EXHIBIT 4.17
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as of March
29, 2005 by and among Crdentia Corp., a Delaware corporation (the "Company"),
and the investors listed on Schedule A hereto (individually, an "Investor" and
collectively, the "Investors").
RECITALS:
A. The Company, CRDE Corp., a Delaware corporation and a wholly-owned
subsidiary of the Company, TRAVMED ACQUISITION CORPORATION, a North Carolina
corporation, and TRAVMED USA, INC., a North Carolina corporation, are parties to
an Agreement and Plan of Reorganization dated March 28, 2005 (the "Merger
Agreement"); and
B. In order to induce the parties to the Merger Agreement to consummate
the transactions contemplated thereby, the Investors and the Company hereby
agree that this Agreement, among other things, shall govern the rights of the
Investors to cause the Company to register shares of Common Stock of the Company
issuable to the Investors.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises, representations,
warranties, covenants and conditions set forth in this Agreement and the Merger
Agreement, the parties hereto agree as follows:
1. Registration Rights. The Company covenants and agrees as follows:
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1.1 Definitions. For purposes of this Agreement:
(a) The term "Act" means the Securities Act of 1933, as
amended.
(b) The term "Form S-2" means such form under the Act as in
effect on the date hereof or any registration form under the Act subsequently
adopted by the SEC which permits inclusion or incorporation of substantial
information by reference to other documents filed by the Company with the SEC.
(c) The term "Form S-3" means such form under the Act as in
effect on the date hereof or any registration form under the Act subsequently
adopted by the SEC which permits inclusion or incorporation of substantial
information by reference to other documents filed by the Company with the SEC.
(d) The term "Holder" means any person owning or having the
right to acquire Registrable Securities or any assignee thereof in accordance
with Section 1.10 hereof.
(e) The term "1934 Act" shall mean the Securities Exchange
Act of 1934, as amended.
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(f) The term "register," "registered," and "registration"
refer to a registration effected by preparing and filing a registration
statement or similar document in compliance with the Act, and the declaration or
ordering of effectiveness of such registration statement or document.
(g) The term "Registrable Securities" means (i) the Common
Stock of the Company issued to the Investors pursuant to the terms of the Merger
Agreement and (ii) any Common Stock of the Company issued as (or issuable upon
the conversion or exercise of any warrant, right or other security which is
issued as) a dividend or other distribution with respect to, or in exchange for
or in replacement of the shares referenced in (i) above, excluding in all cases,
however, any Registrable Securities sold by a person in a transaction in which
his rights under this Section 1 are not assigned pursuant to the terms of this
Agreement.
(h) The number of shares of "Registrable Securities then
outstanding" shall be determined by the number of shares of Common Stock
outstanding which are, and the number of shares of Common Stock issuable
pursuant to then exercisable or convertible securities which are, Registrable
Securities.
(i) The term "SEC" shall mean the Securities and Exchange
Commission.
1.2 Requested Registration.
(a) Request for Registration. If, at any time following the
issuance of Registrable Securities to the Investors, the Company shall receive
from one or more Holders a written request that the Company file a registration
statement in accordance with the Act covering the registration on a continuous
basis pursuant to Rule 415 under the Act, or any successor rule or regulation
("Rule 415") of all or part of the Registrable Securities then held by such
Holders, the Company shall:
(i) promptly give written notice of the proposed
registration, and any related qualification or compliance, to all other Holders;
and
(ii) use commercially reasonable efforts to, as soon as
practicable, effect the registration of all such Holders' Registrable Securities
as are specified in such request, together with such portion of the Registrable
Securities of any other Holder or Holders joining in such request as are
specified in a written notice given within fifteen (15) days after receipt of
written notice from the Company; provided, however, that the Company shall not
be obligated to take any action to effect any such registration pursuant to this
Section 1.2, (A) after the Company has effected one (1) registration under this
Section 1.2, (B) if Form S-2 or Form S-3 is not available for such offering by
the Holders, (C) if the Company shall furnish to the Holders a certificate
signed by the President or Chief Executive Officer of the Company stating that
in the good faith judgment of the Board of Directors of the Company, it would be
seriously detrimental to the Company and its stockholders for such registration
to be effected at such time, in which event the Company shall have the right to
defer the filing of the registration statement for a period of not more than
ninety (90) days after receipt of the request of the Holder under this Section
1.2; or (D) in any particular jurisdiction in which the Company would be
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required to qualify to do business or to execute a general consent to service of
process in effecting such registration, qualification or compliance.
(b) Registration Statements. Any registration statement
filed pursuant to this Section 1.2 shall be on Form S-3, or if Form S-3 is not
available, Form S-2.
(c) Underwriting. If the Holders at any time intend to
distribute all or a part of the Registrable Securities covered by the
registration statement filed pursuant to this Section 1.2 by means of an
underwriting, they shall so advise the Company and the Company shall promptly
notify the other Holders of such underwriting. The Company (together with all
Holders proposing to distribute their securities pursuant to the underwriting)
shall enter into an underwriting agreement in customary form with the
underwriter or underwriters selected by the Company. Notwithstanding any other
provision of this Section 1.2, if the underwriter advises the Holders in writing
that marketing factors require a limitation of the number of shares to be
underwritten, then the Holders requesting the underwriting shall so advise all
Holders of Registrable Securities, and the number of shares included in the
underwriting shall be allocated among the Holders of Registrable Securities
requesting registration in proportion, as nearly as practicable, to the total
number of Registrable Securities held by such Holders at the time of the request
for an underwriting. If any Holder disapproves of the terms of the underwriting,
such Holder may elect to withdraw from such underwritten offering by written
notice to the Company, the underwriter and the other Holders whose shares are
being included in the underwriting. The Company agrees to file any amendments or
supplements to the registration statement necessary in order to permit any
underwritten offering.
1.3 Obligations of the Company. Whenever required under this
Section 1 to effect the registration of any Registrable Securities, the Company
shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement
with respect to such Registrable Securities and use commercially reasonable
efforts to cause such registration statement to become and remain continuously
effective until all of the Registrable Securities have been sold pursuant
thereto, such securities are no longer outstanding or such securities are
distributed in accordance with the provisions of Rule 144 (or any similar
provision then in force) under the Act; or, if earlier, the date on which the
distribution contemplated in the registration statement has been completed.
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Act with respect to the disposition of all securities covered
by such registration statement.
(c) Furnish to the Holders such number of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Act, and such other documents as they may reasonably request
in order to facilitate the disposition of Registrable Securities owned by them
that are included in such registration.
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(d) Use commercially reasonable efforts to register and
qualify the securities covered by such registration statement under such other
securities or Blue Sky laws of such jurisdictions as shall be reasonably
requested by the Holders; provided, however, that the Company shall not be
required in connection therewith or as a condition thereto to qualify to do
business or to file a general consent to service of process in any such states
or jurisdictions.
(e) In the event of any underwritten public offering, enter
into and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such agreement.
(f) Notify each Holder of Registrable Securities covered by
such registration statement at any time when a prospectus relating thereto is
required to be delivered under the Act of the happening of any event the result
of which causes the prospectus included in such registration statement, as then
in effect, to include 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 in light of the circumstances then existing; and
thereafter, the Company will use commercially reasonable efforts to promptly
amend or supplement such prospectus in order to cause such prospectus not to
include any 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 in light of circumstances then existing; provided, however, that upon
such notification by the Company, the Holders will not offer or sell Registrable
Securities until the Company has notified the Holders that it has prepared a
supplement or amendment to such prospectus and delivered copies of such
supplement or amendment to the Holders (it being understood and agreed by the
Company that the foregoing proviso shall in no way diminish or otherwise impair
the Company's obligations to prepare a prospectus amendment or supplement as
above provided in this Section 1.3(f)).
(g) Cause all such Registrable Securities registered
pursuant hereunder to be listed on each securities exchange on which similar
securities issued by the Company are then listed.
(h) Provide a transfer agent and registrar for all
Registrable Securities registered pursuant hereunder and a CUSIP number for all
such Registrable Securities, in each case not later than the effective date of
such registration.
(i) Use commercially reasonable efforts to furnish, at the
request of any Holder requesting registration of Registrable Securities pursuant
to this Section 1, on the date that such Registrable Securities are delivered to
the underwriters for sale in connection with a registration statement pursuant
to this Section 1, if such securities are being sold through underwriters, or,
if such securities are not being sold through underwriters, on the date that the
registration statement with respect to such securities becomes effective, (i) an
opinion, dated such date, of the counsel representing the Company for the
purposes of such registration, in form and substance as is customarily given to
underwriters in an underwritten public offering, addressed to the underwriters,
if any, and to the Holders requesting registration of the Registrable
Securities, and (ii) a letter dated such date, from the independent certified
public accountants of the Company, in form and substance as is customarily given
by independent certified public accountants to underwriters in an underwritten
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public offering, addressed to the underwriters, if any, and to the Holders
requesting registration of Registrable Securities.
(j) Notify each seller of Registrable Securities under such
registration statement of (i) the effectiveness of such registration statement,
(ii) the filing of any post-effective amendments to such registration statement,
or (iii) the filing of a supplement to such registration statement.
1.4 Furnish Information. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Section 1 with
respect to the Registrable Securities of any selling Holder that such Holder
shall furnish to the Company such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such securities
as shall be required to effect the registration of such Holder's Registrable
Securities.
1.5 Expenses of Registration. All expenses (other than
underwriting discounts and commissions) incurred in connection with any
registrations, filings or qualifications of Registrable Securities pursuant to
Section 1.2 including (without limitation) all federal or state registration,
filing and qualification fees, printers' and accounting fees and fees and
disbursements of counsel for the Company shall be borne by the Holders.
1.6 Delay of Registration. No Holder shall have any right to
obtain or seek an injunction restraining or otherwise delaying any such
registration as the result of any controversy that might arise with respect to
the interpretation or implementation of this Section 1.
1.7 Indemnification. In the event any Registrable Securities are
included in a registration statement under this Section 1:
(a) To the maximum extent permitted by law, the Company will
indemnify and hold harmless each Holder, the partners, officers, and directors
of each Holder, any underwriter (as defined in the Act) for such Holder and each
person, if any, who controls such Holder or underwriter within the meaning of
the Act or the 1934 Act, against any losses, claims, damages or liabilities
(joint or several) to which they may become subject under the Act, the 1934 Act
or any state securities law, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
of the following statements, omissions or violations (collectively a
"Violation"): (i) any untrue statement or alleged untrue statement of a material
fact contained in such registration statement, including any preliminary
prospectus or final prospectus contained therein or any amendments or
supplements thereto, (ii) 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, or (iii) any violation or alleged violation by the
Company of the Act, the 1934 Act, or any rule or regulation promulgated under
the Act or the 1934 Act or any state securities law in connection with the
offering covered by such Registration Statement; and the Company will pay to
each such Holder, partner, officer, director, underwriter or controlling person,
as incurred, 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 indemnity agreement contained
in this subsection 1.7(a) shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability, or action if such settlement is effected
without the consent of the Company (which consent shall not be unreasonably
withheld or delayed), nor shall the Company be liable to any Holder, underwriter
or controlling person for any such loss, claim, damage, liability or action to
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the extent that it arises out of or is based upon a Violation which occurs in
reliance upon and in conformity with written information furnished expressly for
use in connection with such registration by any such Holder, partner, officer,
director, underwriter or controlling person.
(b) To the maximum extent permitted by law, each selling
Holder will, if Registrable Securities held by such Holder are included in the
applicable registration statement, indemnify and hold harmless the Company, each
of its directors, each of its officers who has signed the registration
statement, each person, if any, who controls the Company within the meaning of
the Act, any underwriter, any other Holder selling securities in such
registration statement and any controlling person of any such underwriter or
other Holder, against any losses, claims, damages or liabilities (joint or
several) to which any of the foregoing persons may become subject under the Act
or the 1934 Act or any state securities law in connection with the offering
covered by such registration statement insofar as such losses, claims, damages
or liabilities (or actions in respect thereto) arise out of or are based upon
any Violation, in each case to the extent (and only to the extent) that such
Violation occurs in reliance upon and in conformity with written information
furnished by such Holder expressly for use in connection with such registration;
and each such Holder will pay any legal or other expenses reasonably incurred by
any person intended to be indemnified pursuant to this subsection 1.7(b), in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the indemnity agreement contained
in this subsection 1.7(b) shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability or action if such settlement is effected
without the consent of the Holder (which consent shall not be unreasonably
withheld or delayed); provided further, that in no event shall any indemnity
under this subsection 1.7(b) exceed the net proceeds from the offering received
by such Holder, except in the case of willful misconduct or fraud by such
Holder.
(c) Promptly after receipt by an indemnified party under
this Section 1.7 of notice of the commencement of any action (including any
governmental action) as to which indemnity may be sought hereunder, such
indemnified party will, if a claim in respect thereof is to be made against any
indemnifying party under this Section 1.7, deliver to the indemnifying party a
written notice of the commencement thereof. The indemnifying party shall have
the right to participate in, and, to the extent the indemnifying party so
desires, jointly with any other indemnifying party similarly noticed, to assume
the defense thereof with counsel mutually satisfactory to the parties; provided,
however, that an indemnified party (together with all other indemnified parties
which may be represented without conflict by one counsel) shall have the right
to retain one separate counsel, with the reasonable fees and expenses to be paid
by the indemnifying party, 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 such indemnified party and any other
party represented by such counsel in such proceeding. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action, if materially prejudicial to its ability to
defend such action, shall relieve such indemnifying party of any liability to
the indemnified party under this Section 1.7, but the omission to so deliver
written notice to the indemnifying party will not relieve the indemnifying party
of any liability that it may have to any indemnified party otherwise than under
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this Section 1.7. No indemnifying party, in the defense of any such claim or
litigation, shall, except upon the consent of each indemnified party, consent to
entry of any judgment or enter into any settlement that does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a full and unconditional release from all liability in
respect to such claim or litigation.
(d) The foregoing indemnity agreements of the Company and
Holders are subject to the condition that, insofar as they related to any
Violation made in a preliminary prospectus but eliminated or remedied in the
amended prospectus on file with the SEC at the time the registration statement
in question becomes effective or the amended prospectus filed with the SEC
pursuant to SEC Rule 424(b) (the "Final Prospectus"), such indemnity agreement
shall not inure to the benefit of any person if a copy of the Final Prospectus
was furnished to the indemnified party and was not furnished to the person
asserting the loss, liability, claim or damage at or prior to the time such
action is required by the Act. If the indemnification provided for in this
Section 1.7 is held by a court of competent jurisdiction to be unavailable to an
indemnified party with respect to any loss, claim, damage or liability referred
to herein, then the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, claim, damage or liability in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party on the one hand and of the indemnified party on the other in connection
with the statements or omissions that resulted in such loss, claim, damage or
liability, as well as any other relevant equitable considerations; provided,
however, that in no event shall (i) any contribution by a Holder under this
subsection 1.7(d) exceed the net proceeds from the offering received by such
Holder, except in the case of willful fraud by such Holder, and (ii) any person
or entity guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) be entitled to contribution from any person or entity who was
not guilty of such fraudulent misrepresentation. The relative fault of the
indemnifying party and of the indemnified party shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission to state a material fact relates to information
supplied by the indemnifying party or by the indemnified party and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
(e) The obligations of the Company and Holders under this
Section 1.7 shall survive the completion of any offering of Registrable
Securities in a registration statement under this Section 1, and otherwise.
1.8 Reserved
1.9 Reports Under the 1934 Act. The Company agrees to (a) use
commercially reasonable efforts to make and keep public information available,
as those terms are understood and defined in the General Instructions to Form
S-3, or any successor or substitute form, and in Rule 144, (b) to use
commercially reasonable efforts to file with the SEC in a timely manner all
reports and other documents required to be filed by an issuer of securities
registered under the Securities Act or the Exchange Act, (c) as long as any
Holder owns any Registrable Securities, to furnish in writing upon such Holder's
request a written statement by the Company that it has complied with the
reporting requirements of Rule 144 and of the Act and the 1934 Act, and to
furnish to such Holder a copy of the most recent annual or quarterly report of
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the Company, and such other reports and documents so filed by the Company with
the SEC as may be reasonably requested.
1.10 Deferral. Notwithstanding anything in this Agreement to the
contrary, if the Company shall furnish to the Holders a certificate signed by
the President or Chief Executive Officer of the Company stating that the Board
of Directors of the Company has made the good faith determination that it is
necessary to suspend the use by the Holders of an effective registration
statement (and the prospectus relating thereto) for purposes of effecting offers
or sales of Registrable Securities pursuant thereto, then the right of the
Holders to use any such registration statement (and the prospectus relating
thereto) for purposes of effecting offers or sales of Registrable Securities
pursuant thereto shall be suspended until further notice by the Company (the
"Suspension Period"); provided, however, that (i) the Suspension Period shall
not exceed ninety (90) days following the delivery by the Company of the
certificate referred to above in this Section 1.10 and (ii) the Company will use
commercially reasonable efforts to notify the Holders at such time that it is no
longer essential to suspend the use by the Holders of any such registration
statement (and the prospectus relating thereto) pursuant to this Section 1.10.
During the Suspension Period, none of the Holders shall offer or sell any
Registrable Securities pursuant to or in reliance upon any such registration
statement (or the prospectus relating thereto). The aggregate number of days
covered by all Suspension Periods during any 12-month period shall not exceed
120.
2. Miscellaneous.
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2.1 Successors and Assigns. Except as otherwise provided herein,
the terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and permitted assigns of the parties.
Nothing in this Agreement, express or implied, is intended to confer upon any
party other than the parties hereto or their respective successors and assigns
any rights, remedies, obligations, or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement. In addition, and
whether or not any express assignment shall have been made, the provisions of
this Agreement which are for the benefit of the Investors, shall be for the
benefit of and enforceable by any subsequent Holder of any Registrable Shares
(or of any portion thereof). Any assignment of any rights of the Investors under
this Agreement shall be specifically subject to a prior written approval of the
Company which may not be unreasonably withheld by the Company.
2.2 Governing Law. This Agreement shall be governed by and
construed under the laws of the State of Delaware as applied to agreements among
Delaware residents entered into and to be performed entirely within Delaware.
2.3 Submission to Jurisdiction; Waivers. Each of the parties
hereto irrevocably agrees that any legal action or proceeding with respect to
this Agreement or for the recognition and enforcement of any judgment in respect
hereof brought by the other party hereto or its successors or assigns will be
brought and determined in the Chancery or other courts of the State of Delaware,
and each of the parties hereby irrevocably submits with regard to any such
action or proceeding for itself and in respect to its property, generally and
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unconditionally, to the exclusive jurisdiction of the aforesaid courts. Each of
the parties hereto hereby irrevocably waives, and agrees not to assert, by way
of motion, as a defense, counterclaim or otherwise, in any action or proceeding
with respect to this Agreement, (a) any claim that it is not personally subject
to the jurisdiction of the above-named courts for any reason other than the
failure to lawfully serve process, (b) that it or its property is exempt or
immune from jurisdiction of any such court or from any legal process commenced
in such courts (whether through service of notice, attachment prior to judgment,
attachment in aid of execution of judgment, execution of judgment or otherwise),
(c) to the fullest extent permitted by applicable law, that (i) the suit, action
or proceeding in any such court is brought in an inconvenient forum, (ii) the
venue of such suit, action, or proceeding is improper and (iii) this Agreement,
or the subject matter hereof, may not be enforced in or by such courts and (d)
any right to trial by jury.
2.4 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
2.5 Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
2.6 Notices. All notices and other communications required or
permitted hereunder shall be in writing and shall be deemed effectively given:
(a) upon personal delivery to the party to be notified, (b) when sent by
confirmed facsimile if sent during normal business hours of the recipient or, if
not sent during normal business hours, then on the next business day, (c) three
days after having been sent by registered or certified mail, return receipt
requested, postage prepaid, or (d) one day after deposit with a nationally
recognized overnight courier, specifying next day delivery, with written
verification of receipt. All communications shall be sent to the address as set
forth on the signature page hereof or at such other address as such party may
designate by 10 days advance written notice to the other parties hereto.
2.7 Expenses. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled.
2.8 Amendments and Waivers. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the holders of
a majority of the Registrable Securities then outstanding. Any amendment or
waiver effected in accordance with this paragraph shall be binding upon each
holder of any Registrable Securities then outstanding, each future holder of all
such Registrable Securities, and the Company.
2.9 Severability. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, such provision shall be excluded
from this Agreement and the balance of the Agreement shall be interpreted as if
such provision were so excluded and shall be enforceable in accordance with its
terms.
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2.10 Aggregation of Stock. All shares of Registrable Securities
held or acquired by affiliated entities or persons shall be aggregated together
for the purpose of determining the availability of any rights under this
Agreement.
2.11 Entire Agreement; Amendment; Waiver. This Agreement (including
Schedule A hereto) constitutes the full and entire understanding and agreement
between the parties with regard to the subjects hereof and thereof.
[Remainder of page intentionally left blank.]
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SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
CRDENTIA CORP.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------
Name: Xxxxxx X. Xxxxxxxx
Title: President
Address: 00000 Xxxxxx Xxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
INVESTORS:
By: /s/ Xxxxx Xxxxxxxx
------------------
Name: Xxxxx Xxxxxxxx
Address:
By: /s/ Xxxxxx Xxxxxx
-----------------
Name: Xxxxxx Xxxxxx
Address:
SCHEDULE A
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SCHEDULE OF INVESTORS
Xxxxx Xxxxxxxx
Xxxxxx Xxxxxx
X-0
