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EXHIBIT 4.4
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made of August
11, 2000 by and among (i) Xxxxxxx Pharmaceutical, Inc., a Delaware corporation
(the "Company"), (ii) each person listed on Exhibit A attached hereto
(collectively, the "Initial Investors" and each individually, an "Initial
Investor"), and (iii) each person or entity that subsequently becomes a party to
this Agreement pursuant to, and in accordance with, the provisions of Section 12
hereof (collectively, the "Investor Permitted Transferees" and each individually
an "Investor Permitted Transferee").
WHEREAS, the Company has agreed to issue and sell to the Initial
Investors, and the Initial Investors have agreed to purchase from the Company,
1,655,000 shares (the "Purchased Shares") of the Company's common stock, $0.001
par value per share (the "Common Stock"), all upon the terms and conditions set
forth in that certain Stock Purchase Agreement, dated of even date herewith,
between the Company and the Initial Investors (the "Stock Purchase Agreement");
and
WHEREAS, the terms of the Stock Purchase Agreement provide that it shall
be a condition precedent to the closing of the transactions thereunder, for the
Company and the Initial Investors to execute and deliver this Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties hereto hereby agree as follows:
1. DEFINITIONS. The following terms shall have the meanings provided
therefor below or elsewhere in this Agreement as described below:
"BOARD" shall mean the board of directors of the Company.
"CLOSING" shall have the meaning ascribed to such term in the Stock
Purchase Agreement.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended, and all of the rules and regulations promulgated thereunder.
"INVESTORS" shall mean, collectively, the Initial Investors and the
Investor Permitted Transferees; provided, however, that the term "Investors"
shall not include any of the Initial Investors or any of the Investor Permitted
Transferees that ceases to own or hold any Purchased Shares.
"MAJORITY HOLDERS" shall mean, at the relevant time of reference
thereto, those Investors holding and/or having the right to acquire, as the case
may be, more than fifty percent (50%) of the Registrable Shares held by all of
the Investors.
"QUALIFYING HOLDER" shall have the meaning ascribed thereto in
Section 12 hereof.
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"REGISTRABLE SHARES" shall mean the Purchased Shares, provided,
however, such term shall not, after the Mandatory Registration Termination Date,
include any of the Purchased Shares that become or have become eligible for
resale pursuant to Rule 144 or pursuant to Regulation S.
"RULE 144" shall mean Rule 144 promulgated under the Securities Act
and any successor or substitute rule, law or provision.
"SEC" shall mean the Securities and Exchange Commission.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended,
and all of the rules and regulations promulgated thereunder.
2. EFFECTIVENESS; TERMINATION. This Agreement shall become effective and
legally binding only if the Closing occurs. This Agreement shall terminate and
be of no further force or effect, automatically and without any action being
required of any party hereto, upon the termination of the Stock Purchase
Agreement pursuant to Section 7 thereof.
3. MANDATORY REGISTRATION.
(a) On or prior to August 30, 2000, the Company will prepare and
file with the SEC a registration statement on Form S-3, for the purpose of
registering under the Securities Act all of the Registrable Shares for resale
by, and for the account of, the Investors as selling stockholders thereunder
(the "Registration Statement"). The Registration Statement shall permit the
Investors to offer and sell, on a delayed or continuous basis pursuant to Rule
415 under the Securities Act, any or all of the Registrable Shares. The Company
agrees to use reasonable efforts to cause the Registration Statement to become
effective as soon as practicable. The Company shall be required to keep the
Registration Statement effective until such date that is the earlier of (i) the
date when all of the Registrable Shares registered thereunder shall have been
sold or (ii) the second anniversary of the Closing, subject to extension as set
forth below (such date is referred to herein as the "Mandatory Registration
Termination Date"). Thereafter, the Company shall be entitled to withdraw the
Registration Statement and the Investors shall have no further right to offer or
sell any of the Registrable Shares pursuant to the Registration Statement (or
any prospectus relating thereto). In the event the right of the selling
Investors to use the Registration Statement (and the prospectus relating
thereto) is delayed or suspended pursuant to Sections 4(c) or 10 hereof, the
Company shall be required to extend the Mandatory Registration Termination Date
beyond the second anniversary of the Closing by the same number of days as such
delay, or Suspension Period (as defined in Section 10 hereof).
(b) The offer and sale of the Registrable Shares pursuant to the
Registration Statement shall not be underwritten.
4. OBLIGATIONS OF THE COMPANY. In connection with the Company's
obligation under Section 3 and hereof to file the Registration Statement with
the SEC and to use its best efforts to cause the Registration Statement to
become effective as soon as practicable, the Company shall, as expeditiously as
reasonably possible:
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(a) Prepare and file with the SEC such amendments and supplements
to the Registration Statement and the prospectus used in connection therewith as
may be necessary to comply with the provisions of the Securities Act with
respect to the disposition of all Registrable Shares covered by the Registration
Statement;
(b) Furnish to the selling Investors such number of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents (including, without
limitation, prospectus amendments and supplements as are prepared by the Company
in accordance with Section 4(a) above) as the selling Investors may reasonably
request in order to facilitate the disposition of such selling Investors'
Registrable Shares;
(c) Notify the selling Investors, at any time when a prospectus
relating to the 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 or relating to the Registration Statement contains an
untrue statement of a material fact or omits any fact necessary to make the
statements therein not misleading; and, thereafter, the Company will promptly
prepare (and, when completed, give notice to each selling Investor) a supplement
or amendment to such prospectus so that, as thereafter delivered to the
purchasers of such Registrable Shares, such prospectus will not contain an
untrue statement of a material fact or omit to state any fact necessary to make
the statements therein not misleading; provided that upon such notification by
the Company, the selling Investors will not offer or sell Registrable Shares
until the Company has notified the selling Investors that it has prepared a
supplement or amendment to such prospectus and delivered copies of such
supplement or amendment to the selling Investors (it being understood and agreed
by the Company that the foregoing proviso shall in no way diminish or otherwise
impair the Company's obligation to promptly prepare a prospectus amendment or
supplement as above provided in this Section 4(c) and deliver copies of same as
above provided in Section 4(b) hereof); and
(d) Use commercially reasonable efforts to register and qualify the
Registrable Shares covered by the Registration Statement under such other
securities or Blue Sky laws of such jurisdictions as shall be reasonably
appropriate in the opinion of the Company and the placement agents, if any,
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, and provided further
that (notwithstanding anything in this Agreement to the contrary with respect to
the bearing of expenses) if any jurisdiction in which any of such Registrable
Shares shall be qualified shall require that expenses incurred in connection
with the qualification therein of any such Registrable Shares be borne by the
selling Investors, then the selling Investors shall, to the extent required by
such jurisdiction, pay their pro rata share of such qualification expenses.
5. FURNISH INFORMATION. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Agreement that
the selling Investors shall furnish to the Company such information regarding
them and the securities held by them as the Company shall reasonably request and
as shall be required in order to effect any registration by the Company pursuant
to this Agreement.
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6. EXPENSES OF REGISTRATION. All expenses incurred in connection with
the registration of the Registrable Shares pursuant to this Agreement (excluding
underwriting, brokerage and other selling commissions and discounts), including
without limitation all registration and qualification and filing fees, printing,
and fees and disbursements of counsel for the Company, shall be borne by the
Company.
7. DELAY OF REGISTRATION. The Investors shall not take any action to
restrain, enjoin or otherwise delay any registration as the result of any
controversy which might arise with respect to the interpretation or
implementation of this Agreement.
8. INDEMNIFICATION.
(a) To the extent permitted by law, the Company will indemnify and
hold harmless each selling Investor, any investment banking firm acting as an
underwriter for the selling Investors, any broker/dealer acting on behalf of any
selling Investors and each officer and director of such selling Investor, such
underwriter, such broker/dealer and each person, if any, who controls such
selling Investor, such underwriter or broker/dealer within the meaning of the
Securities Act, against any losses, claims, damages or liabilities, joint or
several, to which they 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 or alleged untrue statement
of any material fact contained in the Registration Statement, in any preliminary
prospectus or final prospectus relating thereto or in any amendments or
supplements to the Registration Statement or any such preliminary prospectus or
final prospectus, 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 such
selling Investor, such underwriter, broker/dealer or such officer, director 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 8(a) 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, damage,
liability or action to the extent that it arises out of or is based upon an
untrue statement or alleged untrue statement or omission made in connection with
the Registration Statement, any preliminary prospectus or final prospectus
relating thereto or any amendments or supplements to the Registration Statement
or any such preliminary prospectus or final prospectus, in reliance upon and in
conformity with written information furnished expressly for use in connection
with the Registration Statement or any such preliminary prospectus or final
prospectus by the selling Investors, any underwriter for them or controlling
person with respect to them.
(b) To the extent permitted by law, each selling Investor will
severally and not jointly indemnify and hold harmless the Company, each of its
directors, each of its officers who have signed the Registration Statement, each
person, if any, who controls the Company within the meaning of the Securities
Act, any investment banking firm acting as underwriter for the Company or the
selling Investors, or any broker/dealer acting on behalf of the Company or any
selling Investors, and all other selling Investors against any losses, claims,
damages or liabilities to which the Company or any such director, officer,
controlling person, underwriter, or
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broker/dealer or such other selling Investor may become subject to, under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereto) arise out of or are based upon any
untrue or alleged untrue statement of any material fact contained in the
Registration Statement or any preliminary prospectus or final prospectus,
relating thereto or in any amendments or supplements to the Registration
Statement or any such preliminary prospectus or final prospectus, 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, in each case to the extent and only to the extent that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in the Registration Statement, in any preliminary prospectus
or final prospectus relating thereto or in any amendments or supplements to the
Registration Statement or any such preliminary prospectus or final prospectus,
in reliance upon and in conformity with written information furnished by the
selling Investor expressly for use in connection with the Registration
Statement, or any preliminary prospectus or final prospectus; and such selling
Investor will reimburse any legal or other expenses reasonably incurred by the
Company or any such director, officer, controlling person, underwriter,
broker/dealer or other selling Investor in connection with investigating or
defending any such loss, claim, damage, liability or action, provided, however,
that the liability of each selling Investor hereunder shall be limited to the
proceeds (net of underwriting discounts and commissions, if any) received by
such selling Investor from the sale of Registrable Shares covered by the
Registration Statement, and provided, further, however, that the indemnity
agreement contained in this Section 8(b) 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 those selling Investor(s) against
which the request for indemnity is being made (which consent shall not be
unreasonably withheld).
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party,
will, if a claim in respect thereof is to be made against any indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof and the indemnifying party shall have the right to
participate in and, to the extent the indemnifying party desires, jointly with
any other indemnifying party similarly noticed, to assume at its expense the
defense thereof with counsel mutually satisfactory to the indemnifying parties
with the consent of the indemnified party which consent will not be unreasonably
withheld, conditioned or delayed. In the event that the indemnifying party
assumes any such defense, the indemnified party may participate in such defense
with its own counsel and at its own expense, provided, however, that the counsel
for the indemnifying party shall act as lead counsel in all matters pertaining
to such defense or settlement of such claim and the indemnifying party shall
only pay for such indemnified party's expenses for the period prior to the date
of its participation on such defense. The failure to notify an indemnifying
party promptly of the commencement of any such action, if prejudicial to his
ability to defend such action, shall relieve such indemnifying party of any
liability to the indemnified party under this Section 8, but the omission so to
notify the indemnifying party will not relieve him of any liability which he may
have to any indemnified party otherwise other than under this Section 8.
(d) Notwithstanding anything to the contrary herein, the
indemnifying party shall not be entitled to settle any claim, suit or proceeding
unless in connection with such settlement the indemnified party receives an
unconditional release with respect to the subject
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matter of such claim, suit or proceeding and such settlement does not contain
any admission of fault by the indemnified party.
9. REPORTS UNDER THE EXCHANGE ACT. With a view to making available to
the Investors the benefits of Rule 144 and any other rule or regulation of the
SEC that may at any time permit the Investors to sell the Purchased Shares to
the public without registration, the Company agrees to use commercially
reasonable efforts: (i) to make and keep public information available, as those
terms are understood and defined in the General Instructions to Form S-3, or any
successor or substitute form, and in Rule 144, (ii) to file with the SEC in a
timely manner all reports and other documents required to be filed by an issuer
of securities registered under the Securities Act or the Exchange Act, (iii) as
long as any Investor owns any Purchased Shares, to furnish in writing upon such
Investor's request a written statement by the Company that it has complied with
the reporting requirements of Rule 144 and of the Securities Act and the
Exchange Act, and to furnish to such Investor a copy of the most recent annual
or quarterly report of the Company, and such other reports and documents so
filed by the Company as may be reasonably requested in availing such Investor of
any rule or regulation of the SEC permitting the selling of any such Purchased
Shares without registration and (iv) undertake any additional actions reasonably
necessary to maintain the availability of the Registration Statement or the use
of Rule 144.
10. DEFERRAL AND LOCK-UP.
(a) Notwithstanding anything in this Agreement to the contrary, if
the Company shall furnish to the selling Investors a certificate signed by the
President or Chief Executive Officer of the Company stating that the Board of
Directors of the Company has made the good faith determination (i) that
continued use by the selling Investors of the Registration Statement for
purposes of effecting offers or sales of Registrable Shares pursuant thereto
would require, under the Securities Act, premature disclosure in the
Registration Statement (or the prospectus relating thereto) of material,
nonpublic information concerning the Company, its business or prospects or any
proposed material transaction involving the Company, (ii) that such premature
disclosure would be materially adverse to the Company, its business or prospects
or any such proposed material transaction or would make the successful
consummation by the Company of any such material transaction significantly less
likely and (iii) that it is therefore essential to suspend the use by the
Investors of such Registration Statement (and the prospectus relating thereto)
for purposes of effecting offers or sales of Registrable Shares pursuant
thereto, then the right of the selling Investors to use the Registration
Statement (and the prospectus relating thereto) for purposes of effecting offers
or sales of Registrable Shares pursuant thereto shall be suspended for a period
(the "Suspension Period") of not more than 90 days after delivery by the Company
of the certificate referred to above in this Section 10. During the Suspension
Period, none of the Investors shall offer or sell any Registrable Shares
pursuant to or in reliance upon the Registration Statement (or the prospectus
relating thereto).
11. TRANSFER OF REGISTRATION RIGHTS. None of the rights of any Investor
under this Agreement shall be transferred or assigned to any person unless (i)
such person is a Qualifying Holder (as defined below), and (ii) such person
agrees to become a party to, and bound by, all of the terms and conditions of,
this Agreement by duly executing and delivering to the Company an Instrument of
Adherence in the form attached as Exhibit B hereto.
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For purposes of this Section 11, the term "Qualifying Holder" shall mean, with
respect to any Investor, (i) any partner thereof, (ii) any corporation,
partnership controlling, controlled by, or under common control with, such
Investor or any partner thereof, or (iii) any other direct transferee from such
Investor of at least 50% of those Registrable Shares held or that may be
acquired by such Investor. None of the rights of any Investor under this
Agreement shall be transferred or assigned to any Person (including, without
limitation, a Qualifying Holder) that acquires Registrable Shares in the event
that and to the extent that such Person is eligible to resell such Registrable
Shares pursuant to Rule 144(k) of the Securities Act or may otherwise resell
such Registrable Shares pursuant to an exemption from the registration
provisions of the Securities Act.
12. ENTIRE AGREEMENT. This Agreement constitutes and contains the entire
agreement and understanding of the parties with respect to the subject matter
hereof, and it also supersedes any and all prior negotiations, correspondence,
agreements or understandings with respect to the subject matter hereof.
13. MISCELLANEOUS.
(a) This Agreement may not be amended, modified or terminated, and
no rights or provisions may be waived, except with the written consent of the
Majority Holders and the Company.
(b) This Agreement shall be governed by and construed and enforced
in accordance with the laws of the State of California, and shall be binding
upon and inure to the benefit of the parties hereto and their respective heirs,
personal representatives, successors or assigns, provided that the terms and
conditions of Section 11 hereof are satisfied. This Agreement shall also be
binding upon and inure to the benefit of any transferee of any of the Purchased
Shares provided that the terms and conditions of Section 11 hereof are
satisfied. Notwithstanding anything in this Agreement to the contrary, if at any
time any Investor shall cease to own any Purchased Shares, all of such
Investor's rights under this Agreement shall immediately terminate.
(c) (i) Any notices, response or other correspondence
(hereinafter collectively referred to as "correspondence") required or permitted
to be given hereunder shall be sent by courier (overnight or same day) or
telecopy or delivered by hand to the party to whom such correspondence is
required or permitted to be given hereunder. The date of giving any notice shall
be the date of its actual receipt.
(ii) All correspondence to the Company shall be addressed as
follows:
Xxxxxxx Pharmaceutical, Inc.
000 Xxxxxxx Xxxx.
Xxxxx Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Chief Executive Officer
Telecopier: 000-000-0000
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with a copy to:
Xxxxxx Godward LLP
0 Xxxx Xxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Telecopier: 650-849-7400
(iii) All correspondence to any Investor shall be sent to
such Purchaser at the address set forth in Exhibit A.
(d) Any entity may change the address to which correspondence to it
is to be addressed by notification as provided for herein.
(e) The parties acknowledge and agree that in the event of any
breach of this Agreement, remedies at law may be inadequate, and each of the
parties hereto shall be entitled to seek specific performance of the obligations
of the other parties hereto and such appropriate injunctive relief as may be
granted by a court of competent jurisdiction.
(f) This Agreement may be executed in a number of counterparts, and
of which together shall for all purposes constitute one Agreement, binding on
all the parties hereto notwithstanding that all such parties have not signed the
same counterpart.
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IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement as of the date and year first above written.
XXXXXXX PHARMACEUTICAL, INC.
By:
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Name:
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Title:
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THE INITIAL INVESTOR'S SIGNATURE TO THE INVESTOR QUESTIONNAIRE DATED EVEN DATE
HEREWITH SHALL CONSTITUTE THE INTIAL INVESTOR'S SIGNATURE TO THIS REGISTRATION
RIGHTS AGREEMENT.
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EXHIBIT A
INITIAL INVESTORS
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Alta Embarcadero BioPharma, LLC
Alta BioPharma Partners, XX
Xxxxxxx Pharmaceuticals Chase Partners (Alta Bio), LLC
Marcuard Xxxx & Cie, SA
Narragansett Offshore Ltd.
Narragansett I LP
Three Arch Partners III, L.P.
Three Arch Partners III, L.P.
The Timken Living Trust UAD 9/14/99
Xxxxx / Tisch Investments LLC
Four Partners
FBB Associates
Xxxxx Bros. Investments
Veritas SG Investment Trust GmbH
Xxxx Xxxxxxxx XXX
Xxxxxxx X. Xxxxxxx, Xx. XXX
Presbyterian Homes * Family Services, Inc.
International Truck & Engine Corp. - Hourly
International Truck & Engine Corp. - Salaried
International Truck & Engine Corp.- VEBA
The University of Mississippi
The University of Mississippi Medical Center
The University of Mississippi Foundation
Michigan Botanic Garden Foundation
Meijer Foundation
Frederik Meijer Charitable Trust
ATP Tour Inc. Player Pension Plan
MJH Foundation
Commonfund Group
City of Springfield
Charlottesville, VA Retirement System
Meijer, Inc. Pension Plan
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INITIAL INVESTORS
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Bridgeport Hospital Pension
Bridgeport Hospital Foundation
Bridgewater College
Trustees of Boston College
University of Virginia
Xxxxxxx X. Xxxxx XXX
Xxxx X. Xxxxx XXX
Xxxxx X. & Xxxxx X. Xxxxxx
Ned's Island Investment Corp.
Xxxxxx X. & Xxxxxxx X. Xxxxxxxx
Frederik G.H. Meijer Trust
Xxxx E. S. Meijer Trust
Xxxxx X. Xxxxxxx
Wheaton College
Tremont Temple Baptist Church General Trust Fund
Tremont Temple Xxxxxx Xxxxxx Sunday School Fund
The Berkeley Retirement Home
Baillie Lumber Co. Inc. Profit Share Plan
Dows - First Calvary Baptist Church
Buzz Xxxxxxx, XXX
Society for the Preservation of New England Antiquities
The Evangelical Covenant Church Pension Fund
1101 Foundation
General Board of Church of Nazarene
St. Xxxxxx Health System
Xxxxx X. Xxxxxxxx #2
Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxxxx
Xxxx Xxxx
Dr. G. Xxxxxxx Xxxxxxx M.D., P.C., MPPP
Republic National Bank INSIGHT Funds
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EXHIBIT B
INSTRUMENT OF ADHERENCE
Reference is hereby made to that certain Registration Rights Agreement,
dated as of August __, 2000, among Xxxxxxx Pharmaceutical, Inc. a Delaware,
corporation (the "Company"), the Initial Investors and the Investor Permitted
Transferees, as amended and in effect from time to time (the "Registration
Rights Agreement"). Capitalized terms used herein without definition shall have
the respective meanings ascribed thereto in the Registration Rights Agreement.
The undersigned, in order to become the owner or holder of [__________
shares of common stock, par value $0.001 per share (the "Common Stock"), of the
Company], hereby agrees that, from and after the date hereof, the undersigned
has become a party to the Registration Rights Agreement in the capacity of an
Investor Permitted Transferee, and is entitled to all of the benefits under, and
is subject to all of the obligations, restrictions and limitations set forth in,
the Registration Rights Agreement that are applicable to Investor Permitted
Transferees. This Instrument of Adherence shall take effect and shall become a
part of the Registration Rights Agreement immediately upon execution.
Executed under seal as of the date set forth below under the laws
of_______________________________________________.
Signature:
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Name:
Title:
Accepted:
Xxxxxxx Pharmaceutical, Inc.
By:
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Name: Xxxxxxx X. Xxxxxx
Title: Chief Executive Officer
Date:
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