EXHIBIT 10.12
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is entered into as of February 23, 2001,
by and between Silicon Valley Bank ("Purchaser") and TolerRx, Inc., a Delaware
corporation (the "Company").
RECITALS
A. Concurrently with the execution of this Agreement, Purchaser is
acquiring from the Company a Warrant to Purchase Stock (the "Warrants") pursuant
to which Purchaser has rights to acquire from the Company the Shares (as defined
in the Warrant), which Shares when issued shall be shares of the Company's
common stock, $.001 par value per share ("Common Stock").
B. By this Agreement, Purchaser and the Company desire to set forth the
registration rights of the Conversion Shares or the Shares all as provided
herein.
NOW, THEREFORE, in consideration of the premises and the mutual
promises, covenants and conditions hereinafter set forth, the parties hereto
mutually agree as follows:
1. REGISTRATION RIGHTS. The Company covenants and agrees as follows:
1.1 DEFINITIONS. For purposes of this Section 1:
(a) The term "register," "registered," and "registration"
refer to a registration effected by preparing and filing a registration
statement or similar document in compliance with the Securities Act of 1933, as
amended, and the rules and regulations thereunder (the "Securities Act"), and
the declaration or ordering of effectiveness of such registration statement or
document;
(b) The term "Registrable Securities" means Common Stock
issuable upon the conversion or exercise of the Warrants.
(c) The terms "Holder" or "Holders" means Purchaser and its
qualifying transferees under subsection 1.9 hereof who hold Registrable
Securities.
(d) The term "SEC" means the Securities and Exchange
Commission.
(e) The terms "Form S-1," "Form S-3" etc. shall mean those
forms with such designations as are required by the SEC and any successor or
replacement forms adopted by the SEC.
1.2 COMPANY REGISTRATION.
(a) REGISTRATION. 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 on
Form S-1, Form S-8 relating solely to employee stock option or purchase plans or
on Form S-4 relating solely to an SEC Rule 145 transaction, the Company will:
(i) promptly give to each Holder written notice thereof
(which shall ?? a list of the jurisdictions in which the Company intends to
attempt to qualify such securities under applicable blue sky or other state
securities laws); and
(ii) include in such registration (and qualifications),
and in any ?? writing involved therein, all the Registrable Securities specified
in a written request or requests, made
within 30 days after receipt of such written notice from the Company, by any
Holder or Holders, except as set forth in subsection 1.2(c) below.
(b) UNDERWRITING. If the registration of which the Company
gives notice is for a registered public offering involving a firm-commitment
underwriting, the Company shall so advise the Holders as a part of the written
notice given pursuant to subsection 1.2(a)(i). In such event the right of any
Holder to registration pursuant to this subsection 1.2 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 shareholders
distributing their securities through such underwriting) enter into an
underwriting agreement in customary form (and not inconsistent with the terms
hereof) with the underwriter or underwriters selected for such underwriting by
the Company.
(c) In the case of any registration of Common Stock by the
Company in a firm-commitment underwriting, if the managing underwriters give
written advice to the Company that marketing factors require a limitation on the
number of shares of Common Stock (or other securities convertible into or
exercisable or exchangeable for Common Stock) to be offered and sold by
stockholders of Company in such offering, there shall be included in the
offering: (i) first, all securities proposed by Company to be sold for its
account; and (ii) second, that number of shares of Common Stock, if any,
requested to be included in such registration statement by Holders and by other
stockholders of the Company having contractual rights to include shares in such
registration, on a pro rata basis based upon the number of shares of Common
Stock each Holder and each such other stockholder beneficially owns.
1.3 Intentionally Omitted.
1.4 EXPENSES OF REGISTRATION. All expenses incurred in connection
with any registration, qualification or compliance pursuant to this Section 1
including without limitation, all registration, filing and qualification fees,
printing expenses, underwriting fees, discounts and commissions, fees and
disbursements of counsel for the Company and expenses of any special audits
incidental to or required by such registration, shall be borne by the Company.
All expenses of any registered offering not otherwise borne by the Company will
be borne pro rata among the Holders, any other shareholders of the Company
participating in such offering and the Company.
1.5 REGISTRATION PROCEDURES. In the case of each registration,
qualification or compliance effected by the Company pursuant to this
Registration Rights Agreement, the Company will keep each Holder participating
therein advised in writing as to the initiation of each registration,
qualification and compliance and as to the completion thereof. At its expense
the Company will:
(a) Prepare and file with the SEC a registration statement
with respect to such Registrable Securities and use reasonable efforts to cause
such registration statement to become effective, and, upon the request of the
Holders of a majority of the Registrable Securities registered thereunder, keep
such registration statement effective for up to 120 days (the "Effective
Period").
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement.
(c) Furnish to the Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as they may
reasonably request in order to facilitate the disposition of Registrable
Securities owned by them.
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(d) Use reasonable efforts to register and qualify the
securities covered by such registration statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably requested by the
Holders, 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.
(e) In the event of any underwritten public offering, enter
into and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement provided that all other shareholders of the
Company participating in such offering do the same.
(f) Notify each Holder 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 or 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.
1.6 INDEMNIFICATION.
(a) The Company will indemnify each Holder of Registrable
Securities and each of its officers, directors and partners, and each person
controlling such Holder within the meaning of Section 15 of the Securities Act
("controlling person"), and each underwriter, if any, and each controlling
person of such underwriter, with respect to which registration, qualification or
compliance of Registrable Securities has been effected pursuant to this
Registration Rights Agreement, against all claims, losses, expenses, damages and
liabilities (or actions in respect thereto) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in
any prospectus, offering circular or other document (including any related
registration statement, notification or the like) incident to any such
registration, qualification or compliance, or based on any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statement therein not misleading, or any violation or
alleged violation by the Company of the Securities Act, the Securities Exchange
Act of 1934, as amended, and the rules and regulations thereunder ("Exchange
Act") or any state securities law applicable to the Company or any rule or
regulation promulgated any such state law 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, within a
reasonable amount of time after incurred 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, HOWEVER, that the
indemnity agreement contained in this subsection 1.6(a) shall not apply to
amounts paid in settlement of any such claim, loss, damage, liability, or action
if such settlement is effected without the consent of the Company (which consent
shall not be unreasonably withheld or delayed); AND PROVIDED FURTHER, that 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 made in reliance upon and conformity with written information furnished
to the Company by an instrument duly executed by such Holder 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 the
Company, each of its directors, officers and controlling persons, each
underwriter, if any, of the Company's securities covered by such a registration
statement, and each controlling person of such underwriter, and each other
Holder, each of its officers, directors, partners and controlling persons,
against all claims, losses, expenses, damages and liabilities (or actions in
respect thereof) arising out of or based on
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any untrue statement (or alleged untrue statement) of a material fact contained
in any such registration statement, prospectus, offering circular or other
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 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,
that the indemnity agreement contained in this subsection 1.6(b) shall not apply
to amounts paid in settlement of any such claim, loss, damage, liability or
action if such settlement is effected without the consent of the Holder, (which
consent shall not be unreasonably withheld or delayed); AND PROVIDED FURTHER,
that the total amount for which any Holder shall be liable under this subsection
1.6(b) shall not in any event exceed the aggregate net proceeds received by such
Holder from the sale of Registrable Securities held by such Holder in such
registration.
(c) Each party entitled to indemnification under this
subsection 1.6 (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 claim 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
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
prejudice to the Indemnifying Party; and provided further, that an Indemnified
Party (together with all other Indemnified Parties which may be represented
without conflict by one counsel) shall have the right to retain one separate
counsel, with the fees and expenses to be paid by the Indemnifying Party, if
representation of such Indemnified Party by the counsel retained by the
Indemnifying Party would be inappropriate due to actual or potential differing
interests between such Indemnified Party and any other party represented by such
counsel in such proceeding. 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 to such
claim or litigation.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section 1.6 is
due in accordance with its terms but for any reason is judicially determined to
be unenforceable against the Indemnifying Party or otherwise unavailable to the
Indemnified Party in respect to any losses, claims, damages and liabilities
referred to herein, then the Indemnifying Party shall, in lieu of indemnifying
such Indemnified Party, contribute to the amount paid or payable by such
Indemnified party as a result of such losses, claims, damages or liabilities
to which such party may be subject in such proportion as is appropriate to
reflect the relative fault of the Company, on the one hand, and the selling
Holders, on the other hand, in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative fault of the Company and such
selling Holders shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement, or omission or alleged omission, of
material fact related to the information supplied by the Company or such selling
Holders and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
Holders agree that it would not be just and equitable if contribution pursuant
to this Section 1.6(d) were determined by pro rata allocation or any other
method of allocation which does not take account of the equitable considerations
referred to above. Notwithstanding the provisions of this Section 1.6(d), (i) in
no case shall any Holder be liable or responsible for any amount in excess of
the net proceeds received
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by such Holder from the sale of Registrable Securities pursuant to such
registration; and (ii) no person adjudged guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not adjudged guilty of such fraudulent
misrepresentation. Any party entitled to contribution shall, promptly after
receipt of notice of commencement of any action, suit or proceeding against such
party in respect of which a claim for contribution may be made against another
party or parties under this Section 1.6(d), notify such party or parties from
whom contribution may be sought, but the omission so to notify such party or
parties from whom contribution may be sought shall not, in the absence of actual
prejudice to such party or parties, relieve it or them from such contribution
obligation. No party shall be liable for contribution with respect to any
action, suit, proceeding or claim settled without its written consent.
1.7 INFORMATION BY HOLDER. Any 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,
qualification or compliance referred to herein.
1.8 RULE 144 REPORTING AND FORM S-3. With a view to making
available to Holders the benefits of certain rules and regulations of the SEC
which may permit the sale of the Registrable Securities to the public without
registration or pursuant to a registration on Form S-3, the Company agrees at
all times to:
(a) make and keep public information available, as
those terms are understood and defined in SEC Rule 144, after 90 days after the
effective date of the first registration filed by the Company for an offering of
its securities to the general public;
(b) take such action, including the voluntary
registration of its Common Stock under Section 12 of the Exchange Act, as is
necessary to enable the Holders to utilize Form S-3 for the sale of their
Registrable Securities, such action to be taken as soon as practicable after
the end of the fiscal year in which the first registration statement filed by
the Company for the offering of its securities to the general public is declared
effective;
(c) file with the SEC in a timely manner all reports
and other documents required of the Company under the Securities Act and the
Exchange Act (at any time after it has become subject to such reporting
requirements); and
(d) so long as a Holder owns any Registrable
Securities, to furnish to such Holder forthwith upon request a written statement
by the Company as to its compliance with the reporting requirements of said Rule
144 (at any time after 90 days after the effective date of the first
registration statement filed by the Company for an offering of its securities to
the general public), and of the Securities Act and the Exchange Act (at any time
after it has become subject to such reporting requirements), or that it qualify
as a registrant whose securities may be resold pursuant to S-3 (at any time
after it so qualifies), a copy of the most recent annual or quarterly report of
the Company, and such other reports and documents so filed by the Company as the
Holder may reasonably request in complying with any rule or regulation of the
SEC allowing the Holder to sell any such securities without registration or
pursuant to such form.
1.9 TRANSFER OF REGISTRATION RIGHTS. Holders' rights to cause
the Company to register their securities and keep information available, granted
to them by the Company under subsections 1.2, 1.3 and 1.8 may be assigned to a
transferee or assignee of a Holder's Registrable Securities not sold to the
public, provided, that the Company is given written notice by such 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.
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2. GENERAL.
2.1 WAIVERS AND AMENDMENTS. With the written consent of the record
or beneficial holders of at least a majority of the Registrable Securities, the
obligations of the Company and the rights of the Holders of the Registrable
Securities under this agreement may be waived (either generally or in a
particular instance, either retroactively or prospectively, and either for a
specified period of time or indefinitely), and with the same consent the
Company, when authorized by resolution of its Board of Directors, may enter into
a supplementary agreement for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement;
provided, however, that no such modification, amendment or waiver shall reduce
the aforesaid percentage of Registrable Securities without the consent of all of
the Holders of the Registrable Securities. Upon the effectuation of each such
waiver, consent, agreement of amendment or modification, the Company shall
promptly give written notice thereof to the record holders of the Registrable
Securities who have not previously consented thereto in writing. This Agreement
or any provision hereof may be changed, waived, discharged or terminated only by
a statement in writing signed by the party against which enforcement of the
change, waiver, discharge or termination is sought, except to the extent
provided in this subsection 2.1.
2.2 GOVERNING LAW. This Agreement shall be governed in all respects
by the laws of the Commonwealth of Massachusetts as such laws are applied to
agreements between Massachusetts residents entered into and to be performed
entirely within Massachusetts.
2.3 SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto.
2.4 ENTIRE AGREEMENT. Except as set forth below, this Agreement and
the other documents delivered pursuant hereto constitute the full and entire
understanding and agreement between the parties with regard to the subjects
hereof and thereof.
2.5 NOTICES, ETC. All notices and other communications required or
permitted hereunder shall be in writing and shall be mailed by first class mail,
postage prepaid, certified or registered mail, return receipt requested,
addressed (a) if to Holder, at such Holder's address(es) as set forth below, or
at such other address(es) as such Holder shall have furnished to the Company in
writing, or (b) if to the Company, at the Company's address set forth below, or
at such other address as the Company shall have furnished to the Holder in
writing.
2.6 SEVERABILITY. In case any provision of this Agreement shall be
invalid, illegal, or unenforceable, the validity, legality and enforceability of
the remaining provisions of this Agreement or any provision of the other
Agreements shall not in any way be affected or impaired thereby.
2.7 TITLES AND SUBTITLES. The titles of the sections and subsections
of this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
2.8 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be executed by their duly authorized representatives as of the date
first above written.
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PURCHASER COMPANY
SILICON VALLEY BANK TOLERRX, INC.
By: /s/ Xxxxxxx Xxxxxxxx By: /s/ X. X. Xxxxxxx
----------------------------------- ------------------------------
Name: Xxxxxxx Xxxxxxxx Name: X. X. Xxxxxxx
--------------------------------- ----------------------------
Title: Vice President Title: CEO
-------------------------------- ---------------------------
Address: 0000 Xxxxxxxxxx, Xx. Address: 000 Xxxx Xxx.
------------------------------ -------------------------
Xxxxxx, XX 00000 Xxxxxxxxx, XX 00000
copy to: Silicon Valley Bank
Treasury Department
0000 Xxxxxx Xxxxx, XX-000
Xxxxx Xxxxx, XX 00000
6215162
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