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Exhibit 10.01
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement"), dated as of June
6, 1996, is by and among Telor Ophthalmic Pharmaceuticals, Inc. (the "Company"),
the holders of Common Stock as are listed in Schedule I attached hereto (the
"Existing Holders") who currently have registration rights pursuant to that
Registration Rights Agreement dated as of November 16, 1988, as amended as of
February 5, 1990, June 22, 1990, October 31, 1990 and April 27, 1992 (the "Prior
Registration Rights Agreement") and the holders of certain equity interests in
Occupational Health + Rehabilitation Inc ("OH+R," and such holders, "OH+R
Securityholders" as are listed in Schedule II attached hereto). This Agreement
is being entered into in connection with the issuance of shares of Common Stock
to the OH+R Securityholders listed in Schedule II in connection with the merger
of Occupational Health + Rehabilitation Inc with and into Telor Ophthalmic
Pharmaceuticals, Inc. ("Telor") (the "Merger") pursuant to the Agreement and
Plan of Merger between Telor and OH+R dated as of February 22, 1996 as amended
on April 30, 1996 and May 10, 1996 (the "Merger Agreement"), pursuant to which
OH+R will merge with and into Telor, Telor will be the surviving corporation,
the separate corporate existence of OH+R will cease and the surviving
corporation will continue under the name "Occupational Health + Rehabilitation
Inc". This Agreement shall become effective upon the consummation of the Merger.
WHEREAS, as a condition to the Merger, the Company and the Holders (as
hereinafter defined) are entering into this Agreement, which is superseding any
other agreements of Telor and OH+R with the other parties hereto relating to the
registration of shares of stock, including, without limitation, the Prior
Registration Rights Agreement.
WHEREAS, Telor and the Existing Holders desire to terminate the Prior
Registration Rights Agreement in consideration of the terms set forth herein;
and
WHEREAS, OH+R and the OH+R Securityholders desire to terminate the
existing registration rights agreements among themselves in consideration for
the terms set forth herein;
NOW, THEREFORE, in consideration of the terms and conditions as set
forth herein and in the Merger Agreement, the Company covenants and agrees with
the Existing Holders and the OH+R Securityholders as follows:
1. Certain Definitions. As used in this Agreement, the following terms
shall have the following respective meanings:
"Bridge Shares" shall mean the 220,000 shares of Common Stock issued
pursuant to Purchase Agreements dated February 5, 1990 and June 22,
1990.
"Commission" shall mean the Securities and Exchange Commission, or any
other federal agency at the time administering the Securities Act.
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"Common Stock" shall mean the Common Stock, $.001 par value, of the Company, as
constituted as of the date of this Agreement.
"Conversion Shares" shall mean (a) shares of Common Stock issued upon
conversion of the shares of preferred stock of Telor converted upon the
consummation of the initial public offering of Telor; (b) the 200,000 shares of
Common Stock issued pursuant to that certain Purchase Agreement dated as of
February 5, 1990 among Eygene, Inc., a former name of Telor ("Eygene"), and
certain of the Existing Holders listed in Schedule I attached hereto; and (c)
the 20,000 shares of Common Stock issued pursuant to that certain Purchase
Agreement dated as of June 22, 1990 among Eygene and certain of the Existing
Holders listed in Schedule I attached hereto.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"Existing Holders" shall mean the several existing holders of Common
Stock named in Schedule I attached hereto.
"Holder" shall mean the person who is the then record owner of
Restricted Stock.
"Merger Shares" shall mean the Common Stock issued upon consummation of
the Merger and any Additional Shares (as defined in the Merger Agreement).
"OH+R Securityholders" shall mean the several holders named in Schedule
II attached hereto.
"OH+R Warrants" shall mean the warrants originally issued by OH+R to
the OH+R Securityholders named in Schedule III attached hereto to acquire shares
of Common Stock upon the exercise of such warrants in accordance with the terms
of the Merger Agreement.
"OH+R Warrant Shares" shall mean the shares of Common Stock issuable by
the Company to those OH+R Securityholders upon exercise their OH+R Warrants.
"Registrable Shares" shall mean the shares of Restricted Stock other
than the OH+R Warrant Shares.
"Registration Expenses" shall mean the expenses so described in
Section 8.
"Restricted Stock" shall mean the (i) Bridge Shares, (ii) the Merger
Shares, (iii) the OH+R Warrant Shares, and (iv) the Conversion Shares, excluding
shares which have been (a) registered under the Securities Act pursuant to an
effective registration statement filed thereunder and disposed of in accordance
with the registration statement covering them or (b) publicly sold pursuant to
Rule 144 under the Securities Act.
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"Securities Act" shall mean the Securities Act of 1933, as amended, or
any similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
2. Restrictive Legend
Each certificate representing the Restricted Stock shall bear a legend
stating in substance:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 AS AMENDED OR ANY STATE SECURITIES LAWS AND MAY
NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED
UNLESS AND UNTIL REGISTERED UNDER SAID ACT AND SUCH LAWS OR, IN THE
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER OF
THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION
DOES NOT VIOLATE THE PROVISIONS THEREOF OR UNLESS SOLD PURSUANT TO RULE
144 PROMULGATED UNDER SAID ACT.
A certificate shall not be required to bear such legend if in the
opinion of counsel satisfactory to the Company, the securities represented
thereby may be publicly sold without registration under the Securities Act.
3. Notice of Proposed Transfer.
Prior to any proposed transfer of any Restricted Stock (other than
under the circumstances described in Section 4, 5 or 6), the Holder thereof
shall give written notice to the Company of its intention to effect such
transfer. Each such notice shall describe the manner of the proposed transfer
and, if requested by the Company, shall be accompanied by an opinion of counsel
satisfactory to the Company to the effect that the proposed transfer may be
effected without registration under the Securities Act, whereupon the Holder of
such stock shall be entitled to transfer such stock in accordance with the terms
of its notice; provided, however, that no such opinion of counsel shall be
required for a distribution by a partnership to its partners of such stock in
respect of such interest. Each certificate for shares of Restricted Stock
transferred as above provided shall bear the legend set forth in Section 2,
except that such certificate shall not bear such legend if (i) such transfer is
in accordance with the provisions of Rule 144 (or any other rule permitting
public sale without registration under the Securities Act) or (ii) the opinion
of counsel referred to above is to the further effect that the transferee and
any subsequent transferee (other than an affiliate of the Company) would be
entitled to transfer such securities in a public sale without registration under
the Securities Act. The restrictions provided for in this Section 3 shall not
apply to securities which are not required to bear the legend prescribed by
Section 2 in accordance with the provisions of that Section .
4. Required Registration.
(a) At any time prior to June 6, 2001, the Holders of Registrable
Shares constituting at least 51% of the total shares of Registrable Shares then
outstanding may request
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the Company to register under the Securities Act all or any portion of the
Registrable Shares held by such requesting Holder or Holders for sale in the
manner specified in such notice, provided that the Registrable Shares for which
registration has been requested shall constitute at least 25% of the total
Registrable Shares originally issued if such Holder or Holders shall request the
registration of less than all Registrable Shares then held by such Holder or
Holders. Notwithstanding anything to the contrary contained herein, no request
may be made under this Section 4 within 180 days after the effective date of a
registration statement filed by the Company covering a firm commitment
underwritten public offering in which the Holders of Registrable Shares shall
have been entitled to join pursuant to Section 5 or 6 and in which there shall
have been effectively registered all Registrable Shares to which registration
shall have been requested.
(b) Following receipt of any notice under this Section 4, the Company
shall immediately notify all Holders of Registrable Shares from whom notice has
not been received and shall use its reasonable best efforts to register under
the Securities Act, for public sale in accordance with the method of disposition
specified in such notice from requesting Holders, the number of Registrable
Shares specified in such notice (and in all notices received by the Company from
other Holders within 30 days after the giving of such notice by the Company). If
such method of disposition shall be an underwritten public offering, the Holders
of a majority of the Registrable Shares to be sold in such offering may
designate the managing underwriter of such offering, subject to the approval of
the Company, which approval shall not be unreasonably withheld or delayed. The
Company shall be obligated to register Registrable Shares pursuant to this
Section 4 on two occasions only, provided, however, that such obligation shall
be deemed satisfied only when a registration statement, which covers all
Registrable Shares specified in notices received as aforesaid and with respect
to which the request for registration has not been withdrawn and provides for
sale of such shares in accordance with the method of disposition specified by
the requesting Holders, shall have become effective and, if such method of
disposition is a firm commitment underwritten public offering, all such shares
shall have been sold pursuant thereto.
(c) The Company shall be entitled to include in any registration
statement referred to in this Section 4, for sale in accordance with the method
of disposition specified by the requesting Holders, shares of Common Stock to be
sold by the Company for its own account, except as and to the extent that, in
the opinion of the managing underwriter (if such method of disposition shall be
an underwritten public offering), such inclusion would adversely affect the
marketing of the Registrable Shares to be sold. Except for registration
statements on Form S-4, S-8 or any successor thereto, the Company will not file
with the Commission any other registration statement with respect to its Common
Stock, whether for its own account or that of other stockholders, from the date
of receipt of a notice from requesting Holders pursuant to this Section 4 until
the first to occur of (i) withdrawal of such registration statement or (ii) the
effectiveness of such registration statement unless, such registration statement
relates to a firm commitment underwritten public offering, then the completion
of the period of distribution of the registration contemplated thereby.
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5. Incidental Registration.
If the Company at any time (other than pursuant to Section 4 or
Section 6) proposes to register any of its securities under the Securities Act
for sale to the public, whether for its own account or for the account of other
securityholders or both (except with respect to registration statements on Forms
S-4, S-8 or another form not available for registering the Restricted Stock for
sale to the public), each such time the Company will give written notice to all
Holders of outstanding Restricted Stock of its intention to do so. Upon the
written request of any such Holder received by the Company within 30 days of the
giving of any such notice by the Company to register any of such Holder's
Restricted Stock (which request shall state the intended method of disposition
thereof), the Company will use its reasonable best efforts to cause the
Restricted Stock as to which registration shall have been so requested to be
included in the securities to be covered by the registration statement proposed
to be filed by the Company, all to the extent requisite to permit the sale or
other disposition by the Holder (in accordance with such Holder's written
request) of such Restricted Stock so registered. In the event that any
registration pursuant to this Section 5 shall be, in whole or in part, an
underwritten public offering of Common Stock, the number of shares of Restricted
Stock to be included in such an underwriting may be reduced if and to the extent
that the managing underwriter shall be of the opinion that such inclusion would
adversely affect the marketing of the securities to be sold by the Company or
the requesting party therein or that such reduction is otherwise advisable,
provided, however, any such reduction shall be accomplished as follows: as among
the requesting Holders and any other holders of securities of the Company who
have exercised their contractual rights to have shares included in such
registration, pro rata based upon the number of shares of Common Stock owned by
or issuable to such requesting Holders and other requesting holders, unless such
registration is pursuant to the exercise of a demand right of another
securityholder, in which event such securityholder shall be entitled to include
all shares it desires to have so included before any shares of Restricted Stock
or shares of any other holder are included therein.
6. Registration on Form S-3.
If at any time prior to June 6, 2001 (i) a Holder or Holders of
Registrable Shares request that the Company file a registration statement on
Form S-3 or any successor thereto for a public offering of all or any portion of
the Registrable Shares held by such requesting Holder or Holders, the reasonably
anticipated aggregate price to the public of at least $500,000, and (ii) the
Company is a registrant entitled to use Form S-3 or any successor thereto to
register such shares, then the Company shall use its reasonable best efforts to
register under the Securities Act on Form S-3 or any successor thereto, for
public sale in accordance with the method of disposition specified in such
notice, the number of Registrable Shares specified in such notice. Whenever the
Company is required by this Section 6 to use its reasonable best efforts to
effect the registration of Registrable Shares, each of the procedures and
requirements of Section 4 (including but not limited to the requirement that the
Company notify all Holders of Registrable Shares from whom notice has not been
received and provide them with the opportunity to participate in the offering)
shall apply to such registration, provided, however, that there shall be up to
five (5) registrations on Form S-3 which may be requested and obtained under
this Section 6, and the Company shall not be obligated to register Registrable
Shares pursuant to this Section 6 on more than one occasion per twelve (12)
month period, and provided, further, however, that the requirements contained in
the
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first sentence of Section 4(a) shall not apply to any registration on Form S-3
which may be requested and obtained under this Section 6.
7. Registration Procedures.
If and whenever the Company is required by the provisions of Section 4,
5 or 6 to use its reasonable best efforts to effect the registration of any
shares of Restricted Stock under the Securities Act, the Company will, as
expeditiously as possible:
(a) prepare and file with the Commission a registration statement
(which, in the case of an underwritten public offering pursuant to Section 4,
shall be on Form S-1 or other form of general applicability satisfactory to the
managing underwriter selected as therein provided) with respect to such
securities and use its reasonable best efforts to cause such registration
statement to become and remain effective for the period of the distribution
contemplated thereby (determined as hereinafter provided);
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective for
the period specified in paragraph (a) above and comply with the provisions of
the Securities Act with respect to the disposition of all Restricted Stock
covered by such registration statement in accordance with the sellers' intended
method of disposition set forth in such registration statement for such period;
(c) furnish to each seller of Restricted Stock and to each underwriter
such number of copies of the registration statement and the prospectus included
therein (including each preliminary prospectus) as such persons reasonably may
request in order to facilitate the public sale or other disposition of the
Restricted Stock covered by such registration statement;
(d) use its reasonable best efforts to register or qualify the
Restricted Stock covered by such registration statement under the securities or
"blue sky" laws of such jurisdictions as the sellers of Restricted Stock or, in
the case of an underwritten public offering, the managing underwriter reasonably
shall request, provided, however, that the Company shall not for any such
purpose be required to qualify generally to transact business as a foreign
corporation in any jurisdiction where it is not so qualified or to consent to
general service of process in any such jurisdiction;
(e) use its reasonable best efforts to list the Restricted Stock
covered by such registration statement with any securities exchange on which the
Common Stock is then listed;
(f) immediately notify each seller of Restricted Stock and each
underwriter under such registration statement, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act, of the
happening of any event of which the Company has knowledge as a result of which
the prospectus contained in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing;
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(g) if the offering is underwritten and at the request of any seller of
Restricted Stock as provided herein, use its reasonable best efforts to furnish
on the date that Restricted Stock is delivered to the underwriters for sale
pursuant to such registration: (i) an opinion dated such date of counsel
representing the Company for the purposes of such registration, addressed to the
underwriters and to such seller, stating that such registration statement has
become effective under the Securities Act and that (A) to the knowledge of such
counsel, no stop order suspending the effectiveness thereof has been issued and
no proceedings for that purpose have been instituted or are pending or
threatened under the Securities Act, (B) the registration statement, the related
prospectus and each amendment or supplement thereof comply as to form in all
material respects with the requirements of the Securities Act (except that such
counsel need not express any opinion as to financial statements, schedules and
other financial or statistical information contained therein) and (C) to such
other effects as reasonably may be requested by counsel for the underwriters or
by such seller or its counsel and (ii) a letter dated such date from the
independent public accountants retained by the Company, addressed to the
underwriters and to such seller, stating that they are independent public
accountants within the meaning of the Securities Act and that, in the opinion of
such accountants, the financial statements of the Company included in the
registration statement or the prospectus, or any amendment or supplement
thereof, comply as to form in all material respects with the applicable
accounting requirements of the Securities Act, and such letter shall
additionally cover such other financial matters (including information as to the
period ending no more than five business days prior to the date of such letter)
with respect to such registration as such underwriters reasonably may request;
and
(h) make available for inspection by each seller of Restricted Stock,
any underwriter participating in any distribution pursuant to such registration
statement, and any attorney, accountant or other agent retained by such seller
or underwriter, all financial and other records, pertinent corporate documents
and properties of the Company, and cause the Company's officers, directors and
employees to supply all information reasonably requested by any such seller,
underwriter, attorney, accountant or agent in connection with such registration
statement.
For purposes of Section 7(a) and 7(b), the period of distribution of
Restricted Stock included therein shall be deemed to extend until the first to
occur of (i) each underwriter's completion the distribution of all securities
purchased by it, and (ii) one hundred and twenty (120) days.
In connection with each registration hereunder, the sellers of
Restricted Stock will furnish to the Company in writing such information with
respect to themselves and the proposed distribution by them as reasonably shall
be necessary in order to assure compliance with federal and applicable state
securities laws.
In connection with each registration pursuant to Section 4, 5 or 6
covering an underwritten public offering, the Company and each seller agree to
enter into a written agreement with the managing underwriter selected in the
manner herein provided in such form and containing such provisions as are
customary in the securities business for such an arrangement between such
underwriter and companies of the Company's size and investment stature.
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No Holder of shares of Restricted Stock included in a registration
statement shall (until further notice) effect sales thereof after receipt of
telegraphic or written notice from the Company to suspend sales to permit the
Company to correct or update a registration statement or prospectus; but the
obligations of the Company with respect to maintaining any registration
statement current and effective shall be extended by a period of days equal to
the period such suspension is in effect unless (i) such extension would result
in the Company's inability to use the financial statements in the registration
statement as initially filed and (ii) such correction or update did not result
from the Company's acts or failures to act.
At the end of the period during which the Company is obligated to keep
the registration statement current and effective as described above (and any
extensions thereof required by the preceding sentence), the Holders of shares of
Restricted Stock included in the registration statement shall discontinue sales
of shares pursuant to such registration statement upon receipt of notice from
the Company of its intention to remove from registration the shares covered by
such registration statement which remain unsold, and such Holders shall notify
the Company of the number of shares registered which remain unsold immediately
upon receipt of such notice from the Company.
8. Expenses.
All expenses incurred by the Company in complying with Sections 4, 5
and 6, including, without limitation, all registration and filing fees, printing
expenses, fees and disbursements of counsel to the Company and independent
public accountants for the Company, fees and expenses (including counsel fees)
incurred in connection with complying with state securities or "blue sky" laws,
fees of the National Association of Securities Dealers, Inc., transfer taxes,
fees of transfer agents and registrars, costs of insurance, shall be borne by
the Company, except that the following expenses shall be borne by the Holders of
the securities registered pursuant to such registration, pro rata according to
the quantity of their securities so registered:
(a) all expenses, fees and disbursements of any counsel retained by the
Holders (to be paid pro rata according to the quantity of the securities
registered by the Holders who retained such counsel, or as shall be otherwise
agreed by such Holders) and all underwriting discounts and commissions for
securities registered for sale by them; and
(b) expenses of any registration proceeding begun pursuant to Section
4, the request of which has been subsequently withdrawn by all of the requesting
Holders of Registrable Shares, in which case, unless such expenses are less than
$25,000 and such requested registration is the first time a request has been
made for a registration pursuant to Section 4, such expenses shall be borne by
the Holders of securities requesting or causing such withdrawal unless the
holders of at least two-thirds of the Restricted Stock agree to forfeit their
right to one demand registration pursuant to Section 4; provided further,
however, that if at the time of such withdrawal, the requesting Holders have
learned of a material adverse change in the condition, business, or prospects of
the Company from that known to them at the time of their request, then the
requesting Holders of Registrable Shares shall not be required to pay any of
such expenses (except as provided in clause (a) above) and shall retain their
rights pursuant to Section 4.
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9. Indemnification and Contribution.
(a) To the extent permitted by law, in the event of a registration of
any of the Restricted Stock under the Securities Act pursuant to Section 4, 5 or
6, the Company will indemnify and hold harmless each seller of such Restricted
Stock thereunder, each underwriter of such Restricted Stock thereunder and each
other person, if any, who controls such seller or underwriter within the meaning
of the Securities Act, against any losses, claims, damages or liabilities, joint
or several, to which such seller, underwriter or controlling person may become
subject under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in any registration statement under which such Restricted Stock was
registered under the Securities Act pursuant to Section 4, 5 or 6, any
preliminary prospectus or final prospectus contained therein, or any amendment
or supplement thereof, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the
circumstances in which they were made, or arise out of any violation by the
Company of any rule or regulation promulgated under the Securities Act
applicable to the Company and relating to action or inaction required of the
Company in connection with such registration and will reimburse each such
seller, each such underwriter and each such controlling person for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action, provided, however,
that the Company will not be liable in any such case if and to the extent that
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission so
made in conformity with information furnished by any such seller, any such
underwriter or any such controlling person in writing specifically for use in
such registration statement or prospectus, and except that the foregoing
indemnity agreement is subject to the condition that, insofar as it relates to
any such untrue statement or alleged untrue statement or omission or alleged
omission made in the preliminary prospectus but eliminated or remedied in the
amended prospectus on file with the Commission at the time the registration
statement becomes effective or in the amended prospectus filed with the
Commission pursuant to Rule 424(b) or in the prospectus subject to completion
and term sheet under Rule 434 of the Securities Act, which together meet the
requirements of Section 10(a) of the Securities Act (the "Final Prospectus"),
such indemnity agreement shall not inure to the benefit of any such seller, any
such underwriter or any such controlling person, if a copy of the Final
Prospectus was not furnished to the person or entity asserting the loss,
liability, claim or damage at or prior to the time such furnishing is required
by the Securities Act; provided, further, that this indemnity shall not be
deemed to relieve any underwriter of any of its due diligence obligations.
(b) To the extent permitted by law, in the event of a registration of
any of the Restricted Stock under the Securities Act pursuant to Section 4, 5 or
6, each seller of such Restricted Stock thereunder, severally and not jointly,
will indemnify and hold harmless the Company, each person, if any, who controls
the Company within the meaning of the Securities Act, each officer of the
Company who signs the registration statement, each director of the Company, each
underwriter and each person who controls any underwriter within the meaning of
the Securities Act, against all losses, claims, damages or liabilities, joint or
several, to which the Company or such officer, director, underwriter or
controlling person may become subject under
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the Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any registration statement under which such Restricted Stock was registered
under the Securities Act pursuant to Section 4, 5 or 6, any preliminary
prospectus or final prospectus contained therein, or any amendment or supplement
thereof, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading in the light of the circumstances in which
they were made, and will reimburse the Company and each such officer, director,
underwriter or controlling person for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action, provided, however, that such seller will be
liable hereunder in any such case if and only to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission so made in reliance
upon and in conformity with information pertaining to such seller furnished in
writing to the Company by such seller specifically for use in such registration
statement or prospectus, and provided, further, that the foregoing indemnity
agreement is subject to the condition that, insofar as it relates to any such
untrue statement or alleged untrue statement or omission or alleged omission
made in the preliminary prospectus but eliminated or remedied in the amended
prospectus on file with the Commission at the time the registration statement
becomes effective or in the Final Prospectus, such indemnity agreement shall not
inure to the benefit of the Company, any controlling person or any underwriter,
if a copy of the Final Prospectus was not furnished to the person or entity
asserting the loss, liability, claim or damage at or prior to the time such
furnishing is required by the Securities Act; provided, further, that this
indemnity shall not be deemed to relieve any underwriter of any of its due
diligence obligations; and provided, further, that in no event shall any
indemnity by a seller under this Section 9(b) exceed the gross proceeds from the
offering received by such seller.
(c) Promptly after receipt by an indemnified party hereunder of notice
of the commencement of any action, such indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party hereunder, notify
the indemnifying party in writing thereof, but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
such indemnified party other than under this Section 9 and shall only relieve it
from any liability which it may have to such indemnified party under this
Section 9 if and to the extent the indemnifying party is prejudiced by such
omission. In case any such action shall be brought against any indemnified party
and it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate in and, to the extent it
shall wish, to assume and undertake the defense thereof with counsel
satisfactory to such indemnified party, and, after notice from the indemnifying
party to such indemnified party of its election so to assume and undertake the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under this Section 9 for any legal expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation and of liaison with counsel so selected, provided,
however, that, if the defendants in any such action include both the indemnified
party and the indemnifying party and counsel to the indemnified party shall have
reasonably concluded that there are reasonable defenses available to the
indemnified party which are different from or additional to those available to
the indemnifying party or if the interests of the indemnified party reasonably
may be deemed to conflict with the
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interests of the indemnifying party, the indemnified party shall have the right
to select a separate counsel and to assume such legal defenses and otherwise to
participate in the defense of such action, with the expenses and fees of such
separate counsel and other expenses related to such participation to be
reimbursed by the indemnifying party as incurred. No indemnifying party, in the
defense of any such claim or litigation, shall, except with the consent of each
indemnified party, consent to entry of any judgment or enter into any settlement
which does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such indemnified party of a release from all liability
in respect to such claim or litigation.
(d) In order to provide for just and equitable contribution to joint
liability under the Securities Act in any case in which either (i) any Holder of
Restricted Stock exercising rights under this Agreement, or any controlling
person of any such Holder, makes a claim for indemnification pursuant to this
Section 9 but it is judicially determined (by the entry of a final judgment or
decree by a court of competent jurisdiction and the expiration of time to appeal
or the denial of the last right of appeal) that such indemnification may not be
enforced in such case notwithstanding the fact that this Section 9 provides for
indemnification in such case, or (ii) contribution under the Securities Act may
be required on the part of any such selling Holder or any such controlling
person in circumstances for which indemnification is provided under this Section
9; then, and in each such case, the Company and such Holder will contribute to
the aggregate losses, claims, damages or liabilities to which they may be
subject (after contribution from others) in such proportion so that such Holder
is responsible for the portion represented by the percentage that the public
offering price of its Restricted Stock offered by the registration statement
bears to the public offering price of all securities offered by such
registration statement, and the Company is responsible for the remaining
portion; provided, however, that, in any such case, (A) no such Holder will be
required to contribute any amount in excess of the public offering price of all
such Restricted Stock offered by it pursuant to such registration statement; and
(B) no person or entity guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) will be entitled to contribution
from any person or entity who was not guilty of such fraudulent
misrepresentation.
10. Changes in Common Stock. If, and as often as, there is any change
in the Common Stock by way of a stock split, stock dividend, combination or
reclassification, or through a merger, consolidation, reorganization or
recapitalization, or by any other means, appropriate adjustment shall be made in
the provisions hereof so that the rights and privileges granted hereby shall
continue with respect to the Common Stock as so changed.
11. Rule 144 Reporting. With a view to making available the benefits of
certain rules and regulations of the Commission which may at any time permit the
sale of the Restricted Stock to the public without registration, the Company
agrees to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act;
(b) use its reasonable best efforts to file with the Commission in a
timely manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act; and
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(c) furnish to each Holder of Restricted Stock forthwith upon request a
written statement by the Company as to its compliance with the reporting
requirements of such Rule 144 and of the Securities Act and the Exchange Act, a
copy of the most recent annual or quarterly report of the Company, and such
other reports and documents so filed by the Company as such Holder may
reasonably request in availing itself of any rule or regulation of the
Commission allowing such Holder to sell any Restricted Stock without
registration.
The Company shall not be required to effect a registration pursuant to
Section 4, 5 or 6 hereof for any Holder desiring to participate in such
registration who may then dispose of all of its shares of Restricted Stock
pursuant to Rule 144 within the three-month period following such proposed
registration.
12. Miscellaneous.
(a) All covenants and agreements contained in this Agreement by or on
behalf of any of the parties hereto shall bind and inure to the benefit of the
respective successors and assigns of the parties hereto (including without
limitation transferees of any of the shares of Restricted Stock), whether so
expressed or not, provided, however, that registration rights conferred herein
on the Holders of shares of Restricted Stock shall only inure to the benefit of
a transferee of shares of Restricted Stock if such transferee, in the Company's
reasonable judgment, is not a competitor of the Company, and (i) there is
transferred to such transferee at least 20% of the total shares of Restricted
Stock originally issued to the direct or indirect transferor of such transferee
by the Company or (ii) such transfer is made in connection with the distribution
by a Holder to such Holder's beneficial owners (including, without limitation,
to partners of a general or limited partnership, shareholders of a corporation
and beneficiaries of a trust) of securities of the Holder or to the partners or
employees of the Holder, provided that at the Company's request, one person
shall be designated by such transferees as their agent for purposes of their
rights hereunder and the provision of a notice by the Company to such agent in
accordance with the provisions hereof shall be deemed compliance with such
provisions for all such beneficial owners, partners and employees, and following
such request by the Company, the Company shall have no obligation under said
provisions with respect to such transferees until it shall have been notified of
the name and address of such agent.
(b) Each Holder agrees that it will provide notice to the Company of
any transfer or assignment of its rights or interests hereunder. Any failure by
the Company to fulfill a covenant or obligation hereunder which is the direct
result of a failure by a Holder to provide such notice shall not be deemed to be
a breach of any covenant or obligation hereunder.
Nothing in this Agreement shall be construed to create any rights or
obligations except among the parties hereto and their respective and permitted
successors and assigns, and no person or entity shall be regarded as a
third-party beneficiary of this Agreement.
Except as provided in Section 12(a) above, all notices, requests,
consents and other communications hereunder shall be in writing, shall be
addressed to the receiving party's address set forth below or to such other
address as a party may designate by notice hereunder, and shall
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be either (i) delivered by hand, (ii) sent by overnight courier, with a receipt
obtained or (iii) sent by registered or certified mail, return receipt
requested, postage prepaid.
If to the Company: Occupational Health + Rehabilitation Inc
175 Derby Street, Suite 36
Hingham, MA 02043-5048
Attn: Chief Executive Officer
If to an Existing Holder: To Existing Holder at the address of such Existing
Holder set forth in Schedule I attached hereto
If to an OH+R Securityholder: To OH+R Securityholder at the address of such OH+R
Securityholder set forth in Schedule II attached
hereto
All notices, requests, consents and other communications hereunder
shall be deemed to have been given (i) if by hand, at the time of the delivery
thereof to the receiving party at the address of such party set forth above,
(ii) if sent by overnight courier, on the next business day following the day
such notice is delivered to the courier service, or (iii) if sent by registered
or certified mail, on the 5th business day following the day such mailing is
made.
(c) This Agreement shall be governed and construed in accordance with
the law of the Commonwealth of Massachusetts, without giving effect to the
conflict of laws principles thereof.
(d) This Agreement may be amended or modified, and any provision hereof
may be waived in whole or in part, but only by the written consent of the
Company and the holders of at least two-thirds of the aggregate number of
outstanding shares of Restricted Stock held of record by the Holders or their
permitted successors and assigns. This Agreement may be terminated by written
agreement of the Company and the holders of at least two-thirds of the aggregate
number of outstanding shares of Restricted Stock held of record by the Holders
or their permitted successors and assigns.
(e) This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
(f) Except as otherwise expressly provided herein, the obligations of
the Company to register shares of Restricted Stock under Section 4, 5 or 6 as
provided herein shall terminate on the fifth anniversary of the date of this
Agreement.
(g) If requested by the underwriter or underwriters for an underwritten
public offering of securities of the Company which offering is by the Company,
each Holder of Restricted Stock who is a party to this Agreement (including,
without limitation, a successor or permitted assignee of a party) shall agree
not to sell, make any short sale of, loan, grant any option for the purchase of,
or otherwise dispose of any shares of Restricted Stock or any other shares of
Common Stock (other than shares being registered in such offering), without the
consent of such underwriter or
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underwriters, for a period of not more than 90 days following the effective date
of the registration statement relating to such offering (unless in any event
such underwriter or underwriters shall, based on then current market conditions,
agree to a shorter period), provided, however, with respect to each such
offering, that all persons entitled to registration rights in such offering who
are not parties to this Agreement, all other persons selling shares of Common
Stock in such offering and all executive officers of the Company shall also have
agreed to be bound by provisions pertaining to the sale of their shares of
Common Stock following such offering which provisions are substantially similar
to the provisions binding upon the Holders of Restricted Stock obligated under
this Agreement with respect to the sale of their shares following such offering.
(h) The Company shall be permitted to require any Holders requesting
registration under Section 4, 5 or 6 to delay any request for registration or to
cease sales under any effective registration statement if the Company is then
contemplating a transaction that could reasonably be expected to be adversely
affected or the Company would be required to make public disclosure of
information, the disclosure of which at such time could reasonably be expected
to cause a material adverse effect upon the Company's business.
In addition, if at the time of any request to register Registrable
Shares pursuant to Section 4 or Section 6 hereof, the Company is engaged or has
fixed plans to engage within ninety (90) days of the time of the request in a
registered public offering as to which such Holders may include Registrable
Shares pursuant to Section 5 hereof, then the Company may at its option direct
that such request be delayed.
(i) If any provision of this Agreement shall be held to be illegal,
invalid or unenforceable, such illegality, invalidity or unenforceability shall
attach only to such provision and shall not in any manner affect or render
illegal, invalid or unenforceable any other provision of this Agreement, and
this Agreement shall be carried out as if any such illegal, invalid or
unenforceable provision were not contained herein.
In the event that any court of competent jurisdiction shall determine
that any provision, or any portion thereof, contained in this Agreement shall be
unreasonable or unenforceable in any respect, then such provision shall be
deemed limited to the extent that such court deems it reasonable and
enforceable, and as so limited shall remain in full force and effect.
(j) The headings and captions of the various subdivisions of this
Agreement are for convenience of reference only and shall in no way modify, or
affect the meaning or construction of any of the terms or provisions hereof.
13. Entire Agreement; Termination of Prior Registration Rights
Agreement
This Agreement embodies the entire agreement and understanding among
the parties hereto with respect to the subject matter hereof and supersedes all
prior oral or written agreements and understandings related to the subject
matter hereof. The Prior Registration Rights Agreement between Telor and the
Existing Holders listed in Schedule I hereto is hereby terminated.
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IN WITNESS WHEREOF, the parties hereof have caused this Agreement to be
executed under seal as of the date first above written.
TELOR OPHTHALMIC
PHARMACEUTICALS, INC.
By:/s/ John K. Herdklotz
John K. Herdklotz, Ph.D.,
Acting President and Chief Executive
Officer
AGREED TO AND ACCEPTED as of the
date first above written.
Existing Holders named in Schedule
I to this Agreement:
Hambro International Venture Fund II, L.P.
By: /s/ Edwin A. Goodman
Hambro International Venture Fund '85
By: /s/ Edwin A. Goodman
KKI - Hambro United States International Venture Fund
By: /s/ Edwin A. Goodman
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Asset Management Associates 1989, L.P.
By: AMC Partners 89, L.P., General Partner
By: /s/ Craig C. Taylor
Venrock Associates
By: /s/ Ted H. McCourtney
Ted H. McCourtney
Venrock Associates II
By: /s/ Ted H. McCourtney
Ted H. McCourtney
Prince Venture Partners III, Limited Partnership
By: /s/ Mark J. Gabrielson
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[This page intentionally left blank.]
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OH+R Securityholders named in Schedule II
and Schedule III to this Agreement:
/s/ John C. Garbarino
John C. Garbarino
/s/ Lynne M. Rosen
Lynne M. Rosen
Family Health Care, P.A.
By: /s/ Richard J. Sagall
Dr. Richard J. Sagall
The Venture Capital Fund of New England III, L.P.
By: FH & Co. III, L.P., Its General Partner
By: /s/ Kevin J. Dougherty
BancBoston Ventures, Inc.
By: /s/ Marcia T. Bates
Prince Venture Partners III, Limited Partnership
By: /s/ Angus M. Duthie
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Boston Capital Ventures Limited Partnership
By: /s/ A. Dana Callow, Jr.
Boston Capital Ventures II Limited Partnership
By: /s/ A. Dana Callow, Jr.
/s/ Stephan D. Deutsch
Stephan D. Deutsch
/s/ Mark J. DeNino
Mark J. DeNino
/s/ Mehrdad Motamed
Mehrdad Motamed
/s/ Ira J. Singer
Ira J. Singer
/s/ Steven L. Blazar
Steven L. Blazar
/s/ Ann Marie Warren
Anne Marie Warren
/s/ Konstantine N. Tsiongas
Konstantine N. Tsiongas
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SCHEDULE I
Existing Holders
Hambro International Venture Fund II, L.P.
650 Madison Avenue
New York, New York 10022
Hambro International Venture Fund '85
650 Madison Avenue
New York, New York 10022
KKI - Hambro United States International Venture Fund
650 Madison Avenue
New York, New York 10022
Asset Management Associates 1989, L.P.
2275 East Bayshore Drive
Palo Alto, California 94303
Venrock Associates
Room 5508, 30 Rockefeller Plaza
New York, New York 10112
and
755 Page Mill Road
Suite A230
Palo Alto, California 94304
Venrock Associates II, L.P.
Room 5508
30 Rockefeller Plaza
New York, New York 10112
and
755 Page Mill Road
Suite A230
Palo Alto, California 94304
Prince Venture Partners III, Limited Partnership
One Gorham Island
Westport, Connecticut 06880
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SCHEDULE II
OH+R Securityholders
John C. Garbarino
10 Barn Swallow Lane
Duxbury, MA 02332
Lynne M. Rosen
54 Old Oaken Bucket Road
Scituate, MA 02066
Stephan D. Deutsch
82 Freeman Parkway
Providence, RI 02906
Family Health Care, P.A.
Attn: Dr. Richard Sagall
358 Broadway
Bangor, ME 04401
The Venture Capital Fund of New England III, L.P.
Attn: Kevin J. Dougherty
160 Federal Street, 23rd Floor
Boston, MA 02110
BancBoston Ventures, Inc.
Attn: Marcia T. Bates
100 Federal Street
Boston, MA 02110
Prince Venture Partners III, Limited Partnership
Attn: Angus M. Duthie
10 South Wacker Drive
Chicago, IL 60606
Boston Capital Ventures Limited Partnership
Attn: Martin J. Hernon, Esq.
45 School Street
Boston, MA 02108
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Boston Capital Ventures II Limited Partnership
Attn: Martin J. Hernon, Esq.
45 School Street
Boston, MA 02108
Mark J. DeNino
Residence: Pennsylvania
Business Address:
800 The Safeguard Building
435 Devon Park Drive
Wayne, PA 19087
Mehrdad Motamed
Residence: Rhode Island
Business Address:
Orthopedic Group
588 Pawtucket Avenue
Pawtucket, RI 02860
Ira J. Singer
Residence: Rhode Island
Business Address:
Orthopedic Group
588 Pawtucket Avenue
Pawtucket, RI 02860
Steven L. Blazar
Residence: Rhode Island
Business Address:
Orthopedic Group
588 Pawtucket Avenue
Pawtucket, RI 02860
Anne Marie Warren
3695 Tolland Road
Shaker Heights, OH 44122
Konstantine N. Tsiongas
1106 Maine Road
Tiverton, RI 02878
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SCHEDULE III
Holders of OH+R Warrants
Stephan D. Deutsch
82 Freeman Parkway
Providence, RI 02906
Mark J. DeNino
Residence: Pennsylvania
Business Address:
800 The Safeguard Building
435 Devon Park Drive
Wayne, PA 19087
Mehrdad Motamed
Residence: Rhode Island
Business Address:
Orthopedic Group
588 Pawtucket Avenue
Pawtucket, RI 02860
Ira J. Singer
Residence: Rhode Island
Business Address:
Orthopedic Group
588 Pawtucket Avenue
Pawtucket, RI 02860
Steven L. Blazar
Residence: Rhode Island
Business Address:
Orthopedic Group
588 Pawtucket Avenue
Pawtucket, RI 02860
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