EXHIBIT 10.14
INVESTOR RIGHTS AGREEMENT
This Investor Rights Agreement (the "Agreement") is entered into as of
February 12, 2001 by and between Orchid BioSciences, Inc., a Delaware
corporation (the "Company"), and AstraZeneca UK, Limited (the "Investor").
WHEREAS, the Company is issuing 222,980 shares (the "Consideration
Shares") of Common Stock, $.001 par value ("Common Stock") to the Investor
pursuant to the Agreement of dated February 12, 2001 between the Company and the
Investor (the "Purchase Agreement"); and
WHEREAS, one of the inducements to the consummation of the transactions
contemplated by the Purchase Agreement is the execution and delivery of this
Agreement to provide for registration rights for the shares of Common Stock
issued by the Company to Investor as set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and the sale of certain assets by the Investor to the Company
under the Purchase Agreement, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Certain Definitions. As used in this Agreement, the following terms
shall have the following respective meanings:
"Affiliate" shall have the meaning set forth in Rule 12b-2 under the
Exchange Act (as in effect on the date of this Agreement).
"Beneficially Owned," "Beneficial Ownership" or any like expression with
respect to any securities means having "beneficial ownership" of such securities
(as determined pursuant to Rule 13d-3 under the Exchange Act), including
pursuant to any agreement, arrangement or understanding, whether or not in
writing.
"Commission" shall mean the Securities and Exchange Commission and any
successor agency of the Federal government administering the Securities Act.
"Completion Date" shall have the meaning set forth in the Purchase
Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
and any similar or successor federal statute, and the rules and regulations of
the Commission thereunder, all as the same shall be in effect from time to time.
"Investor" means any Person owning Registrable Securities, including an
Affiliate or any successor, assignee or transferee of the Investor that has
received Registrable Securities in accordance with Section 2 hereof.
"Person" means any natural person, firm, partnership, association,
corporation, company, joint venture, unincorporated association, trust, business
trust, government or department or agency of a government, limited liability
company or other entity.
"Prospectus" means the prospectus included in any Registration Statement,
including without limitation, a prospectus that discloses information previously
omitted from a prospectus filed as part of an effective Registration Statement
in reliance upon Rule 430A, as amended or supplemented by any prospectus
supplement, with respect to the terms of the offering or any portion of the
Registrable Securities covered by such Registration Statement and all other
amendments and supplements to the prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such prospectus.
"Register," "registered" and "registration" shall refer to a registration
effected by preparing and filing a Registration Statement in compliance with the
Securities Act and applicable rules and regulations thereunder, and the
declaration or ordering of the effectiveness of such Registration Statement, or,
as the context may require, under the Exchange Act or applicable state
securities laws.
"Registrable Securities" shall mean (a) the Consideration Shares and (b)
any capital stock or other securities of the Company issued or issuable with
respect to the Consideration Shares, (i) upon any conversion or exchange
thereof, (ii) by way of stock dividend or other distribution, stock split or
reverse stock split, or (iii) in connection with a combination of shares,
recapitalization, merger, consolidation, exchange offer or other reorganization.
As to any particular Registrable Securities, once issued, such securities shall
cease to be Registrable Securities when (A) a Registration Statement with
respect to the sale of such securities shall have become effective under the
Securities Act and such securities shall have been disposed of in accordance
with such Registration Statement, (B) such securities become eligible to be
distributed to the public in reliance upon Rule 144 (or any successor provision)
under the Securities Act, provided that at the time such securities are proposed
to be disposed of, they may be sold under Rule 144 without any limitation on the
amount of such securities which may be sold or (C) they shall have ceased to be
outstanding.
"Registration Expenses" shall mean all expenses incurred in effecting any
registration pursuant to this Agreement, including, without limitation, all
registration, qualification, and filing fees, printing expenses, escrow fees,
fees and disbursements of counsel for the Company, blue sky fees and expenses,
expenses of any regular or special audits incident to or required by any such
registration and up to fifteen thousand dollars ($15,000) in fees and
disbursements for legal services provided by counsel to the Investor, but shall
not include Selling Expenses and fees and disbursements of counsel for the
Investor in excess of fifteen thousand dollars ($15,000).
"Registration Statement" means any registration statement of the Company
that covers any of the Registrable Securities pursuant to the provisions of this
Agreement, and all amendments and supplements to any such registration
statement, including post-effective
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amendments, in each case including the Prospectus, all exhibits and all material
incorporated by reference or deemed to be incorporated by reference in such
registration statement.
"Rule 144" means Rule 144 (or any successor provision) under the
Securities Act.
"Securities Act" means the Securities Act of 1933, as amended, or any
successor federal statute, and the rules and regulations of the Commission
promulgated thereunder, all as the same shall be in effect from time to time.
"Selling Expenses" shall mean all underwriting discounts, selling
commissions and stock transfer taxes applicable to the sale of Registrable
Securities and fees and disbursements of counsel for the Investor in excess of
fifteen thousand dollars ($15,000).
"Total Voting Power" means at any time the total combined voting power in
the general election of directors of all the Voting Securities then outstanding.
"Voting Securities" means at any time, shares of any class of capital
stock of the Company which are then entitled to vote generally in the election
of directors.
2. Transfer of Securities.
(a) The Investor agrees not to make any disposition of all or any portion
of the Registrable Securities for a period of ninety (90) days commencing on the
Completion Date. Thereafter, the Investor may make dispositions of all or any
portion of the Registrable Securities, if (A) there is then in effect a
Registration Statement under the Securities Act covering such proposed
disposition and such disposition is made in accordance with such Registration
Statement or (B) such Investor shall have notified the Company of the proposed
disposition and shall have furnished the Company with a detailed statement of
the circumstances surrounding the proposed disposition, and if requested by the
Company, such Investor shall have furnished the Company with an opinion of
counsel, reasonably satisfactory to the Company, that such disposition will not
require registration of such shares under the Securities Act.
(b) Each certificate representing Registrable Securities shall, except as
otherwise provided in this Section 2, be stamped or otherwise imprinted with a
legend substantially in the following form (in addition to any legend required
under applicable state securities laws):
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 OR APPLICABLE STATE SECURITIES LAWS.
THESE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO
DISTRIBUTION OR RESALE. SUCH SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD,
DELIVERED AFTER SALE, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE
OF (1) AN EFFECTIVE REGISTRATION STATEMENT COVERING SUCH SECURITIES UNDER
THE SECURITIES ACT OF 1933 AND ANY APPLICABLE STATE SECURITIES
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LAWS OR (2) AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY
THAT AN EXEMPTION FROM REGISTRATION THEREUNDER IS AVAILABLE.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE INVESTOR
RIGHTS AGREEMENT DATED FEBRUARY 12, 2001, A COPY OF WHICH IS AVAILABLE FOR
INSPECTION AT THE OFFICES OF THE COMPANY OR MAY BE AVAILABLE UPON
REQUEST."
(c) Upon request of the Investor of such a certificate, the Company shall
remove the foregoing legend from the certificate or issue to such Investor a new
certificate therefor free of any transfer legend, if (i) there is an effective
Registration Statement covering the securities represented by such certificate,
or (ii) the Investor shall have obtained an opinion of counsel (which counsel
may be counsel to the Company) reasonably acceptable to the Company to the
effect that Registrable Securities proposed to be disposed of may lawfully be so
disposed of without registration, qualification or legend.
(d) Any legend endorsed on any Registrable Securities pursuant to
applicable state securities laws and any stop-transfer instructions with respect
to any Registrable Securities shall be removed upon receipt by the Company of an
order of the appropriate blue sky authority authorizing such removal.
3. Required Registration.
(a) Subject to this Section 3, the Company shall prepare and file with the
Commission a Registration Statement on Form S-3 covering the resale of all of
the Registrable Securities on May 5, 2001 (the "Filing Date"). In the event that
Form S-3 is unavailable for such a registration or does not cover all of the
Registrable Securities, the Company shall (i) register the sale of the
Registrable Securities on another appropriate form reasonably acceptable to the
Investor of the Registrable Securities and (ii) undertake to register the
Registrable Securities on Form S-3 as soon as such form is available. The
Company shall use its reasonable best efforts to have such Registration
Statement declared effective as soon after the filing thereof as possible. In
the event that the Registration Statement is not declared effective by May 25,
2001 (the "Target Effective Date"), then, subject to Section 3(b) and Section
3(c) below, the Company will pay Investor, within five (5) business days of the
Actual Effective Date (as defined below) the amount of eight hundred eighty-five
dollars ($885) per day for each full day after the Target Effective Date that
the Registration Statement has not been declared effective (such aggregate
amount, the "Per Diem Payment"). Such Per Diem Payment shall be increased by an
amount equal to the product of (1) the amount, if any, by which the closing
price for the Company's Common Stock, as reported on The Nasdaq Stock Market
(the "Closing Price") on the Target Effective Date exceeds the Closing Price on
the date the Registration Statement is declared effective by the Commission (the
"Actual Effective Date") and (2) the number of Registrable Securities (such
amount plus the Per Diem Payment, the "Delayed Registration Payment").
(b) Notwithstanding anything to the contrary in Section 3(a) above, on the
earlier of (i) July 10, 2001 and (ii) the date that the amount of the Delayed
Registration Payment
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(assuming for purposes of such calculation that the Actual Effective Date is the
Call Date (as defined below)) is equal to fifty thousand dollars ($50,000) in
the aggregate (the "Call Date"), the Company shall have the right, on the first
business day after the Call Date, to require the Investor to sell to the Company
all of the Registrable Securities then owned by the Investor (the "Call Right")
by providing written notice (the "Call Notice") to the Investor of its exercise
of such right. The aggregate purchase price (the "Call Purchase Price") payable
to the Investor by the Company for all Registrable Securities shall be equal to
two million one hundred twenty-five thousand dollars ($2,125,000) plus the
amount of the Delayed Registration Payment (assuming for purposes of such
calculation that the Actual Effective Date is the Call Date). The closing of the
purchase and sale of the Registrable Securities pursuant to this Section 3(b)
shall take place on or before ten (10) business days from the Call Date at such
time and at such location as may be reasonably acceptable to the Company and the
Investor. At such closing (i) the Company shall pay the Call Purchase Price in
full by wire transfer of immediately available funds and the Investor shall
deliver the Registrable Securities to be sold to the Company duly endorsed for
transfer to the Company, (ii) the parties shall execute all instruments
reasonably necessary to terminate this Agreement and (iii) upon request of the
Company, the Investor shall provide to the Company a certificate to the effect
that the Registrable Securities are free and clear of all liens and encumbrances
of any kind, nature and description.
(c) Notwithstanding the foregoing, in the event that the Investor provides
written notice to the Company (the "Investor Notice") on or before five (5)
business days from the date of the Call Notice that it wishes to retain the
Registrable Securities, then (i) the Call Right of the Company shall immediately
terminate, (ii) the Investor shall retain ownership of the Registrable
Securities, (iii) the Company shall thereafter use its reasonable best efforts
to have the Registration Statement declared effective by the Commission as soon
as reasonably practicable, and (iv) the amount of the Delayed Registration
Payment shall be equal to fifty thousand dollars ($50,000) irrespective of the
eventual Actual Effective Date and shall be due and payable by the Company on
the fifth day following the date of the Investor Notice.
(d) Subject to Section 3(e), following the Actual Effective Date, the
Company will use its reasonable best efforts to cause such Registration
Statement to remain continuously effective for a period that will terminate on
the one year anniversary of the Completion Date (the "Registration Effective
Period") provided that the Registration Statement remains effective and no stop
order or suspension of the use of the Resale Registration Statement has been
imposed by the Commission.
(e) The Company shall have the right at any time to require that the
Investor suspend further open market offers and sales of Registrable Securities
whenever, and for so long as (subject to the penultimate sentence of this
Section 3(e)), in the reasonable judgment of Company after consultation with
counsel there is in existence material undisclosed information or events with
respect to Company; provided that the Company shall have furnished to the
Investor a certificate signed by the President of the Company stating in the
good faith judgment of the Board of Directors of the Company, it would be
detrimental to the business of the Company for such registration to be used at
such time (the "Suspension Right"). Subject to the penultimate sentence of this
Section 3(e), in the event that the Company exercises the Suspension Right, such
suspension will continue for not more than a period of time reasonably
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necessary for disclosure to occur at a time that is not materially detrimental
to Company and its stockholders or until such time as the information or event
is no longer material, each as determined in good faith by Company after
consultation with counsel. The Company will promptly give the Investor notice of
any such suspension and will use its best efforts to limit the length of the
suspension to ten (10) days. Notwithstanding any other provision of Section 3,
all such suspensions under this Section 3(e) collectively shall not exceed an
aggregate of twenty (20) days during the period when the Registration Statement
is effective. In addition, during any period when a suspension is in effect
hereunder, Company will suspend the use of, and not file, any other Company
registration statements.
(f) The Registration Statement filed pursuant to this Section 3 may
include other securities of the Company with respect to which registration
rights have been granted prior to the date hereof, and may include securities of
the Company being sold for the account of other stockholders of the Company
pursuant to such registration rights.
4. Registration Procedures.
In the case of each registration effected by the Company pursuant to
Section 3, the Company will keep the Investor advised in writing as to the
initiation of each registration and as to the completion thereof. At its
expense, the Company will use its reasonable best efforts to:
(a) Keep such Registration Statement effective during the Registration
Effective Period or such shorter period commencing on the Effective Date and
ending on the date upon which the Investor has resold all of the Registrable
Securities;
(b) Prepare and file with the Commission such amendments and supplements
to such Registration Statement and the Prospectus used in connection with such
Registration Statement as may be necessary to keep the Registration Statement
effective for the period specified in Section 4(a) and to comply with the
provisions of the Securities Act and the Exchange Act with respect to the
disposition of all securities covered by such Registration Statement;
(c) Furnish such number of Prospectuses and other documents incident
thereto, including any amendment of or supplement to the Prospectus, as the
Investor from time to time may reasonably request;
(d) Promptly notify each seller of Registrable Securities covered by such
Registration Statement at any time when a Prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
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 or incomplete in the light of the
circumstances then existing, and at the request of any such seller promptly
prepare and furnish to such seller a reasonable number of copies of a supplement
to or an amendment of such Prospectus as may be necessary so that as thereafter
delivered to the purchasers of such shares such Prospectus shall not include an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to
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make the statements therein not misleading or incomplete in the light of the
circumstances then existing;
(e) Cause all such Registrable Securities registered pursuant hereto to be
listed on each securities exchange or securities quotation system on which
securities of the same class issued by the Company are then listed;
(f) Otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the Commission, take such other actions as
may be reasonably necessary to facilitate the registration of the Registrable
Securities hereunder, and make available to its security holders, 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 month
after the Effective Date, which earnings statement shall satisfy the provisions
of Section 11(a) of the Securities Act.
(g) Permit a single firm of counsel designated by the Investor to review
the Registration Statement and all amendments and supplements thereto no fewer
than seven (7) business days prior to their filing with the Commission, and not
file any document in a form to which such counsel reasonably objects if such
objection is given within five (5) business days after receipt thereof by such
counsel;
(h) Furnish to each Investor and its legal counsel promptly after the same
is prepared and publicly distributed, filed with the Commission, or received by
the Company, one copy of the Registration Statement and any amendment thereto,
each preliminary prospectus and Prospectus and each amendment or supplement
thereto, and each letter written by or on behalf of the Company to the
Commission or the staff of the Commission, and each item of correspondence from
the Commission or the staff of the Commission, and, if requested, a description
of the Company's or its Counsel's discussions with the Commission, in each case
relating to such Registration Statement (other than any portion of any thereof
which contains information for which the Company has sought confidential
treatment);
(i) Use its reasonable best efforts to prevent the issuance of any stop
order or other suspension of effectiveness and, if such order is issued, obtain
the withdrawal of any such order at the earliest possible moment;
(j) Furnish to the Investor at least five copies of the Registration
Statement and any post-effective amendment thereto, including financial
statements;
(k) Prior to any public offering of Registrable Securities, use its
reasonable best efforts to register or qualify such Registrable Securities for
offer and sale under the securities or blue sky laws of such jurisdictions as
the Investor reasonably requests and do any and all other reasonable acts or
things necessary or advisable to enable the distribution in such jurisdictions
of the Registrable Securities covered by the Registration Statement;
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5. Expenses.
All Registration Expenses shall be paid by the Company in connection with
the filing of a Registration Statement pursuant to Section 3 shall be paid by
the Company.
6. Indemnification and Contribution.
(a) The Company will indemnify the Investor, each of its officers,
directors and partners, legal counsel and accountants and each person
controlling the Investor within the meaning of Section 15 of the Securities Act,
and each underwriter, if any, and each person who controls within the meaning of
Section 15 of the Securities Act any underwriter, against all expenses, claims,
losses, damages, and liabilities (or actions, proceedings, or settlements in
respect thereof) (including reasonable attorneys fees) arising out of or based
on any untrue statement (or alleged untrue statement) of a material fact
contained in any Prospectus, offering circular, or other document (including any
related Registration Statement, notification, or the like) or any preliminary
prospectus or any amendment or supplement thereto incident to any such
registration, qualification, or compliance or based on any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or any violation by the
Company of the Securities Act or any rule or regulation thereunder and any other
federal, state or common law, rule or regulation applicable to the Company and
relating to action or inaction required of the Company in connection with any
such registration, qualification, or compliance, and will reimburse the
Investor, each of its officers, directors, partners, legal counsel, and
accountants and each person controlling such Investor, each such underwriter,
and each person who controls any such underwriter for any legal and any other
expenses reasonably incurred in connection with investigating and defending or
settling any such claim, loss, damage, liability or action, provided that the
Company will not be liable in any such case to the extent that any such claim,
loss, damage, liability or expense arises out of or is based on any untrue
statement or omission based upon written information furnished to the Company by
such Investor or underwriter specifically for use in the preparation thereof. It
is agreed that the indemnity agreement contained in this Section 6 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).
(b) The Investor will, if Registrable Securities held by him are included
in the securities as to which such registration, qualification, or compliance is
being effected, indemnify the Company, each of its directors, officers, legal
counsel, and accountants and each underwriter, if any, of the Company's
securities covered by such a Registration Statement, each person who controls
the Company or such underwriter within the meaning of Section 15 of the
Securities Act, against all expenses, claims, losses, damages and liabilities
(or actions, proceedings, or settlements in respect thereof) arising out of or
based on any untrue statement (or alleged untrue statement) of a material fact
contained in any Prospectus, offering circular, or other document (including any
related Registration Statement, notification, or the like) incident to any such
registration, qualification, or compliance, or based on any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse the
Company, its directors, officers, partners, legal counsel, and accountants,
underwriters, or control persons for any legal or any other expenses reasonably
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incurred in connection with investigating and defending or settling any such
claim, loss, damage, liability, or action, in each case to the extent, but only
to the extent, that such untrue statement (or alleged untrue statement) or
omission (or alleged omission) is made in such Registration Statement,
Prospectus, offering circular, or other document in reliance upon and in
conformity with written information furnished to the Company by such Investor
specifically for use in the preparation thereof; provided, however, that the
obligations of such Investor hereunder shall not apply to amounts paid in
settlement of any such claims, losses, damages, or liabilities (or actions in
respect thereof) if such settlement is effected without the consent of such
Investor (which consent shall not be unreasonably withheld); and provided that
in no event shall any indemnity under this Section 6 exceed the gross proceeds
from the offering received by such Investor.
(c) Each party entitled to indemnification under this Section 6 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or any litigation resulting
therefrom, shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld), provided further that the Indemnified Party shall
have the right to employ separate counsel and to participate in the defense of
such claim, but the fees and expenses of such counsel shall be at the expense of
such person unless (i) the Indemnifying Party has agreed to pay such fees or
expenses, or (ii) the Indemnifying Party shall have failed to timely assume the
defense of such claim and employ counsel reasonably satisfactory to such person
or (iii) in the reasonable judgment of any such person, a conflict of interest
exists between such person and the Indemnifying Party with respect to such
claims, in which case, if the person notifies the Indemnifying Party in writing
that such person elects to employ separate counsel at the expense of the
Indemnifying Party, the Indemnifying Party shall not have the right to assume
the defense of such claim on behalf of such person; provided, that, in such
case, the Indemnified Party may not settle or compromise such claim or consent
to an entry of judgment without the prior written consent of the Indemnifying
Party, which consent cannot be unreasonably withheld or unreasonably delayed.
Failure of any Indemnified Party to give notice as provided herein shall not
relieve the Indemnifying Party of its obligations under this Section 6 except to
the extent that such failure to give notice shall materially adversely affect
the Indemnifying Party in the defense of any such claim or litigation. 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 without the prior written consent of the Indemnified
Party, which shall not be unreasonably withheld or delayed and no Indemnified
Party shall consent to entry of any judgment or settle such claim or litigation
without the prior written consent of the Indemnifying Party, which shall not be
unreasonably withheld or delayed. Each Indemnified Party shall furnish such
information regarding itself or the claim in question as an Indemnifying Party
may reasonably request in writing and as shall be reasonably required in
connection with defense of such claim and litigation resulting therefrom.
(d) If the indemnification provided for in this Section 6 is held by a
court of competent jurisdiction to be unavailable to an Indemnified Party with
respect to any loss, liability, claim, damage, or expense referred to therein,
then the Indemnifying Party, in lieu to
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indemnifying such Indemnified Party hereunder, shall contribute to the amount
paid or payable by such Indemnified Party as a result of such loss, liability,
claim, damage, or expense 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 statements or omissions that resulted
in such loss, liability, claim, damage, or expense, as well as any other
relevant equitable considerations. The relative fault of the Indemnifying Party
and of the Indemnified Party shall be determined 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. In no event shall the contribution obligation of an
Investor be greater than the gross proceeds from the offering received by the
Investor (net of all expenses paid by the Investor and the amount of any damages
such Investor has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission).
7. Information by Investor
The Investor shall furnish to the Company such information regarding such
Investor and the distribution proposed by such Investor as the Company may
reasonably request in writing and as shall be reasonably required in connection
with any registration, qualification, or compliance referred to in this
Agreement, except to the extent that the furnishing of such information would
violate any law or any contractual arrangement. The Company shall not be
obligated to register the Registrable Securities of any Investor who fails
promptly to provide to the Company such information as the Company may
reasonably request at the time to enable the Company to comply with applicable
laws or regulations or to facilitate preparation of the Registration Statement,
including any information that the Investor fails to provide on the basis that
such information would violate any law or any contractual arrangement.
8. Changes in Common Stock. If, and as often as, there is any change in
the Common Stock by way of a stock split, stock dividend, combination or
reclassification, or through a merger, consolidation, reorganization or
recapitalization, or by any other means, appropriate adjustment shall be made in
the provisions hereof so that the rights and privileges granted hereby shall
continue with respect to the Common Stock as so changed.
9. Rule 144 Reporting. With a view to making available the benefits of
certain rules and regulations of the Commission which may at any time permit the
sale of the Registrable Securities to the public without registration the
Company agrees to:
(a) Make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act (or any successor
rule);
(b) Use its best efforts to file with the Commission in a timely manner
all reports and other documents required of the Company under the Securities Act
and the Exchange Act; and
(c) Furnish to each Investor forthwith upon request a written statement by
the Company as to its compliance with the reporting requirements of such Rule
144 (or any successor rule) and, at
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any time after it has become subject to such reporting requirements, of the
Securities Act and the Exchange Act, a copy of the most recent annual or
quarterly report of the Company, and such other reports and documents so filed
by the Company as such Investor may reasonably request in availing itself of any
rule or regulation of the Commission allowing such Investor to sell any
Registrable Securities without registration.
10. Transfer or Assignment of Registration Rights
The rights of an Investor to be included in a Company registration under
this Agreement may not be transferred or assigned by an Investor, except that
the Investor may assign its rights hereunder to any transferees of the
Registrable Securities as permitted under Section 2, and provided that the
Company is given written notice by the Investor at the time of said transfer or
assignment stating the name and address of the transferee or assignee and
identifying the securities with respect to which such registration rights are
being transferred or assigned, and, provided further, that the transferee or
assignee of such rights assumes the obligations of such Investor under this
Section 12 and prior to such transfer, as a condition thereof, delivers to the
Company a written instrument by which such transferee agrees to be bound by this
Agreement.
11. Miscellaneous.
(a) All covenants and agreements contained in this Agreement by or on
behalf of any of the parties hereto shall bind and inure to the benefit of the
respective heirs, successors (including, without limitation, by sale or transfer
of all or substantially all assets, merger or consolidation) and assigns of the
parties hereto (including without limitation transferees of any Registrable
Securities), whether so expressed or not.
(b) All notices, requests, consents and other communications hereunder
shall be in writing, shall be addressed to the receiving party's address set
forth below or to such other address as a party may designate by notice
hereunder, and shall be either (i) delivered by hand, (ii) made by telex,
telecopy or facsimile transmission, (iii) sent by overnight courier, or (iv)
sent by registered or certified mail, return receipt requested, postage prepaid.
If to the Company: Orchid BioSciences, Inc.
000 Xxxxxxx Xxxx Xxxx
Xxxxxxxxx, XX 00000, XXX
Attn: CFO, COO
Tel: (000) 000-0000
Fax: (000) 000-0000
With a copy to: Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000, XXX
Attn: Xxxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
If to Investor: AstraZeneca UK Limited
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00 Xxxxxxxx Xxxx
Xxxxxx X0X 0XX, Xxxxxxx
With a copy to: AstraZeneca UK Limited
Xxxxxxxx Xxxxx, Xxxxxxxx Xxxx
Xxxxxxxxxxxx, Xxxxxxxx
XX00 0XX
Xxxxxx Xxxxxxx
Attn: Legal Department
All notices, requests, consents and other communications hereunder shall
be deemed to have been given either (i) if by hand, at the time of the delivery
thereof to the receiving party at the address of such party set forth above,
(ii) if made by telex, telecopy or facsimile transmission, at the time that
receipt thereof has been acknowledged by electronic confirmation or otherwise,
(iii) if sent by overnight courier, on the next business day following the day
such notice is delivered to the courier service, or (iv) if sent by registered
or certified mail, on the fifth business day following the day such mailing is
made.
(c) This Agreement and the rights and obligations of the parties hereunder
shall be construed in accordance with and governed by the law of the State of
Delaware, without giving effect to the conflict of law principles thereof.
(d) This Agreement may not be amended or modified, and no provision hereof
may be waived, without the written consent of the Company and of the Investor.
Any waiver or consent hereunder shall be effective only in the specific instance
and for the purpose for which it was given, and shall not constitute a
continuing waiver or consent.
(e) This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
(f) In the event that any court of competent jurisdiction shall determine
that any provision, or any portion thereof, contained in this Agreement shall be
unenforceable in any respect, then such provision shall be deemed limited to the
extent that such court deems it enforceable, and as so limited shall remain in
full force and effect. In the event that such court shall deem any such
provision, or portion thereof, wholly unenforceable, the remaining provisions of
this Agreement shall nevertheless remain in full force and effect.
(g) The Company recognizes that the rights of the Investor under this
Agreement are unique and, accordingly, the Investor shall, in addition to such
other remedies as may be available to them at law or in equity, have the right
to enforce their rights hereunder by actions for injunctive relief and specific
performance to the extent permitted by law. This Agreement is not intended to
limit or abridge any rights of the Investor which may exist apart from this
Agreement.
(h) The parties hereto acknowledge and agree that (i) each party and its
counsel, if so represented, reviewed and negotiated the terms and provisions of
this Agreement and have
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contributed to its revision and (ii) the rule of construction to the effect that
any ambiguities are resolved against the drafting party shall not be employed in
the interpretation of this Agreement.
(i) The headings and captions of the various subdivisions of this
Agreement are for convenience of reference only and shall in no way modify or
affect the meaning or construction of any of the terms or provisions hereof.
(j) No failure or delay by a party hereto in exercising any right, power
or remedy under this Agreement, and no course of dealing between the parties
hereto, shall operate as a waiver of any such right, power or remedy of the
party. No single or partial exercise of any right, power or remedy under this
Agreement by a party hereto, nor any abandonment or discontinuance of steps to
enforce any such right, power or remedy, shall preclude such party from any
other or further exercise thereof or the exercise of any other right, power or
remedy hereunder. The election of any remedy by a party hereto shall not
constitute a waiver of the right of such party to pursue other available
remedies. No notice to or demand on a party not expressly required under this
Agreement shall entitle the party receiving such notice or demand to any other
or further notice or demand in similar or other circumstances or constitute a
waiver of the rights of the party giving such notice or demand to any other or
further action in any circumstances without such notice or demand.
(k) Wherever this Agreement refers to the neuter gender such reference
shall include the masculine and feminine genders, and vice versa, as the context
may require.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement or
caused this Agreement to be executed by their duly authorized representatives as
of the date first written above.
ORCHID BIOSCIENCES, INC.
By:/s/ Xxxxxx X. Xxxxxx
---------------------------------
ASTRAZENECA UK, LIMITED
By:/s/ Xxxx Xxxx
---------------------------------
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