Exhibit 4.3
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (the "AGREEMENT") is made as of the 13th
day of December, 2004, by and between XXXXXX LABORATORIES, an Illinois
corporation, with its principal office at 000 Xxxxxx Xxxx Xxxx, Xxxxxx Xxxx,
Xxxxxxxx 00000 ("ABBOTT"), and ADVANCED LIFE SCIENCES HOLDINGS, INC., a Delaware
corporation, with its principal office at 0000 Xxxxx Xxxx, Xxxxxxxxx, Xxxxxxxx
00000 ("the COMPANY").
BACKGROUND
A. The Company and its wholly-owned subsidiary Advanced Life Sciences Inc., an
Illinois corporation and Abbott are parties to that certain Option
Agreement dated as of October 29, 2004 (the "OPTION AGREEMENT").
B. The Company has exercised its right under the Option Agreement to enter
into the License Agreement (as defined in the Option Agreement).
C. In consideration of the License Agreement, the Company has, among other
things, delivered to Abbott 282,763 shares of the Company's Common Stock
(the "ALS SHARES").
D. To induce Abbott to enter into the License Agreement, Abbott and the
Company hereby agree that this Agreement shall govern the rights of Abbott
to cause the Company to register the ALS Shares.
AGREEMENT
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. DEFINITIONS. For purposes of this Agreement:
1.1. The term "AFFILIATE" means with respect to any individual,
corporation, partnership, association, trust, or any other entity (in each case,
a "PERSON"), any Person which, directly or indirectly, controls, is controlled
by or is under common control with such Person.
1.2. The term "COMMON STOCK" means shares of the Company's common stock,
par value $.01 per share.
1.3. The term "EXCHANGE ACT" means the Securities Exchange Act of 1934,
as amended, and the rules and regulations promulgated thereunder.
1.4. The term "FORM S-3" means such form under the Securities Act as in
effect on the date hereof or any registration form under the Securities Act
subsequently adopted by the SEC that permits inclusion or incorporation of
substantial information by reference to other documents filed by the Company
with the SEC.
1.5. The term "HOLDER" means any Person owning or having the right to (i)
acquire Registrable Securities and (ii) cause the Company to register
Registrable Securities under this
Agreement, including any assignee acquiring such registration rights in
accordance with SECTION 2.11 hereof.
1.6. The term "INITIATING HOLDERS" means, collectively, any Holders who
properly initiate a registration request under this Agreement.
1.7. The term "IPO" means the Company's first underwritten public
offering of its Common Stock under the Securities Act.
1.8. The terms "REGISTER," "REGISTERED," and "REGISTRATION" mean a
registration effected by preparing and filing a registration statement or
similar document in compliance with the Securities Act, and the declaration or
ordering of effectiveness of such registration statement or document.
1.9. The term "REGISTRABLE SECURITIES" means (i) the ALS Shares and (ii)
any Common Stock of the Company issued (or issuable upon the conversion or
exercise of any warrant, right or other security which is issued) as a dividend
or other distribution with respect to, or in exchange for, or in replacement of
the ALS Shares.
1.10. The term "REGISTRABLE SECURITIES THEN OUTSTANDING" means the number
of shares determined by adding the number of shares of Common Stock outstanding
which are, and the number of shares of Common Stock issuable pursuant to then
exercisable or convertible securities which are, Registrable Securities.
1.11. The term "SEC" means the Securities and Exchange Commission.
1.12. The term "SEC RULE 144" means Rule 144 promulgated by the SEC under
the Securities Act.
1.13. The term "SEC RULE 145" means Rule 145 promulgated by the SEC under
the Securities Act.
1.14. The term "SECURITIES ACT" means the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
1.15. The term "VIOLATION" means losses, claims, damages, or liabilities
(joint or several) to which a party hereto may become subject under the
Securities Act, the Exchange Act or other federal or state law, insofar as such
losses, claims, damages, or liabilities (or actions in respect thereof) arise
out of or are based upon any of the following statements, omissions or
violations: (i) any untrue statement or alleged untrue statement of a material
fact contained in such registration statement, including any preliminary
prospectus or final prospectus contained therein or any amendments or
supplements thereto, (ii) the omission or alleged omission to state therein a
material fact required to be stated therein, or necessary to make the statements
therein not misleading, or (iii) any violation or alleged violation by any other
party hereto, of the Securities Act, the Exchange Act, any state securities law
or any rule or regulation promulgated under the Securities Act, the Exchange Act
or any state securities law.
2. REGISTRATION RIGHTS. The Company covenants and agrees as follows:
2.1. REQUEST FOR REGISTRATION.
(a) If the Company shall receive at any time after the earlier of
(i) 3 years after the date of this Agreement, or (ii) 180 days after the
effective date of the registration statement for the IPO, a written request from
the Holders of at least 30% of the Registrable Securities then outstanding that
the Company file a registration statement under the Securities Act covering the
registration of at least (i) 20% of the Registrable Securities then outstanding,
or (ii) 10% of the Registrable Securities then outstanding if the anticipated
aggregate offering price, net of underwriting discounts and commissions, would
exceed $5,000,000, then the Company shall:
(i) within 10 days of the receipt thereof, give written
notice of such request to all Holders in accordance with SECTION 3.6;
(ii) as soon as practicable, and in any event within 60
days of the receipt of such request, file a registration statement under the
Securities Act covering all Registrable Securities which the Holders request to
be registered, subject to the limitations of SUBSECTION 2.1(b); and
(iii) use its best efforts to cause such registration
statement to be declared effective by the SEC as soon as practicable but in no
event later than 90 days after such request.
(b) If the Initiating Holders intend to distribute the Registrable
Securities covered by their request by means of an underwriting, they shall so
advise the Company as a part of their request made pursuant to SUBSECTION
2.1(a), and the Company shall include such information in the written notice
referred to in SUBSECTION 2.1(a)(i). The underwriter will be selected by the
Company and shall be reasonably acceptable to a majority in interest of the
Initiating Holders. In such event, the right of any Holder to include such
Holder's Registrable Securities in such registration shall be conditioned upon
such Holder's participation in such underwriting and the inclusion of such
Holder's Registrable Securities in the underwriting to the extent provided
herein. All Holders proposing to distribute their securities through such
underwriting shall (together with the Company as provided in SUBSECTION 2.3(e))
enter into an underwriting agreement in customary form with the underwriter or
underwriters selected for such underwriting. Notwithstanding any other provision
of this SECTION 2.1, if the underwriter advises the Company in writing that
marketing factors require a limitation of the number of shares to be
underwritten, then the Company shall promptly so advise all Holders of
Registrable Securities which would otherwise be underwritten pursuant hereto,
and the number of shares of Registrable Securities that may be included in the
underwriting shall be allocated among all Holders of Registrable Securities,
including the Initiating Holders, in proportion (as nearly as practicable) to
the number of Registrable Securities of the Company owned by each Holder;
PROVIDED, HOWEVER, that the number of shares of Registrable Securities held by
the Holders to be included in such underwriting shall not be reduced unless all
other securities are first entirely excluded from the underwriting. To
facilitate the allocation of shares in accordance with the above provisions, the
Company or the underwriters may round the number of shares allocated to any
Holder to the nearest 100 shares.
(c) The Company shall not be obligated to effect, or to take any
action to effect, any registration pursuant to this SECTION 2.1: (i) after the
Company has effected two (2) registrations pursuant to this SECTION 2.1 and such
registrations have been declared or ordered effective; (ii) if the Initiating
Holders propose to dispose of shares of Registrable Securities that may be
immediately registered on Form S-3 pursuant to a request made pursuant to
SECTION 2.10 below, or (iii) if the Registrable Securities proposed to be sold
by the Holder may be sold under an exemption from registration under the
Securities Act. For purposes of this SECTION 2.1(c), a registration statement
shall not be counted until such time as such registration statement has been
declared effective by the SEC. A registration statement shall not be counted if,
as a result of an exercise of the underwriter's cut-back provisions, fewer than
50% of the total number of Registrable Securities that Holders have requested to
be included in such registration statement are actually included.
(d) Notwithstanding the foregoing, if the Company shall furnish to
Holders requesting a registration statement pursuant to this SECTION 2.1 a
certificate signed by the Chief Executive Officer of the Company stating that in
the good faith judgment of the Board of Directors of the Company it would be
materially detrimental to the Company and its stockholders for such registration
statement to become effective or to remain effective as long as such
registration statement would otherwise be required to remain effective because
such action (x) would materially interfere with a significant acquisition,
corporate reorganization or other similar transaction involving the Company, (y)
would require premature disclosure of material information that the Company has
a bona fide business purpose for preserving as confidential, or (z) would render
the Company unable to comply with requirements under the Securities Act or
Exchange Act, then the Company shall have the right to defer taking action with
respect to such filing for a period of not more than 90 days after receipt of
the request of the Initiating Holders; PROVIDED, HOWEVER, that the Company may
not utilize this right more than once in any 12-month period; PROVIDED FURTHER
that the Company shall not register any securities for the account of itself or
any other stockholder during such 90 day period other than a registration
statement relating either to the sale of securities to employees of the Company
pursuant to a stock option, stock purchase or similar plan or an SEC Rule 145
transaction, a registration on any form that does not include substantially the
same information as would be required to be included in a registration statement
covering the sale of the Registrable Securities (but only if the Company
determined to defer taking action with respect to the filing requested by the
Holders pursuant to clause (y) of this sentence), or a registration in which the
only Common Stock being registered is Common Stock issuable upon conversion of
debt securities that are also being registered).
2.2. COMPANY REGISTRATION. If the Company proposes to register (including
for this purpose a registration effected by the Company for stockholders other
than the Holders) any of its stock or other securities under the Securities Act
in connection with the public offering of such securities solely for cash (other
than a registration statement relating either to the sale of securities to
employees of the Company pursuant to a stock option, stock purchase or similar
plan or an SEC Rule 145 transaction, a registration on any form which does not
include substantially the same information as would be required to be included
in a registration statement covering the sale of the Registrable Securities or a
registration in which the only Common Stock being registered is Common Stock
issuable upon conversion of debt securities which are also being registered),
the Company shall, at such time, promptly give each Holder written notice of
such registration. Upon the written request of each Holder given within 20 days
after mailing of
such notice by the Company in accordance with SECTION 3.6, the Company shall,
subject to the provisions of SECTION 2.7, cause to be registered under the
Securities Act all of the Registrable Securities that each such Holder has
requested to be registered. The Company shall have the right to terminate or
withdraw any registration initiated by it under this SECTION 2.2 prior to the
effectiveness of such registration whether or not any Holder has elected to
include securities in such registration. The expenses of such withdrawn
registration shall be borne by the Company in accordance with SECTION 2.6
hereof.
2.3. OBLIGATIONS OF THE COMPANY. Whenever required under this SECTION 2
to effect the registration of any Registrable Securities, the Company shall, as
expeditiously as reasonably possible:
(a) prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best efforts to cause such
registration statement to become effective, and, upon the request of the Holders
of a majority of the Registrable Securities registered thereunder, keep such
registration statement effective for a period of up to 120 days or, if earlier,
until the distribution contemplated in the Registration Statement has been
completed; PROVIDED, HOWEVER, that (i) such 120-day period shall be extended for
a period of time equal to the period the Holder refrains from selling any
securities included in such registration at the request of an underwriter of any
securities of the Company; and (ii) in the case of any registration of
Registrable Securities on Form S-3 that are intended to be offered on a
continuous or delayed basis, subject to compliance with applicable SEC rules,
such 120-day period shall be extended for up to 90 days, if necessary, to keep
the registration statement effective until all such Registrable Securities are
sold;
(b) prepare and file with the SEC such amendments and supplements
to such registration statement 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;
(c) furnish to the Holders such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as they may reasonably request to
facilitate the disposition of Registrable Securities owned by them;
(d) use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or blue sky
laws of such jurisdictions as shall be reasonably requested by the Holders;
(e) in the event of any underwritten public offering, enter into
and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an underwriting agreement;
(f) cause all such Registrable Securities registered pursuant to
this Agreement hereunder to be listed on a national securities exchange or
trading system and each securities exchange and trading system on which similar
securities issued by the Company are then listed;
(g) provide a transfer agent and registrar for all Registrable
Securities registered pursuant hereunder and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of such
registration;
(h) use its best efforts to furnish, on the date on which such
Registrable Securities are sold to the underwriter, (i) an opinion, dated such
date, of the counsel representing the Company for the purposes of such
registration, in form and substance as is customarily given to underwriters in
an underwritten public offering, addressed to the underwriters, if any, and (ii)
a "comfort" letter dated such date, from the independent certified public
accountants of the Company, in form and substance as is customarily given by
independent certified public accountants to underwriters in an underwritten
public offering, addressed to the underwriters, if any.
2.4. FURNISH INFORMATION. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this SECTION 2 with
respect to the Registrable Securities of any selling Holder that such Holder
furnish to the Company such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such securities
as is reasonably required to effect the registration of such Holder's
Registrable Securities.
2.5. EXPENSES OF DEMAND REGISTRATION. Other than underwriting discounts
and commissions relating to the Registrable Securities, all expenses incurred in
connection with registrations, filings or qualifications pursuant to SECTION
2.1, including (without limitation) all registration, filing and qualification
fees, printers' and accounting fees, fees and disbursements of counsel for the
Company and the reasonable fees and disbursements of one counsel for the selling
Holders shall be borne by the Company; PROVIDED, HOWEVER, that the Company shall
not be required to pay for any expenses of any registration proceeding begun
pursuant to SECTION 2.1 if the registration request is subsequently withdrawn at
the request of the Holders of a majority of the Registrable Securities to be
registered (in which case all participating Holders shall bear such expenses pro
rata based upon the number of Registrable Securities that were to be included in
the withdrawn registration), unless the Holders of a majority of the Registrable
Securities agree to forfeit their right to one demand registration pursuant to
SECTION 2.1; PROVIDED FURTHER, that if at the time of such withdrawal, the
Holders have learned of a material adverse change in the condition, business, or
prospects of the Company that was unknown to the Holders at the time of their
request and have withdrawn the request with reasonable promptness after learning
of such information, then the Holders shall not be required to pay any of such
expenses and shall retain all of their rights pursuant to SECTION 2.1.
2.6. EXPENSES OF COMPANY REGISTRATION. The Company shall bear and pay all
expenses incurred in connection with any registration, filing or qualification
of Registrable Securities with respect to the registrations pursuant to SECTION
2.2 hereof for each Holder (which right may be assigned as provided in SECTION
2.10 hereof), including (without limitation) all registration, filing, and
qualification fees, printers and accounting fees relating or apportionable
thereto and the fees and disbursements of one counsel for the selling Holders
selected by them, but excluding underwriting discounts and commissions relating
to Registrable Securities.
2.7. UNDERWRITING REQUIREMENTS. In connection with any offering involving
an underwriting of shares of the Company's capital stock pursuant to
SECTION 2.2, the Company
shall not be required to include any of the Holders' securities in such
underwriting unless they accept the terms of the underwriting as agreed upon
between the Company and its underwriters, and then only in such quantity as the
underwriters determine in their sole discretion will not jeopardize the success
of the offering by the Company. If the total number of securities, including
Registrable Securities, requested by stockholders to be included in such
offering exceeds the amount of securities to be sold other than by the Company
that the underwriters determine in their reasonable discretion is compatible
with the success of the offering, then the Company shall be required to include
in the offering only that number of such securities, including Registrable
Securities that the underwriters and the Company determine in their sole
discretion will not jeopardize the success of the offering. In no event shall
any Registrable Securities be excluded from such offering unless all other
stockholders' securities have been first excluded. If the underwriters determine
that less than all of the Registrable Securities requested to be registered can
be included in such offering, then the Registrable Securities that are included
in such offering shall be apportioned pro rata among the selling Holders based
on the number of Registrable Securities held by all selling Holders or in such
other proportions as shall mutually be agreed to by all such selling Holders.
Notwithstanding the foregoing, the amount of securities of the selling Holders
included in the offering shall not be reduced below 30% of the total amount of
securities included in such offering. For purposes of apportionment pursuant to
this SECTION 2.7, for any selling stockholder that is a Holder of Registrable
Securities and that is an investment fund, partnership, limited liability
company or corporation, the partners, members, retired partners, retired
members, stockholders and Affiliates of such Holder, or the estates and family
members of any such partners, retired partners, members and retired members and
any trusts for the benefit of any of the foregoing persons shall be deemed to be
a single "selling Holder", and any pro-rata reduction with respect to such
"selling Holder" shall be based upon the aggregate amount of shares carrying
registration rights owned by all entities and individuals included in such
"selling Holder," as defined in this sentence.
2.8. INDEMNIFICATION. If any Registrable Securities are included in a
registration statement under this SECTION 2:
(a) To the extent permitted by law, the Company will indemnify and
hold harmless each Holder, the partners, members, officers, directors and
stockholders of each Holder, legal counsel and accountants for each Holder, any
underwriter (as defined in the Securities Act) for such Holder and each Person,
if any, who controls such Holder or underwriter within the meaning of the
Securities Act or the Exchange Act, against any Violation, and the Company will
pay to each such Holder, underwriter, controlling Person or other aforementioned
Person, any legal or other expenses reasonably incurred by them in connection
with investigating or defending any such Violation as such expenses are
incurred; PROVIDED, HOWEVER, that the indemnity agreement contained in this
SUBSECTION 2.8(a) shall not apply to amounts paid in settlement of any such
Violation if such settlement is effected without the consent of the Company
(which consent shall not be unreasonably withheld), nor shall the Company be
liable in any such case for any such Violation to the extent that it arises out
of or is based upon a Violation that occurs in reliance upon and in conformity
with written information furnished expressly for use in connection with such
registration by any such Holder, underwriter, controlling person or other
aforementioned person.
(b) To the extent permitted by law, each selling Holder will
severally and not jointly indemnify and hold harmless the Company, each of its
directors, each of its officers who has signed the registration statement, each
Person, if any, who controls the Company within the meaning of the Securities
Act, legal counsel and accountants for the Company, any underwriter, any other
Holder selling securities in such registration statement and any controlling
Person of any such underwriter or other Holder, against any Violation (joint or
several) to which any of the foregoing Persons may become subject, under the
Securities Act, the Exchange Act or other federal or state law, insofar as such
Violation (or actions in respect thereto) arises directly out of or is based
primarily on the indemnified party's reasonable reliance upon and in conformity
with written information furnished by such Holder expressly for use in
connection with such registration; and each such Holder will pay, any legal or
other expenses reasonably incurred by any person intended to be indemnified
pursuant to this SUBSECTION 2.8(b), in connection with investigating or
defending any such Violation; PROVIDED, HOWEVER, that the indemnity agreement
contained in this SUBSECTION 2.8(b) shall not apply to amounts paid in
settlement of any such Violation if such settlement is effected without the
consent of the Holder, which consent shall not be unreasonably withheld;
PROVIDED FURTHER, that, in no event shall any indemnity under this SUBSECTION
2.8(b) exceed the net proceeds from the offering received by such Holder, except
in the case of fraud or willful misconduct by such Holder.
(c) Promptly after receipt by an indemnified party under this
SECTION 2.8 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this SECTION 2.8, deliver to
the indemnifying party a written notice of the commencement thereof 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 mutually
satisfactory to the parties; PROVIDED, HOWEVER, that an indemnified party
(together with all other indemnified parties that may be represented without
conflict by one counsel) shall have the right to retain one separate counsel,
with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
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, if materially prejudicial to its ability to defend such action, shall
relieve such indemnifying party of any liability to the indemnified party under
this SECTION 2.8, but the omission to so 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 2.8.
(d) To provide for just and equitable contribution to joint
liability under the Securities Act in any case in which either (i) any Holder
exercising rights under this Agreement, or any controlling Person of any such
Holder, makes a claim for indemnification pursuant to this SECTION 2.8 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 2.8 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 2.8, 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 as is appropriate to reflect the
relative fault of the indemnifying party on the one hand and of the indemnified
party on the other in connection with the statements or omissions that resulted
in such loss, liability, claim, damage, or expense as well as any other relevant
equitable considerations. The relative fault of the indemnifying party and of
the indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the indemnifying party or by the indemnified party and the parties'
relative intent, knowledge, access to information, and opportunity to correct or
prevent such statement or omission; PROVIDED, HOWEVER, that, in any such case,
(i) no such Holder will be required to contribute any amount in excess of the
public offering price of all such Registrable Securities offered and sold by
such Holder pursuant to such registration statement, and (ii) 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; PROVIDED
FURTHER, that in no event shall a Holder's liability pursuant to this SECTION
2.8(d), when combined with the amounts paid or payable by such holder pursuant
to SECTION 2.8(b), exceed the proceeds from the offering (net of any
underwriting discounts or commissions) received by such Holder, except in the
case of fraud or willful misconduct by such Holder.
(e) The obligations of the Company and Holders under this
SECTION 2.8 shall survive the completion of any offering of Registrable
Securities in a registration statement under this SECTION 2.8, and otherwise and
shall survive the termination of this Agreement.
2.9. REPORTS UNDER EXCHANGE ACT. With a view to making available to the
Holders the benefits of SEC Rule 144 promulgated under the Securities Act and
any other rule or regulation of the SEC that may at any time permit a Holder to
sell securities of the Company to the public without registration or pursuant to
a registration on Form S-3, the Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in SEC Rule 144, at all times after the effective date of
the IPO so long as the Company is subject to the periodic reporting requirements
under Sections 13 or 15(d) of the Exchange Act;
(b) file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange Act;
and
(c) furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request (i) a written statement by the
Company that it has complied with the reporting requirements of SEC Rule 144,
the Securities Act and the Exchange Act (at any time after it has become subject
to such reporting requirements), or that it qualifies as a registrant whose
securities may be resold pursuant to Form S-3 (at any time after it so
qualifies), (ii) 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 (iii)
such other information as may be reasonably requested in availing any Holder of
any rule or regulation of the SEC which permits the selling of any such
securities without registration or pursuant to such form.
2.10. FORM S-3 REGISTRATION. In case the Company shall receive from
Holders of at least 20% of all Registrable Securities then outstanding a written
request or requests that the Company effect a registration on Form S-3 and any
related qualification or compliance with respect to all or a part of the
Registrable Securities owned by such Holder or Holders, the Company will:
(a) promptly give written notice of the proposed registration, and
any related qualification or compliance, to all other Holders; and
(b) as soon as practicable, effect such registration and all such
qualifications and compliances as may be so requested and as would permit or
facilitate the sale and distribution of all or such portion of such Holder's or
Holders' Registrable Securities as are specified in such request, together with
all or such portion of the Registrable Securities of any other Holder or Holders
joining in such request as are specified in a written request given within 15
days after receipt of such written notice from the Company; PROVIDED, HOWEVER,
that the Company shall not be obligated to effect any such registration,
qualification or compliance, pursuant to this SECTION 2.10: (i) if Form S-3 is
not then available for such offering by the Holders; (ii) if the Holders,
together with the holders of any other securities of the Company entitled to
inclusion in such registration, propose to sell Registrable Securities and such
other securities (if any) at an aggregate price to the public (net of any
underwriters' discounts or commissions) of less than $1 million; (iii) if the
Company shall furnish to the Holders a certificate signed by the President of
the Company stating that in the good faith judgment of the Board of Directors of
the Company, it would be materially detrimental to the Company and its
stockholders for such Form S-3 Registration to be effected at such time because
such action (x) would materially interfere with a significant acquisition,
corporate reorganization or other similar transaction involving the Company, (y)
would require premature disclosure of material information that the Company has
a bona fide business purpose for preserving as confidential, or (z) would render
the Company unable to comply with requirements under the Securities Act or
Exchange Act, then Company shall have the right to defer the filing of the Form
S-3 registration statement for a period of not more than 90 days after receipt
of the request of the Holder or Holders under this SECTION 2.10; PROVIDED,
HOWEVER, that the Company shall not utilize this right more than once in any
12-month period; PROVIDED FURTHER, that the Company shall not register any
securities for the account of itself or any other stockholder during such 90-day
period (other than a registration relating solely to the sale of securities of
participants in a Company stock plan, a registration relating to a corporate
reorganization or transaction under Rule 145 of the Securities Act, a
registration on any form that does not include substantially the same
information as would be required to be included in a registration statement
covering the sale of the Registrable Securities (but only if the Company
determined to defer taking action with respect to the filing requested by the
Holders pursuant to clause (y) of this sentence), or a registration in which the
only Common Stock being registered is Common Stock issuable upon conversion of
debt securities that are also being registered); (iv) if the Company has, within
the 12-month period preceding the date of such request, already effected [two]
registrations on Form S-3 for the Holders pursuant to this SECTION 2.10, or (v)
if the Registrable Securities proposed to be sold by the Holders may be sold
under an exemption from registration under the Securities Act.
(c) Subject to the foregoing, the Company shall file a
registration statement covering the Registrable Securities and other securities
so requested to be registered as soon as practicable after receipt of the
request or requests of the Holders. All expenses incurred in connection with a
registration requested pursuant to SECTION 2.10, including, without limitation,
all registration, filing, qualification, printer's and accounting fees and the
reasonable fees and disbursements of counsel for the selling Holder or Holders
and counsel for the Company shall be borne by the Company, other than any
underwriters' discounts or commissions associated with Registrable Securities,
which shall be borne by the selling Holders. Registrations effected pursuant to
this SECTION 2.10 shall not be counted as demands for registration or
registrations effected pursuant to SECTION 2.1.
(d) If the Initiating Holders intend to distribute the Registrable
Securities covered by their request by means of an underwriting, they shall so
advise the Company as part of their request made pursuant to this SECTION 2.10
and the Company shall include such information in the written notice referred to
in SECTION 2.10(a). The provisions of SECTION 2.1(b) shall be applicable to such
request (with the substitution of SECTION 2.10 for references to SECTION 2.1).
2.11. ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the Company
to register Registrable Securities pursuant to this SECTION 2 may be assigned
(but only with all related obligations) by a Holder to a transferee or assignee
of such securities that (i) is an Affiliate of a Holder, or (ii) after such
assignment or transfer, holds at least 30% of the Registrable Securities;
PROVIDED, HOWEVER, that that in each case: (a) the Company is, within a
reasonable time after such transfer, furnished with written notice of the name
and address of such transferee or assignee and the securities with respect to
which such registration rights are being assigned; (b) such transferee or
assignee agrees in writing to be bound by and subject to the terms and
conditions of this Agreement; and (c) such assignment shall be effective only if
immediately following such transfer the further disposition of such securities
by the transferee or assignee is restricted under the Securities Act.
2.12. LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS. From and after the
date of this Agreement, the Company shall not, without the prior written consent
of the Holders of a majority of the Registrable Securities then outstanding,
enter into any agreement with any holder or prospective holder of any securities
of the Company which would allow such holder or prospective holder (a) to
include such securities in any registration unless under the terms of such
agreement, such holder or prospective holder may include such securities in any
such registration only to the extent that the inclusion of such securities will
not reduce the amount of the Registrable Securities of the Holders that are
included, or (b) to demand registration of any securities held by such holder or
prospective holder; provided , however, that this provision shall not affect,
limit or impede the Company's right to enter into, and fully perform, any
agreement for a firm commitment underwritten offering of the Company's
securities.
3. MISCELLANEOUS.
3.1. CONFIDENTIALITY. Each party agrees that it will keep confidential
and will not disclose, divulge or use for any purpose any confidential
information obtained from the other party pursuant to the terms of this
Agreement, unless such confidential information (i) is known
or becomes known to the public in general (other than as a result of a breach of
this SECTION 3.1), (ii) is or has been independently developed or conceived by
the disclosing party without use of the other party's confidential information,
or (iii) is or has been made known or disclosed to the disclosing party by a
third party without a breach of any obligation of confidentiality such third
party may have to the other party; PROVIDED, HOWEVER, that Abbott may disclose
confidential information (a) to its attorneys, accountants, consultants, and
other professionals to the extent necessary to obtain their services in
connection with monitoring its investment in the Company, (b) to any prospective
assignee of any Registrable Securities from as long as such prospective assignee
agrees to be bound by the provisions of this SECTION 3.1; PROVIDED FURTHER, that
either party may disclose confidential information (y) to any Affiliate,
partner, member, stockholder or wholly owned subsidiary of such party in the
ordinary course of business, or (z) as may otherwise be required by law,
provided that the disclosing party takes reasonable steps to minimize the extent
of any such required disclosure. If any disclosure of confidential information
may be permitted pursuant to clause (z) of this SECTION 3.1, then as soon as
practicable the disclosing party shall give the other party written notice of
the circumstances of such pending disclosure to allow the other party to seek a
protective order or other appropriate remedy in respect of such disclosure.
3.2. TRANSFERS, SUCCESSORS AND ASSIGNS. Subject to SECTION 2.11, the
terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties. Nothing in
this Agreement, express or implied, is intended to confer upon any party other
than the parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement.
3.3. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the internal laws of the Illinois, without regard to its
principles of conflicts of laws.
3.4. 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 instrument. This Agreement may also
be executed and delivered by facsimile signature and 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.
3.5. TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
3.6. NOTICES. All notices and other communications given or made pursuant
to this Agreement shall be in writing and shall be deemed effectively given: (a)
upon personal delivery to the party to be notified, (b) when sent by confirmed
electronic mail or facsimile if sent during normal business hours of the
recipient, and if not so confirmed, then on the next business day, (c) 5 days
after having been sent by registered or certified mail, return receipt
requested, postage prepaid, or (d) 1 day after deposit with a nationally
recognized overnight courier, specifying next day delivery, with written
verification of receipt. All communications shall be sent to the respective
parties at their address as set forth in Section 8 of the Option Agreement, or
to such email address, facsimile number or address as subsequently modified by
written notice given in accordance with this SECTION 3.6.
3.7. COSTS OF ENFORCEMENT. If any Party to this Agreement seeks to
enforce its rights under this Agreement by legal proceedings, the non-prevailing
Party shall pay all costs and expenses incurred by the prevailing Party,
including, without limitation, all reasonable attorneys' fees.
3.8. AMENDMENTS AND WAIVERS. Any term of this Agreement may be amended
and the observance of any term of this Agreement may be waived (either generally
or in a particular instance and either retroactively or prospectively), only
with the written consent of the Company and the Holders of a majority of the
Registrable Securities then outstanding. Any amendment or waiver effected in
accordance with this paragraph shall be binding upon each Holder of any
Registrable Securities then outstanding, each future holder of all such
Registrable Securities, and the Company. Notwithstanding the foregoing, this
Agreement may not be amended or terminated and the observance of any term
hereunder may not be waived with respect to Abbott without the written consent
of Abbott, unless such amendment, termination or waiver applies to all Holders
of Registrable Securities in the same fashion. The Company shall give prompt
written notice of any amendment or termination hereof or waiver hereunder to any
party hereto that did not consent in writing to such amendment, termination or
waiver. Any amendment, termination or waiver effected in accordance with this
SECTION 3.8 shall be binding on all parties hereto, even if they do not execute
such consent. No waivers of or exceptions to any term, condition or provision of
this Agreement, in any one or more instances, shall be deemed to be, or
construed as, a further or continuing waiver of any such term, condition or
provision.
3.9. SEVERABILITY. The invalidity of unenforceability of any provision
hereof shall in no way affect the validity or enforceability of any other
provision.
3.10. AGGREGATION OF STOCK. All shares of Registrable Securities held or
acquired by Affiliates shall be aggregated together for the purpose of
determining the availability of any rights under this Agreement.
3.11. ENTIRE AGREEMENT. This Agreement (including the Exhibit hereto)
constitutes the full and entire understanding and agreement between the parties
with respect to the subject matter hereof, and any other written or oral
agreement relating to the subject matter hereof existing between the parties are
expressly canceled.
3.12. TRANSFERS OF RIGHTS. Abbott will not, and may, not assign any of its
rights and obligations hereunder, unless such rights and obligations are
assigned by Abbott to any Person to which Registrable Securities are transferred
in accordance with SECTION 2.11. The Company will not, and may, not assign any
of its rights and obligations hereunder without the prior written consent of the
Holders of a majority in interest of the Registrable Securities, which consent
shall not be unreasonably withheld.
3.13. DISPUTE RESOLUTION. The parties hereto shall attempt to settle any
dispute arising out of or relating to this Agreement in an amicable way. Except
for claims for injunctive or other equitable relief, which may be brought in any
court of competent jurisdiction, any controversy, claim or right of termination
for cause which may arise under, out of, in connection with, or relating to this
Agreement, or any breach thereof, shall be settled according to the Alternative
Dispute Resolution provisions attached hereto as EXHIBIT I.
3.14. DELAYS OR OMISSIONS. No delay or omission to exercise any right,
power or remedy accruing to any party under this Agreement, upon any breach or
default of any other party under this Agreement, shall impair any such right,
power or remedy of such non-breaching or non-defaulting party nor shall it be
construed to be a waiver of any such breach or default, or an acquiescence
therein, or of or in any similar breach or default thereafter occurring; nor
shall any waiver of any single breach or default be deemed a waiver of any other
breach or default theretofore or thereafter occurring. Any waiver, permit,
consent or approval of any kind or character on the part of any party of any
breach or default under this Agreement, or any waiver on the part of any party
of any provisions or conditions of this Agreement, must be in writing and shall
be effective only to the extent specifically set forth in such writing. All
remedies, either under this Agreement or by law or otherwise afforded to any
party, shall be cumulative and not alternative.
[SIGNATURE PAGE FOLLOWS]
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
XXXXXX LABORATORIES ADVANCED LIFE SCIENCES
HOLDINGS, INC.
By: By:
------------------------------------ ----------------------------------
Name: Xxxxxxx X. Leiden, M.D., Ph.D. Name: Xxxxxxx X. Xxxxxx, Ph.D.
Its: President and Chief Operating Officer, Its: Chairman and Chief Executive
Pharmaceutical Products Group Officer
