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Exhibit 4.9
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
SERIES A-I PREFERRED STOCK
September 22, 1995
Agreement dated this 22nd day of September, 1995, by and between Intracel
Corporation, a Massachusetts corporation (the "Company") and each of the several
Purchasers of shares of the Convertible Preferred Stock, Series A-I, of the
Company (the "Investors") named herein.
WHEREAS: Each Investor has purchased or may purchase from the Company shares of
the Company's Series A-I Preferred Stock pursuant to the Purchase
Agreement, and
WHEREAS: As a condition to such purchase, the Company has agreed to grant to
each Investor registration rights with respect to certain securities
of the Company held by such Investor.
AGREEMENT
NOW, THEREFORE, it is agreed as follows:
1. Certain Definitions. As used in this Agreement, the following
terms shall have the following respective meaning:
"Commission" shall mean the Securities and Exchange Commission, or any
other federal agency at the time administering the Securities Act.
"Common Stock" shall mean the Common Stock, no par value per share, of
the Company, as constituted as of the date of this Agreement.
"Company" shall mean Intracel Corporation, a Massachusetts
corporation.
"Conversion Shares" shall mean shares of Common Stock issued upon
conversion of shares of the Series A-I Preferred Stock issued pursuant to
the terms of the Purchase Agreement.
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"Dividend Shares" shall mean shares of Series A-I Preferred Stock
issued in lieu of cash dividends on shares of the Series A-I Preferred Stock.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"Purchase Agreement" shall mean the Convertible Preferred Stock
Purchase Agreement, of even date herewith.
"Registration Expenses" shall mean the expenses so described in
Section 7.
"Registerable Stock" shall mean the Conversion Stock, but only so long
as such shares continue to be Restricted Stock. Any such shares shall continue
to be Restricted Stock until such time as such shares (i) have been disposed of
in accordance with a Registration Statement which has become effective under
the Securities Act or (ii) have been publicly sold in compliance with Rule 144
(or any similar provision then in force) under the Securities Act.
"Restricted Stock" shall mean securities of the sort described in Rule
144(a)(3) promulgated pursuant to the Securities Act.
"Securities Act" shall mean the Securities Act of 1933, as amended, or
any similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Series A-I Preferred Stock" shall mean the Company's Series A-I
Preferred Stock, no par value per share.
"Selling Expenses" shall mean the expenses so described in Section 7.
2. Restrictive Legend. Each certificate representing Preferred Shares or
Conversion Shares shall, except as otherwise provided in this Section 2, 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 AND MAY NOT BE TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS IT
HAS BEEN REGISTERED UNDER THAT ACT OR AN EXEMPTION FROM REGISTRATION
IS AVAILABLE."
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A certificate shall not bear such legend if in the opinion of counsel
satisfactory to the Company, which opinion shall be addressed to each holder of
Series A-I Preferred Stock, the securities may be publicly sold without
registration under the Securities Act.
3. Required Registration. (a) At any time beginning six months
after a registration statement covering an initial public offering of
securities of the Company under the Securities Act shall have become effective,
the holder or holders of Registerable Stock constituting at least 51% of the
total shares of Registerable Stock then outstanding may request the Company to
register under the Securities Act all or any portion of the shares of
Registerable Stock held by such requesting holder or holders for sale in the
manner specified in such notice. In addition, at any time after July 22, 1996,
if a registration statement on Form S-1 or any successor thereto has not yet
become effective, the holder or holders of Registerable Stock constituting at
least 51% of the total shares of Registerable Stock then outstanding may
request the Company to register under the Securities Act all or any portion of
the shares of Registerable Stock held by such requesting holder or holders for
sale in the manner specified in such notice. Notwithstanding anything to the
contrary contained herein, no request may be made under this Section 3 within
120 days after the effective date of a registration statement filed by the
Company covering a firm commitment underwritten public offering in which the
holders of Registerable Stock shall have been entitled to join pursuant to
Sections 4 or 5 provided that there shall have been effectively registered all
shares of Registerable Stock as to which registration shall have been requested.
(b) Following receipt of any notice under this Section 3,
the Company shall notify all holders of Registerable Stock from whom notice
has not been received and shall use its best efforts to register under the
Securities Act, for public sale in accordance with the method of disposition
specified in such notice from requesting holders, the number of shares of
Registerable Stock specified in such notice (and in all notices received by
the Company from other holders within 15 days after the giving of such notice by
the Company). The Company shall be obligated to register Registerable Stock
pursuant to this Section 3 on two occasions only and shall use its best efforts
to cause each such Registration Statement to become effective whether or not all
shares requested to be registered can be included. However, the Company's
obligation as to any required registration hereunder shall be deemed satisfied
only if that registration statement has become effective, has remained effective
for a period of 120 days (or such shorter period in which all securities
registered have been sold) and includes all shares of Registerable Stock
specified in notices received as aforesaid, for sale in accordance with the
method of disposition specified by the requesting holders, and, if such method
of disposition is a firm commitment underwritten public offering, all such
shares shall have been sold pursuant thereto.
(c) The Company shall be entitled to include in any
registration statement referred to in this Section 3, for sale in accordance
with the method of disposition specified by the requesting holders, shares of
Common Stock to be sold by the Company for its own account or for sale by
others, except as and to the extent that, in the opinion of the managing
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underwriter (if such method of disposition shall be an underwritten public
offering), such inclusion would adversely affect the marketing of the
Registerable Stock to be sold (including the price at which such securities can
be sold) or reduce the number of shares of Registerable Stock otherwise able to
be included in the Registration Statement. Except for registration statements on
Form S-8 or any successor thereto, the Company will not file with the Commission
any other registration statement with respect to its Common Stock, whether for
its own account or that of other stockholders, from the date of receipt of a
notice from requesting holders pursuant to this Section 3 until the completion
of the distribution of the shares covered by such registration.
4. Incidental Registration. (a) If the Company at any time (other than
pursuant to Section 3 or Section 5) proposes to register any of its securities
under the Securities Act for sale to the public, whether for its own account or
for the account of other security holders or both (except with respect to
registration statements on Forms X-0, X-0 or another form not available for
registering the Registerable Stock for sale to the public), each such time it
will give written notice to all holders of outstanding Registerable Stock of its
intention to do so. Upon the written request of any such holder, received by the
Company within 15 days after the giving of any such notice by the Company to
register any of its Registerable Stock (which request shall state the intended
method of disposition thereof), the Company will cause the Registerable Stock as
to which registration shall have been so requested to be included in the
securities to be covered by the registration statement proposed to be filed by
the Company, all to the extent requisite to permit the sale or other disposition
by the holder (in accordance with its written request) of such Registerable
Stock so registered. The Company shall be obligated to each Investor to register
Registerable Stock of that Investor pursuant to this Section 4 on one occasion
only; provided, however, that such obligation shall be deemed satisfied as to
any Investor only when a registration statement covering all shares of
Registerable Stock specified in notices from that Investor received as
aforesaid, for sale in accordance with the method of disposition specified by
the requesting holders, shall have become and shall have remained effective as
provided in this Agreement and, if such method of disposition is a firm
commitment underwritten public offering, all such shares shall have been sold
pursuant thereto.
(b) In the event that any registration pursuant to this Section 4
shall be, in whole or in part, an underwritten public offering of Common Stock,
the number of shares of Registerable Stock to be included in such an
underwriting may be reduced (pro rata among the requesting holders based upon
the number of shares of Registerable Stock owned by such holders) if and to the
extent that the managing underwriter shall be of the opinion that such inclusion
would adversely affect the marketing of the securities to be sold by the Company
therein (including the price at which such securities can be sold), provided,
however, that such number of shares of Registerable Stock shall not be reduced
if any shares are to be included in such underwriting for the account of any
person other than the Company or requesting holders of Registerable Stock; and
provided, further, that in no event may less than twenty-five (25%) percent of
the total number of shares of Common Stock to be
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included in such underwriting be made available for shares of Registerable
Stock. Notwithstanding the foregoing provisions, the Company may withdraw any
registration statement referred to in this Section 4 without thereby incurring
any liability to the holders of Registerable Stock.
5. Registration Procedures. If and whenever the Company is required
by the provisions of Sections 3 or 4 to effect the registration of any shares of
Registerable Stock under the Securities Act, the Company will, as expeditiously
as possible:
(a) prepare and file with the Commission a registration
statement (which, in the case of an underwritten public offering pursuant
to Section 3, shall be on Form S-1 or other form of general applicability
satisfactory to the managing underwriter selected as therein provided) with
respect to such securities and use its best efforts to cause such
registration statement to become and remain effective for the period of the
distribution contemplated thereby (determined as hereinafter provided);
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective for the period specified in paragraph (a) above and
comply with the provisions of the Securities Act with respect to the
disposition of all Registerable Stock covered by such registration
statement in accordance with the sellers' intended method of disposition as
set forth in such registration statement for such period;
(c) furnish to each seller of Registerable Stock and to each
underwriter such number of copies of the registration statement and the
prospectus included therein (including each preliminary prospectus) as such
persons reasonably may request in order to facilitate the public sale or
other disposition of the Registerable Stock covered by such registration
statement;
(d) use its best efforts to register or qualify the Registerable
Stock covered by such registration statement under the securities or "blue
sky" laws of such jurisdictions as the sellers of Registerable Stock or, in
the case of an underwritten public offering, the managing underwriter
reasonably shall request; provided, however, that the Company shall not for
any such purpose be required to qualify generally to transact business as a
foreign corporation in any jurisdiction where it is not so qualified or to
consent to general service of process in any such jurisdiction;
(e) use its best efforts to list the Registerable Stock covered by
such registration statement with any securities exchange on which the
Common Stock of the Company is then listed;
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(f) in addition to its obligations under Section 5(b) hereof, immediately
notify each seller of Registerable Stock and each underwriter under such
registration statement, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, of the happening of any
event of which the Company has knowledge as a result of which the prospectus
contained 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
light of the circumstances then existing;
(g) if the offering is underwritten, at the request of any seller of
Registerable Stock furnish on the date that Registerable Stock is delivered to
the underwriters for sale pursuant to such registration: (i) an opinion dated
such date of counsel representing the Company for the purposes of such
registration, addressed to the underwriters and to such seller, stating that
such registration statement has become effective under the Securities Act and
that (A) to the best knowledge of such counsel, no stop order suspending the
effectiveness thereof has been issued and no proceedings for that purpose have
been instituted or are pending or contemplated under the Securities Act, (B)
the registration statement, the related prospectus and each amendment or
supplement thereof comply as to form in all material respects with the
requirements of the Securities Act (except that such counsel need not express
any opinion as to financial statements or other financial data contained
therein) and (C) to such other effects as reasonably may be requested by
counsel for the underwriters or by such seller or its counsel and (ii) a letter
dated such date from the independent public accountants retained by the
Company, addressed to the underwriters and to such seller, stating that they
are independent public accountants within the meaning of the Securities Act and
that, in the opinion of such accountants, the financial statements of the
Company included in the registration statement or the prospectus, or any
amendment or supplement thereof, comply as to form in all material respects
with the applicable accounting requirements of the Securities Act, and such
letter shall additionally cover such other financial matters (including
information as to the period ending no more than five business days prior to
the date of such letter) with respect to such registration as such underwriters
reasonably may request; and
(h) make available for inspection by each seller of Registerable Stock, by
any underwriter participating in any distribution pursuant to such registration
statement, and by any attorney, accountant or other agent retained by such
seller or underwriter, all financial and other records, pertinent corporate
documents and properties of the Company, and cause the Company's officers,
directors and employees to supply all information reasonably requested by any
such seller, underwriter, attorney, accountant or agent in connection with such
registration statement.
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For purposes of this Agreement, the period of distribution, if not
otherwise described in the Registration Statement of Registerable Stock in a
firm commitment underwritten public offering shall be deemed to extend until
each underwriter has completed the distribution of all securities purchased by
it, and the period of distribution of Registerable Stock in any other
registration shall be deemed to extend until the earlier of the sale of all
Registerable Stock covered thereby or 120 days after the effective date thereof.
In connection with each registration hereunder, the sellers of Registerable
Stock will furnish to the Company in writing such information with respect to
themselves and the proposed distribution by them as reasonably shall be
necessary in order to assure compliance with federal and applicable state
securities laws.
In connection with each registration pursuant to Section 3 or 4 covering an
underwritten public offering, the Company and each seller agree to enter into a
written agreement with the managing underwriter selected in the manner herein
provided in such form and containing such provisions as are customary in the
securities business for such an arrangement between such underwriter and
companies of the Company's size and investment stature.
6. Expenses. All expenses incurred by the Company in complying with
Sections 3 or 4, including all registration and filing fees, printing expenses,
fees and disbursements of counsel and independent public accountants for the
Company, reasonable fees and expenses (including counsel fees) incurred in
connection with complying with state securities or "blue sky" laws, fees of the
National Association of Securities Dealers, Inc., transfer taxes, fees of
transfer agents and registrars, cost of insurance,and reasonable fees and
disbursements of one counsel for the sellers of Registerable Stock, but
excluding any Selling Expenses, are called "Registration Expenses". "Selling
Expenses" shall include only such underwriting discounts and selling commissions
applicable to the sale of any Registerable Stock which would not have been
incurred in the absence of the registration and sale of the Registerable Stock.
The Company will pay all Registration Expenses in connection with each
registration statement filed pursuant to Sections 3 and 4; provided, however,
that in connection with a registration statement filed under Section 4, the
Company shall not be obligated to pay fees and expenses (including counsel fees)
incurred in connection with complying with state securities laws in any state in
which the Company is not otherwise registering for sale any of the shares the
Company proposes to sell in the offering. All Selling Expenses in connection
with each registration statement filed pursuant to Sections 3 or 4 shall be
borne by the participating sellers in proportion to the number of shares sold by
each, or by such participating sellers as they may agree.
7. Indemnification and Contribution. (a). In the event of a registration of
any of the Registerable Stock under the Securities Act pursuant to Sections 3 or
4, the Company
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will indemnify and hold harmless each seller of such Registerable Stock
thereunder, each underwriter of such Registerable Stock thereunder and each
other person, if any, who controls such seller or underwriter within the meaning
of the Securities Act, against any losses, claims, damages or liabilities, joint
or several, to which such seller, underwriter or controlling person may become
subject under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in any registration statement under which such Registrable Stock was
registered under the Securities Act pursuant to Sections 3 or 4, any preliminary
prospectus or final prospectus contained therein, or any amendment or supplement
thereof, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse each such seller, each
such underwriter and each such controlling person for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable in any such case if and to the extent that
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission so
made in conformity with information furnished by any seller, underwriter or
controlling person in writing specifically for use in such registration
statement or prospectus.
(b) In the event of a registration of any of the Registerable Stock under
the Securities Act pursuant to Sections 3 or 4, each seller of such Registerable
Stock thereunder, severally and not jointly, will indemnify and hold harmless
the Company, each person, if any, who controls the Company within the meaning of
the Securities Act, each officer of the Company who signs the registration
statement, each director of the Company, each underwriter and each person who
controls any underwriter within the meaning of the Securities Act, against all
losses, claims, damages or liabilities, joint or several, to which the Company
or such officer, director, underwriter or controlling person may become subject
under the Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact contained
in the registration statement under which such Registerable Stock was registered
under the Securities Act pursuant to Section 3 or 4, any preliminary prospectus
or final prospectus contained therein, or any amendment or supplement thereof,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse the Company and each such
officer, director, underwriter and controlling person for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that such seller will be liable hereunder in any such case only if and to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in reliance upon and in conformity with information pertaining to
such seller, as such, furnished
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in writing to the Company by such seller specifically for use in such
registration statement or prospectus; provided, further, that the liability of
each seller hereunder shall be limited to the proportion of any such loss,
claim, damage, liability or expense which is equal to the proportion that the
public offering price of the shares sold by such seller under such registration
statement bears to the total public offering price of all securities sold
thereunder, but not in any event to exceed the proceeds received by such seller
from the sale of Registerable Stock covered by such registration statement.
(c) Promptly after receipt by an indemnified party hereunder of notice of
the commencement of any action, such indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party hereunder, notify
the indemnifying party in writing thereof, but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
such indemnified party other than under this Section 7 and shall only relieve
it from any liability which it may have to such indemnified party under this
Section 7 if and to the extent the indemnifying party is prejudiced by such
omission. In case any such action shall be brought against any indemnified
party and it shall notify the indemnifying party of the commencement thereof,
the indemnifying party shall be entitled to participate in and, to the extent
it shall wish, to assume and undertake the defense thereof with counsel
reasonably satisfactory to such indemnified party, and, after notice from the
indemnifying party to such indemnified party of its election so to assume and
undertake the defense thereof, the indemnifying party shall not be liable to
such indemnified party under this Section 7 for any legal expenses subsequently
incurred by such indemnified party in connection with the defense thereof other
than reasonable costs of investigation and of liaison with counsel so selected;
provided, however, that, if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be defenses available to it which are
different from or additional to those available to the indemnifying party or if
the interests of the indemnified party reasonably may be considered by the
indemnified party to conflict with the interests of the indemnifying party, the
indemnified party shall have the right to select a separate counsel and to
assume such legal defenses and otherwise to participate in the defense of such
action with reasonable expenses and fees of such separate counsel and other
expenses related to such participation to be reimbursed by the indemnifying
party as incurred. No indemnifying party, in defense of any such action, shall,
except with the consent of each indemnified party, consent to the entry of any
judgment or enter into any settlement (i) 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 action or
(ii) which involves any relief against the indemnified party other than the
payment of money which is to be paid in full by the indemnifying party.
(d) In order to provide for just and equitable contribution to joint
liability under the Securities Act in any case in which either (i) any holder
of Registerable Stock exercising rights under this Agreement, or any
controlling person of any such holder, makes a claim for indemnification
pursuant to this Section 7 but it is judicially determined (by the
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entry of a final judgment or decree by a court of competent jurisdiction and the
expiration of time to appeal or the denial of the last right of appeal) that
such indemnification may not be enforced in such case notwithstanding the fact
that this Section 7, provides for indemnification in such case, or (ii)
contribution under the Securities Act may be required on the part of any such
selling holder or any such controlling person in circumstances for which
indemnification is provided under this Section 7; then, and in each such case,
the Company and such holder will contribute to the aggregate losses, claims,
damages or liabilities to which they may be subject (after contribution from
others) in such proportion so that such holder is responsible for the portion
represented by the percentage that the public offering price of its Registerable
Stock offered by the registration statement bears to the public offering price
of all securities offered by such registration statement, and the Company is
responsible for the remaining portion; provided, however, that, in any such
case, (A) no such holder will be required to contribute any amount in excess of
the public offering price of all such Registerable Stock sold by such holder
pursuant to such registration statement; and (B) no person or entity guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) will be entitled to contribution from any person or entity who
was not guilty of such fraudulent misrepresentation.
8. CHANGES IN COMMON STOCK OR SERIES A-I PREFERRED STOCK. If, and as often
as, there is any change in the Common Stock or the Series A-I Preferred Stock by
way of a stock split, stock dividend, combination or reclassification, or
through a merger, consolidation, reorganization or recapitalization, or by any
other means, appropriate adjustment shall be made in the provisions hereof so
that the rights and privileges granted hereby shall continue with respect to the
Common Stock or the Series A-I Preferred Stock as so changed.
9. RULE 144 REPORTING. With a view to making available the benefits of
certain rules and regulations of the Commission which may at any time permit the
sale of the Registerable Stock to the public without registration, at all times
after 90 days after any registration statement covering a public offering of
securities of the Company under the Securities Act shall have become effective
(or the Company shall otherwise have become subject to the periodic reporting
requirements of the Exchange Act), the Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act;
(b) use its best efforts to file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act; and
(c) furnish to each holder of Registerable Stock forthwith upon
request a written statement by the Company as to its compliance with the
reporting requirements of such Rule 144 and of the Securities Act and the
Exchange Act, a
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copy of the most recent annual or quarterly report of the Company, and
such other reports and documents so filed by the Company as such holder
may reasonably request in availing itself of any rule or regulation of
the Commission allowing such holder to sell any Registerable Stock
without registration.
10. Representations and Warranties of the Company. The Company represents
and warrants to you as follows:
(a) The execution, delivery and performance of this Agreement by the
Company have been duly authorized by all requisite corporate action and
will not violate any provision of law, any order of any court or other
agency of government, the Articles of Organization or By-laws of the
Company or any provision of any indenture, agreement or other instrument
to which it or any of its properties or assets is bound, conflict with,
result in a breach of or constitute (with due notice or lapse of time or
both) a default under any such indenture, agreement or other instrument or
result in the creation or imposition of any lien, charge or encumbrance of
any nature whatsoever upon any of the properties or assets of the Company.
(b) This Agreement has been duly executed and delivered by the
Company and constitutes the legal, valid and binding obligation of the
Company, enforceable in accordance with its terms, subject to (i)
applicable bankruptcy, insolvency, reorganization, fraudulent conveyance
and moratorium laws and other laws of general application affecting
enforcement of creditors' rights generally and (ii) the availability of
equitable remedies as such remedies may be limited by equitable principles
of general applicability (regardless of whether enforcement is sought in a
processing in equity or at law).
11. Miscellaneous. (a) All covenants and agreements contained in this
Agreement by or on behalf of any of the parties hereto shall bind and inure to
the benefit of the respective successors and assigns of the parties hereto
(including transferees of any Registerable Stock), whether so expressed or not;
provided, however, that registration rights conferred herein on an Investor
shall only inure to the benefit of a transferee of Registerable Stock if (i)
there is transferred to a direct or indirect transferee of the Investor at
least 40% of the total shares of Registerable Stock purchased by the Investor
pursuant to the Purchase Agreement or (ii) such transferee is a partner,
shareholder or affiliate of the Investor. The Company shall be notified of
any transfers of Registerable Stock at the time thereof.
(b) All notices, requests, consents and other communications
hereunder shall be in writing and shall be mailed by certified or registered
mail, return receipt requested, postage pre-paid, or telexed, in the case of
non-U.S. residents, addressed as follows:
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if to the Company or an Investor, at the address of such party set
forth in the Purchase Agreement;
if to any subsequent holder of Registerable Stock, to it at such
address as may have been furnished to the Company in writing by such
holder;
or, in any case, at such other address or addresses as shall have been
furnished in writing to the Company (in the case of a holder of Registerable
Stock) or to the holders of Registerable Stock (in the case of the Company) in
accordance with the provisions of this paragraph.
(c) This Agreement shall be governed by and construed in accordance
with the laws of the Commonwealth of Massachusetts (without giving effect to
its choice of law principles).
(d) The Company may not, without the prior written consent of the
holders of at least two-thirds of the then outstanding shares of Registerable
Stock, grant any rights to any persons to register shares of capital stock or
securities of the Company unless such rights are, by their terms, substantially
identical to the rights of the holders of Registerable Stock granted pursuant
to this Agreement.
(e) 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.
(f) The obligations of the Company to register shares of
Registerable Stock under Sections 3 or 4 shall terminate on July 1, 2002,
unless such obligations terminate earlier in accordance with the terms of this
Agreement.
(g) If requested in writing by the underwriters for the initial
underwritten public offering of securities of the Company, each holder of
Registerable Stock who is a party to this Agreement or one of the several
separate agreements of even date herewith with other purchasers of Series A-I
Preferred Stock shall agree not to sell publicly any shares of Registerable
Stock or any other shares of Common Stock (other than shares of Registerable
Stock or other shares of Common Stock being registered in such offering),
without the consent of such underwriters, for a period of not more than 120 days
following the effective date of the registration statement relating to such
initial public offering: provided, however, that the Company shall have
certified to each such holder that all persons entitled to registration rights
with respect to shares of Common Stock who are not parties to this Agreement,
all other persons selling shares of Common Stock in such offering and all
executive officers and directors of the Company shall also have agreed not to
sell publicly their Common Stock under the circumstances and pursuant to the
terms set forth in this Section 11(g).
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(h) Notwithstanding the provisions of Section 5(a), the Company's
obligation to file a registration statement, or cause such registration
statement to become and remain effective, shall be suspended for a period not
to exceed 30 days (and for periods not exceeding, in the aggregate, 60 days in
any 24-month period) if there exists at the time material non-public
information relating to the Company which, in the reasonable opinion of the
Company, should not be disclosed.
(i) If any provision of this Agreement shall be held to be illegal,
invalid or unenforceable, such illegality, invalidity or unenforceability shall
attach only to such provision and shall not in any manner affect or render
illegal, invalid or unenforceable any other provision of this Agreement, and
this Agreement shall be carried out as if any such illegal, invalid or
unenforceable provision were not contained herein.
(j) Except as otherwise provided herein, neither this Agreement nor any
provision hereof can be modified, changed, discharged or terminated except by
an instrument in writing signed by the party against whom the enforcement of
any modification, change, discharge or termination is sought or by the written
consent of the Company and the holders of at least two-thirds of the then
outstanding shares of Registerable Stock; provided, however, that no
modification or amendment shall be effective to reduce the percentage of the
shares of Registerable Stock the consent of the holders of which is required
under this Section 11(j).
-13-
14
IN WITNESS WHEREOF, the Company and the Purchasers have executed this
Agreement as of the day and year first above written.
INTRACEL CORPORATION
By: /s/ XXXXX X. XxXXXXXX
--------------------------------------------
[Corporate Seal] Name: Xxxxx X. XxXxxxxx
Title: President and Chief Executive Officer
PURCHASER:
SECURITY INSURANCE COMPANY OF HARTFORD
By: /s/ XXXXXXX X. XXXXXXX
----------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
Address: c/o Orion Capital Corporation
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
15
IN WITNESS WHEREOF, the Company and the Purchasers have executed this
Agreement as of the day and year first above written.
INTRACEL CORPORATION
By: /s/ XXXXX X. XxXXXXXX
--------------------------------------------
[Corporate Seal] Name: Xxxxx X. XxXxxxxx
Title: President and Chief Executive Officer
PURCHASERS:
By: /s/ XXXXX X. XXXXXXX
--------------------------------------------
Name: Xxxxx Xxxxxxx, individually
Address: c/o Spectrum Asset Management
0 Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
By: /s/ XXXX XXXX
--------------------------------------------
Name: Xxxx Xxxx, individually
Address: c/o Spectrum Asset Management
0 Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
16
IN WITNESS WHEREOF, the Company and the Purchasers have executed this
Agreement as of the day and year first above written.
INTRACEL CORPORATION
By: /s/ Xxxxx X. XxXxxxxx
--------------------------------------------
[Corporate Seal] Name: Xxxxx X. XxXxxxxx
Title: President and Chief Executive Officer
PURCHASER:
TD PARTNERS
By: /s/ Xxxxxx Xxx Dial
----------------------------------------------
Name: Xxxxxx Xxx Dial
Title: General Partner
Address: 0 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
17
IN WITNESS WHEREOF, the Company and the Purchasers have executed this
Agreement as of the day and year first above written.
INTRACEL CORPORATION
By: /s/ Xxxxx X. XxXxxxxx
------------------------------------------
[Corporate Seal] Name: Xxxxx X. XxXxxxxx
Title: President and Chief Executive
Officer
PURCHASER:
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx, individually
Address: 0 Xxxxx Xxx
Xxxxxx Xxxxxx, XX 00000
18
IN WITNESS WHEREOF, the Company and the Purchasers have executed this
Agreement as of the day and year first above written.
INTRACEL CORPORATION
By: /s/ Xxxxx X. XxXxxxxx
------------------------------------------
[Corporate Seal] Name: Xxxxx X. XxXxxxxx
Title: President and Chief Executive
Officer
PURCHASER:
DUBLIND PARTNERS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
Address: 0 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
19
IN WITNESS WHEREOF, the Company and the Purchasers have executed this
Agreement as of the day and year first above written
INTRACEL CORPORATION
By: /s/ Xxxxx X. XxXxxxxx
--------------------------------------
[Corporate Seal] Name: Xxxxx X. Xxxxxxxx
Title: President and Chief Executive
Officer
PURCHASER:
NORTHSTAR ADVANTAGE HIGH
TOTAL RETURN
By: /s/ Xxxxxx Xxx Dial
--------------------------------------
Name: Xxxxxx Xxx Dial
Title: Vice President
Address: 0 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
20
IN WITNESS WHEREOF, the Company and the Purchasers have executed this
Agreement as of the day and year first above written
INTRACEL CORPORATION
By: /s/ Xxxxx X. XxXxxxxx
--------------------------------------
[Corporate Seal] Name: Xxxxx X. Xxxxxxxx
Title: President and Chief Executive
Officer
PURCHASER:
NORTHSTAR HIGH YIELD FUND
By: /s/ Xxxxxx Xxx Dial
--------------------------------------
Name: Xxxxxx Xxx Dial
Title: Vice President
Address: 0 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
21
IN WITNESS WHEREOF, the Company and the Purchasers have executed this
Agreement as of the day and year first above written.
INTRACEL CORPORATION
By: /s/ XXXXX X. XxXXXXXX
[Corporate Seal] -------------------------------------
Name: Xxxxx X. XxXxxxxx
Title: President and Chief Executive
Officer
PURCHASER
XXXXXXX X. XXXXXXX XXX ACCOUNT
TRUST UA #0001233610
By: /s/ XXXXXXX X. XXXXXXX
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title:
Address: 0 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
