Securities Act of 1933, as amended, or any
successor 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.
"Shares" shall have the meaning specified in Section 1 of the Stock
Purchase Agreement.
"Stockholders" means any persons who, at the time of any request for
registration pursuant to Section 2.1 below, are entitled to registration rights
pursuant to the Fourth Amended and Restated Registration Rights Agreement dated
as of December 17, 1998 by and among the Company and the parties named on the
signature pages thereto (the "Fourth Registration Rights Agreement").
2. Registration.
2.1 Registration Rights.
(a) At any time on or after February 7, 2003, the Purchaser
may request, in writing, that the Company effect a registration on Form S-3 (or
any successor form) for the purpose of registering for resale, under the
Securities Act, all or any portion of the Registrable Shares then owned by the
Purchaser.
(b) Upon receipt of any request for registration pursuant to
Section 2.1(a) of this Agreement, the Company shall promptly give written notice
of such proposed registration to all Stockholders. Such Stockholders shall have
the right, by giving written notice
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to the Company within 20 days after receipt of the Company's notice, to elect to
have included in such registration such of their shares of Common Stock eligible
for registration pursuant to Section 5 of the Fourth Registration Rights
Agreement (the "Other Registrable Shares") as such Stockholders may request in
such notice of election. Thereupon, the Company shall, as expeditiously as
possible, use its best efforts to effect the registration on Form S-3 (or any
successor form) of all Combined Registrable Shares which the Company has been
requested to so register. Notwithstanding any references to "underwriters,"
"underwriting discounts and commissions" or phrases of similar import contained
in the plan of distribution set forth in Exhibit A attached hereto, the offer
and sale of the Combined Registrable Shares shall not be underwritten.
(c) The Company shall not be required to effect more than
three (3) registrations pursuant to this Agreement. Any Registration Statement
to be filed by the Company hereunder shall permit the Holders to offer and sell,
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
(of any similar rule then in effect), any or all of the Combined Registrable
Shares. The Company shall be required to keep each Registration Statement
effective until such date that is the earlier of (i) the date when all of the
Combined Registrable Shares registered thereunder shall have been sold, or (ii)
two years from the initial effective date of such Registration Statement (the
"Termination Date"). Thereafter, the Company shall be entitled to withdraw the
Registration Statement and the Holders shall have no further right to offer or
sell any of the Combined Registrable Shares pursuant to the Registration
Statement. For purposes of the first sentence of this Section 2.1(c), a
Registration Statement shall not be counted until such time as such Registration
Statement has been declared effective by the Commission (unless the Purchaser
withdraws its request for such registration (other than as a result of material
information concerning the business or financial condition of the Company which
is first made known to the Purchaser after the date on which such registration
was requested) and elects not to pay the Registration Expenses therefore
pursuant to Section 2.3).
(d) If at the time of any request to register Registrable
Shares by the Purchaser pursuant to Section 2.1(a): (i) the Company is engaged
or has plans to engage, within 30 days thereafter, in a registered public
offering, (ii) is engaged in any other activity which, in the good faith
determination of the Company's Board of Directors (the "Board"), would be
adversely affected by the requested registration or (iii) the filing of a
Registration Statement would require premature disclosure in the Registration
Statement (and the Prospectus relating thereto) of material nonpublic
information concerning the Company, its business or prospects or any proposed
material transaction involving the Company, then the Company, upon furnishing a
certificate to the Purchaser signed by an executive officer of the Company
stating that for one of the foregoing reasons (which reason need not be
identified), may at its option direct that such request be delayed for a period
not in excess of 75 days from the date of such request; provided, however, that
the Company may not utilize this right more than once in any twelve-month
period.
2.2 Registration Procedures.
(a) If and whenever the Purchaser requests that the Company
effect the registration of the Registrable Shares under the Securities Act, the
Company shall:
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(i) file with the Commission a Registration Statement on
Form S-3 (or any successor form) with respect to such Registrable Shares, which
includes in the Prospectus included therein the "Plan of Distribution" section
in substantially the form attached hereto as Exhibit A, and use its best efforts
to cause that Registration Statement to become effective as soon as possible;
(ii) 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
comply with the provisions of the Securities Act (including the anti-fraud
provisions thereof) and to keep the Registration Statement effective until the
Termination Date;
(iii) as expeditiously as possible, furnish to the
Purchaser such reasonable numbers of copies of the Prospectus, including any
preliminary Prospectus, in conformity with the requirements of the Securities
Act, and such other documents as the Purchaser may reasonably request in order
to facilitate the public sale or other disposition of the Registrable Shares
owned by the Purchaser;
(iv) as expeditiously as possible, use its commercially
reasonable efforts to register or qualify the Registrable Shares covered by the
Registration Statement under the securities or Blue Sky laws of such states as
the Purchaser shall reasonably request, and do any and all other acts and things
that may be necessary or desirable to enable the Purchaser to consummate the
public sale or other disposition in such states of such Registrable Shares owned
by the Purchaser; provided, however, that the Company shall not be required in
connection with this paragraph (iv) to qualify as a foreign corporation or
execute a general consent to service of process in any jurisdiction;
(v) as expeditiously as possible, cause all such
Registrable Shares covered by the Registration Statement to be listed on each
securities exchange or automated quotation system on which similar securities
issued by the Company are then listed;
(vi) as expeditiously as possible, notify the Purchaser,
after it shall receive notice thereof, of the time when such Registration
Statement has become effective or a supplement to any Prospectus forming a part
of such Registration Statement has been filed; and
(vii) as expeditiously as possible following the
effectiveness of such Registration Statement, notify the Purchaser of any
request by the Commission for the amending or supplementing of such Registration
Statement or Prospectus.
(b) If the Company has delivered a Prospectus to the Purchaser
and after having done so the Prospectus is amended to comply with the
requirements of the Securities Act, the Company shall, as expeditiously as
possible, notify the Purchaser and, if requested, the Purchaser shall
immediately cease making offers of Registrable Shares and return all
Prospectuses to the Company. The Company shall promptly provide the Purchaser
with revised Prospectuses and, following receipt of the revised Prospectuses,
the Purchaser shall be free to resume making offers of the Registrable Shares.
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(c) In the event that, in the judgment of the Company, it is
advisable to suspend use of a Prospectus included in a Registration Statement
filed by the Company pursuant to this Agreement due to pending material
developments or other events that have not yet been publicly disclosed and as to
which the Company believes public disclosure would be detrimental to the
Company, the Company shall notify the Purchaser to such effect, and, upon
receipt of such notice, the Purchaser shall immediately discontinue any sales of
Registrable Shares pursuant to such Registration Statement until the Purchaser
has received copies of a supplemented or amended Prospectus or until the
Purchaser is advised in writing by the Company that the then current Prospectus
may be used and has received copies of any additional or supplemental filings
that are incorporated or deemed incorporated by reference in such Prospectus.
Notwithstanding anything to the contrary herein, the Company shall not exercise
its rights under this Section 2.2(c) to suspend sales of Registrable Shares for
a period in excess of 30 days consecutively or 60 days in any 365-day period.
2.3 Allocation of Expenses. The Company will pay all Registration
Expenses for all registrations under this Agreement; provided, however, that if
a registration under Section 2.1 is withdrawn at the request of the Purchaser
(other than as a result of information concerning the business or financial
condition of the Company which is first made known to the Purchaser after the
date on which such registration was requested pursuant to Section 2.1(a)) and if
the Purchaser elects not to have such registration counted as a registration
requested under Section 2.1, the Purchaser shall pay the Registration Expenses
of such registration. For purposes of this Section, the term "Registration
Expenses" shall mean all expenses incurred by the Company in complying with this
Agreement with respect to registering the Registrable Shares, including, without
limitation, all registration and filing fees, Nasdaq and exchange listing fees,
printing expenses, fees and expenses of counsel for the Company, compensation of
the employees of the Company and the reasonable fees and expenses of one counsel
selected by the Purchaser to represent the Purchaser in connection with
registering the Registrable Shares, state Blue Sky fees and expenses in
connection with the Registrable Shares, and the expense of any special audits
incident to or required by any such registration, but excluding brokerage and
selling commissions.
2.4 Indemnification and Contribution.
(a) In the event of any registration of any of the Registrable
Shares under the Securities Act pursuant to this Agreement, the Company will
indemnify and hold harmless the Purchaser and each of its Affiliates, and the
officers, directors, employees and partners, and each other person, if any, who
controls the Purchaser or its Affiliates within the meaning of the Securities
Act or the Exchange Act (collectively, "Purchaser Indemnified Persons"), against
any losses, claims, damages or liabilities, joint or several, to which the
Purchaser Indemnified Persons may become subject under the Securities Act, the
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: (i) any untrue statement or alleged untrue statement of
any 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 such Registration Statement, (ii) the omission or
alleged omission to state a material fact required to be stated therein or
necessary to make the statements therein not
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misleading or (iii) any violation or alleged violation by the Company of the
Securities Act, the Exchange Act, any state securities law or any rule or
regulation promulgated under the Securities Act, the Exchange Act or any state
securities law in connection with any Registration Statement filed pursuant to
this Agreement or any offering contemplated thereby; and the Company will
reimburse the Purchaser Indemnified Persons for any legal or any other expenses
reasonably incurred by such Purchaser Indemnified Person in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the Company will not be liable to any Purchaser
Indemnified Person 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 final
Prospectus, or any such amendment or supplement to such Registration Statement,
in reliance upon and in conformity with information furnished to the Company, in
writing, by or on behalf of such Purchaser Indemnified Person for use in the
preparation thereof; provided, further, that the indemnity agreement contained
in this Section 2.4(a) shall not apply to statements made in a preliminary
Prospectus to the extent that those statements were corrected in a later
preliminary or final Prospectus or supplement or amendment thereto that was
supplied to the Purchaser Indemnified Person and such Purchaser Indemnified
Person failed to deliver that later preliminary or final Prospectus or amendment
or supplement thereto.
(b) In the event of any registration of any of the Registrable
Shares under the Securities Act pursuant to this Agreement, the Purchaser will
indemnify and hold harmless the Company, each of its directors and officers and
each person, if any, who controls the Company 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
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 relating to the Purchaser furnished in writing to the Company by or
on behalf of the Purchaser specifically for use in connection with the
preparation of such Registration Statement, Prospectus, amendment or supplement;
and the Purchaser will reimburse any legal or other expenses reasonably incurred
by the Company or any such director, officer or controlling person in connection
with investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the obligations of the Purchaser hereunder shall
be limited to an amount equal to the net proceeds to the Purchaser of
Registrable Shares sold in connection with such registration.
(c) Each party entitled to indemnification under this Section
2.4 (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; provided, that counsel for the
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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 Section except to the extent
that the Indemnifying Party is adversely affected by such failure. The
Indemnified Party may participate in such defense at such party's expense;
provided, however, that the Indemnifying Party shall pay such reasonable 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; provided, further, that in no event shall the
Indemnifying Party be required to pay the expenses of more than one law firm as
counsel for the Indemnified Party. The Indemnifying Party also shall be
responsible for the reasonable expenses of such defense if the Indemnifying
Party does not elect to assume such defense. 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, which consent shall not be
unreasonably withheld, conditioned or delayed.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section 2.4 is
due in accordance with its terms but for any reason is held to be unavailable to
an Indemnified Party in respect to any losses, claims, damages and liabilities
referred to herein, then the Indemnifying Party shall, in lieu of indemnifying
such Indemnified Party, contribute to the amount paid or payable by such
Indemnified Party as a result of such losses, claims, damages or liabilities to
which such party may be subject in such proportion as is appropriate to reflect
the relative fault of the Company on the one hand and the Purchaser on the other
in connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations; provided, however, 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 who was not guilty of such
fraudulent misrepresentation. The relative fault of the Company and the
Purchaser shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of material fact related to information
supplied by the Company or the Purchaser and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Purchaser agree that it would not be
just and equitable if contribution pursuant to this Section 2.4(d) 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 paragraph of Section 2.4, in no case
shall the Purchaser be liable or responsible for any amount in excess of the net
proceeds received by the Purchaser from the offering of Registrable Shares. Any
party entitled to contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party in respect of
which a claim for contribution may be made against another party or parties
under this Section, notify such party or parties from whom contribution may be
sought, but the omission so to notify such party or parties from whom
contribution may be sought shall not relieve such party from any other
obligation it or they may have thereunder or otherwise under this Section. No
party shall be
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liable for contribution with respect to any action, suit, proceeding or claim
settled without its prior written consent, which consent shall not be
unreasonably withheld.
(e) The rights and obligations of the Company and the
Purchaser under this Section 2.4 shall survive the termination of this
Agreement.
2.5 Information by Holder. The Purchaser shall furnish to the
Company such information regarding the Purchaser and the distribution proposed
by the Purchaser as the Company may reasonably request and as shall be required
in connection with any registration, qualification or compliance referred to in
this Agreement.
2.6 Rule 144 Requirements. The Company agrees to:
(a) make and keep current public information about the Company
available, as those terms are understood and defined in Rule 144 under the
Securities Act;
(b) file with the Commission in a timely manner all reports
and other documents required of the Company under the Securities Act and the
Exchange Act; and
(c) so long as the Purchaser owns any Registrable Shares, to
furnish to the Purchaser forthwith upon request a written statement by the
Company as to its compliance with the reporting requirements of said Rule 144
and of the Securities Act and the Exchange Act, a copy of the most recent annual
or quarterly report of the Company, and such other reports and documents so
filed by the Company as the Purchaser may reasonably request in complying with
any rule or regulation of the SEC allowing the Purchaser to sell any such
securities without registration.
2.7 Termination. All of the Company's obligations to register
Registrable Shares under Sections 2.1 of this Agreement shall terminate four (4)
years after the Closing Date (as such term is defined in the Stock Purchase
Agreement).
3. Transfers of Rights. This Agreement, and the rights and obligations of
the Purchaser hereunder, may not be assigned by such Purchaser except to a
Subsidiary of the Purchaser, provided that such Subsidiary becomes a party to
this Agreement prior to any assignment under this Section 3. For the purposes of
this Section 3, a "Subsidiary" shall mean any entity of which the Purchaser is
the direct or indirect record owner of a majority of the voting equity of such
entity or any entity of which is the direct or indirect record owner of a
majority of the voting equity of the Purchaser.
4. General.
(a) Severability. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement.
(b) Specific Performance. In addition to any and all other
remedies
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that may be available at law in the event of any breach of this Agreement, each
party hereto shall be entitled to specific performance of the agreements and
obligations of the other party hereto and to such other injunctive or other
equitable relief as may be granted by a court of competent jurisdiction.
(c) Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Delaware (without
reference to the conflicts of law provisions thereof).
(d) Notices. All notices, requests, consents and other
communications under this Agreement shall be in writing and shall be deemed
delivered (i) two business days after being sent by registered or certified
mail, return receipt requested, postage prepaid or (ii) one business day after
being sent via a reputable nationwide overnight courier service guaranteeing
next business day delivery, in each case to the intended recipient as set forth
below:
If to the Company, at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000-0000, Attention: President, or at such other address or addresses as may
have been furnished in writing by the Company to the Purchaser, with a copy to
Xxxxx X. Xxxxxx, Esq., Xxxx and Xxxx LLP, 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000-0000; and
If to the Purchaser, at Xxx Xxxxxx Xxxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000-0000, Attention: Chief Financial Officer, or at such other address or
addresses as may have been furnished in writing by the Purchaser to the Company,
with a copy to General Counsel, Boston Scientific Corporation, Xxx Xxxxxx
Xxxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000-0000.
Either party hereto may give any notice, request, consent or other
communication under this Agreement using any other means (including, without
limitation, personal delivery, messenger service, telecopy, first class mail or
electronic mail), but no such notice, request, consent or other communication
shall be deemed to have been duly given unless and until it is actually received
by the other party hereto. Either party hereto may change the address to which
notices, requests, consents or other communications hereunder are to be
delivered by giving the other party hereto notice in the manner set forth in
this Section.
(e) Complete Agreement. This Agreement constitutes the entire
agreement and understanding of the parties hereto with respect to the subject
matter hereof and supersedes all prior agreements and understandings relating to
such subject matter.
(f) Acknowledgement. The Purchaser acknowledges and agrees
that, with respect to any Registration Statement filed pursuant to this
Agreement, the Stockholders have certain "incidental" or "piggyback" rights with
respect to the registration of the Other Registrable Shares pursuant to the
Fourth Registration Rights Agreement.
(g) Amendments and Waivers. Any term of this Agreement may be
amended or terminated and the observance of any term of this Agreement may be
waived (either generally or in a particular instance and either retroactively or
prospectively), with the written consent of the Company, on the one hand, and
the Purchaser, on the other hand. Any such amendment, termination or waiver
effected in accordance with this Section 4(g) shall be binding
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on all parties hereto. No waivers of or exceptions to any term, condition or
provision of this Agreement, in any one or more instances, shall be deemed to
be, or construed as, a further or continuing waiver of any such term, condition
or provision.
(h) Pronouns. Whenever the context may require, any pronouns
used in this Agreement shall include the corresponding masculine, feminine or
neuter forms, and the singular form of nouns and pronouns shall include the
plural, and vice versa.
(i) Counterparts; Facsimile Signatures. This Agreement may be
executed in any number of counterparts, each of which shall be deemed to be an
original, and all of which together shall constitute one and the same document.
This Agreement may be executed by facsimile signature.
(j) Section Headings. The section headings are for the
convenience of the parties and in no way alter, modify, amend, limit or restrict
the contractual obligations of the parties.
(k) Third-Party Beneficiaries. Except for the rights conferred
on the Stockholders pursuant to this Agreement, this Agreement is not intended,
and shall not be deemed, to confer any rights or remedies upon any person other
than the parties hereto and their respective successors and permitted assigns.
[Remainder of Page Intentionally Left Blank]
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Executed as of the date first written above.
THE COMPANY:
ASPECT MEDICAL SYSTEMS, INC.
By: /s/ J. Xxxx Xxxxxxxxx
-------------------------------------
Name: J. Xxxx Xxxxxxxxx
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Title: Vice President and
------------------------------
Chief Financial Officer
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THE PURCHASER:
BOSTON SCIENTIFIC CORPORATION
By: /s/ Xxxxxxxx Best
-------------------------------------
Name: Xxxxxxxx Best
------------------------------
Title: CFO
------------------------------
Exhibit A
PLAN OF DISTRIBUTION
The shares covered by this prospectus may be offered and sold from time to
time by the selling stockholder. The term "selling stockholder" includes donees,
pledgees, transferees or other successors-in-interest selling shares received
after the date of this prospectus from a selling stockholder as a gift, pledge,
partnership distribution or other non-sale related transfer. The selling
stockholder will act independently of us in making decisions with respect to the
timing, manner and size of each sale. Such sales may be made on one or more
exchanges or in the over-the-counter market or otherwise, at prices and under
terms then prevailing or at prices related to the then current market price or
in negotiated transactions. The selling stockholder may sell its shares by one
or more of, or a combination of, the following methods:
- purchases by a broker-dealer as principal and resale by such
broker-dealer for its own account pursuant to this prospectus;
- ordinary brokerage transactions and transactions in which the broker
solicits purchasers;
- block trades in which the broker-dealer so engaged will attempt to
sell the shares as agent but may position and resell a portion of
the block as principal to facilitate the transaction;
- an over-the-counter distribution in accordance with the rules of the
Nasdaq National Market;
- in privately negotiated transactions; and
- in options transactions.
In addition, any shares that qualify for sale pursuant to Rule 144 under
the Securities Act of 1933 may be sold under Rule 144 rather than pursuant to
this prospectus.
To the extent required, this prospectus may be amended or supplemented
from time to time to describe a specific plan of distribution. In connection
with distributions of the shares or otherwise, the selling stockholder may enter
into hedging transactions with broker-dealers or other financial institutions.
In connection with such transactions, broker-dealers or other financial
institutions may engage in short sales of the common stock in the course of
hedging the positions they assume with the selling stockholder. The selling
stockholder may also sell the common stock short and redeliver the shares to
close out such short positions. The selling stockholder may also enter into
option or other transactions with broker-dealers or other financial institutions
which require the delivery to such broker-dealer or other financial institution
of shares offered by this prospectus, which shares such broker-dealer or other
financial institution may resell pursuant to this prospectus (as supplemented or
amended to reflect such transaction). The selling stockholder may also pledge
shares to a broker-dealer or other financial institution, and, upon a default,
such broker-dealer or other financial institution, may effect sales of the
pledged shares pursuant to this prospectus (as supplemented or amended to
reflect such transaction).
A-1
In effecting sales, broker-dealers or agents engaged by the selling
stockholder may arrange for other broker-dealers to participate. Broker-dealers
or agents may receive commissions, discounts or concessions from the selling
stockholder in amounts to be negotiated immediately prior to the sale.
In offering the shares covered by this prospectus, the selling stockholder
and any broker-dealers who execute sales for the selling stockholder may be
deemed to be "underwriters" within the meaning of the Securities Act in
connection with such sales. Any profits realized by the selling stockholder and
the compensation of any broker-dealer may be deemed to be underwriting discounts
and commissions.
In order to comply with the securities laws of certain states, if
applicable, the shares must be sold in such jurisdictions only through
registered or licensed brokers or dealers. In addition, in certain states the
shares may not be sold unless they have been registered or qualified for sale in
the applicable state or an exemption from the registration or qualification
requirement is available and is complied with.
We have advised the selling stockholder that the anti-manipulation rules
of Regulation M under the Exchange Act may apply to sales of shares in the
market and to the activities of the selling stockholder and its affiliates. In
addition, we will make copies of this prospectus available to the selling
stockholder for the purpose of satisfying the prospectus delivery requirements
of the Securities Act. The selling stockholder may indemnify any broker-dealer
that participates in transactions involving the sale of the shares against
certain liabilities, including liabilities arising under the Securities Act.
At the time a particular offer of shares is made, if required, a
prospectus supplement will be distributed that will set forth the number of
shares being offered and the terms of the offering.
We have agreed to indemnify the selling stockholder against certain
liabilities, including certain liabilities under the Securities Act.
We have agreed with the selling stockholder to keep the Registration
Statement of which this prospectus constitutes a part effective until the
earlier of (i) such time as all of the shares covered by this prospectus have
been disposed of pursuant to and in accordance with the Registration Statement
or (ii) two years from the initial effective date of the Registration Statement.
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