C



 


Careview Communication, Inc. 8-K


Exhibit 10.09


 


AMENDMENT TO 


REGISTRATION RIGHTS AGREEMENT


 


This AMENDMENT TO REGISTRATION
RIGHTS AGREEMENT, dated as of June 26, 2015 (this “Amendment”), is made by and among CAREVIEW COMMUNICATIONS,
INC., a Nevada corporation (the “Company”), and the undersigned investors (together with their respective
successors and permitted assigns, the “Investors”).


 


WITNESSETH:


 


WHEREAS, the Company,
HealthCor Partners Fund, L.P. (“HealthCor Partners”), HealthCor Hybrid Offshore Master Fund, L.P. (“HealthCor
Hybrid” and, together with HealthCor Partners, the “HealthCor Parties”), and certain additional investors
are party to that certain Registration Rights Agreement, dated as of April 21, 2011 (as amended from time to time, the “Registration
Rights Agreement”); and


 


WHEREAS, the Company
and PDL BioPharma, Inc., a Delaware corporation, are entering into on the date hereof that certain Registration Rights Agreement,
dated as of the date hereof (as amended from time to time, the “PDL Registration Rights Agreement”); and


 


WHEREAS, pursuant
to Section 11(c) of the Registration Rights Agreement and subject to the terms and conditions contained herein, the Investors constitute
the Holders of not less than a majority of the then outstanding Registrable Securities and the Investors and the Company desire
to amend the Registration Rights Agreement as set forth herein for the purposes of, among other things, ensuring that the underwriter
cut back provisions in the Registration Rights Agreement are consistent with the underwriter cut back provisions in the PDL Registration
Rights Agreement.


 


NOW, THEREFORE, in
consideration of the mutual promises, representations, warranties and covenants contained herein and in the Registration Rights
Agreement, which represent integral components of the transactions contemplated hereby and thereby and shall be fully enforceable
by the parties hereto, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the Company and the Investors mutually agree as follows:


 


1.           Definitions.  Capitalized
terms used in this Amendment but not defined in this Amendment shall have the meanings ascribed to them in the Registration Rights
Agreement.


 



    	 



    	 



    


 


2.           Amendments
to Registration Rights Agreement.


 


a.           Section
4(b) of the Registration Rights Agreement is hereby amended and restated in its entirety to read as follows:


 


(b)  In
the event of an Underwriting Request, the Company, together with all Holders proposing to distribute their securities through such
underwriting (the “Participating Stockholders”), shall enter into an underwriting agreement in customary form with
the managing underwriter(s) selected for such underwriting by the Requesting Stockholders, which underwriter(s) shall be reasonably
acceptable to the Company; provided, however, that no Holder shall be required to make any representations or warranties concerning
the Company or its business, properties, prospects, financial condition or related matters.  Notwithstanding any other
provision of this Section 4, if the managing underwriter(s) advises the Company and the Participating Stockholders in writing that
because the number of shares requested by the Participating Stockholders to be included in the registration exceeds the number
which can be sold in an orderly manner in such offering within a price range acceptable to the Requesting Stockholders or that
marketing factors require a limitation of the number of shares to be underwritten on behalf of the Participating Stockholders (the
“Underwritten Registration Cutback”), and such Underwritten Registration Cutback results in less than all of the Registrable
Securities of the Participating Stockholders that are requested to be included in such registration to actually be included in
such registration, then the Company will include in such registration, to the extent of the number which the Company is so advised
can be sold in (or during the time of) such offering without such interference or affect on the price or sale: (i) if the PDL Holders
have not exercised their right to request inclusion in such registration statement pursuant to the PDL Registration Rights Agreement,
such number of Registrable Securities shared pro rata among all of the Participating Stockholders based on the total number of
Registrable Securities held by each such Participating Stockholder, or (ii) if the PDL Holders have exercised their right to request
inclusion in such registration statement pursuant to the PDL Registration Rights Agreement, the aggregate of such number of (x)
Registrable Securities and (y) PDL Registrable Securities proposed to be included in such registration by the PDL Holders shared
pro rata among all of the Participating Stockholders and such PDL Holders based on the number of Registrable Securities and PDL
Registrable Securities being requested for inclusion, respectively, by each such Participating Holder and PDL Holder.  For
the avoidance of doubt, the Company shall not sell shares in any underwritten offering in connection with a Registration Statement
filed pursuant to Section 2 in the event of an Underwritten Registration Cutback.  “PDL Holders” shall mean
those holders of the Company’s securities party to that certain registration rights agreement dated June 26, 2015 by and
between the Company and PDL BioPharma, Inc., a Delaware corporation, as amended, supplemented or modified from time to time (the
“PDL Registration Rights Agreement”).  “PDL Registrable Securities” shall have the same meaning
as “Registrable Securities” as defined in the PDL Registration Rights Agreement.


 


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b.           Section
8 of the Registration Rights Agreement is hereby amended and restated in its entirety to read as follows:


 


8.  Piggy-Back
Registrations.  If at any time during the Effectiveness Period, the Company shall determine to prepare and file with
the SEC a registration statement relating to an offering for its own account or the account of others under the Securities Act
of any of its equity securities, other than on Form S-4 or Form S-8 (each as promulgated under the Securities Act) or their then
equivalents relating to equity securities to be issued solely in connection with any acquisition of any entity or business or equity
securities issuable in connection with stock option or other employee benefit plans, then the Company shall send to the each Holder
written notice of such determination and if, within fifteen (15) days after receipt of such notice, any such Holder shall so request
in writing, the Company shall include in such registration statement all or any part of such Registrable Securities such Holder
requests to be registered.  Notwithstanding the foregoing, if the Company’s proposed registration of equity securities
hereunder is, in whole or in part, an underwritten public offering, and the managing underwriter of such proposed registration
determines and advises in writing that the inclusion of all Registrable Securities proposed to be included in the underwritten
public offering, together with any other issued and outstanding shares of the Company’s common stock proposed to be included
therein (such other shares hereinafter collectively referred to as the “Other Shares”), would interfere with the successful
marketing of the Company’s securities, then the total number of such securities proposed to be included in such underwritten
public offering shall be reduced, (i) first by the shares requested to be included in such registration by the holders of Other
Shares (excluding the shares requested for inclusion by the PDL Holders), and (ii) second, if necessary, (A) one-half (1⁄2)
by the securities proposed to be issued by the Company, and (B) one-half (1⁄2) by the aggregate of (x) the Registrable Securities
proposed to be included in such registration by the Holders and (y) the PDL Registrable Securities proposed to be included in such
registration by the PDL Holders, on a pro rata basis, based upon the number of Registrable Securities and PDL Registrable Securities
being requested for inclusion, respectively by each such Holder and PDL Holder. The shares of the Company’s common stock
held by the Holders that are excluded from the underwritten public offering pursuant to the preceding sentence shall be withheld
from the market by the holders thereof for a period, not to exceed 90 days from the closing of such underwritten public offering
plus such additional period of time as may be required to comply with Rule 2711 of the Financial Industry Regulatory Authority,
Inc. or any similar or successor rules thereto, that the managing underwriter reasonably determines as necessary in order to effect
such underwritten public offering.  Notwithstanding anything to the contrary contained herein, the amount of Registrable
Securities required to be included in the initial Registration Statement as described in this Section 8 shall not exceed the lesser
of (a) the amount of Registrable Securities that Holders request to have so registered pursuant to this Section 8 and (b) the maximum
amount of Registrable Securities which may be included in a Registration Statement without exceeding the Rule 415 Amount.


 


3.           No
Further Amendments.  Except as amended by this Amendment, the Registration Rights Agreement shall remain in full
force and effect in accordance with its terms.


 


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4.           Miscellaneous.


 


a.           Governing
Law.  This Amendment shall be governed by, and construed and interpreted in accordance with, the laws of the State
of Delaware, without giving effect to principles of conflicts of law or choice of law that would cause the laws of any other jurisdiction
to apply.


 


b.           Construction.  The
Company and the Investors acknowledge that the Company and its independent counsel and the Investors and their independent counsel
have jointly reviewed and drafted this document, and agree that any rule of construction and interpretation to the effect that
drafting ambiguities are to be resolved against the drafting party shall not be employed.


 


c.           Counterparts;
Facsimile and Electronic Signatures.  This Amendment may be executed in any number of counterparts, and each such
counterpart hereof shall be deemed to be an original instrument, but all such counterparts together shall constitute but one agreement.  Counterpart
signatures to this Amendment delivered by facsimile or other electronic transmission shall be acceptable and binding.


 


d.           Headings.  The
section and paragraph headings contained in this Amendment are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Amendment.


 


[Signature Pages Follow]

 


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IN WITNESS WHEREOF,
the parties hereto have executed this Amendment to Registration Rights Agreement as of the date and year first set forth above.




 


	 	CAREVIEW COMMUNICATIONS, INC.
	 	 
	 	 By:	/s/ Steven Johnson
	 	 	Name: Steven G. Johnson
Title:   President





 


[SIGNATURE PAGE TO AMENDMENT
TO REGISTRATION RIGHTS AGREEMENT]


 


    	 



    	 



    


 

	 	INVESTORS:
	 	 
	 	HEALTHCOR PARTNERS
FUND, L.P.
	 	 
	 	By: HealthCor Partners
Management L.P., as Manager
	 	 
	 	By: HealthCor Partners Management, G.P., LLC, as General Partner
	 	 
	 	By:	/s/ J. C. Lightcap
	 	Name: Jeffrey C. Lightcap
Title: Senior Managing Director




 


	 	HEALTHCOR HYBRID
OFFSHORE MASTER FUND, L.P.
	 	 
	 	By: HealthCor Hybrid Offshore G.P., LLC, as General Partner
	 	 
	 	 By:	/s/ Joseph P. Healey
		Name: Joseph P. Healey
Title:   Co-CEO



 





[SIGNATURE PAGE TO AMENDMENT
TO REGISTRATION RIGHTS AGREEMENT]