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EXHIBIT 4.1
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and
entered into as of April 17, 1996, by and among GISH BIOMEDICAL, INC., a
California corporation (the "Company"), and CREATIVE MEDICAL DEVELOPMENT, INC.,
a Delaware corporation (the "Purchaser").
This Agreement is made pursuant to that certain Asset Purchase
Agreement dated as of September 13, 1995 by and among the Company and the
Purchaser (the "Purchase Agreement"). Pursuant to the Purchase Agreement, the
Company has agreed to provide the registration rights set forth in this
Agreement with respect to the Registrable Securities (as defined hereinafter in
this Agreement). The execution and delivery of this Agreement is a condition to
closing of the transactions contemplated by the Purchase Agreement.
The parties hereby agree as follows:
1. DEFINITIONS.
Capitalized terms used herein without definition shall have their
respective meanings set forth in the Purchase Agreement. As used in this
Agreement, the following terms shall have the following meanings:
Advice: See the last Paragraph of Section 3 hereof.
Affiliate: "Affiliate" means, with respect to any specified Person, (i)
any other Person directly or indirectly controlling or controlled by, or under
direct or indirect common control with, such specified Person or (ii) any
officer or director of such other Person. For purposes of this definition, the
term "control" (including the terms "controlling," "controlled by" and "under
common control with") of a Person means the possession, direct or indirect, of
the power (whether or not exercised) to direct or cause the direction of the
management and policies of a Person, whether through the ownership of voting
securities, by contract, or otherwise.
Common Stock: The Company's presently authorized shares of common stock,
no par value.
Effectiveness Date: The date on which the Registration Statement
relating to the Shelf Registration is first declared effective by the SEC.
Effectiveness Period: See Section 2(b) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations of the SEC promulgated thereunder.
Initial Shelf Registration: See Section 2(b) hereof.
Losses: See Section 5(a) hereof.
Purchase Agreement: As such term is defined in the second paragraph of
this Agreement.
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Prospectus: The prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under the Securities Act), as
amended or supplemented by any prospectus supplement, including, without
limitation, with respect to the terms of the offering of any portion of the
Registrable Securities covered by such Registration Statement and all other
amendments and supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
Purchasers: Creative Medical Development, Inc., a Delaware corporation.
Registrable Securities: The total number of shares of Common Stock
issued to the Purchaser pursuant to Section 3.1 of the Purchase Agreement,
provided that any share of such Common Stock shall cease to be a Registrable
Security at such time as (i) it is effectively registered under the Securities
Act and disposed of in accordance with the Registration Statement covering it,
(ii) it becomes saleable by the holder thereof pursuant to Rule 144(k), (iii) it
is sold or otherwise transferred pursuant to Rule 144, or (iv) it is otherwise
sold or transferred by the Purchaser to any Person.
Registration Demand Date: The date on which the Purchaser requests in
writing that the Company register such Registrable Securities on Form S-3 under
the Securities Act.
Registration Expenses: See Section 4 hereof.
Registration Statement: Any registration statement of the Company which
covers any of the Registrable Securities pursuant to the provisions of this
Agreement, including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits, and
all material incorporated by reference or deemed to be incorporated by reference
in such registration statement.
Rule 144: Rule 144 under the Securities Act, as such Rule may be amended
from time to time, or any similar rule or regulation hereafter adopted by the
SEC.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended, and the rules
and regulations promulgated by the SEC thereunder.
Shelf Registration: See Section 2 hereof.
Subsequent Shelf Registration: See Section (c) hereof.
2. SHELF REGISTRATION.
(a) On one occasion following the date which is six months
from the date hereof, the Purchaser may notify the Company in writing that it
intends to offer, cause to be offered or assist in offering for public sale all
of the Registrable Securities (the "Registration Demand Date"), either directly
in open market transactions or through distribution to Purchaser's stockholders
as a dividend.
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Within (30) days after the Registration Demand Date, the Company will use its
best efforts to cause all of the Registrable Securities to be registered under
the Securities Act as expeditiously as possible.
(b) The Company shall prepare and file with the SEC within 30
days after the Registration Demand Date, or as soon as practicable thereafter, a
Registration Statement for an offering to be made on a continuous basis pursuant
to Rule 415 covering all of the Registrable Securities (the "Initial Shelf
Registration"). The Initial Shelf Registration may be a Registration Statement
that is filed by the Company with the SEC to register other securities of the
Company. The initial Shelf Registration Statement shall be on Form S-3 or
another appropriate form permitting registration of such Registrable Securities
for resale by the Purchaser, or distribution to, and subsequent resale by, its
stockholders. The Company shall use its best efforts to cause the Initial Shelf
Registration to be declared effective under the Securities Act as soon as
practicable after the Registration Demand Date and to keep the Initial Shelf
Registration continuously effective under the Securities Act until the date that
is two (2) years from the date hereof (the "Effectiveness Period"), or such
shorter period ending when (i) all Registrable Securities covered by the Initial
Shelf Registration have been sold or have ceased being Registrable Securities,
or (ii) a Subsequent Shelf Registration covering all of the Registrable
Securities has been declared effective under the Securities Act.
(c) If the Initial Shelf Registration or any Subsequent Shelf
Registration ceases to be effective for any reason at any time during the
Effectiveness Period (other than because of the sale of all of the securities
registered thereunder), the Company shall use its best efforts to obtain the
prompt withdrawal of any order suspending the effectiveness thereof, and in any
event shall within 30 days of such cessation of effectiveness amend the Shelf
Registration in a manner reasonably expected to obtain the withdrawal of the
order suspending the effectiveness thereof, or file an additional "shelf"
Registration Statement pursuant to Rule 415 covering all of the Registrable
Securities (a "Subsequent Shelf Registration"). If a Subsequent Shelf
Registration is filed, the Company shall use its best efforts to cause the
Subsequent Shelf Registration to be declared effective as soon as practicable
after such filing and to keep such Registration Statement continuously effective
until the end of the Effectiveness Period.
(d) The Company shall supplement and amend the Shelf
Registration or Subsequent Shelf Registration, as the case may be, if required
by the rules, regulations or instructions applicable to the registration form
used by the Company for such Shelf Registration, if required by the Securities
Act, or if reasonably requested by the Purchaser.
3. REGISTRATION PROCEDURES.
In connection with the Company's registration obligations under Section
2 hereof, the Company shall as expeditiously as practicable:
(a) Prepare and file with the SEC the Initial Shelf
Registration Statement on Form S-3 and shall use its best efforts to cause each
such Registration Statement to become effective and remain effective as provided
herein; provided, that before filing any such Registration Statement or
Prospectus or any amendments or supplements thereto (other than documents that
would be incorporated or deemed to be incorporated therein by reference and that
the Company is required by applicable securities laws or stock exchange
requirements to file) the Company shall furnish to
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the Purchaser copies of all such documents proposed to be filed, which documents
will be subject to the review of the Purchaser and its counsel.
(b) Prepare and file with the SEC such amendments and
post-effective amendments to the Initial Shelf and any Subsequent Registration
Statement as may be necessary to keep such Registration Statement continuously
effective for the applicable period specified in Section 2; cause the related
Prospectus to be supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 (or any similar provisions then in
force) under the Securities Act; and comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
Registration Statement during the applicable period in accordance with the
intended methods of disposition by the sellers thereof set forth in such
Registration Statement as so amended or to such Prospectus as so supplemented.
(c) Notify the Purchaser promptly (i) when a Prospectus or any
Prospectus supplement or post-effective amendment has been filed, and, with
respect to a Registration Statement or any post-effective amendment, when the
same has become effective, (ii) of any request by the SEC or any other Federal
or state governmental authority during the period of effectiveness of the
Registration Statement for amendments or supplements to a Registration Statement
or related Prospectus or for additional information, (iii) of the issuance by
the SEC or any other Federal or state governmental authority of any stop order
suspending the effectiveness of a Registration Statement or the initiation of
any proceedings for that purpose, (iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification or exemption
from qualification of any of the Registrable Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose, (v) of the happening of any event which makes any statement made in
such Registration Statement or related Prospectus or any document incorporated
or deemed to be incorporated therein by reference untrue in any material respect
or which requires the making of any changes in such Registration Statement,
Prospectus or documents so that, in the case of any such Registration Statement,
it will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, and that in the case of the Prospectus, it will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading,
and (vi) of the Company's reasonable determination that a post-effective
amendment to a Registration Statement would be appropriate.
(d) Use every reasonable effort to obtain the withdrawal of
any order suspending the effectiveness of a Registration Statement, or the
lifting of any suspension of the qualification (or exemption from qualification)
of any of the Registrable Securities for sale in any jurisdiction, at the
earliest possible moment.
(e) Subject to the last paragraph of this Section 3, if
reasonably requested by the Purchaser (i) promptly incorporate in a Prospectus
supplement or post-effective amendment such information as the Company or the
Purchaser agrees should be included therein as required by applicable law, (ii)
make all required filings of such Prospectus supplement or such post-effective
amendment as soon as practicable after the Company has received notification of
the matters to be incorporated in such Prospectus supplement or post-effective
amendment, and (iii) supplement or make amendments to any Registration Statement
consistent with clause (i) or (ii) above; provided,
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that the Company shall not be required to take any actions under this Section
3(e) that are not, in the opinion of counsel for the Company, in compliance with
applicable law.
(f) Furnish to the Purchaser and its counsel, without charge,
at least one conformed copy of the Registration Statement or Statements and any
post-effective amendment thereto, including financial statements (but excluding
schedules, all documents incorporated or deemed to be incorporated therein by
reference and all exhibits, unless requested in writing by the Purchaser or its
counsel).
(g) Deliver to the Purchaser and its counsel, without charge,
as many copies of the Prospectus or Prospectuses relating to such Registrable
Securities (including each preliminary prospectus) and any amendment or
supplement thereto as such Persons may reasonably request; and the Company
hereby consents to the use of such Prospectus or each amendment or supplement
thereto by the Purchaser in connection with the offering and sale of the
Registrable Securities covered by such Prospectus or any amendment or supplement
thereto in accordance with the methods of sale and distribution set forth
therein.
(h) Prior to any public offering of Registrable Securities, to
register or qualify or cooperate with the Purchaser and its counsel in
connection with the registration or qualification (or exemption from such
registration or qualification) of such Registrable Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions within the United
States as the Purchaser, or its stockholders who have received Registrable
Securities as a dividend from Purchaser, reasonably requests in writing; keep
each such registration or qualification (or exemption therefrom) effective
during the period such Registration Statement is required to be kept effective
and do any and all other acts or things necessary or advisable to enable the
disposition in such jurisdictions of the Registrable Securities covered by the
applicable Registration Statement; provided, that the Company will not be
required to (i) qualify generally to do business in any jurisdiction where it is
not then so qualified or (ii) take any action that would subject it to general
service of process in any such jurisdiction where it is not then so subject.
(i) Upon the occurrence of any event contemplated by Section
3(c)(v) or 3(c)(vi) above, prepare a supplement or post-effective amendment to
each Registration Statement or a supplement to the related Prospectus or any
document incorporated therein by reference or file any other required document
so that, as thereafter delivered to the Purchaser, such Prospectus will not
contain 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, in
the light of the circumstances under which they were made, not misleading.
(j) Comply with all applicable rules and regulations of the
SEC and make generally available to its securityholders earning statements
satisfying the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder (or any similar rule promulgated under the Securities Act) no later
than 45 days after the end of any 12-month period (or 90 days after the end of
any 12-month period if such period is a fiscal year) commencing on the first
day of the first fiscal quarter of the Company, after the effective date of a
Registration Statement, which statements shall cover said 12-month periods.
The Company may require the Purchaser to furnish to the Company such
information regarding the distribution of its Registrable Securities as the
Company may, from time to time,
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reasonably request in writing and the Company may suspend its efforts to
register the Registrable Securities if the Purchaser unreasonably fails to
furnish such information within a reasonable time after receiving such request.
The Purchaser agrees that upon receipt of any notice from the Company
of the happening of any event of the kind described in Section 3(c)(ii),
3(c)(iii), 3(c)(iv), 3(c)(v) or 3(c)(vi) hereof, the Purchaser will forthwith
discontinue disposition of any Registrable Securities covered by the applicable
Registration Statement or Prospectus until the Purchaser's receipt of the copies
of the supplemented or amended Prospectus contemplated by Section 3(i) hereof,
or until it is advised in writing (the "Advice") by the Company that the use of
the applicable Prospectus may be resumed, and has received copies of any
additional or supplemental filings that are incorporated or deemed to be
incorporated by reference in such Prospectus.
4. REGISTRATION EXPENSES.
All fees and expenses incident to the performance of or compliance with
this Agreement by the Company (the "Registration Fees") shall be borne by the
Company whether or not any of the Registration Statements become effective,
except that if the Purchaser requests that the Company withdraw or terminate its
obligations under Sections 2 and 3 hereunder for reasons other than the
occurrence of one or more events regarding the Company, which event or events
may have a material adverse affect upon the business or prospects of the
Company, and the Purchaser learns of such event or events after the date of the
Registration Demand Date and prior to the date of withdrawal or termination by
it and such withdrawal or termination occurs with reasonable promptness
thereafter, then the Company shall have no obligation to pay or otherwise bear
any fees, expenses or other costs arising out of or relating to such
registration. The Registration Fees shall include, without limitation, (i) all
registration and filing fees (including, without limitation, fees and expenses
with respect to filings required to be made with the National Association of
Securities Dealers, Inc. or with securities or Blue Sky administrators in such
jurisdictions as the Purchaser may reasonably designate); (ii) printing expenses
(including, without limitation, expenses of printing certificates for
Registrable Securities in a form eligible for deposit with The Depository Trust
Company); (iii) messenger, telephone and delivery expenses; (iv) fees and
disbursements of counsel for the Company in connection with the Shelf
Registration; (v) fees and disbursements of all independent certified public
accountants and all other persons retained by the Company to assist it in the
preparation and filing of the Shelf Registration Statement or any Subsequent
Registration Statement. In addition, the Company shall pay its internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expenses of any annual
audit, the fees and expenses incurred in connection with the listing of the
securities to be registered on any securities exchange on which similar
securities issued by the Company are then listed.
5. INDEMNIFICATION.
(a) Indemnification by the Company. The Company shall, without
limitation as to time, indemnify and hold harmless, to the fullest extent
permitted by law, the Purchaser from and against all losses, claims, damages,
liabilities, costs (including, without limitation, reasonable attorneys' fees)
and expenses (collectively, "Losses"), as incurred, arising out of or based upon
any untrue or alleged untrue statement of a material fact contained in any
Registration Statement, Prospectus or form of Prospectus or in any amendment or
supplement thereto or in any preliminary
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prospectus, or arising out of or based upon 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 based
solely upon information furnished in writing to the Company by the Purchaser or
its counsel expressly for use therein; provided, that the Company shall not be
liable to the Purchaser to the extent that any such Losses arise out of or are
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any preliminary prospectus if either (A)(i) the
Purchaser failed to send or deliver a copy of the Prospectus with or prior to
the delivery of written confirmation of the sale by the Purchaser of a
Registrable Security to the person asserting the claim from which such Losses
arise and (ii) the Prospectus would have corrected such untrue statement or
alleged untrue statement or such omission or alleged omission; or (B)(x) such
untrue statement or alleged untrue statement, omission or alleged omission is
corrected in an amendment or supplement to the Prospectus and (y) having
previously been furnished by or on behalf of the Company with copies of the
Prospectus as so amended or supplemented, the Purchaser thereafter fails to
deliver such Prospectus as so amended or supplemented, prior to or concurrently
with the sale of a Registrable Security to the person asserting the claim from
which such Losses arise.
(b) Indemnification by Purchaser. In connection with the
filing any Registration Statement, the Purchaser shall furnish to the Company in
writing such information as the Company reasonably requests for use in
connection with any Registration Statement or Prospectus and hereby agrees to
indemnify, to the fullest extent permitted by law, and without limitation as to
time, the Company, its directors and officers, agents and employees, each person
who controls the Company (within the meaning of Section 15 of the Securities Act
and Section 20 of the Exchange Act), and the directors, officers, agents or
employees of such controlling persons, from and against all Losses arising out
of or based upon any untrue statement of a material fact contained in any
Registration Statement, Prospectus or preliminary prospectus or arising out of
or based upon any omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, to the extent, but only
to the extent, that such untrue statement or omission is contained in any
information so furnished in writing by the Purchaser or its counsel to the
Company expressly for use in such Registration Statement or Prospectus and that
such information was relied upon by the Company in preparation of such
Registration Statement, Prospectus or preliminary prospectus. In no event shall
the liability of the Purchaser hereunder be greater in amount than the dollar
amount of the proceeds received by the Purchaser upon the sale of the
Registrable Securities giving rise to such indemnification obligation.
(c) Conduct of Indemnification Proceedings. If any Person
shall be entitled to indemnity hereunder (an "indemnified party"), such
indemnified party shall give prompt notice to the party from which such
indemnity is sought (the "indemnifying party") of any claim or of the
commencement of any Proceeding with respect to which such indemnified party
seeks indemnification or contribution pursuant hereto; provided, that the
failure to so notify the indemnifying party shall not relieve the indemnifying
party from any obligation or liability. All such fees and expenses (including
any fees and expenses incurred in connection with investigating or preparing to
defend such action or proceeding) shall be paid to the indemnified party, as
incurred, within five days of written notice thereof to the indemnifying party
(regardless of whether it is ultimately determined that an indemnified party is
not entitled to indemnification hereunder). The indemnifying party shall not
consent to entry of any judgment or enter into any settlement or otherwise seek
to terminate any proceeding in which any indemnified party is or could be a
party and as to which indemnification or contribution could be sought by such
indemnified party under this
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Section 5, unless such judgment, settlement or other termination includes as an
unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release, in form and substance satisfactory to the
indemnified party, from all liability in respect of such claim or litigation for
which such indemnified party would be entitled to indemnification hereunder.
The provisions of this Section 5 shall survive so long as Registrable
Securities remain outstanding, notwithstanding any transfer of the Registrable
Securities by the Purchaser or any termination of this Agreement.
6. CERTAIN RESTRICTIONS; RULE 144; AND FORM S-3.
(a) As to the shares of Common Stock (including, without
limitation, the Registrable Securities) issued by the Company to the Purchaser
under the Purchase Agreement, which the Purchaser acknowledges are being issued
by the Company in reliance on Regulation D under the Act (the "Restricted
Shares"), the Purchaser covenants and agrees as follows:
(i) The Purchaser agrees in no event to make any
disposition of all or any part of the Restricted Shares, other than pursuant to
the Shelf Registration Statement, unless and until (i) the Purchaser shall have
notified the Company of the proposed disposition; (ii) the Purchaser shall have
furnished the Company with an opinion of counsel reasonably acceptable to the
Company to the effect that such disposition will not require and will be exempt
from registration of the Restricted Shares under the Act; and (iii) such opinion
of counsel shall have been concurred in by the Company's counsel and the Company
shall have advised the Purchaser of such concurrence.
(ii) The Purchaser understands and agrees that
certificates evidencing the Restricted Shares will bear the following legend or
a legend substantially similar thereto:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE "ACT"); THEY HAVE BEEN ACQUIRED
BY THE HOLDER FOR INVESTMENT AND MAY NOT BE SOLD, PLEDGED,
HYPOTHECATED, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS THESE
SECURITIES ARE FIRST REGISTERED UNDER THE ACT OR THE HOLDER FURNISHES
THE ISSUER WITH AN OPINION OF COUNSEL, REASONABLY ACCEPTABLE TO THE
ISSUER, THAT THE PROPOSED TRANSACTION IS EXEMPT FROM REGISTRATION UNDER
SUCH ACT.
(b) Until the earlier of (i) the third anniversary of the date
hereof, or (ii) the date all of the Registrable Securities have been sold or
otherwise transferred for value by the Purchaser, the Company shall use its best
efforts to file the reports required to be filed by it under the Securities Act
and the Exchange Act, and if at any time the Company is not required to file
such reports, it will, upon the request of the Purchaser, make publicly
available other information so long as necessary to permit sales pursuant to
Rule 144 under the Securities Act. Upon the request of the Purchaser, the
Company shall deliver to such holder a written statement as to whether it has
complied with such filing requirements. Notwithstanding the foregoing, nothing
in this Section 6 shall be deemed to require the Company to register any of its
securities under any section of the Exchange Act.
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(c) The Company shall file the reports required to be filed by
it under the Exchange Act and shall comply with all other requirements set forth
in the instructions to Form S-3 in order to allow the Company to be eligible to
file registration statements on Form S-3.
7. MISCELLANEOUS.
(a) Remedies. In the event of a breach by the Company of its
obligations under this Agreement, the Purchaser 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 any of the provisions of this Agreement and hereby further
agrees that, in the event of any action for specific performance in respect of
such breach, it shall waive the defense that a remedy at law would be adequate.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of the
Purchaser.
(c) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing and shall be deemed given (i)
when made, if made by hand delivery, (ii) upon confirmation, if made by
telecopier or (iii) one business day after being deposited with a reputable
next-day courier, postage prepaid, to the parties as follows:
(x) if to the Purchaser, at the most current address
given by the Purchaser to the Company in accordance with the provisions
of this Section 7(c); and
(y) if to the Company, to Gish Biomedical, Inc., 2681
Kelvin Avenue, Irvine, California 92714-5821, Attention: Chief
Financial Officer.
or to such other address as any party may have furnished to the other parties in
writing in accordance herewith.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties.
(e) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF CALIFORNIA, WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAWS.
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(h) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such
which may be hereafter declared invalid, void or unenforceable.
(i) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and is intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein and the
registration rights granted by the Company with respect to the Registrable
Shares sold pursuant to the Purchase Agreement. Except as provided in the
Purchase Agreement or this Agreement, there are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein,
with respect to the registration rights granted by the Company with respect to
the Registrable Securities. This Agreement supersedes all prior agreements and
understandings among the parties with respect to such registration rights.
(j) Further Assurances. Each of the parties hereto shall use
all reasonable efforts to take, or cause to be taken, all appropriate action, do
or cause to be done all things reasonably necessary, proper or advisable under
applicable law, and execute and deliver such documents and other papers, as may
be required to carry out the provisions of this Agreement and the other
documents contemplated hereby and consummate and make effective the transactions
contemplated hereby.
(k) Termination. This Agreement and the obligations of the
parties hereunder shall terminate at the end of the Effectiveness Period, except
for any liabilities or obligations under Sections 4 or 5 above, and the
restrictions in Section 6(a), which shall remain in effect in accordance with
their terms.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
GISH BIOMEDICAL, INC.
By:
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Name:
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Title:
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CREATIVE MEDICAL DEVICES, INC.
By:
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Name:
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Title:
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