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EXHIBIT 10.42
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of July 16, 1998 by and among RIBOGENE, INC., a Delaware
corporation (the "Company"), and XXXXXXX PHARMACEUTICAL CORPORATION, a New
Jersey corporation ("Xxxxxxx").
RECITALS
WHEREAS, Xxxxxxx is a party to that certain Series A Preferred Stock
Purchase Agreement, dated July 6, 1998, by and among the Company and Xxxxxxx
(the "Purchase Agreement"), pursuant to which certain of the Company's and
Xxxxxxx'x obligations are conditioned upon the execution and delivery by Xxxxxxx
and the Company of this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the mutual
promises and covenants contained herein, the parties agree as follows:
1.1 DEFINITIONS. As used in this Agreement the following terms
shall have the following respective meanings:
"Conversion Shares" means all of the shares of Common Stock of the
Company resulting from conversion of the Shares and any shares of Common Stock
issued in respect of the Shares upon any stock split, stock dividend,
recapitalization or similar event.
"Form S-3" means such form under the Securities Act as in effect on
the date hereof or any successor registration form under the Securities Act
subsequently adopted by the SEC which permits inclusion or incorporation of
substantial information by reference to other documents filed by the Company
with the SEC.
"Register," "registered," and "registration" refer to a registration
effected by preparing and filing a registration statement in compliance with the
Securities Act, as defined below, and the declaration or ordering of
effectiveness of such registration statement or document.
"Registration Expenses" means all expenses incurred by the Company in
complying with Sections 2.2, 2.3 and 2.4 hereof, including, without limitation,
all registration and filing fees, printing expenses, fees and disbursements of
counsel for the Company, reasonable fees and disbursements of a single special
counsel for Xxxxxxx for a due diligence examination of the Company, 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).
"Securities Act" means the Securities Act of 1933, as amended.
"Selling Expenses" means all underwriting discounts and selling
commissions applicable to the sale of the Conversion Shares.
"SEC" or "Commission" means the Securities and Exchange Commission.
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"Shares" means all of the Company's Series A Preferred Stock issued
pursuant to the Purchase Agreement.
2. Restrictions on Transfer; Registration.
2.1 Restrictions on Transfer.
(a) Xxxxxxx agrees not to make any disposition of all or any
portion of the Shares or Conversion Shares unless and until the transferee has
agreed in writing for the benefit of the Company to be bound by this Section
2.1, provided and to the extent such Section is then applicable and:
(i) There is then in effect a registration statement
under the Securities Act covering such proposed disposition and such disposition
is made in accordance with such registration statement; or
(ii) (A) Xxxxxxx shall have notified the Company of the
proposed disposition and shall have furnished the Company with a detailed
statement of the circumstances surrounding the proposed disposition, and (B) if
reasonably requested by the Company, Xxxxxxx shall have furnished the Company
with an opinion of counsel, reasonably satisfactory to the Company, that such
disposition will not require registration of such shares under the Securities
Act. It is agreed that the Company will not require opinions of counsel for
transactions made pursuant to Rule 144.
(b) Each certificate representing Shares or Conversion
Shares shall (unless otherwise permitted by the provisions of the Agreement) be
stamped or otherwise imprinted with a legend substantially similar to the
following:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE
SOLD, OFFERED FOR SALE, TRANSFERRED OR ASSIGNED UNLESS (A) PURSUANT TO
SEC RULE 144 OR (B) THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE 1933 ACT COVERING SUCH SECURITIES OR (C) RIBOGENE, INC. RECEIVES AN
OPINION OF COUNSEL FOR THE HOLDER OF THESE SECURITIES REASONABLY
SATISFACTORY TO RIBOGENE, INC., STATING THAT SUCH SALE, OFFER FOR SALE,
TRANSFER OR ASSIGNMENT IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS
DELIVERY REQUIREMENTS OF THE 1933 ACT."
(c) The Company shall be obligated to reissue promptly
unlegended certificates at the request of any holder thereof if the holder shall
have obtained an opinion of counsel (which counsel may be counsel to the
Company) reasonably acceptable to the Company to the effect that the securities
proposed to be disposed of may lawfully be so disposed of without registration,
qualification or legend.
(d) Any legend endorsed on an instrument pursuant to
applicable state securities laws and the stop-transfer instructions with respect
to such securities shall be removed
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upon receipt by the Company of an order of the appropriate blue sky authority
authorizing such removal.
2.2 Requested Registration.
(a) REQUEST FOR REGISTRATION. On or after the date one year
from the date hereof (the "First Anniversary") and subject to and in compliance
with the provisions of this Section 2.2 and Section 4, Xxxxxxx may request
registration of up to twenty percent (20%) of the Conversion Shares in any
twelve (12) month period. In case the Company shall receive from Xxxxxxx a
written request that the Company effect any registration with respect to a
permissible portion of the Conversion Shares, the Company will use its
commercially reasonable best efforts to effect such registration (including,
without limitation, preparation of a registration statement and prospectus
complying as to form with the requirements of the Securities Act, the execution
of an undertaking to file post-effective amendments, appropriate qualifications
under the applicable blue sky or other state securities laws and appropriate
compliance with exemptive regulations issued under the Securities Act and any
other governmental requirements or regulations) as may be so requested and as
would permit or facilitate the sale and distribution of such Conversion Shares
as is specified in such request; provided, that the Company shall not be
obligated to take any action to effect such registration pursuant to this
Section 2.2:
(1) If the Company has already registered 20% of the
Conversion Shares, in the aggregate, under this Section and Section 2.4 hereof
within 12 months prior to the Xxxxxxx request; or
(2) If the Company has effected six (6) registrations
pursuant to this Section 2.2, and such registrations have been declared or
ordered effective; or
(3) If the Company qualifies at that time to register
the securities requested to be registered pursuant to a registration described
in Section 2.4 hereof; or
(4) If the underwriter of a firm commitment
underwritten public offering so requests, for a period of ninety (90) days
following the effective date of any registration statement covering such
offering.
Subject to the foregoing clauses (1) through (4), the Company shall file a
registration statement covering the Conversion Shares so requested to be
registered as soon as practical, but in any event within 60 days after receipt
of the request or requests of Xxxxxxx; provided, however, that if within 30 days
after receipt of such request or requests the Company shall furnish to Xxxxxxx a
certificate signed by the President or Chief Executive Officer of the Company
stating that in the good faith judgment of the Board of Directors it would be
seriously detrimental to the Company for the reasons stated in such certificate
for such registration statement to be filed at the date filing would be required
and it is therefore essential to defer the filing of such registration
statement, the Company shall be entitled to delay the filing of such
registration statement not more than once in any twelve month period for a
period of up to 120 days after receipt of such request or requests.
(b) UNDERWRITING. If Xxxxxxx intends to distribute the
Conversion Shares covered by its request by means of an underwriting, it shall
so advise the Company as a
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part of its request made pursuant to Section 2.2. The Company shall enter into
an underwriting agreement in customary form and consistent with the terms hereof
with the underwriter or underwriters selected for such underwriting by the
Company, provided, however, that the managing underwriter shall be approved by
Xxxxxxx, which approval shall not be unreasonably withheld. Notwithstanding any
other provision of this Section 2.2, if the underwriter advises Xxxxxxx in
writing that marketing factors require a limitation of the number of Conversion
Shares to be underwritten, the Company shall so advise Xxxxxxx, and the number
of shares that may be included in the underwriting may be reduced. Any
Conversion Shares which are excluded from the underwriting by reason of the
underwriter's marketing limitation or withdrawn from such underwriting shall be
withdrawn from such registration.
2.3 Company Registration.
(a) RIGHT TO INCLUDE. Subject to and in compliance with the
provisions of this Section 2.3 and Section 4, if at any time or from time to
time following the First Anniversary, the Company proposes to register any of
its securities, for its own account or the account of any of its stockholders
other than Xxxxxxx (other than a registration relating solely to employee
benefit plans or with respect to corporate reorganizations or other transactions
under Rule 145 of the Securities Act), the Company will:
(i) promptly give to Xxxxxxx written notice thereof;
and
(ii) include in such registration (and any related
qualification under blue sky laws or other compliance with applicable laws), and
in any underwriting involved therein, all the Conversion Shares specified in a
written request or requests by Xxxxxxx, made within 20 days after receipt of
such written notice from the Company; provided, however, that the Company shall
not be required to register more than 20% of the Conversion Shares in any
consecutive twelve (12) month period.
(b) UNDERWRITING. If the registration of which the Company
gives notice is for a registered public offering involving an underwriting, the
Company shall so advise Xxxxxxx as a part of the written notice given pursuant
to subsection 2.3(a)(i). In such event the right of Xxxxxxx to registration
pursuant to Section 2.3 shall be conditioned upon Xxxxxxx'x participation in
such underwriting and the inclusion of Xxxxxxx'x Conversion Shares in the
underwriting to the extent provided herein. Xxxxxxx shall (together with the
Company and the other holders distributing their securities through such
underwriting) enter into an underwriting agreement in customary form and
consistent with the terms hereof with the underwriter or underwriters selected
for such underwriting by the Company. Notwithstanding any other provision of
this Section 2.3, if the underwriter determines that marketing factors require a
limitation of the number of shares to be underwritten, the underwriter may limit
the number of Conversion Shares to be included in the registration and
underwriting. In the event of a cutback by the underwriters of the number of
shares to be included in the registration and underwriting, the Company shall so
advise Xxxxxxx, and the number of shares that may be included in the
underwriting shall be allocated, first, to the Company; second to Xxxxxxx
(subject to Section 4 herein); and third, to any stockholder of the Company
(other than Xxxxxxx) on a pro rata basis. If Xxxxxxx disapproves of the terms of
any such underwriting, it may elect to withdraw therefrom
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by written notice to the Company and the underwriter. Any Conversion Shares
excluded or withdrawn from such underwriting shall be withdrawn from such
registration.
2.4 FORM S-3. After the Company has qualified for the use of Form
S-3, Xxxxxxx shall have the right to request an unlimited number of
registrations on Form S-3 (such requests shall be in writing and shall state the
number of shares of Conversion Shares to be disposed of and the intended method
of disposition of Conversion Shares), subject to the provisions of Section 4 and
the following:
(a) The Company shall not be required to effect a
registration pursuant to this Section 2.4 within 120 days of the effective date
of any registration referred to in Section 2.2 or 2.3 above.
(b) The Company shall not be required to register greater
than 20% of the Conversion Shares in any consecutive 12 month period.
(c) The Company shall not be required to effect a
registration pursuant to this Section 2.4 if Form S-3 (or any successor or
similar form) is not available for such offering by Xxxxxxx.
(d) The Company shall not be required to effect more than
two (2) registrations on Form S-3 for Xxxxxxx pursuant to this Section 2.4
within any consecutive twelve (12) month period.
The Company will use its best efforts to effect promptly the registration of
Conversion Shares on Form S-3 to the extent requested by Xxxxxxx for purposes of
disposition; provided, however, that if within 30 days after receipt of such
request or requests the Company shall furnish to Xxxxxxx a certificate signed by
the President or Chief Executive Officer of the Company stating that in the good
faith judgment of the Board of Directors it would be seriously detrimental to
the Company for the reasons stated in such certificate for such registration
statement to be filed at the date filing would be required and it is therefore
essential to defer the filing of such registration statement, the Company shall
be entitled to delay the filing of such registration statement not more than
once in any twelve-month period for a period of up to 120 days after receipt of
such request or requests. Any registration pursuant to this Section 2.4 shall
not be counted as a registration pursuant to Section 2.2.
2.5 EXPENSES OF REGISTRATION. Except as specifically provided
herein, all Registration Expenses incurred in connection with any registration,
qualification or compliance pursuant to Section 2.2 or any registration under
Section 2.3 or 2.4 herein shall be borne by the Company. All Selling Expenses
incurred in connection with any registrations hereunder, shall be borne by the
holders of the securities so registered pro rata on the basis of the number of
shares so registered. The Company shall not, however, be required to pay for
expenses of any registration proceeding begun pursuant to Section 2.2. or 2.4,
the request of which has been subsequently withdrawn by Xxxxxxx unless (a) the
withdrawal is based upon material adverse information concerning the Company of
which Xxxxxxx was not aware at the time of such request or (b) Xxxxxxx agrees to
forfeit its right to one requested registration pursuant to Section 2.2. If the
Company is required to pay the Registration Expenses of a withdrawn offering
pursuant to
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clause (a) above, then Xxxxxxx shall not forfeit its rights pursuant to Section
2.2 to a demand registration.
2.6 REGISTRATION PROCEDURES. In the case of each registration,
qualification or compliance effected by the Company pursuant to this Agreement,
the Company will keep Xxxxxxx advised in writing as to the initiation of each
registration, qualification and compliance and as to the completion thereof. At
its expense the Company will:
(a) Keep such registration, qualification or compliance
pursuant to Sections 2.2, 2.3 or 2.4 effective for a period of 120 days or until
Xxxxxxx has completed the distribution described in the registration statement
relating thereto, whichever first occurs;
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement;
(c) Furnish to Xxxxxxx such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as it may
reasonably request in order to facilitate the disposition of the Conversion
Shares;
(d) Notify Xxxxxxx at any time when a prospectus relating
thereto is required to be delivered under the Securities Act or the happening of
any event as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the circumstances
then existing, and, in any such case, prepare and furnish to Xxxxxxx a
reasonable number of copies of a supplement to or amendment of such prospectus
as may be necessary so that, as thereafter delivered to purchasers of such
Conversion Shares, such prospectus shall not include an untrue statement of a
material fact or omit 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;
(e) Use its best efforts to register and qualify the
securities covered by such registration statement under such other securities or
Blue Sky laws of such United States jurisdictions as shall be reasonably
requested by Xxxxxxx; provided that the Company shall not be required in
connection therewith or as a condition thereto to qualify to do business or to
file a general consent to service of process in any such states or
jurisdictions, unless the Company is already subject to service in such
jurisdiction and except as may be required by the Securities Act;
(f) Cause all such Conversion Shares registered under this
Section 2 to be listed on each securities exchange on which similar securities
issued by the Company are then listed;
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(g) Provide a transfer agent and registrar for all
Conversion Shares and a CUSIP number for all such Conversion Shares, in each
case not later than the effective date of such registration; and
(h) Furnish, at the request of Xxxxxxx, on the date that
such Conversion Shares are delivered to the underwriters for sale in connection
with such registration, 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,
(i) an opinion, dated 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, addressed to the underwriters,
if any, and to Xxxxxxx, and (ii) a letter dated 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, addressed to the underwriters, if any, and to
Xxxxxxx.
2.7 INDEMNIFICATION.
(a) The Company will indemnify and hold harmless Xxxxxxx and
its officers and directors, with respect to which such registration,
qualification or compliance has been effected pursuant to this Agreement, and
each underwriter, if any, and each person who controls any underwriter of the
Conversion Shares, against all claims, losses, expenses (including, without
limitation, reasonable legal fees and expenses), damages and liabilities (or
actions in respect thereto) arising out of or based on any untrue statement (or
alleged untrue statement) of a material fact contained in any preliminary or
final 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 or
alleged violation by the Company relating to action or inaction required of the
Company in connection with any role or regulation promulgated under the
Securities Act or any state securities law applicable to the Company and will
reimburse Xxxxxxx and its officers and directors, and each such underwriter and
each person who controls any such underwriter, for any reasonable legal and any
other expenses incurred in connection with investigating, defending or settling
any such claim, loss, damage, liability or action; provided, however, that the
Company will not be liable in any such case to the extent that any such claim,
loss, damage or liability arises out of or is based on any untrue statement or
omission based upon written information furnished to the Company in an
instrument duly executed by Xxxxxxx or underwriter specifically for use therein,
and provided further that the agreement of the Company to indemnify any
underwriter and any person who controls such underwriter contained herein with
respect to any such preliminary prospectus shall not inure to the benefit of any
underwriter, from whom the person asserting any such claim, loss, damage,
liability or action purchased the stock which is the subject thereof, if at or
prior to the written confirmation of the sale of such stock, a copy of the
prospectus (or the prospectus as amended or supplemented) was not sent or
delivered to such person, excluding the documents incorporated therein by
reference, and the untrue statement or omission of a material fact contained in
such preliminary prospectus was corrected in the prospectus (or the prospectus
as amended or supplemented).
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(b) Xxxxxxx will indemnify and hold harmless the Company and
its officers and directors, each underwriter, if any of the Company's securities
covered by such a registration statement, each person who controls the Company
within the meaning of the Securities Act, and each other such stockholder
included in such Registration Statement and each of its respective officers,
directors and partners and each person controlling each such other stockholder,
against all claims, losses, expenses (including, without limitation, reasonable
legal fees and expenses), 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 preliminary or final 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, and will reimburse the Company, such
other stockholders, such directors, officers, partners, persons or underwriters
for any reasonable legal or any other expenses incurred in connection with
investigating, defending or settling any such claim, loss, damage, liability or
action, in each case to the extent, but only to the extent, that such untrue
statement (or alleged untrue statement) or omission (or alleged omission) is
made in such registration statement, prospectus, offering circular or other
document in reliance upon and in conformity with written information furnished
to the Company in an instrument duly executed by Xxxxxxx specifically for use
therein, and provided further that the agreement of Xxxxxxx to indemnify any
underwriter and any person who controls such underwriter contained herein with
respect to any such preliminary prospectus shall not inure to the benefit of any
underwriter, from whom the person asserting any such claim, loss, damage,
liability or action purchased the stock which is the subject thereof, if at or
prior to the written confirmation of the sale of such stock, a copy of the
prospectus (or the prospectus as amended or supplemented) was not sent or
delivered to such person, excluding the documents incorporated therein by
reference, and the untrue statement or omission of a material fact contained in
such preliminary prospectus was corrected in the prospectus (or the prospectus
as amended or supplemented). Notwithstanding the foregoing, in no event shall
the indemnification provided by Xxxxxxx hereunder exceed the net proceeds
received by Xxxxxxx for the sale of Conversion Shares pursuant to such
registration.
(c) Each party entitled to indemnification under this
Section 2.7 (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. The Indemnified Party shall promptly permit the Indemnifying Party to
assume the defense of any such claim or any litigation resulting therefrom,
provided that counsel for the Indemnifying Party, who shall conduct the defense
of such claim or litigation, shall be approved by the Indemnified Party (whose
approval shall not be unreasonably be withheld). The Indemnified Party may
participate in such defense and hire counsel at such party's own expense. The
failure of any Indemnified Party to give notice as provided herein shall not
relieve the Indemnifying Party of its obligations hereunder, unless such failure
is materially prejudicial to an Indemnifying Party's ability to defend such
action. No Indemnifying Party, in the defense of any such claim or litigation,
shall, except with the consent of the 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 In Indemnified
Party of a release from all liability in respect to such claim or litigation.
Any
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Indemnified Party shall cooperate with the Indemnifying Party in the defense
of any claim or litigation brought against such Indemnified Party.
2.8 LOCK-UP PROVISION. Upon receipt of a written request by the
Company or by its underwriters, Xxxxxxx shall enter into an agreement with the
Company to not sell, sell short, grant an option to buy, or otherwise dispose of
shares of the Company's Common Stock or other securities of the Company (except
for any such shares included in the registration) for a period of 180 days
following the effective date of a registration statement of the Company filed
under the Securities Act; provided, that all executive officers and directors of
the Company enter into similar agreements. The Company may impose stop-transfer
instructions with respect to the shares (or securities) subject to the foregoing
restriction until the end of said 180-day period.
2.9 RULE 144 REPORTING. With a view of making available the
benefits of certain rules and regulations of the Commission which may permit the
sale of the Conversion Shares to the public without registration, 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 at any time after it has become subject to
such reporting requirements; and
(c) So long as Xxxxxxx owns any Conversion Shares, furnish
to Xxxxxxx forthwith upon written 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 Xxxxxxx may reasonably request in availing itself of any rule or regulation
of the Commission allowing Xxxxxxx to sell any Conversion Shares without
registration.
2.10 INFORMATION BY XXXXXXX. Xxxxxxx shall promptly furnish to
the Company such information regarding Xxxxxxx and the distribution proposed by
Xxxxxxx as the Company may request in writing and as shall be required in
connection with any registration, qualification or compliance referred to
herein.
2.11 TERMINATION. The rights of Xxxxxxx under Section 2 of this
Agreement shall terminate on the earlier to occur of (a) the fifth anniversary
of the date hereof, or (b) the date on which Xxxxxxx can sell all of its Shares
or Conversion Shares, without registration pursuant to Rule 144 within a three
month period.
3. ASSIGNMENT OF RIGHTS.
The rights granted pursuant to this Agreement may be assigned to a
transferee or assignee of Securities which acquires at least 100,000 Shares (as
adjusted for stock splits, stock dividends and combinations; provided, however,
that such rights may not be assigned to a transferee which the Company
reasonably believes is a competitor or intends to become a competitor of the
Company (but in no event shall any bank, insurance company or other
institutional investor be or be deemed to be a competitor of the Company for
purposes hereof) and provided further that the
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Company is given prompt notice of such transfer and any such transferee shall
agree to become subject to the obligations of Xxxxxxx under this Agreement. Each
such transferee, provided that it complies with the conditions set forth herein,
shall be entitled to all the rights of Xxxxxxx under this Agreement.
4. REGISTRATION RIGHTS OF PRIOR SHAREHOLDERS.
Xxxxxxx acknowledges that it has received the agreements listed
in Exhibit A between the Company and certain shareholders regarding the grant of
registration rights ("Prior Rights") to such shareholders. Xxxxxxx further
acknowledges that the rights granted to it under this Agreement are subject to
the Prior Rights, including, without limitation:
(a) That Xxxxxxx' rights under Section 2.3 do not apply in
connection with a registration pursuant to that certain Investor Rights
Agreement by and among the Company, Paramount Capital, Inc. and the security
holders identified therein, dated June 23, 1997, as amended;
(b) That Xxxxxxx' rights under Section 2.3 may be restricted
by limitations imposed on the number of Conversion Shares registered in
connection with a registration pursuant to that certain Tenth Amended and
Restated Rights Agreement by and among the Company and the security holders
identified therein, dated February 25, 1997 (the "Tenth Amended and Restated
Rights Agreement"); and
(c) That pursuant to the Tenth Amended and Restated Rights
Agreement, certain parties thereto have the right to elect the registration
rights offered to Xxxxxxx hereunder.
5. MISCELLANEOUS.
5.1 AMENDMENT OR WAIVER. Any term of this Agreement may be
amended and the observance of any such term may be waived (either generally or
in a particular instance and either retroactively or prospectively) with the
written consent of the Company and Xxxxxxx; provided, however, that this
Agreement may be amended with only the written consent of the Company to include
additional parties as provided in Section 4(c) above.
5.2 GOVERNING LAW. This Agreement, including the validity hereof
and the rights and obligations of the parties hereunder, and all amendments and
supplements hereof and all waivers and consents, thereunder, shall be construed
in accordance with and governed by the domestic substantive laws of the State of
California without giving effect to any choice of law or conflicts of law
provision or rule that would cause the application of the domestic substantive
laws of any other jurisdiction.
5.3 ENTIRE AGREEMENT. This Agreement constitutes the full and
entire understanding and agreement between the parties with respect to the
subject hereof and it supersedes, merges, and renders void any and all prior
understandings and/or agreements, written or oral, with respect to such subject
matter.
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5.4 NOTICES. Any notice required or permitted by this Agreement
shall be in writing and shall be delivered as follows with the notice deemed
given as indicated: (i) by personal delivery when delivered personally; (ii) by
overnight courier upon written verification of receipt; (iii) by telecopy or
facsimile transmission upon acknowledgment of receipt of electronic
transmission; (iv) by certified or registered mail, return receipt requested,
upon verification of receipt. Notice shall be sent to the addresses set forth
above or such other address as either party may specify in writing.
If to the Company, to:
RiboGene, Inc.
00000 Xxxxxxxx Xxxx
Xxxxxxx, XX 00000
Attention: President and Chief Executive
Officer
with a copy to:
Xxxxxx Godward LLP
5 Palo Alto Square, 4th Floor
0000 Xx Xxxxxx Xxxx
Xxxx Xxxx, XX 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
if to Xxxxxxx, to:
Xxxxxxx Pharmaceutical Corporation
Meridian Center II
0 Xxxxxxxxxx Xxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Fax: (000) 000-0000
Attention: X. X. Xxxxxx, VP and General
Counsel
Notwithstanding the foregoing, all notices and other
communications to an address outside of the United States shall be sent by
telecopy and confirmed in writing to be sent by first class mail.
5.5 SEVERABILITY. In case any provision of this Agreement shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
5.6 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above written.
RIBOGENE, INC.
By:_________________________________
Title: Chairman, President and Chief
Executive Officer
XXXXXXX PHARMACEUTICAL CORPORATION
By:_________________________________
Title:______________________________
(Signature Page of Registration Rights Agreement)
12.
13
EXHIBIT A
PRIOR REGISTRATION RIGHTS AGREEMENTS
Investor Rights Agreement dated February 25, 1997, as amended
Tenth Amended and Restated Rights Agreement dated February 20, 1998
Xxxxxx Registration Rights Agreement dated June 2, 1998
13.
