Exhibit 10.29
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is
made as of the 7th day of May, 1999, by and between SangStat Medical
Corporation, a Delaware corporation ("SangStat"), and Xxxxxx
Laboratories, an Illinois corporation ("Xxxxxx").
RECITALS
WHEREAS, SangStat and Abbott are parties to the Stock Purchase
Agreement, dated the Closing Date (together with all exhibits, schedules,
supplements and any amendments thereto, the "Stock Purchase Agreement");
WHEREAS, the execution and delivery of this Agreement is a
condition to the Closing of the Stock Purchase Agreement; and
WHEREAS, all terms not otherwise defined herein shall have the
same meanings ascribed to them in the Stock Purchase Agreement;
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Registration Rights SangStat covenants and agrees as follows:
1.1 Definitions. For purposes of this Agreement:
(a) The term "Act" means the Securities Act of 1933, as amended.
(b) The term "1934 Act" shall mean the Securities Exchange Act
of 1934, as amended.
(c) The term "Holder" means both Xxxxxx and any transferee
of Xxxxxx to whom registration rights granted under this Agreement
are assigned pursuant to Section 1.6 of this Agreement.
(d) The terms "register," "registered," and
"registration" refer to a registration effected by preparing and filing
a registration statement or similar document in compliance with the Act,
and the declaration or ordering of effectiveness of such registration
statement or document.
(e) The term "Registrable Securities" means
the Common Stock of SangStat issued to Xxxxxx pursuant to the Stock
Purchase Agreement, and any Common Stock of SangStat issued as a dividend
or other distribution with respect to such Common Stock.
(f) The term "Rule 144" shall mean Rule 144
promulgated under the Act, as amended, or any similar successor rule
thereto that may be promulgated by the SEC.
(g) The term "SEC" shall mean the Securities
and Exchange Commission.
1.2 Registration.
(a) If SangStat shall receive at any time after
November 15, 2001, a written request from a Holder that SangStat file a
registration statement under the Act covering the registration of all of
the Registrable Securities, then SangStat shall use all commercially
reasonable efforts to file within 45 days of such written request, at its
own expense (excluding any brokers fees or commissions) a registration
statement on Form S-3 (or such other registration statement as is then
available) and any related qualification or compliance with respect to all
of the Registrable Securities so as to permit or facilitate the sale and
distribution of all of the Registrable Securities. SangStat agrees to use
reasonable commercial efforts to accelerate the effectiveness of the
registration statement as soon as practicable after filing but no less
than within three (3) business days of any notification by the SEC of its
decision not to review the registration statement or its determination
that it has completed its review of the registration statement and has no
further comments for SangStat.
(b) SangStat agrees it will not include any
additional securities of SangStat other than the Registrable Securities
and will not permit any other person or entity to include any additional
securities in the registration statement to be filed pursuant to this
Section 1.
1.3 Obligations of SangStat. Whenever required under
this Section 1 to effect the registration of any Registrable Securities,
SangStat shall:
(a) Prepare and file with the SEC a registration
statement under the Act to register the resale of the Registrable
Securities by the Holder and use its best efforts to cause such
registration statement to become effective, and, subject to the provisions
below, use its best efforts to keep such registration statement effective
until the distribution contemplated in the registration statement has been
completed or until the provisions of Section 1.8 hereof are applicable.
If at any time after a registration statement becomes effective, SangStat
advises Xxxxxx in writing that the registration statement shall contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, or any prospectus comprising a part of such registration
statement shall contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they
were made, not misleading or the occurrence or existence of any pending
corporate development that, in the reasonable discretion of SangStat,
makes it appropriate to suspend the availability of the registration
statement and the related prospectus, SangStat shall give notice to Xxxxxx
that the availability of the registration statement is suspended and
Xxxxxx shall suspend any further sale of Registrable Securities pursuant
to the registration statement until Xxxxxx has been informed in writing
that the registration statement is available. With respect to pending
corporate developments, SangStat shall be entitled to exercise its right
to suspend the availability of the registration statement for a period
exceeding not more than sixty (60) days in any six (6) month period, not
to exceed in the aggregate one hundred twenty (120) days in any twelve
(12) month period. With respect to material misstatements or omissions,
SangStat shall use reasonable commercial efforts to amend the registration
statement to correct such misstatements or omissions as soon as reasonably
practicable.
(b) Subject to subsection 1.3(a), 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 Act
with respect to the disposition of all securities covered by such
registration statement.
(c) Furnish to the Holder such numbers of copies
of a prospectus, including a preliminary prospectus, in conformity with
the requirements of the Act, and such other documents as the Holder may
reasonably request in order to facilitate the disposition of Registrable
Securities owned by the Holder.
(d) Use its best efforts to register and qualify
the securities covered by such registration statement under such other
securities or Blue Sky laws of such jurisdictions as shall be reasonably
requested by the Holder; provided that SangStat 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, unless SangStat is already subject to service in such
jurisdiction and except as may be required by the Act.
(e) Amend its listing application with the
Nasdaq Stock Market and any other securities exchange on which similar
securities of SangStat are or become listed or quoted to include the
Registrable Securities as soon as practicable after the Closing Date.
(f) Notify the Holder, promptly after SangStat
shall have received notice thereof, of the date and time the registration
statement and each post-effective amendment thereto has become effective
or a supplement to any prospectus forming a part of such registration
statement has been filed.
1.4 Information from the Holder. It shall be a
condition precedent to the obligations of SangStat to take any action
pursuant to this Section 1 with respect to the Registrable Securities that
the Holder shall furnish to SangStat the information requested on Appendix
1.4 hereto, which shall include such information regarding the Holder, the
Registrable Securities held by it, and the intended method of disposition
of such securities, and such other information as shall be reasonably
requested by SangStat and required to effect the registration of the
Registrable Securities.
1.5 Expenses of Registration. All expenses of the
Holder, except underwriting discounts (if any) or commissions, including
(without limitation) all registration, filing and qualification fees,
printers' and accounting fees, fees and disbursements of counsel for
SangStat shall be borne by SangStat; provided, however, that SangStat
shall not be required to pay any legal and accounting fees incurred by the
Holder.
1.6 Assignment of Registration Rights. The rights to
cause SangStat to register Registrable Securities pursuant to this
Agreement may be assigned by Xxxxxx to a transferee of Registrable
Securities only if: (a) SangStat is, prior to such transfer, furnished
with written notice of the name and address of such transferee and the
Registrable Securities with respect to which such registration rights are
being assigned and a copy of a duly executed written instrument in form
reasonably satisfactory to SangStat by which such transferee assumes all
of the obligations and liabilities of its transferor hereunder and agrees
itself to be bound hereby; (b) immediately following such transfer the
disposition of such Registrable Securities by the transferee is restricted
under the Act; (c) such assignment includes all of the Registrable
Securities then held by Xxxxxx; provided, however, that such share
limitation shall not apply to transfers by Xxxxxx to its subsidiaries if
all such transferees or assignees agree in writing to appoint a single
representative as their attorney-in-fact for the purpose of receiving any
notices and exercising their rights under this Agreement, and (d) Xxxxxx
guarantees the performance of the Holder of its obligations under this
Agreement.
1.7 Indemnification.
(a) The Holder will indemnify and hold harmless
SangStat, as well as each of its directors, each of its officers who has
signed the registration statement, affiliates, each person, if any, who
controls SangStat within the meaning of the Act, against any losses,
claims, damages, or liabilities (joint or several) to which any of the
foregoing persons may become subject (under the Act, the 1934 Act or
otherwise), insofar as such losses, claims, damages or liabilities (or
actions or proceedings in respect thereto) arise out of or are based upon
omissions or violations (collectively, a "Violation"): (i) any untrue
statement or alleged untrue statement of a material fact contained in such
registration statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements thereto,
(ii) 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, or (iii) any violation or alleged violation by SangStat of
the Act, the 1934 Act, any rule or regulation promulgated under the Act or
the 1934 Act or other federal or state law, in each case to the extent
that such Violation is contained in any written information furnished by
the Holder for inclusion in such registration; and the Holder will pay, as
incurred, any legal or other expenses reasonably incurred by any person
intended to be indemnified pursuant to this subsection 1.7(a), in
connection with investigating or defending any such loss, claim, damage,
liability, or action; provided, however, that the indemnity agreement
contained in this subsection 1.7(a) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability, action or
proceeding if such settlement is effected without the consent of the
Holder, which consent shall not be unreasonably withheld; provided, that,
in no event shall any indemnity under this subsection 1.7(a) exceed the
net proceeds from the offering received by such Holder.
(b) SangStat will indemnify and hold harmless a
Holder, as well as each of such Holders's officers, directors, partners,
legal counsel, affiliates and persons controlling Holder, against any
losses, claims, damages, or liabilities (joint or several) to which any of
the foregoing persons may be subject (under the Act, the 1934 Act or
otherwise), insofar as such losses, claims, damages or liabilities (or
actions or proceedings in respect thereto) arise out of or are based upon
any of the following statements, omissions or violations (collectively, a
"Violation"): (i) any untrue statement or alleged untrue statement of a
material fact contained in a registration statement, including any
preliminary prospectus or final prospectus contained therein or any
amendments or supplements thereto, (ii) 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, or (iii) any
violation or alleged violation by the Holder of the Act, the 1934 Act or
any rule or regulation promulgated under the Act or the 1934 Act or other
federal or state law, in each case to the extent that such Violation is
based on any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with any written
information furnished by SangStat in an instrument duly executed by the
Holder; and SangStat will pay, as incurred, any legal or other expenses
reasonably incurred by any person intended to be indemnified pursuant to
this subsection 1.7(b) in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
indemnity agreement contained in this subsection 1.7(b) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability,
action, or proceeding if settlement is effected without the consent of
SangStat, which consent shall not be unreasonably withheld.
(c) Promptly after receipt by an indemnified
party under this Section 1.7 of notice of the commencement of any action
(including any governmental action), such indemnified party will, if a
claim in respect thereof is to be made against any indemnifying party
under this Section 1.7, deliver to the indemnifying party a written notice
of the commencement thereof and the indemnifying party shall have the
right to participate in at the indemnifying party's expense, and, to the
extent the indemnifying party so desires, jointly with any other
indemnifying party similarly noticed, to assume the defense thereof with
counsel mutually satisfactory to the parties at the indemnifying party's
expense; provided, however, 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 conflicts of
interests between such indemnified party and any other party represented
by such counsel in such proceeding. No indemnifying party, in defense of
any such claim or litigation, shall, except with the consent of each
indemnified party, consent to entry of any judgement or enter into any
settlement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to the indemnified party of a release
from all liability in respect to such claim or litigation.
(d) If the indemnification provided for in this
Section 1.7 is unavailable or insufficient to hold harmless 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 hereunder, 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 in connection with the
statements or omissions that resulted in such loss, liability, claim,
damage, or expense as well as any other relevant equitable considerations.
The relative fault of the indemnifying party and of the indemnified party
shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission 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 provisions of this
paragraph (d), Holder shall not be required to contribute any amount in
excess of the amount of net proceeds received by such Holder from the sale
of such Holder's Registrable Securities. Moreover, no person or entity
guilty of fraudulent misrepresentation within the meaning of Section 11(f)
of the Act shall be entitled to contribution from any person or entity who
was not guilty of such fraudulent misrepresentation.
(e) The obligations of a Holder under this
Section 1.7 shall survive the completion of any offering of Registrable
Securities in a registration statement under this Agreement and shall be
in addition to any other liability which SangStat and the Holder may have.
(f) Notwithstanding the foregoing, to the extent
that the provisions on indemnification and contribution contained in an
underwriting agreement (if any) entered into in connection with the
underwritten public offering are in conflict with the foregoing
provisions, the provisions in the underwriting agreement shall control.
1.8 Termination of Registration Rights. The
registration rights provided in this Section 1 shall terminate if all
shares of Registrable Securities may be sold pursuant to Rule 144 in any
three (3) month period. Upon the termination of registration rights
pursuant to this Section 1.8, SangStat shall have the right to withdraw
the registration statement, or any portion thereof, covering the
Registrable Securities.
1.9 Legends. Each certificate representing the Common
Stock purchased pursuant to the terms of the Stock Purchase Agreement,
shall be stamped or otherwise imprinted with a legend substantially in the
following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933 OR ANY STATE SECURITIES LAWS AND MAY NOT BE TRANSFERRED OR
OTHERWISE DISPOSED OF UNLESS IT HAS BEEN REGISTERED UNDER SUCH ACT AND ALL
SUCH APPLICABLE LAWS OR AN EXEMPTION FROM REGISTRATION IS AVAILABLE."
A certificate shall not bear such legend if in the opinion of counsel
reasonably satisfactory to SangStat the securities being sold thereby may
be publicly sold without registration under the Securities Act and any
applicable state securities laws.
1.10 Reports Under Securities Exchange Act of 1934. With a view to
making available to a Holder the benefits of Rule 144 promulgated under
the Act and any other rule or regulation of the SEC that may at any time
permit a Holder to sell securities of SangStat to the public without
registration or pursuant to a registration on Form S-3, SangStat agrees
to:
(a) make and keep public information available,
as those terms are understood and defined in SEC Rule 144, at all times;
(b) file with the SEC in a timely manner all
reports and other documents required of SangStat under the Act and the
1934 Act; and
(c) furnish to the Holder, so long as the Holder
owns any Registrable Securities, forthwith upon request (i) a written
statement by SangStat that it has complied with the reporting requirements
of SEC Rule 144, the Act and the 1934 Act, or that it qualifies as a
registrant whose securities may be resold pursuant to Form S-3, (ii) a
copy of the most recent annual or quarterly report of SangStat and such
other reports and documents so filed by SangStat, and (iii) such other
information as may be reasonably requested in availing the Holder of any
rule or regulation of the SEC that permits the selling of any such
securities without registration or pursuant to such form.
2. Miscellaneous.
2.1 Amendment. This Agreement may only be amended by
a writing signed by the Holder and SangStat.
2.2 Entire Agreement; Controlling Document. This
Agreement constitutes the entire agreement of the parties with respect to
the subject matter hereof and supersedes any and all prior negotiations,
correspondence and understandings between the parties with respect to the
subject matter hereof, whether oral or in writing.
2.3 Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
2.4 Headings. The section headings used in this
Agreement are intended principally for convenience and shall not by
themselves determine the rights and obligations of the parties to this
Agreement.
2.5 Delay and Waiver. No delay on the part of either
party in exercising any right under this Agreement shall operate as a
waiver of such right. The waiver by either party of any other term or
condition of this Agreement shall not be construed as a waiver of a
subsequent breach or failure of the same term or condition or a waiver of
any other term or condition contained in this Agreement.
2.6 Governing Law. This Agreement shall be governed
by and construed under the laws of the State of Delaware without regard to
conflicts of law principles.
2.7 Titles and Subtitles. The titles and subtitles
used in this Agreement are used for convenience only and are not to be
considered in construing or interpreting this Agreement.
2.8 Expenses. Each party shall pay all costs and
expenses that it incurs with respect to the negotiation, execution, and
delivery of this Agreement.
2.9 Alternative Dispute Resolution. The parties agree
to effectuate all reasonable efforts to resolve in an amicable manner any
and all disputes between them in connection with this Agreement. The
parties agree that any dispute that arises in connection with this
Agreement, which cannot be amicably resolved informally shall be finally
settled as set forth in the Alternative Dispute Resolution provisions of
Exhibit E to the Co-Promotion Agreement between Xxxxxx and SangStat dated
as of May 7, 1999.
2.10 Amendments and Waivers. Any term of this
Agreement may be amended and the observance of any term of this Agreement
may be waived (either generally or in a particular instance and either
retroactively or prospectively) only with the written consent of SangStat
and the Holder.
2.11 Severability. If one or more provisions of this
Agreement are held to be unenforceable under applicable law, such
provision shall be excluded from this Agreement and the balance of the
Agreement shall be interpreted as if such provision were so excluded and
shall be enforceable in accordance with its terms.
2.12 Further Assurances. SangStat and Xxxxxx shall do
and perform or cause to be performed all such further acts and things and
shall execute and deliver all such other agreements, certificates,
instruments or documents as the other party may reasonably request from
time to time in order to carry out the intent and purposes of this
Agreement and the consummation of the transactions contemplated by the
Agreement. Neither SangStat nor Xxxxxx shall voluntarily undertake any
course of action inconsistent with the satisfaction of the requirements
applicable to them as set forth in this Agreement, and each shall promptly
do all such acts and take all such measures as may be appropriate to
enable them to perform as early as practicable their obligations under
this Agreement.
2.13 No Third Party Rights. Nothing in this Agreement
shall create or be deemed to create any rights in any person or entity not
a party to his Agreement.
2.14 Mutual Drafting. This Agreement is the joint
product of SangStat and Xxxxxx and each provision of the Agreement has
been subject to consultation, negotiation and agreement of SangStat and
Xxxxxx and their respective legal counsel and advisers and any rule of
construction that a document shall be interpreted or construed against the
drafting party shall not apply.
IN WITNESS WHEREOF, the parties have executed this
Registration Rights Agreement as of the date first above written.
SANGSTAT MEDICAL CORPORATION
By:
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Address: 0000 Xxxxx Xxxxx
Xxxxx Xxxx, XX 00000
XXXXXX LABORATORIES:
By:
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Name:
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Title:
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Address:
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APPENDIX 1.4
XXXXXX INFORMATION:
All information furnished below by the undersigned for use in the
Registration Statement on Form S-3 is, and on the date such shares
registered thereunder, will be true, correct, and complete in all material
respects, and does not, and on the date on which the undersigned sells
such shares, will not, contain any untrue statement of a material fact or
omit to state any material fact necessary to make such information not
misleading. By completing and returning this information statement, the
undersigned hereby consents to the use of its, address, and share
ownership information in the Form S-3 of SangStat Medical Corporation.
A. Date.
Fill in Date: __________________________
B. Name. Print:
Print and sign name or names ______________________________
exactly as name or names appear on
share certificate. If certificate ______________________________
is held in more than one name,
all must sign.
Sign:
______________________________
______________________________
C. Address.
Fill in your address:
______________________________
______________________________
______________________________
D. Stock Owned.
Fill in number of shares of Of Record Beneficially
Common Stock owned of record
and beneficially.
_____________________ ____________________
E. Aggregate Number of Shares of Common Stock to be sold:
_____________ Shares
F. Status.
The undersigned is an individual ( ), partnership ( ), corporation
( ), or other, as more fully described below ( ). The undersigned is
not acting in a fiduciary capacity or as a nominee in selling shares in
the public offering, except as indicated below.
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