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EXHIBIT 4.3
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "AGREEMENT") is entered into as
of November 5, 1998 by and among Medtronic Asset Management, Inc. a Minnesota
corporation ("MAMI"), and MiniMed Inc. ("MINIMED"), a Delaware corporation.
RECITALS:
MAMI and MiniMed have entered into those certain Investment Agreements,
each dated as of November 5, 1998 (as they may be amended from time to time, the
"INVESTMENT AGREEMENTS"), in which in MAMI agreed to purchase from MiniMed, and
MiniMed agreed to issue to MAMI, an aggregate of 500,000 shares of MiniMed
Common Stock at $60.00 per share. The parties hereto wish to enter into this
Agreement to provide for the registration of the Shares.
AGREEMENT:
The parties hereby agree as follows:
1. Registration.
1.1 Certain Definitions. As used in this Agreement, the following
terms shall have the following meanings:
(a) "Commission" shall mean the Securities and Exchange
Commission or any other federal agency at the time administering the Securities
Act.
(b) "Effectiveness Period" shall begin upon the effective date of
a Registration Statement and end on the earlier of (i) nine months after the
effective date of a Registration Statement, (ii) completion of the distribution
described in the Registration Statement or (iii) with respect to any Holder,
such time as all Registrable Securities held by such Holder may be sold in
compliance with Rule 144 within any three-month period.
(c) "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended, or any similar successor federal statute and the rules and
regulations thereunder, all as the same shall be in effect at the time.
(d) "Holder" shall mean MAMI and any transferee or subsequent
transferee of at least 20% of the Registrable Securities originally issued to
MAMI (other than a transferee who purchases the Registrable Securities in a sale
effected pursuant to any Registration Statement or pursuant to Rule 144)
provided that MAMI has assigned its rights under this Agreement to such
transferee, directly or indirectly, such transferee has assumed the obligations
of a Holder hereunder and a copy of such written assignment and assumption is
provided to MiniMed.
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(e) "Indemnified Party" and "Indemnifying Party" shall be as defined in
Section 3.3.
(f) "Initiating Holders" shall mean Holders who in the aggregate are
holders of 35% or more of the Registrable Securities.
(g) "Losses" shall be as defined in Section 3.1.
(h) "Prospectus" shall mean 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.
(i) "Register," "registered" and "registration" shall 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.
(j) "Registrable Securities" shall mean the Shares and any other
security of the Company issued as a dividend or other distribution with respect
to or in exchange for or in replacement of the Shares; provided, however, that
Registrable Securities shall not include any such Shares that have been sold by
a Holder under an effective Registration Statement or under Rule 144.
(k) "Registration Expenses shall be as defined in Section 2.5.
(l) "Registration Statement shall mean any registration statement of
MiniMed that 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.
(m) "Rule 1.44" shall mean Rule 144, as promulgated by the Commission
under the Securities Act, as such rule may be amended from time to time, or any
similar successor rule that may be promulgated by the Commission.
(n) "Rule 158" shall mean Rule 158, as promulgated by the Commission
under the Securities Act, as such rule may be amended from time to time, or any
similar successor rule that may be promulgated by the Commission.
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(o) "Rule 424" shall mean Rule 424 as promulgated by the Commission
under the Securities Act, as such rule may be amended from time to time, or any
similar successor rule that may be promulgated by the Commission.
(p) "Securities Act" shall mean the Securities Act of 1933, as amended,
or any similar successor federal statute and the rules and regulations
thereunder, all as the same shall be in effect at the time.
(q) "Shares" shall mean the shares of Common Stock of MiniMed issued to
MAMI by MiniMed pursuant to the Investment Agreements.
(r) "Violation" shall be as defined in Section 3. 1.
2. Registration.
2.1 Requested Registration.
(a) Demand. If at any time after the date of this Agreement and prior to
the termination of this Agreement pursuant to Section 5.15 below, MiniMed
receives from Initiating Holders a written request that MiniMed effect any
registration, qualification or compliance with respect to a proposed sale of at
least 35% of the aggregate Registrable Securities initially issued pursuant to
the Investment Agreements, MiniMed will:
(i) promptly give written notice of the proposed registration,
qualification or compliance to all other Holders; and
(ii) use its best efforts to effect as soon as practicable such
registration, qualification or compliance (including, without
limitation, appropriate qualification under applicable Blue Sky or
other state securities laws and appropriate compliance with applicable
regulations issued under the Securities Act and any other governmental
requirements or regulations) as may be so requested and would permit or
facilitate the sale and distribution of all or such portion of such
Registrable Securities as are specified in such request, together with
all or such portion of the Registrable Securities of any Holder or
Holders joining in such request as are specified in a written request
received by MiniMed within 20 days after receipt of such written notice
from MiniMed; provided, however, that MiniMed shall not be obligated to
take any action to effect any such registration, qualification or
compliance pursuant to this Section 2.1 after MiniMed has effected
three such registrations pursuant to this Section 2.1(a), and such
registrations have been declared or ordered effective.
MiniMed shall not be required to effect more than one registration
pursuant to this Section 2.1 or pursuant to Section 2.3 in any six-month period.
MiniMed may delay the filing of any registration statement requested pursuant to
this Section 2.1(a) to a date not more than one hundred twenty (120) days
following the date of such request if MiniMed's Board of Directors makes a good
faith determination that such a delay is necessary in order not to significantly
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adversely interfere with or affect the negotiation or completion of a material
transaction that is being contemplated by MiniMed (in which case the
Effectiveness Period of a Registration Statement filed under this Section 2.1
shall be extended by a period equal to the period of such delay); provided that
MiniMed may not exercise such right of delay more than once in any 12-month
period whether under this Section 2.1 or Section 2.4(j) below. Subject to the
limitation on the number of registrations under this Section 2.1 and the
preceding sentence, MiniMed shall file a registration statement covering the
Registrable Securities so requested to be registered as soon as practicable,
after receipt of the request or requests of the Initiating Holders.
(b) Underwriting. In the event that a registration pursuant to Section
2.1 is for a registered public offering involving a sale through underwriters,
MiniMed shall so advise the Holders as part of the notice given pursuant to
Section 2.1. In such event, the right of any Holder to registration pursuant to
Section 2.1 shall be conditioned upon such Holder's participation in the
underwriting arrangements required by this Section 2.1, and the inclusion of
such Holder's Registrable Securities in the underwriting to the extent requested
shall be limited to the extent provided herein. MiniMed shall (together with all
Holders proposing to distribute their securities through such underwriting)
enter into an underwriting agreement in customary form with the managing
underwriter selected for such underwriting by a majority in interest of the
Initiating Holders but subject to MiniMed's approval, which approval shall not
be unreasonably withheld. Notwithstanding any other provision of this Section
2.1, if the managing underwriter advises the Initiating Holders in writing that,
in such managing underwriter's good faith professional judgment, marketing
factors require a limitation of the number of shares to be underwritten, then
the number of shares of Common Stock that are not Registrable Securities and are
proposed to be included in such registration shall be reduced or eliminated. If
further limitations on the number of shares of Common Stock to be underwritten
are necessary, then the number of shares of Registrable Securities that may be
included in the registration and underwriting shall be allocated among all
participating Holders thereof in proportion, as nearly as practicable, to the
respective amounts of Registrable Securities held by such Holders at the time of
filing the registration statement. No Registrable Securities excluded from the
underwriting by reason of the underwriter's marketing limitation shall be
included in such registration. To facilitate the allocation of shares in
accordance with the above provisions, MiniMed or the underwriters may round the
number of shares allocated to any Holder to the nearest 100 shares. If any
Holder of Registrable Securities disapproves of the terms of the underwriting,
such person may elect to withdraw therefrom by written notice to MiniMed, the
managing underwriter and the Initiating Holders.
2.2 "Piggy-back" Registration
(a) Notice of Registration. Until the termination of this Agreement
pursuant to Section 5.15 below, if at any time or from time to time MiniMed
shall determine to register any of its securities, either for its own account or
the account of a security holder or holders, other than (i) a registration
relating solely to employee benefit plans, including stock option plans and
stock purchase plans or (ii) a registration relating solely to a Rule 145
transaction, MiniMed will:
(i) promptly give to each Holder written notice thereof, and
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(ii) include in such registration (and any related qualification
under Blue Sky laws or other compliance) and in any underwriting
involved therein, all the Registrable Securities specified in a written
request or requests, made within 20 days after receipt of such written
notice from MiniMed by any Holder.
(b) Underwriting. If the registration of which MiniMed gives notice is
for a registered public offering involving a sale through underwriters, MiniMed
shall so advise the Holders as part of the written notice given pursuant to
Section 2.2(a)(i). In such event, the right of any Holder to registration
pursuant to Section 2.2 shall be conditioned upon such Holder's participation in
such underwriting to the extent provided herein. All Holders proposing to
distribute their securities through such underwriting shall (together with
MiniMed and the other holders distributing their securities through such
underwriting) enter into an underwriting agreement in customary form with the
managing underwriter selected for such underwriting by MiniMed. As a condition
to the inclusion of the Holder's Registrable Securities in such registration,
the Holder agrees to sell the securities held by the Holder through such
underwriter on the same terms and conditions as the underwriter agrees to sell
securities on behalf of MiniMed. Notwithstanding any other provision of this
Section 2.2, if the managing underwriter advises the Holders and other holders
proposing to distribute their securities through such underwriting that, in such
managing underwriter's good faith professional judgment, marketing factors
require a limitation of the number of shares to be underwritten, then such
limitation shall first reduce or eliminate the number of shares of Common Stock
proposed for inclusion in such registration statement and underwriting with
respect to which the holder(s) thereof do not have registration rights granted
prior to the date of this Agreement. If further limitations on the number of
shares of Common Stock to be underwritten are necessary, the number of shares of
Common Stock that may be included in the registration and underwriting shall be
allocated among all Holders and such other holders having registration rights
granted prior to the date of this Agreement in proportion, as nearly as
practicable, to the respective amounts of Registrable Securities held by such
Holders and securities with prior registration rights dated prior to the date of
this Agreement held by such other holders at the time of filing the registration
statement. To facilitate the allocation of shares in accordance with the above
provisions, MiniMed or the underwriters may round the number of shares allocated
to any Holder to the nearest 100 shares. If any Holder of Registrable Securities
disapproves of the terms of the underwriting, such person may elect to withdraw
therefrom by written notice to MiniMed, the managing underwriter and the
Initiating Holders. If MiniMed initiates a registration, then in no event shall
the number of shares to be registered for sale by MiniMed be reduced, unless the
shares requested for inclusion by the Holder and all other holders having
registration rights have been eliminated entirely.
(c) Right to Terminate Registration. MiniMed shall have the right to
terminate or withdraw any registration initiated by it under this Section 2.2
prior to the effectiveness of such registration whether or not any Holder has
elected to include securities in such registration.
2.3 Registration on Form S-3. If any Holder or Holders who in the
aggregate hold 20% or more of the Registrable Securities request that MiniMed
file a registration statement on Form S-3 (or any successor form to Form S-3)
for the sale of at least 20% of the shares of the
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Registrable Securities initially issued pursuant to the Investment Agreements,
and MiniMed is a registrant entitled to use Form S-3 to register the Registrable
Securities for such sales, MiniMed shall use its best efforts to cause such
Registrable Securities to be registered for the offering on such form. The
substantive provisions of Section 2.1(b) shall be applicable to each
registration initiated under this Section 2.3; however, a registration initiated
under this Section 2.3 shall not be deemed a registration pursuant to Section
2.1(a). MiniMed may delay the filing of any registration statement requested
pursuant to this Section 2.3 to a date not more than one hundred twenty (120)
days following the date of such request if MiniMed's Board of Directors makes a
good faith determination that such a delay is necessary in order not to
significantly adversely interfere with or affect the negotiation or completion
of a material transaction that is being contemplated by MiniMed (in which case
the Effectiveness Period of a Registration Statement filed under this Section
2.3 shall be extended by a period equal to the period of such delay); provided
that MiniMed may not exercise such right of delay more than once in any 12-month
period whether under this Section 2.3 or Section 2.4(j) below. Subject to the
limitation on the number of registrations under this Section 2.3 and the
preceding sentence and succeeding sentence, MiniMed shall file a registration
statement covering the Registrable Securities so requested to be registered as
soon as practicable, after receipt of the request or requests. MiniMed shall not
be required to effect more than one registration pursuant to this Section 2.3 or
Section 2.1 in any six-month period.
2.4 Registration Procedures. In connection with MiniMed's registration
obligations under Section 2.1, 2.2 or 2.3 hereof, MiniMed shall effect such
registration to permit the sale of the Registrable Securities in accordance with
the method or methods of disposition thereof intended by the Holder, and
pursuant thereto MiniMed shall as expeditiously as practicable:
(a) Before filing any 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 MiniMed
is required by applicable securities laws or stock exchange or quotation system
requirements to file), furnish to the Holders copies of all such documents
proposed to be filed, which documents will be subject to the review of such
Holders and their counsel, if any, and MiniMed shall not file any such
Registration Statement or amendment thereto or any Prospectus or any supplement
thereto (other than such documents which, upon filing, would be incorporated or
deemed to be incorporated by reference therein and that MiniMed is required by
applicable securities laws or stock exchange or quotation system requirements to
file) to which the Holders of a majority of the securities covered by such
Registration Statement shall reasonably object on a timely basis. In the event
of any such objection, the Holders shall provide MiniMed with any requested
revisions to such prospectus or supplement within ten (10) business days of such
objection.
(b) Prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as may be necessary to
keep such Registration Statement continuously effective for the Effectiveness
Period; cause the related Prospectus to be amended or supplemented by any
required Prospectus amendment or supplement, and as so amended or 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
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to the disposition of all securities covered by such Registration Statement
during the applicable period in accordance with the methods of disposition
intended by the Holders thereof set forth in such Registration Statement as so
amended or in such Prospectus as so supplemented.
(c) Notify the Holders promptly, and confirm such notice in writing, (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
Commission 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 Commission 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 MiniMed 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 existence of any fact
or the happening of any event that 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 the 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
MiniMed's reasonable determination that a post-effective amendment to a
Registration Statement would be appropriate.
(d) Use best efforts 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 within the United States, at the
earliest practicable time.
(e) If reasonably requested by the Holders of a majority of the
securities being sold, (i) promptly incorporate in a Prospectus supplement or
post-effective amendment such information as MiniMed and the Holders of a
majority of such securities agree 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 MiniMed 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, that
MiniMed shall not be required to take any actions under this paragraph that are
not, in the opinion of counsel for MiniMed, in compliance with applicable law.
(f) Furnish to each Holder and its counsel, if any, upon written request
and without charge to such Holder, at least one conformed copy of the
Registration Statement or Statements
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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 such
Holder or counsel).
(g) Deliver to each Holder and its counsel, if any, 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 in writing; and
MiniMed hereby consents to the use of such Prospectus or each amendment or
supplement thereto by each Holder in connection with the offering and sale of
the Registrable Securities covered by such Prospectus or any amendment or
supplement thereto.
(h) Use reasonable efforts to register and qualify the Registrable
Securities under (or obtain exemption from) the securities or Blue Sky laws of
such jurisdictions within the United States as any Holder reasonably requests in
writing; use reasonable efforts to keep each such registration or qualification
(or exemption therefrom) effective during the Effectiveness Period and use
reasonable efforts to 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 MiniMed 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) Cause the Registrable Securities covered by the applicable
Registration Statement to be registered with or approved by such other
governmental agencies or authorities within the United States, except as may be
required solely as a consequence of the nature of any Holder or Holders, in
which case MiniMed will cooperate in all reasonable respects with the granting
of such approvals, as may be necessary to enable such Holder or Holders to
consummate the disposition of such Registrable Securities.
(j) Within five (5) business days following the occurrence of any event
contemplated by paragraphs 2.4(c)(v) or 2.4(c)(vi) above, prepare and file with
the Commission a supplement or post-effective amendment to each Registration
Statement or an amendment or supplement to the related Prospectus or any
document incorporated therein by reference or file any other required document
(such as a Current Report on Form 8-K) so that, as thereafter delivered to the
purchasers of the Registrable Securities being sold thereunder, 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; provided, however, that the five (5) business day period may be
extended by an additional one hundred twenty (120) days if such amended or
supplemental disclosures would significantly adversely interfere with or affect
the negotiation or completion of a material transaction that is being
contemplated by MiniMed at such time and MiniMed shall furnish to the Holders
notice to that effect; provided, further, that MiniMed may not effect more than
one delay during any 12-month period whether under this Section 2.4(j) or
Sections 2.1 or 2.3.
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(k) If necessary in connection with a disposition of Registrable
Securities, make available for inspection, at the offices where normally kept
during reasonable business hours, by a representative of any Holder and any
attorney or accountant retained by such Holder, financial and other records,
pertinent corporate documents and properties of MiniMed and its subsidiaries as
they may reasonably request, and cause the officers, directors and employees of
MiniMed and its subsidiaries to supply all information reasonably requested by
any such representative, attorney or accountant in connection with such
disposition; provided, that any records, information or documents that are
designated by MiniMed in writing as confidential at the time of delivery of such
records, information or documents shall be kept confidential by such Persons,
and such Persons shall so agree in writing.
(l) Comply with all applicable rules and regulations of the Commission
and make generally available to its security holders earning statements
satisfying the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder 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 MiniMed, after the
effective date of a Registration Statement, which statements shall cover said
12-month period.
(m) Cooperate with the Holders and transfer agent and registrar to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any restrictive legends; and
enable such Registrable Securities to be in such denominations and registered in
such names as a Holder may request.
(n) Cause the Shares to be listed on each securities exchange or
quotation system on which MiniMed's Common Stock is then listed no later than
the date the Registration Statement is declared effective and, in connection
therewith, to the extent applicable, to make any required filings under the
Exchange Act and to have such filings declared effective thereunder.
In connection with the disclosures in a Registration Statement, as
required under the Securities Act, MiniMed may require a Holder, and each Holder
agrees, to furnish to MiniMed in writing such information regarding the
distribution of the Registrable Securities covered by such Registration
Statement as MiniMed may, from time to time, reasonably request in writing and
MiniMed may exclude from such registration the Registrable Securities of any
Holder if such Holder unreasonably falls to furnish such information in writing
within a reasonable time after receiving such request. Each Holder agrees
promptly to furnish to MiniMed all information required to be disclosed in such
Registration Statement in order to make the information previously furnished to
MiniMed by such Holder not misleading. Any sale of any Registrable Securities by
any Holder shall constitute a representation and warranty by such Holder that
the required information relating to such Holder and its plan of distribution is
as set forth in the Prospectus delivered by such Holder in connection with such
disposition, that such Prospectus does not as of the time of such sale contain
any untrue statement of a material fact relating to such Holder or its plan of
distribution and that such Prospectus does not as of the time of such sale omit
to state any material fact relating to such Holder or its plan of distribution
necessary to make the statements in such Prospectus, in the light of the
circumstances under which they were made, not misleading.
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Each Holder agrees that, upon receipt of any notice from MiniMed of the
happening of any event of the kind described in paragraphs 2.4(c)(ii),
2.4(c)(iii), 2.4(c)(iv), 2.4(c)(v) or 2.4(c)(vi) hereof, such Holder will
forthwith discontinue disposition of such Registrable Securities covered by the
applicable Registration Statement or Prospectus until such Holder's receipt of
the copies of the supplemented or amended Prospectus contemplated by paragraph
2.4(j) hereof, or until such Holder is advised in writing by MiniMed 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. MiniMed agrees to so advise such
Holder promptly after MiniMed determines that the use of the applicable
Prospectus may be resumed.
2.5 Registration Expenses. All fees and expenses incident to the
performance of or compliance with this Agreement by MiniMed shall be borne by
MiniMed whether or not any of the Registration Statements become effective and
whether or not any of the Registrable Securities are transferred pursuant to the
Registration Statement. Such fees and expenses shall include, without
limitation, (i) all registration and filing fees (including, without limitation,
fees and expenses (A) with respect to designation of the Registrable Securities
as eligible for trading on applicable securities exchange or quotation system,
and (B) of compliance with securities or Blue Sky laws), (ii) printing expenses
(including, without limitation, expenses of printing certificates for
Registrable Securities in a form eligible for deposit with The Depository Trust
Company and of printing Prospectuses), (iii) messenger, telephone and delivery
expenses, (iv) fees and disbursements of counsel for MiniMed in connection with
MiniMed's performance of its obligations under this Agreement, (v) reasonable
fees and disbursements of all independent certified public accountants, (vi)
Securities Act liability insurance if MiniMed so desires such insurance, (vii)
fees and expenses of all other persons retained by MiniMed in connection with
the performance by MiniMed of its duties under this Agreement and (viii) fees
and expenses of counsel to MAMI up to a maximum of $25,000. Notwithstanding the
generality of the foregoing, MiniMed shall not be responsible for paying the
expenses of Holder, or its counsel, incurred in connection with the registration
or approval of the Registration Statement or the transactions contemplated
thereby by governmental agencies or authorities other than those administering
applicable securities laws and applicable exchange or quotation system
regulations. In addition, MiniMed will, in any event, bear its own 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 fees and expenses incurred in connection with the listing
of the Registrable Securities on any securities exchange or quotation system on
which similar securities issued by MiniMed are then listed and the fees and
expenses of any person, including special experts, retained by MiniMed.
2.6 Limitations on Additional Registration Rights. The registration
statement filed in accordance with Section 2.1, 2.2 or 2.3 may include other
securities of MiniMed with respect to which registration rights have been
granted, and may include securities of MiniMed being sold for the account of
MiniMed; provided however, that such inclusions do not adversely affect the
registration or distribution of the Registrable Securities.
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3. Indemnification.
3.1 By MiniMed. To the maximum extent permitted by law, MiniMed will
indemnify and hold harmless each Holder of Registrable Securities, each person,
if any, who controls such Holder within the meaning of the Securities Act or the
Exchange Act, and each underwriter, if any, of Registrable Securities, against
any losses, claims, damages, liabilities or expenses (joint or several)
(collectively "Losses") to which they may become subject under the Securities
Act, the Exchange Act or other federal or state law, insofar as such Losses (or
actions in respect thereof) arise out of or are based upon any of the following
statements, omissions or violations (collectively, a "Violation"): (i) any
untrue statement or alleged untrue statement of a material fact contained in
such registration statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements thereto, (ii) 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, or
(iii) any violation or alleged violation by MiniMed of the Securities Act, the
Exchange Act, any state securities law or any rule or regulation promulgated
under the Securities Act, the Exchange Act or any state securities law. MiniMed
will reimburse each such Holder or controlling person for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such Losses (or action in respect thereof); provided, however,
that the indemnity agreement contained in this Section 3.1 shall not apply to
amounts paid in settlement of any such Losses (or action in respect thereof) if
such settlement is effected without the consent of MiniMed (in which case the
parties shall first have met and conferred in good faith regarding such
settlement), nor shall MiniMed be liable in any such case for any such Losses
(or action in respect thereof) to the extent that they arise out of or are based
upon a Violation which arises out of or is based upon information furnished in
writing expressly for use in connection with such registration by any such
Holder, controlling person, as the case may be; provided, further, that MiniMed
will not be liable to any Holder or controlling person or underwriter, as the
case may be with respect to any Losses arising out of or based upon any untrue
statement or alleged untrue statement or omission or alleged omission to state a
material fact in any preliminary prospectus which is corrected in an amended,
supplemented or final prospectus if the purchaser asserting such Losses
purchased from such Holder or underwriter, as applicable, and was not, due to
the fault of such Holder, sent or given a copy of such amended, supplemented or
final prospectus at or prior to the sale of Registrable Securities to such
purchaser.
3.2 By Holders. To the maximum extent permitted by law, each Holder
(severally, but not jointly) will, if Registrable Securities held by such Holder
are included in the Registrable Securities as to which such registration,
qualification or compliance is being effected, indemnify and hold harmless
MiniMed and each person who controls MiniMed within the meaning of the
Securities Act or the Exchange Act, against any Losses to which MiniMed or any
such director or controlling person may become subject, under the Securities
Act, the Exchange Act or other federal or state law, insofar as such Losses (or
actions in respect thereto) arise out of or are based upon any Violation, in
each case to the extent (and only to the extent) that such Violation arises out
of or is based upon information furnished by such Holder in writing expressly
for use in connection with such registration; and each such Holder will
reimburse any legal or other expenses reasonably incurred by MiniMed or any such
controlling person in connection with
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investigating or defending any such Losses (or actions in respect thereof);
provided, however, that the indemnity agreement contained in this Section 3.2
shall not apply to amounts paid in settlement of any such Losses (or actions in
respect thereof) if such settlement is effected without the consent of the
Holder (in which case the parties shall first have met and conferred in good
faith regarding such settlement). Each Holder's liability under this Section 3.2
shall not exceed the proceeds received by such Holder from the sale of
Registrable Securities held by such Holder included in such registration,
qualification or compliance.
3.3 Procedures. Each party entitled to indemnification under this
Section (the "Indemnified Party") shall give notice to the party required to
provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may be
sought, and shall permit the Indemnifying Party to assume the defense of any
such claim or any litigation resulting therefrom, provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or litigation,
shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld or delayed). Without limiting the generality of the
foregoing, if the Indemnified Party has been advised in writing by its counsel
that representation of both the Indemnified and Indemnifying Party by the same
counsel would be inappropriate under standards of professional conduct due to
actual or potential differing interests, with respect to such claim or
litigation, the Indemnifying Party shall bear the expense of another counsel who
shall represent the Indemnified Party and any other persons or entities who have
indemnification rights from the Indemnifying Party hereunder, with respect to
such claim or litigation, and shall be selected as provided in the first
sentence of this Section 3.3. The Indemnified Party may participate in such
defense at such party's expense (except to the extent that the Indemnifying
Party is required to pay the expense of such counsel pursuant to this Section
3.3), and provided further that the failure of any Indemnified Party to give
notice as provided herein shall not relieve the Indemnifying Party of its
obligations under this Agreement, except to the extent such failure is
prejudicial to the Indemnifying Party in defending such claim or litigation. No
Indemnifying Party, in the defense of any such claim or litigation, shall,
except with the consent of each Indemnified Party (which consent shall not be
unreasonably withheld or delayed), 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 such Indemnified Party of a release from
all liability with respect to such claim or litigation.
3.4 Contribution. If the indemnification provided for in this Section is
held by a court of competent jurisdiction to be unavailable to an Indemnified
Party with respect to any Losses referred to therein, then the Indemnifying
Party, in lieu of indemnifying such Indemnified Party hereunder, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such Losses in such proportion as is appropriate to reflect the relative
fault of the Indemnifying Party (on the one hand) and of the Indemnified Party
(on the other) in connection with the statements or omissions which resulted in
such Losses as well as any other relevant equitable considerations. The relative
fault of the Indemnifying Party and of the Indemnified Party shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact relates to
information supplied by the Indemnifying Party or by the Indemnified Party and
the parties' relative intent,
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knowledge, access to information and opportunity to correct or prevent such
statement or omission.
4. Information Requirements. MiniMed shall file in a timely manner the
reports required to be filed by it under the Securities Act and the Exchange
Act, and if at any time MiniMed is not required to file such reports, it will,
upon the request of any Holder, make publicly available other information so
long as necessary to permit sales pursuant to Rule 144 under the Securities Act.
MiniMed further covenants that it will cooperate with any Holder and take such
further action as such Holder may reasonably request (including without
limitation making such representations as any such Holder may reasonably
request), all to the extent required from time to time to enable such Holder to
sell Registrable Securities without registration under the Securities Act within
the limitation of the exemptions provided by Rule 144 under the Securities Act.
Upon the request of any Holder, MiniMed shall deliver to such Holder a written
statement as to whether it has complied with such filing requirements. MiniMed
shall file in a timely manner 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 any Securities Act registration form used in connection with any
Shelf Registration effected pursuant hereto in order to allow MiniMed to be
eligible to file registration statements on such form.
5. Miscellaneous.
5.1 Construction. MiniMed and MAMI have participated jointly in the
negotiation and drafting of this Agreement. No presumption or burden of proof
shall arise favoring or disfavoring any party by virtue of the authorship of any
of the provisions of this Agreement.
5.2 No Inconsistent Agreements. MiniMed has not entered, as of the date
hereof, and shall not enter, on or after the date of this Agreement, any
agreement with respect to its securities which is inconsistent with the rights
granted to the Holders in this Agreement.
5.3 Amendment and Waiver. The parties may, by mutual agreement, amend
this Agreement in any respect in a writing executed by each party, and any
party, as to such party, may waive any of its rights hereunder. To be effective,
any such waiver must be in writing and be signed by the party providing such
waiver. The rights and remedies herein provided are cumulative and are not
exclusive of any rights or remedies which any party may otherwise have at law or
in equity. The waiver by any party hereto of any breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent
breach, whether or not similar.
5.4 Notices. Any notice, request, demand, waiver, consent, approval or
other communication which is required or permitted to be given to any party
hereunder shall be in writing and shall be deemed given only if delivered to the
party personally or sent to the party by telecopy, telegram or by registered or
certified mail (return receipt requested) with postage and registration or
certification fees thereon prepaid, addressed to the party at its address set
forth below, or to such other address as any party may have furnished to the
other party in writing in accordance with this Agreement:
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If to MiniMed:
MiniMed Inc.
12744 San Fernando Road
Sylmar, California 91342
Fax: (818) 367-1460
Attention: General Counsel
If to MAMI:
c/o Medtronic, Inc.
Corporate Center
7000 Central Avenue N.E.
Minneapolis, Minnesota 55432
with separate copies to:
Attention: General Counsel
Telecopy Number: (612) 572-5459
Attention: Vice President and Chief Development Officer
Telecopy Number: (612) 572-5404
5.5 Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns. MiniMed may not assign its rights or obligations
hereunder without the prior written consent of Holders of a majority of the
Registrable Securities.
5.6 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but which together
shall constitute one and the same instrument.
5.7 Headings. The headings preceding the text of the sections and
subsections hereof are inserted solely for convenience of reference, and shall
not constitute a part of this Agreement nor shall they affect its meaning,
construction or effect.
5.8 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Minnesota, without giving effect to the
conflicts of laws principles thereof.
5.9 Consent to Jurisdiction. Each party agrees to non-exclusive personal
jurisdiction and venue in the United States District Court for Minnesota and any
Minnesota State court.
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5.10 Severability. The parties agree that (a) the provisions of this
Agreement shall be severable in the event that any provision hereof is held by a
court of competent jurisdiction to be invalid, void or otherwise unenforceable,
(b) such invalid, void or otherwise unenforceable provision shall be
automatically replaced by another provision which is as similar as possible in
terms to such invalid, void or otherwise unenforceable provision but which is
valid and enforceable, and (c) the remaining provisions shall remain enforceable
to the fullest extent permitted by law.
5.11 Entire Agreement. This Agreement, constitutes the entire
understanding of the parties with respect to the subject matter hereof, and
supersedes any prior agreements or understandings, written or oral, between the
parties with respect to the subject matter hereof.
5.12 No Third Party Beneficiaries. Nothing herein expressed or implied
is intended or should be construed to confer upon or give to any person other
than the parties hereto and their successors and assigns any rights or remedies
under or by reason of this Agreement.
5.13 Attorneys' Fees. In any action or proceeding brought to enforce any
provision of this Agreement, or where any provision hereof is validly asserted
as a defense, the prevailing party, as determined by the court, shall be
entitled to recover reasonable attorneys' fees in addition to any other
available remedy.
5.14 Further Assurances. Each of the parties hereto shall use best
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.
5.15 Termination. This Agreement and the obligations of the parties
hereunder shall terminate at the expiration of two (2) years following the
issuance of the Registrable Securities, except for any liabilities or
obligations under Section 2.5 or 3 or the proviso of paragraph 2.4(k) above,
which shall remain in effect in accordance with their terms.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first written above.
MINIMED INC.
/s/ ALFRED E. MANN
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Name: ALFRED E. MANN
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Title: CHAIRMAN AND CEO
---------------------------------
MEDTRONIC ASSET MANAGEMENT, INC.
/s/ MICHAEL D. ELLWEIN
----------------------------------------
Name: MICHAEL D. ELLWEIN
----------------------------------
Title: V.P.
---------------------------------
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