EXECUTION COPY
Exhibit 4
ALLOS THERAPEUTICS, INC.
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of March 4, 2005,
among the investors listed on Schedule I hereto (the "Investors") and Allos
Therapeutics, Inc., a Delaware corporation (the "Company").
R E C I T A L S
WHEREAS, the Investors have, pursuant to the terms of the
Securities Purchase Agreement, dated as of March 2, 2005, by and among the
Company and the Investors (the "Purchase Agreement"), agreed to purchase shares
of Series A Exchangeable Preferred Stock, par value $0.001 per share, of the
Company (the "Exchangeable Preferred Stock"); and
WHEREAS, the shares of Exchangeable Preferred Stock are, under
certain conditions, exchangeable into shares of common stock, par value $0.001
per share of the Company (the "Common Stock"); and
WHEREAS, the Company has agreed, as a condition precedent to
the Investors' obligations under the Purchase Agreement, to grant the Investors
certain registration rights; and
WHEREAS, the Company and the Investors desire to define the
registration rights of the Investors on the terms and subject to the conditions
herein set forth.
NOW, THEREFORE, in consideration of the foregoing premises and
for other good and valuable consideration, the parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following terms have the
respective meanings set forth below:
Agreement: shall mean this Registration Rights Agreement among
the Investors and the Company;
Commission: shall mean the Securities and Exchange Commission
or any other federal agency at the time administering the Securities Act;
Exchange Act: shall mean the Securities Exchange Act of 1934,
as amended;
Holder: shall mean any Investor who is a holder of Registrable
Securities or any assignee of record of such Registrable Securities in
accordance with the terms hereof;
Initiating Holder: shall mean Warburg Pincus Private Equity
VIII, L.P.;
Person: shall mean an individual, partnership, joint-stock
company, corporation, trust or unincorporated organization, and a government or
agency or political subdivision thereof;
Register, Registered and Registration: shall mean a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act (and any post-effective amendments filed or
required to be filed) and the declaration or ordering of effectiveness of such
registration statement;
Registrable Securities: shall mean (A) shares of Common Stock
issuable upon exchange of the shares of Exchangeable Preferred Stock purchased
by the Investors pursuant to the Securities Purchase Agreement, (B) any other
shares of Common Stock acquired by the Investors and (C) any stock of the
Company issued as a dividend or other distribution with respect to, or in
exchange for or in replacement of, the shares of Exchangeable Preferred Stock or
Common Stock referred to in clause (A) or (B); provided, however, that
notwithstanding the foregoing, Registrable Securities shall not include any
securities (i) sold by a Holder to the public either pursuant to a registration
statement or Rule 144, or (ii) sold in a private transaction in which the
transferor's rights under Section 2 hereof are not assigned in accordance with
the terms of this Agreement.
Registration Expenses: shall mean all expenses incurred by the
Company in compliance with Section 2(a), (b) and (c) hereof, including, without
limitation, all registration and filing fees, printing expenses, fees and
disbursements of counsel for the Company, fees and expenses of one counsel for
all the Holders in an amount not to exceed $15,000, blue sky fees and expenses
and the expense of any special audits incident to or required by any such
registration (but excluding the compensation of regular employees of the
Company, which shall be paid in any event by the Company);
security, securities: shall have the meaning set forth in
Section 2(1) of the Securities Act;
Securities Act: shall mean the Securities Act of 1933, as
amended; and
Selling Expenses: shall mean all underwriting discounts and
selling commissions applicable to the sale of Registrable Securities and all
fees and disbursements of counsel for each of the Holders other than fees and
expenses of one counsel for all the Holders in an amount not to exceed $15,000.
SECTION 2. REGISTRATION RIGHTS
(a) Requested Registration.
(i) Request for Registration. Subject to the conditions of
this Section 2(a), if the Company shall receive from the Initiating Holder, at
any time on or after the second anniversary of the date hereof, a written
request that the Company effect any registration with respect to all or a part
of the Registrable Securities, the Company will:
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(1) promptly give written notice of the proposed
registration, qualification or compliance to all other
Holders; and
(2) subject to the limitations of this Section 2(a),
as soon as practicable, use its commercially reasonable
efforts to effect such registration (including, without
limitation, the execution of an undertaking to file
post-effective amendments, appropriate qualification under
applicable blue sky or other state securities laws and
appropriate compliance with applicable regulations issued
under the Securities Act) as may be so requested and as would
permit or facilitate the sale and distribution of all or such
portion of such Registrable Securities as are specified in
such request, together with all or such portion of the
Registrable Securities of any Holder or Holders joining in
such request as are specified in a written request received by
the Company within ten (10) business days after written notice
from the Company is given under Section 2(a)(i)(1) above;
provided that the Company shall not be obligated to effect, or
take any action to effect, any such registration pursuant to
this Section 2(a):
(A) In any particular jurisdiction in which
the Company would be required to qualify to do
business or execute a general consent to service of
process in effecting such registration, qualification
or compliance, unless the Company is already subject
to service in such jurisdiction and except as may be
required by the Securities Act or applicable rules or
regulations thereunder;
(B) After the Company has effected one (1)
such registration pursuant to this Section 2(a) and
such registration has been declared or ordered
effective;
(C) If the Registrable Securities requested
by all Holders to be registered pursuant to such
request do not have an anticipated aggregate public
offering price (before any underwriting discounts and
commissions) of not less than $7,500,000;
(D) if within thirty (30) days of receipt of
a written request from the Initiating Holder pursuant
to Section 2(a), the Company gives notice to the
Holders of the Company's intention to file a
registration statement for a public offering within
sixty (60) days, other than pursuant to (i) a
registration statement relating to any employee
benefit plan or (ii) with respect to any corporate
reorganization or transaction under Rule 145 of the
Securities Act, including any registration statements
related to the issuance or resale of securities
issued in such a transaction or (iii) a registration
related to stock issued upon conversion of debt
securities (each a "Special Registration Statement");
(E) if the Initiating Holders propose to
dispose of shares of Registrable Securities that may
be immediately registered on Form S-3 pursuant to a
request made pursuant to Section 2(c) below; or
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(F) If the Board of Directors, in its good
faith judgment, determines that any registration of
Registrable Securities requested pursuant to this
Section 2(a) (a "Requested Registration") should not
be made or continued because it would interfere with
any material financing, acquisition, corporate
reorganization or merger or other material
transaction involving the Company (a "Valid Business
Reason"), the Company may (x) postpone filing a
registration statement relating to a Requested
Registration until such Valid Business Reason no
longer exists, but in no event for more than ninety
(90) days, and (y) in case a registration statement
has been filed relating to a Request Registration, if
the Valid Business Reason has not resulted from
actions taken by the Company, the Company may cause
such registration statement to be withdrawn and its
effectiveness terminated or may postpone amending or
supplementing such registration statement (so long as
the Initiating Holders shall have the rights set
forth in this Section 2(a) within ninety (90) days of
any such event). The Company shall give written
notice of its determination to postpone or withdraw a
registration statement (provided that the Company
shall not disclose any information that could be
deemed material non-public information to any holder
of Registrable Securities that are included in a
registration statement that is subject to such
postponement or withdrawal) and of the fact that the
Valid Business Reason for such postponement or
withdrawal no longer exists, in each case, promptly
after the occurrence thereof. Notwithstanding
anything to the contrary contained herein, the
Company may not postpone or withdraw a filing due to
a Valid Business Reason more than once in any twelve
(12) month period. In addition, the Company shall not
be required to effect any registration pursuant to
Section 2(a), within ninety (90) days after the
effective date of any other Registration Statement of
the Company if the Registration Statement was not for
the account of the Initiating Holders but the
Initiating Holders had the opportunity to include at
least two-thirds of the Registrable Securities they
requested to include in such registration pursuant to
Section 2(b).
The registration statement filed pursuant to the request of the Initiating
Holders may, subject to the provisions of Section 2(a)(ii) below, include other
securities of the Company which are held by Persons who, by virtue of agreements
with the Company, are entitled to include their securities in any such
registration ("Other Stockholders"). In the event any Holder requests a
registration pursuant to this Section 2(a) in connection with a distribution of
Registrable Securities to its partners, the registration shall provide for the
resale by such partners, if requested by such Holder.
The registration rights set forth in this Section 2 may be assigned, in whole or
in part, to any transferee of Registrable Securities (who shall be bound by all
obligations of this Agreement) that (a) is a subsidiary, parent, general
partner, limited partner, retired partner, member or retired member, of a Holder
that is a corporation, partnership or limited liability company, (b) is a
Holder's family member or trust for the benefit of an individual Holder, or (c)
acquires at least five hundred thousand (500,000) shares of Registrable
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Securities (as adjusted for stock splits and combinations); or (d) is an entity
affiliated by common control with such Holder; provided, however, (i) the
transferor shall, within ten (10) days after such transfer, furnish to the
Company 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 (ii) such transferee shall agree to be subject to all restrictions
set forth in this Agreement.
(ii) Underwriting. 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 made pursuant to Section 2(a)(i).
If Other Stockholders request inclusion of their securities in the underwriting,
the Holders shall offer to include the securities of such Other Stockholders in
the underwriting and may condition such offer on their acceptance of the further
applicable provisions of this Section 2. The Holders whose shares are to be
included in such registration and the Company shall (together with all Other
Stockholders proposing to distribute their securities through such underwriting)
enter into an underwriting agreement in customary form with the representative
of the underwriter or underwriters selected for such underwriting by the
Initiating Holders and reasonably acceptable to the Company; provided, however,
that such underwriting agreement shall not provide for indemnification or
contribution obligations on the part of the Holders materially greater than the
obligations of the Holders under Section (f)(ii). Notwithstanding any other
provision of this Section 2(a), if the representative advises the Holders in
writing that marketing factors require a limitation on the number of shares to
be underwritten, the securities of the Company held by Other Stockholders shall
be excluded from such registration to the extent so required by such limitation.
If, after the exclusion of such shares, further reductions are still required,
the number of shares included in the registration by each Holder shall be
reduced on a pro rata basis (based on the number of shares held by such Holder),
by such minimum number of shares as is necessary to comply with such request. No
Registrable Securities or any other securities excluded from the underwriting by
reason of the underwriter's marketing limitation shall be included in such
registration. If any Other Stockholder who has requested inclusion in such
registration as provided above disapproves of the terms of the underwriting,
such Person may elect to withdraw therefrom by written notice to the Company,
the underwriter and the Initiating Holders. The securities so withdrawn shall
also be withdrawn from registration. If the underwriter has not limited the
number of Registrable Securities or other securities to be underwritten, the
Company and officers and directors of the Company may include its or their
securities for its or their own account in such registration if the
representative so agrees and if the number of Registrable Securities and other
securities which would otherwise have been included in such registration and
underwriting will not thereby be limited.
(b) Company Registration.
(i) If at any time on or after the second anniversary of the
date hereof, the Company shall determine to register any of its equity
securities either for its own account or for the account of Other Stockholders,
other than a registration relating solely to employee benefit plans, or a
registration relating solely to a Rule 145 transaction under the Securities Act,
or a registration on any registration form which does not permit secondary sales
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or 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:
(1) promptly give to each of the Holders a written notice
thereof (which shall include a list of the jurisdictions in which the
Company intends to attempt to qualify such securities under the
applicable blue sky or other state securities laws); and
(2) include in such registration (and any related
qualification under blue sky laws or other compliance), and in any
underwriting involved therein, all the Registrable Securities specified
in a written request or requests, made by the Holders within fifteen
(15) days after receipt of the written notice from the Company
described in clause (1) above, except as set forth in Section 2(b)(ii)
below. Such written request may specify all or a part of the Holders'
Registrable Securities and shall describe the intended method of
disposition of the Registrable Securities by such Holders. In the event
any Holder requests inclusion in a registration pursuant to this
Section 2(b) in connection with a distribution of Registrable
Securities to its partners, the registration shall provide for the
resale by such partners, if requested by such Holder.
(ii) Underwriting. If the registration of which the Company
gives notice is for a registered public offering involving an underwriting, the
Company shall so advise each of the Holders as a part of the written notice
given pursuant to Section 2(b)(i)(1) above. In such event, the right of each of
the Holders to registration pursuant to this Section 2(b) shall be conditioned
upon such Holders' participation in such underwriting and the inclusion of such
Holders' Registrable Securities in the underwriting to the extent provided
herein. The Holders whose shares are to be included in such registration shall
(together with the Company and the Other Stockholders distributing their
securities through such underwriting) enter into an underwriting agreement in
customary form with the representative of the underwriter or underwriters
selected for underwriting by the Company; provided, however, that such
underwriting agreement shall not provide for indemnification or contribution
obligations on the part of the Holders materially greater than the obligations
of the Holders under Section f(ii). Notwithstanding any other provision of this
Section 2(b), if the representative determines that marketing factors require a
limitation on the number of shares to be underwritten, the representative may
(subject to the allocation priority set forth below) limit the number of
Registrable Securities to be included in the registration and underwriting to
not less than twenty five percent (25%) of the shares included therein (based on
the number of shares). The Company shall so advise all holders of securities
requesting registration, and the number of shares of securities that are
entitled to be included in the registration and underwriting shall be allocated
in the following manner: the securities of the Company held by officers,
directors and Other Stockholders of the Company (other than Registrable
Securities and other than securities held by holders who by contractual right
demanded such registration ("Demanding Holders")) shall be excluded from such
registration and underwriting to the extent required by such limitation, and, if
a limitation on the number of shares is still required, the number of shares
that may be included in the registration and underwriting by each of the Holders
and Demanding Holders shall be reduced, on a pro rata basis (based on the number
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of shares held by such holder), by such minimum number of shares as is necessary
to comply with such limitation. If any of the Holders or any officer, director
or Other Stockholder disapproves of the terms of any such underwriting, he may
elect to withdraw therefrom by written notice to the Company and the
underwriter, delivered at least five (5) business days prior to the effective
date of the registration statement. Any Registrable Securities or other
securities excluded or withdrawn from such underwriting shall be withdrawn from
such registration.
(iii) Right to Terminate Registration. The Company shall have
the right to terminate or withdraw any registration initiated by it
under this Section 2(b) whether or not any Holder has elected to
include securities in such registration , and shall promptly notify any
Holder that has elected to include shares in such registration of such
termination or withdrawal. The Registration Expenses of such withdrawn
registration shall be borne by the Company in accordance with Section
2(d) hereof.
(c) Form S-3. The Company shall use commercially reasonable
efforts to maintain its qualification for registration on Form S-3 for secondary
sales. The Initiating Holder shall, at any time on or after the second
anniversary of the date hereof, have the right to collectively request two (2)
registrations on Form S-3 (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 holders), provided that the Company
shall not be obligated to effect, or take any action to effect, any such
registration pursuant to this Section 2(c):
(i) Unless the Initiating Holder or Holders requesting
registration propose to dispose of shares of Registrable Securities
having an aggregate price to the public (before deduction of Selling
Expenses) of more than $2,000,000;
(ii) In any particular jurisdiction in which the Company would
be required to qualify to do business or execute a general consent to
service of process in effecting such registration, qualification or
compliance, unless the Company is already subject to service in such
jurisdiction and except as may be required by the Securities Act or
applicable rules or regulations thereunder;
(iii) if within thirty (30) days of receipt of a written
request from any Holder or Holders pursuant to this Section 2(c), the
Company gives notice to such Holder or Holders of the Company's
intention to make a public offering within sixty (60) days, other than
pursuant to a Special Registration Statement;
(iv) If the Board of Directors, in its good faith judgment,
determines that any registration of Registrable Securities pursuant to
this Section 2(c) (an "S-3 Registration") should not be made or
continued because of a Valid Business Reason, the Company may (x)
postpone filing a registration statement relating to a S-3 Registration
until such Valid Business Reason no longer exists, but in no event for
more than ninety (90) days, and (y) in case a registration statement
has been filed relating to a S-3 Registration, if the Company
reasonably believes that there is or may be in existence material
nonpublic information or events involving the Company, the failure of
which to be disclosed in the prospectus included in the registration
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statement could result in a Violation (as defined below), the Company
may cause such registration statement to be withdrawn and its
effectiveness terminated or may postpone amending or supplementing such
registration statement (so long as the Holders shall have the rights
set forth in this Section 2(c) within ninety (90) days of any such
event). The Company shall give written notice of its determination to
postpone or withdraw a registration statement (provided that the
Company shall not disclose any information that could be deemed
material non-public information to any holder of Registrable Securities
that are included in a registration statement that is subject to such
postponement or withdrawal) and of the fact that the Valid Business
Reason for such postponement or withdrawal no longer exists, in each
case, promptly after the occurrence thereof. Notwithstanding anything
to the contrary contained herein, the Company may not postpone or
withdraw a filing due to a Valid Business Reason more than once in any
twelve (12) month period. In addition, the Company shall not be
required to effect any registration pursuant to Section 2(c), (i)
within ninety (90) days after the effective date of any other
Registration Statement of the Company if the Registration Statement was
not for the account of the Holders but the Holders had the opportunity
to include at least two-thirds of the Registrable Securities they
requested to include in such registration or (ii) if Form S-3 (or any
successor form then in effect) is not available for such offering by
the Holders.
The Company shall give written notice to all Holders of the receipt of a request
for registration pursuant to this Section 2(c) 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 terms of Section
2(a)(ii) above shall apply to all participants in such offering. Subject to the
foregoing, the Company will use commercially reasonable efforts to effect
promptly the registration of all shares of Registrable Securities on Form S-3 to
the extent requested by the Holder or Holders thereof for purposes of
disposition. In the event any Holder requests a registration pursuant to this
Section 2(c) in connection with a distribution of Registrable Securities to its
partners, the registration shall provide for the resale by such partners, if
requested by such Holder.
(d) Expenses of Registration. All Registration Expenses
incurred in connection with any registration, qualification or compliance
pursuant to this Section 2 shall be borne by the Company, and all Selling
Expenses shall be borne by the Holders of the securities so registered pro rata
on the basis of the number of their shares so registered. The Company shall not,
however, be required to pay for expenses of any registration proceeding begun
pursuant to Section 2(a) or 2(c), the request of which has been subsequently
withdrawn by the Initiating Holder unless (a) the withdrawal is based upon
material adverse information concerning the Company of which the Initiating
Holder was not aware at the time of such request or (b) the Holders of a
majority of Registrable Securities agree to deem such registration to have been
effected as of the date of such withdrawal for purposes of determining whether
the Company shall be obligated pursuant to Section 2(a) or 2(c), as applicable,
to undertake any subsequent registration, in which event such right shall be
forfeited by all Holders). If the Holders are required to pay the Registration
Expenses, such expenses shall be borne by the holders of securities (including
Registrable Securities) requesting such registration in proportion to the number
of shares for which registration was requested. If the Company is required to
pay the Registration Expenses of a withdrawn offering pursuant to clause (a)
above, then such registration shall not be deemed to have been effected for
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purposes of determining whether the Company shall be obligated pursuant to
Section 2(a) or 2(c), as applicable, to undertake any subsequent registration.
(e) Registration Procedures. In the case of each registration
effected by the Company pursuant to this Section 2, the Company will keep the
Holders, as applicable, advised in writing as to the initiation of each
registration and as to the completion thereof. At its expense, the Company will:
(i) keep such registration effective for a period of sixty
(60) days or until the Holders (or in the case of a distribution to the
partners of such Holder, such partners), as applicable, have completed
the distribution described in the registration statement relating
thereto, whichever first occurs; provided, however, that (1) such sixty
(60)-day period shall be extended for a period of time equal to the
period during which the Holders or partners, as applicable, prohibited
from selling any securities included in such registration due to any
suspension of effectiveness provided for in accordance with the
provisions in Sections 2(a)(i)(2)(F) or 2(c)(iv) hereof; and (2) in the
case of any registration of Registrable Securities on Form S-3 which
are intended to be offered on a continuous or delayed basis, such sixty
(60)-day period shall be extended until all such Registrable Securities
are sold, not to exceed two (2) years or the period ending on the date
on which all of the Registrable Securities may be sold pursuant to Rule
144 (without giving effect to Rule 144(k) thereof) of the Securities
Act within ninety (90) days after such date, provided that Rule 415, or
any successor rule under the Securities Act, permits an offering on a
continuous or delayed basis, and provided further that applicable rules
under the Securities Act governing the obligation to file a
post-effective amendment permit, in lieu of filing a post-effective
amendment which (y) includes any prospectus required by Section 10(a)
of the Securities Act or (z) reflects facts or events representing a
material or fundamental change in the information set forth in the
registration statement, the incorporation by reference of information
required to be included in (y) and (z) above to be contained in
periodic reports filed pursuant to Section 12 or 15(d) of the Exchange
Act in the registration statement;
(ii) furnish such number of prospectuses and other documents
incident thereto as each of the Holders, as applicable, from time to
time may reasonably request;
(iii) notify each Holder of Registrable Securities covered by
such registration at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of 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; and
(iv) furnish, on the date that such Registrable Securities are
delivered to the underwriters for sale, if such securities are being
sold through underwriters or, if such securities are not being sold
through underwriters, on the date that the registration statement with
respect to such securities becomes effective, (1) an opinion, dated as
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of such date, of the counsel representing the Company for the purposes
of such registration, in form and substance as is customarily given to
underwriters in an underwritten public offering and reasonably
satisfactory to a majority in interest of the Holders participating in
such registration, addressed to the underwriters, if any, and to the
Holders participating in such registration and (2) a letter, dated as
of such date, from the independent certified public accountants of the
Company, in form and substance as is customarily given by independent
certified public accountants to underwriters in an underwritten public
offering and reasonably satisfactory to a majority in interest of the
Holders participating in such registration, addressed to the
underwriters, if any, and if permitted by applicable accounting
standards, to the Holders participating in such registration.
(f) Indemnification.
(i) The Company will indemnify each of the Holders, as
applicable, each of its officers, directors and partners, and each
Person controlling each of the Holders, with respect to each
registration which has been effected pursuant to this Section 2, and
each underwriter, if any, and each person who controls any underwriter,
against all claims, losses, 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
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 statements therein not
misleading, or any violation by the Company of the Securities Act or
the Exchange Act or any rule or regulation thereunder applicable to the
Company and relating to action or inaction required of the Company in
connection with any such registration, qualification or compliance
(collectively a "Violation"), and will reimburse each of the Holders,
each of its officers, directors and partners, and each Person
controlling each of the Holders, each such underwriter and each Person
who controls any such underwriter, for any legal and any other expenses
reasonably incurred in connection with investigating and defending any
such claim, loss, damage, liability or action; provided that the
Company will not be liable in any such case to the extent that any such
claim, loss, damage, liability or expense arises out of or is based on
any untrue statement or omission based upon written information
furnished to the Company by the Holders or underwriter and stated to be
specifically for use therein; provided, further, that the indemnity
agreement contained in this Section 2(f)(i) shall not apply to amounts
paid in settlement of any such loss, claim, damage, liability or action
if such settlement is effected without the consent of the Company,
which consent shall not be unreasonably withheld.
(ii) Each of the Holders will, if Registrable Securities held
by it are included in the securities as to which such registration,
qualification or compliance is being effected, indemnify the Company,
each of its directors and officers and each underwriter, if any, of the
Company's securities covered by such a registration statement, each
person who controls the Company or such underwriter, each Other
Stockholder and each of their officers, directors, and partners, and
each person controlling such Other Stockholder against all claims,
losses, damages and liabilities (or actions in respect thereof) arising
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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 document made by such Holder,
any omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements by
such Holder therein not misleading, and will reimburse the Company and
such Other Stockholders, directors, officers, partners, persons,
underwriters or control persons for any legal or any other expenses
reasonably incurred in connection with investigating and defending 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, or such violation is made, in reliance upon and in conformity
with written information furnished to the Company by such Holder and
stated to be specifically for use therein; provided, however, that the
obligations of each of the Holders hereunder shall be limited to an
amount equal to the proceeds to such Holder of securities sold as
contemplated herein; provided further, that the indemnity agreement
contained in this Section 2(f)(ii) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Holder, which consent
shall not be unreasonably withheld.
(iii) Each party entitled to indemnification under this
Section 2(f) (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 any litigation resulting
therefrom, shall be approved by the Indemnified Party (whose approval
shall not unreasonably be withheld) and the Indemnified Party may
participate in such defense at such party's expense (unless the
Indemnified Party shall have reasonably concluded that there may be a
conflict of interest between the Indemnifying Party and the Indemnified
Party in such action, in which case the fees and expenses of counsel
shall be at the expense of the Indemnifying Party), 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 under this Section 2(f) unless the Indemnifying Party is
materially prejudiced thereby. 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. Each
Indemnified Party shall furnish such information regarding itself or
the claim in question as an Indemnifying Party may reasonably request
in writing and as shall be reasonably required in connection with the
defense of such claim and litigation resulting therefrom.
(iv) If the indemnification provided for in this Section 2(f)
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 herein, then the Indemnifying Party, in lieu of
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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 which 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 (or alleged 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.
(v) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the
underwriting agreement entered into in connection with any underwritten
public offering contemplated by this Agreement are in conflict with the
foregoing provisions, the provisions in such underwriting agreement
shall be controlling.
(vi) The foregoing indemnity agreement of the Company and
Holders is subject to the condition that, insofar as they relate to any
loss, claim, liability or damage arising out of a statement made in or
omitted from a preliminary prospectus but eliminated or remedied in the
amended prospectus on file with the Commission at the time the
registration statement in question becomes effective or the amended
prospectus filed with the Commission pursuant to Rule 424(b) under the
Securities Act (the "Final Prospectus"), such indemnity or contribution
agreement shall not inure to the benefit of any underwriter or Holder
if a copy of the Final Prospectus was furnished to the underwriter and
was not furnished to the Person asserting the loss, liability, claim or
damage at or prior to the time such action is required by the
Securities Act.
(g) Information by the Holders.
(i) Each of the Holders holding securities included in any
registration shall furnish to the Company such information regarding
such Holder and the distribution proposed by such Holder as the Company
may reasonably request in writing and as shall be reasonably required
in connection with any registration, qualification or compliance
referred to in this Section 2.
(ii) In the event that, either immediately prior to or
subsequent to the effectiveness of any registration statement, any
Holder shall distribute Registrable Securities to its partners, such
Holder shall so advise the Company and provide such information as
shall be necessary to permit an amendment to such registration
statement to provide information with respect to such partners, as
selling security holders. Promptly following receipt of such
information, the Company shall file an appropriate amendment to such
registration statement reflecting the information so provided. Any
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incremental expense to the Company resulting from such amendment shall
be borne by such Holder.
(h) Rule 144 Reporting.
With a view to making available the benefits of certain rules
and regulations of the Commission which may permit the sale of restricted
securities to the public without registration, the Company agrees to:
(i) make and keep public information available as those terms
are understood and defined in Rule 144 under the Securities Act ("Rule
144");
(ii) 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 at any time after it has
become subject to such reporting requirements; and
(iii) so long as a Holder owns any Registrable Securities,
furnish to such Holder upon request, a written statement by the Company
as to its compliance with the reporting requirements of Rule 144 and of
the Securities Act and the Exchange Act, a copy of the most recent
annual or quarterly report of the Company, and such other reports and
documents so filed as such Holder may reasonably request in availing
itself of any rule or regulation of the Commission allowing such Holder
to sell any such securities without registration.
(i) Termination. The registration rights set forth in this
Section 2 shall not be available to any Holder if, (i) in the opinion of counsel
to the Company, all of the Registrable Securities then owned by such Holder
could be sold in any ninety (90)-day period pursuant to Rule 144 (without giving
effect to the provisions of Rule 144(k)), or (ii) all of the Registrable
Securities held by such Holder have been sold in a registration pursuant to the
Securities Act or pursuant to Rule 144.
SECTION 3. MISCELLANEOUS
(a) Directly or Indirectly. Where any provision in this
Agreement refers to action to be taken by any Person, or which such Person is
prohibited from taking, such provision shall be applicable whether such action
is taken directly or indirectly by such Person.
(b) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware applicable to
contracts made and to be performed entirely within such State.
(c) Section Headings. The headings of the sections and
subsections of this Agreement are inserted for convenience only and shall not be
deemed to constitute a part thereof.
(d) Notices.
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(i) All communications under this Agreement shall be in
writing and shall be delivered by hand or facsimile or mailed by
overnight courier or by registered or certified mail, postage prepaid:
(1) if to the Company, to 00000 XxxxxxXxxxx Xxxx,
Xxxxxxxxxxx, Xxxxxxxx, 00000, Attention: President Xxxxxxx X.
Xxxx (facsimile: (000) 000-0000), or at such other address as
it may have furnished in writing to the Holders, with a copy
to Xxxxxx Godward LLP (facsimile: (000) 000-0000), Attention:
Xxxxx Xxxxxxx, Esq.
(2) if to the Holders, at the address or facsimile
number listed on Schedule I hereto, or at such other address
or facsimile number as may have been furnished the Company in
writing, with a copy to Xxxxxxx Xxxx & Xxxxxxxxx LLP, 000
Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 (facsimile: (212)
728-9222), Attention: Xxxxxx X. Xxxxxxx, Esq.
(ii) Any notice so addressed shall be deemed to be given: if
delivered by hand or facsimile, on the date of such delivery; if mailed
by overnight courier, on the first business day following the date of
such mailing; and if mailed by registered or certified mail, on the
third business day after the date of such mailing.
(e) Reproduction of Documents. This Agreement and all
documents relating thereto, including, without limitation, any consents, waivers
and modifications which may hereafter be executed may be reproduced by the
Holders by any photographic, photostatic, microfilm, microcard, miniature
photographic or other similar process and the Holders may destroy any original
document so reproduced. The parties hereto agree and stipulate that any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding (whether or not the original is in
existence and whether or not such reproduction was made by the Holders in the
regular course of business) and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
(f) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties.
(g) Entire Agreement; Amendment and Waiver. This Agreement
constitutes the entire understanding of the parties hereto relating to the
subject matter hereof and supersedes all prior understandings among such
parties. This Agreement may be amended, and the observance of any term of this
Agreement may be waived, with (and only with) the written consent of the Company
and the Holders holding a majority of the then outstanding Registrable
Securities. Any amendment or waiver effected in accordance with this Section
3(g) shall be binding upon each Holder and the Company.
(h) Severability. In the event that any part or parts of this
Agreement shall be held illegal or unenforceable by any court or administrative
body of competent jurisdiction, such determination shall not affect the
remaining provisions of this Agreement which shall remain in full force and
effect.
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(i) Counterparts. This Agreement may be executed in two or
more counterparts (including by facsimile), each of which shall be deemed an
original and all of which together shall be considered one and the same
agreement.
(j) Additional Investors. Notwithstanding anything to the
contrary contained herein, if the Company shall issue additional shares of its
Common Stock or Exchangeable Preferred Stock pursuant to the Purchase Agreement,
any purchaser of such securities shall become a party to this Agreement by
executing and delivering an additional counterpart signature page to this
Agreement and shall be deemed an "Investor," a "Holder" and a party hereunder.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the date first set forth above.
ALLOS THERAPEUTICS, INC.
By: /s/ Xxxxxxx X. Xxxx
---------------------------------
Name: Xxxxxxx X. Xxxx
Title: President and Chief
Executive Officer
WARBURG PINCUS PRIVATE EQUITY VIII, L.P.
By: WARBURG PINCUS & CO.,
General Partner
By: Xxxxxxxx Xxxx
-------------
Name: Xxxxxxxx Xxxx
Title: Partner
REGISTRATION RIGHTS AGREEMENT
Schedule I
Investors
INVESTOR NAME AND ADDRESS
Warburg Pincus Private Equity VIII, L.P.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xx. Xxxxxxxx X. Xxxx
-----------------------------------------
