0001169232-08-001602.txt : 20080408
<SEC-HEADER>0001169232-08-001602.hdr.sgml : 20080408
<ACCEPTANCE-DATETIME>20080408110956
ACCESSION NUMBER: 0001169232-08-001602
CONFORMED SUBMISSION TYPE: SC 13D/A
PUBLIC DOCUMENT COUNT: 3
FILED AS OF DATE: 20080408
DATE AS OF CHANGE: 20080408
GROUP MEMBERS: DAVID NIERENBERG
GROUP MEMBERS: NIERENBERG INVESTMENT MANAGEMENT OFFSHORE, INC.
GROUP MEMBERS: THE D3 FAMILY BULLDOG FUND, L.P.
GROUP MEMBERS: THE D3 FAMILY CANADIAN FUND, L.P.
GROUP MEMBERS: THE D3 FAMILY FUND, L.P.
GROUP MEMBERS: THE DIII OFFSHORE FUND, L.P.
SUBJECT COMPANY:
COMPANY DATA:
COMPANY CONFORMED NAME: NATUS MEDICAL INC
CENTRAL INDEX KEY: 0000878526
STANDARD INDUSTRIAL CLASSIFICATION: ELECTROMEDICAL & ELECTROTHERAPEUTIC APPARATUS [3845]
IRS NUMBER: 770154833
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: SC 13D/A
SEC ACT: 1934 Act
SEC FILE NUMBER: 005-77922
FILM NUMBER: 08744552
BUSINESS ADDRESS:
STREET 1: 1501 INDUSTRIAL ROAD
CITY: SAN CARLOS
STATE: CA
ZIP: 94070
BUSINESS PHONE: 6508020400
MAIL ADDRESS:
STREET 1: 1501 INDUSTRIAL ROAD
CITY: SAN CARLOS
STATE: CA
ZIP: 94070
FILED BY:
COMPANY DATA:
COMPANY CONFORMED NAME: NIERENBERG INVESTMENT MANAGEMENT CO
CENTRAL INDEX KEY: 0001282683
IRS NUMBER: 911677205
FILING VALUES:
FORM TYPE: SC 13D/A
MAIL ADDRESS:
STREET 1: 19605 NE 8TH ST
CITY: CAMAS
STATE: WA
ZIP: 98607
</SEC-HEADER>
<DOCUMENT>
<TYPE>SC 13D/A
<SEQUENCE>1
<FILENAME>d74045_sc13d.txt
<DESCRIPTION>AMENDMENT NO. 11
<TEXT>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 11)
NATUS MEDICAL INCORPORATION (BABY)
(Name of Issuer)
Common Stock
(Title of Class of Securities)
639050103
(CUSIP Number)
David Nierenberg
The D3 Family Funds
19605 NE 8th Street
Camas, WA 98607
(360) 604-8600
With a copy to:
Henry Lesser, Esq.
DLA Piper US LLP
2000 University Avenue
East Palo Alto, CA 94303
(650) 833-2000
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
April 4, 2008
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D and is filing this
schedule because of Sections 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check
the following box |_|.
<PAGE>
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSON
The D3 Family Fund, L.P.
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) |X|
(b) |_|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
WC
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Washington
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
702,291 Common shares (3.1%)
-----------------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY 0
OWNED BY -----------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON 702,291
WITH -----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
For the reporting person listed on this page, 702,291; for all
reporting persons as a group, 4,359,845 shares (19.1%)
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* |_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
19.1%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
2
<PAGE>
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSON
The D3 Family Bulldog Fund, L.P.
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) |X|
(b) |_|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
WC
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Washington
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
2,569,995 common shares (11.3%)
-----------------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY 0
OWNED BY -----------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON 2,569,995
WITH -----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
For the reporting person listed on this page, 2,569,995; for all
reporting persons as a group, 4,359,845 shares (19.1%)
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* |_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
19.1%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
3
<PAGE>
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSON
The D3 Family Canadian Fund, L.P.
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) |X|
(b) |_|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
WC
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Washington
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
129,931 common shares (0.6%)
-----------------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY 0
OWNED BY -----------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON 129,931
WITH -----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
For the reporting person listed on this page, 129,931; for all
reporting persons as a group, 4,359,845 shares (19.1%)
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* |_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
19.1%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
4
<PAGE>
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSON
The DIII Offshore Fund, L.P.
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) |X|
(b) |_|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
WC
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Washington
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
957,628 common shares (4.2%)
-----------------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY 0
OWNED BY -----------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON 957,628
WITH -----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
For the reporting person listed on this page, 957,628; for all
reporting persons as a group, 4,359,845 shares (19.1%)
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* |_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
19.1%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
5
<PAGE>
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSON
Nierenberg Investment Management Company, Inc.
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) |X|
(b) |_|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
AF
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Washington
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
-----------------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY 4,359,845 shares (19.1%)
OWNED BY -----------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON 0
WITH -----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
4,359,845 shares
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
For the reporting person listed on this page, 4,359,845; for all
reporting persons as a group, 4,359,845 shares (19.1%)
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* |_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
19.1%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
6
<PAGE>
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSON
Nierenberg Investment Management Offshore, Inc.
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) |X|
(b) |_|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
AF
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Bahamas
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
-----------------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY 957,628 common shares (4.2%)
OWNED BY -----------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON 0
WITH -----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
957,628 common shares
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
For the reporting person listed on this page, 957,628; for all
reporting persons as a group, 4,359,845 shares (19.1%)
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* |_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
19.1%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
7
<PAGE>
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSON
David Nierenberg
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) |X|
(b) |_|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
AF
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Washington
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
-----------------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY 4,359,845 common shares (19.1%)
OWNED BY -----------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON 0
WITH -----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
4,359,845
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
For the reporting person listed on this page, 4,359,845; for all
reporting persons as a group, 4,359,845 shares (19.1%)
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* |_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
19.1%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
8
<PAGE>
This Amendment No. 11 to Schedule 13D (this "Amendment") amends the
below-indicated items from the Schedule 13D (the "Schedule 13D") previously
filed by or on behalf of the undersigned parties (the "Reporting Persons") by
supplementing such Items with the information below:
Item 2. Identity and Background.
The Reporting Persons now include The D3 Family Canadian Fund, L.P., a
Washington State limited partnership ("The D3 Family Canadian Fund"), of which
Nierenberg Investment Management Company, Inc, a Reporting Person, is the
general partner.
The Reporting Persons now also include David Nierenberg. His business
address is 19605 NE 8th Street, Camas WA 98607; his principal occupation is
President of Nierenberg Investment Management Company, Inc. and Nierenberg
Investment Management Offshore, Inc, two of the other Reporting Persons; and he
is a citizen of the United States of America.
During the past five years neither The D3 Family Canadian Fund, L.P. nor
David Nierenberg have been convicted in a criminal proceeding required to be
reported in response to Item 2(d), or a party to a civil proceeding required to
be reported in response to Item 2(e), of Schedule 13D.
Item 3. Source and Amount of Funds or Other Consideration.
The total amount of funds used by the Reporting Persons to make all
purchases of Shares beneficially owned by the Reporting Persons, as reported in
Item 5(a, b), was $36,714,462. The total amount of funds used by the Reporting
Persons to make all of the purchases of Shares reported in Item 5(c) was
$3,197,250. The source of funds for all purchases of Shares by each of the
Reporting Persons (including The D3 Family Canadian Fund) is the working capital
of the applicable D3 Family Fund (each, a "Fund").
Item 4. Purpose of Transaction
On April 4, 2008, two of the Funds (identified in Item 5(c)) agreed to
purchase from the Company's underwriter, and the underwriter agreed to sell to
each Fund, the number of Shares set forth in Item 5 at a purchase price of
$18.27 per Share. These Shares will be issued pursuant to the Company's
Registration Statement on Form S-3 (File No. 333-233480), as amended, in
connection with an underwritten offering of its common stock by the Company (the
"Offering"). Concurrently with the settlement of these purchases and the
issuance of the Shares to the purchasing Funds (anticipated to occur on April
9,2008), the Company and each of the purchasing Funds will enter into a
Registration Rights Agreement anticipated to be dated as of April 9, 2008 (the
"Registration Rights Agreement") pursuant to which, subject to the terms and
conditions thereof, the Company will grant to the Funds certain rights to
require the Company to register for resale all Shares held by the Reporting
Persons as of the date of the Registration Rights Agreement. The form of
Registration Rights Agreement is filed as Exhibit 1 to this Amendment and the
terms thereof are incorporated into this Item by reference.
9
<PAGE>
The Reporting Persons hold their shares of the Company's common stock for
investment. The Reporting Persons reserve the right to increase or decrease
their investment in the Company depending on market conditions, circumstances
affecting the Company and/or extrinsic factors such as developments in the
Company's industry and the economic environment, and to discuss the Company and
their investment in the shares of the Company with the directors and executive
officers of the Company and third parties, without amending the Schedule 13D
except as required by applicable rules.
Item 5. Interest in Securities of the Issuer.
(a, b) The Reporting Persons, in the aggregate, beneficially own 4,359,845
Shares, constituting approximately 19.1% of the outstanding Shares. All
percentages in this Amendment have been calculated based on the information to
be provided by the Company in the Registration Rights Agreement as to the number
of Shares that will be outstanding following the completion of the Offering.
(c) On April 4, 2008, the Reporting Persons named below agreed to purchase
the following number of Shares through the transactions reported in respect to
Item 4.
Fund Transaction Date Shares Acquired Price
---- ---------------- --------------- -----
D3 Family Bulldog Fund, LP 4/4/2008 146,000 18.27
D3 Family Canadian Fund, LP 4/4/2008 29,000 18.27
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to
Securities of the Issuer.
Reference is made to the Registration Rights Agreement (see Item 4), which
is filed as an exhibit to this Amendment (see Item 7) and the terms of which are
incorporated by reference in response to this Item.
Item 7. Material to be filed as Exhibits
Exhibit 1 Form of Registration Rights Agreement anticipated to
be dated as of April 9, 2008, by and among the
Company and each of the four Funds.
Exhibit 2 Joint Filing Agreement among the Reporting Persons
dated March 5, 2008 pursuant to which all of the
Reporting Persons have authorized the filing of
Schedule 13D's and amendments thereto as a group.
10
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, each of the
undersigned certifies that the information set forth in the Statement is true,
complete and correct.
D3 Family Fund, L.P., D3 Bulldog Fund, L.P., and
D3 Family Canadian Fund, L.P.
By: Nierenberg Investment Management
Company, Inc.
Its: General Partner
April 8, 2008 By: /s/ David Nierenberg
- ------------------------- -------------------------------------------
David Nierenberg, President
DIII Offshore Fund, L.P.
By: Nierenberg Investment Management
Offshore, Inc.
Its: General Partner
April 8, 2008 By: /s/ David Nierenberg
- ------------------------- -------------------------------------------
David Nierenberg, President
Nierenberg Investment Management
Company, Inc.
April 8, 2008 By: /s/ David Nierenberg
- ------------------------- -------------------------------------------
David Nierenberg, President
Nierenberg Investment Management
Offshore, Inc.
April 8, 2008 By: /s/ David Nierenberg
- ------------------------- -------------------------------------------
David Nierenberg, President
April 8, 2008 /s/ David Nierenberg
- ------------------------- -------------------------------------------
David Nierenberg
11
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-99.1
<SEQUENCE>2
<FILENAME>d74045_ex1.txt
<DESCRIPTION>FORM OF REGISTRATION RIGHTS AGREEMENT
<TEXT>
Exhibit 1
FORM OF REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and entered
into as of April 9, 2008 by and among Natus Medical Incorporated, a Delaware
corporation (the "Company"), and the parties listed on the signature page to
this Agreement (each hereinafter individually referred to as an "Investor" and
collectively referred to as the "Investors").
WHEREAS, certain of the Investors have agreed to purchase shares of the
Company's common stock, par value $0.001 per share (the "Common Stock"),
pursuant to a registration statement on Form S-3 (File No. 333-133480), as
amended (the "Shelf Registration Statement"), in connection with a public
offering of Common Stock underwritten by Roth Capital Partners, LLC (the
"Offering"); and
WHEREAS, the Company has agreed to grant certain registration rights to
the Investors in connection with the purchase by certain of the Investors of
Common Stock in the Offering, as more fully set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the representations,
warranties, covenants and agreements set forth in this Agreement, the parties
agree as follows:
1. REGISTRATION RIGHTS.
1.1 Definitions. For purposes of this Section 1:
(a) Commission. The term "Commission" means the U.S.
Securities and Exchange Commission
(b) Exchange Act. The term "Exchange Act" means the Securities
Exchange Act of 1934, as amended.
(c) Holder. The term "Holders" shall mean holders of
Registrable Securities that have registration rights pursuant to this Agreement.
(d) Registration. The terms "register," "registered" and
"registration" refer to a registration effected by preparing and filing a
registration statement in compliance with the Securities Act, and the
declaration or ordering of effectiveness of such registration statement.
(e) Registrable Securities. The term "Registrable Securities"
means: (1) all of the shares of the Company's Common Stock owned by the
Investors as of the date hereof, including the shares of Common Stock purchased
by the Investors in the Offering (the "Investor Shares") and (2) any shares of
Common Stock issued as a dividend or other distribution with respect to, or in
exchange for or in replacement of, any of the Investor Shares; provided,
however, that the term "Registrable Securities" shall exclude in all events (and
such securities shall not constitute "Registrable Securities") (i) any
Registrable Securities sold or transferred in violation of state or federal
securities laws, or (ii) as to any Holder, the Registrable
12
<PAGE>
Securities held by such Holder if all of such Registrable Securities can be
publicly sold without volume restriction within a three-month period pursuant to
Rule 144 under the Securities Act.
(f) Prospectus. The term "Prospectus" shall mean the
prospectus included in any registration statement filed pursuant to Section 1.2
of this Agreement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any prospectus supplement
(including, without limitation, any prospectus supplement with respect to the
terms of the offering of any portion of the Registrable Securities covered by
such registration statement), and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus
(g) Securities Act. The term "Securities Act" means the
Securities Act of 1933, as amended.
1.2 Demand Registration.
(a) Request by Holders. If the Company shall receive at any
time a written request from the Holders that, on or after October 9, 2008, the
Company file a registration statement under the Securities Act covering the
registration of Registrable Securities pursuant to this Section 1.2 (a
"Request"), then the Company shall effect, as soon as practicable, the
registration under the Securities Act of all Registrable Securities which
Holders request to be registered and included in such registration; provided,
however, that the Registrable Securities requested by the Holders to be
registered pursuant to such request must not be an amount greater than two
million (2,000,000) shares of Common Stock nor in an amount less than five
hundred thousand (500,000) shares. Without limiting the generality of the
foregoing, to the extent that the Company has shares available under an
effective shelf registration statement on Form S-3 (the "Shelf Registration
Statement"), to the extent permitted by the rules and regulations of the
Commission, the Company shall first file a prospectus supplement under such
Shelf Registration Statement with respect to the lesser of (1) the number of
shares requested to be registered by the Holders pursuant to the Request or (2)
the number of shares remaining available under such Shelf Registration
Statement. Any shares which cannot be included under the Shelf Registration
Statement, whether due to lack of availability under the Shelf Registration
Statement or due to the rules and regulations of the Commission, shall be
subject to a separate registration statement filed by the Company, which
separate registration statement shall be filed as soon as practicable, but in no
event later than 30 days after the receipt by the Company of a Request.
(b) Underwriting. If the Holders that provide the Company with
a Request intend to distribute the Registrable Securities covered by their
Request by means of an underwriting, then they shall so advise the Company as a
part of their Request. The Holders shall enter into an underwriting agreement in
customary form with the managing underwriter or underwriters selected for such
underwriting by the Company and approved by a majority in interest of the
Holders. Notwithstanding any other provision of this Section 1.2, if the
underwriter(s) advise(s) the Company in writing that marketing factors require a
limitation of the number of securities to be underwritten, then the Company
shall so advise all Holders of Registrable Securities that would otherwise be
registered and underwritten pursuant hereto, and
13
<PAGE>
the number of Registrable Securities that may be included in the underwriting
shall be reduced as required by the underwriter(s) and allocated among the
Holders of Registrable Securities on a pro rata basis according to the number of
Registrable Securities then outstanding held by each Holder requesting
registration; provided, however, that the number of shares of Registrable
Securities to be included in such underwriting and registration shall not be
reduced unless all other securities of the Company are first entirely excluded
from the underwriting and registration. Any Registrable Securities excluded and
withdrawn from such underwriting shall be withdrawn from the registration. For
any Holder that is a partnership or corporation, the partners, retired partners
and shareholders of such Holder, or the estates and family members of any such
partners and retired partners and any trusts for the benefit of any of the
foregoing persons shall be deemed to be a single "Holder," and any pro rata
reduction with respect to such "Holder" shall be based upon the aggregate amount
of shares carrying registration rights owned by all entities and individuals
included in such "Holder," as defined in this sentence.
(c) Maximum Number of Demand Registrations; Time Period
Between Demand Registrations. The Company is obligated to effect only two (2)
registrations pursuant to this Section 1.2. The Holders may not provide the
Company with an additional Request pursuant to Section 1.2(a) until at least six
months have elapsed from the date the Holders delivered to the Company their
previous Request.
(d) Deferral. Notwithstanding the foregoing, if the Company
shall furnish to Holders requesting the filing of a registration statement
pursuant to this Section 1.2 a certificate signed by the President or Chief
Executive Officer of the Company stating that in the good faith judgment of the
Board of Directors of the Company it would be seriously detrimental to the
Company and its stockholders for such registration statement to be filed and it
is therefore essential to defer the filing of such registration statement, then
the Company shall have the right to defer such filing for a period of not more
than sixty (60) days after receipt of the Request; provided, however, that the
Company may not utilize this right more than once in any twelve (12) month
period.
(e) Blackout Notice. "Blackout Period" means, with respect to
a registration effected pursuant to this Section 1.2, a period in each case
commencing on the day immediately after the Company notifies the Holders that
they are required, pursuant to Section 1.3(f), to suspend offers and sales of
Registrable Securities during which the Company, in the good faith judgment of
its Board of Directors, determines (because of the existence of, or in
anticipation of, any acquisition, financing activity, or other transaction
involving the Company, or the unavailability of any required financial
statements, disclosure of information which is in its best interest not to
publicly disclose, or any other event or condition of similar significance to
the Company) that the registration and distribution of the Registrable
Securities to be covered by such registration statement, if any, would be
seriously detrimental to the Company and its stockholders and ending on the
earlier of (1) the date upon which the material non-public information
commencing the Blackout Period is disclosed to the public or ceases to be
material and (2) such time as the Company notifies the selling Holders that the
Company will no longer delay such filing of the registration statement, will
recommence taking steps to make such registration statement effective, or will
allow sales pursuant to such registration statement to resume; provided,
however, that (a) the Company shall limit its use of Blackout Periods, in the
aggregate, to 60 trading days in any 12-month period and (b) no Blackout Period
may commence
14
<PAGE>
sooner than 60 days after the end of a prior Blackout Period. Each Holder of
Registrable Securities agrees that, upon receipt of any notice of a Blackout
Period, such Holder shall discontinue disposition of Registrable Securities
pursuant to the registration statement covering such Registrable Securities
until such Holder's receipt of the copies of the supplemented or amended
prospectus contemplated by Section 1.3(c) hereof or notice of the end of the
Blackout Period, and, if so directed by the Company, such Holder shall deliver
to the Company (at the Company's expense) all copies (including, without
limitation, any and all drafts), other than permanent file copies, then in such
Holder's possession, of the prospectus covering such Registrable Securities
current at the time of receipt of such notice.
(f) Expenses. The registration fees and expenses incurred by
the Company in connection with any registration pursuant to this Section 1.2
(other than as set forth in the second sentence of this paragraph), including,
without limitation, all registration, qualification and filing fees, printing
expenses, escrow fees, fees and disbursements of counsel for the Company, blue
sky fees and expenses, and the expense of any special audits incident to or
required by any such registration, but excluding underwriters' discounts and
commissions, and the reasonable fees and disbursements of one counsel for the
selling Holders (such fees and disbursements not to exceed $10,000), shall be
borne by the Company; provided, however, that such one counsel for the selling
Holders shall submit reasonably detailed invoices for review by the Company
prior to payment. Notwithstanding the foregoing, however, if Registrable
Securities are to be distributed by means of an underwriting as contemplated by
Section 1.2(b) of this Agreement, then the registration fees and expenses
incurred by the Company and the selling Holders in connection with such a
registration, including without limitation all registration, qualification and
filing fees, printing expenses, escrow fees, underwriters' discounts and
commissions, fees and disbursements of counsel for the selling Holders, blue sky
fees and expenses, and the expense of any special audits incident to or required
by any such registration, but excluding the fees and disbursements of counsel
for the Company, shall be borne by the selling Holders. Except as set forth in
this Section, Holder shall be responsible for any fees and expenses of its
counsel or other advisers. Each Holder participating in a registration pursuant
to this Section 1.2 shall bear such Holder's proportionate share (based on the
number of shares sold by such Holder over the total number of shares included in
such registration at the time it goes effective) of all expenses payable by the
selling Holders in connection with such offering.
1.3 Obligations of the Company. The Company shall furnish to each
Holder such number of copies of a Prospectus, including a preliminary
Prospectus, in conformity with the requirements of the Securities Act, and such
other documents (including supplements or prospectus amendments) as the Holder
may reasonably request in order to facilitate the public sale or other
disposition of the Registrable Securities owned by it that are included in such
registration. In addition, whenever required to effect the registration of any
Registrable Securities under this Agreement, the Company shall, as expeditiously
as reasonably possible:
(a) Prepare and file with the Commission such amendments and
supplements to any registration statement filed pursuant to Section 1.2 of this
Agreement and the Prospectus used in connection with such registration statement
as may be necessary to comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such registration
statement.
15
<PAGE>
(b) Use its best efforts to (i) register and qualify the
securities covered by any registration statement filed pursuant to Section 1.2
of this Agreement under such other securities or blue sky laws of such
jurisdictions as shall be reasonably requested by the Holder, provided that the
Company shall not be required in connection therewith or as a condition thereto
to qualify to do business or to file a general consent to service of process in
any such states or jurisdictions, (ii) keep such registration or qualification
in effect for so long as the related registration statement remains in effect
and (iii) take any other action which may be reasonably necessary or advisable
to enable the Holders to consummate the disposition in such jurisdictions of the
securities to be sold by the Holders, consistent with the plan of distribution
described in the Prospectus included in the related registration statement,
except that the Company shall not for any such purpose be required to qualify
generally to do business as a foreign corporation in any jurisdiction where it
is not so qualified, or to subject itself to taxation in any such jurisdiction,
or to execute a general consent to service of process in effecting such
registration, qualification or compliance, unless the Company is already subject
to service in such jurisdiction and except as may be required by the Securities
Act or applicable rules or regulations thereunder.
(c) Notify the Holder promptly (i) of any request by the
Commission or any other federal or state governmental authority during the
period of effectiveness of any registration statement filed pursuant to Section
1.2 of this Agreement for amendments or supplements to such registration
statement or related Prospectus or for additional information, (ii) of the
issuance by the Commission or any other federal or state governmental authority
of any stop order suspending the effectiveness of any registration statement
filed pursuant to Section 1.2 of this Agreement or the initiation of any
proceedings for that purpose and (iii) 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.
(d) Make all commercially reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of any registration
statement filed pursuant to Section 1.2 of this Agreement at the earliest
possible time.
(e) Cause all Registrable Securities to be listed on each
securities exchange or market, if any, on which equity securities issued by the
company are then listed.
(f) As promptly as practicable after becoming aware of such
event, notify each Holder of Registrable Securities at any time when a
Prospectus relating thereto is required to be delivered under the Securities Act
of the happening of any event which comes to the Company's attention if as a
result of such event the prospectus included in any registration statement filed
pursuant to Section 1.2 of this Agreement contains an untrue statement of a
material fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and the Company
shall promptly prepare and furnish to such Holder a supplement or amendment to
such Prospectus (or prepare and file appropriate reports under the Exchange Act)
so that, as thereafter delivered to the purchasers of such Registrable
Securities, such Prospectus shall not contain an untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, unless suspension of
the use of such Prospectus otherwise is authorized herein or in the event of a
Blackout Period, in which case no supplement or amendment need be
16
<PAGE>
furnished (or Exchange Act filing made) until the termination of such suspension
or Blackout Period.
(g) From the date of this Agreement until the termination of
the Company's obligations with regards to the registration rights of Registrable
Securities pursuant to Section 1.6, if the Company grants registration rights to
holders of any security of the Company which are more favorable to such holders
than the registration rights granted hereunder without the prior written consent
of the Holders of a majority of the outstanding Registrable Securities, then
such more favorable registration rights shall also be deemed to be granted to
the Holders of Registrable Securities hereunder, and the Company covenants and
agrees to take any and all steps necessary to modify the terms of this Agreement
to so provide.
1.4 Furnish Information. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to Section 1.2 that the
Holders shall furnish to the Company such information regarding it and the
Registrable Securities held by it as shall be required to timely effect the
registration of its Registrable Securities.
1.5 Indemnification. For the purposes of this Section 1.5, the term
"registration statement" shall include any final Prospectus, exhibit,
supplement, amendment or other document included in, filed as part of, deemed to
be a part of, or otherwise relating to any registration statement filed pursuant
to Section 1.2 of this Agreement. In the event any Registrable Securities are
included in a registration statement under this Agreement:
(a) By the Company. To the extent permitted by law, the
Company will indemnify and hold harmless each Holder, its officers and
directors, trustees, and each person, if any, who controls the Holder and any
underwriter for each (as defined in the Securities Act) (such persons and
entities referred to as "Holder Indemnified Parties"), against any losses,
claims, expenses (including reasonable attorneys' fees), damages or liabilities
(including in settlement of any claim) to which they may become subject under
the Securities Act, the Exchange Act, or other federal or state law (a "Loss"),
insofar as such Losses (or actions in respect thereof) arise out of any claim,
action or proceeding brought by a third party arising out of or based upon any
of the following statements, omissions or violations (collectively a
"Violation"):
(1) any untrue statement or alleged untrue statement of
a material fact contained in a registration statement;
(2) the omission or alleged omission to state in a
registration statement a material fact required to be stated therein, or
necessary to make the statements therein not misleading;
(3) any violation or alleged violation by the Company of
the Securities Act, the Exchange Act, any federal or state securities law or any
rule or regulation promulgated under the Securities Act, the Exchange Act or any
federal or state securities law, in each case in connection with the offering
covered by such registration statement;
(4) any failure by the Company to fulfill any
undertaking included in a registration statement; or
17
<PAGE>
(5) any material breach of any representation, warranty
or covenant made by the Company in this Agreement;
and the Company will pay to each Holder Indemnified Party for any legal or other
expenses, as incurred, reasonably incurred by them, as incurred, in connection
with investigating or defending or settling, compromising or paying an award
granted in any proceeding relating to any such Violation; provided, however,
that the indemnity agreement contained in this subsection shall not apply to
amounts paid in settlement of any such Loss, if such settlement is effected
without the consent of the Company (which consent shall not be unreasonably
withheld or delayed), nor shall the Company be liable in any such case for any
such Loss to the extent that it arises out of or is based upon a Violation which
occurs in reliance upon and in conformity with written information furnished
expressly for use in connection with such registration statement by the Holder
Indemnified Party; and provided further, that the Company will not be liable for
the reasonable legal fees and expenses of more than one counsel to the Holder
Indemnified Parties.
(b) By Holders. To the extent permitted by law, each Holder
(severally and not jointly with any other Holder) will indemnify and hold
harmless the Company, each of its directors, each of its officers who have
signed the registration statement, and each person, if any, who controls the
Company within the meaning of the Securities Act (such persons and entities
referred to as "Company Indemnified Parties") against any Losses to which such
Company Indemnified Parties may become subject under the Securities Act, the
Exchange Act or other federal or state law, insofar as such Losses (or actions
in respect thereto) arise out of or are based upon any Violation, in each case
to the extent (and only to the extent) that such Violation occurs in reliance
upon and in conformity with written information furnished by the Holder
expressly for use in connection with such registration statement; and the Holder
will pay, as incurred, any legal or other expenses reasonably incurred by such
Company Indemnified Parties in connection with investigating or defending any
such Violation; provided, however, that the indemnity agreement contained in
this subsection shall not apply to amounts paid in settlement of any such Loss
if such settlement is effected without the consent of the Holder (which consent
shall not be unreasonably withheld or delayed); provided further, that the
Holder shall not be liable for the reasonable legal fees and expenses of more
than one counsel to the Company Indemnified Parties; and provided further, that
the total amounts payable in indemnity by the Holder under this subsection in
respect of any Violation shall not exceed the net proceeds received by each
Holder in the registered offering out of which such Violation arises.
(c) Notice. Promptly after receipt by an indemnified party
under this Section 1.5(c) of notice of the commencement of any action (including
any governmental action), such indemnified party will, if a claim for
indemnification in respect thereof is to be made against any indemnifying party
under this Section 1.5(c), deliver to the indemnifying party a written notice of
the commencement of such an action and the indemnifying party shall have the
right to participate in, and, to the extent the indemnifying party so desires,
jointly with any other indemnifying party similarly noticed, to assume the
defense thereof with counsel selected by the indemnifying party and reasonably
acceptable to a majority in interest of the indemnified parties; provided,
however, that an indemnified party shall have the right to retain its own
counsel, with the reasonable fees and expenses to be paid by the indemnifying
party, if the indemnified party has been advised in writing by counsel that
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual
18
<PAGE>
conflict of interests between such indemnified party and any other party
represented by such counsel in such proceeding. The failure to deliver written
notice to the indemnifying party within a reasonable time of the commencement of
any such action shall relieve such indemnifying party of liability to the
indemnified party under this Section 1.5(c) to the extent such delay caused
material prejudice to the indemnified party, but the omission so to deliver
written notice to the indemnifying party will not relieve it of any liability
that it may have to any indemnified party otherwise than under this Section
1.5(c).
(d) Contribution. If the indemnification provided for in this
Section 1.5 is held by a court of competent jurisdiction to be unavailable to or
insufficient to hold harmless an indemnified party in respect of Losses, then
each indemnifying 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 Company on the one hand and the
Holder on the other in connection with the statements or omissions or other
matters which resulted in such losses, claims, damages, liabilities or expenses
(or actions in respect thereof), as well as any other relevant equitable
considerations. The relative fault shall be determined by reference to, among
other things, in the case of an untrue statement, whether the untrue statement
relates to information supplied by the Company on the one hand or a Holder on
the other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement. The Company and the
Investors agree that it would not be just and equitable if contribution pursuant
to this Section 1.5(d) were determined by pro rata allocation (even if all
Holders were treated as one entity for such purpose) or by any other method of
allocation which does not take into account the equitable considerations
referred to above in this Section 1.5(d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this Section 1.5(d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
Notwithstanding any provision of this Agreement apparently to the contrary, any
contribution (together with any indemnification or other obligations under this
Agreement) by any Holder (including any indemnified person associated with such
Holder) shall in no event exceed the net amount of proceeds received by such
Holder from the sale of the Registrable Securities.
(e) Survival. The obligations of the Company and the Holder
under this Section shall survive the completion of any offering of Registrable
Securities in a registration statement, and otherwise.
1.6 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 Registrable Securities to the public without registration, for a
period of one year following the date of this Agreement, the Company agrees to:
(a) Make and keep adequate, current public information
available, as those terms are understood and defined in Rule 144 under the
Securities Act, at all times
19
<PAGE>
(b) File with the Commission in a timely manner all reports
and other documents required of the Company under the Exchange Act; and
(c) So long as the Holder owns any Registrable Securities, to
furnish to the Holder forthwith upon request a written statement by the Company
as to its compliance with the reporting requirements of Rule 144 and the
Exchange Act, or that it qualifies as a registrant whose securities may be
resold pursuant to Form S-3 (at any time after it so qualifies) a copy of the
most recent annual or quarterly report of the Company and such other reports and
documents so filed by the Company, and such other reports and documents of the
Company as the Holder may reasonably request in availing itself of any rule or
regulation of the Commission allowing a Holder to sell any such securities
without registration.
1.7 Termination of the Company's Obligations. The Company shall have
no obligation to maintain a registration statement governing Registrable
Securities after the earliest to occur of the following: (i) the date on which
all Registrable Securities held by such Holder may be sold without any volume
restrictions within a three-month period under Rule 144, as it may be amended
from time to time, including but not limited to amendments that reduce that
period of time that securities must be held before such securities may be sold
pursuant to such rule, or (ii) if all Registrable Securities have been
registered and sold (A) pursuant to registrations effected pursuant to this
Agreement, (B) to or through a broker or dealer or underwriter in a public
distribution or a public securities transaction, and/or (C) in a transaction
exempt from the registration and prospectus delivery requirements of the
Securities Act under Section 4(1) thereof which results in the removal of all
transfer restrictions and restrictive legends with respect thereto.
2. GENERAL PROVISIONS.
2.1 Survival of Warranties. The representations, warranties and
covenants of the Company and the Investors contained in or made pursuant to this
Agreement shall survive the execution and delivery of this Agreement and shall
in no way be affected by any investigation of the subject matter thereof made by
or on behalf of any of the Investors, their counsel or the Company, as the case
may be.
2.2 Assignment. No party may assign either this Agreement or any of
its rights, interests, or obligations hereunder without the prior written
consent of the other party; provided that an Investor, without the prior written
consent of the Company, may transfer all rights herein to another Investor, to
any affiliate of such Investor without such consent, or to any other person to
whom an Investor transfers Registrable Shares in compliance with applicable
federal and state securities laws so long as such other person agrees to be
bound by all the terms and conditions of this Agreement. Subject to the
preceding sentence, this Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and permitted
assigns. Any purported assignment in violation of this Section 2.2 shall be void
2.3 Governing Law. This Agreement shall be governed by and construed
under the internal laws of the State of California as applied to agreements
among California residents entered into and to be performed entirely within
California, without reference to principles of conflict of laws or choice of
laws.
20
<PAGE>
2.4 Counterparts. 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 agreement.
2.5 Interpretation; Certain Defined Terms.
(a) When a reference is made in this Agreement to Sections,
such reference shall be to a Section of this Agreement unless otherwise
indicated. The words "include," "includes" and "including" when used herein
shall be deemed in each case to be followed by the words "without limitation."
The headings contained in this Agreement are for reference purposes only and
shall not affect in any way the meaning or interpretation of this Agreement.
(b) For purposes of this Agreement, the term "person" shall
mean any individual, corporation (including any non-profit corporation), general
partnership, limited partnership, limited liability partnership, joint venture,
estate, trust, company (including any limited liability company or joint stock
company), firm or other enterprise, association, organization, entity or
governmental entity.
2.6 Notices. Any and all notices required or permitted to be given
to a party pursuant to the provisions of this Agreement will be in writing and
will be effective and deemed to provide such party sufficient notice under this
Agreement on the earliest of the following: (i) at the time of personal
delivery, if delivery is in person; (ii) at the time of transmission by
facsimile, addressed to the other party at its facsimile number specified herein
(or hereafter modified by subsequent notice to the parties hereto), with
confirmation of receipt made by both telephone and printed confirmation sheet
verifying successful transmission of the facsimile; (iii) one (1) business day
after deposit with an express overnight courier for United States deliveries, or
two (2) business days after such deposit for deliveries outside of the United
States, with proof of delivery from the courier requested; or (iv) three (3)
business days after deposit in the United States mail by certified mail (return
receipt requested) for United States deliveries.
All notices for delivery outside the United States will be sent by
facsimile or by express courier. Notices by facsimile shall be machine verified
as received. All notices not delivered personally or by facsimile will be sent
with postage and/or other charges prepaid and properly addressed to the party to
be notified at the address or facsimile number as follows, or at such other
address or facsimile number as such other party may designate by one of the
indicated means of notice herein to the other parties hereto as follows:
(a) if to an Investor, to the name of such Investor at the following
address:
c/o Nierenberg Investment Management Company
19605 NE Eighth Street
Camas, WA 98607
Attn: Henry Hooper
21
<PAGE>
With a copy to:
DLA Piper US LLP
2000 University Avenue
East Palo Alto, CA 94303
Fax Number: 650.833.2001
Attn: Peter M. Astiz
(b) if to the Company,
Natus Medical Incorporated 1501 Industrial Road San
Carlos, CA 94070 Facsimile: (650) 802-6630 Attn:
President With a copy to:
Fenwick & West LLP
801 California Street
Mountain View, California 94041
Facsimile: 650-938-5200
Attn: Daniel J. Winnike
2.7 Expenses; Finder's Fees. All fees and expenses incurred in
connection with this Agreement and the transactions contemplated hereby shall be
paid by the party incurring such expenses.
2.8 Severability. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, such provision(s) shall be
excluded from this Agreement and the balance of the Agreement shall be
interpreted as if such provision(s) were so excluded and shall be enforceable in
accordance with its terms.
2.9 Entire Agreement. This Agreement constitutes the entire
agreement and understanding of the parties with respect to the subject matter
hereof and supersedes any and all prior negotiations, correspondence,
agreements, understandings duties or obligations between the parties with
respect to the subject matter hereof.
2.10 Further Assurances. From and after the date of this Agreement,
upon the request of an Investor or the Company, the Company and the Investors
shall execute and deliver such instruments, documents or other writings as may
be reasonably necessary or desirable to confirm and carry out and to effectuate
fully the intent and purposes of this Agreement.
2.11 Amendment; Extension; Waiver. Subject to applicable law, this
Agreement may be amended by the parties hereto at any time by execution of an
instrument in writing signed on behalf of the Company and Investors holding a
majority of the then-outstanding Registrable Securities. Any party hereto may,
to the extent legally allowed, (i) extend the time for the performance of any of
the obligations or other acts of the other party hereto or (ii) waive compliance
with any of the agreements or conditions for the benefit of such
22
<PAGE>
party contained herein. Any agreement on the part of a party hereto to any such
extension or waiver shall be valid only if set forth in an instrument in writing
signed on behalf of such party. Delay in exercising any right under this
Agreement shall not constitute a waiver of such right.
2.12 Other Remedies; Specific Performance. Except as otherwise
provided herein, any and all remedies herein expressly conferred upon a party
will be deemed cumulative with and not exclusive of any other remedy conferred
hereby, or by law or equity upon such party, and the exercise by a party of any
one remedy will not preclude the exercise of any other remedy. The parties
hereto agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that the
parties shall be entitled to seek an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms and provisions
hereof in any court of the United States or any state having jurisdiction, this
being in addition to any other remedy to which they are entitled at law or in
equity.
2.13 Rules of Construction. The parties hereto agree that they have
been represented by counsel during the negotiation and execution of this
Agreement and, therefore, waive the application of any law, regulation, holding
or rule of construction providing that ambiguities in an agreement or other
document will be construed against the party drafting such agreement or
document.
2.14 Waiver Of Jury Trial. EACH OF THE COMPANY AND THE INVESTORS
HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING
OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE ACTIONS THE COMPANY OR THE INVESTORS IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT HEREOF.
2.15 Outstanding Shares. The Company represents and warrants that
following the completion of the Offering, based on the number of shares of
Common Stock outstanding as of March 31, 2008, the Company will have outstanding
22,776,054 shares of its Common Stock.
* * * * *
23
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized respective officers as of the date first
written above.
NATUS MEDICAL INCORPORATED
By:
-------------------------------------
James B. Hawkins
President and Chief Executive Officer
D3 FAMILY FUND, L.P. D3 FAMILY BULLDOG FUND, L.P.
By Nierenberg Investment Management By Nierenberg Investment Management
Company, Its General Partner Company, Its General Partner
By: By:
---------------------------------- -------------------------------------
David Nierenberg, President David Nierenberg, President
D3 FAMILY CANADIAN FUND, L.P. DIII OFFSHORE FUND, L.P.
By Nierenberg Investment Management By Nierenberg Investment Management
Company, Its General Partner Offshore, Inc., Its General Partner
By: By:
---------------------------------- -------------------------------------
David Nierenberg, President David Nierenberg, President
[Signature Page to Registration Rights Agreement]
24
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-99.2
<SEQUENCE>3
<FILENAME>d74045_ex2.txt
<DESCRIPTION>JOINT FILING AGREEMENT
<TEXT>
Exhibit 2
JOINT FILING AGREEMENT (RESTATED)
WHEREAS, the undersigned (collectively, the "Reporting Persons") from time
to time make filings with the Securities and Exchange Commission pursuant to
Regulation 13D-G under the Securities Exchange Act of 1934, as amended; and
WHEREAS, the Reporting Persons prefer to make joint filings on behalf of
all Reporting Persons rather than individual filings on behalf of each of the
Reporting Persons;
NOW, THEREFORE, the undersigned hereby agree as follows with each of the
other Reporting Persons:
1. Each of the Reporting Persons is individually eligible to make joint
filings.
2. Each of the Reporting Persons is responsible for timely making joint
filings and any amendments thereto.
3. Each of the Reporting Persons is responsible for the completeness and
accuracy of the information concerning such person contained in joint filings.
4. None of the Reporting Persons is responsible for the completeness or
accuracy of the information concerning the other Reporting Persons contained in
joint filings, unless such person knows or has reason to believe that such
information is inaccurate.
5. This Joint Filing Agreement amends, restates and supersedes the Joint
Filing Agreement (Restated) dated August 3, 2007 by and among certain of the
undersigned, but only as to those filings to be made by all Reporting Persons.
6. The undersigned agree that each joint filing made on or after the date
hereof will be, and any amendment thereto will be, made on behalf of each of the
Reporting Persons.
25
<PAGE>
D3 Family Fund, L.P., D3 Bulldog Fund,
L.P. and D3 Family Canadian Fund, L.P.
By: Nierenberg Investment Management
Company, Inc.
Its: General Partner
March 5, 2008 By:
--------------------------------------------
David Nierenberg, President
DIII Offshore Fund, L.P.
By: Nierenberg Investment Management
Offshore, Inc.
Its: General Partner
March 5, 2008 By:
--------------------------------------------
David Nierenberg, President
Nierenberg Investment Management
Company, Inc.
March 5, 2008 By:
--------------------------------------------
David Nierenberg, President
Nierenberg Investment Management
Offshore, Inc.
March 5, 2008 By:
--------------------------------------------
David Nierenberg, President
</TEXT>
</DOCUMENT>
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