EXHIBIT 10.17
EXHIBIT C
REGISTRATION AGREEMENT
This Agreement is made as of October __, 1986, by and among Integrated
Medical Systems, Inc., a Colorado corporation (the "Company") and
_________________________________________________ ("Purchaser").
Purchaser and the Company are parties to a Series B Preferred Stock
Purchase Agreement of even date ("Purchase Agreement") under which Purchaser has
agreed to purchase __________ shares of the Company's Series B Preferred Stock
(the "Series B Preferred Stock"). In order to induce Purchaser to purchase the
Series B Preferred Stock, the Company has agreed to provide the registration
rights set forth in this Agreement. The execution and delivery of this Agreement
is a condition to the Closing under the Purchase Agreement.
The Company has or is preparing to enter into agreements substantially
identical to this Agreement with the other purchasers of its Series B Preferred
Stock named in the Schedule of Purchasers attached as Exhibit A to the Purchase
Agreement.
The Parties hereto agree as follows:
1. Definitions. As used herein, the following terms shall have the
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following respective meanings:
1.1 "Act" shall mean the Securities Act of 1933, as amended, or any
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similar federal statute and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
1.2 "Commission" shall mean the Securities and Exchange Commission or
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any other federal agency at the time administering the Act.
1.3 "Registrable Securities" shall mean the shares of Common Stock
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issued or issuable upon the conversion of the Series B Preferred Stock (the
"Conversion Shares") as well as the 250,000 shares of Common Stock sold to
Squibb Corporation on July 30, 1985.
2. Demand Registration. If at any time after the Company's initial
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public offering or July 31, 1988, whichever occurs first, the Company shall be
advised by the holders of a majority of the Conversion Shares that those holders
wish to register Registrable Securities, the Company shall promptly giver
written notice of such proposed registration to all holders of Registrable
Securities. Thereupon, the Company shall, as
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expeditiously as possible, use its best efforts to effect the registration on
Form S-1 or on a form of general use then in effect under the Act of the shares
of Registrable Securities that the Company has been requested to register (i) in
such request and (ii) in any response to such notice given to the Company within
20 days after the Company's giving of such notice, in order to permit the sale
or other disposition of such shares in accordance with the intended method of
sale or other disposition given in the request and in any such response.
The right granted by this Paragraph 2 may be exercised on two
occasions only and may not be exercised during the first six months after the
effective date of any registration statement filed by the Company. If a
registration statement filed by the Company under this Paragraph 2 fails to be
declared effective by the Commission for any reason (with the exception of a
decision by the holders to withdraw said registration statement), such requested
registration shall not count for purposes of the limitations set forth above.
3. "Piggyback" Registrations. If at any time the Company proposes to
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register any of its securities under the Act (other than pursuant to a demand
registration referred to in Paragraph 2 hereof) and the registration form to be
used may be used for the registration of Registrable Securities (a "Piggyback
Registration"), it shall each such time give written notice to all holders of
Registrable Securities of its intention to do so and, upon the written request
of the holders of any Registrable Securities to register such Registrable
Securities, given within 20 days after the Company's giving of such notice
(which request shall state the intended method of disposition of such
Registrable Securities by the prospective seller or sellers), the Company shall
use its best efforts to cause the Registrable Securities, as to which
registration shall have been so requested, to be included in the shares of
Common Stock to be covered by the registration statement proposed to be filed by
the Company, all to the extent requisite to permit the sale or other disposition
(in accordance with the written request of the holders, as aforesaid) by the
prospective seller or sellers of such Registrable Securities so registered.
Notwithstanding any other provision of this Paragraph 3, if the underwriter
determines that marketing factors require a limitation of the number of shares
to be underwritten, the underwriter may exclude some or all of the Registrable
Securities from such registration and underwriting. Any such exclusion of
Registrable Securities will be pro rata among the holders of Registrable
Securities that have requested registration. In the event that any registration
pursuant to this Paragraph 3 shall be, in whole or in part, a firm commitment
underwritten offering of the Company's Securities, any request by such holders
pursuant to this Paragraph 3 to register Registrable Securities must specify
that such shares are to be included in the underwriting (i) on the same terms
and conditions as the shares of Common Stock, if any,
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otherwise being sold through underwriters under such registration, or (ii) on
terms and conditions comparable to those normally applicable to offerings of
common stock in reasonably similar circumstances in the event that no shares of
Common Stock, other than Registrable Securities, are being sold through
underwriters under such registration.
4. Expenses. All expenses incurred by the Company in complying with
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Section 2 hereof, including, without limitation, all registration and filing
fees, printing expenses, fees and disbursements of counsel for the Company, and
blue sky fees and expenses are hereinafter called Registration Expenses; and all
underwriting discounts and selling commissions applicable to the sales are
hereinafter called Selling Expenses. The Company shall pay all Registration
Expenses in connection with one demand registration pursuant to Section 2. All
Selling Expenses in connection with that demand registration and all
Registration Expenses and Selling Expenses in connection with the second demand
registration pursuant to Section 2, shall be borne by the Company and the
selling stockholders pro rata in proportion to the Securities covered thereby
being sold by them. Each selling stockholder shall bear the fees and costs of
its own counsel.
5. Indemnification. In the event of a registration of any of the
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Registrable Securities under the Act pursuant to Paragraphs 2 or 3 hereof, the
Company shall hold harmless the seller of such Registrable Securities and each
underwriter of such Registrable Securities and each other person, if any, who
controls such seller or underwriter within the meaning of Section 15 of the Act,
against any losses, claims, damages or liabilities, joint or several, to which
such seller or underwriter or controlling person may become subject under the
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions with respect thereto) arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading. In addition, the
Company shall reimburse such seller and each such underwriter and each such
controlling person for any legal or any other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company shall not be liable in
any case to the extent that any such loss, claim, damage or liability arises out
of or is based upon an untrue statement or alleged untrue statement or omission
or alleged omission made in such registration statement, preliminary prospectus
or prospectus, or amendment or supplement thereto, in reliance upon and in
conformity with written information furnished to the Company through an
instrument duly executed by such seller or underwriter specifically for use in
the preparation thereof; and provided, further, that if any losses, claims,
damages or liabilities arise out of or are based upon an untrue statement,
alleged untrue statement, omission or alleged omission contained in any
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preliminary prospectus that did not appear in the final prospectus, the Company
shall not have any liability with respect thereto to (i) the seller or any
person who controls such seller within the meaning of Section 15 of the Act, if
the seller delivered a copy of the preliminary prospectus to the person alleging
such losses, claims, damages or liabilities and failed to delivery a copy of the
final prospectus, as amended or supplemented if it was amended or supplemented,
to such person at or prior to the written confirmation of the sale to such
person, or (ii) any underwriter or any person who controls such underwriter
within the meaning of Section 15 of the Act, if such underwriter delivered a
copy of the preliminary prospectus to the person alleging such losses, claims,
damages or liabilities and failed to deliver a copy of the final prospectus, as
amended or supplemented if it was amended or supplemented, to such person at or
prior to the written confirmation of the sale to such person.
In the event of any registration of any of the Registrable Securities
under the Act pursuant to Paragraphs 2 and 3 hereof, each seller of such
Registrable Securities, severally and not jointly, shall indemnify and hold
harmless the Company and each person, if any, who controls the Company within
the meaning of Section 15 of the Act, each officer of the Company who signs the
registration statement, each director of the Company and each underwriter and
each person who controls any underwriter within the mean of Section 15 of the
Act, against any and all such losses, claims, damages or liabilities referred to
in the first paragraph of this Paragraph 5, if the statement, alleged statement,
omission or alleged omission with respect to which such loss, claim, damage or
liability is asserted was made in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of such seller
specifically for use in connection with the preparation of such registration
statement, preliminary prospectus, prospectus, amendment or supplement thereto;
provided, however, that if any losses, claims, damages or liabilities arise out
of or are based upon an untrue statement, alleged untrue statement, omission or
alleged omission in any preliminary prospectus that did not appear in the final
prospectus, such seller shall not have any such liability with respect thereto
to (i) the Company, any person who controls the Company within the meaning of
Section 15 of the Act, any officer of the Company who signed the registration
statement or any director of the Company, if the Company delivered a copy of the
preliminary prospectus to the person alleging such losses, claims, damages or
liabilities and failed to deliver a copy of the final prospectus, as amended or
supplemented if it was amended or supplemented, to such person at or prior to
the written confirmation of the sale to such person, or (ii) any underwriter or
any person controlling such underwriter within the meaning of Section 15 of the
Act, if such underwriter delivered a copy of the preliminary prospectus to the
person alleging such losses, claims, damages or liabilities and failed to
deliver a copy of the final prospectus, as amended or
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supplemented if it was amended or supplemented, to such person at or prior to
the written confirmation of the sale to such person; provided, however, that the
liability of each seller hereunder shall be limited to the proportion of any
such losses, claims, damages or liabilities which is equal to the proportion
that the public offering price of the shares sold by such seller under such
registration statement bears to the total public offering price of all
securities sold hereunder, but not to exceed the proceeds received by such
seller from the sale of Registrable Securities covered by such registration
statement.
6. Termination. All rights and obligations created by the Agreement
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shall terminate four years following the effective date of the Company's initial
registered public offering.
7. Miscellaneous
(a) No Inconsistent Agreements. The Company will not hereafter
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enter into any agreement with respect to its securities which is inconsistent
with the rights granted to the holders of Registrable Securities in this
Agreement.
(b) Remedies. Any party having rights under any provision of this
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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.
(c) Amendments and Waivers. Except as otherwise provided herein, the
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provisions of this Agreement may be amended and the Company may take any action
herein prohibited, or omit to perform any act herein required to be performed by
it, only if the Company has obtained the written consent of holders of at least
51% of the Conversion Shares.
(d) Successors and Assigns. All covenants and agreements in this
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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 addition, whether or not any express assignment
has been made, the provisions of this Agreement which are for the benefit of
purchasers or holders of Registrable Securities are also for the benefit of, and
enforceable by, any subsequent holder of Registrable Securities.
(e) Incorporation of Purchase Agreement Provisions. The paragraphs
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entitled "Severability," "Counterparts," "Titles and Subtitles," "Notices" and
"Governing Law" of the Purchase Agreement are hereby incorporated in this
Agreement by reference and made a part hereof.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
COMPANY: PURCHASER:
INTEGRATED MEDICAL SYSTEMS, INC.
By _____________________________ __________________________________
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