EXHIBIT 10.1
REGISTRATION RIGHTS AGREEMENT
AGREEMENT dated as of December 8, 1995 among Progenics Pharmaceuticals,
Inc., a Delaware corporation (the "Company"), and the undersigned purchaser
(the "Purchaser") of shares of the Company's Series C Preferred Stock, par
value $.001 per share (the "Series C Stock").
WHEREAS, the Company has outstanding shares of its common stock, par
value $.01 per share (the "Common Stock"), Series A Preferred Stock, par
value $.001 per share (the "Series A Stock") and Series B Preferred Stock,
par value $.001 per share ("Series B Stock"); and
WHEREAS, the Company has agreed to grant certain registration rights to
the Purchaser to induce the Purchaser to subscribe for the Series C Stock.
NOW, THEREFORE, for valuable consideration, receipt of which is hereby
acknowledged by each party, the parties hereto agree as follows:
As used herein, the term the "Securities Act" refers to the Securities
Act of 1933 (and any successor law), and the Rules and Regulations
thereunder, all as amended from time to time, and the term "Shares" refers to
the shares of Common Stock, Series A Stock, Series B Stock and Series C Stock
issued as of the date hereof or issuable upon exercise or conversion of or in
exchange for securities outstanding as of the date hereof or issued under any
stock option plans or warrants outstanding as of the date hereof (and any
other shares or equity securities distributed on or in respect of or in
substitution for or upon conversion of such Shares), whether or not they have
been sold or transferred, other than any that shall have been sold or
transferred pursuant to an effective registration statement, or pursuant to
Rule 144, under the Securities Act.
1. REGISTRATION UPON REQUEST. (a) Commencing on the first anniversary of
the date on which the Company's first registration of common stock under the
Securities Act becomes effective (the "Effective Date"), the holders of 20%
or more of the Shares shall have the right to two demand in writing
registrations on Forms S-1 or S-2 or any successor forms, at the Company's
expense, provided that the proposed public offering shall be a Qualified
Public Offering. For purposes of this Agreement, a Qualified Public Offering
shall be defined as a public offering of securities, underwritten on a firm
commitment basis, at a price per share to the public of at least $5.00 (to be
appropriately adjusted for stock splits, stock dividends, and other types of
recapitalizations) and an aggregate offering price to the public of at least
$5,000,000.
(b) The holders of 20% or more of the Shares shall have the right to
demand an unlimited number of registrations on Form S-3 or any successor
form, if the Company is eligible to use Form S-3, provided that the aggregate
proposed public offering price of the securities to be included in such
registration shall be at least $1,000,000 and provided further that the
effectiveness of any such registration is separated by at least six months
from the effectiveness of the prior registration.
(c) Following receipt of any notice delivered in compliance with Section
l(a) (a "Demand"), the Company shall within 10 days thereafter deliver
written notice of the Demand to all holders of Shares from whom a Demand has
not been received and shall promptly use its best efforts to register under
the Securities Act, for sale in a public offering, the number of Shares
specified in such Demand (and in all written requests for inclusion of
additional Shares from such other holders of Shares received by the Company
within 20 days after notice of the Demand to such other holders). The Company
may designate, subject to the approval of a majority in interest of the
participating holders of Shares, which approval shall not be unreasonably
withheld or delayed, the managing underwriter or underwriters, which
underwriter(s) shall be of national standing. The Company shall be deemed to
have satisfied an obligation to register Shares pursuant to a Demand only
when a registration statement covering the Shares specified in the Demand and
any written requests delivered under this Section l(c) shall have become
effective and the period of distribution of the Shares contemplated thereby
shall have been completed.
(d) If a registration is requested under this Section 1, the Company
shall include in such registration all Shares that the holders thereof shall
specify in the Demand. The Company shall be entitled to include in any
registration statement filed in response to a Demand made in accordance with
this Section 1, securities to be sold by the Company for its own account or
the account of any other securityholders. However, the managing
underwriter(s) shall have the right to exclude securities from such
registration if the managing underwriter(s) advise the Company in writing
that such exclusion is necessary to avoid interfering with the successful
marketing of the underwritten public offering. If the managing underwriter(s)
shall advise the Company and the holders in writing of the need to exclude
securities, then securities to be registered and sold pursuant to such
registration statement shall be excluded as follows: (i) first, securities
held by securityholders other than the shareholders demanding registration
pursuant to Section 1 hereof; (ii) next, securities to be sold for the
account of the Company; and (iii) last, the Shares requested to be included
in the registration by the demanding shareholders pursuant to this Section 1.
If securities are to be excluded from the registration statement, then the
exclusion shall be made PRO RATA among the holders in each of the foregoing
categories in proportion to the securities as to which each holder requested
registration, with all of the securities in a category to be excluded before
any securities in the next category are excluded. If any Shares are excluded
from the registration pursuant to this subsection, then such registration
shall not be counted as a demand registration under Section l(a).
2. INCIDENTAL REGISTRATION. If at any time after the Effective Date the
Company proposes to register any of its securities under the Securities Act
for its own account or the account of any securityholders (other than any
registration pursuant to Paragraph 1 or any registration of an offering
solely to employees of the Company and its subsidiaries or any registration
on Form S-4 or a successor form), it shall promptly give written notice to
each holder of Shares of its intention to do so, and the Company shall
include in such registration all Shares that the holders thereof shall
specify in a written notice delivered to the Company within 30 days after
their receipt of the Company's notice of the proposed filing of the
registration statement. However, the managing underwriter(s) shall have the
right to exclude Shares from such registration if the managing
underwriter(s) advise the Company in writing that such exclusion is necessary
to avoid interfering with the successful marketing of the underwritten
portion of the
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public offering. If the managing underwriter(s) shall advise the Company and
the holders in writing of the need to exclude securities, then securities to
be registered and sold pursuant to such registration statement shall be
excluded as follows: (i) first, the Shares requested to be included in the
registration statement pursuant to this Section 2; (ii) next, securities held
by securityholders other that the holders of Shares (including shares, if
any, of other holders for which the registration was initiated); and (iii)
last, securities to be sold for the account of the Company. If less than all
Shares requested to be included in the registration statement pursuant to
this Section 2 are to be excluded from the registration statement, then the
exclusion of Shares shall be made pro rata among the holders of Shares in
proportion to the respective numbers of Shares for which they requested
registration. The Company shall designate the managing underwriter or
underwriters, which underwriter(s) shall be of national standing.
3. CONDITIONS RELATING TO REGISTRATION OF SHARES. Registration of Shares
pursuant to Paragraph 1 or 2 shall be subject to the following:
(a) FILING OF AMENDMENTS. The Company shall file such amendments and
supplements to the registration statement and the related prospectus and take
such other action as may be necessary to keep the registration statement
effective and to comply with the Securities Act for such period, not
exceeding six months from the original effective date of the registration
statement, as a majority in interest of the participating holders of Shares
may request.
(b) BLUE SKY. The Company shall take such action under the securities
laws of such states as any participating holder of Shares shall reasonably
request; PROVIDED, HOWEVER, that the Company shall not be required to qualify
to do business as a foreign corporation, or to file any general consent to
service of process, in any state.
(c) EXPENSES. The Company shall bear the cost of all registrations,
including, but not limited to, all registration and filing fees, printing
expenses, roadshow expenses and fees, expenses and disbursements of counsel
and accountants for the Company (subject, however, to subparagraph (d)
below), except that each holder of Shares shall pay the fees and
disbursements of its own counsel and the underwriting fees and selling
commissions applicable to its Shares. The Company will furnish to the holders
of the Shares being registered, at the Company's sole cost and expense, such
number of prospectuses conforming to the requirements of the Securities Act,
and the rules and regulations thereunder, relating to the Shares subject
thereto as may from time to time be reasonably requested by such holders.
(d) AUDITS. The Company shall not be required to furnish any audited
financial statements at the request of any holder of Shares other than those
statements customarily prepared at the end of its fiscal year, unless (i) the
requesting holders shall agree to reimburse the Company for the out-of-pocket
costs incurred by the Company in the preparation of such other audited
financial statements or (ii) such other audited financial statements shall be
required by the Securities and Exchange Commission as a condition to ordering
a registration statement effective under the Securities Act. The Company
shall, however, furnish, without charge, copies of all such unaudited
financial statements as any holder of Shares shall reasonably request for use
in any registration.
(e) INDEMNIFICATION. The Company shall indemnify and hold harmless each
seller of Shares, each person who under the Securities Act is deemed a
controlling person of such seller, and each underwriter for such seller,
against any losses, claims, damages or liabilities to
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which any such seller, controlling person or underwriter may become subject
under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) shall arise out of or
be based upon any untrue or allegedly untrue statement of any material fact
contained in the registration statement, any related prospectus or
preliminary prospectus or any amendment or supplement to the registration
statement or any prospectus or preliminary prospectus or upon the 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 shall
reimburse any legal or other expenses reasonably incurred by any such seller,
controlling person or underwriter in connection with investigating or
defending against any such loss, claim, damage, liability or action;
PROVIDED, HOWEVER, that the Company shall not be liable to any such seller,
controlling person or underwriter for any losses, claims, damages,
liabilities or actions insofar as the same shall arise out of or be based
upon any such untrue statement or omission made in reliance upon and in
conformity with written information furnished by such seller, controlling
person or underwriter seeking indemnification hereunder for use in the
registration statement, prospectus, preliminary prospectus, amendment or
supplement. Each seller of Shares and each underwriter for such seller shall
similarly indemnify and hold harmless the Company and its controlling persons
against any such losses, claims, damages, liabilities or actions but only
insofar as the same shall arise out of or be based upon any untrue statement
or omission made in reliance upon and in conformity with written information
furnished by such indemnifying person to the Company for use in the
registration statement; PROVIDED, THAT, in no event shall any indemnity by a
seller of Shares or any underwriter such Seller exceed the gross proceeds
from the offering received by such Seller.
(f) UNDERWRITING AGREEMENT; COOPERATION; ETC. The Company and each
holder proposing to distribute Shares through the underwritten public
offering shall enter into an underwriting agreement in such form, scope and
substance as is customary in underwritten offerings of the same type as the
requested registration and which contains provisions for, in addition to the
other items specified in subparagraph (e) above, (i) such representations and
warranties as are customarily made by issuers to underwriters in such
underwriting agreements, (ii) indemnity, contribution and other related
procedures customarily found in such underwriting agreements, and (iii) such
other provisions which are customarily found in such underwriting agreements.
The Company further agrees that the Company will cooperate with such
underwriters including, without limitation, providing such information,
certificates, comfort letters of accountants and opinions of counsel as may
be reasonably requested by such underwriters and agrees to make appropriate
officers available for, and cause such officer to attend, meetings with
potential investors and "roadshows," if any. The Company will make available
for inspection by the holders of the Shares being registered, by any
underwriter participating in such registration and by their respective agents
and representatives, all pertinent financial and other records, pertinent
corporate documents and properties of the Company, and cause all of the
Company's officers, directors and employees to supply all information
reasonably requested by, and attend due diligence meetings with, any such
holder, underwriter, agent or representative in connection with such
registration.
4. REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934. With a view to making
available to holders of the Shares the benefits of Rule 144 promulgated
under the Securities Act and any other rule or regulation of the SEC that may
at any time permit a holder of Shares to sell securities of the Company to
the public without registration or pursuant to a registration on Form S-3,
the Company agrees to:
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(a) make and keep public information available, as those terms are
understood and defined in SEC Rule 144, at all times after 90 days after the
effective date of the first registration statement filed by the Company for
the 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 Securities and Exchange Act of 1934, as amended
(the "Exchange Act"), as is necessary to enable the holders of the Shares to
utilize Form S-3 for the sale of their Shares, 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; and
(d) furnish to any holder of Shares, forthwith upon request (i) a
written statement by the Company that it has complied with the reporting
requirements of SEC Rule 144 (at any time after 90 days after the effective
date of the first registration statement filed by the Company), the
Securities Act and the Exchange Act (at any item after it has become subject
to such reporting requirements), or that it qualifies as a registrant whose
securities may be resold pursuant to Form S-3 (at any time after it so
qualifies), (ii) a copy of the most recent annual or quarterly report of the
Company and such other reports and documents so filed by the Company, and
(iii) such other information as may be reasonably requested in availing such
holder of any rule or regulation of the SEC which permits the selling of any
such securities without registration or pursuant to such form.
5. ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the Company to
register the Shares may be assigned to a transferee or assignee of such
securities provided the Company is, within a reasonable time after such
transfer, furnished with written notice of the name and address of such
transferee or assignee and the securities with respect to which such
registration rights are being assigned; and provided, further, that such
assignment shall be effective only if immediately following such transfer the
further disposition of such securities by the transferee or assignee is
restricted under the Securities Act.
6. LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS. From and after the
date of this Agreement, the Company shall not, without the prior written
consent of the holders of a majority of the Shares, enter into any agreement,
with any holder or prospective holder of any securities of the Company which
would allow such holder or prospective holder (a) to include such securities
in any registration filed under Paragraph 1, or (b) to make a demand
registration which could result in such registration statement being declared
effective prior to the Effective Date, or within 120 days of the effective
day of any registration effected pursuant to Paragraph 1.
7. AMENDMENT OF REGISTRATION RIGHTS. Any provision of these registration
rights may be amended and the observance thereof may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the holders
of a majority of the Shares. Any amendment or waiver effected in accordance
with this paragraph shall be binding upon each holder of Shares at the time
outstanding (including securities into which such securities are
convertible), each future holder of all such securities, and the Company.
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8. MISCELLANEOUS.
(a) GOVERNING LAW. This Agreement shall be governed in all respects by
the laws of the State of New York.
(b) ENTIRE AGREEMENT. This Agreement constitutes the full and entire
understanding and agreement among the parties with regard to the subject
matter hereof.
(c) 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, or delivered either by hand or by messenger, addressed
as follows, or at such other address as a party shall have furnished to the
Company in writing:
If to the Company:
Progenics Pharmaceuticals, Inc.
000 Xxx Xxx Xxxx Xxxxx Xxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxxx, M.D., Ph.D.
With a copy to:
Xxxxx Xxxxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx X. Xxxxx, Esq.
If to the Purchaser:
Attn: ________________________
With a copy to:
______________________________
______________________________
______________________________
Attn: ________________________
(d) TITLES AND SUBTITLES. The titles of the Paragraphs and subparagraphs
of this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
(e) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, all of which together shall
constitute one instrument.
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IN WITNESS WHEREOF, the undersigned have set their hands as of the date
first above written.
PROGENICS PHARMACEUTICALS, INC.
By /s/ XXXX X. XXXXXX
---------------------------------
Name: Xxxx X. Xxxxxx, M.D., Ph.D.
Title: President
By
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Name:
Title:
By
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Name:
Title:
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