FORM OF
REGISTRATION RIGHTS AGREEMENT
between
MERIDIAN MEDICAL TECHNOLOGIES, INC.
and
NOMURA HOLDING AMERICA INC.
Dated as of April 30, 1998
687583v1
TABLE OF CONTENTS
Page
1. Definitions...........................................1
2. Demand Registration...................................3
3. Piggyback Registration................................6
4. Registration Procedures...............................8
5. Registration Expenses................................15
6. Preparation; Reasonable Investigation................16
7. Sale of Warrants to Underwriters.....................17
8. Indemnification......................................17
9. Contribution.........................................20
10. Current Public Information...........................21
11. Registration Rights to Others........................22
12. Adjustments Affecting Registrable Securities.........22
13. Rule 144 and Rule 144A...............................23
14. Amendments and Waivers...............................23
15. Nominees for Beneficial Owners.......................23
16. Assignment...........................................24
17. Miscellaneous........................................24
(a) Further Assurances..............................24
(b) Headings........................................25
(c) No Inconsistent Agreements......................25
(d) Remedies........................................25
(e) Entire Agreement................................25
(f) Notices.........................................25
(g) Governing Law...................................26
(h) Severability....................................26
(i) Counterparts....................................26
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REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of April 30,
1998 (this "Agreement"), by and between MERIDIAN MEDICAL
TECHNOLOGIES, INC., a Delaware corporation (the "Company") and
NOMURA HOLDING AMERICA INC., a Delaware corporation (the
"Holder").
The Company desires to grant to the Holder certain
registration rights with respect to certain warrants to purchase
204,770 shares (subject to adjustment) of Common Stock, $0.10 par
value per share, of the Company which the Holder is purchasing
from the Company on the date hereof pursuant to the Note and
Warrant Purchase Agreement (as defined below).
In consideration of the premises and the mutual
agreements set forth herein, the parties hereto hereby agree as
follows:
1. Definitions{ TC "1. Definitions" \f C \l "1" }.
Unless otherwise defined herein, capitalized terms used herein
and in the recitals above shall have the following meanings:
"Business Day" means any day except a Saturday, Sunday
or a legal holiday in New York City.
"Commission" means the United States Securities and
Exchange Commission and any successor agency, authority,
commission or government body.
"Common Stock" means the shares of common stock, par
value $0.10 per share, of the Company.
"Exchange" means the principal stock exchange or market
on which the Common Stock is traded, which is presently NASDAQ.
"Exchange Act" means the Securities Exchange Act of
1934, as amended, or any similar federal statute then in effect,
and a reference to a particular section thereof shall include a
reference to a comparable section, if any, of any such similar
statute.
"ING" means ING (U.S.) Capital Corporation, a Delaware
corporation.
"ING Securities" means those Securities with respect to
which ING has been granted registration rights pursuant to the
Registration Rights Agreement dated as of April 15, 1996 by and
between the Company and ING, as the same has been or may be
amended (the "ING Registration Rights Agreement").
687583v1
"Majority Holders" means at any time the holders of
Warrants exercisable for a majority of the shares of Warrant
Stock issuable under the Warrants at the time outstanding.
"NASD" means the National Association of Securities
Dealers, Inc. and any successor organization or entity.
"NASDAQ" means the Nasdaq Stock Market and includes The
Nasdaq National Market and The Nasdaq SmallCap Market.
"Note and Warrant Purchase Agreement" means the Note
and Warrant Purchase Agreement dated as of April 30, 1998, by and
between the Company and the Holder.
"Person" means and includes an individual, a
partnership, a joint venture, a corporation, a company, a trust,
an unincorporated organization and a government or any department
or agency thereof.
"Registrable Securities" shall mean (a) all shares of
Common Stock issued or issuable upon the exercise of any Warrant,
and (b) any Securities issued or issuable by the Company with
respect to shares of Common Stock referred to in the foregoing
clause (a) by way of a stock dividend or stock split or in
connection with a combination or subdivision of shares,
reclassification, merger, consolidation or other reorganization
of the Company; provided, however, that as to any particular
Registrable Securities that have been issued, such Securities
shall cease to be Registrable Securities when (i) a registration
statement with respect to the sale of such Securities shall have
become effective under the Securities Act and such Securities
shall have been disposed of under such registration statement,
(ii) they shall have been distributed to the public pursuant to
Rule 144, (iii) they shall have been otherwise transferred or
disposed of, and new certificates therefor not bearing a legend
restricting further transfer shall have been delivered by the
Company, and subsequent transfer or disposition of them shall not
require their registration or qualification under the Securities
Act or any similar state law then in force, or (iv) they shall
have ceased to be outstanding. For the purposes of Sections 2, 3
and 4 of this Agreement, the holder of any Warrant shall be
deemed to be a holder of the Registrable Securities issuable upon
exercise of such Warrant, and such Registrable Securities shall
be deemed to be issued and outstanding.
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"Registration Expenses" shall have the meaning set
forth in Section 5 hereof.
"Securities" means any debt or equity Securities of the
Company, whether now or hereafter authorized, any instrument
convertible into or exchangeable for Securities or a Security,
and any option, warrant or other right to purchase or acquire any
Security. "Security" shall mean one of the Securities.
"Securities Act" means the Securities Act of 1933, as
amended, or any similar federal statute then in effect, and a
reference to a particular section thereof shall include a
reference to a comparable section, if any, of any such similar
statute.
"Transfer" means any transfer, sale, assignment,
pledge, hypothecation or other disposition of any interest.
"Transferor" and "Transferee" have correlative meanings.
"Underwritten Offering" means a public offering of
Securities distributed by means of a firm commitment
underwriting.
"Warrant" means the Warrants issued and sold pursuant
to the Note and Warrant Purchase Agreement, including, without
limitation, any other warrants of like tenor issued in
substitution or exchange for any thereof pursuant to the
provisions of Section 2(c) or 2(d) thereof or Section 2(c) or
2(d) of any of such other Warrants.
"Warrant Stock" means Common Stock issuable upon
exercise of any Warrants or Warrants.
2. Demand Registration{ TC "2. Demand Registration"
\f C \l "1" }
(a) Subject to the terms and conditions set forth herein,
at any time hereafter, the Majority Holders may request (such
requesting holders being herein called in each case the
"Requesting Holders") that the Company effect the registration
under the Securities Act of all or part of such holders'
Registrable Securities on Form S-1 or any similar long-form
registration or, if available, on Form S-2 or S-3 or any similar
short-form registration (all registrations requested pursuant to
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this Section 2(a) are referred to herein as "Demand
Registrations"). Each such request for registration shall
specify the approximate number of Registrable Securities
requested to be registered, and may at the election of the
Requesting Holders specify the intended method or methods of
disposition thereof (which may include, without limitation, a
"shelf" offering pursuant to Rule 415 under the Securities Act,
or an Underwritten Offering). Within 10 days after receipt of
such request, the Company will promptly give written notice of
such requested registration to all other holders of Registrable
Securities, and, subject to the provisions of Section 2(f)
hereof, will include in such registration all Registrable
Securities with respect to which the Company has received written
requests for inclusion therein within 20 days after the receipt
of the Company's notice; provided, however, that the Company
shall not be obligated to file a registration statement relating
to any Demand Registration under this Section 2(a):
(i) unless the Company shall have received requests
for such registration with respect to at least 50% of the
Registrable Securities then outstanding; or
(ii) within a period of six months after the effective
date of any registration statement filed by the Company with
respect to which the holder of any Warrant or of any shares
of Warrant Stock issued upon exercise hereof shall have been
afforded the opportunity to register shares of Warrant Stock
in accordance with the provisions of Section 3 hereof.
(b) The holders of Registrable Securities will be entitled
to request one Demand Registration. The Company will pay all
Registration Expenses incurred in connection with such Demand
Registration. A registration will not count as the permitted
Demand Registration (i) unless and until it has become effective,
(ii) unless at least 90% of the Registrable Securities initially
requested to be registered by the holders of Registrable
Securities requesting such registration shall be covered by the
Demand Registration at the time it becomes effective and (iii)
unless the Demand Registration remains effective for the minimum
period required under Section 4(a)(i) below; provided that in any
event, except as provided in Section 2(d), the Company will pay
all Registration Expenses in connection with any registration
initiated as a Demand Registration whether or not it has become
effective.
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660958v6
(c) The Company may postpone for not more than 90 days
within or during any period of 365 consecutive days with respect
to any request for a Demand Registration hereunder, the filing or
effectiveness of a registration statement under Section 2(a) if
the Board of Directors of the Company determines in good faith
that such registration might reasonably be expected to have an
adverse effect on any proposal or plan by the Company to engage
in any sale or 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 Requesting
Holders will be entitled to withdraw such request, and if such
request is withdrawn, such registration will not count as the
permitted Demand Registration under this Section 2 and the
Company will pay all Registration Expenses in connection with
such withdrawn registration request.
(d) A registration requested pursuant to this Section 2
will not be deemed to have been effected unless it has become
effective under the Securities Act; provided that (i) if after a
registration has become so effective, the offering of Registrable
Securities pursuant to such registration is terminated, suspended
or interfered with by any stop order, injunction or other order
or requirement of the Commission or other governmental agency or
court, such registration will be deemed not to have been
effected; and (ii) if before a registration becomes effective,
the offering of Registrable Securities pursuant to such
registration is terminated at the request of all of the
Requesting Holders, such registration will be deemed to have been
effected unless such Requesting Holders reimburse the Company for
all reasonable expenses incurred by the Company in connection
with such registration prior to its termination or which the
Company shall have been thereafter required to incur as a result
of actions on the part of the Requesting Holders.
(e) In the case of any Demand Registration which involves
an Underwritten Offering, the Company shall have the right to
select the investment banker (or investment bankers) that shall
manage the offering (collectively, the "managing underwriter"),
subject to the approval of the holders of a majority of the
Registrable Securities being so registered which approval shall
not be unreasonably withheld.
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(f) Except with the prior written consent of the Majority
Holders, the Company will include in a Demand Registration only
(i) Registrable Securities, (ii) ING Securities to the extent ING
requests that such ING Securities be included pursuant to ING's
"piggyback" registration rights granted under the ING
Registration Rights Agreement, (iii) authorized but unissued or
treasury shares of Common Stock which the Company desires to
issue and sell ("Company Securities"), and (iv) other outstanding
shares of Common Stock which the Company shall have been
requested to register ("Other Securities"); provided that if a
Demand Registration involves an Underwritten Offering and the
managing underwriter advises the Company that, in its opinion,
the number of Securities proposed to be included in such offering
exceeds the number of Securities which can be sold therein
without adversely affecting the marketability of the offering,
then the Company will promptly so advise each holder of
Registrable Securities that has requested registration, and,
[subject to Section 2(a)] of the ING Registration Rights
Agreement and subject to Section 10(e) of the Estate Warrant (as
defined in the ING Registration Rights), will include in such
registration first, Registrable Securities and ING Securities
requested to be so included by the respective holders thereof,
allocated pro rata among such holders based on the number of
Registrable Securities or ING Securities, as the case may be,
with respect to which each such holder has requested
registration, second, Company Securities which the Company
desires to include in such registration, and, third, Other
Securities requested to be included in such registration,
allocated pro rata among the holders thereof based on the number
of such Other Securities with respect to which each such holder
has requested registration, until the aggregate number of
Securities included in such Demand Registration is equal to the
number thereof that, in the opinion of such managing underwriter,
can be sold without adversely affecting the marketability
thereof.
(g) The Company agrees to include in any such registration
statement filed pursuant to Section 2(a) hereof all information
which any Requesting Holder, upon advice of counsel, shall
reasonably request.
3. Piggyback Registration{ TC "3. Piggyback
Registration" \f C \l "1" }. (a) If the Company at any time
proposes to register under the Securities Act any shares of its
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Common Stock now or hereafter authorized (other than a
registration on Form S-4 or S-8 or any successor or similar forms
thereto and other than pursuant to a registration under Section 2
hereof), whether for sale for its own account or for the account
of any selling stockholder, on a form and in a manner that would
permit registration of Registrable Securities for sale to the
public under the Securities Act, it will give written notice to
all the holders of Registrable Securities promptly, and in any
event no later than 30 days before the initial filing with the
Commission of a registration statement, of its intention to do
so, describing such Securities and specifying the form and manner
and the other relevant facts involved in such proposed
registration (including, without limitation, (i) whether or not
such registration will be in connection with an underwritten
offering of Securities and, if so, the identity of the managing
underwriter and whether such offering will be pursuant to a "best
efforts" or "firm commitment" underwriting, (ii) the price at
which such Securities are reasonably expected to be sold to the
public, and (iii) the amount of the underwriting discount
reasonably expected to be incurred in connection therewith).
Upon the written request of any such holder delivered to the
Company within 20 calendar days after the receipt of any such
notice (which request shall specify the Registrable Securities
intended to be disposed of by such holder and the intended method
of disposition thereof), the Company will (subject to the
provisions of Section 3(d) hereof), include in such registration
all of the Registrable Securities that the Company has been so
requested to register; provided, however, that if, at any time
after giving such written notice of its intention to register any
Securities and prior to the effective date of the registration
statement filed in connection with such registration, the Company
shall determine for any reason not to register such Securities,
the Company may, at its election, give written notice of such
determination to each holder of Registrable Securities who made a
request as hereinabove provided and thereupon the Company shall
be relieved of its obligation to register any Registrable
Securities in connection with such registration (but not from its
obligation to pay the Registration Expenses in connection
therewith), without prejudice, however, to the rights of the
holders of Registrable Securities under Section 2 hereof. No
registration effected under this Section 3 shall relieve the
Company of its obligation to effect a Demand Registration under
Section 2 hereof.
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(b) The Company shall not be obligated to effect any
registration of Registrable Securities under this Section 3
incidental to the registration of any of its Securities in
connection with mergers, acquisitions, exchange offers, dividend
reinvestment plans or stock option or other employee benefit
plans.
(c) The Registration Expenses incurred in connection with
each registration of Registrable Securities requested pursuant to
this Section 3 shall be paid by the Company.
(d) If a registration pursuant to this Section 3 involves
an Underwritten Offering and the managing underwriter advises the
Company that, in its opinion, the number of Securities proposed
to be included in such offering exceeds the number of Securities
which can be sold therein without adversely affecting the
marketability of the offering, then the Company will promptly so
advise each holder of Registrable Securities that has requested
registration, and, subject to Sections 2(a) and 2(b) of the ING
Registration Rights Agreement and Sections 10(c) and 10(e) of the
Estate Warrant, will include in such registration first, Company
Securities which the Company desires to include in such
registration, second, Registrable Securities and ING Securities
requested to be included therein, allocated pro rata among the
holders of Registrable Securities or ING Securities, as the case
may be, based on the number of Registrable Securities with
respect to which each such holder has requested registration,
and, third, Other Securities requested to be included in such
registration, allocated pro rata among the holders thereof based
on the number of such Other Securities with respect to which each
such holder has requested registration, in each case until the
aggregate number of Securities included in such registration is
equal to the number thereof that, in the opinion of such managing
underwriter, can be sold without adversely affecting the
marketability thereof.
(e) In connection with any registration pursuant to this
Section 3 which involves an Underwritten Offering, the Company
shall have the right in its sole discretion to select the
managing underwriter with respect to the offering.
4. Registration Procedures{ TC "4. Registration
Procedures" \f C \l "1" }. (a) Whenever any holders of
Registrable Securities have requested that any Registrable
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Securities be registered pursuant to Section 2 or 3 hereof,
subject to the applicable terms and conditions of Sections 2 and
3 hereof, the Company will use its best efforts to effect the
registration of such Securities under the Securities Act and the
sale thereof in accordance with the intended method of
disposition thereof, and in connection therewith the Company
will, as expeditiously as reasonably possible:
(i) prepare and, in any event within 90 calendar days
after the end of the period within which requests for
registration may be given to the Company, file with the
Commission a registration statement with respect to such
Registrable Securities and within 60 days of such filing (or
within such shorter period as may be reasonably practicable)
use its best efforts cause such registration statement to
become and remain effective until the earlier of (A) six
months or, if such registration statement relates to an
Underwritten Offering, such longer period as in the opinion
of counsel for the underwriters a prospectus is required by
law to be delivered in connection with sales of Registrable
Securities by an underwriter or dealer, or (B) such shorter
period as will terminate when all of the Securities covered
by such registration statement have been disposed of in
accordance with the intended methods of disposition by the
seller or sellers thereof set forth in such registration
statement (but in any event not before the expiration of any
longer period required under the Securities Act);
(ii) prepare and file with the Commission such
amendments (including post-effective amendments) and
supplements to such registration statement and the
prospectus used in connection therewith as may be necessary
to keep such registration statement effective and to 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 seller or sellers
thereof set forth in such registration statement;
(iii) prior to filing with the Commission any such
registration statement, prospectus, or amendment or
supplement thereto, furnish copies thereof to counsel for
the sellers of Registrable Securities under such
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registration statement, which documents will be subject to
review by such counsel;
(iv) furnish to each seller of Registrable Securities
covered by the registration statement and to each
underwriter, if any, of such 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 public sale or
other disposition of the Registrable Securities owned by
such seller;
(v) use its best efforts to register or qualify such
Registrable Securities covered by such registration
statement under such other securities or Blue Sky laws of
such jurisdictions as each seller shall reasonably request,
and do any and all other acts and things which may be
reasonably necessary or advisable to enable such seller to
consummate the disposition of the Registrable Securities
owned by such seller, in such jurisdictions, except that the
Company shall not for any such purpose be required (A) to
qualify to do business as a foreign corporation in any
jurisdiction where, but for the requirements of this Section
4(a), it is not then so qualified, or (B) to subject itself
to taxation in any such jurisdiction, or (C) to take any
action which would subject it to general or unlimited
service of process in any such jurisdiction where it is not
then so subject;
(vi) use its best efforts to cause such Registrable
Securities covered by such registration statement to be
registered or qualified with or approved by such other
governmental agencies or authorities (including, without
limitation, state securities commissions) as may be
necessary to enable the seller or sellers thereof to
consummate the disposition of such Registrable Securities;
(vii) immediately notify each seller of Registrable
Securities covered by such registration statement, at any
time when a prospectus relating thereto is required to be
delivered under the Securities Act within the appropriate
period mentioned in Section 4(a)(i) hereof, if the Company
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becomes aware that the prospectus included in such
registration statement, as then in effect, includes an
untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of
the circumstances then existing, and, at the request of any
such seller, deliver a reasonable number of copies of an
amended or supplemental prospectus as may be necessary so
that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus shall not include an
untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of
the circumstances then existing;
(viii) cause all Registrable Securities covered by
the registration statement to be listed on each securities
exchange on which similar securities issued by the Company
are then listed or, if not so listed, to be listed on NASDAQ
or such national securities exchange as the managing
underwriter of such offering, if any, may designate;
(ix) provide a transfer agent and registrar for all
such Registrable Securities not later than the effective
date of such registration statement;
(x) 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;
(xi) 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;
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(xii) otherwise use its best efforts to comply with
all applicable rules and regulations of the Commission and
make generally available to its Security holders, in each
case as soon as practicable, but not later than 45 calendar
days after the close of the period covered thereby (90
calendar days in case the period covered corresponds to a
fiscal year of the Company), an earnings statement of the
Company which will satisfy the provisions of Section 11(a)
of the Securities Act;
(xiii) in the event of the issuance of any stop
order suspending the effectiveness of a registration
statement, or of any order suspending or preventing the use
of any related prospectus or suspending the qualification of
any Registrable Securities included in such registration
statement for sale in any jurisdiction, the Company will use
its reasonable efforts promptly to obtain the withdrawal of
such order;
(xiv) obtain a "cold comfort" letter, dated the
effective date of such registration statement (and, if such
registration involves an Underwritten Offering, dated the
date of the closing under the underwriting agreement),
signed by the Company's independent public accountants, in
customary form and covering such matters as are customarily
covered by comfort letters by independent public accountants
in such public offerings and such other financial matters as
the holders of a majority of the Registrable Securities
being sold may reasonably request; and
(xv) furnish a legal opinion of the Company's counsel,
dated the effective date of such registration statement
(and, if such registration involves an Underwritten
Offering, dated the date of the closing under the
underwriting agreement), with respect to the registration
statement, each amendment and supplement thereto, the
prospectus included therein (including the preliminary
prospectus) and other documents relating thereto, in
customary form and covering such matters as are customarily
covered by legal opinions of Company's counsel in such
public offerings and such other legal matters as the holders
of a majority of the Registrable Securities being sold may
reasonably request.
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660958v6
(b) It shall be a condition precedent to the obligation of
the Company to take any action pursuant to this Section 4 in
respect of Registrable Securities that the holders requesting
registration thereof shall furnish to the Company such
information regarding the Registrable Securities held by such
holder and the intended method of disposition thereof as the
Company shall reasonably request and as shall be required in
connection with the action taken by the Company; provided,
however, that the failure of any holder of Registrable Securities
to furnish such information shall not affect the obligations of
the Company pursuant to this Section 4 with respect to any holder
of Registrable Securities who furnishes such information to the
Company. Notwithstanding any provision to the contrary contained
herein, no holder of Registrable Securities shall be required to
furnish any information or make any representations or warranties
to the Company or the underwriters other than representations and
warranties contained in a writing furnished by such holder
expressly for use in the registration statement to be filed in
connection with such registration solely with regard to such
holder's identity, its ownership of Securities of the Company,
the class and number of such Securities it intends to include in
such offering, its intended method of distribution, other
information pertinent to such holder in its capacity as a selling
stockholder, and any other information with respect to such
holder required by law to be disclosed in such registration
statement.
(c) If a registration pursuant to Section 2 or 3 involves
an Underwritten Offering, the holders of Registrable Securities
to be distributed by the underwriters thereof shall be parties to
the underwriting agreement between the Company and such
underwriters and may, at their option, require that any or all of
the representations and warranties by, and the other agreements
on the part of, the Company to and for the benefit of such
underwriters shall also be made to and for the benefit of such
holders of Registrable Securities and that any or all of the
conditions precedent to the obligations of such underwriters
under such underwriting agreement be conditions precedent to the
obligations of such holders of Registrable Securities. No such
holder of Registrable Securities shall be required to make any
representations or warranties to, or agree to any indemnities or
contribution provisions with, the Company or the underwriters
other than representations, warranties, indemnities and
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contribution provisions with respect to information required to
be furnished by such holder in writing pursuant to subsection (b)
of this Section 4.
(d) If a registration pursuant to Section 2 or 3 involves
an Underwritten Offering, each holder of Registrable Securities
agrees, whether or not such holder's Registrable Securities are
included in such registration, not to effect any sale or
distribution, including any sale pursuant to Rule 144 under the
Securities Act, of any Registrable Securities, or of any Security
convertible into or exchangeable or exercisable for any
Registrable Securities (other than as part of such Underwritten
Offering), without the consent of the managing underwriter,
during a period commencing 10 calendar days before and ending 180
calendar days (or such lesser number as the managing underwriter
shall designate) after the effective date of such registration.
(e) If a registration pursuant to Section 2 or 3 involves
an Underwritten Offering, any holder of Registrable Securities
requesting to be included in such registration may elect, in
writing, prior to the effective date of the registration
statement filed in connection with such registration, not to
register such securities in connection with such registration,
unless such holder has agreed with the Company or the managing
underwriter not to exercise its rights under this Section 4(e),
subject, however, to the obligations of such holder under Section
2(d) hereof, if applicable.
(f) It is understood that in any Underwritten Offering in
addition to any shares of Common Stock (the "initial shares") the
underwriters have committed to purchase, the underwriting
agreement may grant the underwriters an option to purchase up to
a number of additional shares of authorized but unissued shares
of Common Stock (the "option shares") equal to 15% of the initial
shares (or such other maximum amount as the NASD may then
permit), solely to cover over-allotments. Shares of Common Stock
proposed to be sold by the Company and the other sellers shall be
allocated between initial shares and option securities as agreed
or, in the absence of agreement, pursuant to Section 2(f) or
3(d), as the case may be. The number of initial shares and
option shares to be sold by requesting holders shall be allocated
pro rata among all such holders on the basis of the relative
number of shares of Registrable Securities each such holder has
requested to be included in such registration.
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5. Registration Expenses{ TC "5. Registration Expenses" \f
C \l "1" }.
(a) All costs and expenses incurred or sustained in
connection with or arising out of each registration pursuant to
Section 2 or 3 (as the case may be), including, without
limitation, all registration and filing fees, fees and expenses
of compliance with securities or Blue Sky laws (including
reasonable fees and disbursements of counsel for the underwriters
in connection with the Blue Sky qualification of Registrable
Securities), printing expenses, messenger, telephone and delivery
expenses, fees and disbursements of counsel for the Company and
for the sellers of Registrable Securities (subject to the
limitations contained in paragraph (b) of this Section 5), fees
and disbursements of all independent certified public accountants
(including the expenses relating to the preparation and delivery
of any special audit or "cold comfort" letters required by or
incident to such registration), and fees and disbursements of
underwriters (excluding discounts and commissions, but including
underwriters' liability insurance if the Company or if the
underwriters so require), the reasonable fees and expenses of any
special experts retained by the Company of its own initiative or
at the request of the managing underwriters in connection with
such registration, and fees and expenses of all (if any) other
persons retained by the Company (all such costs and expenses
being herein called, collectively, the "Registration Expenses"),
will be borne and paid by the Company as provided by the
provisions contained in this Agreement. The Company will, in any
case, 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, the expense of liability insurance referred to above, and
the fees and expenses incurred in connection with the listing of
the Securities to be registered on each securities exchange on
which similar Securities of the Company are then listed.
(b)In connection with each registration of Registrable
Securities pursuant to this Agreement, the Company will reimburse
the holders of Registrable Securities being registered in such
registration for the reasonable fees and disbursements of any one
counsel chosen by the holders of a majority in interest of such
Registrable Securities. The Company will not bear the cost of
nor pay for any stock transfer taxes imposed in respect of the
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transfer of any Registrable Securities to any purchaser thereof
by any Holder in connection with any registration of Registrable
Securities pursuant to this Agreement.
(c)To the extent that Registration Expenses incident
to any registration are, under the terms of this Agreement, not
required to be paid by the Company, each holder of Registrable
Securities included in such registration will pay all
Registration Expenses which are clearly solely attributable to
the registration of such Holder's Registrable Securities so
included in such registration, and all other Registration
Expenses not so attributable to one holder will be borne and paid
by all sellers of Securities included in such registration in
proportion to the number of Securities so included by each such
seller.
6. Preparation; Reasonable Investigation{ TC "6.
Preparation; Reasonable Investigation" \f C \l "1"
}.
(a)In connection with the preparation and filing of
each registration statement under the Securities Act pursuant to
this Agreement, the Company shall give each Holder of Registrable
Securities registered under such registration statement, the
underwriter, if any, and its respective counsel and accountants
the reasonable opportunity to participate in the preparation of
such registration statement, each prospectus included therein or
filed with the Commission, and each amendment thereof or
supplement thereto, and shall give each of them such reasonable
access to its books and records and such reasonable opportunities
to discuss the business of the Company with its officers and the
independent public accountants who have certified its financial
statements as shall be necessary, in the reasonable opinion of
any such Holders' and such underwriters' respective counsel, to
conduct a reasonable investigation within the meaning of the
Securities Act.
(b)Each Holder of Registrable Securities shall
maintain the confidentiality of any confidential information
received from or otherwise made available by the Company to such
Holder of Registrable Securities and identified in writing by the
Company as confidential. Information that (i) is or becomes
available to a Holder of Registrable Securities from a public
source, (ii) is disclosed to a Holder of Registrable Securities
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by a third-party source who the Holder of Registrable Securities
reasonably believes has the right to disclose such information or
(iii) is or becomes required to be disclosed by a Holder of
Registrable Securities by law, including by court order, shall
not be deemed to be confidential information for purposes of this
Agreement.
7. Sale of Warrants to Underwriters{ TC "7. Sale of
Warrants to Underwriters" \f C \l "1" }. Notwithstanding
anything in this Section 7 to the contrary, in the case of any
offering subject to the provisions of Section 2 or 3 hereof which
is an Underwritten Offering, in lieu of exercising any Warrant
prior to or simultaneously with the filing or the effectiveness
of any registration statement filed in connection therewith, the
holder of such Warrant may sell such Warrant to the underwriter
or underwriters of the offering being registered upon the
undertaking of such underwriter or underwriters to exercise such
Warrant before making any distribution pursuant to such
registration statement and to include the Warrant Stock issued
upon such exercise among the Securities being offered pursuant to
such registration statement. The Company agrees to cause such
Warrant Stock to be included among the Securities being offered
pursuant to such registration statement to be issued within such
time as will permit such underwriter or underwriters to make and
complete the distribution contemplated by the underwriting.
8. Indemnification{ TC "8. Indemnification" \f C \l
"1" }. (a) In the event of any registration of any Securities
under the Securities Act pursuant to Section 2 or 3 hereof, the
Company will, and it hereby agrees to, indemnify and hold
harmless, to the extent permitted by law, each seller of any
Registrable Securities covered by such registration statement,
its directors and officers or general and limited partners (and
directors and officers thereof and, if such seller is a portfolio
or investment fund, its investment advisors or agents), each
other Person who participates as an underwriter in the offering
or sale of such Securities and each other Person, if any, who
controls such seller or any such underwriter within the meaning
of Section 15 of the Securities Act, as follows:
(i) against any and all loss, liability, claim, damage
or expense whatsoever arising out of or based upon an untrue
statement or alleged untrue statement of a material fact
contained in any registration statement (or any amendment or
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supplement thereto), including all documents incorporated
therein by reference, or the omission or alleged omission
therefrom of a material fact required to be stated therein
or necessary to make the statements therein not misleading,
or arising out of an untrue statement or alleged untrue
statement of a material fact contained in any preliminary
prospectus or prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements
therein not misleading;
(ii) against any and all loss, liability, claim, damage
and expense whatsoever to the extent of the aggregate amount
paid in settlement (a "Settlement Payment") of any
litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of
any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission,
if such settlement is effected with the written consent of
the Company; and
(iii) against any and all expense (other than any
Settlement Payment) reasonably incurred by them in
connection with investigating, preparing or defending
against any litigation, or investigation or proceeding by
any governmental agency or body, commenced or threatened, or
any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission,
to the extent that any such expense is not paid under
clauses (i) or (ii) above;
provided, however, that this indemnity does not apply to any
loss, liability, claim, damage or expense to the extent arising
out of an untrue statement or alleged untrue statement or
omission or alleged omission made in reliance upon and in
conformity with written information furnished to the Company by
or on behalf of any such seller or underwriter expressly for use
in the preparation of any registration statement (or any
amendment thereto) or any preliminary prospectus or prospectus
(or any amendment or supplement thereto); and provided, further,
that the Company will not be liable to any Person who
participates as an underwriter in the offering or sale of
Registrable Securities (or, if such offering and sale are not
effected by or through an underwriter, then such seller) or any
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other Person, if any, who controls such underwriter (or seller,
as the case may be) within the meaning of Section 15 of the
Securities Act, under the indemnity agreement in this Section
8(a) with respect to any preliminary prospectus or final
prospectus or final prospectus as amended or supplemented, as the
case may be, to the extent that any such loss, claim, damage or
liability of such underwriter or controlling Person results from
the fact that such underwriter (or seller, as the case may be)
sold Registrable Securities to a Person to whom there was not
sent or given, at or prior to the written confirmation of such
sale, a copy of the final prospectus or of the final prospectus
as then amended or supplemented, whichever is most recent, if the
Company has previously furnished copies thereof to such
underwriter (or seller, as the case may be). Such indemnity
shall remain in full force and effect regardless of any
investigation made by or on behalf of such seller or any such
director, officer, general or limited partner, investment advisor
or agent, underwriter or controlling Person and shall survive the
transfer of such Securities by such seller.
(b) The Company may require, as a condition to including
any Registrable Securities in any registration statement filed in
accordance with Section 2 or 3 hereof, that the Company shall
have received an undertaking reasonably satisfactory to it from
the prospective seller of such Registrable Securities, to
indemnify and hold harmless (in the same manner and to the same
extent as set forth in Section 8(a) hereof) the Company, the
underwriters, if any, each Person who controls the Company or any
such underwriter (within the meaning of Section 15 of the
Securities Act) and their respective officers, directors,
partners, employees, agents and representatives, with respect to
any statement or alleged statement in or omission or alleged
omission from such registration statement, any preliminary, final
or summary prospectus contained therein, or any amendment or
supplement, if such statement or alleged statement or omission or
alleged omission was made in reliance upon and in conformity with
written information furnished to the Company by or on behalf of
such seller specifically for use in the preparation of such
registration statement, preliminary, final or summary prospectus
or amendment or supplement. Such indemnity shall remain in full
force and effect regardless of any investigation made by or on
behalf of the Company, the underwriters, or any such director,
officer, partner, employee, agent, representative or controlling
Person and shall survive the transfer of such Securities by such
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seller. In that event, the obligations of the Company and such
seller pursuant to this Section 8 are to be several and not
joint; provided, however, that, with respect to each claim
pursuant to this Section 8, the Company shall be liable for the
full amount of such claim, and each such seller's liability under
this Section 8 shall be limited to an amount equal to the net
proceeds (after deducting the underwriters' discount and
expenses) received by such seller from the sale of Registrable
Securities by it pursuant to such registration statement.
(c) Promptly after receipt by an indemnified party
hereunder of written notice of the commencement of any action or
proceeding involving a claim referred to in this Section 8, such
indemnified party will, if a claim in respect thereof is to be
made against an indemnifying party, give written notice to such
indemnifying party of the commencement of such action; provided,
however, that the failure of any indemnified party to give notice
as provided herein shall not relieve the indemnifying party of
its obligations under this Section 8, except to the extent (not
including any such notice of an underwriter) that the
indemnifying party is actually prejudiced by such failure to give
notice. In case any such action is brought against an
indemnified party, unless in such indemnified party's reasonable
judgment a conflict of interest between such indemnified and
indemnifying parties may exist in respect of such claim, the
indemnifying party will be entitled to participate in and to
assume the defense thereof, jointly with any other indemnifying
party similar notified, to the extent that it may wish with
counsel reasonably satisfactory to such indemnified party, and
after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party
for any legal or other expenses subsequently incurred by such
indemnifying party in connection with the defense thereof.
(d) The Company and each seller of Registrable Securities
shall provide for the foregoing indemnities (with appropriate
modifications) in any underwriting agreement with respect to any
required registration or other qualification of Securities under
any federal or state law or regulation of any governmental
authority.
9. Contribution{ TC "9. Contribution" \f C \l "1" }.
In order to provide for just and equitable contribution in
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circumstances under which the indemnity contemplated by Section 8
hereof is for any reason not available, the parties required to
indemnify by the terms thereof shall contribute to the aggregate
losses, liabilities, claims, damages and expenses of the nature
contemplated by such indemnity agreement incurred by the Company,
any seller of Registrable Securities and one or more of the
underwriters, except to the extent that contribution is not
permitted under Section 11(f) of the Securities Act. In
determining the amounts which the respective parties shall
contribute, there shall be considered the relative benefits
received by each party from the offering of the Registrable
Securities (taking into account the portion of the proceeds of
the offering realized by each), the parties' relative knowledge
and access to information concerning the matter with respect to
which the claim was asserted, the opportunity to correct and
prevent any statement or omission and any other equitable
considerations appropriate under the circumstances. The Company
and each such seller agree with each other and the underwriters
of the Registrable Securities, if requested by such underwriters,
that it would not be equitable if the amount of such contribution
were determined by pro rata or per capita allocation (even if the
underwriters were treated as one entity for such purpose) or for
the underwriters' portion of such contribution to exceed the
percentage that the underwriting discount bears to the initial
public offering price of the Registrable Securities. For
purposes of this Section 9, each Person, if any, who controls an
underwriter within the meaning of Section 15 of the Securities
Act shall have the same rights to contribution as such
underwriter, and each director and each officer of the Company
who signed the registration statement, and each Person, if any,
who controls the Company or a seller of Registrable Securities
shall have the same rights to contribution as the Company or a
seller of Registrable Securities, as the case may be.
Notwithstanding the foregoing, no seller of Registrable
Securities shall be required to contribute any amount in excess
of the amount such seller would have been required to pay to an
indemnified party if the indemnity under Section 8 hereof were
available.
10. Current Public Information{ TC "10. Current Public
Information" \f C \l "1" }. At all times after the Company has
filed a registration statement with the Commission pursuant to
the requirements of either the Securities Act or the Exchange
Act, and as long as any Warrant shall remain outstanding or the
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holder hereof shall hold any Registrable Securities, the Company
will file all reports required to be filed by it under the
Securities Act and the Exchange Act and the rules and regulations
adopted by the Commission thereunder, and will take such further
action as any holder or holders of Registrable Securities may
reasonably request, all to the extent required to enable such
holders to sell Registrable Securities pursuant to Rule 144
adopted by the Commission under the Securities Act (as such rule
may be amended from time to time) or any similar rule or
regulation hereafter adopted by the Commission.
11. Registration Rights to Others{ TC "11. Registration
Rights to Others" \f C \l "1" }. (a) The Company represents
and warrants to the Holder that there are no agreements,
understandings or commitments, oral or written, between the
Company and the holders of its Securities pursuant to which such
holders have a right to require the Company to register or
qualify any of its Securities under the Securities Act or any
applicable state securities laws, except for the rights granted
in the ING Registration Rights Agreement and registration rights
granted to the Estate of Dr. Stanley Sarnoff or transferee
thereof.
(b) Except for the rights granted in this Agreement, the
ING Registration Rights Agreement and registration rights granted
to the Estate of Dr. Stanley Sarnoff or transferee thereof,
without the prior written consent of the Majority Holders, the
Company will not grant to any Person the right to require the
Company to register any equity Securities of the Company, or any
Securities convertible into or exchangeable or exercisable for
such equity Securities, under the Securities Act or any
applicable state securities laws.
12. Adjustments Affecting Registrable Securities{ TC "12.
Adjustments Affecting Registrable Securities" \f C \l "1" }.
The Company shall not effect or permit to occur any combination,
subdivision or reclassification of Registrable Securities that
would adversely affect the ability of the Holders to include such
Registrable Securities in any registration of its Securities
under the Securities Act contemplated by this Agreement or the
marketability of such Registrable Securities under any such
registration or other offering.
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13. Rule 144 and Rule 144A{ TC "13. Rule 144 and Rule
144A" \f C \l "1" }. The Company shall take all actions required
to be taken on the part of the Company in order to enable the
Holder to sell Registrable Securities without registration under
the Securities Act within the limitation of the exemptions
provided by (a) Rule 144 under the Securities Act, as such Rule
may be amended from time to time, (b) Rule 144A under the
Securities Act, as such Rule may be amended from time to time, or
(c) any similar rules or regulations hereafter adopted by the
Commission, including, without limiting the generality of the
foregoing, filing on a timely basis all reports required to be
filed under the Exchange Act. Upon the request of any Holder,
the Company shall deliver to such Holder a written statement as
to whether it has complied with such requirements. The Company
will, at the request of any holder of Registrable Securities,
upon receipt from such holder of a certificate certifying (i)
that such holder currently intends to transfer such Registrable
Securities, (ii) that such holder has held such Registrable
Securities for a period of not less than two consecutive years
within the meaning of Rule 144(d) or any successor rule, and
(iii) that such holder has not been an affiliate (as defined in
Rule 144) of the Company for more than 90 preceding days, remove
from the stock certificates representing such Registrable
Securities that portion of any restrictive legend which relates
to the registration provisions of the Securities Act.
14. Amendments and Waivers{ TC "14. Amendments and
Waivers" \f C \l "1" }. Any provision of this Agreement may be
amended, modified or waived if, but only if, the written consent
to such amendment, modification or waiver has been obtained from
(i) except as provided in clause (ii) below, the Holder or
Holders of at least a majority of the shares of Registrable
Securities affected by such amendment, modification or waiver and
(ii) in the case of any amendment, modification or waiver of any
provision of Section 5 or Section 8 hereof or this Section 14, or
as to the percentages of Holders required for any amendment,
modification or waiver, or any amendment, modification or waiver
which adversely affects any right and/or obligation under this
Agreement of any Holder, the written consent of each Holder so
affected.
15. Nominees for Beneficial Owners{ TC "15. Nominees for
Beneficial Owners" \f C \l "1" }. In the event that any
Registrable Securities is held by a nominee for the beneficial
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owner thereof, the beneficial owner thereof may, at its election
in writing delivered to the Company, be treated as the Holder of
such Registrable Securities for purposes of any request or other
action by any Holder or Holders pursuant to this Agreement or any
determination of the number or percentage of shares of
Registrable Securities held by any Holder or Holders contemplated
by this Agreement. If the beneficial owner of any Registrable
Securities so elects, the Company may require assurances
reasonably satisfactory to it of such owner's beneficial
ownership of such Registrable Securities.
16 Assignment{ TC "16. Assignment" \f C \l "1" }. The
provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective heirs,
successors and permitted assigns. Any Holder may assign to any
Transferee of its Registrable Securities its rights and
obligations under this Agreement (except with respect to shares
of Registrable Securities sold pursuant to Rule 144 under the
Securities Act, under any registration statement or otherwise in
a manner such that the shares are no longer subject to
restrictions from further public resale under the Securities Act
without regard to volume limitations), provided that the Company
shall receive written notice of such transfer and that such
Transferee shall agree in writing with the parties hereto prior
to the assignment to be bound by this Agreement as if it were an
original party hereto, whereupon such Transferee shall for all
purposes be deemed to be a Holder under this Agreement. Except
as provided above or otherwise permitted by this Agreement,
neither this Agreement nor any right, remedy, obligation or
liability arising hereunder or by reason hereof shall be
assignable by any Holder without the prior written consent of the
other parties hereto. The Company may not assign this Agreement
or any right, remedy, obligation or liability arising hereunder
or by reason hereof.
17. Miscellaneous{ TC "17. Miscellaneous" \f C \l "1" }.
(a) Further Assurances{ TC "(a) Further Assurances" \f C
\l "2" }. Each of the parties hereto shall execute such
documents and other papers and perform such further acts as may
be reasonably required or desirable to carry out the provisions
of this Agreement and the transactions contemplated hereby.
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660958v6
(b) Headings{ TC "(b) Headings" \f C \l "2" }. The
headings in this Agreement are for convenience of reference only
and shall not control or affect the meaning or construction of
any provisions hereof.
(c) No Inconsistent Agreements{ TC "(c) No Inconsistent
Agreements" \f C \l "2" }. The Company will not hereafter enter
into any agreement which is inconsistent with the rights granted
to the Holders in this Agreement.
(d) Remedies{ TC "(d) Remedies" \f C \l "2" }. Each
Holder, in addition to being entitled to exercise all rights
granted by law, including recovery of damages, will be entitled
to specific performance of its rights under this Agreement. The
Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of
the provisions of this Agreement and the Company hereby agrees to
waive the defense in any action for specific performance that a
remedy at law would be adequate.
(e) Entire Agreement{ TC "(e) Entire Agreement" \f C \l
"2" }. This Agreement constitutes the entire agreement and
understanding of the parties hereto in respect of the subject
matter contained herein, and there are no restrictions, promises,
representations, warranties, covenants, or undertakings with
respect to the subject matter hereof, other than those expressly
set forth or referred to herein. This Agreement supersedes all
prior agreements and understandings between the parties hereto
with respect to the subject matter hereof.
(f) Notices{ TC "(f) Notices" \f C \l "2" }. Any
notices or other communications to be given hereunder by any
party to another party shall be in writing, shall be delivered
personally, by telecopy, by certified or registered mail, postage
prepaid, return receipt requested, or by Federal Express or other
comparable delivery service, in the case of a Holder, to the
address of such Holder as shown on the Company's shareholder
records, and in the case of the Company, as follows:
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660958v6
Meridian Medical Technologies, Inc.
10240 Old Columbia Road
Columbia, Maryland 21046
Attention: Chief Executive Officer
Tel: (410) 309-6830
Fax: (410) 309-1691
with a copy to:
Arnold & Porter
555 12th Street N.W.
Washington, D.C. 20004
Attention: Steven Kaplan, Esq.
Tel: (202) 942-5998
Fax: (202) 942-5999
Notice shall be effective when delivered if given personally,
when receipt is acknowledged if telecopied, three Business Days
after mailing if given by registered or certified mail as
described above, and one Business Day after deposit if given by
Federal Express or comparable delivery service.
(g) GOVERNING LAW{ TC "(g) Governing Law" \f C \l "2" }.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS
MADE TO BE PERFORMED ENTIRELY IN SUCH STATE. ANY ACTION AGAINST
THE COMPANY MAY BE BROUGHT SOLELY IN THE FEDERAL OR STATE COURTS
LOCATED IN NEW YORK COUNTY, NEW YORK.
(h) Severability{ TC "(h) Severability" \f C \l "2" }.
Notwithstanding any provision of this Agreement, neither the
Company nor any other party hereto shall be required to take any
action which would be in violation of any applicable Federal or
state securities law. The invalidity or unenforceability of any
provision of this Agreement in any jurisdiction shall not affect
the validity, legality or enforceability of any other provision
of this Agreement in such jurisdiction or the validity, legality
or enforceability of this Agreement, including any such
provision, in any other jurisdiction, it being intended that all
rights and obligations of the parties hereunder shall be
enforceable to the fullest extent permitted by law.
(i) Counterparts{ TC "(i) Counterparts" \f C \l "2" }.
This Agreement may be executed in two or more counterparts, each
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660958v6
of which shall be deemed an original but all of which shall
constitute one and the same Agreement.
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660958v6
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
MERIDIAN MEDICAL TECHNOLOGIES, INC.
By:
Name:
Title:
NOMURA HOLDING AMERICA INC.
By:
Name:
Title:
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