EXHIBIT 10.15
AGREEMENT
This Agreement ("this Agreement") is made and entered into as of July 30,
1996, by and between Sensus Drug Development Corporation, a Delaware corporation
(the "Company"), and Javelin Capital Fund, LP, a Delaware limited partnership
("Javelin"), and is joined in by the undersigned stockholders of the Company
(together, the "Company Stockholders," individually, a "Company Stockholder"),
as set forth in this Agreement, to evidence their agreement as parties hereto to
vote their shares of stock to elect to the board of directors of the Company an
individual designated by Javelin, as provided in Section 2 of this Agreement.
WHEREAS, the Company is offering 685,714 shares (the "Shares") of its
Series A Preferred Stock to Javelin as set forth in certain agreements and
instruments separate from this Agreement; and
WHEREAS, the Company, to induce Javelin to purchase the Shares, has
offered- Javelin the registration rights and the right to representation on the
Company's board of directors as provided in this Agreement, and Javelin desires
to accept such offer.
NOW, THEREFORE, in consideration of the foregoing recitals, Javelin's
purchase of the Shares, and other good and valuable consideration, the receipt
of which is, hereby acknowledged, and in order to induce Javelin to purchase
Shares, the parties hereto agree as follows:
SECTION 1. COVENANT TO REGISTER.
1.1 DEFINITIONS. For the purposes of this Section 1 the following
definitions shall apply:
"Register," "registered," and "registration" refer to a registration under
the Securities Act effected by preparing and filing a registration statement or
similar document in compliance with the Securities Act, and the declaration or
ordering of effectiveness of such registration statement, document or amendment
thereto.
"Registrable Securities" means (i) the Shares, (ii) common stock of the
Company issued or issuable upon conversion of the Shares, and (iii) any common
stock of the Company or other security issued as (or issued or issuable upon the
conversion or exercise of any warrant, right or other security which is issued
as) a dividend or other distribution with respect to, or in exchange for or in
replacement of, any of the Shares or any common stock of the Company issued or
issuable upon conversion of the Shares. Notwithstanding the foregoing,
Registrable Securities shall not include any securities sold to the public
either pursuant to a registration statement or Rule 144 or sold in a private
transaction in which registration rights under this Section 1 are not
transferred or assigned as provided in Section 1.6.
"Registration Expenses" shall mean all expenses incurred by the Company in
complying with tiffs Section 1, including, without limitation, all registration
and filing fees, printing expenses, fees and disbursements of counsel for the
Company, reasonable fees and disbursements not to exceed Fifteen Thousand
Dollars ($15,000) of a single special counsel for Javelin in connection with
each registration statement fried by the Company in accordance with
1.
the registration rights granted in this Section 1, blue sky fees and expenses
and the expense of any special audits incident to or required by any such
registration.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Shares" shall mean the shares of the Company's Series A Preferred Stock
being purchased by Javelin.
"Selling Expenses" shall mean all underwriting discounts and selling
commissions applicable to a sale of Registrable Securities pursuant to a
registration statement filed by the Company in accordance with the registration
rights granted in this Section 1.
"SEC" or "Commission" shall mean the Securities and Exchange Commission.
1.2 REQUEST FOR REGISTRATION. Subject to the conditions of this Section
1.2, Javelin may deliver to the Company a written request that the Company
register all or part of the Registrable Securities having an aggregate offering
price in excess of five million dollars. Each such request shall specify the
number of Registrable Securities to be registered and the intended method or
methods of disposition thereof. As soon as practicable, the Company shall file
a registration statement under the Securities Act covering the Registrable
Securities which the Company has been so requested to register in such written
request, and use its best efforts to cause such registration statement to become
effective as soon as possible. If such registration statement is declared
effective with respect to all Registrable Securities, the registration rights
granted pursuant to this Section 1 shall cease. If such registration statement
is not declared effective with respect to all Registrable Securities, the
registration rights granted pursuant to this Section 1 shall remain in effect
until all Registrable Securities have been registered under the Securities Act.
If Javelin so elects in a written request delivered to the Company pursuant to
this Section 1.2, the offering of Registrable Securities registered pursuant to
such written request shall be in the form of an underwritten offering, and in
such underwritten offering the investment banker or investment bankers and
manager or managers that will administer the offering will be selected by
Javelin; provided, that such investment bankers and managers must be reasonably
acceptable to the Company. The Company shall not be required to effect a
registration pursuant to this Section 1.2:
(I) after the Company has effected one (1) registration pursuant to
this Section 1.2,-and such registration has been declared or ordered effective;
or
(II) prior to the Company's first firm commitment underwritten public
offering of its common stock registered under the Securities Act (the "Initial
Offering") or during the period starting with the date of filing of, and ending
on the date one hundred eight (180) days following the effective date of, the
registration statement pertaining to the Initial Offering, provided that the
Company is making reasonable and good faith efforts to cause such registration
statement to become effective; or
(III) if the Company shall furnish to Javelin a certificate signed by
the Chairman of the Board stating that in the good faith judgment of the Board
of Directors of the Company, it would be seriously detrimental to the Company
and its stockholders for such
2.
registration statement to be effected at such time, in which event the Company
shall have the right to defer such filing for a period of not more than ninety
(90) days after receipt of the request of Javelin to effect a registration
pursuant to this Section 1.2; provided that such right to delay a request shall
be exercised by the Company no more than twice in any one-year period.
1.3 EXPENSES OF REGISTRATION. All Registration Expenses incurred in
connection with any registration under this Section 1 shall be borne by the
Company. All Selling Expenses incurred in connection with any such registration
shall be borne by Javelin or other holder of the securities so registered pro
rata on the basis of holdings of securities so registered.
1.4 REGISTRATION PROCEDURES. Whenever required to effect the registration
of Registrable Securities pursuant to a written notice delivered pursuant to
Section 1.2, the Company shall:
1.4.1 Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use all reasonable efforts to cause
such registration statement to become effective.
1.4.2 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.
1.4.3 Furnish to Javelin such number of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as Javelin may reasonably request in
order to facilitate the disposition of Registrable Securities covered by such
registration statement.
1.4.4 Use all reasonable efforts to register and qualify the
securities covered by such registration statement under such other securities or
Blue Sky laws of such states or jurisdictions as shall be reasonably requested
by Javelin, 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.
1.4.5 In the event of any underwritten public offering, enter into
and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter or managing underwriters of such
offering. Javelin shall also enter into and perform its obligations under such
an agreement.
1.4.6 Notify Javelin, at any time when a prospectus relating to
securities covered by such registration statement 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 promptly amend
or supplement the registration statement and prospectus, in compliance with the
provisions of the Securities Act, to correct such untrue statement or omission.
3.
1.4.7 Furnish, at the request of Javelin, 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, (i) an opinion, dated as 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 Javelin,
addressed to the underwriters, if any, and to Javelin, and (ii) 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 Javelin, addressed to the underwriters, if any, and,
if permitted by applicable accounting standards, to Javelin.
1.5 INDEMNIFICATION. In the event any Registrable Securities are included
in a registration statement under this Section 1:
1.5.1 To the extent permitted by law, the Company will indemnify and
hold harmless Javelin, the partners, officers and directors of Javelin, any
underwriter (as defined in the Securities Act) for Javelin and each person, if
any, who controls Javelin or such underwriter within the meaning of the
Securities Act or the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), against any losses, claims, damages, or liabilities (joint or several) to
which they may become subject under the Securities Act, the Exchange Act or
other federal or state law, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
of the following statements, omissions or violations (collectively, a
"Violation") by the Company: (i) any untrue statement or alleged untrue
statement of a material fact contained in such registration statement, including
any preliminary prospectus or final prospectus contained therein or any
amendments or supplements thereto, (ii) 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, or (iii) any violation or alleged
violation by the Company of the Securities Act, the Exchange Act, any state
securities law or any rule or regulation promulgated under the Securities Act,
the Exchange Act or any state securities law in connection with the offering
covered by such registration statement; and the Company will reimburse Javelin
and each such partner, officer or director, underwriter or 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 indemnity agreement contained in this Section 1.5.1
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), nor shall the
Company be liable in any such case for any such loss, claim, damage, liability
or action to the extent that it arises out of or is based upon a Violation which
occurs in reliance upon and in conformity with written information furnished
expressly for use in connection with such registration by Javelin or any such
partner, officer, director, underwriter or controlling person.
1.5.2 To the extent permitted by law, Javelin will indemnify and hold
harmless the Company, each of its directors, each of its officers, each person,
if any, who controls the Company within the meaning of the Securities Act or the
Exchange Act, any underwriter of securities covered by such registration
statement and each person who controls such underwriter
4.
within the meaning of the Securities Act or the Exchange Act, and any other
selling securityholder under such registration statement or any of such selling
securityholder's partners, directors or officers or any person who controls such
selling securityholder, against any losses, claims, damages or liabilities
(joint or several) to which the Company or any such director, officer,
controlling person, underwriter, securityholder or securityholder's partners,
directors, officers or other control persons may become subject under the
Securities Act, the Exchange Act or other federal or state law, insofar as such
losses, claims, damages or liabilities (or actions in respect thereto) arise out
of or are based upon any Violation, in each case to the extent (and only to the
extent) that such Violation occurs in reliance upon and in conformity with
written information furnished by Javelin under an instrument duly executed by
Javelin and stated to be specifically for use in connection with such
registration; and Javelin will reimburse any legal or other expenses reasonably
incurred by the Company or any such director, officer, controlling person,
underwriter, securityholder or securityholder's partners, directors, officers or
other control persons in connection with investigating or defending any such
loss, claim, damage, liability or action if it is judicially determined that
there was such a Violation; provided, however, that the indemnity agreement
contained in this Section 1.5.2 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 Javelin, which consent shall not be unreasonably
withheld; provided further, that in no event shall any indemnity under this
Section.1.5.2 exceed the gross proceeds from the offering received by Javelin.
1.5.3 Promptly after receipt by an indemnified party under this
Section 1.5 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 1.5, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party shall
have the right to retain its own counsel, with the fees and expenses to be paid
by the indemnifying party, if representation of such indemnified party by the
counsel retained by the indemnifying party would be inappropriate due to actual
or potential differing interests between such indemnified party and any other
party represented by such counsel in such proceeding. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action, if materially prejudicial to its ability to
defend such action, shall relieve such indemnifying party of any liability to
the indemnified party under this Section 1.5, but the omission so to deliver
written notice to the indemnifying party will not relieve it of any liability
that it may have to any indemnified party otherwise than under this Section 1.5.
1.5.4 If the indemnification provided for in this Section 1.5 is held
by a court of competent jurisdiction to be unavailable to an indemnified party
with respect to any losses, claims, damages or liabilities referred to herein,
the indemnifying party, in lieu of indemnifying such indemnified party
thereunder, shall to the extent permitted by applicable law contribute to the
amount paid or payable by such indemnified party as a result of such loss,
claim, damage or liability 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 Violation or Violations that resulted
in such loss, claim, damage or liability, as well as any other relevant
5.
equitable considerations. The relative fault of the indemnifying party and of
the indemnified party shall be determined by a court of law by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission to state a material fact relates to information supplied by
the indemnifying party or by the indemnified party and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
1.5.5 The foregoing indemnity agreements of the Company and Javelin
are subject to the condition that, insofar as they relate to any Violation made
in a preliminary prospectus but eliminated or remedied in the amended prospectus
on file with the SEC at the time the registration statement in question becomes
effective or the amended prospectus filed with the SEC pursuant to SEC Rule
424(`0) (the "Final Prospectus"), such indemnity agreements shall not inure to
the benefit of any person if a copy of the Final Prospectus was furnished to the
indemnified party 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.
1.5.6 The obligations of the Company and Javelin under this Section
1.5 shall survive the completion of any offering of Registrable Securities in a
registration statement, and otherwise. 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.
1.6 ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the Company to
register Registrable Securities pursuant to this Section 1 may be assigned by
Javelin to a transferee or assignee of Registrable Securities; provided,
however, that no such transferee or assignee shall be entitled to registration
under this Section 1 unless it acquires at least 57,143 shares of Registrable
Securities (as adjusted for stock splits and combinations) and the Company
shall, within twenty (20) days of such transfer, be furnished with written
notice of the name and address of such transferee or assignee and the securities
with respect to which such registration rights are being assigned.
Notwithstanding the foregoing, such registration rights may be assigned to any
subsidiary, parent, general partner or limited partner of Javelin without regard
to the number of Registrable Securities so assigned or transferred. Any holder
-of Registrable Securities to whom registration rights have been assigned
pursuant to this Section 1.6 shall have with respect to such Registrable
Securities the same rights (subject to the same obligations) as Javelin under
this Section 1.
1.7 OTHER REGISTRATION RIGHTS. The registration rights granted to Javelin
in this Section 1 are in addition to the registration rights granted to Javelin
in that certain Investor Rights Agreement, dated as of July 30, 1996 among the
Company and certain purchasers named therein (which purchasers include Javelin).
1.8 AMENDMENT AND WAIVER. Any provision of this Section 1 may be amended
and the observance thereof waived (either generally or in a particular instance)
by an instrument in writing signed by Javelin and the Company.
6.
1.9 TERMINATION OF REGISTRATION RIGHTS. All registration rights granted
under this Section 1 shall terminate and be of no further force and effect six
(6) years after the closing of the Initial Offering.
SECTION 2. BOARD REPRESENTATION.
2.1 JAVELIN DESIGNEE. So long as Javelin shall hold at least 50 % of the
Shares (including, in calculating such 50%, any common stock or other securities
of the Company into which any of the Shares may be converted), one member of the
board of directors of the Company (the "Board") shall be an individual
designated by Javelin as provided in this Section 2. For the purposes of this
Section 2, "Javelin Designee" shall mean the individual so designated by
Javelin, which designation shall be made by Javelin as follows: (i) Javelin, at
the time of the execution and delivery of this Agreement, has notified the
Company in writing of the name of the Javelin Designee to be elected to the
Board pursuant to Section 2.2, (ii) sixty (60) days prior to each annual meeting
or other meeting of stockholders of the Company at which directors are to be
elected ("Annual Meeting"), Javelin shall notify the Company in writing of the
name of the Javelin Designee to be elected to the Board at such Annual Meeting,
and (iii) if a vacancy on the Board shall occur as a result of the death,
resignation or removal of a director elected to the Board by reason of having
been a Javelin Designee, Javelin shall, within ten (10) days after receiving
written notice from the Company of such vacancy, notify the Company in writing
of the name of the Javelin Designee to be elected to the Board to fill such
vacancy.
2.2 ELECTION OF INITIAL JAVELIN DESIGNEE.
2.2.1 To the extent permitted by the Company's certificate of
incorporation and bylaws and applicable law, upon execution and delivery of this
Agreement the Board shall increase the number of directors constituting the
Board by one (1) and shall elect the Javelin Designee to the Board of Directors
to fill the vacancy created by such increase.
2.2.2 If election of the Javelin Designee to the Board by Board
action without action by the stockholders of the Company, as provided in Section
2.2.1, is not-permitted under the Company's certificate of incorporation and
bylaws and applicable law, then the Company, promptly after the execution and
delivery of this Agreement, shall call a special meeting of the stockholders of
the Company for the purpose of electing the Javelin Designee to the Board.
2.3 FUTURE ELECTIONS OF JAVELIN DESIGNEE. If, in connection with any
Annual Meeting, the Company, its management or the Board nominates, recommends,
or solicits proxies to be voted for, the election to the Board of a particular
group of individuals ("Management Nominees"), the Management Nominees shall
include the Javelin Designee. The Company, its management and the Board shall
each use all reasonable efforts to cause the Javelin Designee to be elected to
the Board at each Annual Meeting, whether or not there are Management Nominees.
2.4 VACANCY. If a vacancy on the Board shall occur as a result of the
death, resignation or removal of a director elected to the Board by reason of
having been a Javelin Designee and such vacancy is to be filled by the vote of
the remaining members of the Board, such remaining members of the Board shall
vote for the election of the Javelin Designee to fill
7.
such vacancy to the extent permitted under the Company's certificate of
incorporation and bylaws and applicable law.
2.5 VOTING AGREEMENT OF COMPANY STOCKHOLDERS. Each Company Stockholder
agrees that (i) in each election of directors of the Company such Company
Stockholder will vote all shares of common stock of the Company and all other
securities entitled to vote for election of directors held by such Company
Stockholder (either by voting such shares and other securities in person or by
proxy at an Annual Meeting or, if applicable, signing a written consent) to
elect to the Board the Javelin Designee, (ii) such Company Stockholder will not
vote any such shares or other securities for the removal from the Board of a
director elected to the Board by reason of having been a Javelin Designee,
without the prior written consent of Javelin, (iii) if a vacancy on the Board
shall occur as a result of the death, resignation or removal of a director
elected to the Board by reason of having been a Javelin Designee and such
vacancy is to be filled by the stockholders of the Company, each such Company
Stockholder shall vote all such shares and other securities for the election of
the Javelin Designee to fill such vacancy, and (iv) in connection with any
transfer or assignment by such Company Stockholder of shares of common stock of
the Company or any other securities entitled to vote for election of directors,
such Company Stockholder shall obtain an agreement by the transferee or assignee
to assume and be bound by this Agreement with respect to the shares or other
securities so transferred or assigned.
2.6 FUTURE ISSUANCES OF SECURITIES. The Company, in connection with any
future issuance of common stock or any other securities of the Company entitled
to vote for election of directors, will use all reasonable efforts to assure
that the holders of a majority (or such other percentage as shall be required to
elect the Javelin Designee to the Board) of the common stock and other
securities of the Company entitled to vote for election of directors outstanding
after such issuance will continue to be bound to elect the Javelin Designee to
the -Board as provided in this Section 2.
2.7 INSURANCE AND INDEMNIFICATION. The Company represents and warrants
to, and agrees with Javelin, that (i) each Javelin Designee elected to the Board
will have the same indemnification protection (whether such indemnification is
contained in the Company's certificate of incorporation or bylaws, or in a
resolution of the Board or stockholders, or in a contract or otherwise) as other
directors of the Company and the Company will take no action to reduce such
indemnification below that which is provided to other directors of the Company
without the prior written consent of Javelin, and (ii) until the rights of
Javelin under this Section 2 terminate pursuant to Section 2.11, the Company
will keep Javelin advised of any directors' liability insurance coverage the
Company has in effect and will furnish to Javelin, upon Javelin's request, a
true and correct copy of the insurance policy under which any such coverage is
provided, each Javelin Designee elected to the Board will be covered by any such
insurance to the same extent as other directors of the Company, and any such
coverage will not be reduced in amount or scope below that which is provided to
other directors of the Company without the prior written consent of Javelin.
2.8 JAVELIN'S RIGHT NOT TO DESIGNATE A DIRECTOR. Javelin may at its
option elect not to name a Javelin Designee with respect to any election of
directors of the Company, and the exercise of such right shall not constitute a
waiver or termination of Javelin's right to name a Javelin Designee with respect
to any subsequent election of directors of the Company.
8.
2.9 STOCK OWNERSHIP OF COMPANY STOCKHOLDERS. The Company represents and
warrants to Javelin that to the best of the Company's knowledge each Company
Stockholder owns the number of shares of common stock of the Company
(representing the percentage of such shares outstanding on the date hereof) as
shown on the signature pages of this Agreement.
2.10 AMENDMENT AND WAIVER. Any provision of this Section 2, except
Section 2.5, may be amended and the observance thereof waived (either generally
or in a particular instance) by an instrument in writing signed by Javelin and
the Company. No provision of Section 2.5 may be amended or waived other than by
a written instrument signed by the party against whom enforcement of such any
such amendment or waiver is sought.
2.11 TERMINATION. The rights afforded to Javelin, and the obligations
imposed upon the Company, its directors, officers and stockholders, in this
Section 2 shall immediately terminate: (i) at such time as Javelin owns less
than 50% of the Shares (including, in calculating such 50 %, any common stock or
other securities of the Company into which any of the Shares may be converted);
(ii) upon the Initial Offering; and (iii) upon any consolidation or merger of
the Company with or into (or any other corporate reorganization involving the
Company and) any other corporation or other entity or person (" Purchaser")
which has one or more classes of equity securities (" listed or quoted
securities") - registered on a national securities exchange or designated as
qualified for trading on the National Association of Securities Dealers
Automated Quotations System (or any successor quotation system) ("NASDAQ") and a
market capitalization of at least $40 million and in which the stockholders of
the Company immediately prior to such consolidation, merger or reorganization,
own, immediately after such consolidation, merger or reorganization less than
50% of the voting power of the corporation or other entity or person resulting
from such consolidation, merger or reorganization. For the purpose of clause
(iii) of the preceding sentence, "market capitalization" means the aggregate
market value of all outstanding listed or quoted securities of the Purchaser at
the average daily closing price on the national securities exchange on which
they are listed, or on NASDAQ, as the case may be, during the four calendar
weeks preceding the date of consummation of such consolidation, merger or
reorganization.
SECTION 3. MISCELLANEOUS.
3.1 GOVERNING LAW. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of California without regard
to principles of conflict of laws of such state.
3.2 SURVIVAL. The representations, warranties and agreements of the
parties in this Agreement shall survive the closing of the purchase of the
Shares by Javelin and the delivery of the Shares to Javelin.
3.3 REMEDIES. The parties hereto acknowledge and agree that irreparable
damage would occur in the event that any of the provisions of this Agreement are
not performed in accordance with their specific terms or are otherwise breached.
It is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent or cure breaches of the provisions of this Agreement and
to enforce specifically the terms and provisions hereof, this
9.
being in addition to any other remedy to which any of the parties may be
entitled by law or equity.
3.4 ATTORNEYS FEES. In the event that any dispute among the parties to
this Agreement should result in litigation, the prevailing party in such dispute
shall be entitled to recover from the losing party all fees, costs and expenses
of enforcing any right of such prevailing party under or with respect to this
Agreement, including, without limitation, reasonable fees and expenses of
attorneys and accountants, and all fees, costs and expenses of appeals.
3.5 SUCCESSORS AND ASSIGNS. Except as expressly otherwise provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors, and administrators of the
parties hereto.
3.6 NOTICES. All notices or other communications required or permitted-
hereunder shall be in writing and shall be deemed effectively given: (i) upon
personal delivery to the party to be notified; (ii) when sent by confirmed telex
or facsimile if sent during normal business hours of the recipient; if not, then
on the next business day; (iii) five (5) days after having been sent by
registered or certified mail, return receipt requested, postage prepaid; or (iv)
one (1) day after deposit with a nationally recognized overnight courier
service, specifying `next day delivery, with written verification of receipt.
All such notices or other communications shall be sent to the party to whom
addressed at the address as set forth on the signature pages hereof or at such
other address as such party may designate by ten (10) days advance written
notice to the other parties hereto.
3.7 SEVERABILITY. If any provision of this Agreement is held to be
illegal, invalid, or unenforceable, then (i) that provision will be fully
severable and this Agreement will be construed and enforced as if the illegal,
invalid, or unenforceable provision had never been part of this Agreement; (ii)
the remaining provisions of this Agreement will remain in full force and will
not be affected by the illegal, invalid, or unenforceable provision or by its
severance from this Agreement; and (iii) in the place of the illegal, invalid,
or unenforceable provision, there will be added automatically to this Agreement
a legal, valid, and enforceable provision that is as similar to the illegal,
invalid, or unenforceable provision as possible.
3.8 AMENDMENT; WAIVER. Except as expressly otherwise provided in this
Agreement (including without limitation Sections 1.8 and 2.10), no provisions of
this Agreement may be amended or waived other than by a written instrument
signed by the party against whom enforcement of any such amendment or waiver is
sought. No waiver by any party of any default with respect to any provision,
condition or requirement of this Agreement shall be deemed to- he a continuing
waiver in the future or a waiver of any other provision, condition or
requirement hereof, nor shall any delay or omission of any party to exercise any
right hereunder in any manner impair the exercise of any such right accruing to
it thereafter.
3.9 ENTIRE AGREEMENT. This Agreement contains the entire understanding of
the parties hereto with respect to the matters covered hereby. The Company and
Javelin acknowledge that they are parties to other agreements relating to the
Shares and agree that in the
10.
event of any conflict between any provisions of this Agreement and any provision
of any such other agreement, the provisions of this Agreement shall control.
3.10 HEADINGS. The headings in this Agreement are for convenience of
reference only, do not constitute a part of this Agreement and shall not be
deemed to limit or affect any of the provisions hereof.
3.11 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto (including each of the Company
Stockholders) in separate counterparts, each of which when so executed shall be
deemed to be an original and all of which together shall constitute one and the
same instrument. In the event any signature is delivered by facsimile
transmission, the party using such means of delivery shall cause an - additional
executed signature page to be physically delivered to the other parties within
five days of the execution and delivery hereof. Proving the execution and
contents of this Agreement against a party may be done by producing any
counterpart of this Agreement signed by that party.
11.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
SENSUS DRUG DEVELOPMENT CORPORATION
00 Xxx Xxxxxxx Xxxx., Xxxxx 000
Xxxxxx, Xxxxx 00000
By:______________________________
XXXX X. XXXXXXXX, M.D.
Chief Executive Officer
JAVELIN CAPITAL FUND, LP:
0000 00xx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxx
By:______________________________
XXXX X. XXXXXX
General Partner
COMPANY STOCKHOLDERS:
Number of Shares of Stock Owned
Signature, Name & Address (& Percentage of Outstanding)
------------------------- -----------------------------
______________________________ 2,368,800 shares of Common Stock
Xxxxxxx X. Xxxxxxx (36.5% of common Stock)
000 Xxxxx Xxxxxx Xxxx
Xxxxxx, XX 00000
12.
Number of Shares of Stock Owned
Signature, Name & Address (& Percentage of Outstanding)
------------------------- -----------------------------
_____________________________ 2,368,800 shares of Common Stock
Xxxx X. Xxxxxx (36.5% of Common Stock)
000 Xxxxx Xxxxxx Xxxx
Xxxxxx, XX 00000
_____________________________ 1,184,400 shares of Common Stock
Xxxx X. Xxxxxxxx (18.27% of Common Stock)
0000 Xx. Xxxxxx'x Xxx
Xxxxxx, XX 00000
_____________________________ 471,429 shares of Series A Preferred Stock
Xxxxxxx X. Xxxxxxx and (13.7% of Preferred Stock)
Xxxx X. Xxxxxx, Joint Tenants
000 Xxxxx Xxxxxx Xxxx
Xxxxxx, XX 00000
13.
AMENDMENT TO AGREEMENT
THIS AMENDMENT (the "Amendment") is made this 19th day of March 1997, to
that certain AGREEMENT dated July 30, 1996 (the "Agreement"), by and between
SENSUS DRUG DEVELOPMENT CORPORATION, a Delaware Corporation (the "Company"), and
JAVELIN CAPITAL FUND, LP, A Delaware limited partnership ("Javelin") that was
joined by certain stockholders of the Company (the "Company Stockholders") as
set forth in the Agreement.
WHEREAS, the Company, Javelin and the Company Stockholders entered into the
Agreement to provide Javelin with certain registration rights and the right to
representation on the Company's Board of Directors in certain circumstances; and
WHEREAS, the Company and Javelin desire to amend and restate Javelin's
registration rights in that certain Amended and Restated Investor Rights
Agreement, of even date herewith, by and among the Company and certain
stockholders of the Company (the "Amended and Restated Investor Rights
Agreement") which will supercede the registration rights provisions set forth in
the Agreement;
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual
promises contained herein and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Capitalized terms used herein and not otherwise defined shall have the
meanings given them in the Agreement.
2. Section 1 of the Agreement is hereby voided and superceded in its
entirety by the Amended and Restated Investor Rights Agreement of even date
herewith. Sections 2 and 3 of the Agreement shall remain in full force and
effect.
3. This Amendment 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. This Amendment shall be governed by and construed and
enforced in accordance with the laws of the State of California without regard
to principles of conflict of laws of such state. This Amendment contains the
entire understanding of the parties hereto with respect to the matters covered
hereby. The Company and Javelin acknowledge that they are parties to other
agreements relating to the Shares and agree that in the event of any conflict
between any provisions of this Amendment and any provision of any such other
agreement, the provisions of this Amendment shall control.
1.
IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment as
of the date first above written.
SENSUS DRUG DEVELOPMENT CORPORATION JAVELIN CAPITAL FUND, LP
Xxx Xxxxxxx Xxxxxx 0000 00 Xxxxxx Xxxxx
00 Xxx Xxxxxxx Xxxx., Xxxxx 000 Xxxxxxxxxx, Xxxxxxx 00000
Xxxxxx, Xxxxx 00000
By:______________________________ By:__________________________
Xxxx X. Xxxxxxxx, M.D., Xxxx X. Xxxxxx,
President and Chief General Partner
Executive officer
2.
