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EXHIBIT 10.8
REGISTRATION AGREEMENT
THIS AGREEMENT is made as of August 24, 1994, between Computer Motion,
Inc., a California corporation (the "Company"), and Chase Manhattan Capital
Corporation, a New York corporation (the "Investor").
The parties to this Agreement are parties to a Purchase Agreement of
even date herewith (the "Purchase Agreement"). In order to induce the Investors
to enter into the Purchase Agreement, the Company has agreed to provide the
registration rights set forth in this Agreement. The execution and delivery of
this Agreement is a condition to the Closing under the Purchase Agreement.
Unless otherwise provided in this Agreement, capitalized terms used herein shall
have the meanings set forth in paragraph 8 hereof.
The parties hereto agree as follows:
1. Demand Registrations.
(a) Requests for Registration. At any time after the fourth
anniversary of the Closing under the Purchase Agreement, if the Company has not
completed an initial public offering of its Common Stock under the Securities
Act (and "IPO"), either the Investor and/or the holders of at least 50% of the
Registrable Securities may request registration of all or part of their
Registrable Securities on Form S-1 or any similar long-form registration
("Long-Form Registration"). At any time after completion of an IPO, the holders
of at least 20% of the Registrable Securities may request registration under the
Securities Act of all or part of their Registrable Securities in a Long-Form
Registration, and the holders of any Registrable Securities may request
registration under the Securities Act of all or part of their Registrable
Securities on Form S-2 or S-3 or any similar short-form registration
("Short-Form Registrations") if available. In addition, the holder of a majority
of Medtronic Registrable Securities shall be entitled to initiate a Long-Form
Registration as set forth in paragraph 1(b) below. All registrations requested
pursuant to this paragraph 1(a) are referred to herein as "Demand
Registrations". Each request for a Demand Registration shall specify the
approximate number of Registrable Securities requested to be registered and the
anticipated per share price range for such offering. Within ten days after
receipt of any such request, the Company will give written notice of such
requested registration to all other holders of Registrable Securities and will
include in such registration all Registrable Securities with respect to which
the Company has received written requests for inclusion therein within 15 days
after the receipt of the Company's notice. The number of Demand Registrations
which may be requested shall be subject to the limitations set forth in
paragraphs 1(b) and 1(c)below.
(b) Long-Form Registrations. The holders of Registrable Securities
will be entitled to request one Long-Form Registration which is an IPO and two
Long-Form Registrations after the completion of an IPO in which the Company will
pay all Registration Expenses. In addition, the holders of a majority of
Medtronic Registrable Securities shall be entitled to request one Long-Form
Registration (other than an IPO), provided that the amount of Medtronic
Registrable Securities to be sold therein shall not be less than $2,000,000. A
registration will not count as one of the permitted Long-Form Registrations
until it has become effective, and no registration will count as one of the
permitted Long-Form Registrations unless the holders of Registrable Securities
are able to register and sell all of the Registrable Securities requested to be
included in such registration; provided that in any event the Company will pay
all Registration Expenses in connection with any
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registration initiated as a Long-Form Registration whether or not it has become
effective and whether or not all such Registrable Securities are able to be
sold; provided however, if the registration is withdrawn at the request of the
holders of Registrable Securities (other than as a result of the managing
underwriter advising such holders that the price at which such shares are likely
to be sold is less than 85% of the lowest price originally estimated by such
managing underwriter) it will count as one of the Long-Form Registrations. At
the request of the holders of a majority of the Registrable Securities
originally requesting a Long-Form Registration, such Long-Form Registration
shall be an underwritten registration.
(a) Short-Form Registrations. In addition to the Long-Form
Registrations provided pursuant to paragraph l(b), the holders of Registrable
Securities will be entitled to request two Short-Form Registrations in which the
Company will pay all Registration Expenses ("Company-paid Short-Form
Registrations") and an unlimited number of Short-Form Registrations in which the
holders of Registrable Securities will pay their share of Registration Expenses
as set forth in paragraph 5 hereof. Demand Registrations will be Short-Form
Registrations whenever the Company is permitted to use any applicable short
form. After the Company has become subject to the reporting requirements of the
Securities Exchange Act, the Company will use its best efforts to make
Short-Form Registrations on Form S-3 available for the sale of Registrable
Securities. A registration will not count as one of the permitted Company-paid
Short-Form Registrations until it has become effective, and no registration will
count as one of the Company-paid Short-Form Registrations unless the holders of
Registrable Securities are able to register and sell all of the Registrable
Securities requested to be included in such registration; provided that the
Company will pay all Registration Expenses in connection with any registration
initiated as a Company-paid Short-Form Registration, whether or not it has
become effective and whether or not all such Registrable Securities are able to
be sold; provided however, if the registration is withdrawn at the request of
the holders of Registrable Securities (other than as a result of the managing
underwriter advising such holders that the price at which such shares are likely
to be sold is less than 85% of the lowest price originally estimated by such
managing underwriter) it will count as one of the Company-paid Short-Form
Registrations.
(b) Priority on Demand Registration. The Company will not include
any Demand Registration any securities which are not Registrable Securities if
the managing underwriter determines that inclusion of such other securities
impairs the offering of the Registrable Securities, without the prior written
consent of the holders of a majority of the Registrable Securities included in
such registration. If a Demand Registration is an underwritten offering and the
managing underwriters advise the Company in writing that in their opinion the
number of Registrable Securities and, if permitted hereunder, other securities
requested to be included in such offering exceeds the number of Registrable
Securities and other securities, if any, which can be sold in an orderly manner
in such offering within a price range acceptable to the holders of a majority of
the Registrable Securities requesting registration, the Company will include in
such registration prior to the inclusion of any securities which are not
Registrable Securities the number of Registrable Securities requested to be
included which in the opinion of such underwriters can be sold in an orderly
manner within the price range of such offering, which shares shall be selected
from among those requested to be included as follows: first, all Series D
Registrable Securities and Medtronic Registrable Securities, pro rata among the
respective holders thereof on the basis of the amount of Series D Registrable
Securities and Medtronic Registrable Securities owned by each such holder, with
any remaining Registrable Securities selected from other Registrable Securities
requested to be included, pro rata among the respective holders thereof on the
basis of the amount of such Registrable Securities owned by each such holder.
Any Persons other than holders of Registrable
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Securities who participate in Demand Registrations which are not at the
Company's expense must pay their share of the Registration Expenses as provided
in paragraph 5 hereof.
(c) Restrictions on Long-Form Registrations. The Company will not be
obligated to effect any Long-Form Registration within six months after the
effective date of a previous Long-Form Registration. The Company may postpone
for up to six months the filing or the effectiveness of a registration statement
for a Demand Registration if the Company and the holders of a majority of the
Registrable Securities agree that such Demand Registration would reasonably be
expected to have an adverse effect on any proposal or plan by the Company or any
of its Subsidiaries to engage in any acquisition of assets (other than in the
ordinary course of business) or any merger, consolidation, tender offer or
similar transaction; provided that in such event, the holders of Registrable
Securities initially requesting such Demand Registration will be entitled to
withdraw such request and, if such request is withdrawn, such Demand
Registration will not count as one of the permitted Demand Registrations
hereunder and the Company will pay all Registration Expenses in connection with
such registration.
(d) Selection of Underwriters. The holders of a majority of the
Registrable Securities included in any Demand Registration will have the right
to select the investment banker(s) and manager(s) to administer the offering,
which investment banker(s) and manager(s) shall be reasonably acceptable to the
Company.
(e) Other Registration Rights. Except as provided in this Agreement,
the Company will not grant, and hereby represents and warrants that it has not
granted, to any Persons the right to request the Company to register any equity
securities of the Company, or any securities convertible or exchangeable into or
exercisable for such securities, without the prior written consent of the
holders of a majority of the Registrable Securities. Notwithstanding the
foregoing, the Company may grant piggyback registration rights in respect of the
Management Registrable Securities so long as such rights are (i) subordinate in
priority relative to the Registrable Securities in connection with all Demand
Registrations and (ii) pari passu or subordinate in priority relative to the
Registrable Securities in connection with all other registrations, and may grant
registration rights in respect of any other securities of the Company so long as
such rights are subordinate in priority relative to the Registrable Securities
in connection with all Demand Registrations and in connection with all other
registrations.
2. Piggyback Registrations.
(a) Right to Piggyback. Whenever the Company proposes to register
any of its securities under the Securities Act (other than pursuant to a Demand
Registration) and the registration form to be used may be used for the
registration of Registrable Securities (a "Piggyback Registration"), the Company
will give prompt written notice (in any event within ten business days after its
receipt of notice of any exercise of demand registration rights other than under
this Agreement) to all holders of Registrable Securities of its intention to
effect such a registration and will include in such registration all Registrable
Securities with respect to which the Company has received written requests for
inclusion therein within 15 days after the receipt of the Company's notice.
(b) Piggyback Expenses. The Registration Expenses of the holders of
Registrable Securities will be paid by the Company in all Piggyback
Registrations.
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(c) Priority on Primary Registrations. If a Piggyback Registration
is an underwritten primary registration on behalf of the Company, and the
managing underwriters advise the Company in writing that in their opinion the
number of securities requested to be included in such registration exceeds the
number which can be sold in an orderly manner in such offering within a price
range acceptable to the Company, the Company will include in such registration
(i) first, the securities the Company proposes to sell, (ii) second, the Series
D Registrable Securities, the Medtronic Registrable Securities and the
Management Registrable Securities requested to be included in such registration,
pro rata among the holders of such Series D Registrable Securities, Medtronic
Registrable Securities and Management Registrable Securities on the basis of the
number of shares owned by each such holder, (iii) third, the other Registrable
Securities requested to be included in such registration, pro rata among the
holders of such Registrable Securities on the basis of the number of such
Registrable Securities owed by each such holder and (iv) fourth, other
securities requested to be included in such registration.
(d) Priority on Secondary Registrations. If a Piggyback Registration
is an underwritten secondary registration on behalf of holders of the Company's
securities, and the managing underwriters advise the Company in writing that in
their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in an orderly manner in such
offering within a price range acceptable to the holders initially requesting
such registration, the Company will include in such registration (i) first, the
securities requested to be included therein by the holders requesting such
registration and the Series D Registrable Securities, the Medtronic Registrable
Securities and Management Registrable Securities requested to be included in
such registration, pro rata among the holders of such securities on the basis of
the number of securities owned by each such holder, and (ii) second, the other
Registrable Securities requested to be included in such registration, pro rata
among the holders of such other Registrable Securities on the basis of the
number of such other Registrable Securities owned by each such holder, and (iii)
third, other securities requested to be included in such registration.
(e) Selection of Underwriters. If any Piggyback Registration is an
underwritten offering, the selection of a nationally recognized investment
banker(s) and manager(s) for the offering must be made with the prior advice of
the holders of a majority of the Registrable Securities included in such
Piggyback Registration.
(f) Other Registrations. If the Company has previously filed a
registration statement with respect to Registrable Securities pursuant to
paragraph 1 or pursuant to this paragraph 2, and if such previous registration
has not been withdrawn or abandoned, the Company will not file or cause to be
effected any other registration of any of its equity securities or securities
convertible or exchangeable into or exercisable for its equity securities under
the Securities Act (except on Form S-8 or Form S-4 or any successor form),
whether on its own behalf or at the request of any holder or holders of such
securities, until a period of at least 180 days has elapsed from the effective
date of such previous registration.
3. Holdback Agreements.
(a) Each holder of Registrable Securities agrees not to effect any
public sale or distribution (including sales pursuant to Rule 144) of equity
securities of the Company, or any securities convertible into or exchangeable or
exercisable for such securities, during the seven days prior to and the 90-day
period beginning on the effective date of an IPO (or up to 180 days if requested
by the managing underwriter, and except for sales of securities as part of such
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underwritten registered offering), unless the underwriters managing the
registered public offering otherwise agree.
(b) The Company agrees (i) not to effect any public sale or
distribution of its equity securities, or any securities convertible into or
exchangeable or exercisable for such securities, during the seven days prior to
and during the 90-day period beginning on the effective date of any underwritten
Demand Registration or any underwritten Piggyback Registration (except as part
of such underwritten registration or pursuant to registrations on Form S-8 or
Form S-4 or any successor form), unless the underwriters managing the registered
public offering otherwise agree, and (ii) to cause each holder of its Common
Stock, or any securities convertible into or exchangeable or exercisable for
Common Stock, purchased from the Company at any time after the date of this
Agreement (other than in a registered public offering) to agree not to effect
any public sale or distribution (including sales pursuant to Rule 144) of any
such securities during such period (except as part of such underwritten
registration, if otherwise permitted), unless the underwriters managing the
registered public offering otherwise agree.
4. Registration Procedures. Whenever the holders of Registrable
Securities have requested that any Registrable Securities be registered pursuant
to this Agreement, the Company will use its best efforts to effect the
registration and the sale of such Registrable Securities in accordance with the
intended method of disposition thereof, and pursuant thereto the Company will as
expeditiously as possible:
(a) prepare and file with the Securities and Exchange Commission a
registration statement with respect to such Registrable Securities and use its
best efforts to cause such registration statement to become effective (provided
that before filing a registration statement or prospectus or any amendments or
supplements thereto, the Company will furnish to the counsel selected by the
holders of a majority of the Registrable Securities covered by such registration
statement copies of all such documents proposed to be filed, which documents
will be subject to the review of such counsel);
(b) prepare and file with the Securities and Exchange Commission
such amendments and supplements to such registration statement and the
prospectus used in connection therewith as may be necessary to keep such
registration statement effective for a period of not less than six months and
comply with the provisions of the Securities Act with respect to the disposition
of all securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the sellers thereof set
forth in such registration statement;
(c) furnish to each seller of Registrable Securities such number of
copies of such registration statement, each amendment and supplement thereto,
the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as such seller may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such seller;
(d) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions as
any seller reasonably requests and do any and all other acts and things which
may be reasonably necessary or advisable to enable such seller to consummate the
disposition in such jurisdictions of the Registrable Securities owned by such
seller (provided that the Company will not be required to (i) qualify generally
to do business in any jurisdiction where it would not otherwise be required to
qualify but for this subparagraph,
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(ii) subject itself to taxation in any such jurisdiction or (iii) consent to
general service of process in any such jurisdiction);
(e) notify each seller of such Registrable Securities, at any time
when a prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in such registration statement contains an untrue statement
of a material fact or omits any fact necessary to make the statements therein
not misleading, and, at the request of any such seller, the Company will prepare
a supplement or amendment to such prospectus so that, as thereafter delivered to
the purchasers of such Registrable Securities, such prospectus will not contain
an untrue statement of a material fact or omit to state any fact necessary to
make the statements therein not misleading;
(f) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed and, if not so listed, to be listed on the NASD automated quotation
system and, if listed on the NASD automated quotation system, use its best
efforts to secure designation of all such Registrable Securities covered by such
registration statement as a NASDAQ "national market system security" within the
meaning of Rule 11Aa2-1 of the Securities and Exchange Commission or, failing
that, to secure NASDAQ authorization for such Registrable Securities and,
without limiting the generality of the foregoing, to arrange for at least two
market makers to register as such with respect to such Registrable Securities
with the NASD;
(g) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement;
(h) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the holders of
a majority of the Registrable Securities being sold or the underwriters, if any,
reasonably request in order to expedite or facilitate the disposition of such
Registrable Securities (including, without limitation, effecting a stock split
or a combination of shares);
(i) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other agent retained by
any such seller or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the Company's
officers, directors, employees and independent accountants to supply all
information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement;
(j) otherwise use its best efforts to comply with all applicable
rules and regulations of the Securities and Exchange Commission, and make
available to its security holders, as soon as reasonably practicable, an
earnings statement covering the period of at least twelve months beginning with
the first day of the Company's first full calendar quarter after the effective
date of the registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder; and
(k) obtain a cold comfort letter from the Company's independent
public accountants in customary form and covering such matters of the type
customarily covered by cold comfort letters as the holders of a majority of the
Registrable Securities being sold reasonably request (provided that such letter
is otherwise being provided to the underwriter in such offering and
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that such Registrable Securities constitute at least 20% of the securities
covered by such registration statement);
If any such registration or comparable statement refers to any holder
by name or otherwise as the holder of any securities of the Company and in its
sole and exclusive judgment, such holder is or might be deemed to be a
controlling person of the Company, such holder shall have the right to require
(i) the insertion therein of language, in form and substance satisfactory to
such holder and presented to the Company in writing, to the effect that the
holding by such holder of such securities is not to be construed as a
recommendation by such holder of the investment quality of the Company's
securities covered thereby and that such holding does not imply that such holder
will assist in meeting any future financial requirements of the Company, or (ii)
in the event that such reference to such holder by name or otherwise is not
required by the Securities Act or any similar Federal statute then in force, the
deletion of the reference to such holder; provided that with respect to this
clause (ii) such holder shall furnish to the Company an opinion of counsel to
such effect, which opinion and counsel shall be reasonably satisfactory to the
Company.
5. Registration Expenses.
(a) All reasonable expenses incident to the Company's performance of
or compliance with this Agreement, including without limitation all registration
and filing fees, fees and expenses of compliance with securities or blue sky
laws, printing expenses, messenger and delivery expenses, and fees and
disbursements of counsel for the Company and all independent certified public
accountants, underwriters (excluding discounts and commissions) and other
Persons retained by the Company (all such expenses being herein called
"Registration Expenses"), will be borne as provided in this Agreement, except
that the Company will, in any event, pay its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any annual audit or
quarterly review, the expense of any liability insurance and the expenses and
fees for listing the securities to be registered on each securities exchange on
which similar securities issued by the Company are then listed or on the NASD
automated quotation system.
(b) In connection with each Demand Registration and each Piggyback
Registration for which the Company is required to pay Registration Expenses
pursuant to Sections 5(a), l(b) or l(c) hereof, and in which at least 50,000
shares of Common Stock are requested to be included (as appropriately adjusted
for stock splits, stock dividends, combinations and similar events), the Company
will reimburse the holders of Registrable Securities covered by such
registration for the reasonable fees and disbursements of one counsel chosen by
the holders of a majority of the Registrable Securities initially requesting
such registration.
(c) To the extent Registration Expenses are not required to be paid
by the Company, each holder of securities included in any registration hereunder
will pay those Registration Expenses allocable to the registration of such
holder's securities so included, and any Registration Expenses not so allocable
will be borne by all sellers of securities included in such registration in
proportion to the aggregate selling price of the securities to be so registered.
6. Indemnification.
(a) The Company agrees to indemnify, to the extent permitted by law,
each holder of Registrable Securities, its officers and directors and each
Person who controls such holder
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(within the meaning of the Securities Act) against all losses, claims, damages,
liabilities and expenses caused by any untrue or alleged untrue statement of
material fact contained in any registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or any omission or
alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading, except insofar as the same are
caused by or contained in any information furnished in writing to the Company by
such holder expressly for use therein or by such holder's failure to deliver a
copy of the registration statement or prospectus or any amendments or
supplements thereto after the Company has furnished such holder with a
sufficient number of copies of the same. In connection with an underwritten
offering, the Company will indemnify such underwriters, their officers and
directors and each Person who controls such underwriters (within the meaning of
the Securities Act) to the same extent as provided above with respect to the
indemnification of the holders of Registrable Securities.
(b) In connection with any registration statement in which a holder
of Registrable Securities is participating, each such holder will furnish to the
Company in writing such information and affidavits as the Company reasonably
requests for use in connection with any such registration statement or
prospectus and, to the extent permitted by law, will indemnify the Company, its
directors and officers and each Person who controls the Company (within the
meaning of the Securities Act) against any losses, claims, damages, liabilities
and expenses resulting from any untrue or alleged untrue statement of material
fact contained in the registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or any omission or
alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading, but only to the extent that such
untrue statement or omission is contained in any information or affidavit so
furnished in writing by such holder; provided that the obligation to indemnify
will be individual to each holder and will be limited to the net amount of
proceeds received by such holder from the sale of Registrable Securities
pursuant to such registration statement.
(c) Any Person entitled to indemnification hereunder will (i) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification and (ii) unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party. If such defense is assumed, the
indemnifying party will not be subject to any liability for any settlement made
by the indemnified party without its consent (but such consent will not be
unreasonably withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim will not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim.
(d) The indemnification provided for under this Agreement will
remain in full force and effect regardless of any investigation made by or on
behalf of the indemnified party or any officer, director or controlling Person
of such indemnified party and will survive the transfer of securities. The
Company also agrees to make such provisions, as are reasonably requested by any
indemnified party, for contribution to such party in the event the Company's
indemnification is unavailable for any reason.
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7. Participation in Underwritten Registrations. No Person may
participate in any registration hereunder which is underwritten unless such
Person (a) agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Person or Persons entitled hereunder
to approve such arrangements and (b) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements; provided that no
holder of Registrable Securities included in any underwritten registration shall
be required to make any representations or warranties to the Company or the
underwriters other than representations and warranties regarding such holder and
such holder's intended method of distribution.
8. Definitions.
"Certificate of Determination" means the certificate of determination
establishing the terms and relative rights and preferences of the Series D
Preferred filed by the Company with the Secretary of State of California.
"Common Stock" means the Company's common stock, no par value per
share.
"Management Registrable Securities" means any shares of Common Stock
held as of the date hereof, or acquired hereafter through the exercise of stock
options, by Xxxxxx X. Xxxxxx or Xxxxx Xxxx.
"Registrable Securities" means (i) any Common Stock issued or issuable
(A) upon conversion of the Series D Preferred or upon exercise of the Warrants;
provided that no Common Stock issuable upon exercise of the Warrant shall be
deemed to be Registrable Securities until that Warrant has become exercisable
under the terms thereof (the "Series D Registrable Securities"), (B) upon
exercise of warrants (and any warrant or warrants issued in exchange,
substitution or replacement thereof) issued pursuant to certain Bridge Financing
Agreements by and among the Company and the Lenders listed therein to purchase
up to 2,052,635 shares of Common Stock (as such number of shares may be adjusted
pursuant to the anti-dilution provisions of such warrants), (C) upon conversion
of the Series E Preferred Stock, (D) upon exercise of warrants (and any warrant
or warrants issued in exchange, substitution or replacement thereof) to purchase
up to 631,500 shares of Common Stock (as such number of shares may be adjusted
pursuant to the anti-dilution provisions of such warrants), issued in connection
with the sale of Series E Preferred Stock, and (E) to Medtronic upon conversion
of the Medtronic Loan pursuant to that certain Loan Agreement between the
Company and Medtronic, Inc. and any additional shares purchased by Medtronic as
an Additional Minority Investment pursuant to the Principal Terms attached as
Exhibit C to such Loan Agreement (collectively, the "Medtronic Registrable
Securities"), (ii) any Common Stock issued or issuable with respect to the
Registrable Securities referred to in clause (i) by way of a stock dividend or
stock split or in connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization, and (iii) any other shares of
Common Stock held by persons holding securities described in clauses (i) or (ii)
above. As to any particular Registrable Securities, such securities will cease
to be Registrable Securities when they have been distributed to the public
pursuant to an offering registered under the Securities Act or sold to the
public through a broker, dealer or market-maker in compliance with Rule 144
under the Securities Act (or any similar rule then in force). In addition,
Registrable Securities shall cease to be Registrable Securities at such time as
(a) such securities represent less than 15% of the Registrable Securities
existing as of the date hereof, and (b) such securities are freely saleable
without restriction or limitation pursuant to rule 144(k) under the Securities
Act (or under any similar rule then in force). Except as provided in (i)
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above with respect to the Warrant, for purposes of this Agreement, a person will
be deemed to be a holder of Registrable Securities whenever such person has the
right to acquire directly or indirectly such Registrable Securities (whether
pursuant to the terms of any Securities or instruments convertible into or
exercisable or exchangeable for Registrable Securities, or otherwise, but
disregarding any restrictions or limitations upon the exercise of such right),
whether or not such acquisition has actually been effected.
"Series D Preferred" means the Company's Series D Convertible Preferred
Stock, no par value per share.
"Warrant" means the Stock Purchase Warrant issued pursuant to the
Purchase Agreement and any warrant or warrants issued in exchange, substitution
or replacement thereof.
Unless otherwise stated, other capitalized terms contained herein have
the meanings set forth in the Purchase Agreement.
9. Miscellaneous.
(a) No Inconsistent Agreements. The Company will not hereafter enter
into any agreement with respect to its securities which is inconsistent with or
violates the rights granted to the holders of Registrable Securities in this
Agreement.
(b) Adjustments Affecting Registrable Securities. The Company will
not take any action, or permit any change to occur, with respect to its
securities which would adversely affect the ability of the holders of
Registrable Securities to include such Registrable Securities in a registration
undertaken pursuant to this Agreement or which would adversely affect the
marketability of such Registrable Securities in any such registration
(including, without limitation, effecting a stock split or a combination of
shares).
(c) Remedies. Any Person having rights under any provision of this
Agreement will be entitled to enforce such rights specifically to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or other security) for specific performance and for other injunctive
relief in order to enforce or prevent violation of the provisions of this
Agreement.
(d) Amendments and Waivers. Except as otherwise provided herein, the
provisions of this Agreement may be amended or waived only upon the prior
written consent of (i) the Company, (ii) the holders of a majority of the
Registrable Securities and (iii) the holders of a majority of the Medtronic
Registrable Securities; provided, that the consent of the holders of the
Medtronic Registrable Securities shall not be required for any amendment or
waiver which will not have an adverse effect on the holders of Medtronic
Registrable Securities relative to any other holder of Registrable Securities
and will not provide a benefit to any other holder of Registrable Securities
that the holders of Medtronic Registrable Securities do not receive.
(e) Successors and Assigns. All covenants and agreements in this
Agreement by or on behalf of any of the parties hereto will bind and inure to
the benefit of the respective
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successors and assigns of the parties hereto whether so expressed or not. In
addition, whether or not any express assignment has been made, the provisions of
this Agreement which are for the benefit of purchasers or holders of Registrable
Securities are also for the benefit of, and enforceable by, any subsequent
holder of Registrable Securities. Notwithstanding the foregoing, the rights,
benefits and obligations of this Agreement shall not be assignable to, or
enforceable by or against any subsequent holder of Registrable Securities unless
such holder has acquired at least 50,000 Shares of Registrable Securities (as
appropriately adjusted for stock splits, stock dividends, combinations and
similar events).
(f) Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision will be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
(g) Counterparts. This Agreement may be executed simultaneously in
two or more counterparts, any one of which need not contain the signatures of
more than one party, but all such counterparts taken together will constitute
one and the same Agreement.
(h) Descriptive Headings. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
(i) Governing Law. This Agreement shall be governed by and construed
in accordance with the domestic laws of the State of California without giving
effect to any choice or conflict of law provision or rule (whether of the State
of California or any other jurisdiction) that would cause the application of the
laws of any jurisdiction other than the State of California. Any dispute
relating hereto shall be heard in the state or federal courts of Santa Xxxxxxx
County, California, and the parties agree to jurisdiction and venue therein.
(j) Notices. All notices, demands or other communications to be
given or delivered under or by reason of the provisions of this Agreement shall
be in writing and shall be deemed to have been given when delivered personally
to the recipient, sent to the recipient by reputable express courier service
(charges prepaid), telecopied (with hard copy to follow) or mailed to the
recipient by certified or registered mail, return receipt requested and postage
prepaid. Such notices, demands and other communications will be sent to the
Investor and to the Company at the address or telecopy number indicated below:
Notices to the Investor:
Chase Manhattan Capital Corporation
One Chase Manhattan Plaza, 8th Floor
New York, N.Y. 10081
Attn: Xx. Xxxxxxx X. Xxxx
Vice President
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with a copy to:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxxxxx, Esq.
To the Company:
Computer Motion, Inc.
000-X Xxxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xx. Xxxxxx X. Xxxxxx
Chairman
with a copy to:
Stradling, Yocca, Xxxxxxx & Xxxxx
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx Xxxxx, XX 00000
Attn: Xxxxxxxx X. Xxxx, Esq.
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
(k) Construction. Where specific language is used to clarify by
example a general statement contained herein, such specific language shall not
be deemed to modify, limit or restrict in any manner the construction of the
general statement to which it relates. The language used in this agreement shall
be deemed to be the language chosen by the parties to express their mutual
intent, and no rule of strict construction shall be applied against any party.
IN WITNESS WHEREOF, the parties have executed this Registration
Agreement as of the date first written above.
COMPUTER MOTION, INC.
By:________________________________
Its:________________________________
CHASE MANHATTAN CAPITAL CORPORATION
By:________________________________
Its:________________________________
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