EXHIBIT 10.46
BIOJECT JV SUBSIDIARY INC.
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is made as of October 15, 1997, by and
among Bioject JV Subsidiary Inc., an Oregon corporation (the "Company"), and
Elan International Services, Ltd., a Bermuda corporation ("EIS").
R E C I T A L S:
A.Pursuant to a Subscription and Stockholders Agreement (the "Subscription
Agreement") dated as of the date hereof, EIS has acquired certain shares of
common stock without par value (the "Common Stock") of the Company.
B. The closing under the Subscription Agreement has occurred on the date
hereof; it being a condition to such closing that the parties execute and
deliver this Agreement.
C. The parties desire to set forth herein their agreement related to the
granting of certain registration rights to the Holders (as defined below) of
any Common Stock or securities convertible into Common Stock.
A G R E E M E N T:
The parties hereto agree as follows:
1. Certain Definitions. As used in this Agreement, the following terms shall
have the following respective meanings:
"Affiliate" of any Person shall mean any other Person controlling, controlled
by or under common control with such particular Person. In the case of a
natural Person, his Affiliates include members of such Person's immediate
family, natural lineal descendants of such Person or a trust for the exclusive
benefit of such Person and his immediate family and natural lineal
descendants.
"Commission" shall mean the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act.
"Holders", "holders" or "Holders of Registrable Securities" shall mean EIS and
any Person who shall have acquired Registrable Securities from EIS as
permitted herein pursuant to Section 9 hereof, either individually or jointly
as the case may be.
"Person" shall mean an individual, a partnership, a company, an association, a
joint stock company, a trust, a joint venture, an unincorporated organization
and a governmental quasi-governmental entity or any department, agency or
political subdivision thereof.
"Registrable Securities" means (i) any Common Stock issued or issuable under
the Subscription Agreement, (ii) any Common Stock issued or issuable upon
conversion of or in connection with securities convertible thereinto, and
(iii) any Common Stock issued or issuable in respect of the securities
referred to in clause (ii) above upon any stock split, stock dividend,
recapitalization or similar event; excluding in all cases, however, any
Registrable Securities sold by a Person in a transaction (including a
transaction pursuant to a registration statement under this Agreement and
transaction pursuant to Rule 144 promulgated under the Securities Act) in
which registration rights are not transferred pursuant to Section 9 hereof.
The terms "register," "registered" and "registration" refer to a registration
effected by preparing and filing a registration statement in compliance with
the Securities Act, and the declaration or ordering of the effectiveness of
such registration statement.
"Registration Expenses" shall mean all expenses, other than Selling Expenses,
incurred by the Company in complying with Sections 2 or 3 hereof, including
without limitation, all registration, qualification and filing fees, exchange
listing fees, printing expenses, escrow fees, fees and disbursements of
counsel for the Company, blue sky fees and expenses, the expense of any
special audits incident to or required by any such registration and the
reasonable fees and disbursements, not to exceed $10,000 in the aggregate, of
one counsel for the Holders, such counsel to be selected by Holders holding a
majority of the Registrable Securities held by the Holders and included in
such registration.
"Securities Act" shall mean the Securities Act of 1933, as amended, or any
similar federal statute and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Selling Expenses" shall mean all underwriting discounts, selling commissions
and stock transfer taxes applicable to the securities registered by the
Holders and the costs of any accountants, counsel or other experts retained by
the Holders.
"1934 Act" shall mean the Securities Exchange Act of 1934, as amended, or any
similar federal statute and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
2. Demand Registrations. (a) Requests for Registration. Any Holder which
holds Registrable Securities representing at least the majority of the
Registered Securities then outstanding has the right at any time from and
after the earlier to occur of the (i) Company's Initial Public Offering of
securities (an "IPO"), if any and (ii) third anniversary of the date hereof,
to request registration under the Securities Act of all or part of their
Registrable Securities on Form S-1, S-2 or S-3 (if available) or any similar
registration (each, a "Demand Registration"), such form to be selected by the
Company, it being understood that the Company is not required to file a
registration statement with respect to common stock not deemed outstanding
within the meaning of General Instruction I.B.3. of Form S-3. Each written
request for a Demand Registration (as defined below) shall specify the
approximate number of Registrable Securities requested to be registered.
Within 10 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, if they request to be included in such
registration, the Company shall include such Holders' Registrable Securities
in such offering if they have responded affirmatively within 10 days after the
receipt of the Company's notice. The Holders in aggregate will be entitled to
request two Demand Registrations. A registration will not count as one of the
permitted Demand Registrations until it has become effective (unless such
Demand Registration has not become effective due solely to the fault of the
Holders requesting such registration, including a request by such Holders
that such registration be withdrawn). In the event that the Holders shall
exercise their right to Demand Registration under this section, and such
Demand Registration shall be underwritten, the Company and the Holders
exercising such right shall bear the costs associated with the underwritten on
an equal basis. The Company shall pay all Registration Expenses in connection
with any Demand Registrations which are not underwritten in accordance with
the terms hereof.
(b) Priority on Demand Registrations. 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 such offering without adversely affecting the
marketability of the offering, the Company will include in such registration:
(i) first, the Registrable Securities requested to be included in such
registration by the Holders (or, if necessary, such Registrable Securities pro
rata among the Holders thereof based upon the number of Registrable Securities
owned by each such Holder) together with any securities held by third parties
(x) who may become Holders under this Agreement or (y) holding a similar,
previously granted right to be included in such registration; and
(ii) thereafter, other securities requested to be included in such
registration.
(c) Restrictions on Demand Registrations. The Company may postpone for up to
six months in any 12 month period, the filing or the effectiveness of a
registration statement for a Demand Registration if the Company determines in
good faith that such Demand Registration would reasonably be expected to have
a material adverse effect on any proposal or plan by the Company to engage in
any financing, acquisition or disposition of assets (other than in the
ordinary course of business) or any merger, consolidation, tender offer or
similar transaction or would require disclosure of any information that the
board of directors of the Company determines in good faith the disclosure of
which would be detrimental to the Company; provided, that in such event, the
Holders 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 any Registration Expenses in connection
with such withdrawn registration.
(d) Selection of Underwriters. The Holders will have the right to select the
investment banker(s) and manager(s) to administer an offering pursuant to a
Demand Registration, subject to the Company's approval, which will not be
unreasonably withheld.
(e) Other Registration Rights. Except as provided in this Agreement, so long
as any Holder owns any Registrable Securities, the Company will not grant 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, which is in conflict with the rights granted
to the Holders hereunder, without the prior written consent of the Holders of
at least 50% of the Registrable Securities held by the Holders; it being
understood that the Company may grant rights to other Persons to (i)
participate in Piggyback Registrations so long as such rights are subordinate
or pari passu to the rights of the holders of Registrable Securities with
respect to such Piggyback Registrations and (ii) request registrations so long
as the Holders of Registrable Securities are entitled to participate in any
such registrations with such Persons pro rata on the basis of the number of
shares owned by each such Holder.
3. Piggyback Registrations. (a) Right to Piggyback. At any time the Company
shall propose to register Common Stock under the Securities Act (other than in
a registration on Form S-3 relating to sales of securities to participants in
a Company dividend reinvestment plan, S-4 or S-8 or any successor form or in
connection with an acquisition or exchange offer or an offering of securities
solely to the existing stockholders or employees of the Company) (each, a
"Piggyback Registration"), the Company will give prompt written notice to all
Holders of Registrable Securities of its intention to effect such a
registration and, subject to Section 3(b) and the other terms of this
Agreement, will include in such registration all Registrable Securities which
are permitted under applicable securities laws to be included in the Form of
registration statement selected by the Company and 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) Priority on Piggyback Registrations. If a Piggyback Registration is an
underwritten registration of Common Stock, 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 such offering without adversely affecting the marketability of the
offering, the Company will include in such registration:
(i) the securities the Company proposes to sell;
(ii) the Registrable Securities requested to be included in such registration
by the Holders and any securities requested to be included in such
registration by any other Person, pro rata among the Holders of such
Registrable Securities and such other Persons, on the basis of the number of
shares owned by each of such Holders subject to the rights of such other
Persons under agreements existing as of the date hereof; and
(iii) thereafter, other securities requested to be included in such
registration.
The Holders of any Registrable Securities included in such a registration must
execute an underwriting agreement in form and substance satisfactory to the
managing underwriters.
(c) Right to Terminate Registration. If, at any time after giving written
notice of its intention to register any of its securities as set forth in
Section 3(a) 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 and thereupon be relieved of its obligation to register any
Registrable Securities in connection with such registration (provided that the
Company shall pay the Registration Expenses in connection therewith).
(d) Selection of Underwriters. The Company will have the right to select the
investment banker(s) and manager(s) to administer an offering pursuant to a
Piggyback Registration.
4. Expenses of Registration. Subject to the final sentence of Section 2(a),
Registration Expenses incurred in connection with all registrations pursuant
to Section 2 shall be borne by the Company. All Selling Expenses relating to
securities registered on behalf of the Holders of Registrable Securities shall
be borne by such holders. Registration expenses incurred in connection with
registration pursuant to Section 3 shall be borne by the Company and the
Holders on a pro rata basis in accordance with the number of Shares sold by
each.
5. Holdback Agreements. (a) The Company agrees (i) not to effect any public
offering, 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 any successor form), unless the
underwriters managing the registered public offering otherwise agree, and (ii)
to use reasonable efforts to cause each holder of at least 5% (on a fully-
diluted basis) 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 periods (except
as part of such underwritten registration, if otherwise permitted), unless the
underwriters managing the registered public offering otherwise agree.
(b) Each holder of Registrable Securities agrees, if requested by the
managing underwriter or underwriters in an underwritten offering of securities
of the Company, not to effect any offer, sale, distribution or transfer (or
offer or agree to do so) of Registrable Securities, including a sale pursuant
to Rule 144 (or any similar provision then effect) under the Securities Act
(except as part of such underwritten registration), during the seven-day
period prior to, and during the 90-day period (or, in the case of an IPO, 180-
day period) or such shorter period as may be agreed to by the parties hereto)
following the effective date of such Registration Statement to the extent
timely notified in writing by the Company or the managing underwriter or
underwriters.
6. 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 distribution thereof, and pursuant thereto the Company will as
expeditiously as possible:
(a) subject to Section 2(c) hereof, prepare and file with the Commission a
registration statement on any form for which the Company qualifies 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 (i) furnish to the counsel selected by the Holders copies of
all such documents proposed to be filed, which documents will be subject to
the review of such counsel, and (ii) notify each holder of Registrable
Securities covered by such registration of any stop order issued or threatened
by the Commission);
(b) subject to Section 2(c) hereof, prepare and file with the 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 nine 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 jurisdiction 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 Section 6(d), (ii) subject itself to taxation
in any 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 of 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; provided that the
Company shall not be required to amend the registration statement or
supplement the Prospectus for a period of up to six months if the board of
director determines in good faith that to do so would reasonably be expected
to have a material adverse effect on any proposal or plan by the Company to
engage in any financing, acquisition or disposition of assets (other than in
the ordinary course of business) or any merger, consolidation, tender offer or
similar transaction or would require the disclosure of any information that
the board of directors determines in good faith the disclosure of which would
be detrimental to the Company, it being understood that the period for which
the Company is obligated to keep the Registration Statement effective shall be
extended for a number of days equal to the number of days the Company delays
amendments or supplements pursuant to this provision. Upon receipt of any
notice pursuant to this section 6(e) Holders shall suspend all offers and
sales of securities of the Company and all use of any prospectus until advised
by the Company that offers and sales may resume, and shall keep confidential
the fact and content of any notice given by the Company pursuant to this
section 6(e)
(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 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 a representative of the Holders of
Registrable Securities included in the registration statement, 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 pertinent 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
reasonable requested by any such seller, underwriter, attorney, accountant or
agent in connection with such registration statement;
(j) otherwise use its reasonable efforts to comply with all applicable rules
and regulations of the Commission, and make available to its security holders,
as soon as reasonably practicable, an earnings statement covering the period
of at least 12 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;
(k) 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 common stock included in such registration statement for sale in any
jurisdiction, the Company will use its reasonable best efforts promptly to
obtain the withdrawal of such order; and
(l) obtain a so-called "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.
7. Indemnification. (a) The Company agrees to indemnify, to the fullest
extent permitted by applicable law, each Holder of Registrable Securities, its
officers and directors and each Person who controls such Holder (within the
meaning of the Securities Act) against all losses, claims, damages,
liabilities, expenses or any amounts paid in settlement of any litigation,
investigation or proceeding commenced or threatened (collectively, "Claims")
to which each such indemnified party may become subject under the Securities
Act insofar as such Claim arose out of (i) any untrue or alleged untrue
statement of material fact contained, on the effective date thereof, in any
registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or (ii) any omission or alleged omission to
state therein 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 statements in which a holder of
Registrable Securities is participating, each such Holder will furnish to the
Company in writing such customary information and affidavits as the Company
reasonably requests for use in connection with any such registration statement
or prospectus (the "Seller's Information") and, to the fullest extent
permitted by applicable 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 and all Claims to which each such indemnified
party may become subject under the Securities Act insofar as such Claim arose
out of (i) any untrue or alleged untrue statement of material fact contained,
on the effective date thereof, in any registration statement, prospectus or
preliminary prospectus or any amendment thereof or supplement thereto, (ii)
any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading
or (iii) any violations by such Person of any federal, state or common law
rule or regulation applicable to such Person and relating to action required
of or inaction by such Person in connection with any such registration;
provided that with respect to a Claim arising pursuant to clause (i) or (ii)
above, the material misstatement or omission is contained in such Seller's
Information; provided, further, 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 (but the failure to provide such notice shall not
release the indemnifying party of its obligation under paragraphs (a) and (b),
unless and then only to the extent that, the indemnifying party has been
prejudiced by such failure to provide such notice) 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. 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 indemnifying party shall not be liable to indemnify an indemnified
party for any settlement, or consent to judgment of any such action effected
without the indemnifying party's consent (but such consent will not be
unreasonably withheld). Furthermore, the indemnifying party shall not,
except with the approval of each indemnified party, consent to entry of any
judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to each
indemnified party of a release from all liability in respect to such claim or
litigation without any payment or consideration provided by each such
indemnified party.
(e) If the indemnification provided for in this Section 7 is unavailable to an
indemnified party under clauses (a) and (b) above in respect of any losses,
claims, damages or liabilities referred to therein, then each indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities in such proportion as is appropriate to reflect
not only the relative benefits received by the Company, the underwriters, the
sellers of Registrable Securities and any other sellers participating in the
registration statement from the sale of shares pursuant to the registered
offering of securities to which indemnity is sought but also the relative
fault of the Company, the underwriters the sellers of Registrable Securities
and any other sellers participating in the registration statement in
connection with the statement or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company, the
underwriters, the sellers of Registrable Securities and any other sellers
participating in the registration statement shall be deemed to be based on the
relative relationship of the total net proceeds from the offering (before
deducting expenses) to the Company, the total underwriting commissions and
fees from the offering (before deducting expenses) to the underwriters and the
total net proceeds from the offering (before deducting expenses) to the
sellers of Registrable Securities and any other sellers participating in the
registration statement. The relative fault of the Company, the underwriters,
the sellers of Registrable Securities and any other sellers participating in
the registration statement shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information supplied by the Company or by registration statement and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(f) 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.
8. 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, (b) as expeditiously as possible notifies the Company of
the occurrence of any event as a result of which such prospectus contains an
untrue statement of material fact or omits to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading and (c) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
9. Transfer of Registration Rights. The rights granted to any Person under
this Agreement may be assigned to a transferee or assignee in connection with
any transfer or assignment of Registrable Securities by a Holder; provided,
that: (a) such transfer may otherwise be effected in accordance with
applicable securities laws, (b) if not already a party hereto, the assignee or
transferee agrees in writing prior to such transfer to be bound by the
provisions of this Agreement applicable to the transferor, (c) such transferee
shall own Registrable Securities representing at least 1,000,000 shares of
Common Stock, subject to the Anti-dilution Adjustments, and (d) EIS shall act
as agent and representative for such Holder for the giving and receiving of
notices hereunder.
10. Information by Holder. Each Holder shall furnish the Company such
written information regarding such Holder and any distribution proposed by
such Holder as the Company may reasonably request in writing and as shall be
reasonably required in connection with any registration qualification or
compliance referred to in this Agreement.
11. Exchange Act Compliance. After the IPO, the Company shall comply with
all of the reporting requirements of the Securities Exchange Act of 1934
applicable to it and shall comply with all other public information reporting
requirements of the Commission which are conditions to the availability of
Rule 144 for the sale of the Registrable Securities. The Company shall
cooperate with each Purchaser in supplying such information as may be
necessary for such Purchaser to complete and file any information reporting
forms presently or hereafter required by the Commission as a condition to the
availability of Rule 144.
12. Limitation on Registration. The Company shall not be obligated to effect
a registration of any Holder's Registrable Securities pursuant to Sections 2
or 3 hereof if all of the Registrable Securities have been sold under Rule
144, Regulation S or similar provision under the Securities Act so that there
is no further restriction on the transfer by the transferee. The Company
shall not be required to include any Registerable Securities of a Holder in a
registration if all of such Holder's Registerable Securities could be sold
within a three month period pursuant to Rule 144 or other similar rule or
regulation.
13. 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) 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;
provided that in no event shall any Holder have the right to enjoin or
interfere with any offering of securities by the Company.
(c) 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 the Company and Holders of at least 50% of the Registrable
Securities; provided, that without the prior written consent of all the
Holders, no such amendment or waiver shall reduce the foregoing percentage.
(d) Successors and Assigns. Subject to Section 9 hereof, 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 successors and assigns of the
parties hereto whether so expressed or not. In particular, no Holder of
Registrable Securities shall transfer registered securities (or securities
convertible into, exerciseable or exchangeable for Registrable Securities)
other than pursuant to Rule 144 or sale pursuant to an effective registration
statement, whether or not the transferee shall have rights under this
Agreement, without obtaining an agreement from the transferee to be bound by
the terms of this Agreement; and in addition, whether or not any express
assignment has been made, the provisions of this Agreement which are for the
benefit of Holders of Registrable Securities are also for the benefit of, and
enforceable by, any subsequent holder of Registrable Securities.
(e) 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.
(f) 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.
(g) Descriptive Headings. The descriptive headings of this Agreement are
inserted for convenience only and do not constitute a part of this Agreement.
(h) Governing Law. All questions concerning the construction, validity and
interpretation of this Agreement and the exhibits and schedules hereto will be
governed by the internal law, and not the law of conflicts, of New York.
(i) 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 or by telecopy, one day after being sent to the recipient by
reputable overnight courier service (charges prepaid) or three days after
being 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 parties hereto at the addresses indicated on the signature
page hereto and to the Company at the address indicated below:
Bioject Medical Technologies Inc.
7620 S.W. Bridgeport Road
Portland, Oregon 97224
Telecopier: 503-620-6431
Attention: President
(j) Termination. This Agreement shall terminate on the date as of which each
Holder has sold all remaining Registrable Securities in a transaction or
transactions of the type described in Section 12 hereof.
(k) Additional Parties. Subsequent purchasers of Common Stock, or securities
convertible, exercisable or exchangeable into of for Common Stock, may
become party to this Agreement upon execution by the Company and such
purchaser of a counterpart hereto, whereupon such Persons may become
Holders hereunder and their Common Stock or securities may become
Registerable Securities hereunder; provided that, such Person may be
entitled to registration rights equal to, but in no event greater than, the
Holders initially named herein.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
Elan International Services, Ltd.
By:/s/ Kevin Insley
Name: Kevin Insley
Title: President and Chief Financial Officer
Bioject JV Subsidiary Inc.
By:/s/ James C. O'Shea
Name: James C. O'Shea
Title: President