REGISTRATION RIGHTS AGREEMENT
Execution
Copy
This
REGISTRATION RIGHTS AGREEMENT (this “Agreement”),
dated
as of May 22nd, 2008, is by and between DISCOVERY LABORATORIES, INC. (the
“Company”)
and
KINGSBRIDGE CAPITAL LIMITED (the “Investor”).
WHEREAS,
the Company and the Investor have entered into that certain Common Stock
Purchase Agreement, dated as of the date hereof (the “Purchase
Agreement”),
pursuant to which the Company may issue, from time to time, to the Investor
up
to $60 million worth of shares of Common Stock as provided for
therein;
WHEREAS,
pursuant to the terms of, and in partial consideration for the Investor entering
into, the Purchase Agreement, the Company has issued to the Investor a warrant,
exercisable from time to time, in accordance with its terms, within five (5)
years following the six-month anniversary of the date of issuance (the
“Warrant”)
for
the purchase of an aggregate of up to 825,000 shares of Common Stock at a price
specified in such Warrant;
WHEREAS,
pursuant to the terms of, and in partial consideration for, the Investor’s
agreement to enter into the Purchase Agreement, the Company has agreed to
provide the Investor with certain registration rights with respect to the
Registrable Securities (as defined in the Purchase Agreement) as set forth
herein;
NOW,
THEREFORE, in consideration of the premises, the representations, warranties,
covenants and agreements contained herein, in the Warrant, and in the Purchase
Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, intending to be legally bound
hereby, the parties hereto agree as follows (capitalized terms used herein
and
not defined herein shall have the respective meanings ascribed to them in the
Purchase Agreement):
ARTICLE
I
REGISTRATION
RIGHTS
Section
1.1 Registration
Statement.
(a) Filing
of the Registration Statement.
Upon
the terms and subject to the conditions set forth in this Agreement, the Company
shall file with the Commission within ninety (90) calendar days after the
Closing Date a registration statement on Form S-3 under the Securities Act
or
such other form as deemed appropriate by counsel to the Company for the
registration for the resale by the Investor of the Registrable Securities (the
“Registration
Statement”),
provided, however, that the Company’s obligations in this Article I are subject
to any limitations on the Company’s ability to register the full complement of
such Registrable Securities in accordance with Rule 415 under the Securities
Act
or other regulatory limitations.
(b) Effectiveness
of the Registration Statement.
The
Company shall use commercially reasonable efforts (i) to have the
Registration Statement declared effective by the Commission as soon as
reasonably practicable, but in any event no later than one hundred eighty (180)
calendar days after the Closing Date and (ii) to ensure that the
Registration Statement remains in effect throughout the term of this Agreement
as set forth in Section 4.2, subject to the terms and conditions of this
Agreement.
(c) Regulatory
Disapproval.
The
contemplated effective date for the Registration Statement as described in
Section 1.1(b) shall be extended without default or liquidated damages
hereunder or under the Purchase Agreement in the event that the Company’s
failure to obtain the effectiveness of the Registration Statement on a timely
basis results from (i)
the
failure of the Investor to timely provide the Company with information requested
by the Company and necessary to complete the Registration Statement in
accordance with the requirements of the Securities Act or (ii) the
Commission’s
disapproval of the structure of the transactions contemplated by the Purchase
Agreement,
or
(iii) events or circumstances that are not in any way attributable to the
Company, including but not limited to delays caused by the Commission. In
the
event
of
clause (ii) above,
the
parties agree to cooperate with one another in good faith to arrive at a
resolution acceptable to the Commission.
(d) Failure
to Maintain Effectiveness of Registration Statement.
In the
event the Company fails to maintain the effectiveness of the Registration
Statement (or the Prospectus) throughout the period set forth in Section 4.2,
other than temporary suspensions as set forth in Section 1.1(e), and the
Investor holds any Registrable Securities at any time during the period of
such
ineffectiveness (an “Ineffective Period”), and provided that such failure to
maintain effectiveness was within the reasonable control of the Company, the
Company shall pay on demand to the Investor in immediately available funds
into
an account designated by the Investor an amount equal to the product of (i)
the
total number of Registrable Securities issued to the Investor under the Purchase
Agreement (which, for the avoidance of doubt, shall not include any Warrant
Shares) and owned by the Investor at any time during such Ineffective Period
(and not otherwise sold, hypothecated or transferred) and (ii) the result,
if
greater than zero, obtained by subtracting the VWAP on the Trading Day
immediately following the last day of such Ineffective Period from the VWAP
on
the Trading Day immediately preceding the day on which any such Ineffective
Period began; provided, however, that (A)
the
foregoing payments shall not apply in respect of Registrable Securities
(I)
that
are
otherwise freely tradable by the Investor,
including pursuant to Rule 144 under the Securities Act (as such Rule may be
amended from time to time, "Rule 144") or (II) if the Company offers to
repurchase from the Investor such Registrable Securities for a per share
purchase price equal to the VWAP on the Trading Day immediately preceding the
day on which any such Ineffective Period began and (B) unless otherwise required
by any applicable federal and state securities laws, the Company shall be under
no obligation to supplement the Prospectus to reflect the issuance of any Shares
pursuant to a Draw Down at any time prior to the day following the Settlement
Date with respect to such Shares and that the failure to supplement the
Prospectus prior to such time shall not be deemed a failure to maintain the
effectiveness of the Registration Statement (or Prospectus) for purposes of
this
Agreement (including this Section 1.1(d)).
(e) Deferral
or Suspension During a Blackout Period.
Notwithstanding the provisions of Section 1.1(d), if in the good faith
judgment of the Company, following consultation with legal counsel, it would
be
detrimental to the Company or its stockholders for the Registration Statement
to
be filed or for resales of Registrable Securities to be made pursuant to the
Registration Statement due to (i) the existence of a material development
or potential material development involving the Company that the Company would
be obligated to disclose or incorporate by reference in the Registration
Statement and which the Company has not disclosed, or which disclosure would
be
premature or otherwise inadvisable at such time or would have a Material Adverse
Effect on the Company or its stockholders, or (ii) a filing of a
Company-initiated registration of any class of its equity securities would
adversely affect or require premature disclosure of such filing (the Company’s
notice thereof, a “Blackout
Notice”),
the
Company shall have the right to (A) immediately defer such filing for a
period of not more than sixty (60) days beyond the date by which such
Registration Statement was otherwise required hereunder to be filed or
(B) suspend use of such Registration Statement for a period of not more
than thirty (30) days (any such deferral or suspension period, a “Blackout
Period”).
The
Investor acknowledges that it would be seriously detrimental to the Company
and
its stockholders for such Registration Statement to be filed (or remain in
effect) during a Blackout Period and therefore essential to defer such filing
(or suspend the use thereof) during such Blackout Period and agrees to cease
any
disposition of the Registrable Securities during such Blackout Period. The
Company may not utilize any of its rights under this Section 1.1(e) to
defer the filing of a Registration Statement (or suspend its effectiveness)
more
than six (6) times in any twelve (12) month period. In the event that, within
fifteen (15) Trading Days following any Settlement Date, the Company gives
a
Blackout Notice to the Investor and the VWAP on the Trading Day immediately
preceding such Blackout Period (“Old
VWAP”)
is
greater than the VWAP on the first Trading Day following such Blackout Period
that the Investor may sell its Registrable Securities pursuant to an effective
Registration Statement (“New
VWAP”),
then
the Company shall pay to the Investor, by wire transfer of immediately available
funds to an account designated by the Investor, the “Blackout Amount.” For the
purposes of this Agreement, Blackout Amount means a percentage equal to: (1)
seventy-five percent (75%) if such Blackout Notice is delivered prior to the
fifth (5th) Trading Day following such Settlement Date; (2) fifty percent (50%)
if such Blackout Notice is delivered on or after the fifth (5th) Trading Day
following such Settlement Date, but prior to the tenth (10th) Trading Day
following such Settlement Date; (3) twenty-five percent (25%) if such Blackout
Notice is delivered on or after the tenth (10th) Trading Day following such
Settlement Date, but prior to the fifteenth (15th) Trading Day following such
Settlement Date; and (4) zero percent (0%) thereafter of: the product of (i)
the
number of Registrable Securities purchased by the Investor pursuant to the
most
recent Draw Down and actually held by the Investor (and not otherwise sold,
hypothecated or transferred) immediately prior to the Blackout Period and (ii)
the result, if greater than zero, obtained by subtracting the New VWAP from
the
Old VWAP; provided, however, that no Blackout Amount shall be payable in respect
of Registrable Securities (x) that are otherwise freely tradable by the
Investor, including under Rule 144, during the Blackout Period or (y) if the
Company offers to repurchase from the Investor such Registrable Securities
for a
per share purchase price equal to the VWAP on the Trading Day immediately
preceding the day on which any such Blackout Period began. For any Blackout
Period in respect of which a Blackout Amount becomes due and payable, rather
than paying the Blackout Amount, the Company may at is sole discretion, issue
to
the Investor shares of Common Stock with an aggregate market value determined
as
of the first Trading Day following such Blackout Period equal to the Blackout
Amount (“Blackout
Shares”).
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(f) Liquidated
Damages;
Sole
Remedy.
The
Company and the Investor hereto acknowledge and agree that the amounts payable
under Sections 1.1(d) and 1.1(e) and
the
Blackout Shares deliverable under Section 1.1(e) above
shall
constitute liquidated damages and not penalties. The parties further acknowledge
that (i) the
amount of loss or damages likely to be incurred by the Investor is incapable
or
is difficult to precisely estimate, (ii) the
amounts specified in such subsections bear a reasonable proportion and are
not
plainly or grossly disproportionate to the probable loss likely to be incurred
in connection with any failure by the Company to obtain or maintain the
effectiveness of the Registration Statement, (iii) one
of
the reasons for the Company and the Investor reaching an agreement as to such
amounts was the uncertainty and cost of litigation regarding the question of
actual damages, and (iv) the
Company and the Investor are sophisticated business parties and have been
represented by sophisticated and able legal and financial counsel and negotiated
this Agreement at arm’s length.
The
Investor agrees that, so long as the Company makes the payments or deliveries
provided for in Sections 1.1(d) or 1.1(e), as applicable, the Company’s failure
to maintain the effectiveness, deferral or suspension of the Registration
Statement that triggered such payments or deliveries shall not constitute a
material breach or default of any obligation of the Company to the
Investor
and such
payments or deliveries shall constitute the Investor’s sole remedies with
respect thereto.
(g) Additional
Registration Statements.
In the
event and to the extent that the Registration Statement fails to register a
sufficient amount of Common Stock necessary for the Company to issue and sell
to
the Investor and the Investor to purchase from the Company all of the
Registrable Securities to be issued, sold and purchased under the Purchase
Agreement and the Warrant, the Company shall, upon a timetable mutually
agreeable to both the Company and the Investor, use its commercially reasonable
efforts to prepare and file with the Commission an additional registration
statement or statements in order to effectuate the purpose of this Agreement,
the Purchase Agreement, and the Warrant.
ARTICLE
II
REGISTRATION
PROCEDURES
Section
2.1 Filings;
Information.
The
Company shall effect the registration with respect to the sale of the
Registrable Securities by the Investor in accordance with the intended methods
of disposition thereof. Without limiting the foregoing, the Company in each
such
case will do the following as expeditiously as is commercially reasonable,
but
in no event later than the deadline, if any, prescribed therefor in this
Agreement:
(a) Subject
to Section 1.1(e), the Company shall (i) prepare and file with the
Commission the Registration Statement; (ii) use commercially reasonable
efforts to cause such filed Registration Statement to become and to remain
effective (pursuant to Rule 415 under the Securities Act or otherwise);
(iii) prepare and file with the Commission such amendments and supplements
to the Registration Statement and the Prospectus used in connection therewith
as
may be necessary to keep such Registration Statement effective for the time
period prescribed by Section 4.2 and in order to effectuate the purpose of
this Agreement, the Purchase Agreement, and the Warrant; and (iv) comply in
all material respects with the provisions of the Securities Act with respect
to
the disposition of all securities covered by such Registration Statement during
such period in accordance with the intended methods of disposition by the
Investor set forth in such Registration Statement; provided, however, that
the
Company shall be under no obligation to supplement the Prospectus to reflect
the
issuance of any Shares pursuant to a Draw Down at any time prior to the Trading
Day following the second Settlement Date with respect to a Draw Down and,
provided further, however, that the Investor shall be responsible for the
delivery of the Prospectus to the Persons to whom the Investor sells the Shares
and the Warrant Shares, and the Investor agrees to dispose of Registrable
Securities in compliance with the plan of distribution described in the
Registration Statement and otherwise in compliance with applicable federal
and
state securities laws.
3
(b) The
Company shall deliver to the Investor and its counsel, in accordance with the
notice provisions of Section 4.8, such number of copies of the Registration
Statement, each amendment and supplement thereto (in each case including all
exhibits thereto), the Prospectus (including each preliminary prospectus) and
such other documents or information as the Investor or counsel may reasonably
request in order to facilitate the disposition of the Registrable Securities,
provided, however, that to the extent reasonably practicable, such delivery
may
be accomplished via electronic means.
(c) After
the
filing of the Registration Statement, the Company shall promptly notify the
Investor of any stop order issued or, to the Knowledge of the Company,
threatened by the Commission in connection therewith and take all commercially
reasonable actions required to prevent the entry of such stop order or to remove
it if entered.
(d) The
Company shall use commercially reasonable efforts to (i) register or
qualify the Registrable Securities under such other securities or blue sky
laws
of each jurisdiction in the United States as the Investor may reasonably (in
light of its intended plan of distribution) request, and (ii) cause the
Registrable Securities to be registered with or approved by such other
governmental agencies or authorities in the United States as may be necessary
by
virtue of the business and operations of the Company and do any and all other
customary acts and things that may be reasonably necessary or advisable to
enable the Investor to consummate the disposition of the Registrable Securities;
provided, however, that the Company will not be required to qualify generally
to
do business in any jurisdiction where it would not otherwise be required to
qualify but for this Section 2.1(d), subject itself to taxation in any such
jurisdiction, consent or subject itself to general service of process in any
such jurisdiction, change any existing business practices, benefit plans or
outstanding securities or amend or otherwise modify the Charter or
Bylaws.
(e) The
Company shall make available to the Investor (and will deliver to Investor’s
counsel), (i) subject to restrictions imposed by the United States federal
government or any agency or instrumentality thereof, copies of all public
correspondence between the Commission and the Company concerning the
Registration Statement and will also make available for inspection by the
Investor and any attorney, accountant or other professional retained by the
Investor (collectively, the “Inspectors”),
(ii) upon reasonable advance notice during normal business hours all
financial and other records, pertinent corporate documents and properties of
the
Company (collectively, the “Records”)
as
shall be reasonably necessary to enable them to exercise their due diligence
responsibility, and cause the Company’s officers and employees to supply all
information reasonably requested by any Inspectors in connection with the
Registration Statement; provided, however, that (x) the Company shall not be
obligated to disclose any portion of the Records consisting of either (A)
material non-public information or (B) confidential information of a third
party
and (y) any such Inspectors must agree in writing for the benefit of the Company
not to use or disclose any such Records except as provided in this
Section 2.1(e). Records that the Company determines, in good faith, to be
confidential and that it notifies the Inspectors are confidential shall not
be
disclosed by the Inspectors unless the disclosure or release of such Records
is
requested or required pursuant to oral questions, interrogatories, requests
for
information or documents or a subpoena or other order from a court of competent
jurisdiction or other judicial or governmental process; provided, however,
that
prior to any disclosure or release pursuant to the immediately preceding clause,
the Inspectors shall provide the Company with prompt notice of any such request
or requirement so that the Company may seek an appropriate protective order
or
waive such Inspectors’ obligation not to disclose such Records; and, provided,
further, that if failing the entry of a protective order or the waiver by the
Company permitting the disclosure or release of such Records, the Inspectors,
upon advice of counsel, are compelled to disclose such Records, the Inspectors
may disclose that portion of the Records that counsel has advised the Inspectors
that the Inspectors are compelled to disclose; provided, however, that upon
any
such required disclosure, such Inspector shall use his or her best efforts
to
obtain reasonable assurances that confidential treatment will be afforded such
information. The Investor agrees that information obtained by it solely as
a
result of such inspections (not including any information obtained from a third
party who, insofar as is known to the Investor after reasonable inquiry, is
not
prohibited from providing such information by a contractual, legal or fiduciary
obligation to the Company) shall be deemed confidential and shall not be used
for any purposes other than as indicated above or by it as the basis for any
market transactions in the securities of the Company or its affiliates unless
and until such information is made generally available to the public. The
Investor further agrees that it will, upon learning that disclosure of such
Records is sought in a court of competent jurisdiction, give notice to the
Company and allow the Company, at its expense, to undertake appropriate action
to prevent disclosure of the Records deemed confidential.
4
(f) The
Company shall otherwise comply in all material respects with all applicable
rules and regulations of the Commission, including, without limitation,
compliance with applicable reporting requirements under the Exchange
Act.
(g) The
Company shall appoint (or shall have appointed) a transfer agent and registrar
for all of the Registrable Securities covered by such Registration Statement
not
later than the effective date of such Registration Statement.
(h) The
Investor shall cooperate with the Company, as reasonably requested by the
Company, in connection with the preparation and filing of any Registration
Statement hereunder. The Company may require the Investor to promptly furnish
in
writing to the Company such information as may be required in connection with
such registration including, without limitation, all such information as may
be
requested by the Commission, the NASDAQ Stock Market or FINRA or any state
securities commission and all such information regarding the Investor, the
Registrable Securities held by the Investor and the intended method of
disposition of the Registrable Securities. The Investor agrees to provide such
information requested in connection with such registration within five (5)
business days after receiving such written request and the Company shall not
be
responsible for any delays in obtaining or maintaining the effectiveness of
the
Registration Statement caused by the Investor’s failure to timely provide such
information.
(i) Upon
receipt of a Blackout Notice from the Company, the Investor shall immediately
discontinue disposition of Registrable Securities pursuant to the Registration
Statement covering such Registrable Securities until (i) the Company
advises the Investor that the Blackout Period has terminated and (ii) the
Investor receives copies of a supplemented or amended prospectus, if necessary.
If so directed by the Company, the Investor will deliver to the Company (at
the
expense of the Company) or destroy (and deliver to the Company a certificate
of
destruction) all copies in the Investor’s possession (other than a limited
number of file copies) of the prospectus covering such Registrable Securities
that is current at the time of receipt of such notice.
Section
2.2 Registration
Expenses.
Except
as set forth in Section 10.1 of the Purchase Agreement, the Company shall
pay all registration expenses incurred in connection with the Registration
Statement (the “Registration
Expenses”),
including, without limitation: (a) all registration, filing, securities
exchange listing and fees required by the NASDAQ Stock Market, (b) all
registration, filing, qualification and other fees and expenses of compliance
with securities or blue sky laws (including reasonable fees and disbursements
of
counsel in connection with blue sky qualifications of the Registrable
Securities), (c) all of the Company’s word processing, duplicating,
printing, messenger and delivery expenses, (d) the Company’s internal
expenses (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), (e) the fees
and expenses incurred by the Company in connection with the listing of the
Registrable Securities, (f) reasonable fees and disbursements of counsel for
the
Company and customary fees and expenses for independent certified public
accountants retained by the Company (including the expenses of any special
audits or comfort letters or costs associated with the delivery by independent
certified public accountants of such special audit(s) or comfort letter(s),
(g)
the fees and expenses of any special experts retained by the Company in
connection with such registration and amendments and supplements to the
Registration Statement and Prospectus, and (h) premiums and other costs of
the
Company for policies of insurance against liabilities of the Company arising
out
of any public offering of the Registrable Securities being registered, to the
extent that the Company, in its discretion, elects to obtain and maintain such
insurance. Any fees and disbursements of underwriters, broker-dealers or
investment bankers, including without limitation underwriting fees, discounts,
transfer taxes or commissions, and any other fees or expenses (including legal
fees and expenses) if any, attributable to the sale of Registrable Securities,
shall be payable by each holder of Registrable Securities pro rata on the basis
of the number of Registrable Securities of each such holder that are included
in
a registration under this Agreement.
5
ARTICLE
III
INDEMNIFICATION
Section
3.1 Indemnification.
The
Company agrees to indemnify and hold harmless the Investor, its partners,
affiliates, officers, directors, employees and duly authorized agents, and
each
Person or entity, if any, who controls the Investor within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act,
together with the partners, affiliates, officers, directors, employees and
duly
authorized agents of such controlling Person or entity (collectively, the
“Controlling
Persons”),(each
of
the
Investor, its partners, affiliates, officers, directors, employees and duly
authorized agents, and the
Investor’s Controlling Persons, an “Investor Indemnified Person”),
from and
against any loss, claim, damage, liability, costs and expenses (including,
without limitation, reasonable attorneys’ fees and disbursements and costs and
expenses of investigating and defending any such claim) (collectively,
“Damages”), joint or several, and any action or proceeding in respect thereof to
which an
Indemnified Investor Person
may
become subject under the Securities Act or otherwise, as incurred, insofar
as
such Damages (or actions or proceedings in respect thereof) arise out of, or
are
based upon, any untrue statement or alleged untrue statement of a material
fact
contained in any Registration Statement, or in any preliminary prospectus,
final
prospectus, summary prospectus, amendment or supplement relating to the
Registrable Securities or arises out of, or are based upon, any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein under the circumstances not
misleading, and shall reimburse such
Investor Indemnified Person
for any
legal and other expenses reasonably incurred by the Investor, its partners,
affiliates, officers, directors, employees and duly authorized agents, or any
such Controlling Person, as incurred, in investigating or defending or preparing
to defend against any such Damages or actions or proceedings; provided, however,
that the Company shall not be liable to the extent that any such Damages arise
out of the Investor’s (or any other Investor indemnified Person’s) (i) failure
to send or give a copy of the final prospectus or supplement (as then amended
or
supplemented) to the persons asserting an untrue statement or alleged untrue
statement or omission or alleged omission at or prior to the written
confirmation of the sale of Registrable Securities to such person if such
statement or omission was corrected in such final prospectus or supplement
or
(ii) written confirmation of the sale of Registrable Securities purchased in
any
specific Draw Down prior to the filing of a supplement to the Prospectus to
reflect such Draw Down (provided, that the Company is in compliance with its
covenants with respect to the filing of such supplement); provided, further,
that the Company shall not be liable to the extent that any such Damages arise
out of or are based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in such Registration Statement, or any such
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement in reliance upon and in conformity with written information furnished
to the Company by or on behalf of the Investor or any other person who
participates as an underwriter in the offering or sale of such securities,
in
either case, specifically stating that it is for use in the preparation thereof.
In connection with any Registration Statement with respect to which the Investor
is participating, the Investor will indemnify and hold harmless, to the same
extent and in the same manner as set forth in the preceding paragraph, the
Company, each of its partners, affiliates, officers, directors, employees and
duly authorized agents and
each
of
the
Company’s Controlling Persons
(each a
"Company
Indemnified Person")
against any Damages to which any Company Indemnified Person may become subject
under the Securities Act, the Exchange Act or otherwise, insofar as such Damages
arise out of or are based upon (a) any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement, or in
any
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement relating to the Registrable Securities or arise out of, or are based
upon, any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein under the
circumstances not misleading to the extent that such violation occurs in
reliance upon and in conformity with written information furnished to the
Company by the Investor or on behalf of the Investor expressly for use in
connection with such Registration Statement, or (b) any failure by the
Investor to comply with prospectus delivery requirements of the Securities
Act,
the Exchange Act or any other law or legal requirement applicable to sales
under
the Registration Statement, or (c) a written confirmation of the sale of
Registrable Securities purchased by such Investor in any specific Draw Down
prior to the filing of a supplement to the Prospectus to reflect such Draw
Down
(provided the Company is in compliance with its covenants with respect to the
filing of such supplement).
6
Section
3.2 Conduct
of Indemnification Proceedings.
All
claims for indemnification under Section 3.1 shall be asserted and resolved
in accordance with the provisions of Section 9.2 and 9.3 of the Purchase
Agreement.
Section
3.3 Additional
Indemnification.
Indemnification similar to that specified in the preceding paragraphs of this
Article III (with appropriate modifications) shall be given by the Company
and
the
Investor with
respect to any required registration or other qualification of securities under
any federal or state law or regulation of any governmental authority other
than
the Securities Act. The provisions of this Article III shall be in addition
to
any other rights to indemnification, contribution or other remedies which an
Investor
Indemnified
Person
or a
Company Indemnified Person may have pursuant to law, equity, contract or
otherwise.
To
the
extent that any indemnification provided for herein is prohibited or limited
by
law, the indemnifying party will make the maximum contribution with respect
to
any amounts for which it would otherwise be liable under this Article III to
the
fullest extent permitted by law. However, (a) no contribution will be made
under circumstances where the maker of such contribution would not have been
required to indemnify the indemnified party under the fault standards set forth
in this Article III, (b) if the Investor is guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act),
no
Investor Indemnified
Person will
be
entitled to contribution from any Person who is not guilty of such fraudulent
misrepresentation, and (c) contribution (together with any indemnification
obligations under this Agreement) by the Investor will be limited in amount
to
the proceeds received by the Investor from sales of Registrable
Securities.
ARTICLE
IV
MISCELLANEOUS
Section
4.1 No
Outstanding Registration Rights.
Except
as otherwise disclosed in accordance with the Purchase Agreement or in the
Commission Documents, the Company represents and warrants to the Investor that
there is not in effect on the date hereof any agreement by the Company pursuant
to which any holders of securities of the Company have a right to cause the
Company to register or qualify such securities under the Securities Act or
any
securities or blue sky laws of any jurisdiction.
Section
4.2 Term.
The
registration rights provided to the holders of Registrable Securities hereunder,
and the Company’s obligation to keep the Registration Statement effective, shall
terminate at the earlier of (a) such time that is one year following the
termination of the Purchase Agreement, (b) such time as all Registrable
Securities have been issued and have ceased to be Registrable Securities, or
(c) upon the consummation of an “Excluded
Merger or Sale”
as
defined in the Warrant or an event described in the last sentence of Section
6(d) or Section 6(e) of the Warrant. Notwithstanding the foregoing, Section 1.1(d),
Article III, Section 4.7, Section 4.8, Section 4.9,
Section 4.10, Section 4.11 and Section 4.13 shall survive the
termination of this Agreement.
Section
4.3 Rule 144.
The
Company will, at its expense, promptly take such action as holders of
Registrable Securities may reasonably request to enable such holders of
Registrable Securities to sell Registrable Securities without registration
under
the Securities Act within the limitation of the exemptions provided by
(a) Rule 144
under
the Securities Act (“Rule 144”),
as
such Rule may be amended from time to time,
or
(b) any similar rule or regulation hereafter adopted by the Commission;
provided, that such holders of Registrable Securities may not make any such
request more than once in any calendar quarter during the term of this
Agreement.
If at
any time the Company is not required to file such reports, it will, at its
expense, forthwith upon the written request of any holder of Registrable
Securities, make available adequate current public information with respect
to
the Company within the meaning of Rule 144(c)(2) or such other information
as necessary to permit sales pursuant to Rule 144. Upon the request of the
Investor, the Company will deliver to the Investor a written statement, signed
by the Company’s principal financial officer, as to whether it has complied with
such requirements.
7
Section
4.4 Certificate.
The
Company will, at its expense, forthwith upon the request of any holder of
Registrable Securities, deliver to such holder a certificate, signed by the
Company’s principal financial officer, stating (a) the Company’s name,
address and telephone number (including area code), (b) the Company’s
Internal Revenue Service identification number, (c) the Company’s
Commission file number, (d) the number of shares of each class of capital
stock outstanding as shown by the most recent report or statement published
by
the Company, and (e) whether the Company has filed the reports required to
be
filed under the Exchange Act for a period of at least ninety (90) days prior
to
the date of such certificate and in addition has filed the most recent annual
report required to be filed thereunder.
Section
4.5 Amendment
And Modification.
Any
provision of this Agreement may be waived, provided that such waiver is set
forth in a writing executed by the Company and the holder(s) of the majority
of
then-outstanding Registrable Securities. The provisions of this Agreement,
including the provisions of this sentence, may be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may be given, with the written consent of the Company and the holder(s) of
the
majority of then-outstanding Registrable Securities. No course of dealing
between or among any Person having any interest in this Agreement will be deemed
effective to modify, amend or discharge any part of this Agreement or any rights
or obligations of any person under or by reason of this Agreement.
Section
4.6 Successors
and Assigns; Entire Agreement.
This
Agreement and all of the provisions hereof shall be binding upon and inure
to
the benefit of the parties hereto and their respective successors and permitted
assigns. The Company may assign this Agreement at any time in connection with
a
sale or acquisition of the Company, whether by merger, consolidation, sale
of
all or substantially all of the Company’s assets, or similar transaction,
without the consent of the Investor, provided that the successor or acquiring
Person or entity agrees in writing to assume all of the Company’s rights and
obligations under this Agreement. Investor may assign its rights and obligations
under this Agreement only with the prior written consent of the Company, and
any
purported assignment by the Investor absent the Company’s consent shall be null
and void. This Agreement, together with the Purchase Agreement and the Warrant
sets forth the entire agreement and understanding between the parties as to
the
subject matter hereof and merges and supersedes all prior discussions,
agreements and understandings of any and every nature among them.
Section
4.7 Severability.
If any
provision of this Agreement becomes or is declared by a court of competent
jurisdiction to be illegal, unenforceable or void, this Agreement shall continue
in full force and effect without said provision; provided that, if the severance
of such provision materially changes the economic benefits of this Agreement
to
either party as such benefits are anticipated as of the date hereof, then such
party may terminate this Agreement on five (5) business days prior written
notice to the other party. In such event, the Purchase Agreement will terminate
simultaneously with the termination of this Agreement.
Section
4.8 Notices.
All
notices, demands, requests, consents, approvals, and other communications
required or permitted hereunder shall be given in accordance with
Section 10.4 of the Purchase Agreement.
Section
4.9 Governing
Law; Dispute Resolution.
This
Agreement shall be construed under the laws of the State of New
York.
Section
4.10 Headings.
The
headings in this Agreement are for convenience of reference only and shall
not
constitute a part of this Agreement, nor shall they affect their meaning,
construction or effect.
Section
4.11 Counterparts.
This
Agreement may be executed in multiple counterparts, each of which shall be
deemed to be an original instrument and all of which together shall constitute
one and the same instrument.
Section
4.12 Further
Assurances.
Each
party shall cooperate and take such action as may be reasonably requested by
another party in order to carry out the provisions and purposes of this
Agreement and the transactions contemplated hereby.
Section
4.13 Absence
of Presumption.
This
Agreement shall be construed without regard to any presumption or rule requiring
construction or interpretation against the party drafting or causing any
instrument to be drafted.
8
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by
the undersigned, thereunto duly authorized, as of the date first set forth
above.
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KINGSBRIDGE
CAPITAL LIMITED
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| By: |
/s/
Xxxx Xxxxxxx-Xxxxxxx
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Xxxx
Xxxxxxx-Xxxxxxx
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Director
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Discovery
Laboratories, Inc.
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| By: | /s/ Xxxx X. Xxxxxx | |
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Name:
Xxxx X. Xxxxxx,
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Title:Executive
Vice President and
Chief
Financial Officer
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9
