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REGISTRATION RIGHTS AGREEMENT
BETWEEN
EMISPHERE TECHNOLOGIES, INC.
AND
ELAN INTERNATIONAL MANAGEMENT, LIMITED
DATED AS OF JULY 2, 1999
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REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of July 2,
1999, between ELAN INTERNATIONAL MANAGEMENT, LIMITED, a company incorporated
under the laws of Bermuda ("Elan"), and EMISPHERE TECHNOLOGIES, INC., a Delaware
corporation (the "Company"). Some capitalized terms are defined in Section 2 of
this Agreement.
WHEREAS, under the Subscription Agreement between the Company and Elan
dated as of the date of this Agreement (the "Subscription Agreement"), Elan may
be required to purchase the Shares.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
premises, covenants and conditions contained in this Agreement, the parties
agree as follows:
1. Registration Under Securities Act, etc.
1.1 Registration on Request; Shelf Registration. The Company shall use
its commercially reasonable efforts to ensure that a registration statement
covering the Registrable Securities for an offering to be made on a continuous
basis under Rule 415 under the Securities Act (the "Shelf Registration") is
effective on each Subscription Date (as defined in the Subscription Agreement).
The Shelf Registration shall be on Form S-3, if available, or another
appropriate form permitting registration of the Registrable Securities. The
Company shall use its commercially reasonable efforts to keep the Shelf
Registration continuously effective from the date the Shelf Registration is
declared effective until the earlier of (i) the time that all of the Registrable
Securities shall cease to be Registrable Securities and (ii) the ninth
anniversary of the date of this Agreement.
Subject to Section 10 of this Agreement, the Company shall supplement
or amend, if necessary, the Shelf Registration, as required by the Securities
Act or the rules and regulations under the Securities Act or as reasonably
requested by Elan, and the Company shall furnish to Elan copies of any
supplement or amendment prior to its being used and/or filed with the
Commission. The Company shall pay all Registration Expenses incurred in
connection with the Shelf Registration and any supplements or amendments to it,
whether or not it becomes effective, and whether all, none or some of the
Registrable Securities are sold under the Shelf Registration.
1.2 Registration Procedures. In connection with the registration
statement filed under Section 1.1, the Company will, as expeditiously as
possible:
(i) subject to Section 10 of this Agreement, prepare and file
with the Commission any amendments and supplements to the registration
statement and the prospectus used in connection with it as may be
necessary to keep the registration statement effective and to comply
with the provisions of the Securities Act with respect to the
disposition of the Registrable Securities
covered by the registration statement or as may be reasonably requested
by Elan, until all of the Registrable Securities have been disposed of
in accordance with the intended methods of disposition set forth in the
registration statement;
(ii) furnish to Elan and the underwriters, if any, the number
of conformed copies of the registration statement and of each amendment
and supplement to it (in each case including all exhibits) and the
number of copies of the prospectus contained in the registration
statement (including each preliminary prospectus and any summary
prospectus) and any other prospectus filed under Rule 424 under the
Securities Act and any other documents, as Elan may reasonably request;
(iii) use its commercially reasonable efforts (x) to register
or qualify all Registrable Securities covered by the registration
statement under any other securities or blue sky laws where an
exemption is not available and as Elan shall reasonably request, (y) to
keep the registration or qualification in effect for so long as the
registration statement remains in effect, and (z) to take any other
action which may be reasonably necessary or advisable to enable Elan to
consummate the disposition of the securities, except that the Company
shall not be required to qualify generally to do business as a foreign
corporation in any jurisdiction where it would not but for the
requirements of this subdivision (iii) be obligated to be so qualified,
subject itself to taxation in any jurisdiction or consent to general
service of process in any jurisdiction;
(iv) use its commercially reasonable efforts to cause all
Registrable Securities covered by the registration statement to be
registered with or approved by any other federal or state governmental
agencies or authorities as may be necessary in the opinion of counsel
to the Company and counsel to Elan to enable Elan to consummate the
disposition of the Registrable Securities;
(v) subject to Section 10 of this Agreement, promptly notify
Elan and the underwriters, if any, at any time when a prospectus
relating to the registration statement is required to be delivered
under the Securities Act, upon discovery that, or upon the happening of
any event as a result of which, the prospectus included in the
registration statement, as then in effect, includes an untrue statement
of a material fact or omits to state any material fact required to be
stated in it or necessary to make the statements in it not mis leading,
in the light of the circumstances under which they were made, and at
the request of Elan promptly prepare and furnish to Elan and the
underwriters, if any, a reasonable number of copies of a supplement to
or an amendment of the prospectus as may be necessary so that, as
delivered to the purchasers of the securities, the prospectus shall not
include an untrue statement of a material fact or omit to state a
material fact required to be stated in it or necessary to make the
statements in it not misleading in the light of the cir cumstances
under which they were made;
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(vi) otherwise use its commercially reasonable efforts to
comply with all applicable rules and regulations of the Commission, and
make available to Elan, as soon as reasonably practicable, an earnings
statement covering the period of at least twelve months, but not more
than eighteen months, beginning with the first full calendar month
after the effective date of the registration statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 under the Securities Act, and promptly
furnish to Elan and the underwriters, if any, a copy of any amendment
or supplement to the registration statement or prospectus; and
(vii) use its commercially reasonable efforts to list all
Registrable Securities covered by the registration statement on the
NYSE, the AMEX or another national securities exchange on which
Registrable Securities of the same class and, if applicable, series,
covered by the registration statement are then listed or on NASDAQ if
the Registrable Securities are quoted on NASDAQ.
(viii) in the event of an underwritten offering, enter into
such agreements (including an underwriting agreement in form, scope and
substance as is customary in underwritten offerings) and take all other
appropriate and reasonable actions requested by Elan (including those
reasonably requested by the managing underwriters) in order to expedite
or facilitate the disposition of the Registrable Securities, and in
that connection, (x) use commercially reasonable efforts to obtain
opinions of counsel to the Company (which counsel and opinions (in
form, scope and substance) shall be reasonably satisfactory to the
managing underwriters and Elan's counsel), addressed to each of the
underwriters as to the matters customarily covered in opinions
requested in underwritten offerings and other matters as may be
reasonably requested by counsel and underwriters, (y) use commercially
reasonable efforts to obtain "cold comfort" letters from the
independent certified public accountants of the Company (and, if
necessary, any other independent certified public accountants of any
subsidiary of the Company or of any business acquired by the Company
for which financial statements and financial data are, or are required
to be, included in the registration statement), addressed to each of
the underwriters, in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with
underwritten offerings and (z) if requested and if an underwriting
agreement is entered into, provide indemnification provisions and
procedures substantially to the effect set forth in Section 1.4 with
respect to all parties to be indemnified under Section 1.4. The above
shall be done at each closing under an underwriting or similar
agreement, or as and to the extent required under it.
The Company may (i) require Elan to furnish the Company information regarding
Elan and the planned distribution of the securities as the Company may from time
to time reasonably request in writing and (ii) require Elan to agree to comply
with the Securities Act and the Exchange Act in connection with the registration
and distribution of the Registrable Securities.
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Notwithstanding the foregoing, if any registration or comparable
statement refers to Elan by name or otherwise as the holder of any securities of
the Company and in its sole and exclusive judgment Elan is or might be a
controlling person of the Company, Elan shall have the right to require the
insertion in the registration statement of language, in form and substance
reasonably satisfactory to Elan and the Company, to the effect that the holding
by Elan of the securities is not to be construed as a recommendation by Elan of
the investment quality of the Company's securities covered by it and that the
holding does not imply that Elan will assist in meeting any future financial
requirements of the Company.
Elan agrees by acquisition of the Registrable Securities that, upon
receipt of any notice from the Company of the happening of any event of the kind
described in subdivision (v) of this Section 1.2, Elan will discontinue its
disposition of Registrable Securities under the registration statement relating
to the Registrable Securities until its receipt of the copies of the
supplemented or amended prospectus contemplated by subdivision (v) of this
Section 1.2 and, if so directed by the Company, will promptly deliver to the
Company (at the Company's expense) all copies, other than permanent file copies,
then in its possession of the prospectus relating to the Registrable Securities
current at the time of receipt of the notice.
1.3 Preparation; Reasonable Investigation. In connection with the
preparation and filing of each registration statement under this Agreement, the
Company (i) shall give Elan and the underwriters, if any, and counsel and
accountants designated by Elan the opportunity to participate in the preparation
of the registration statement, the prospectus included in it or filed separately
with the Commission, and each amendment of or supplement to it, (ii) shall give
each of them reasonable access to its books and records and opportunities to
discuss the business of the Company with its officers and the independent public
accountants who have certified its financial statements as shall be necessary,
in the opinion of Elan and its counsel or accountants, to exercise their due
diligence responsibilities and to conduct a reason able investigation within the
meaning of the Securities Act and (iii) shall promptly notify Elan, its counsel
and the underwriters, if any, of any stop order issued or threatened by the
Commission and promptly take all reasonable actions required to prevent the
entry of a stop order or to remove it if entered.
1.4 Indemnification.
(a) Indemnification by the Company. The Company will, and
hereby does, indemnify and hold harmless, in the case of any registration
statement filed under Section 1.1, Elan and each other Person who participates
as an underwriter in the offering or sale of the securities and each other
Person, if any, who controls Elan or any underwriter within the meaning of the
Securities Act, and their respective directors, officers, partners,
shareholders, employees and affiliates against any losses, claims, damages or
liabilities, joint or several, to which Elan or any underwriter or any director,
officer, partner, shareholder, employee, affiliate or controlling person may
become subject under the Securities Act or otherwise, including, the fees and
expenses of legal counsel, insofar as the losses, claims,
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damages or liabilities (or actions or proceedings, whether commenced or
threatened, in that respect) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in any registration
statement under which the securities were registered under the Securities Act,
any preliminary prospectus, final prospectus or summary prospectus contained in
it, or any amendment or supplement to it, or any omission or alleged omission to
state in it a material fact required to be stated in it or necessary to make the
statements in it in light of the circumstances in which they were made not
misleading, or any violation by the Company of the Securities Act or any rule or
regulation under the Securities Act applicable to the Company and the Company
will reimburse Elan or any underwriter and each director, officer, partner,
shareholder, employee, affiliate and controlling Person for any legal or any
other expenses reasonably incurred by them in connection with investigating or
defending any loss, claim, liability, action or proceeding; provided, that the
Company shall not be liable to the extent that any loss, claim, damage,
liability (or action or proceeding in that respect) or expense arises out of or
is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in the registration statement, any preliminary prospectus,
final prospectus, summary prospectus, amendment or supplement in reliance upon
and in conformity with written information furnished to the Company through an
instrument duly executed by or on behalf of Elan or any underwriter, as the case
may be, specifically stating that it is for use in its preparation. This
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of Elan or any director, officer, employee, affiliate,
partner or controlling person and shall survive the transfer of the securities
by Elan.
(b) Indemnification by the Sellers. As a condition to
including any Registrable Securities in any registration statement, the Company
shall have received an undertaking reasonably satisfactory to it from Elan, and
such of Elan's Affiliates as the Company may reasonably require, to indemnify
and hold harmless (in the same manner and to the same extent as set forth in
subdivision (a) of this Section 1.4) the Company, and each director, officer,
employee and shareholder of the Company and each other Person, if any, who
participates as an underwriter in the offering or sale of the securities and
each other Person who controls the Company or any underwriter within the meaning
of the Securities Act, with respect to any untrue statement or alleged untrue
statement of a material fact contained in or any omission or alleged omission to
state in it a material fact in any registration statement, any preliminary
prospectus, final prospectus or summary prospectus contained in it, or any
amendment or supplement to it, if the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in con
formity with written information furnished to the Company through an instrument
duly executed by or on behalf of the seller specifically stating that it is for
use in the preparation of the registration statement, preliminary prospectus,
final prospectus, summary prospectus, amendment or supplement; provided, that
the liability of the indemnifying party under this Section 1.4(b) shall be
limited to the amount of proceeds received by the indemnifying party in the
offering giving rise to liability. The indemnity shall remain in full force and
effect, regardless of any investigation
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made by or on behalf of the Company or any director, officer, employee,
shareholder or controlling person and shall survive the transfer of the
securities by Elan.
(c) Notices of Claims, etc. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in the preceding subdivisions of this Section 1.4,
the indemnified party will, if a claim in that respect is to be made against an
indemnifying party, give written notice to the latter of the commencement of the
action; provided, that the failure of any indemnified party to give notice as
provided in this Section 1.4(c) shall not relieve the indemnifying party of its
obligations under the preceding subdivisions of this Section 1.4, except to the
extent that the indemnifying party is actually prejudiced by the failure to give
notice. In case any action is brought against an indemnified party, the
indemnifying party shall be entitled to participate in and to assume the defense
of the action, jointly with any other indemnifying party similarly notified to
the extent that it may wish, with counsel reasonably satisfactory to the
indemnified party, and after notice from the indemnifying party to the
indemnified party of its election to assume the defense of the action, the
indemnifying party shall not be liable to the indemnified party for any legal or
other expenses subsequently incurred by the latter in connection with the
defense of the action other than reasonable costs of investigation; provided,
that if the indemnified party reasonably believes it is advisable for it to be
represented by separate counsel because there exists a conflict of interest
between its interests and those of the indemnifying party with respect to the
claim, or there exist defenses available to the indemnified party which may not
be available to the indemnifying party, or if the indemnifying party shall fail
to assume responsibility for the defense, the indemnified party may retain
counsel satisfactory to it and the indemnifying party shall pay all fees and
expenses of that counsel. No indemnifying party shall be liable for any
settlement of any action or proceeding effected without its written consent,
which consent shall not be unreasonably withheld or delayed. No indemnifying
party shall, without 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 the giving by the claimant or plaintiff to the indemnified
party of a release from all liability in respect of the claim or litigation or
which requires action other than the payment of money by the indemnifying party.
Each indemnified party shall furnish information regarding itself or the claim
in question as an indemnifying party may reasonably request in writing and as
shall be reasonably requested in connection with the defense of the claim and
litigation resulting from it.
(d) Contribution. If the indemnification provided for in this
Section 1.4 shall for any reason be held by a court of competent jurisdiction to
be unavailable to an indemnified party under subparagraph (a) or (b) of this
Section 1.4 in respect of any loss, claim, damage or liability, or any action in
that respect, then, in lieu of the amount paid or payable under subparagraph (a)
or (b) of this Section 1.4, the indemnified party and the indemnifying party
under subparagraph (a) or (b) of this Section 1.4 shall contribute to the
aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating the same), (i) in
the proportion as is appropriate to reflect the relative
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fault of the Company and Elan in connection with the statements or omissions
which resulted in the loss, claim, damage or liability, or action in that
respect, as well as any other relevant equitable considerations (the relative
fault of the Company and Elan to be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or Elan and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent the statement or
omission) or (ii) if the allocation provided by clause (i) is not permitted by
applicable law, in the proportion as shall be appropriate to reflect the
relative benefits received by the Company and Elan from the offering of the
securities covered by the registration statement. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of
fraudulent misrepre sentation. The prospective sellers' obligations to
contribute as provided in this subparagraph (d) are several in proportion to the
relative value of the Registrable Securities held by each of them covered by the
registration statement and not joint and no prospective seller shall be liable
under this subparagraph (d) for any amount in excess of the proceeds received in
the offering giving rise to liability. In addition, no Person shall be obligated
to contribute any amounts in payment for any settlement of any action or claim
effected without the Person's consent, which consent shall not be unreasonably
withheld or delayed.
(e) Other Indemnification. Indemnification and contribution
similar to that specified in the preceding subdivisions of this Section 1.4
(with appropriate modifications) shall be given by the Company, Elan and such of
Elan's Affiliates as the Company may reasonably require, with respect to any
required registration or other qualification of securities under any federal or
state law, rule or regulation of any governmental authority other than the
Securities Act.
(f) Indemnification Payments. The indemnification and
contribution required by this Section 1.4 shall be made by prompt periodic
payments during the course of the investigation or defense, as and when bills
are received or expense, loss, damage or liability is incurred.
2. Definitions.
As used in this Agreement, unless the context otherwise requires, the
following terms have the following meanings:
"Affiliate" means, with respect to any Person, any other Person that
directly, or indirectly through one or more intermediaries, controls, is
controlled by or is under common control with the subject Person. For purposes
of this definition, "control" (including, with correlative meaning, the terms
"controlled by" and "under common control with"), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of the Person,
whether through the ownership of voting securities or by contract or otherwise.
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"Agreement" has the meaning set forth in the recitals to this
Agreement.
"AMEX" means the American Stock Exchange, Inc.
"Commission" means the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act.
"Company" has the meaning set forth in the recitals to this Agreement.
"Elan" has the meaning set forth in the recitals to this Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
or any successor federal statute, and the rules and regulations of the
Commission under it, all as the same shall be in effect at the time. Reference
to a particular section of the Exchange Act, shall include a reference to the
comparable section, if any, of any successor federal statute.
"NASD" means the National Association of Securities Dealers, Inc.
"NASDAQ" means the Nasdaq National Stock Market, Inc.
"NYSE" means The New York Stock Exchange, Inc.
"Person" means any individual, corporation, partnership, trust,
incorporated or unincorporated association, joint venture, joint stock company,
government (or an agency, department or political subdivision of it) or other
entity of any kind.
"Registrable Securities" means (i) the Shares and (ii) any Related
Registrable Securities. As to any particular Registrable Securities, the
securities shall cease to be Registrable Securities when (a) a registration
statement with respect to the sale of the securities shall have become effective
under the Securities Act and the securities shall have been disposed of in
accordance with the registration statement, (b) they and all other Registrable
Securities owned by a holder may be distributed to the public by virtue of Rule
144(k) (or any successor provision) under the Securities Act, (c) they shall
have been otherwise transferred, and new certificates for them not bearing a
legend restricting further transfer shall have been delivered by the Company and
subsequent public distribution of them shall not, in the opinion of counsel to
Elan (or in the opinion of counsel to the Company, which opinion is reasonably
satisfactory to Elan), require registration of them under the Securities Act, or
(d) they shall have ceased to be outstanding.
"Registration Expenses" means all costs, fees and expenses incident to
the Company's performance of or compliance with Section 1, including all
registration, filing and NASD fees, all fees and expenses of complying with
securities or blue sky laws, all word processing, duplicating and printing
expenses, messenger
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and delivery expenses and the fees and disbursements of counsel for the Company
and of its independent public accountants, but excluding any underwriting fees,
expenses, discounts or other costs payable to any underwriter, broker or dealer.
"Related Registrable Securities" means any securities of the Company
issued or issuable with respect to the Shares by way of a dividend or stock
split or in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization or otherwise.
"Securities Act" means the Securities Act of 1933, or any successor
federal statute, and the rules and regulations of the Commission under it, all
as the same shall be in effect at the time. References to a particular section
of the Securities Act shall include a reference to the comparable section, if
any, of any successor federal statute.
"Shares" means the shares of Common Stock which are issuable upon
exercise of the Subscription Right (as defined in the Subscription Agreement).
"Shelf Registration" has the meaning set forth in Section 1.1 of this
Agreement.
"Subscription Agreement" has the meaning set forth in the recitals to
this Agreement.
3. Rule 144 and Rule 144A.
The Company shall take all actions reasonably necessary to enable Elan
to sell the securities without registration under the Securities Act within the
limitation of the exemptions provided by (a) Rule 144 under the Securities Act,
as the rule may be amended from time to time, (b) Rule 144A under the Securities
Act, as the rule may be amended from time to time, or (c) any similar rules or
regulations adopted by the Commission, including filing on a timely basis all
reports required to be filed by the Exchange Act. Upon the request of Elan, the
Company will deliver to the holder a written statement as to whether it has
complied with these requirements.
4. Amendments and Waivers.
This Agreement may be amended with the written consent of each party to
this Agreement and the Company may take any action prohibited by this Agreement,
or omit to perform any act required to be performed by it, only if the Company
shall have obtained the written consent of Elan.
5. Nominees for Beneficial Owners.
In the event that any Registrable Securities are held by a nominee for
the beneficial owner of the Registerable Securities, the beneficial owner may,
at its election in writing delivered to the Company, be treated as the holder of
the
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Registrable Securities for purposes of any request, consent, waiver or other
action by any holder or holders of Registrable Securities under this Agreement
or any determination of any number or percentage of shares of Registrable
Securities held by any holder or holders of Registrable Securities contemplated
by this Agreement. If the beneficial owner of any Registrable Securities so
elects, the Company may require assurances reasonably satisfactory to it of the
owner's beneficial ownership of the Registrable Securities.
6. Notices.
Any notices or other communications required or permitted under this
Agreement shall be sufficiently given if delivered personally, sent by
nationally recognized overnight delivery service or facsimile (receipt
confirmed) or mailed by first-class mail, postage prepaid, addressed as follows:
If to the Company:
Emisphere Technologies, Inc.
000 Xxx Xxx Xxxx Xxxxx Xxxx
Xxxxxxxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxx X. XxXxxxx, Esq.
and to:
H. Xxxxxx Xxxxxx, Esq.
00 Xxxx Xxxxx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Elan:
Elan International Management, Limited
000 Xx. Xxxxx Xxxxx
Xxxxxx, Xxxxx'x Xxxxxx
Xxxxxxx XX00
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Chief Financial Officer
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with a copy to:
Xxxxxx, Xxxxxx & Xxxxxxx
Eighty Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
All notices shall be deemed to have been received (x) on the date
delivered, if delivered by facsimile or personally or (y) on the day after the
notice is delivered into the possession and control of a nationally recognized
overnight delivery service, duly marked for delivery to the receiving party. A
party may change the address to which notice or other communication under this
Agreement is to be delivered by giving the other party notice in the manner set
forth in this Section 6. If any notice, filing, delivery or payment shall be
required by the terms of this Agreement to be made on a day that is not a
Business Day, the notice, filing, delivery or payment shall be made on the
immediately succeeding Business Day.
7. Assignment.
This Agreement shall be binding upon and inure to the benefit of and
shall be enforceable by the parties to this Agreement and, with respect to the
Company, its respective successors and assigns and, with respect to Elan, any
holder of any Registrable Securities.
8. Holdback Agreements.
Notwithstanding anything in this Agreement to the contrary if (i) the
Company shall determine in good faith that it would be significantly
disadvantageous to the Company and its stockholders for the Shelf Registration
to be amended or supplemented and (ii) the need for an amendment or supplement
is not caused by a proposed public offering of any securities of the Company by
any of its security holders (other than an offering made under a registration on
Form S-8), the Company may defer amending or supplementing the Shelf
Registration for not more than 60 days and, upon appropriate notice to Elan,
Elan shall be required to discontinue disposition of any Registrable Securities
covered by the Shelf Registration during the period.
9. No Inconsistent Agreements.
The Company will not enter into any agreement with respect to its
securities which is inconsistent with the rights granted to Elan in this
Agreement.
10. Severability.
Each provision of this Agreement shall be considered separable and if
for any reason any provision which is not essential to the effectuation of the
basic
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purpose 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.
11. Entire Agreement.
This Agreement together with the Subscription Agreement constitute the
entire agreement between the Company and Elan with respect to the transactions
contemplated by those documents.
12. Section and Other Headings.
The section and other headings contained in this Agreement are for
reference purposes only and shall not be deemed to be a part of this Agreement
or to affect the meaning or interpretation of this Agreement.
13. Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED
WITHIN THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE PRINCIPLES OF
CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED BY THEM.
14. Counterparts.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but all counterparts shall together
constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their respective officers each of whom is duly
authorized as of the date first above written.
EMISPHERE TECHNOLOGIES, INC.
By: /s/ Xxxxxxx Xxxxxxxx
--------------------
Name: Xxxxxxx Xxxxxxxx
Title: Chief Financial Officer
ELAN INTERNATIONAL SERVICES, LIMITED
By: /s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title: President
[REGISTRATION RIGHTS AGREEMENT]
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