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a result of sales, pledges, margin
sales and similar transactions by such Purchaser to or with any current
stockholder), solely as a result of such Purchaser’s acquisition
of the Securities under this Agreement, the Company will reimburse such
Purchaser for its reasonable legal and other expenses (including the cost
of any investigation preparation and travel in connection therewith) incurred
in connection therewith, as such expenses are incurred. The reimbursement
obligations of the Company under this paragraph shall be in addition to
any liability which the Company may otherwise have, shall extend upon the
same terms and conditions to any Affiliates of the Purchasers who are actually
named in such action, proceeding or investigation, and partners, directors,
agents, employees and controlling persons (if any), as the case may be,
of the Purchasers and any such Affiliate, and shall be binding upon and
inure to the benefit of any successors, assigns, heirs and personal representatives
of the Company, the Purchasers and any such Affiliate and any such Person.
The Company also agrees that neither the Purchasers nor any such Affiliates,
partners, directors, agents, employees or controlling persons shall have
any liability to the Company or any Person asserting claims on behalf of
or in right of the Company solely as a result of acquiring the Securities
under this Agreement.
4.9 Indemnification
of Purchasers. The Company will indemnify and hold the Purchasers
and their directors, officers, shareholders, partners, employees and
agents (each, a “Purchaser Party”) harmless from any
and all losses, liabilities, obligations, claims, contingencies, damages,
costs and expenses, including all judgments, amounts paid in settlements,
court costs and reasonable attorneys’ fees and costs of investigation
that any such Purchaser Party may suffer or incur as a result of or relating
to: (a) any misrepresentation, breach or inaccuracy, or any allegation
by a third party that, if true, would constitute a breach or inaccuracy,
of any of the representations, warranties, covenants or agreements made
by the Company in this Agreement or in the other Transaction Documents;
or (b) any cause of action, suit or claim brought or made against such
Purchaser Party and arising solely out of or solely resulting from the
execution, delivery, performance or enforcement of this Agreement or
any of the other Transaction Documents, other than directly resulting
from the gross negligence or willful misconduct of the Purchasers. The
Company will reimburse such Purchaser for its reasonable legal and other
expenses (including the cost of any investigation, preparation and travel
in connection therewith) incurred in connection therewith, as such expenses
are incurred.
4.10 Reservation
of Common Stock. As of the date hereof, the Company has reserved
and the Company shall continue to reserve and keep available at all times,
free of preemptive rights, a sufficient number of shares of Common Stock
(including ADRs) for the purpose of enabling the Company to issue Shares
pursuant to this Agreement and Warrant Shares pursuant to the Warrants.
4.11 Listing
of Common Stock. The Company hereby agrees, promptly following the
Closing, to take such action to cause the ADRs constituting the Shares
and Warrant Shares to be quoted on the Trading Market as promptly as
possible but no later than the Effective Date. The Company further agrees
that if the Company applies to have the Common Stock or other securities,
represented by ADRs or otherwise, traded on any other principal stock
exchange or market, it will include in such application the Shares and
Warrant Shares and will take such other action as is necessary to cause
such
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Common Stock to be so listed.
The Company hereby agrees to use commercially reasonable efforts to maintain
the listing of the ADRs on a Trading Market. The Company will take all
action reasonably necessary to continue the listing and trading of its
ADRs on a Trading Market and will comply in all respects with the Company’s
reporting, filing and other obligations under the bylaws or rules of the
Trading Market.
4.12 Equal
Treatment of Purchasers. No consideration shall be offered or paid
to any person to amend or consent to a waiver or modification of any
provision of any of the Transaction Documents unless the same consideration
is also offered to all of the parties to the Transaction Documents. For
clarification purposes, this provision constitutes a separate right granted
to each Purchaser by the Company and negotiated separately by each Purchaser,
and is intended to treat for the Company the Purchasers as a class and
shall not in any way be construed as the Purchasers acting in concert
or as a group with respect to the purchase, disposition or voting of
Securities or otherwise.
4.13 Participation
in Future Financing. From the date hereof until 12 months after the
Effective Date, the Company shall not effect a financing of its Common
Stock or Common Stock Equivalents (a “Subsequent Financing”)
unless (i) the Company delivers to each of such Purchasers a written
notice at least 5 Trading Days prior to the closing of such Subsequent
Financing (the “Subsequent Financing Notice”) of its
intention to effect such Subsequent Financing, which Subsequent Financing
Notice shall describe in reasonable detail the proposed terms of such
Subsequent Financing, the amount of proceeds intended to be raised thereunder,
the Person with whom such Subsequent Financing is proposed to be effected,
and attached to which shall be a term sheet or similar document relating
thereto and (ii) such Purchaser shall not have notified the Company by
6:30 p.m. (New York City time) on the fifth (5th) Trading
Day after its receipt of the Subsequent Financing Notice of its willingness
to participate in such transaction by purchasing in such transaction
an amount of the identical securities issued in such transaction equal
to the 33.33% of the amount purchased by such other investors (or to
cause its designee to provide), subject to completion of mutually acceptable
documentation, all or part of such financing to the Company on the same
terms set forth in the Subsequent Financing Notice. If one or more Purchasers
shall fail to so notify the Company of their willingness to participate
in the Subsequent Financing, the Company may effect the remaining portion
of such Subsequent Financing on the terms and to the Persons set forth
in the Subsequent Financing Notice; provided that the Company must provide
the Purchasers with a second Subsequent Financing Notice, and the Purchasers
will again have the right of first refusal set forth above in this Section
4.13, if the Subsequent Financing subject to the initial Subsequent Financing
Notice is not consummated for any reason on the terms set forth in such
Subsequent Financing Notice within 60 Trading Days after the date of
the initial Subsequent Financing Notice with the Person identified in
the Subsequent Financing Notice. In the event the Company receives responses
to Subsequent Financing Notices from Purchasers seeking to purchase more
than the financing sought by the Company in the Subsequent Financing
such Purchasers shall have the right to purchase their Pro Rata Portion
(as defined below) of the Common Stock or Common Stock Equivalents to
be issued in such Subsequent Financing. “Pro Rata Portion” is
the ratio of (x) such Purchaser’s Subscription Amount and (y) the
aggregate sum of all of the Subscription Amounts. Notwithstanding the
foregoing, this
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Section 4.13 shall not apply in
respect of the issuance of (a) shares of Common Stock or options to employees,
officers or directors of the Company pursuant to any stock or option plan
duly adopted by a majority of the non-employee members of the Board of
Directors of the Company or a majority of the members of a committee of
non-employee directors established for such purpose or (b) securities upon
the exercise of or conversion of any convertible securities, options or
warrants issued and outstanding on the date of this Agreement, provided
that such securities have not been amended since the date of this Agreement.
4.14 Subsequent
Equity Sales. From the date hereof until 20 days after the Effective
Date, neither the Company nor any Subsidiary shall issue shares of Common
Stock or Common Stock Equivalents; provided, however, the
20 day period set forth in this Section 4.14 shall be extended for the
number of Trading Days during such period in which (y) trading in the
Common Stock is suspended by any Trading Market, or (z) following the
Effective Date, the Registration Statement is not effective or the prospectus
included in the Registration Statement may not be used by the Purchasers
for the resale of the Shares and Warrant Shares. Notwithstanding the
foregoing, this Section 4.14 shall not apply in respect of the issuance
of (a) shares of Common Stock or options to employees, officers or directors
of the Company pursuant to any stock or option plan duly adopted by a
majority of the non-employee members of the Board of Directors of the
Company or a majority of the members of a committee of non-employee directors
established for such purpose or (b) securities upon the exercise of or
conversion of any convertible securities, options or warrants issued
and outstanding on the date of this Agreement, provided that such securities
have not been amended since the date of this Agreement.
4.15 Share
and Warrant Share Delivery. After the Legend Removal Date (as defined
in Section 4.1(c)), upon deliver of the Shares or the Warrant Shares,
as the case may be, to the American depository agent of the Company,
currently The Bank of New York, the Company shall issue irrevocable instructions
to such depository agent to issue ADRs to the applicable balance accounts
at the Depository Trust Company (“DTC”), registered
in the name of each Purchaser or its respective nominee(s), for such
Shares and Warrant Shares, in such amounts as specified from time to
time by each Purchaser to the Company. The Company warrants that
no instruction other than the instructions referred to in this Section 4.15,
and stop transfer instructions to give effect to Section 4.1, will be
given by the Company to its depository or transfer agent, and that such
Securities shall otherwise be freely transferable on the books and records
of the Company as and to the extent provided in this Agreement and the
other Transaction Documents. If a Purchaser effects a sale, assignment
or transfer of such Securities in accordance with Section 4.1, the Company
shall permit the transfer and shall promptly take all actions necessary
and instruct its transfer or depository agent to issue one or more certificates
or credit shares to the applicable balance accounts at DTC in such name
and in such denominations as specified by such Purchaser to effect such
sale, transfer or assignment. Unless required by applicable securities
laws, the transfer or depository agent shall issue such Securities to
the Purchaser, assignee or transferee, as the case may be, without any
restrictive legend. The Company acknowledges that a breach by it
of its obligations hereunder will cause irreparable harm to a Purchaser. Accordingly,
the Company acknowledges that the
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remedy at law for a breach of its
obligations under this Section 4.15 will be inadequate and agrees,
in the event of a breach or threatened breach by the Company of the provisions
of this Section 4.15, that a Purchaser shall be entitled, in addition
to all other available remedies, to an order and/or injunction restraining
any breach and requiring immediate issuance and transfer, without the necessity
of showing economic loss and without any bond or other security being required.
ARTICLE V.
MISCELLANEOUS
5.1 Fees
and Expenses. Each party shall pay the fees and expenses of its advisers,
counsel, accountants and other experts, if any, and all other expenses
incurred by such party incident to the negotiation, preparation, execution,
delivery and performance of this Agreement. The Company shall pay all
stamp and other taxes and duties levied in connection with the sale of
the Securities.
5.2 Entire
Agreement. The Transaction Documents, together with the exhibits
and schedules thereto, contain the entire understanding of the parties
with respect to the subject matter hereof and supersede all prior agreements
and understandings, oral or written, with respect to such matters, which
the parties acknowledge have been merged into such documents, exhibits
and schedules.
5.3 Notices.
Any and all notices or other communications or deliveries required or permitted
to be provided hereunder shall be in writing and shall be deemed given
and effective on the earliest of (a) the date of transmission, if such
notice or communication is delivered via facsimile at the facsimile number
set forth on the signature pages attached hereto prior to 6:30 p.m. (New
York City time) on a Trading Day, (b) the next Trading Day after the date
of transmission, if such notice or communication is delivered via facsimile
at the facsimile number set forth on the signature pages attached hereto
on a day that is not a Trading Day or later than 6:30 p.m. (New York City
time) on any Trading Day, (c) the second Trading Day following the date
of mailing, if sent by U.S. nationally recognized overnight courier service,
or (d) upon actual receipt by the party to whom such notice is required
to be given. The address for such notices and communications shall be as
set forth on the signature pages attached hereto.
5.4 Amendments;
Waivers. No provision of this Agreement may be waived or amended
except in a written instrument signed, in the case of an amendment, by
the Company and each Purchaser or, in the case of a waiver, by the party
against whom enforcement of any such waiver is sought. No waiver of any
default with respect to any provision, condition or requirement of this
Agreement shall be deemed to be a continuing waiver in the future or
a waiver of any subsequent default or a waiver of any other provision,
condition or requirement hereof, nor shall any delay or omission of either
party to exercise any right hereunder in any manner impair the exercise
of any such right.
5.5 Construction.
The headings herein are for convenience only, do not constitute a part
of this Agreement and shall not be deemed to limit or affect any of the
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provisions hereof. The language
used in this Agreement will be deemed to be the language chosen by the
parties to express their mutual intent, and no rules of strict construction
will be applied against any party.
5.6 Successors
and Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties and their successors and permitted assigns. The
Company may not assign this Agreement or any rights or obligations hereunder
without the prior written consent of each Purchaser. Any Purchaser may
assign any or all of its rights under this Agreement to any Person to
whom such Purchaser assigns or transfers any Securities, provided such
transferee agrees in writing to be bound, with respect to the transferred
Securities, by the provisions hereof that apply to the “Purchasers”.
5.7 No
Third-Party Beneficiaries. This Agreement is intended for the benefit
of the parties hereto and their respective successors and permitted assigns
and is not for the benefit of, nor may any provision hereof be enforced
by, any other Person, except as otherwise set forth in Section 4.8.
5.8 Governing
Law. All questions concerning the construction, validity, enforcement
and interpretation of the Transaction Documents shall be governed by
and construed and enforced in accordance with the internal laws of the
State of New York, without regard to the principles of conflicts of law
thereof. Each party agrees that all legal proceedings concerning the
interpretations, enforcement and defense of the transactions contemplated
by this Agreement and any other Transaction Documents (whether brought
against a party hereto or its respective affiliates, directors, officers,
shareholders, employees or agents) shall be commenced exclusively in
the state and federal courts sitting in the City of New York. Each party
hereto hereby irrevocably submits to the exclusive jurisdiction of the
state and federal courts sitting in the City of New York, New York for
the adjudication of any dispute hereunder or in connection herewith or
with any transaction contemplated hereby or discussed herein (including
with respect to the enforcement of any of the Transaction Documents),
and hereby irrevocably waives, and agrees not to assert in any suit,
action or proceeding, any claim that it is not personally subject to
the jurisdiction of any such court, that such suit, action or proceeding
is improper. Each party hereto hereby irrevocably waives personal service
of process and consents to process being served in any such suit, action
or proceeding by delivering a copy thereof via overnight delivery (with
evidence of delivery) to such party at the address in effect for notices
to it under this Agreement and agrees that such service shall constitute
good and sufficient service of process and notice thereof. Nothing contained
herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law. Each party hereto (including its affiliates,
agents, officers, directors and employees) hereby irrevocably waives,
to the fullest extent permitted by applicable law, any and all right
to trial by jury in any legal proceeding arising out of or relating to
this Agreement or the transactions contemplated hereby. If either party
shall commence an action or proceeding to enforce any provisions of a
Transaction Document, then the prevailing party in such action or proceeding
shall be reimbursed by the other party for its attorneys’ fees
and other costs and expenses incurred with the investigation, preparation
and prosecution of such action or proceeding.
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5.9 Survival.
The representations and warranties herein shall survive the Closing and
delivery of the Shares and Warrant Shares.
5.10 Execution.
This Agreement may be executed in two or more counterparts, all of which
when taken together shall be considered one and the same agreement and
shall become effective when counterparts have been signed by each party
and delivered to the other party, it being understood that both parties
need not sign the same counterpart. In the event that any signature is
delivered by facsimile transmission, such signature shall create a valid
and binding obligation of the party executing (or on whose behalf such
signature is executed) with the same force and effect as if such facsimile
signature page were an original thereof.
5.11 Severability.
If any provision of this Agreement is held to be invalid or unenforceable
in any respect, the validity and enforceability of the remaining terms
and provisions of this Agreement shall not in any way be affected or impaired
thereby and the parties will attempt to agree upon a valid and enforceable
provision that is a reasonable substitute therefor, and upon so agreeing,
shall incorporate such substitute provision in this Agreement.
5.12 Replacement
of Securities. If any certificate or instrument evidencing any Securities
is mutilated, lost, stolen or destroyed, the Company shall issue or cause
to be issued in exchange and substitution for and upon cancellation thereof,
or in lieu of and substitution therefor, a new certificate or instrument,
but only upon receipt of evidence reasonably satisfactory to the Company
of such loss, theft or destruction and customary and reasonable indemnity,
if requested. The applicants for a new certificate or instrument under
such circumstances shall also pay any reasonable third-party costs associated
with the issuance of such replacement Securities.
5.13 Remedies.
In addition to being entitled to exercise all rights provided herein or
granted by law, including recovery of damages, each of the Purchasers and
the Company will be entitled to specific performance under the Transaction
Documents. The parties agree that monetary damages may not be adequate
compensation for any loss incurred by reason of any breach of obligations
described in the foregoing sentence and hereby agrees to waive in any action
for specific performance of any such obligation the defense that a remedy
at law would be adequate.
5.14 Payment
Set Aside. To the extent that the Company makes a payment or payments
to any Purchaser pursuant to any Transaction Document or a Purchaser
enforces or exercises its rights thereunder, and such payment or payments
or the proceeds of such enforcement or exercise or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential,
set aside, recovered from, disgorged by or are required to be refunded,
repaid or otherwise restored to the Company, a trustee, receiver or any
other person under any law (including, without limitation, any bankruptcy
law, state or federal law, common law or equitable cause of action),
then to the extent of any such restoration the obligation or part thereof
originally intended to be satisfied shall be revived and continued in
full force and effect as if such payment had not been made or such enforcement
or setoff had not occurred.
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5.15 Independent
Nature of Purchasers’ Obligations and Rights.
The obligations of each Purchaser under any Transaction Document are
several and not joint with the obligations of any other Purchaser, and
no Purchaser shall be responsible in any way for the performance of the
obligations of any other Purchaser under any Transaction Document. Nothing
contained herein or in any Transaction Document, and no action taken
by any Purchaser pursuant thereto, shall be deemed to constitute the
Purchasers as a partnership, an association, a joint venture or any other
kind of entity, or create a presumption that the Purchasers are in any
way acting in concert or as a group with respect to such obligations
or the transactions contemplated by the Transaction Document. Each Purchaser
shall be entitled to independently protect and enforce its rights, including
without limitation, the rights arising out of this Agreement or out of
the other Transaction Documents, and it shall not be necessary for any
other Purchaser to be joined as an additional party in any proceeding
for such purpose. Each Purchaser has been represented by its own separate
legal counsel in their review and negotiation of the Transaction Documents.
For reasons of administrative convenience only, Purchasers and their
respective counsel have chosen to communicate with the Company through
FW. FW does not represent all of the Purchasers but only Rodman & Renshaw
Inc. The Company has elected to provide all Purchasers with the same
terms and Transaction Documents for the convenience of the Company and
not because it was required or requested to do so by the Purchasers.
(Signature Page Follows)
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IN
WITNESS WHEREOF, the parties hereto have caused this Securities Purchase
Agreement to be duly executed by their respective authorized signatories
as of the date first indicated above.
| TRINITY BIOTECH
PLC |
Address for Notice: |
|
|
|
By:
Name:
Title: |
__________________________________________ |
|
| |
|
| With a copy to
(which shall not constitute notice): |
|
[REMAINDER OF PAGE INTENTIONALLY
LEFT BLANK
SIGNATURE PAGES FOR PURCHASERS FOLLOW]
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IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement
to be duly executed by their respective authorized signatories as of the
date first indicated above.
| PURCHASER
NAME: |
Address for Notice: |
|
|
|
By:
Name:
Title: |
__________________________________________ |
Attn: |
Subscription Amount: $
Shares:
Warrant Shares:
Additional Subscription Amount:
[SIGNATURE PAGE TO TRIB SPA CONTINUED]
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PURCHASER’S SIGNATURE PAGE
TO TRIB SPA (CONT. . . )
| PURCHASER
NAME: |
Address for Notice: |
|
|
|
By:
Name:
Title: |
__________________________________________ |
Attn: |
Subscription Amount: $
Shares:
Warrant Shares:
Additional Subscription Amount:
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Item 4
REGISTRATION RIGHTS AGREEMENT
This
Registration Rights Agreement (this “Agreement”) is made
and entered into as of January 6, 2004, by and among Trinity Biotech plc,
a corporation incorporated in the Republic of Ireland (the “Company”),
and the purchasers signatory hereto (each such purchaser, a “Purchaser” and
collectively, the “Purchasers”).
This
Agreement is made pursuant to the Securities Purchase Agreement, dated as
of the date hereof among the Company and the Purchasers (the “Purchase
Agreement”).
The
Company and the Purchasers hereby agree as follows:
| 1. Definitions.
Capitalized terms used and not otherwise defined herein that are defined
in the Purchase Agreement shall have the meanings given such terms in
the Purchase Agreement. As used in this Agreement, the following terms
shall have the following meanings: |
| |
|
| |
“Advice” shall
have the meaning set forth in Section 6(d). |
| |
|
| |
“Effectiveness
Date” means, with respect to the Registration Statement required
to be filed hereunder, the earlier of (a) the 60th calendar
day following the Closing Date (the 90th calendar day if
the Registration Statement receives a “full review” by
the SEC staff), and (b) the fifth Trading Day following the date on
which the Company is notified by the Commission that the Registration
Statement will not be reviewed or is no longer subject to further review
and comments. |
| |
|
| |
“Effectiveness
Period” shall have the meaning set forth in Section 2(a). |
| |
|
| |
“Event” shall
have the meaning set fort in Section 2(b). |
| |
|
| |
“Event
Date” shall have the meaning set forth in Section 2(b). |
| |
|
| |
“Filing
Date” means, with respect to the Registration Statement required
to be filed hereunder, the 32nd calendar day following the
Closing Date. |
| |
|
| |
“Holder” or “Holders” means
the holder or holders, as the case may be, from time to time of Registrable
Securities. |
| |
|
| |
“Indemnified
Party” shall have the meaning set forth in Section 5(c). |
| |
|
| |
“Indemnifying
Party” shall have the meaning set forth in Section 5(c). |
| |
|
| |
“Losses” shall
have the meaning set forth in Section 5(a). |
| |
|
| |
“Proceeding” means
an action, claim, suit, investigation or proceeding (including, without
limitation, an investigation or partial proceeding, such as a deposition),
whether commenced or threatened. |
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| |
“Prospectus” means
the prospectus included in the Registration Statement (including, without
limitation, a prospectus that includes any 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, with respect to
the terms of the offering of any portion of the Registrable Securities
covered by the 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. |
| |
|
| |
“Registrable
Securities” means all of the Shares and the Warrant Shares,
together with any shares of Common Stock issued or issuable upon any
stock split, dividend or other distribution, recapitalization or similar
event with respect to the foregoing. |
| |
|
| |
“Registration
Statement” means the registration statements required to
be filed hereunder, including (in each case) the Prospectus, amendments
and supplements to the registration statement or Prospectus, including
pre- and post-effective amendments, all exhibits thereto, and all material
incorporated by reference or deemed to be incorporated by reference
in the registration statement. |
| |
|
| |
“Rule
415” means Rule 415 promulgated by the Commission pursuant
to the Securities Act, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the Commission
having substantially the same purpose and effect as such Rule. |
| |
|
| |
“Rule
424” means Rule 424 promulgated by the Commission pursuant
to the Securities Act, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the Commission
having substantially the same purpose and effect as such Rule. |
|
(a) On
or prior to the Filing Date, the Company shall prepare and file with
the Commission the Registration Statement covering the resale of all
of the Registrable Securities for an offering to be made on a continuous
basis pursuant to Rule 415. The Registration Statement required hereunder
shall be on Form F-3 (except if the Company is not then eligible to register
for resale the Registrable Securities on Form F-3, in which case the
Registration shall be on another appropriate form in accordance herewith).
The Registration Statement required hereunder shall contain (except if
otherwise directed by the Holders) substantially the “Plan of
Distribution” attached hereto as Annex A. Subject to
the terms of this Agreement, the Company shall use its best efforts to
cause the Registration Statement to be declared effective under the Securities
Act as promptly as possible after the filing thereof, but in any event
not later than the Effectiveness Date, and shall use its best efforts
to keep the Registration Statement continuously effective under the Securities
Act until the date when all Registrable Securities covered by the Registration
Statement have been sold or may be sold without volume restrictions pursuant
to Rule 144(k) as determined by the counsel to the Company pursuant to
a written opinion letter to such effect, addressed and acceptable to
the Company’s transfer agent and the affected Holders (the “Effectiveness
Period”). |
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| |
(b) If:
(i) a Registration Statement is not filed on or prior to the Filing Date
(if the Company files a Registration Statement without affording the
Holder the opportunity to review and comment on the same as required
by Section 3(a), the Company shall not be deemed to have satisfied this
clause (i)), or (ii) the Company fails to file with the Commission a
request for acceleration in accordance with Rule 461 promulgated under
the Securities Act, within five Trading Days of the date that the Company
is notified (orally or in writing, whichever is earlier) by the Commission
that a Registration Statement will not be “reviewed,” or
is not subject to further review, or (iii) prior to the date when such
Registration Statement is first declared effective by the Commission,
the Company fails to file a pre-effective amendment and otherwise respond
in writing to comments made by the Commission in respect of such Registration
Statement within 15 Trading Days after the receipt of comments by or
notice from the Commission that such amendment is required in order for
a Registration Statement to be declared effective, or (iv) a Registration
Statement filed or required to be filed hereunder is not declared effective
by the Commission on or before the Effectiveness Date, or (v) after a
Registration Statement is first declared effective by the Commission,
it ceases for any reason to remain continuously effective as to all Registrable
Securities for which it is required to be effective, or the Holders are
not permitted to utilize the Prospectus therein to resell such Registrable
Securities, for in any such case 10 consecutive days but no more than
an aggregate of 15 days during any 12 month period (which need not be
consecutive Trading Days)(any such failure or breach being referred to
as an “Event,” and for purposes of clause (i) or (iv)
the date on which such Event occurs, or for purposes of clause (ii) the
date on which such five Trading Day period is exceeded, or for purposes
of clause (iii) the date which such 15 Trading Days is exceeded, or for
purposes of clause (v) the date on which such 10 or 15 day period, as
applicable, is exceeded being referred to as “Event Date”),
then in addition to any other rights the Holders may have hereunder or
under applicable law: (x) except as set forth below, on each such Event
Date the Company shall pay to each Holder an amount in cash, as partial
liquidated damages and not as a penalty, equal to 2.0% of the aggregate
purchase price paid by such Holder pursuant to the Purchase Agreement
for any Registrable Securities then held by such Holder; and (y) on each
monthly anniversary of each such Event Date (if the applicable Event
shall not have been cured by such date) until the applicable Event is
cured, the Company shall pay to each Holder an amount in cash, as partial
liquidated damages and not as a penalty, 2.0% of the aggregate purchase
price paid by such Holder pursuant to the Purchase Agreement for any
Registrable Securities then held by such Holder; provided, however,
that, notwithstanding the foregoing, the partial liquidated damages for
clause (b)(iv) above shall be computed at 1.25% per month, and if the
Registration Statement is declared effective within one month after the
Effective Date, for the first month of any partial liquidated damages
under clause (b)(iv), the 1.25% shall be pro-rated for the number of
days until the date the Registration Statement is declared effective.
If the Company fails to pay any liquidated damages pursuant to this Section
in full within seven days after the date payable, the Company will pay
interest thereon at a rate of 15% per annum (or such lesser maximum amount
that is permitted to be paid by applicable law) to the Holder, accruing
daily from the date such liquidated damages are due until such amounts,
plus all such interest thereon, are paid in full. The liquidated damages
pursuant to the terms hereof shall apply on a daily pro-rata basis for
any portion of a month prior to the cure of an Event. |
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3. Registration
Procedures |
In
connection with the Company's registration obligations hereunder, the Company
shall:
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(a) Not
less than five Trading Days prior to the filing of the Registration Statement
or any related Prospectus or any amendment or supplement thereto, the
Company shall, (i) furnish to the Holders copies of all such documents
proposed to be filed (including documents incorporated or deemed incorporated
by reference to the extent requested by such Person) which documents
will be subject to the review of such Holders, and (ii) cause its officers
and directors, counsel and independent certified public accountants to
respond to such inquiries as shall be necessary, in the reasonable opinion
of respective counsel to conduct a reasonable investigation within the
meaning of the Securities Act. The Company shall not file the Registration
Statement or any such Prospectus or any amendments or supplements thereto
to which the Holders of a majority of the Registrable Securities shall
reasonably object in good faith, provided that the Company is notified
of such objection in writing no later than 5 Trading Days after the Holders
have been so furnished copies of such documents. |
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(b) (i)
Prepare and file with the Commission such amendments, including post-effective
amendments, to the Registration Statement and the Prospectus used in
connection therewith as may be necessary to keep the Registration Statement
continuously effective as to the applicable Registrable Securities for
the Effectiveness Period and prepare and file with the Commission such
additional Registration Statements in order to register for resale under
the Securities Act all of the Registrable Securities; (ii) cause the
related Prospectus to be amended or supplemented by any required Prospectus
supplement, and as so supplemented or amended to be filed pursuant to
Rule 424; (iii) respond as promptly as reasonably possible to any comments
received from the Commission with respect to the Registration Statement
or any amendment thereto and, as promptly as reasonably possible, upon
request, provide the Holders true and complete copies of all correspondence
from and to the Commission relating to the Registration Statement; and
(iv) comply in all material respects with the provisions of the Securities
Act and the Exchange Act with respect to the disposition of all Registrable
Securities covered by the Registration Statement during the applicable
period in accordance with the intended methods of disposition by the
Holders thereof set forth in the Registration Statement as so amended
or in such Prospectus as so supplemented. |
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(c) Notify
the Holders of Registrable Securities to be sold as promptly as reasonably
possible and (if requested by any such Person) confirm such notice in
writing promptly following the day (i)(A) when a Prospectus or any Prospectus
supplement or post-effective amendment to the Registration Statement
is proposed to be filed; (B) when the Commission notifies the Company
whether there will be a “review” of the Registration Statement
and whenever the Commission comments in writing on the |
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Registration Statement (the
Company shall upon request provide true and complete copies thereof and
all written responses thereto to each of the Holders); and (C) with respect
to the 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 the Registration
Statement or 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 the Registration Statement
covering any or all of the Registrable Securities 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; and (v) of the occurrence of any event or
passage of time that makes the financial statements included in the Registration
Statement ineligible for inclusion therein or any statement made in the
Registration Statement or Prospectus or any document incorporated or
deemed to be incorporated therein by reference untrue in any material
respect or that requires any revisions to the Registration Statement,
Prospectus or other documents so that, in the case of the Registration
Statement or the Prospectus, as the case may be, 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 light of the circumstances under which they were made, not
misleading. |
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(d) Use
commercially reasonable efforts to avoid the issuance of, or, if issued,
obtain the withdrawal of (i) any order suspending the effectiveness of
the Registration Statement, or (ii) any suspension of the qualification
(or exemption from qualification) of any of the Registrable Securities
for sale in any jurisdiction, at the earliest practicable moment. |
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(e) Furnish
to each Holder, without charge, at least one conformed copy of the Registration
Statement and each amendment thereto, including financial statements
and schedules, all documents incorporated or deemed to be incorporated
therein by reference to the extent requested by such Person, and all
exhibits to the extent requested by such Person (including those previously
furnished or incorporated by reference) promptly after the filing of
such documents with the Commission. |
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(f) Promptly
deliver to each Holder, without charge, as many copies of the Prospectus
or Prospectuses (including each form of prospectus) and each amendment
or supplement thereto as such Persons may reasonably request in connection
with resales by the Holder of Registrable Securities. Subject to the
terms of this Agreement, the Company hereby consents to the use of such
Prospectus and each amendment or supplement thereto by each of the selling
Holders in connection with the offering and sale of the Registrable Securities
covered by such Prospectus and any amendment or supplement thereto, except
after the giving on any notice pursuant to Section 3(c). |
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(g) Prior
to any resale of Registrable Securities by a Holder, use its commercially
reasonable efforts to register or qualify or cooperate with the selling
Holders in connection with the registration or qualification (or exemption
from the Registration or qualification) of such Registrable Securities
for the resale by the Holder under the securities or Blue Sky laws of
such jurisdictions within the United States as any Holder reasonably
requests in writing, to keep each such Registration or qualification
(or exemption therefrom) effective during the Effectiveness Period and
to do any and all other acts or things reasonably necessary to enable
the disposition in such jurisdictions of the Registrable Securities covered
by the Registration Statement; provided, that the Company shall
not be required to qualify generally to do business in any jurisdiction
where it is not then so qualified, subject the Company to any material
tax in any such jurisdiction where it is not then so subject or file
a general consent to service of process in any such jurisdiction. |
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(h) If
requested by the Holders, cooperate with the Holders to facilitate the
timely preparation and delivery of certificates representing Registrable
Securities to be delivered to a transferee pursuant to the Registration
Statement, which certificates shall be free, to the extent permitted
by the Purchase Agreement, of all restrictive legends, and to enable
such Registrable Securities to be in such denominations and registered
in such names as any such Holders may request. |
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(i) Upon
the occurrence of any event contemplated by Section 3(c)(v), as promptly
as reasonably possible, prepare a supplement or amendment, including
a post-effective amendment, to the Registration Statement or a supplement
to the related Prospectus or any document incorporated or deemed to be
incorporated therein by reference, and file any other required document
so that, as thereafter delivered, neither the Registration Statement
nor such Prospectus will 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 light of the circumstances under which
they were made, not misleading. If the Company notifies the Holders in
accordance with clauses (ii) through (v) of Section 3(c) above to suspend
the use of the use of any Prospectus until the requisite changes to such
Prospectus have been made, then the Holders shall suspend use of such
Prospectus. The Company will use its best efforts to ensure that the
use of the Prospectus may be resumed as promptly as is practicable. The
Company shall be entitled to exercise its right under this Section 3(i)
to suspend the availability of a Registration Statement and Prospectus,
subject to the payment of liquidated damages pursuant to Section 2(b),
for a period not to exceed 60 days (which need not be consecutive days)
in any 12 month period. |
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(j) Comply
with all applicable rules and regulations of the Commission. |
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(k) The
Company may require each Holder to furnish to the Company a certified
statement as to the number of shares of Common Stock beneficially owned
by such Holder and, if required by the Commission, the person thereof
that has voting and dispositive control over the Shares. During any periods
that the Company is unable to meet its obligations hereunder with respect
to the registration of the Registrable Securities solely because any
Holder fails to furnish such information within three Trading Days of
the Company’s request, any liquidated damages that are accruing
at such time as to such Holder only shall be tolled and any Event that
may otherwise occur solely because of such delay shall be suspended as
to such Holder only, until such information is delivered to the Company. |
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| 4. Registration
Expenses. All fees and expenses incident to the performance of
or compliance with this Agreement by the Company shall be borne by
the Company whether or not any Registrable Securities are sold pursuant
to the Registration Statement. The fees and expenses referred to in
the foregoing sentence shall include, without limitation, (i) all registration
and filing fees (including, without limitation, fees and expenses (A)
with respect to filings required to be made with the Trading Market
on which the Common Stock is then listed for trading, and (B) in compliance
with applicable state securities or Blue Sky laws), (ii) printing expenses
(including, without limitation, expenses of printing certificates for
Registrable Securities and of printing prospectuses if the printing
of prospectuses is reasonably requested by the holders of a majority
of the Registrable Securities included in the Registration Statement),
(iii) messenger, telephone and delivery expenses, (iv) fees and disbursements
of counsel for the Company, (v) Securities Act liability insurance,
if the Company so desires such insurance, and (vi) fees and expenses
of all other Persons retained by the Company in connection with the
consummation of the transactions contemplated by this Agreement. In
addition, the Company shall be responsible for all of its internal
expenses incurred in connection with the consummation of the transactions
contemplated by this Agreement (including, without limitation, all
salaries and expenses of its officers and employees performing legal
or accounting duties), the expense of any annual audit and the fees
and expenses incurred in connection with the listing of the Registrable
Securities on any securities exchange as required hereunder. In no
event shall the Company be responsible for any broker or similar commissions
or, except to the extent provided for in the Transaction Documents,
any legal fees or other costs of the Holders. |
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(a) Indemnification
by the Company. The Company shall, notwithstanding any termination
of this Agreement, indemnify and hold harmless each Holder, the officers,
directors, agents and employees of each of them, each Person who controls
any such Holder (within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act) and the officers, directors,
agents and employees of each such controlling Person, to the fullest
extent permitted by applicable law, from and against any and all losses,
claims, damages, liabilities, costs (including, without limitation,
reasonable attorneys’ fees) and expenses (collectively, “Losses”),
as incurred, arising out of or relating to any untrue or alleged untrue
statement of a material fact contained in the Registration Statement,
any Prospectus or any form of prospectus or in any amendment or supplement
thereto or in any preliminary prospectus, or arising out of or relating
to any omission or alleged omission of a material fact required to
be stated therein or necessary to make the statements therein (in the
case of any Prospectus or form of prospectus or supplement thereto,
in light of the circumstances under which they were made) not misleading,
except to the extent, but only to the extent, that (i) such untrue
statements or omissions are based solely upon information regarding
such Holder furnished in writing to the Company by such Holder expressly
for use therein, or to the extent that such information relates to
such Holder or such Holder's proposed method of distribution of Registrable
Securities and was reviewed and expressly approved in writing by such
Holder expressly for use in the Registration Statement, such Prospectus
or such form of |
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Prospectus or in any amendment
or supplement thereto (it being understood that the Holder has approved
Annex A hereto for this purpose) or (ii) in the case of an occurrence
of an event of the type specified in Section 3(c)(ii)-(v), the use by
such Holder of an outdated or defective Prospectus after the Company
has notified such Holder in writing that the Prospectus is outdated or
defective and prior to the receipt by such Holder of the Advice contemplated
in Section 6(d). The Company shall notify the Holders promptly of the
institution, threat or assertion of any Proceeding of which the Company
is aware in connection with the transactions contemplated by this Agreement. |
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(b) Indemnification
by Holders. Each Holder shall, severally and not jointly, indemnify
and hold harmless the Company, its directors, 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, to the fullest extent permitted by applicable law, from and
against all Losses, as incurred, to the extent arising out of or based
solely upon: (x) such Holder’s failure to comply with the prospectus
delivery requirements of the Securities Act or (y) any untrue or alleged
untrue statement of a material fact contained in any Registration Statement,
any Prospectus, or any form of prospectus, or in any amendment or supplement
thereto or in any preliminary prospectus, or arising out of or relating
to any omission or alleged omission of a material fact required to
be stated therein or necessary to make the statements therein not misleading
(i) to the extent, but only to the extent, that such untrue statement
or omission is contained in any information so furnished in writing
by such Holder to the Company specifically for inclusion in the Registration
Statement or such Prospectus or (ii) to the extent that (1) such untrue
statements or omissions are based solely upon information regarding
such Holder furnished in writing to the Company by such Holder expressly
for use therein, or to the extent that such information relates to
such Holder or such Holder’s proposed method of distribution
of Registrable Securities and was reviewed and expressly approved in
writing by such Holder expressly for use in the Registration Statement
(it being understood that the Holder has approved Annex A hereto for
this purpose), such Prospectus or such form of Prospectus or in any
amendment or supplement thereto or (2) in the case of an occurrence
of an event of the type specified in Section 3(c)(ii)-(v), the use
by such Holder of an outdated or defective Prospectus after the Company
has notified such Holder in writing that the Prospectus is outdated
or defective and prior to the receipt by such Holder of the Advice
contemplated in Section 6(d). In no event shall the liability of any
selling Holder hereunder be greater in amount than the dollar amount
of the net proceeds received by such Holder upon the sale of the Registrable
Securities giving rise to such indemnification obligation. |
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(c) Conduct
of Indemnification Proceedings. If any Proceeding shall be brought
or asserted against any Person entitled to indemnity hereunder (an “Indemnified
Party”), such Indemnified Party shall promptly notify the
Person from whom indemnity is sought (the “Indemnifying Party”)
in writing, and the Indemnifying Party shall have the right to assume
the defense thereof, including the employment of counsel reasonably
satisfactory to the Indemnified Party and the payment of all fees and
expenses incurred in connection with defense thereof; provided, that
the failure of any Indemnified Party to give such notice shall not
relieve the Indemnifying Party of its obligations or liabilities pursuant
to this Agreement, except (and only) to the extent that it shall be
finally determined by a court of competent jurisdiction (which determination
is not subject to appeal or further review) that such failure shall
have prejudiced the Indemnifying Party. |
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An
Indemnified Party shall have the right to employ separate counsel in
any such Proceeding and to participate in the defense thereof, but the
fees and expenses of such counsel shall be at the expense of such Indemnified
Party or Parties unless: (1) the Indemnifying Party has agreed in writing
to pay such fees and expenses; (2) the Indemnifying Party shall have
failed promptly to assume the defense of such Proceeding and to employ
counsel reasonably satisfactory to such Indemnified Party in any such
Proceeding; or (3) the named parties to any such Proceeding (including
any impleaded parties) include both such Indemnified Party and the Indemnifying
Party, and such Indemnified Party shall reasonably believe that a material
conflict of interest is likely to exist if the same counsel were to represent
such Indemnified Party and the Indemnifying Party (in which case, if
such Indemnified Party notifies the Indemnifying Party in writing that
it elects to employ separate counsel at the expense of the Indemnifying
Party, the Indemnifying Party shall not have the right to assume the
defense thereof and the reasonable fees and expenses of one separate
counsel shall be at the expense of the Indemnifying Party). The Indemnifying
Party shall not be liable for any settlement of any such Proceeding effected
without its written consent, which consent shall not be unreasonably
withheld. No Indemnifying Party shall, without the prior written consent
of the Indemnified Party, effect any settlement of any pending Proceeding
in respect of which any Indemnified Party is a party, unless such settlement
includes an unconditional release of such Indemnified Party from all
liability on claims that are the subject matter of such Proceeding. |
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Subject
to the terms of this Agreement, all reasonable fees and expenses of the
Indemnified Party (including reasonable fees and expenses to the extent
incurred in connection with investigating or preparing to defend such
Proceeding in a manner not inconsistent with this Section) shall be paid
to the Indemnified Party, as incurred, within ten Trading Days of written
notice thereof to the Indemnifying Party; provided, that the Indemnified
Party shall promptly reimburse the Indemnifying Party for that portion
of such fees and expenses applicable to such actions for which such Indemnified
Party is not entitled to indemnification hereunder, determined based
upon the relative faults of the parties. |
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(d) Contribution.
If a claim for indemnification under Section 5(a) or 5(b) is unavailable
to an Indemnified Party (by reason of public policy or otherwise), then
each Indemnifying Party, in lieu of indemnifying such Indemnified Party,
shall contribute to the amount paid or payable by such Indemnified Party
as a result of such Losses, in such proportion as is appropriate to reflect
the relative fault of the Indemnifying Party and Indemnified Party in
connection with the actions, statements or omissions that resulted in
such Losses as well as any other relevant equitable considerations. The
relative fault of such Indemnifying Party and Indemnified Party shall
be determined by reference to, among other things, whether any action
in question, including any untrue or alleged untrue statement of a material
fact or omission or alleged omission of a material fact, has been taken
or made by, or relates to information supplied by, such Indemnifying
Party or |
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Indemnified Party, and the parties’ relative
intent, knowledge, access to information and opportunity to correct or
prevent such action, statement or omission. The amount paid or payable
by a party as a result of any Losses shall be deemed to include, subject
to the limitations set forth in this Agreement, any reasonable attorneys’ or
other reasonable fees or expenses incurred by such party in connection
with any Proceeding to the extent such party would have been indemnified
for such fees or expenses if the indemnification provided for in this
Section was available to such party in accordance with its terms. |
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The
parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 5(d) were determined by pro rata allocation
or by any other method of allocation that does not take into account
the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 5(d), no Holder
shall be required to contribute, in the aggregate, any amount in excess
of the amount by which the proceeds actually received by such Holder
from the sale of the Registrable Securities subject to the Proceeding
exceeds the amount of any damages that such Holder has otherwise been
required to pay by reason of such untrue or alleged untrue statement
or omission or alleged omission, except in the case of fraud by such
Holder. |
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The
indemnity and contribution agreements contained in this Section are in
addition to any liability that the Indemnifying Parties may have to the
Indemnified Parties. |
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(a) Remedies.
In the event of a breach by the Company or by a Holder, of any of their
obligations under this Agreement, each Holder or the Company, as the
case may be, in addition to being entitled to exercise all rights granted
by law and under this Agreement, including recovery of damages, will
be entitled to specific performance of its rights under this Agreement.
The Company and each Holder agree that monetary damages would not provide
adequate compensation for any losses 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. |
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(b) No
Piggyback on Registrations. Except as set forth on Schedule 6(b)
attached hereto, neither the Company nor any of its security holders
(other than the Holders in such capacity pursuant hereto) may include
securities of the Company in a Registration Statement other than the
Registrable Securities. No Person has any right to cause the Company
to effect the registration under the Securities Act of any securities
of the Company. The Company shall not file any other registration statement
until after the Effective Date. |
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(c) Compliance.
Each Holder covenants and agrees that it will comply with the prospectus
delivery requirements of the Securities Act as applicable to it in connection
with sales of Registrable Securities pursuant to the Registration Statement. |
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(d) Discontinued
Disposition. Each Holder agrees by its acquisition of such Registrable
Securities that, upon receipt of a notice from the Company of the occurrence
of any event of the kind described in Section 3(c), such Holder will
forthwith discontinue disposition of such Registrable Securities under
the Registration Statement until such Holder's receipt of the copies
of the supplemented Prospectus and/or amended Registration Statement
or until it is advised in writing (the “Advice”)
by the Company that the use of the applicable Prospectus may be resumed,
and, in either case, has received copies of any additional or supplemental
filings that are incorporated or deemed to be incorporated by reference
in such Prospectus or Registration Statement. The Company will use
its best efforts to ensure that the use of the Prospectus may be resumed
as promptly as it practicable. The Company agrees and acknowledges
that any periods during which the Holder is required to discontinue
the disposition of the Registrable Securities hereunder shall be subject
to the provisions of Section 2(b). |
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(e) Piggy-Back
Registrations. If at any time during the Effectiveness Period there
is not an effective Registration Statement covering all of the Registrable
Securities and the Company shall determine to prepare and file with
the Commission a registration statement relating to an offering for
its own account or the account of others under the Securities Act of
any of its equity securities, other than on Form S-4 or Form S-8 (each
as promulgated under the Securities Act) or their then equivalents
relating to equity securities to be issued solely in connection with
any acquisition of any entity or business or equity securities issuable
in connection with the stock option or other employee benefit plans,
then the Company shall send to each Holder a written notice of such
determination and, if within fifteen days after the date of such notice,
any such Holder shall so request in writing, the Company shall include
in such registration statement all or any part of such Registrable
Securities such Holder requests to be registered, subject to customary
underwriter cutbacks applicable to all holders of registration rights. |
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(f) 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 same shall be in writing and signed by the Company
and each Holder of the then outstanding Registrable Securities. |
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(g) Notices.
Any and all notices or other communications or deliveries required or
permitted to be provided hereunder shall be made in accordance with the
provisions of the Purchase Agreement. |
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(h) Successors
and Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors and permitted assigns of each of the parties
and shall inure to the benefit of each Holder. Each Holder may assign
their respective rights hereunder in the manner and to the Persons
as permitted under the Purchase Agreement. |
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(i) Execution
and Counterparts. This Agreement may be executed in any number
of 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. In the event that any signature is delivered
by facsimile transmission, such signature shall create a valid binding
obligation of the party executing (or on whose behalf such signature
is executed) the same with the same force and effect as if such facsimile
signature were the original thereof. |
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(j) Governing
Law. All questions concerning the construction, validity, enforcement
and interpretation of this Agreement shall be determined with the provisions
of the Purchase Agreement. |
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(k) Cumulative
Remedies. The remedies provided herein are cumulative and not exclusive
of any remedies provided by law. |
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(l) Severability.
If any term, provision, covenant or restriction of this Agreement is
held by a court of competent jurisdiction to be invalid, illegal, 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 commercially reasonable 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 that may be hereafter
declared invalid, illegal, void or unenforceable. |
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(m) Headings.
The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the meaning hereof. |
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(n) Independent
Nature of Purchasers’ Obligations and Rights. The obligations
of each Holder hereunder are several and not joint with the obligations
of any other Holder hereunder, and no Holder shall be responsible in
any way for the performance of the obligations of any other Holder
hereunder. Nothing contained herein or in any other agreement or document
delivered at any closing, and no action taken by any Holder pursuant
hereto or thereto, shall be deemed to constitute the Holders as a partnership,
an association, a joint venture or any other kind of entity, or create
a presumption that the Holders are in any way acting in concert with
respect to such obligations or the transactions contemplated by this
Agreement. Each Holder shall be entitled to protect and enforce its
rights, including without limitation the rights arising out of this
Agreement, and it shall not be necessary for any other Holder to be
joined as an additional party in any proceeding for such purpose. |
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IN
WITNESS WHEREOF, the parties have executed this Registration Rights Agreement
as of the date first written above.
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TRINITY BIOTECH
PLC |
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By:
Name:
Title: |
__________________________________________ |
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| [SIGNATURE PAGE
OF HOLDERS FOLLOWS] |
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[PURCHASER’S SIGNATURE PAGE
TO TRIB RRA]
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NAME OF PURCHASER: |
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By:
Name:
Title: |
__________________________________________ |
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| [PURCHASERS’ SIGNATURE
PAGE FOLLOWS] |
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[PURCHASER’S SIGNATURE PAGE
TO TRIB RRA]
| NAME OF PURCHASER: |
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By:
Name:
Title: |
__________________________________________ |
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ANNEX A
Plan of Distribution
The
Selling Stockholders (the “Selling Stockholders”) of the
common stock (“Common Stock”) of Trinity Biotech plc,
(the “Company”) and any of their pledgees, assignees and
successors-in-interest may, from time to time, sell any or all of their shares
of Common Stock on any stock exchange, market or trading facility on which
the shares are traded or in private transactions. These sales may be at fixed
or negotiated prices. The Selling Stockholders may use any one or more of
the following methods when selling shares:
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ordinary brokerage transactions and transactions
in which the broker-dealer solicits purchasers; |
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block trades in which the broker-dealer
will attempt to sell the shares as agent but may position and resell
a portion of the block as principal to facilitate the transaction; |
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purchases by a broker-dealer as principal
and resale by the broker-dealer for its account; |
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an exchange distribution in accordance with
the rules of the applicable exchange; |
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privately negotiated transactions; |
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settlement of short sales; |
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broker-dealers may agree with the Selling
Stockholders to sell a specified number of such shares at a stipulated
price per share; |
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a combination of any such methods of sale; |
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through the writing or settlement of options
or other hedging transactions, whether through an options exchange or
otherwise; or |
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any other method permitted pursuant to applicable
law. |
The
Selling Stockholders may also sell shares under Rule 144 under the Securities
Act of 1933, as amended (the “Securities Act”), if available,
rather than under this prospectus.
Broker-dealers
engaged by the Selling Stockholders may arrange for other brokers-dealers
to participate in sales. Broker-dealers may receive commissions or discounts
from the Selling Stockholders (or, if any broker-dealer acts as agent for
the purchaser of shares, from the purchaser) in amounts to be negotiated.
The Selling Stockholders do not expect these commissions and discounts to
exceed what is customary in the types of transactions involved.
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In
connection with the sale of our common stock or interests therein, the Selling
Stockholders may enter into hedging transactions with broker-dealers or other
financial institutions, which may in turn engage in short sales of the common
stock in the course of hedging the positions they assume. The Selling Stockholders
may also sell shares of our common stock short and deliver these securities
to close out their short positions, or loan or pledge the common stock to
broker-dealers that in turn may sell these securities. The Selling Stockholders
may also enter into option or other transactions with broker-dealers or other
financial institutions or the creation of one or more derivative securities
which require the delivery to such broker-dealer or other financial institution
of shares offered by this prospectus, which shares such broker-dealer or
other financial institution may resell pursuant to this prospectus (as supplemented
or amended to reflect such transaction).
The
Selling Stockholders and any broker-dealers or agents that are involved in
selling the shares may be deemed to be “underwriters” within
the meaning of the Securities Act in connection with such sales. In such
event, any commissions received by such broker-dealers or agents and any
profit on the resale of the shares purchased by them may be deemed to be
underwriting commissions or discounts under the Securities Act. The Selling
Stockholders have informed the Company that it does not have any agreement
or understanding, directly or indirectly, with any person to distribute the
Common Stock.
The
Company is required to pay certain fees and expenses incurred by the Company
incident to the registration of the shares. The Company has agreed to indemnify
the Selling Stockholders against certain losses, claims, damages and liabilities,
including liabilities under the Securities Act.
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Item 5
NEITHER THIS SECURITY NOR THE SECURITIES
INTO WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES
AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE
UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY
NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN
A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED
BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR REASONABLY ACCEPTABLE TO
THE COMPANY TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE
TO THE COMPANY. THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE
MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL
INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE
501(a) UNDER THE SECURITIES ACT.
COMMON STOCK PURCHASE WARRANT
To Purchase __________ Shares of
Common Stock of
Trinity Biotech plc
THIS
COMMON STOCK PURCHASE WARRANT (the “Warrant”) CERTIFIES
that, for value received, _____________ (the “Holder”),
is entitled, upon the terms and subject to the limitations on exercise and
the conditions hereinafter set forth, at any time on or after the date of
issuance of this Warrant (the “Initial Exercise Date”)
and on or prior to the fifth anniversary of the Initial Exercise Date (the “Termination
Date”) but not thereafter, to subscribe for and purchase from Trinity
Biotech plc, a corporation incorporated in the Republic of Ireland (the “Company”),
up to ____________ shares (the “Warrant Shares”) of Common
Stock (as defined in the Purchase Agreement). The purchase price of one Warrant
Share (the “Exercise Price”) under this Warrant shall
be $5.25, subject to adjustment hereunder. The Exercise Price and
the number of Warrant Shares for which the Warrant is exercisable shall be
subject to adjustment as provided herein. Capitalized terms used and not
otherwise defined herein shall have the meanings set forth in that certain
Securities Purchase Agreement (the “Purchase Agreement”),
dated January 6, 2004, among the Company and the purchasers signatory thereto.
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| 1. Title
to Warrant. Prior to the Termination Date and subject to compliance
with applicable laws and Section 7 of this Warrant, this Warrant and
all rights hereunder are transferable, in whole or in part, at the
office or agency of the Company by the Holder in person or by duly
authorized attorney, upon surrender of this Warrant together with the
Assignment Form annexed hereto properly endorsed. The transferee shall
sign an investment letter in form and substance reasonably satisfactory
to the Company. |
| 2. Authorization
of Shares. The Company covenants that all Warrant Shares which
may be issued upon the exercise of the purchase rights represented
by this Warrant will, upon exercise of the purchase rights represented
by this Warrant, be duly authorized, validly issued, fully paid and
nonassessable and free from all taxes, liens and charges in respect
of the issue thereof (other than taxes in respect of any transfer occurring
contemporaneously with such issue). |
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(a)
Exercise of the purchase rights represented by this Warrant may be made
at any time or times on or after the Initial Exercise Date and on or
before the Termination Date by delivery to the Company of a duly executed
facsimile copy of the Notice of Exercise Form annexed hereto (or such
other office or agency of the Company as it may designate by notice in
writing to the registered Holder at the address of such Holder appearing
on the books of the Company); provided, however, within
5 Trading Days of the date said Notice of Exercise is delivered to the
Company, the Holder shall have surrendered this Warrant to the Company
and the Company shall have received payment of the aggregate Exercise
Price of the shares thereby purchased by wire transfer or cashier’s
check drawn on a United States bank. Certificates for shares purchased
hereunder shall be delivered to the Holder within 5 Trading Days from
the delivery to the Company of the Notice of Exercise Form, surrender
of this Warrant and payment of the aggregate Exercise Price as set forth
above (“Warrant Share Delivery Date”). This Warrant
shall be deemed to have been exercised on the later of the date the Notice
of Exercise is delivered to the Company by facsimile copy and the date
the Exercise Price is received by the Company. The Warrant Shares shall
be deemed to have been issued, and Holder or any other person so designated
to be named therein shall be deemed to have become a holder of record
of such shares for all purposes, as of the date the Warrant has been
exercised by payment to the Company of the Exercise Price and all taxes
required to be paid by the Holder, if any, pursuant to Section 5 prior
to the issuance of such shares, have been paid. If the Company fails
to deliver to the Holder a certificate or certificates representing the
Warrant Shares pursuant to this Section 3(a) by the fifth Trading Day
following the Warrant Share Delivery Date, then the Holder will have
the right to rescind such exercise. In addition to any other rights available
to the Holder, if the Company fails to deliver to the Holder a certificate
or certificates representing the Warrant Shares pursuant to an exercise
by the fifth Trading Day after the Warrant Share Delivery Date, and if
after such day the Holder is required by its broker to purchase (in an
open market transaction or otherwise) shares of Common Stock to deliver
in satisfaction of a sale by the Holder of the Warrant Shares which the
Holder anticipated receiving upon such |
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exercise (a “Buy-In”),
then the Company shall (1) pay in cash to the Holder the amount by which
(x) the Holder’s total purchase price (including brokerage commissions,
if any) for the shares of Common Stock so purchased exceeds (y) the amount
obtained by multiplying (A) the number of Warrant Shares that the Company
was required to deliver to the Holder in connection with the exercise
at issue times (B) the price at which the sell order giving rise to such
purchase obligation was executed, and (2) at the option of the Holder,
either reinstate the portion of the Warrant and equivalent number of
Warrant Shares for which such exercise was not honored or deliver to
the Holder the number of shares of Common Stock that would have been
issued had the Company timely complied with its exercise and delivery
obligations hereunder. For example, if the Holder purchases Common Stock
having a total purchase price of $11,000 to cover a Buy-In with respect
to an attempted exercise of shares of Common Stock with an aggregate
sale price giving rise to such purchase obligation of $10,000, under
clause (1) of the immediately preceding sentence the Company shall be
required to pay the Holder $1,000. The Holder shall provide the Company
written notice indicating the amounts payable to the Holder in respect
of the Buy-In, together with applicable confirmations and other evidence
reasonably requested by the Company. Nothing herein shall limit a Holder's
right to pursue any other remedies available to it hereunder, at law
or in equity including, without limitation, a decree of specific performance
and/or injunctive relief with respect to the Company's failure to timely
deliver certificates representing shares of Common Stock upon exercise
of the Warrant as required pursuant to the terms hereof. |
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(b) If
this Warrant shall have been exercised in part, the Company shall, at
the time of delivery of the certificate or certificates representing
Warrant Shares, deliver to Holder a new Warrant evidencing the rights
of Holder to purchase the unpurchased Warrant Shares called for by this
Warrant, which new Warrant shall in all other respects be identical with
this Warrant. |
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(c) The
Holder shall not have the right to exercise any portion of this Warrant,
pursuant to Section 3(a) or otherwise, to the extent that after giving
effect to such issuance after exercise, the Holder (together with the
Holder’s affiliates), as set forth on the applicable Notice of
Exercise, would beneficially own in excess of 4.99% of the number of
shares of the Common Stock outstanding immediately after giving effect
to such issuance. For purposes of the foregoing sentence, the number
of shares of Common Stock beneficially owned by the Holder and its affiliates
shall include the number of shares of Common Stock issuable upon exercise
of this Warrant with respect to which the determination of such sentence
is being made, but shall exclude the number of shares of Common Stock
which would be issuable upon (A) exercise of the remaining, nonexercised
portion of this Warrant beneficially owned by the Holder or any of its
affiliates and (B) exercise or conversion of the unexercised or nonconverted
portion of any other securities of the Company (including, without limitation,
any other Warrants) subject to a limitation on conversion or exercise
analogous to the limitation contained herein beneficially owned by the
Holder or any of its affiliates. Except as set forth in the preceding
sentence, for purposes of this Section 3(c), beneficial ownership shall
be calculated in accordance with Section 13(d) of the Exchange Act, it
being acknowledge by Holder that the Company is not representing to Holder
that such calculation is in compliance with Section 13(d) of the Exchange
Act and Holder is solely responsible for |
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any schedules required to be filed in accordance
therewith. To the extent that the limitation contained in this Section
3(c) applies, the determination of whether this Warrant is exercisable
(in relation to other securities owned by the Holder) and of which a
portion of this Warrant is exercisable shall be in the sole discretion
of such Holder, and the submission of a Notice of Exercise shall be deemed
to be such Holder’s determination of whether this Warrant is exercisable
(in relation to other securities owned by such Holder) and of which portion
of this Warrant is exercisable, in each case subject to such aggregate
percentage limitation, and the Company shall have no obligation to verify
or confirm the accuracy of such determination. For purposes of this Section
3(c), in determining the number of outstanding shares of Common Stock,
the Holder may rely on the number of outstanding shares of Common Stock
as reflected in (x) the Company’s most recent Form 10-Q or Form
10-K, as the case may be, (y) a more recent public announcement by the
Company or (z) any other notice by the Company or the Company’s
Transfer Agent setting forth the number of shares of Common Stock outstanding. Upon
the written or oral request of the Holder, the Company shall within two
Trading Days confirm orally and in writing to the Holder the number of
shares of Common Stock then outstanding. In any case, the number
of outstanding shares of Common Stock shall be determined after giving
effect to the conversion or exercise of securities of the Company, including
this Warrant, by the Holder or its affiliates since the date as of which
such number of outstanding shares of Common Stock was reported. The provisions
of this Section 3(c) may be waived by the Holder upon, at the election
of the Holder, not less than 61 days’ prior notice to the Company,
and the provisions of this Section 3(c) shall continue to apply until
such 61st day (or such later date, as determined by the Holder,
as may be specified in such notice of waiver). |
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(d)
If at any time after one year from the date of issuance of this Warrant
there is no effective Registration Statement registering the resale of
the Warrant Shares by the Holder, this Warrant may also be exercised
at such time by means of a “cashless exercise” in which the
Holder shall be entitled to receive a certificate for the number of Warrant
Shares equal to the quotient obtained by dividing [(A-B) (X)] by (A),
where: |
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(A)
= the Closing Price on the Trading Day immediately preceding the date
of such election; |
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(B)
= the Exercise Price of the Warrants, as adjusted; and |
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(X)
= the number of Warrant Shares issuable upon exercise of the Warrants
in accordance with the terms of this Warrant. |
| 4. No
Fractional Shares or Scrip. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant.
As to any fraction of a share which Holder would otherwise be entitled
to purchase upon such exercise, the Company shall pay a cash adjustment
in respect of such final fraction in an amount equal to such fraction
multiplied by the Exercise Price. |
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| 5. Charges,
Taxes and Expenses. Issuance of certificates for Warrant Shares
shall be made without charge to the Holder for any issue or transfer
tax or other incidental expense in respect of the issuance of such
certificate, all of which taxes and expenses shall be paid by the Company,
and such certificates shall be issued in the name of the Holder or
in such name or names as may be directed by the Holder; provided, however,
that in the event certificates for Warrant Shares are to be issued
in a name other than the name of the Holder, this Warrant when surrendered
for exercise shall be accompanied by the Assignment Form attached hereto
duly executed by the Holder; and the Company may require, as a condition
thereto, the payment of a sum sufficient to reimburse it for any transfer
tax incidental thereto. |
| 6. Closing
of Books. The Company will not close its stockholder books or records
in any manner which prevents the timely exercise of this Warrant, pursuant
to the terms hereof. |
| 7. Transfer,
Division and Combination. |
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(a) Subject
to compliance with any applicable securities laws and the conditions
set forth in Sections 1 and 7(e) hereof and to the provisions of Section
4.1 of the Purchase Agreement, this Warrant and all rights hereunder
are transferable, in whole or in part, upon surrender of this Warrant
at the principal office of the Company, together with a written assignment
of this Warrant substantially in the form attached hereto duly executed
by the Holder or its agent or attorney and funds sufficient to pay any
transfer taxes payable upon the making of such transfer. Upon such surrender
and, if required, such payment, the Company shall execute and deliver
a new Warrant or Warrants in the name of the assignee or assignees and
in the denomination or denominations specified in such instrument of
assignment, and shall issue to the assignor a new Warrant evidencing
the portion of this Warrant not so assigned, and this Warrant shall promptly
be cancelled. A Warrant, if properly assigned, may be exercised by a
new holder for the purchase of Warrant Shares without having a new Warrant
issued. |
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(b) This
Warrant may be divided or combined with other Warrants upon presentation
hereof at the aforesaid office of the Company, together with a written
notice specifying the names and denominations in which new Warrants are
to be issued, signed by the Holder or its agent or attorney. Subject
to compliance with Section 7(a), as to any transfer which may be involved
in such division or combination, the Company shall execute and deliver
a new Warrant or Warrants in exchange for the Warrant or Warrants to
be divided or combined in accordance with such notice. |
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(c) The
Company shall prepare, issue and deliver at its own expense (other than
transfer taxes) the new Warrant or Warrants under this Section 7. |
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(d) The
Company agrees to maintain, at its aforesaid office, books for the registration
and the registration of transfer of the Warrants. |
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(e) If,
at the time of the surrender of this Warrant in connection with any transfer
of this Warrant, the transfer of this Warrant shall not be registered
pursuant to an effective registration statement under the Securities
Act and under applicable state securities or blue sky laws, the Company
may require, as a condition of allowing such transfer (i) that the Holder
or transferee of this Warrant, as the case may be, furnish to the Company
a written opinion of counsel (which opinion shall be in form, substance
and scope customary for opinions of counsel in comparable transactions
and reasonably acceptable to the Company) to the effect that such transfer
may be made without registration under the Securities Act and under applicable
state securities or blue sky laws, (ii) that the holder or transferee
execute and deliver to the Company an investment letter in form and substance
acceptable to the Company and (iii) that the transferee be an “accredited
investor” as defined in Rule 501(a) promulgated under the Securities
Act. |
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| 8. No
Rights as Shareholder until Exercise. This Warrant does not entitle
the Holder to any voting rights or other rights as a shareholder of
the Company prior to the exercise hereof. Upon the surrender of this
Warrant and the payment of the aggregate Exercise Price (or by means
of a cashless exercise), the Warrant Shares so purchased shall be and
be deemed to be issued to such Holder as the record owner of such shares
as of the close of business on the later of the date of such surrender
or payment. |
| 9. Loss,
Theft, Destruction or Mutilation of Warrant. The Company covenants
that upon receipt by the Company of evidence reasonably satisfactory
to it of the loss, theft, destruction or mutilation of this Warrant
or any stock certificate relating to the Warrant Shares, and in case
of loss, theft or destruction, of indemnity or security reasonably
satisfactory to it (which, in the case of the Warrant, shall not include
the posting of any bond), and upon surrender and cancellation of such
Warrant or stock certificate, if mutilated, the Company will make and
deliver a new Warrant or stock certificate of like tenor and dated
as of such cancellation, in lieu of such Warrant or stock certificate. |
| 10. Saturdays,
Sundays, Holidays, etc. If the last or appointed day for the taking
of any action or the expiration of any right required or granted herein
shall be a Saturday, Sunday or a legal holiday, then such action may
be taken or such right may be exercised on the next succeeding day
not a Saturday, Sunday or legal holiday. |
| 11. Adjustments
of Exercise Price and Number of Warrant Shares; Stock Splits, etc.
The number and kind of securities purchasable upon the exercise of
this Warrant and the Exercise Price shall be subject to adjustment
from time to time upon the happening of any of the following. In case
the Company shall (i) pay a dividend in shares of Common Stock or make
a distribution in shares of Common Stock to holders of its outstanding
Common Stock, (ii) subdivide its outstanding shares of Common Stock
into a greater number of shares, (iii) combine its outstanding shares
of Common Stock into a smaller number of shares of Common Stock, or
(iv) issue any shares of its capital stock in a reclassification of
the Common Stock, then the number of Warrant Shares purchasable upon
exercise of this Warrant immediately prior thereto shall be adjusted
so that the Holder shall be entitled to receive the kind and number
of Warrant Shares or other securities of the Company which it would
have owned or have been entitled to receive had such Warrant been exercised
in advance thereof. Upon each such adjustment of the kind and number
of Warrant Shares or other securities of the Company which are purchasable
hereunder, the Holder shall thereafter be entitled to purchase the
number of Warrant Shares or other securities resulting from such adjustment
at an Exercise Price per Warrant Share or other security obtained by
multiplying the Exercise Price in effect immediately prior to such
adjustment by the number of Warrant Shares purchasable pursuant hereto
immediately prior to such adjustment and dividing by the number of
Warrant Shares or other securities of the Company resulting from such
adjustment. An adjustment made pursuant to this paragraph shall become
effective immediately after the effective date of such event retroactive
to the record date, if any, for such event. |
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| 12. Reorganization,
Reclassification, Merger, Consolidation or Disposition of Assets.
In case the Company shall reorganize its capital, reclassify its capital
stock, consolidate or merge with or into another corporation (where
the Company is not the surviving corporation or where there is a change
in or distribution with respect to the Common Stock of the Company),
or sell, transfer or otherwise dispose of its property, assets or business
to another corporation and, pursuant to the terms of such reorganization,
reclassification, merger, consolidation or disposition of assets, shares
of common stock of the successor or acquiring corporation, or any cash,
shares of stock or other securities or property of any nature whatsoever
(including warrants or other subscription or purchase rights) in addition
to or in lieu of common stock of the successor or acquiring corporation
(“Other Property”), are to be received by or distributed
to the holders of Common Stock of the Company, then the Holder shall
have the right thereafter to receive, upon exercise of this Warrant,
the number of shares of Common Stock of the successor or acquiring
corporation or of the Company, if it is the surviving corporation,
and Other Property receivable upon or as a result of such reorganization,
reclassification, merger, consolidation or disposition of assets by
a Holder of the number of shares of Common Stock for which this Warrant
is exercisable immediately prior to such event. In case of any such
reorganization, reclassification, merger, consolidation or disposition
of assets, the successor or acquiring corporation (if other than the
Company) shall expressly assume the due and punctual observance and
performance of each and every covenant and condition of this Warrant
to be performed and observed by the Company and all the obligations
and liabilities hereunder, subject to such modifications as may be
deemed appropriate (as determined in good faith by resolution of the
Board of Directors of the Company) in order to provide for adjustments
of Warrant Shares for which this Warrant is exercisable which shall
be as nearly equivalent as practicable to the adjustments provided
for in this Section 12. For purposes of this Section 12, “common
stock of the successor or acquiring corporation” shall include
stock of such corporation of any class which is not preferred as to
dividends or assets over any other class of stock of such corporation
and which is not subject to redemption and shall also include any evidences
of indebtedness, shares of stock or other securities which are convertible
into or exchangeable for any such stock, either immediately or upon
the arrival of a specified date or the happening of a specified event
and any warrants or other rights to subscribe for or purchase any such
stock. The foregoing provisions of this Section 12 shall similarly
apply to successive reorganizations, reclassifications, mergers, consolidations
or disposition of assets. |
| 13. Voluntary
Adjustment by the Company. The Company may at any time during the
term of this Warrant reduce the then current Exercise Price to any
amount and for any period of time deemed appropriate by the Board of
Directors of the Company. |
| 14. Notice
of Adjustment. Whenever the number of Warrant Shares or number
or kind of securities or other property purchasable upon the exercise
of this Warrant or the Exercise Price is adjusted, as herein provided,
the Company shall give notice thereof to the Holder, which notice shall
state the number of Warrant Shares (and other securities or property)
purchasable upon the exercise of this Warrant and the Exercise Price
of such Warrant Shares (and other securities or property) after such
adjustment, setting forth a brief statement of the facts requiring
such adjustment and setting forth the computation by which such adjustment
was made. |
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| 15. Notice
of Corporate Action. If at any time: |
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(a) the
Company shall take a record of the holders of its Common Stock for the
purpose of entitling them to receive a dividend or other distribution,
or any right to subscribe for or purchase any evidences of its indebtedness,
any shares of stock of any class or any other securities or property,
or to receive any other right, or |
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(b) there
shall be any capital reorganization of the Company, any reclassification
or recapitalization of the capital stock of the Company or any consolidation
or merger of the Company with, or any sale, transfer or other disposition
of all or substantially all the property, assets or business of the Company
to, another corporation or, |
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(c) there
shall be a voluntary or involuntary dissolution, liquidation or winding
up of the Company; |
then, in any one or more of such
cases, the Company shall give to Holder (i) at least 20 days’ prior
written notice of the date on which a record date shall be selected for such
dividend, distribution or right or for determining rights to vote in respect
of any such reorganization, reclassification, merger, consolidation, sale,
transfer, disposition, liquidation or winding up, and (ii) in the case of
any such reorganization, reclassification, merger, consolidation, sale, transfer,
disposition, dissolution, liquidation or winding up, at least 20 days’ prior
written notice of the date when the same shall take place. Such notice in
accordance with the foregoing clause also shall specify (i) the date on which
any such record is to be taken for the purpose of such dividend, distribution
or right, the date on which the holders of Common Stock shall be entitled
to any such dividend, distribution or right, and the amount and character
thereof, and (ii) the date on which any such reorganization, reclassification,
merger, consolidation, sale, transfer, disposition, dissolution, liquidation
or winding up is to take place and the time, if any such time is to be fixed,
as of which the holders of Common Stock shall be entitled to exchange their
Warrant Shares for securities or other property deliverable upon such disposition,
dissolution, liquidation or winding up. Each such written notice shall be
sufficiently given if addressed to Holder at the last address of Holder appearing
on the books of the Company and delivered in accordance with Section 17(d).
| 16. Authorized
Shares. The Company covenants that during the period the Warrant
is outstanding, it will reserve from its authorized and unissued Common
Stock a sufficient number of shares to provide for the issuance of
the Warrant Shares upon the exercise of any purchase rights under this
Warrant. The Company further covenants that its issuance of this Warrant
shall constitute full authority to its officers who are charged with
the duty of executing stock certificates to execute and issue the necessary
certificates for the Warrant Shares upon the exercise of the purchase
rights under this Warrant. The Company will take all such reasonable
action as may be necessary to assure that such Warrant Shares may be
issued as provided herein without violation of any applicable law or
regulation, or of any requirements of the Trading Market upon which
the Common Stock may be listed. |
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| Except
and to the extent as waived or consented to by the Holder, the Company
shall not by any action, including, without limitation, amending
its certificate of incorporation or through any reorganization, transfer
of assets, consolidation, merger, dissolution, issue or sale of securities
or any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms of this Warrant, but will at all
times in good faith assist in the carrying out of all such terms
and in the taking of all such actions as may be necessary or appropriate
to protect the rights of Holder as set forth in this Warrant against
impairment. Without limiting the generality of the foregoing, the
Company will (a) not increase the par value of any Warrant Shares
above the amount payable therefor upon such exercise immediately
prior to such increase in par value, (b) take all such action as
may be necessary or appropriate in order that the Company may validly
and legally issue fully paid and nonassessable Warrant Shares upon
the exercise of this Warrant, and (c) use commercially reasonable
efforts to obtain all such authorizations, exemptions or consents
from any public regulatory body having jurisdiction thereof as may
be necessary to enable the Company to perform its obligations under
this Warrant. |
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| Before
taking any action which would result in an adjustment in the number
of Warrant Shares for which this Warrant is exercisable or in the
Exercise Price, the Company shall obtain all such authorizations
or exemptions thereof, or consents thereto, as may be necessary from
any public regulatory body or bodies having jurisdiction thereof. |
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(a) Jurisdiction.
All questions concerning the construction, validity, enforcement
and interpretation of this Warrant shall be determined in accordance
with the provisions of the Purchase Agreement. |
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(b) Restrictions.
The Holder acknowledges that the Warrant Shares acquired upon the
exercise of this Warrant, if not registered, will have restrictions
upon resale imposed by state and federal securities laws. |
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(c) Nonwaiver
and Expenses. No course of dealing or any delay or failure
to exercise any right hereunder on the part of Holder shall operate
as a waiver of such right or otherwise prejudice Holder’s
rights, powers or remedies, notwithstanding all rights hereunder
terminate on the Termination Date. If the Company willfully and
knowingly fails to comply with any provision of this Warrant, which
results in any material damages to the Holder, the Company shall
pay to Holder such amounts as shall be sufficient to cover any
costs and expenses including, but not limited to, reasonable attorneys’ fees,
including those of appellate proceedings, incurred by Holder in
collecting any amounts due pursuant hereto or in otherwise enforcing
any of its rights, powers or remedies hereunder. |
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(d) Notices.
Any notice, request or other document required or permitted to be
given or delivered to the Holder by the Company shall be delivered
in accordance with the notice provisions of the Purchase Agreement. |
|
(e) Limitation
of Liability. No provision hereof, in the absence of any affirmative
action by Holder to exercise this Warrant or purchase Warrant Shares,
and no enumeration herein of the rights or privileges of Holder,
shall give rise to any liability of Holder for the purchase price
of any Common Stock or as a stockholder of the Company, whether
such liability is asserted by the Company or by creditors of the
Company. |
9
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|
(f) Remedies.
Holder, in addition to being entitled to exercise all rights granted
by law, including recovery of damages, will be entitled to specific
performance of its rights under this Warrant. The Company agrees
that monetary damages would not be adequate compensation for any
loss incurred by reason of a breach by it of the provisions of this
Warrant and hereby agrees to waive the defense in any action for
specific performance that a remedy at law would be adequate. |
|
(g) Successors
and Assigns. Subject to applicable securities laws, this Warrant
and the rights and obligations evidenced hereby shall inure to
the benefit of and be binding upon the successors of the Company
and the successors and permitted assigns of Holder. The provisions
of this Warrant are intended to be for the benefit of all Holders
from time to time of this Warrant and shall be enforceable by any
such Holder or holder of Warrant Shares. |
|
(h) Amendment.
This Warrant may be modified or amended or the provisions hereof
waived with the written consent of the Company and the Holder. |
|
(i) Severability.
Wherever possible, each provision of this Warrant shall be interpreted
in such manner as to be effective and valid under applicable law,
but if any provision of this Warrant shall be prohibited by or invalid
under applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the
remainder of such provisions or the remaining provisions of this
Warrant. |
|
(j) Headings.
The headings used in this Warrant are for the convenience of reference
only and shall not, for any purpose, be deemed a part of this Warrant. |
********************
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IN
WITNESS WHEREOF, the Company has caused this Warrant to be executed by
its officer thereunto duly authorized.
Dated: January 6, 2004
| |
TRINITY BIOTECH PLC |
| |
|
|
| |
By:
Name:
Title: |
____________________________________
|
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NOTICE OF EXERCISE
To: Trinity
Biotech plc
| (1) The
undersigned hereby elects to purchase ________ Warrant Shares of
Trinity Biotech plc pursuant to the terms of the attached Warrant
(only if exercised in full), and tenders herewith payment of the
exercise price in full, together with all applicable transfer taxes,
if any. |
| (2) Payment
shall take the form of (check applicable box): |
| |
|
[ ] in lawful money of the
United States; or |
| |
|
[ ] the cancellation of
such number of Warrant Shares as is necessary, in accordance with
the formula set forth in subsection 3(d) (assuming such provision
is available to the undersigned), to exercise this Warrant with respect
to the maximum number of Warrant Shares purchasable pursuant to the
cashless exercise procedure set forth in subsection 3(d). |
| (3) Please
issue a certificate or certificates representing said Warrant Shares
in the name of the undersigned or in such other name as is specified
below: |
_______________________________
The Warrant Shares shall be delivered
to the following:
_______________________________
_______________________________
_______________________________
| (4) Accredited
Investor. The undersigned is an “accredited investor” as
defined in Regulation D promulgated under the Securities Act of
1933, as amended. |
| |
[PURCHASER] |
| |
|
|
| |
By:
Name:
Title: |
____________________________________
|
| |
|
|
| |
|
Dated: ___________________________ |
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ASSIGNMENT FORM
(To assign the foregoing warrant,
execute
this form and supply required information.
Do not use this form to exercise the warrant.)
FOR
VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby
are hereby assigned to
_______________________________________________
whose address is
_______________________________________________________________.
_______________________________________________________________
Dated:
______________, _______
Holder’s
Signature: _____________________________
Holder’s
Address: _____________________________
_____________________________
Signature Guaranteed: ___________________________________________
NOTE: The signature to this Assignment
Form must correspond with the name as it appears on the face of the Warrant,
without alteration or enlargement or any change whatsoever, and must
be guaranteed by a bank or trust company. Officers of corporations and
those acting in a fiduciary or other representative capacity should file
proper evidence of authority to assign the foregoing Warrant.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
| |
TRINITY BIOTECH PLC |
| |
(Registrant) |
| |
|
|
|
| |
By: |
|
/s/ Rory Nealon |
| |
|
|
Rory Nealon |
| |
|
|
Chief Financial Officer and Secretary |
Date: January 12, 2004
Form
40-F
