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EXHIBIT 4.3
INTRACEL CORPORATION
REGISTRATION RIGHTS AGREEMENT
This Agreement is made as of August 25, 1998, by and among Intracel
Corporation, a Delaware corporation (the "Company"), and the persons and
entities listed on the signature pages hereof (the "Holders"), who are (a)
holders of the Company's Series A-VI Common Stock Warrants (the "Series A-VI
Warrants") to purchase the Company's Common Stock, par value $.0001 per share
("Common Stock"); (b) holders of the Company's Amended and Restated Series A-V
Common Stock Warrants (the "Series A-V Warrants"); (c) holders of the Company's
Amended and Restated Series A-II Common Stock Warrants (the "Series A-II
Warrants"); (d) holders of certain Amended and Restated Series A-III Warrants
(the "Series A-III Warrants") and (e) holders of an aggregate of 381,296 shares
of the Company's Common Stock ("Existing Common Stock") and 259,568 shares of
Series A-1 Preferred Stock which is convertible into shares of the Company's
Common Stock. ("Existing Preferred Stock").
PREAMBLE
The Company desires to extend registration rights to the Holders of the
Warrants.
NOW, THEREFORE, in consideration of the premises and mutual agreements
set forth herein, the Company and the Holders agree as follows:
Section 1. Definitions. As used in this Agreement, the following terms
shall have the following meanings:
(a) "Commission" shall mean the Securities and Exchange
Commission, or any other Federal agency at the time administering the Securities
Act.
(b) "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended, or any similar Federal statute and the rules and regulations
thereunder, all as the same shall be in effect at the time.
(c) "Holders" shall have the meaning set forth in the
preamble.
(d) "Initiating Holders" shall mean any Holder or Holders who
initiate a registration pursuant to the terms of this Agreement.
(e) "Register," "registered" and "registration" shall refer to
a 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, and compliance with applicable
state securities laws of such states in which Holders notify the Company of
their intention to offer Registrable Securities.
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(f) "Registrable Securities" shall mean all of the following
to the extent the same have not been sold to the public: (i) any and all shares
of Common Stock of the Company issuable upon exercise of the Series A-II
Warrants, the Series A-V Warrants, the Series A-VI Warrants and the Series A-III
Warrants; (ii) Existing Common Stock and shares issuable upon conversion of
Existing Preferred Stock, or (iii) stock issued in respect of securities
referred to in (i) or (ii) above in any reorganization; or (iv) stock issued in
respect of the securities referred to in (i), (ii) or (iii) as a result of a
stock split, stock dividend, recapitalization or combination or upon the
exercise of any rights, options, warrants or similar rights to purchase any
Common Stock. Notwithstanding the foregoing, Registrable Securities shall not
include otherwise Registrable Securities (i) sold by a person in a transaction
in which his rights under this Agreement are not properly assigned; or (ii) (A)
sold to or through a broker or dealer or underwriter in a public distribution or
a public securities transaction, (B) sold in a transaction exempt from the
registration and prospectus delivery requirements of the Securities Act under
Section 4(1) thereof so that all transfer restrictions, and restrictive legends
with respect thereto, if any, are removed upon the consummation of such sale or
(C) the registration rights associated with such securities have been terminated
pursuant to Section 12 of this Agreement.
(g) "Rule 144" shall mean Rule 144 under the Securities Act or
any successor or similar rule as may be enacted by the Commission from time to
time, but shall not include Rule 144A.
(h) "Rule 144A" shall mean Rule 144A under the Securities Act
or any successor or similar rule as may be enacted by the Commission from time
to time, but shall not include Rule 144.
(i) "Securities Act" shall mean the Securities Act of 1933, as
amended, or any similar Federal statute and the rules and regulations
thereunder, all as the same shall be in effect at the time.
(j) "Warrants" shall mean collectively, the Series A-II
Warrants, the Series A-V Warrants, the Series A-VI Warrants and the Series A-III
Warrants.
As used herein, all capitalized terms not otherwise defined herein
shall have the meanings set forth in the Securities Purchase Agreement.
Section 2. Demand Registration.
(a) If the Company shall receive from Initiating Holders a
written request that the Company effect any registration with respect to not
less than 20% of the shares of Common Stock which are Registrable Securities,
the Company shall:
(i) promptly give written notice of the proposed
registration to all other Holders; and
(ii) as soon as practicable use its best efforts to
register (including, without limitation, the execution of an
undertaking to file post-effective amendments and
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any other governmental requirements) all Registrable Securities which
the Initiating Holders request to be registered within twenty (20) days
after receipt of such written notice from the Company; provided, that
the Company shall not be obligated to file a registration statement
pursuant to this Section 2(a):
(A) prior to the date which is 180 days from
the date the Company consummates its initial offering of
Common Stock to the public pursuant to a registration
statement filed under the Securities Act, which offering
requires such Common Stock to become registered under the
Exchange Act; provided however that, in the event the Company
receives a written request pursuant hereto to effect a
registration prior to the date which is six (6) months from
the date of the consummation of the Company's initial public
offering, the Company shall prepare the registration statement
covering the Registrable Securities so that it may be filed as
soon as practicable upon the expiration of such six (6) month
period;
(B) in any particular state in which the
Company would be required to execute a general consent to
service of process in effecting such registration;
(C) within 120 days following the effective
date of any registered offering of the Company's securities to
the general public in which the Holders of Registrable
Securities shall have been able effectively to register all
Registrable Securities as to which registration shall have
been requested;
(D) in any registration having an aggregate
offering price (before deduction of underwriting discounts and
expenses of sale) of less than $5.0 million; or
(E) after the Company has effected one such
registration pursuant to this Section 2(a).
Subject to the foregoing clauses (A) through (E), the Company shall file a
registration statement covering the Registrable Securities so requested to be
registered as soon as practicable after receipt of the request or requests of
the Initiating Holders and shall use reasonable best efforts to have such
registration statement promptly declared effective by the Commission whether or
not all Registrable Securities requested to be registered can be included;
provided, however, that if the Company shall furnish to such Holders a
certificate signed by the President of the Company stating that in the good
faith judgment of the Board of Directors it would be seriously detrimental to
the Company and its shareholders for such registration statement to be filed
within such ninety-day (90-day) period and it is therefore essential to defer
the filing of such registration statement, the Company shall have an additional
period of not more than ninety (90) days after the expiration of the initial
ninety-day (90-day) period within which to file such registration statement;
provided, that (i) during such time the Company may not file a registration
statement for securities to be issued and sold for its own account and (ii) the
Company shall not utilize this right more than once in any twelve (12) month
period. Notwithstanding anything to the contrary contained herein, the
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obligation of the Company under this Section 2(a) shall be deemed satisfied only
when a registration statement covering all Registrable Securities specified in
notices received as aforesaid, for sale in accordance with the method of
disposition specified by the Required Holders, shall have become effective and,
if such method of disposition is a firm commitment underwritten public offering,
all such Registrable Securities shall have been sold pursuant thereto.
(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. In such event, the
Company shall include such information in the written notice referred to in
subsection 2(a)(i). If so requested in writing by the Company, the Initiating
Holders shall negotiate with an underwriter selected by the Company with regard
to the underwriting of such requested registration. The right of any Holder to
registration pursuant to Section 2 shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting (unless otherwise mutually agreed by
a majority in interest of the Initiating Holders and such Holder) to the extent
provided herein. The Company shall (together with all Holders proposing to
distribute their securities through such underwriting) 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(a), if the managing underwriter determines that marketing factors
require a limitation of the number of shares to be underwritten, the securities
of the Company held by directors, officers or employees and by shareholders
other than the Initiating Holders shall be excluded from such registration pro
rata (based on the number of securities each wishes to so register) to the
extent so required by such limitation, and if a limitation of the number of
shares is still required, then the managing underwriter may limit the number of
Registrable Securities to be included in the registration, provided that no such
reduction may reduce the securities being offered by the Holders to less than
twenty-five percent (25%) of the total securities requested to be included in
such registration and underwriting, allocated pro rata among the Initiating
Holders based on the number of Registrable Securities otherwise requested to be
included in such registration (and, in event such reduction results in less than
twenty-five percent (25%) of the total securities requested to be included in
such underwriting actually being included, such registration shall be cancelled
and shall not count as a registration request under this Section 2). If any
Holder disapproves of the terms of any such underwriting, he may elect to
withdraw therefrom by written notice to the Company and the managing
underwriter.
(c) In addition to all other rights of the Holders set forth
herein, the Company shall be obligated to, without any prior demand from the
Holders, file a Registration Statement to register the Registrable Securities
and use its best efforts to cause such Registration Statement to become
effective as soon as practicable following 180 days after the Company
consummates its initial offering of Common Stock to the public.
Section 3. Piggyback Registration.
(a) If at any time, or from time to time, the Company shall
determine to register any of its securities for its own account or the account
of any of its shareholders, other than a registration relating solely to
employee benefit plans, or a registration relating solely to an
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SEC Rule 145 transaction, a transaction relating solely to the sale of debt or
convertible debt instruments or a registration on any form (other than Form X-0,
X-0 or S-3, or their successor forms) which does not include substantially the
same information as would be required to be included in a registration statement
covering the sale of Registrable Securities, the Company will:
(i) give to each Holder written notice thereof as
soon as practicable prior to filing the registration statement; and
(ii) include in such registration and in any
underwriting involved therein, all the Registrable Securities specified
in a written request or requests, made within fifteen (15) days after
receipt of such written notice from the Company, by any Holder or
Holders, except as set forth in subsection (b) below.
(b) If the registration is for a registered public offering
involving an underwriting, the Company shall so advise the Holders as a part of
the written notice given pursuant to subsection 3(a)(i). In such event, the
right of any Holder to registration pursuant to Section 3 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 and the other holders distributing
their securities through such underwriting) enter into an underwriting agreement
in customary form with the underwriter or underwriters selected for such
underwriting by the Company. Notwithstanding any other provision of this Section
3, if the managing underwriter determines that marketing factors require a
limitation of the number of shares to be underwritten, the managing underwriter
may limit the number of Registrable Securities to be included in the
registration and underwriting and the number of Registrable Securities to be
included in such offering shall be reduced to zero before any reduction in any
securities to be offered by the Company on its own behalf. The Company shall so
advise all Holders and the other Holders distributing their securities through
such underwriting pursuant to piggy-back registration rights similar to this
Section 3, and the number of shares of Registrable Securities and other
securities that may be included in the registration and underwriting shall be
allocated among all Holders (and any other selling shareholders), pro rata, as
nearly as practicable, based on the numbers of Registrable Securities and other
shares held by selling shareholders, each such party wishes to register pursuant
to this Section 3. If any Holder disapproves of the terms of any such
underwriting, he may elect to withdraw therefrom by written notice to the
Company and the managing underwriter. If, by the withdrawal of such Registrable
Securities, a greater number of Registrable Securities held by other Holders may
be included in such registration (up to the limit imposed by the underwriters),
the Company shall offer to all Holders who have included Registrable Securities
in the registration the right to include additional Registrable Securities. Any
Registrable Securities excluded or withdrawn from such underwriting shall be
withdrawn from such registration.
Section 4. Form S-3. The Company shall use its best efforts to qualify
for registration on Form S-3 or its successor form. After the Company has
qualified for the use of Form S-3, Initiating Holders shall have the right at
any time to request registrations on Form S-3
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(such requests shall be in writing and shall state the number of shares of
Registrable Securities to be disposed of and the intended method of disposition
of shares by such Initiating Holders), subject to the following:
(a) The Company shall not be required to file a registration
statement pursuant to this Section 4 within ninety (90) days of the effective
date of any registration referred to in Sections 2 and 3 above;
(b) The Company shall not be required to file a registration
statement pursuant to this Section 4 unless the Initiating Holder or Holders
requesting registration propose to dispose of shares of Registrable Securities
having an aggregate disposition price (before deduction of underwriting
discounts and expenses of sale) of at least $250,000; and
(c) The Company shall not be required to file more than two
(2) registration statements pursuant to this Section 4 within any twelve (12)
month period.
The Company shall give written notice to all Holders of Registrable
Securities of the receipt of a request for registration pursuant to this Section
4 and shall provide a reasonable opportunity for other Holders to participate in
the registration; provided, that if the registration is for an underwritten
offering, the right of any Holder to registration pursuant to Section 4 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 and the other Holders
distributing their securities through such underwriting) enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting by the Company. Notwithstanding any other
provision of this Section 4, if the managing underwriter determines that
marketing factors require a limitation of the number of shares to be
underwritten, the managing underwriter may limit the number of Registrable
Securities to be included in the registration and underwriting. The Company
shall so advise all Holders of Registrable Securities which would otherwise be
registered and underwritten pursuant hereto, and the number of Registrable
Securities that may be included in the registration and underwriting shall be
allocated among the Holders and any other selling shareholders pro rata, as
nearly as practicable, based on the number of Registrable Securities and shares
held by selling shareholders, such Holder and any selling shareholders wish to
include in a registration pursuant to this Section 4. If any Holder disapproves
of the terms of any such underwriting, he may elect to withdraw therefrom by
written notice to the Company and the underwriter. If, by the withdrawal of such
Registrable Securities, a greater number of Registrable Securities held by other
Holders may be included in such registration (up to the limit imposed by the
underwriters), the Company shall offer to all Holders who have included
Registrable Securities in the registration the right to include additional
Registrable Securities in the same proportion used in determining the limitation
as set forth above. Any Registrable Securities excluded or withdrawn from such
underwriting shall be withdrawn from such registration. Registrations effected
pursuant to this Section 4 shall not be counted as requests for registration
pursuant to Section 2.
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Section 5. Expenses of Registration. In addition to the fees and
expenses contemplated by Section 6 hereof, all expenses incurred in connection
with one registration pursuant to Section 2 hereof, and all registrations
pursuant to Sections 3 and 4 hereof, including without limitation all
registration, filing and qualification fees, printing expenses, fees and
disbursements of counsel for the Company and expenses of any special audits of
the Company's financial statements incidental to or required by such
registration, shall be borne by the Company, except that the Company shall not
be required to pay underwriters' fees, discounts or commissions relating to
Registrable Securities or fees of legal counsel for the Holders.
Section 6. Registration Procedures. In the case of each registration
effected by the Company pursuant to this Agreement, the Company will keep each
Holder participating therein advised in writing as to the initiation of each
registration and as to the completion thereof. At its expense the Company will:
(a) keep such registration pursuant to Sections 2, 3 or 4
continuously effective until the date on which the Holder or Holders have
completed the distribution described in the registration statement relating
thereto;
(b) promptly prepare and file with the Commission such
amendments and supplements to such registration statement and the prospectus
used in connection therewith as may be necessary to comply with the provisions
of the Securities Act; and to keep such registration statement effective for
that period of time specified in Section 6(a) above;
(c) furnish such number of prospectuses and other documents
incident thereto as a Holder from time to time may reasonably request;
(d) use reasonable best efforts to obtain the withdrawal of
any order suspending the effectiveness of a registration statement, or the
lifting of any suspension of the qualification of any of the Registrable
Securities for sale in any jurisdiction, at the earliest possible moment;
(e) subject to Section 2(a)(ii)(B), register or qualify such
Registrable Securities for offer and sale under the securities or Blue Sky laws
of such jurisdictions as any Holder or underwriter reasonably requires, and keep
such registration or qualification effective during the period set forth in
Section 6(a) above;
(f) cause all Registrable Securities covered by such
registrations to be listed on each securities exchange, including NASDAQ, on
which similar securities issued by the Company are then listed;
(g) cause its accountants to issue to the underwriter, if any,
or the Holders, if there is no underwriter, comfort letters and updates thereof,
in customary form and covering matters of the type customarily covered in such
letters with respect to underwritten offerings;
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(h) cause its counsel to issue to the underwriter, if any, or
to the Holders, if there is no underwriter, opinions in customary form and
covering matters of the type customarily covered in such opinions with respect
to underwritten offerings;
(i) enter into such customary agreements (including
underwriting agreements in customary form);
(j) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement, and any attorney, accountant or other agent retained by
any such seller or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the Company's
officers, directors, employees and independent accountants to supply all
information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement;
(k) immediately notify each Holder, at any time a prospectus
covered by such registration statement is required to be delivered under the
Securities Act, of the happening of any event of which it has knowledge 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; and
(l) take such other actions as shall be reasonably requested
by any Holder.
For purposes of Sections 2, 6(a) and 6(b) above, the period of
distribution of Registrable Securities in a firm commitment underwritten public
offering shall be deemed to extend until each underwriter has completed the
distribution of all securities purchased by it, and the period of distribution
of Registrable Securities in any other registration shall be deemed to extend
until the earlier of the sale of all Registrable Securities covered thereby and
six (6) months after the effective date thereof.
Section 7. Indemnification.
(a) In the event of a registration, qualification or
compliance of any of the Registrable Securities under the Securities Act
pursuant to Sections 2, 3 or 4, the Company will indemnify and hold harmless
each Holder of such Registrable Securities thereunder, each underwriter of such
Registrable Securities thereunder and each other person, if any, who controls
such Holder or underwriter within the meaning of the Securities Act, against any
losses, claims, damages or liabilities, joint or several, to which such Holder,
underwriter or controlling person may become subject under the Securities Act,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in any registration statement under
which such Registrable Securities was registered under the Securities Act, any
preliminary prospectus or final prospectus contained therein, or any amendment
or supplement thereof, any offering circular or other offering document or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
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statements therein not misleading, or any violation by the Company of any rule
or regulation promulgated under the Securities Act or any state securities law
or rule or regulation promulgated under the Securities Act or any state
securities law applicable to the Company and relating to action or inaction
required of the Company in connection with any such registration, qualification
or compliance, and will reimburse each such Holder, each of its officers,
directors and partners, and each person controlling such Holder, each such
underwriter and each person who controls any such underwriter, for any
reasonable legal and any other expenses incurred in connection with
investigating, defending or settling any such claim, loss, damage, liability or
action; provided, that, not withstanding the foregoing, the Company will not be
liable in any such case to the extent that any such claim, loss, damage or
liability 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 such Holder or underwriter specifically for use therein.
(b) Each Holder will, if Registrable Securities held by or
issuable to such Holder are included in the securities as to which such
registration, qualification or compliance is being effected, indemnify and hold
harmless the Company, each of its directors and officers, each underwriter, if
any, of the Company's securities covered by such a registration statement, each
person who controls the Company and each underwriter within the meaning of the
Securities Act, and each other Holder, each of such other Holder's officers,
directors and partners and each person controlling such other Holder, against
all claims, losses, expenses, damages and liabilities (or actions in respect
thereof) arising out of or based on any untrue statement (or alleged untrue
statement) of a material fact contained in any such registration statement,
prospectus, offering circular or other offering document, or any omission (or
alleged 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, such Holders, such directors, officers, partners, persons or
underwriters for any reasonable legal or any other expenses incurred in
connection with investigating, defending or settling any such claim, loss,
damage, liability or action, in each case to the extent, but only to the extent,
that such untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such registration statement, prospectus, offering circular
or other offering document in reliance upon and in conformity with written
information furnished to the Company by an instrument duly executed by such
Holder specifically for use therein; provided, however, the total amount for
which any Holder, its officers, directors and partners, and any person
controlling such Holder, shall be liable under this Section 7(b) shall be
limited to the proportion of any such loss, claim, damage, liability or expense
which is equal to the proportion that the public offering price of shares sold
by such Holder under such registration statement bears to the total public
offering price of all securities sold thereunder but not to exceed, in any
event, the aggregate proceeds received by such Holder from the sale of
Registrable Securities sold by such Holder in such registration, qualification
or compliance.
(c) Each party entitled to indemnification under this Section
7 (the "Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claims as to which indemnity may be sought, and
shall permit the Indemnifying Party to assume the defense of any such claim or
any litigation resulting therefrom, provided that counsel for the
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Indemnifying Party, who shall conduct the defense of such claim or litigation,
shall be approved by the Indemnified Party (whose approval shall not be
unreasonably withheld), and the Indemnified Party may participate in such
defense at such party's expense, 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 hereunder, unless such failure resulted in
actual detriment to the Indemnifying Party. The Indemnifying Party shall not be
liable to indemnify any Indemnified Party for any settlement of any such action
effected without the Indemnifying Party's consent. 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
which does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such Indemnified Party of a release from all liability
in respect of such claim or litigation.
(d) Notwithstanding the foregoing, to the extent that the
provisions on indemnification contained in the underwriting agreements entered
into among the selling Holders, the Company and the underwriters in connection
with the underwritten public offering are in conflict with the foregoing
provisions, the provisions in the underwriting agreement shall be controlling as
to the Registrable Securities included in the public offering.
(e) If the indemnification provided for in this Section 7 is
held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any loss, liability, claim, damage or expense referred to
therein, then the Indemnifying Party, in lieu of indemnifying such Indemnified
Party thereunder, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such loss, liability, claim, damage or expense
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
hand in connection with the statements or omissions which resulted in such loss,
liability, claim, damage or expense as well as any other relevant equitable
considerations. The relevant fault of the Indemnifying Party and 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 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.
Notwithstanding the foregoing, the amount any Holder shall be obligated to
contribute pursuant to this Section 7(e) shall be limited to an amount equal to
the proceeds to such Holder of the Registrable Securities sold pursuant to the
registration statement which gives rise to such obligation to contribute.
(f) The indemnification provided by this Section 7 shall be a
continuing right to indemnification and shall survive the registration and sale
of any securities by any definition entitled to indemnification hereunder and
the expiration or termination of this Agreement.
Section 8. Lockup Agreement. In consideration for the Company agreeing
to its obligations under this Agreement, each Holder agrees in connection with
any underwritten registration of the Company's securities (whether or not such
Holder is participating in such registration) upon the request of the Company
and the underwriters managing the underwritten
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offering of the Company's securities, not to publicly sell, make any short sale
of, loan, grant any option for the purchase of, or otherwise dispose of any
Registrable Securities (other than those included in the registration) without
the prior written consent of the Company and such underwriters for such period
of time (not to exceed 180 days in the case of the Company's initial public
offering) from the effective date of such registration as the Company and the
underwriters may specify.
Section 9. Information by Holder. The Holder or Holders of Registrable
Securities included in any registration shall promptly furnish to the Company
such information regarding such Holder or Holders and the distribution proposed
by such Holder or Holders as the Company may request in writing and as shall be
required in connection with any registration' referred to herein.
Section 10. Rule 144 and 144A Reporting. With a view to making
available to Holders of Registrable Securities 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 at all times
after ninety (90) days after the effective date of the first registration filed
by the Company for an offering of its securities to the general public to:
(a) make and keep public information available, as those terms
are understood and defined in Rule 144 and Rule 144A;
(b) use its best efforts to 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) furnish to each Holder so long as such Holder owns any
Registrable Securities forthwith, upon written request, a written statement by
the Company that it has complied with the reporting requirements of Rule 144,
the Securities Act and the Exchange Act (to the extent that it is then subject
to any such reporting requirements), a copy of the most recent annual and
quarterly report of the Company, and such other reports and documents filed by
the Company under the Exchange Act as may be reasonably requested by such Holder
in connection with availing the Holder of any rule or regulation of the
Commission permitting the selling of such securities without registration.
Section 11. Transfer of Registration Rights. The rights to cause the
Company to register Registrable Securities of a Holder and keep information
available granted to a Holder by the Company under Sections 2, 3, and 4, may be
assigned by a Holder to any partner or shareholder of such Holder, to one or
more affiliated partnerships managed by such Holder, any other Holder, to any
"Affiliate" of the Holder as that term is defined by the Securities Purchase
Agreement; to any "Qualified Institutional Buyer" as that term is defined by the
Note executed as of the date hereof; or to a transferee or assignee who receives
at least 50% of the shares of Common Stock which are Registrable Securities;
provided, that the Company is given written notice by the Holder at the time of
or within a reasonable time after said transfer, stating the name and address of
said transferee or assignee and identifying the securities with respect to which
such registration rights are being assigned, and that said transferee or
assignee agrees in
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writing to be bound by the terms and provisions of this Agreement as if an
original signatory thereto.
Section 12. Termination of Rights.
(a) The rights of any particular Holder to cause the Company
to register securities under Sections 2, 3 and 4 shall terminate with respect to
such Holder at such time as such Holder is able to dispose of all of his
Registrable Securities in one twelve-month period pursuant to the provisions of
Rule 144.
(b) Notwithstanding the provisions of paragraph (a) of this
Section 12, all rights of any particular Holder under this Agreement shall
terminate at 5:00 p.m. Eastern time on August 25, 2003.
Section 13. Miscellaneous.
(a) Amendments. This Agreement constitutes the entire
agreement of the parties within respect to the subject matter hereof and may be
amended or modified only by a writing signed by the Company and the Required
Holders of the Registrable Securities (as the term is defined in the Securities
Purchase Agreement), as constituted from time to time. The Holders hereby
consent to future amendments to this Agreement that permit future investors to
be made parties hereto and to become Holders of Registrable Securities.
(b) Counterparts. This Agreement may be executed in any number
of counterparts, all of which shall constitute a single instrument.
(c) Notices, Etc. All notices and other communications
required or permitted hereunder shall be in writing and may be sent initially by
facsimile transmission and shall be mailed by registered or certified mail,
postage prepaid, or otherwise delivered by hand or by messenger, addressed (i)
if to a Holder, at such Holder's address set forth on the books of the Company,
or at such other address as such Holder shall have furnished to the Company in
writing, or (ii) if to any other holder of any Registrable Securities, at such
address as such holder shall have furnished the Company in writing, or, until
any such holder so furnishes an address to the Company, then to and at the
address of the last holder of such securities who has so furnished an address to
the Company, or (iii) if to the Company, one copy should be sent to the
Company's current address at 1871 X.X. Xxxxxx Blvd., Issaquah, Washington, or at
such other address as the Company shall have furnished to the Holders. All such
notices shall be effective and deemed duly given when received or when attempted
delivery is refused.
(d) Non-Public Information. Any other provisions of this
agreement to the contrary notwithstanding, the Company's obligation to file a
registration statement, or cause such registration statement to become and
remain effective, shall be suspended for a period not to exceed 30 days (and for
periods not exceeding, in the aggregate, 60 days in any 24-month period) if
there exists at the time material non-public information relating to the Company
which, in the reasonable opinion of the Company, should not be disclosed.
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(e) Severability. If any provision of this Agreement shall be
held to be illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall not in any manner
affect or render illegal, invalid or unenforceable any other provision of this
Agreement, and this Agreement shall be carried out as if any such illegal,
invalid or unenforceable provision were not contained herein.
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(f) Governing Law. This Agreement shall be governed by and
construed under the laws of the State of New York without regard to principles
of conflict of law.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first set forth above.
INTRACEL CORPORATION
By: /s/ XXXXX X. XxXXXXXX
------------------------------
Name: Xxxxx X. XxXxxxxx
Title: President and Chief
Executive Officer
Investors
Northstar High Total Return Fund
By: /s/ XXXXXXX X. XXXXXX
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
Northstar High Total Return Fund II
By: /s/ XXXXXXX X. XXXXXX
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
Northstar High Yield Fund
By: /s/ XXXXXXX X. XXXXXX
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
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Northstar Strategic Income Fund
By: /s/ XXXXXXX X. XXXXXX
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
Northstar Balance Sheet Opportunities
By: /s/ XXXXXXX X. XXXXXX
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
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