REGISTRATION RIGHTS AGREEMENT
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THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is entered into
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as of October 4, 1996, by and between PROTEIN POLYMER TECHNOLOGIES, INC., a
Delaware corporation (the "Company"), and MBF I, LLC, a California limited
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liability company (the "Investor").
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RECITAL
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Pursuant to an engagement letter of even date herewith between the
Company and the Investor, the Investor owns, and may acquire additional,
warrants (collectively, the "Warrants") to acquire shares (the "Shares") of the
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Company's common stock, $0.01 par value per share (the "Common Stock") and the
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Company has agreed to register such Shares to the extent set forth herein.
Therefore, the parties hereto hereby agree as follows:
1. Definitions. Unless the context otherwise requires, the terms
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defined in this Section 1 shall have the meanings herein specified for all
purposes of this Agreement, applicable to both the singular and plural forms of
any of the terms herein defined.
"Agreement" means this Registration Rights Agreement.
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"Board" means the Board of Directors of the Company.
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"Common Stock" has the meaning set forth in the Recital above.
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"Commission" means the Securities and Exchange Commission.
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"Exchange Act" means the Securities Exchange Act of 1934, as amended.
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"Investor" has the meaning assigned to it in the introductory
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paragraph of this Agreement.
"Person" includes any natural person, corporation, trust, association,
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company, partnership, joint venture and other entity and any government,
governmental agency, instrumentality or political subdivision.
Exhibit 99.8
"Prospectus" means the prospectus included in any Registration
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Statement (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 under the Securities Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Registrable Securities covered by 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.
The terms "register," "registered" and "registration" refer to a
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registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
"Registration Expenses" means all reasonable expenses incurred by the
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Company in complying with Section 2 hereof, including all registration and
filing fees, listing fees for the Shares, printing expenses, fees and
disbursements of counsel for the Company, and blue sky fees and expenses in all
states.
"Registrable Securities" means all Shares and any Common Stock issued
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or issuable in respect of the Shares pursuant to any stock split, stock
dividend, recapitalization, or similar event; provided, however, that
Registrable Securities shall cease to be Registerable Securities when they may
be sold pursuant to Rule 144 under the Securities Act.
"Registration Statement" means any registration statement of the
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Company which covers any of the Registrable Securities pursuant to the
provisions of this Agreement, including the Prospectus, amendments and
supplements to such registration statement, including post-effective amendments,
all exhibits, and all materials incorporated by reference or deemed to be
incorporated by reference in such registration statement.
"Rule 144" means Rule 144 under the Securities Act, as such Rule may
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be amended from time to time, or any similar rule or regulation hereafter
adopted by the Commission (excluding Rule 144A).
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"Securities Act" means the Securities Act of 1933, as amended.
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"Shares" has the meaning set forth in the Recital above.
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"Warrants" has the meaning set forth in the Recital above.
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2. Required Registration
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(a) Registration. The Company shall, not more than once each
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calendar year, commencing 1997, and ending 2001, (each, as applicable, a "Filing
Date"), prepare and file with the Commission a Registration Statement pursuant
to Rule 415 (or any appropriate similar rule that may be adopted by the
Commission) under the Securities Act covering the Registrable Securities (the
"Registration"). The Registration shall be on Form S-3 or another appropriate
form permitting registration of such Registrable Securities for resale by such
holders from time to time.
(b) Effectiveness. The Company shall use its best efforts to cause
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the Registration to become effective under the Securities Act as soon as
practicable following the Filing Date. Subject to the requirements of the
Securities Act including, without limitation, requirements relating to updating
through post-effective amendments or otherwise, the Company shall use its best
efforts to keep the Registration continuously effective until two months after
the Registration is declared effective by the Commission. The Company shall use
its best efforts to take such actions under the laws of various states as may be
required to cause the resale of the Shares pursuant to the Registration to be
lawful.
(c) Suspension. Following the effectiveness of a Registration
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Statement filed pursuant to this section, the Company may, at any time, suspend
the effectiveness of such Registration for up to 60 days, as appropriate (a
"Suspension Period"), by giving notice to the Investor, if the Company shall
have determined that the Company may be required to disclose any material
corporate development which disclosure may have a material adverse effect on the
Company. Notwithstanding the foregoing, no more than two Suspension Periods
(i.e., 120 days) may occur in immediate succession. The period of any such
suspension of the
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registration statement shall be added to the period of time the Company agrees
to keep the Registration Statement effective as provided in Section 2(b). The
Company shall use its best efforts to limit the duration and number of any
Suspension Periods. The Investor agrees that, upon receipt of any notice from
the Company of a Suspension Period, the Investor shall forthwith discontinue
disposition of shares covered by such Registration Statement or prospectus until
the Investor (i) is advised in writing by the Company that the use of the
applicable prospectus may be resumed, (ii) has received copies of a supplemental
or amended prospectus, if applicable, and (iii) has received copies of any
additional or supplemental filings which are incorporated or deemed to be
incorporated by reference in such prospectus.
3. Expenses of Registration. All Registration Expenses shall be borne
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by the Investor; Registration Expenses shall include, and in no event will the
Company be obligated to pay, expenses and fees of counsel for the Investor,
stock transfer taxes or underwriters' discounts or commissions relating to
Registrable Securities.
4. Incidental Registration.
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(a) Each time the Company shall determine to file a registration
statement under the Securities Act (other than pursuant to Section 2 hereof and
other than on Form X-0, X-0 or a registration statement on Form S-l covering
solely an employee benefit plan) in connection with the proposed offer and sale
for money of any of its securities either for its own account or on behalf of
any other security holder, the Company agrees to give promptly written notice of
its determination to the Investor. Upon the written request of the Investor
given within thirty (30) days after the receipt of such written notice from the
Company, the Company agrees to cause all such Registrable Securities, of which
the Investor has so requested registration thereof, to be included in such
registration statement and registered under the Securities Act, all to the
extent requisite to permit the sale or other disposition by the Investor of the
Registrable Securities to be so registered.
(b) If the registration of which the Company gives written notice
pursuant to Section 4(a) is for a public offering involving an underwriting, the
Company
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agrees to so advise the Investor as a part of its written notice. In such event
the right of the Investor to registration pursuant to this Section 4 shall be
conditioned upon the Investor's participation in such underwriting and the
inclusion of the Investor's Registrable Securities in the underwriting to the
extent provided herein. The Investor proposing to distribute its Registrable
Securities through such underwriting agrees to enter into (together with the
Company and the other holders distributing their securities through such
underwriting) an underwriting agreement with the underwriter or underwriters
selected for such underwriting by the Company, provided that such underwriting
agreement is in customary form and is reasonably acceptable to the Investor
requesting to be included in such registration.
(c) Notwithstanding any other provision of this Section 4, if the
managing underwriter of an underwritten distribution advises the Company and the
Investor participating in such registration in writing that in its good faith
judgment the number of shares of Registrable Securities and the other securities
requested to be registered exceeds the number of shares of Registrable
Securities and other securities which can be sold in such offering, then (i) the
number of shares of Registrable Securities and other securities so requested to
be included in the offering shall be reduced to that number of shares which in
the good faith judgment of the managing underwriter can be sold in such
offering, and (ii) such reduced number of shares shall be allocated among the
Investor and the holders of other securities in proportion, as nearly as
practicable, to the respective number of shares of Registrable Securities held
by the Investor and other securities held by the other holders at the time of
filing the registration statement. All Registrable Securities and other
securities which are excluded from the underwriting by reason of the
underwriter's marketing limitation and all other Registrable Securities not
originally requested to be so included shall not be included in such
registration and shall be withheld from the market by the holders thereof for a
period, not to exceed one hundred eighty (180) days, which the managing
underwriter reasonably determines is necessary to effect the underwritten public
offering.
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(d) The Investor shall bear and pay (or reimburse the Company for)
the expenses incurred for inclusion of the Registrable Securities in a
registration under this Section 4 (including underwriters' discounts or
commissions), but only to the extent such expenses would not otherwise have been
incurred by the Company.
5. Obligations of the Company. To effect the registration of the
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Registrable Securities, the Company shall, as expeditiously as reasonably
possible:
(a) Prepare and file with the Commission such amendments and
supplements to a Registration Statement with respect to the Registrable
Securities 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.
(b) Furnish to the Investor 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 it may reasonably request in order
to facilitate the disposition of Registrable Securities owned by the Investor.
(c) 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 Investor,
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.
(d) Notify the Investor of Registrable Securities covered by such
Registration Statement, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, of the happening of any event
as a result of which the Prospectus included in such Registration Statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing.
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6. Indemnification.
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(a) The Company will, and does hereby undertake to, indemnify and
hold harmless the Investor, each of the Investor's officers, directors, partners
and agents, and each Person controlling such Investor, with respect to any
registration, qualification, or compliance effected pursuant to this Agreement,
against all claims, losses, damages, and liabilities (or actions in respect
thereto) to which they may become subject under the Securities Act, the Exchange
Act, or other federal or state law arising out of or based on (i) any untrue
statements of a material fact contained in any prospectus, offering circular, or
other similar document (including any related Registration Statement,
notification, or the like) incident to any such registration, qualification, or
compliance, or based on any omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
or (ii) any violation or alleged violation by the Company of any federal, state
or common law rule or regulation applicable to the Company in connection with
any such registration, qualification, or compliance, and will reimburse the
Investor, and each such director, officer, partner, agent and controlling
person, for any legal and any other expenses reasonably incurred in connection
with investigating or defending any such claim, loss, damage, liability, or
action; provided that the Company will not be liable in any such case to the
extent that any such claim, loss, damage, liability or expense, arises out of or
is based on any untrue statement or omission based upon written information
furnished to the Company by an instrument duly executed by the Investor and
stated to be specifically for use therein.
(b) The Investor will, if Registrable Securities held by or issuable
to the Investor are included in such registration, qualification, or compliance,
indemnify the Company, each of its directors, and each officer who signs a
Registration Statement in connection therewith, and each person controlling the
Company, against all claims, losses, damages, and liabilities (or actions in
respect thereof) arising out of or based on any untrue statement of a material
fact contained in any such Registration Statement, prospectus, offering
circular, or other document, or any omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse the Company, and each
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such director, officer, partner, and controlling person, for any legal or any
other expenses reasonably incurred in connection with investigating or defending
any such claim, loss, damage, liability, or action, in each case to the extent,
but only to the extent, that such untrue statement or omission was made in such
Registration Statement, prospectus, offering circular, or other document, in
reliance upon and in conformity with written information furnished to the
Company by an instrument duly executed by the Investor and stated to be
specifically for use therein. In no event will the Investor be required to enter
into any agreement or undertaking in connection with any registration under this
Agreement providing for any indemnification or contribution obligations on the
part of the Investor greater than the Investor's obligations under this
Agreement.
(c) Each party entitled to indemnification under this Section 6 (the
"Indemnified Party") shall give notice to the party required to provide such
indemnification (the "Indemnifying Party") of any claim as to which
indemnification may be sought promptly after such Indemnified Party has actual
knowledge thereof, and shall permit the Indemnifying Party to assume the defense
of any such claim or any litigation resulting therefrom; provided that counsel
for the Indemnifying Party, who shall conduct the defense of such claim or
litigation, shall be subject to approval by the Indemnified Party (whose
approval shall not be unreasonably withheld) and the Indemnified Party may
participate in such defense at the Indemnifying Party's expense if
representation of such Indemnified 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; and provided further that the
failure of any Indemnified Party to give notice as provided herein shall not
relieve the Indemnifying Party of its obligations under this Section 6, except
to the extent that such failure to give notice shall materially adversely affect
the Indemnifying Party in the defense of any such claim or any such litigation.
No Indemnifying Party, in the defense of any such claim or litigation, shall,
except with the consent of each Indemnified Party, consent to entry of any
judgment or enter into any settlement that does not include as an unconditional
term thereof the giving by the claimant or plaintiff therein, to such
Indemnified Party, of a release from all liability in respect to such claim or
litigation.
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7. Information by Investor. The Investor shall furnish to the
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Company such information regarding the Investor and the distribution proposed by
the Investor as the Company may reasonably request in writing and as shall be
required in connection with any registration, qualification, or compliance
referred to in this Agreement.
8. Delay of Registration. The Investor shall not have any right to
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obtain or seek an injunction restraining or otherwise delaying any such
registration as the result of any controversy that might arise with respect to
the interpretation or implementation of this Agreement.
9. Rule 144 Reporting. With a view to making available to the
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Investor the benefits of certain rules and regulations of the Commission which
may permit the sale of the Registrable Securities to the public without
registration, the Company agrees to use its best efforts to:
(a) Make and keep public information available, as those terms are
understood and defined in Rule 144, as long as Registrable Securities are
outstanding;
(b) File with the Commission, in a timely manner, all reports and
other documents required of the Company under the Securities Act and the
Exchange Act; and
(c) So long as the Investor owns any Registrable Securities, furnish
to the Investor forthwith upon request a copy of the most recent annual or
quarterly report of the Company and such other reports and documents as the
Investor may reasonably request in availing itself of any rule or regulation of
the Commission allowing it to sell any such securities without registration.
10. Miscellaneous.
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10.1 Waivers and Amendments. This Agreement or any provision hereof
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may be amended, waived, discharged or terminated only by a statement in writing
signed by the Company and the Investor. No waiver by any party of the breach of
any term or provision contained in this Agreement, in any one or more instances,
shall be deemed to be, or construed as, a further or continuing waiver of any
such breach, or a waiver of the breach of any other term or covenant contained
in this Agreement.
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10.2 Notices. All notices, requests, consents and other
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communications required or permitted hereunder shall be in writing and shall be
delivered, or mailed first class prepaid, registered or certified mail,
(a) If to the Investor, at 0 Xxxx 00xx Xxxxxx, 0-X, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xx. Xxxx X. Xxxxxx, or at such other address as the Investor
may specify by written notice to the Company, or
(b) If to the Company, at 00000 Xxxxxxxx Xxxxxx Xxxx, Xxx Xxxxx,
Xxxxxxxxxx 00000, Attention: Mr. J. Xxxxxx Xxxxxxxx, or at such other address as
the Company may specify by written notice to the Investor,
(c) Each such notice, request, consent and other communication shall
for all purposes of the Agreement be treated as being effective or having been
given when delivered, if delivered personally, or, if sent by mail, at the
earlier of its actual receipt or three (3) days after the same has been
deposited in a regularly maintained receptacle for the deposit of United States
mail, addressed and postage prepaid as aforesaid.
10.3 Severability. Should any one or more of the provisions of this
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Agreement or of any agreement entered into pursuant to this Agreement be
determined to be illegal or unenforceable, all other provisions of this
Agreement and of each other agreement entered into pursuant to this Agreement,
shall be given effect separately from the provision or provisions determined to
be illegal or unenforceable and shall not be affected thereby.
10.4 Parties in Interest. All the terms and provisions of this
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Agreement shall be binding upon and inure to the benefit of and be enforceable
by the respective successors and assigns of the parties hereto, whether so
expressed or not. Subject to the immediately preceding sentence, this Agreement
shall not run to the benefit of or be enforceable by any Person other than a
party to this Agreement and its successors and assigns.
10.5 Headings. The headings of the sections, subsections and
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paragraphs of this Agreement have been inserted for convenience of reference
only and do not constitute a part of this Agreement.
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10.6 Choice of Law. It is the intention of the parties that the internal
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substantive laws, and not the laws of conflicts, of the State of California
should govern the enforceability and validity of this Agreement, the
construction of its terms and the interpretation of the rights and duties of the
parties.
10.7 Counterparts. This Agreement may be executed in any number of
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counterparts and by different parties hereto in separate counterparts, with the
same effect as if all parties had signed the same document. All such
counterparts shall be deemed an original, shall be construed together and shall
constitute one and the same instrument.
10.8 Priority. Notwithstanding anything to the contrary in this
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Agreement, all registration rights pursuant to this Agreement are subject to the
existing and prior registration rights of the holders of the Company's Series D
Preferred Stock under that certain Amended and Restated Registration Rights
Agreement entered into as of September 14, 1995 by and among the Company and the
holders of the Company's Series D Preferred Stock, a copy of which has been
delivered to MBF.
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[REGISTRATION RIGHTS AGREEMENT SIGNATURE PAGE]
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed personally or by a duly authorized representative thereof as of the
day and year first above written.
PROTEIN POLYMER TECHNOLOGIES, INC.
a Delaware corporation
By: /s/ J. XXXXXX XXXXXXXX
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J. Xxxxxx Xxxxxxxx, President
and Chief Executive Officer
MBF I, LLC,
a California limited liability company
By: /s/ XXXX X. XXXXXX
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Xxxx X. Xxxxxx, President
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