1
Exhibit 10.21
FOURTH AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
As of December 17, 1998
To each of the Several Purchasers (the "Purchasers") named on the signature
pages of this Fourth Amended and Restated Registration Rights Agreement
Dear Sirs:
Pursuant to the Third Amended and Restated Registration Rights Agreement
dated as of February 13, 1998 (the "Old Registration Rights Agreement") by and
among Aspect Medical Systems, Inc., a Delaware corporation (the "Company"), and
certain of its investors, the Company granted certain registration rights to the
holders of the Company's Series A-1 Convertible Preferred Stock, $.01 par value
per share (the "Series A-1 Preferred Stock"), Series A-2 Convertible Preferred
Stock, $.01 par value per share (the "Series A-2 Preferred Stock"), Series B-1
Convertible Preferred Stock, $.01 par value per share (the "Series B-1 Preferred
Stock"), Series B-2 Convertible Preferred Stock, $.01 par value per share (the
"Series B-2 Preferred Stock"), Series C Convertible Preferred Stock, $.01 par
value per share (the "Series C Preferred Stock"), Series C-2 Convertible
Preferred Stock, $.01 par value per share (the "Series C-2 Preferred Stock"),
Series D Convertible Preferred Stock (the "Series D Preferred Stock") and Series
D-2 Convertible Preferred Stock, $.01 par value per share (the "Series D-2
Preferred Stock"). The Series A-1 Preferred Stock, Series B-1 Preferred Stock,
Series C Preferred Stock, Series D Preferred Stock, Series A-2 Preferred Stock,
Series B-2 Preferred Stock, Series C-2 Preferred Stock and Series D-2 Preferred
Stock are referred to hereinafter as the "Existing Preferred Stock." In order to
attract additional investment in the Company, pursuant to this Fourth Amended
and Restated Registration Rights Agreement (the "Agreement"), the Company is
granting registration rights to the purchasers of the (a) Company's Series E
Convertible Preferred Stock, $.01 par value per share (the "Series E Preferred
Stock") and (b) warrants ("Warrants"), to purchase shares of Common Stock, $.01
par value per share, of the Company ("Common Stock"), who are purchasing such
shares of Series E Preferred Stock and such Warrants pursuant to the Series E
Convertible Preferred Stock and Warrant Purchase Agreement of even date herewith
(the "Purchase Agreement"), and to the holders of Existing Preferred Stock who
become parties to this Agreement. In addition, the Company intends that, upon
execution of this Agreement, the Old Registration Rights Agreement shall be
terminated and superseded in its entirety by this Agreement. The Company
covenants and agrees with each of you as follows:
2
1. Termination of Old Registration Rights Agreement. The Old Registration
Rights Agreement is hereby amended and restated upon the terms and conditions
contained in this Agreement to read in its entirety as provided herein.
2. 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 (as
defined below).
"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.
"Holders" means the Preferred Shareholders and the Warrant Holders,
any persons or entities to whom the rights granted under this Agreement are
transferred by the Preferred Shareholders or the Warrant Holders, their
successors or assigns pursuant to Section 3 and 16 (a) hereof.
"Preferred Shares" shall mean the Company's Series A-1 Preferred
Stock, Series B-1 Preferred Stock, Series C Preferred Stock, Series D
Preferred Stock, Series E Preferred Stock, Series A-2 Preferred Stock,
Series B-2 Preferred Stock, Series C-2 Preferred Stock, Series D-2 Preferred
Stock and Series E-2 Convertible Preferred Stock, $.01 par value per share
(the "Series E-2 Preferred Stock").
"Preferred Shareholders" means the holders of the Preferred Shares.
"Registrable Shares" means (i) the shares of Common Stock issued or
issuable upon conversion of Preferred Shares and upon exercise of the
Warrants and (ii) any other shares of Common Stock of the Company issued in
respect of such shares (because of stock splits, stock dividends,
reclassifications, recapitalizations, or similar events); provided, however,
that the shares of Common Stock which are Registrable Shares shall cease to
be Registrable Shares upon any sale pursuant to a Registration Statement, or
Rule 144 under the Securities Act or any sale in any manner to a person or
entity which, by virtue of Section 3 and/or 16 (a) of this Agreement, is not
entitled to the rights provided by this Agreement. Wherever reference is
made to this Agreement to a request or consent of holders of a certain
percentage of Registrable Shares, the determination of such percentage shall
include shares of Common Stock issuable upon conversion of the Preferred
Shares and upon
-2-
3
exercise of the Warrants even if such conversion or exercise, as the case
may be, has not yet been effected.
"Registration Expenses" means the expenses described in Section 7.
"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 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 the Securities Act, as they each may, from time to time, be in
effect.
"Warrant Holders" means the holders of the Warrants.
"Warrants" means the Warrants to purchase up to 193,600 shares of Common
Stock issued to certain of the Preferred Shareholders pursuant to the
Purchase Agreement.
3. Sale or Transfer of Shares or Warrants and Rights; Legend.
a. The Preferred Shares and the Warrants and shares issued in respect of
the Preferred Shares and the Warrants shall not be sold or transferred
unless either (i) they first shall have been registered under the Securities
Act, or (ii) the Company first shall have been furnished with an opinion of
legal counsel, reasonably satisfactory to the Company, to the effect that
such sale or transfer is exempt from the registration requirements of the
Securities Act.
b. Any transferee (other than a transferee who is already a "Holder"
hereunder prior to the subject transfer) to whom rights under this Agreement
are transferred shall, as a condition to such transfer, deliver to the
Company a written instrument by which such transferee agrees to be bound by
the obligations set forth herein with respect to the Holders and to the
provisions regarding confidentiality set forth in Section 11 of the Purchase
Agreement, provided, however, that the right to transfer rights under this
Agreement is subject to Section 16(a) hereof.
(c) Notwithstanding the foregoing, no registration or opinion of counsel
shall be required for (i) a transfer by a Holder which is a partnership to a
partner of such partnership or a retired partner of such partnership who
retires after the date hereof, or to the estate of any such partner or
retired partner; (ii) a transfer by a Holder which is a corporation to a
stockholder thereof (provided that if such
-3-
4
Holder is publicly-traded, then such transferee must hold at least 10% of
the outstanding voting securities of such Holder), to a wholly-owned
subsidiary corporation, to a parent corporation which wholly-owns such
Holder, or to a corporation which is wholly-owned by such a parent
corporation; (iii) the transfer by Artal Luxembourg S.A. ("Artal") to
QuestMark Partners, L.P. and/or its affiliates ("QuestMark") which is
contemplated by the Purchase Agreement; or (iv) a transfer made in
accordance with Rule 144 under the Securities Act; provided, however, that
in the case of any transfer pursuant to this paragraph (c), the transferee
must agree in writing to be subject to this Agreement to the same extent as
a Holder hereunder.
(d) Each certificate representing the Preferred Shares, each Warrant and
shares issued in respect of the Preferred Shares and the Warrants shall bear
a legend substantially in the following form:
"The shares represented by this certificate have not been registered
under the Securities Act of 1933, as amended, and may not be offered,
sold or otherwise transferred, pledged or hypothecated unless and until
such shares are registered under such Act or an opinion of counsel
satisfactory to the Company is obtained to the effect that such
registration is not required."
The foregoing legend shall be removed from such certificates, at the request
of the holder thereof, at such time as they become eligible for resale
pursuant to Rule 144(k) under the Securities Act.
4. Required Registrations.
a. At any time after the earlier to occur of (i) one year after the
closing of the Company's first underwritten public offering of shares of
Common Stock pursuant to a Registration Statement or (ii) the third
anniversary of the date of this Agreement, the Holders of not less than 35%
of the Registrable Shares then outstanding may request, in writing, that the
Company effect the registration on Form S-1 or Form S-2 (or any successor
form) of Registrable Shares held by such Holders. If the Holders initiating
the registration intend to distribute the Registrable Shares by means of an
underwriting, they shall so advise the Company in their request. In the
event such registration is underwritten, the right of other Holders to
participate shall be conditioned on such Holders' participation in such
underwriting. Upon receipt of any such request, the Company shall promptly
give written notice of such proposed registration to all Holders. Such
Holders shall have the right, by giving written notice to the Company within
30 days after the Company provides its notice, to elect to have included in
such registration such of its Registrable Shares as such Holders may request
in such notice of election, subject to the approval of the underwriter
managing the offering. If in the opinion of such managing underwriter the
inclusion of all shares requested to be registered by the Holders would
adversely affect the marketing of the securities to be sold, then the
Registrable Shares to be
-4-
5
included in such an underwriting may be reduced (pro rata among the
requesting Holders based upon the Registrable Shares owned by such Holders).
Thereupon, the Company shall, as expeditiously as possible, use its best
efforts to effect the registration, on Form S-1 or Form S-2 (or any
successor form), for all Registrable Shares which the Company has been
requested to so register. No other holder of capital stock of the Company
may participate in any registered offering made pursuant to this section
without the consent of a majority of the Registrable Shares held by
participating Holders.
b. At any time after the Company becomes eligible to file a Registration
Statement on Form S-3 (or any successor form relating to secondary
offerings), a Holder or Holders may request the Company, in writing, to
effect the registration on Form S-3 (or such successor form) of Registrable
Shares having an aggregate offering price, net of underwriting discounts and
commission, if any, of at least $250,000 (based on the current public market
price). Upon receipt of any such request, the Company shall promptly give
written notice of such proposed registration to all Holders. Such Holders
shall have the right, by giving written notice to the Company within 30 days
after the Company provides its notice, to elect to have included in such
registration such of their Registrable Shares as such Holders 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
such successor form, of all Registrable Shares which the Company has been
requested to register.
c. The Company shall not be required to effect more than three
registrations pursuant to paragraph (a) above requested by the holders of
Registrable Shares. A registration will not count as a required registration
under paragraph (a) unless it becomes effective and the Holders requesting
registration are able to sell at least 50% of the Registrable Shares sought
to be included in the registration.
d. If at the time of any request to register Registrable Shares pursuant
to this Section 4, the Company is engaged or has fixed plans to engage,
within 30 days of the time of the request, in a registered public offering
as to which the Holders may include Registrable Shares pursuant to Section 5
or is engaged in any other activity which, in the good faith determination
of the Company's board of directors, would be adversely affected by the
requested registration to the material detriment of the Company, then the
Company may at its option direct that such request be delayed for a period
not to exceed six months from the effective date of such offering or the
date of commencement of such other material activity, as the case may be,
such right to delay a request to be exercised by the Company not more than
once in any two-year period.
-5-
6
5. Incidental Registration.
a. Whenever the Company proposes to file a Registration Statement at any
time and from time to time, it will, prior to such filing, give written
notice to all Holders of its intention to do so and, upon the written
request of a Holder given within 20 days after receipt of such notice (which
request shall state the intended method of disposition of such Registrable
Shares), the Company shall use its best efforts to cause all Registrable
Shares which the Company has been requested by such Holder or 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
methods of distribution specified in the request of such Holder or Holders;
provided that the Company shall have the right to postpone or withdraw any
registration effected pursuant to this Section 5 without obligation to any
Holder.
b. In connection with any offering under this Section 5 involving an
underwriting, the Company shall not be required to include any Registrable
Shares in such underwriting unless the Holders thereof accept the terms of
the underwriting as agreed upon between the Company and the underwriters
selected by it. If in the opinion of the managing underwriter it is
appropriate because of marketing factors to limit the number of Registrable
Shares to be included in the offering, then the Company shall be required to
include in the registration only that number or Registrable Shares, if any,
which the managing underwriter believes should be included therein;
provided, that in no event shall the number of Registrable Shares included
in the offering (other than in the Company's initial public offering) be
reduced below 25% of the total number of shares of Common Stock (giving
effect to conversion into Common Stock of all securities convertible
thereinto) included in the offering. If the number of Registrable Shares to
be included in the offering in accordance with the foregoing is less than
the total number of shares which the holders of Registrable Shares have
requested to be included, then each Holder shall be entitled to register its
pro rata portion of the Registrable Shares being registered (based upon the
Registrable Shares owned by such Holders in relation to all the Registrable
Shares held by all Holders).
6. 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 Shares under the Securities Act, the Company shall:
a. as expeditiously as possible file with the Commission a Registration
Statement with respect to such Registrable Shares and use its best efforts
to cause that Registration Statement to become and remain effective;
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
-6-
7
to keep the Registration Statement effective for a period of not less than
120 days from the effective date;
c. as expeditiously as possible furnish to each selling 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 the selling Holder may reasonably request in order
to facilitate the public sale or other disposition of the Registrable Shares
held by the selling Holder; and
d. as expeditiously as possible use its best 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 selling Holders shall
reasonably request, and do any and all other acts and things that may be
necessary or desirable to enable the selling Holders to consummate the
public sale or other disposition in such states of the Registrable Shares
owned by the selling 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
selling Holders and after having done so the prospectus is amended to comply
with the requirements of the Securities Act, the Company shall promptly notify
the selling Holders and, if requested by the Company, the selling Holders shall
immediately cease making offers of Registrable Shares and return all
prospectuses to the Company. The Company shall promptly provide the selling
Holders with revised prospectuses and, following receipt of the revised
prospectuses, the selling Holders shall be free to resume making offers of the
Registrable Shares.
7. Allocation of Expenses. The Company will pay all Registration Expenses of
all registrations under this Agreement. 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 fees, fees and expenses of counsel for the Company and the fees and
expenses of one counsel selected by the selling Holders to represent the selling
Holders, state Blue Sky fees and expenses, and the expense of any special audits
incident to or required by any such registration, but excluding underwriter
discounts and commissions and the fees and expenses of selling Holders' own
counsel (other than the counsel selected to represent all selling Holders). All
other expenses of registered offerings shall be borne pro rata amount the
selling Holders and, if it participates, the Company.
8. Indemnification. In the event of any registration of any of the
Registrable Shares under the Securities Act pursuant to this Agreement, the
Company
-7-
8
will indemnify and hold harmless each Holder of the Registrable Shares so
registered, each officer and director of such Holder, each underwriter of such
Registrable Shares, and each other person, if any, who controls such Holder 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
Holder, officer, director, underwriter or controlling person 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 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, 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 Holder, officer,
director, underwriter and each such controlling person for any legal or any
other expenses reasonably incurred by such Holder, officer, director,
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 thereto, in reliance upon and in
conformity with information furnished to the Company, in writing, by or on
behalf of such Holder, officer, director, underwriter or controlling person
specifically for use in the preparation thereof.
In the event of any registration of any of the Registrable Shares under the
Securities Act pursuant to this Agreement, each Holder of Registrable Shares so
registered, severally and not jointly, will indemnify and 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, underwriter 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 Holder, specifically for use in connection with the preparation
of such Registration Statement, preliminary prospectus or prospectus, or any
such amendment or supplement thereto, in reliance upon and in conformity with
information furnished to the Company, in writing, by or on behalf of
-8-
9
such Holder, officer, director, underwriter or controlling person specifically
for use in the preparation thereof; provided, however, that the obligation of
such Holder hereunder shall be limited to an amount equal to the net proceeds to
each Holder of Registrable Shares sold as contemplated herein.
Each party entitled to indemnification under this Section 8 (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 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 unless and only to the extent such failure
adversely affects the ability of such Indemnifying Party to defend or settle
such claim or litigation. 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.
In order to provide for just and equitable contribution in circumstances in
which the indemnification provided for in this Section 8 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 selling Holders 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. The relative fault of the Company and the selling Holders
-9-
10
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 selling Holders and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the selling Holders agree that it would not be just
and equitable if contribution pursuant to this Section 8 were determined by pro
rata allocation or by 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 8, in no case shall any one selling
Holder be liable or responsible for any amount in excess of the net proceeds
received by such selling Holder from the offering of Registrable Shares;
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. 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 8, 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 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.
9. Indemnification with Respect to Underwritten Offering. In the event that
Registrable Shares are sold pursuant to a Registration Statement in an
underwritten offering pursuant to Section 4 (a), 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 underwritings of such offering.
10. Information by Holder. Each Holder of Registrable Shares that are
included in any registration 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.
11. "Stand-Off" Agreement. Each Holder, if requested by the Company and an
underwriter of Common Stock or other securities of the Company, shall agree not
to sell or otherwise transfer or dispose of any Registrable Shares or other
securities of the Company held by such Holder for a specified period of time
(not to exceed 120 days) following the effective date of a Registration
Statement; provided, that:
-10-
11
a. such agreement shall only apply to the first such Registration
Statement covering Common Stock of the Company to be sold on its behalf to
the public in an underwritten offering; and
b. all other Holders holding not less than the number of shares of
Common Stock held by such Holder (including shares of Common Stock issuable
upon the conversion of Preferred Shares, or other convertible securities, or
upon the exercise of options, warrants or rights) and all executive officers
and directors of the Company enter into similar agreement.
Such agreement shall be in writing in a form satisfactory to the Company
and such underwriter. The Company may impose stop-transfer instructions with
respect to the Registrable Shares or other securities subject to the
foregoing restriction until the end of the stand-off period.
12. Limitations on Subsequent Registration Rights. The Company shall not,
without the prior written consent of Holders holding at least a majority of the
Registrable Shares, enter into any agreement (other than this Agreement) with
any holder or prospective holder of any securities of the Company which would
allow such holder or prospective holder to include securities of the Company in
any registration filed under Sections 4 or 5, if, under the terms of such
agreement, such holder or prospective holder's rights are superior or may be
exercised prior to the rights of the Holder contained herein.
13. Rule 144 Requirements. After the earliest of (i) the closing of the sale
of securities of the Company pursuant to a Registration Statement, (ii) the
registration by the Company of a class of securities under Section 12 of the
Exchange Act, or (iii) the issuance by the Company of an offering circular
pursuant to Regulation A under the Securities Act, the Company agrees to:
a. make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act;
b. use its best efforts to 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 (at any time after it has become subject to such
reporting requirements); and
c. furnish to any Holder of Registrable Shares under request a written
statement by the Company as to its compliance with the reporting
requirements of said Rule 144 (at any time after 90 days following the
closing of the first sale of securities by the Company pursuant to a
Registration Statement), and of the Securities Act and the Exchange Act (at
any time after it has become subject to such reporting requirements), a copy
of the most recent
-11-
12
annual or quarterly report of the Company, and such other reports and
documents of the Company as such holder may reasonably request to avail
itself of any similar rule or regulation of the Commission allowing it to
sell any such securities without registration.
14. Representations and Warranties of the Company. The Company represents
and warrants to you as follows:
a. The execution, delivery and performance of this Agreement by the
Company have been duly authorized by all requisite corporate action and will
not violate any provision of law, any order of any court or other agency of
government, the Certificate of Incorporation or By-laws of the Company, each
as amended to date, or any provision of any indenture, agreement or other
instrument to which it or any of its properties or assets is bound, conflict
with, result in a breach of or institute (with due notice or lapse of time
or both) a default under any such indenture, agreement or other instrument
or result in the creation or imposition of any lien, charge or encumbrance
of any nature whatsoever upon any of the properties or assets of the
Company.
b. This Agreement has been duly executed and delivered by the Company
and constitutes the legal, valid and binding obligation of the Company,
enforceable in accordance with its terms.
15. Changes in Common Stock, Preferred Shares or Warrants. If, and as often
as, there is any change in the Common Stock of the Company or the Preferred
Shares or Warrants by way of a stock split, stock dividend, combination or
reclassification, or through a merger, consolidation, reorganization or
recapitalization, or by any other means, appropriate adjustment shall be made in
the provisions hereof so that the rights and privileges granted hereby shall
continue with respect to the Preferred Shares and Warrants and the shares of
Common Stock issuable upon conversion or exercise thereof, as the case may be,
as so changed.
16. Miscellaneous.
a. All covenants and agreements contained in this Agreement by or on
behalf of any of the parties hereto shall bind and inure to the benefit of
the respective successors and assigns of the parties hereto (including
without limitation transferees of any Registrable Shares, Warrants or
Preferred Shares, whether so expressed or not), provided, however, that
registration rights conferred herein on the holders of Preferred Shares,
Warrants or Registrable Shares shall only inure to the benefit of a
transferee of Preferred Shares, Warrants or Registrable Shares if there is
transferred to such transferee at least 25,000 shares of Preferred Shares,
Warrants to purchase at least 25,000 shares of Common Stock or at least
25,000 shares of Registrable Shares (other than
-12-
13
transfer of registration rights to an entity under common control with or to
a shareholder, partner, former partner or subsidiary of any Holder which
will be without restriction as to minimum shares), and provided, further,
that the Company is given written notice by the transferee at the time of
the transfer stating the name and address of the transferee and identifying
the securities with respect to which such rights are being assigned.
Notwithstanding anything to the contrary in this Agreement, the Company
acknowledges and agrees that Artal may transfer the Preferred Shares and
Warrants acquired by it under the Purchase Agreement to QuestMark without
restriction (other than compliance with applicable securities laws), and
that subsequent to such transfer, QuestMark shall be deemed a Holder for all
purposes under this Agreement. At the time of the transfer, QuestMark shall
deliver to the Company a written instrument by which it agrees to become a
party to this Agreement, to the same extent as if it were a Holder
hereunder.
b. All notices, requests, consents and other communications hereunder
shall be in writing and shall be mailed by certified or registered mail,
return receipt requested, postage prepaid, or telexed, in the case of
non-U.S. residents, addressed as follows:
if to the Company or any other party hereto, at the address of such
party set forth in the stock records of the Company, as the case may be;
if to any subsequent holder of Preferred Shares, Warrants or Registrable
Shares, to it at such address as may have been furnished to the Company in
writing by such holder;
or, in any case, at such other address or addresses as shall have been
furnished in writing to the Company (in the case of a holder of Preferred
Shares, Warrants or Registrable Shares) or to the holders of Preferred
Shares, Warrants or Registrable Shares (in the case of the Company) in
accordance with the provisions of this paragraph.
c. This Agreement shall be governed by and construed in accordance with
the laws of the Commonwealth of Massachusetts.
d. The terms 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 at least 55% of the Registrable
Shares, provided that, the terms of Section 16(f)(i) and (ii) may be amended
and the observance of the terms of such Section may be waived only with the
written consent of the Company and the holders of at least 80% of the
Registrable Shares.
-13-
14
e. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which shall constitute one and
the same instrument.
f. The obligations of the Company to register shares of the Registrable
Shares under this Agreement shall terminate on the sixth anniversary of the
date of the consummation of a firm commitment underwritten public offering
of shares of Common Stock of the Company which (i) results in aggregate
gross proceeds of at least $20,000,000 and (ii) is at a price per share to
the public of at least $14.00.
g. If any provision of this Agreement shall be held to be illegal,
invalid or unenforceable, such illegality, invalidity or unenforceability
shall attach only to such provision and shall not in any manner affect or
render illegal, invalid or unenforceable any other provisions of this
Agreement, and this Agreement shall be carried out as if any such illegal,
invalid or unenforceable provision were not contained herein.
-14-
15
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first above written.
ASPECT MEDICAL SYSTEMS, INC.
By: /s/Xxxxxx X. Xxxxxxx
-------------------------------------------
Xxxxxx X. Xxxxxxx
President
ARTAL LUXEMBOURG S.A.
By: /s/Xxxx X. Komler
-------------------------------------------
Name: Xxxx X. Komler
Title: Managing Director
BENEFIT CAPITAL MANAGEMENT
CORPORATION, as Investment Manager of
the Prudential Insurance Company of America
Separate Account # VCA-GA-5298
By: /s/Xxx XxXxxxx
-------------------------------------------
Name: Xxx XxXxxxx
Title: Sr. VP & CFO
HLB/CB Fund, L.P.
By: /s/Xxxxx X. Xxxxxxx Xx.
-------------------------------------------
Name: Xxxxx X. Xxxxxxx Xx.
Title: General Partner
XXXXX CAPITAL PARTNERS
By: /s/J. Xxxxxx Xxxxx, Xx.
-------------------------------------------
Name:
Title:
US DEVELOPMENT CAPITAL INVESTMENT COMPANY
By: /s/Xxxxxxx X. Xxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Corporate Secretary
[Fourth Amended and Restated Registration Rights Agreement]
16
NEW VENTURE PARTNERS III, LIMITED
PARTNERSHIP
By: /s/Xxxxxx X. Xxxxx, Xx.
-------------------------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: General Partner
CITIVENTURE 96 PARTNERSHIP, L.P.
By: Chancellor LGT Asset Management, Inc.
as investment advisor
By: /s/Xxxx Xxxxxxxxxxxx
-------------------------------------------
Name:
Title:
JULIET CHALLENGER, INC.
By: /s/Xxxxxx X. XxXxxxxxx
-------------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Vice President
ORCHID & CO., nominee for
X. Xxxx Price Threshold Fund III, L.P.
By: X. Xxxx Price Threshold Fund Associates,
Inc. General Partner
By: /s/Xxxxxxxx X. Xxxxxxx
-------------------------------------------
Title: Vice President
LANDMARK VENTURE CAPITAL PARTNERS, LIMITED
PARTNERSHIP
By: /s/Xxxxxx X. Xxxxx, Xx.
-------------------------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: General Partner
/s/ Xxxxx Xxxxx
-------------------------------------------
Xxxxx Xxxxx
[Fourth Amended and Restated Registration Rights Agreement]
17
/s/Xxxxxxx Xxxxxx
-------------------------------------------
Xxxxxxx Xxxxxx
/s/ X. X. Xxxxxxxxxxxx
-------------------------------------------
Xxxxx X. Xxxxxxx, Xxxxx Xxxxxxxx Xxxxxxx
and X. X. Xxxxxxxxxxxx, Trustees of the
Xxxxx X. Xxxxxxx Trust U/A dated 11/18/85
VENHILL LIMITED PARTNERSHIP
By: /s/Xxxxxx X. Xxxxxxx
-------------------------------------------
Name:
Title: General Partner
CHANCELLOR LGT PRIVATE CAPITAL
PARTNERS III, L.P.
By: CPCP Associates, L.P., its general partner
By: Chancellor LGT Venture Partners, Inc.,
its general partner
By: /s/Xxxx Xxxxxxxxxxxx
-------------------------------------------
Name:
Title:
/s/Xxxxx X. Xxxxx
-------------------------------------------
Xxxxx X. Xxxxx
HIGHLAND CAPITAL PARTNERS II,
LIMITED PARTNERSHIP
By: Highland Management Partners II
Limited Partnership, its General
Partner
By: /s/Xxxxxxxx X. Xxxxxxxxx
-------------------------------------------
Name: Xxxxxxxx X. Xxxxxxxxx
Title: GP
[Fourth Amended and Restated Registration Rights Agreement]
18
XXXXXXX RIVER PARTNERSHIP VII,
LIMITED PARTNERSHIP
By: /s/Xxxxxxx X. Xxxxxx, Xx.
-------------------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: General Partner
POLARIS VENTURE PARTNERS, L.P.
By: Polaris Venture Management Co., LLC
Its General Partner
By: /s/Xxxxxxxx XxXxxxx
-------------------------------------------
Member
/s/X. X. Xxxxxxxxxxxx /s/X.X. Xxxxxx
---------------------------------------------
X. X. Xxxxxxxxxxxx and Xxxxxx X. Xxxxxx,
Trustees U/A/T dated 8/28/68 for
Xxxxxx Xxxxxxxx Xxxxxxx
/s/X. X. Xxxxxxxxxxxx /s/X.X. Xxxxxx
---------------------------------------------
X. X. Xxxxxxxxxxxx and Xxxxxx X. Xxxxxx,
Trustees U/A/T dated 8/28/68 for
Xxxxx X. Xxxxxxx, Xx.
/s/X. X. Xxxxxxxxxxxx /s/X.X. Xxxxxx
---------------------------------------------
X. X. Xxxxxxxxxxxx and Xxxxxx X. Xxxxxx,
Trustees U/A/T dated 8/28/68 for
Juliet Xxx Xxxxxxx
/s/X. X. Xxxxxxxxxxxx /s/X.X. Xxxxxx
---------------------------------------------
X. X. Xxxxxxxxxxxx and Xxxxxx X. Xxxxxx,
Trustees U/A/T dated 8/28/68 for
Xxxxxxx Xxxxxxx Xxxxxxx
/s/Xxxx Xx Xxxxxx
---------------------------------------------
Xxxx Xx Xxxxxx
[Fourth Amended and Restated Registration Rights Agreement]
19
/s/Xxxxxxxx X. Xxxxxxx
---------------------------------------------
Xxxxxxxx X. Xxxxxxx
ONE LIBERTY FUND III, L.P.
By: One Liberty Partners III, L.P.,
Its General Partner
By: /s/Xxxxx X. Xxxxx, Xx.
-------------------------------------------
Xxxxx X. Xxxxx, Xx.
General Partner
/s/Xxxxxxx X. Xxxxxxxxx
---------------------------------------------
Xxxxxxx X. Xxxxxxxxx
/s/Xxxxx X. Xxxxxx
---------------------------------------------
Xxxxx X. Xxxxxx
GENSTAR INVESTMENT CORPORATION
By:/s/Xxxxxxx X. Xxxxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Executive Vice President
/s/Xxxxxxxxx X. Xxxxxxxx
---------------------------------------------
Xxxxxxxxx X. Xxxxxxxx
/s/Xxxxxxxx X. Xxxxx
---------------------------------------------
Xxxxxxxx X. Xxxxx
/s/Xxxxxx X. Xxxxx
---------------------------------------------
Xxxxxx X. Xxxxx and/or Xxxxx Xxxxx Xxxxx
Trustees or Successor Trustees under The
Xxxxx Trust U/A/D 10/05/88
[Fourth Amended and Restated Registration Rights Agreement]
20
POLARIS VENTURE PARTNERS FOUNDERS' FUND, L.P.
By: Polaris Venture Management Co., LLC
Its General Partner
By:/s/Xxxxxxxx XxXxxxx
---------------------------------------------
Member
/s/Xxxxxx X. Xxxxxxx
---------------------------------------------
Xxxxxx X. Xxxxxxx
ABS EMPLOYEE VENTURE FUND LIMITED PARTNERSHIP
By:/s/Xxxxxxxx-Xxxx X. Xxxxxxx
---------------------------------------------
Title: VP of Xxxx Xxxxx Investments Inc.
GP of the Partnership
SECOND CENTURY GROWTH DEFERRED
COMPENSATION PLAN: Xxxxx Xxxxxxx, Inc.
By:/s/Xxxxx Xxxxxxx, Inc.
---------------------------------------------
Name: Buzz Xxxxxx
Title:
THE XXXX XXXXXXXXX SCHOOL ENDOWMENT FUND
By:/s/Xxxxx Xxxxxx
---------------------------------------------
Name:
Title:
/s/Xxxxxx Xxxxxx
---------------------------------------------
Xxxxxx Xxxxxx
/s/Xxxxxxx Xxxxxxx
---------------------------------------------
Xxxxxxx Xxxxxxx
[Fourth Amended and Restated Registration Rights Agreement]
21
GILDE INTERNATIONAL B.V.
By: One Liberty Partners III, L.P.,
its Attorney-in-Fact
By:/s/Xxxxx X. Xxxxx, Xx.
---------------------------------------------
Title: General Partner
Xxxxxxxx Associates Fund, XXXXXXXX ASSOCIATES FUND
A California Limited Partnership
By:/s/Xxxxxx X. Xxxxxx
Xxxxxxxx Medical Partners, ---------------------------------------------
A California Limited Partnership Name: Xxxxxx X. Xxxxxx
Title: Authorized Signature
By: Xxxxxxxx VI Investment
Partners, A California
Limited Partnership, XXXXXXXX MEDICAL PARTNERS
Its General Partner
By: Xxxxxxxx VI Investment Partners
By: Xxxxxxxx VI Management
Partners, A California By:/s/Xxxxxx X. Xxxxxx
Limited Partnership, ---------------------------------------------
General Partner of Name: Xxxxxx X. Xxxxxx
Xxxxxxxx VI Investment Title: Authorized Signature
Partners
Xxxxxxxx VI Investment Partners,
A California Limited Partnership XXXXXXXX VI INVESTMENT PARTNERS
By: Xxxxxxxx VI Management By: Xxxxxxxx VI Management Partners
Partners, A California
Limited Partnership, By:/s/Xxxxxx X. Xxxxxx
Its General Partner ---------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Authorized Signature
MERRILL, PICKARD, XXXXXXXX &
EYRE IV, LIMITED PARTNERSHIP
By: MPAE IV Management Co., L.P.
By: /s/Xxxxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: General Partner
[Fourth Amended and Restated Registration Rights Agreement]
22
NEW ENTERPRISE ASSOCIATES IV,
LIMITED PARTNERSHIP
By: New Enterprise Associates IV, Limited
Partnership
By: NEA Partners IV, Limited Partnership
By: /s/Xxxxx Xxxxxx
---------------------------------------------
Xxxxx Xxxxxx
General Partner
HLM PARTNERS VII, L.P.
By:/s/Xxxxx X. Xxxxxxx Xx.
---------------------------------------------
Name: Xxxxx X. Xxxxxxx Xx.
Title: General Partner
XXXXXX XXXX VENTURES, A CALIFORNIA
LIMITED PARTNERSHIP
By:/s/G. Xxxxxxx Xxxxx, Xx.
---------------------------------------------
Name: G. Xxxxxxx Xxxxx, Xx.
Title: Managing Director of General Partner
TOW PARTNERS, A CALIFORNIA LIMITED PARTNERSHIP
By:/s/Xxxx X. Xxxxxx
---------------------------------------------
Title: General Partner
/s/Xxxxxxx X. Xxxxxxx, Xx.
---------------------------------------------
Xxxxxxx X. Xxxxxxx, Xx., Trustee of the
Younger Living Trust
/s/Xxxx X. Xxxxxx
---------------------------------------------
Xxxx X. and Xxxxxx X. Xxxxxx, Trustees of the
Wythes Living Trust
[Fourth Amended and Restated Registration Rights Agreement]
23
/s/G. Xxxxxxx Xxxxx
---------------------------------------------
G. Xxxxxxx Xxxxx
/s/Xxxxxxx X. Xxxxxxx Under Power of Attorney
---------------------------------------------
Xxxxxx X. Xxxxxxx
/s/Xxxxxxx X. Xxxxxxx Under Power of Attorney
---------------------------------------------
Xxxxx X. Xxxxxxx
/s/Xxxxx X. Xxxxxxxx
---------------------------------------------
Xxxxx X. Xxxxxxxx
/s/Xxxxx Xxxx
---------------------------------------------
Xxxxx Xxxx
/s/Xxxxxx Xxxxxxxxx
---------------------------------------------
Xxxxxx Xxxxxxxxx
/s/Xxxxxxxx Xxxxxxx
---------------------------------------------
Xxxxxxxx and Xxxx Xxxxxxx
H&D INVESTMENTS II
By: /s/Xxxx X. Xxxxxxxx
---------------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Partner
/s/X. Xxxxxxxxxxxx Eagle
---------------------------------------------
X. Xxxxxxxxxxxx Eagle
---------------------------------------------
Xxxxx X. Xxxx
/s/J. Xxxx Xxxxxxxxx
---------------------------------------------
J. Xxxx Xxxxxxxxx
/s/Xxxxxxx X. Xxxxxxx
---------------------------------------------
Xxxxxxx X. Xxxxxxx
/s/Xxxxxx X. Xxxxxxx
---------------------------------------------
Xxxxxx X. Xxxxxxx
[Fourth Amended and Restated Registration Rights Agreement]
24
THE XXXX CARDIOVASCULAR RESEARCH FOUNDATION
By:/s/Xxxxx X. Xxxxxxxx
---------------------------------------------
Title: Treasurer
/s/Xxxx X. Xxxxxx
---------------------------------------------
Xxxx X. Xxxxxx
ZED INTERNATIONAL, INC.
By:
---------------------------------------------
BAYVIEW INVESTORS, LTD.
By:/s/Xxxxx X. Xxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Authorized Signatory
INTERSTOCK ANSTALT
By:/s/Ernst Bloathlinger
---------------------------------------------
Authorized Signatory
SVE STAR VENTURE ENTERPRISES NO. V,
A GERMAN CIVIL LAW PARTNERSHIP
(WITH LIMITATION OF LIABILITY)
By: SVM Star Ventures Management
gesellschaft mbH Nr. 3
By: /s/Xxxxxxx Xxxxxxxx
---------------------------------------------
Authorized Signatory
[Fourth Amended and Restated Registration Rights Agreement]
25
SVM STAR VENTURES
MANAGEMENT GESELLSCHAFT MBH NR.
3 & CO. BETEILIGUNGS KG
By: SVM Star Ventures Management
gesellschaft mbH Nr 3.
By: /s/Xxxxxxx Xxxxxxxx
---------------------------------------------
Authorized Signatory
/s/Xxxxxxx Xxxxxx /s/Xxxxx Xxxxxx
---------------------------------------------
Xxxxxxx and Xxxxx Xxxxxx
AENEAS VENTURE CORPORATION
By:/s/Xxxxxxx X. Xxxxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Authorized Signatory
CATALYST VENTURES, LIMITED PARTNERSHIP
By: New Enterprise Associates IV, Limited
Partnership
By: NEA Partners IV, Limited
Partnership
By:/s/Xxxxx X. Xxxxxx
---------------------------------------------
Name:
Title:
XXXXX FARGO BANK, TRUSTEE SHV M/P/T FBO
XXXXX X. XXXXXXXX
By:/s/Xxxxx X. Xxxxxx /s/Xxxxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Trust Officer
[Fourth Amended and Restated Registration Rights Agreement]
26
XXXXX FARGO BANK, TRUSTEE SHV M/P/T
FBO XXXXX XXXX
By:/s/Xxxxx X. Xxxxxx /s/Xxxxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Trust Officer
/s/Xxxxxxx X. Xxxxxxx, Xx.
---------------------------------------------
Xxxxxxx X. Xxxxxxx, Xx.
THE XXXXXXX RESEARCH FOUNDATION
By:/s/Xxxxxxxx Xxxxxxx
---------------------------------------------
Name:
Title:
FISHERS ISLAND PARTNERS
By: /s/Xxxxxx Saint-Xxxxx, MD,
---------------------------------------------
Name:
Title: Managing Partner of Xxxxxx
Island Partners
/s/Xxxxxx X. Xxxxxxx
---------------------------------------------
Xxxxxx X. Xxxxxxx
---------------------------------------------
Ziad and Xxxx Xxxxxxx
/s/Xxxxxx Xxxxxx as Custodian for Xxxxxxx
Xxxxxxx Xxxxxx
---------------------------------------------
Xxxxxx Xxxxxx as Custodian for Xxxxxxx
Xxxxxxx Xxxxxx
---------------------------------------------
Xxxxxx X. Xxxxx, M.D.
---------------------------------------------
Xxxxxxx X. Xxxxx
/s/Xxxx Xxx Young
---------------------------------------------
Xxxx Xxx Xxxxx
/s/Xxxxxx Xxxxxxx
---------------------------------------------
Xxxxxx Xxxxxxx
---------------------------------------------
Xxxx X. Rohrbasser
---------------------------------------------
Xxxxxxxx Xxxx
/s/ Xxxxxxx X. Xxxxxxx
---------------------------------------------
Xxxxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxx
---------------------------------------------
Xxxxxxx X. Xxxx
/s/ Xxxxxx X. Xxxx
---------------------------------------------
Xxxxxx X. Xxxx
/s/ Xxxxxx X. Xxxxx
---------------------------------------------
Xxxxxx X. Xxxxx
New Ventures Partners IV, Limited
Partnership
By: /s/ Xxxxxx Xxxxx, Xx.
---------------------------------------------
Name: Xxxxxx Xxxxx, Xx.
Title: General Partner
[Fourth Amended and Restated Registration Rights Agreement]
