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EXHIBIT 4.2
SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
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This Second Amended and Restated Registration Rights Agreement (the
"Agreement") is made as of this 21st day of August, 1996 by and among The
Venture Capital Fund of New England III, L.P., Advent International Investors II
Limited Partnership, Advent Performance Materials Limited Partnership, Global
Private Equity II Limited Partnership, Rovent II Limited Partnership, Xxxx X.
Xxxxxxx, Xxxxxxx Xxx, Sprout Capital VI, L.P., DLJ Capital Corporation, Xxxxxx
Healthcare Corporation and Clinical Nutrition Holdings, Inc., Xxxxx X. Xxxxxxx,
Xxxxx X. Xxxxxxx and Xxxxxxx X. Xxxx (collectively, the "Purchasers"), Clintec
Nutrition Company ("Clintec"), Massachusetts Institute of Technology ("MIT") and
Transcend Therapeutics, Inc., a Delaware corporation (the "Company"). The
Purchasers, Clintec and MIT are referred to in the Agreement collectively as the
"Holders".
RECITALS
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WHEREAS, certain of the Purchasers (the "Series A Stockholders") are the
holders of shares of the Company's Series A Convertible Preferred Stock, $.01
par value per share (the "Series A Preferred Stock"), and have the right to
participate in registrations of shares of the Company's Preferred Registrable
Shares (as defined below) under the Securities Act (as defined below) upon the
terms and conditions set forth in the Amended and Restated Registration Rights
Agreement dated as of September 13, 1995, as amended by an Amendment of Amended
and Restated Registration Rights Agreement dated December 22, 1995 and a Second
Amendment of Amended and Restated Registration Rights Agreement dated May 31,
1996, by and among the Company and such Purchasers (the "1995 Registration
Rights Agreement"); and
WHEREAS, Clintec is the holder of certain shares of the Company's Common
Stock, $.01 par value per share (the "Common Stock"), and has the right to
participate in registrations of the Company's Common Stock under the Securities
Act upon the terms and conditions set forth in the 1995 Registration Rights
Agreement; and
WHEREAS, MIT is the holder of a warrant dated October 26, 1994 to purchase
25,000 shares of the Company's Common Stock (the "MIT Warrant") and has the
right to participate in registrations of the Company's Common Stock under the
Securities Act upon the terms and conditions set forth in the 1995 Registration
Rights Agreement; and
WHEREAS, certain of the Purchasers are parties to a Note Purchase Agreement
dated September 13, 1995, as amended May 31, 1996 (the "Note Purchase
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Agreement"), by and among the Company and such Purchasers, providing for the
purchase by such Purchasers of the Secured Convertible Term Notes of the Company
in the aggregate principal amount of $3,000,000 (as amended, the "Notes"), which
Notes shall bear interest payable in, and shall be convertible into, shares of
Series A Preferred Stock or Series B Convertible Preferred Stock, $.01 par value
per share (the "Series B Preferred Stock"), and have the right to participate in
registrations of shares of the Company's Preferred Registrable Shares under the
Securities Act upon the terms and conditions set forth in the Securities Act
upon the terms and conditions set forth in the 1995 Registration Rights
Agreement; and
WHEREAS, the Company intends to issue and sell a total of 851,064 shares of
its Series C Convertible Preferred Stock, $.01 par value per share (the "Series
C Preferred Stock"), at $2.35 per share, pursuant to the Series C Convertible
Preferred Stock Purchase Agreement dated as of the date hereof by and among the
Company and certain of the Purchasers (the "Series C Stock Purchase Agreement");
and
WHEREAS, the Company intends to issue a total of 3,404,255 shares of Series
C Preferred Stock under the Series C Purchase Agreement to Clintec in exchange
for all of the outstanding shares of the Company's Non-Convertible Preferred
Stock, $.01 par value per share; and
WHEREAS, the parties wish to provide registration rights with respect to
the holders of shares of Series C Preferred Stock; and
WHEREAS, each of the parties hereto desires to set forth in a single
document such registration and certain other rights of the Holders.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in the Agreement, the parties hereto agree as follows:
1. Termination of 1995 Registration Rights Agreement.
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1.1. TERMINATION OF 1995 REGISTRATION RIGHTS AGREEMENT. The parties
hereto hereby acknowledge and agree that the 1995 Registration Rights Agreement
is hereby terminated and amended, restated and superseded in all respects by
this Agreement.
2. CERTAIN DEFINITIONS. As used in this Agreement, the following terms
shall have the following respective meanings:
"COMMISSION" means the Securities and Exchange Commission, or any
other Federal agency at the time administering the Securities Act.
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"COMMON REGISTRABLE SHARES" means (i) the shares of Common Stock
issued to Clintec pursuant to the Contribution Agreement dated April 5, 1994 by
and between the Company and Clintec, (ii) the MIT Warrant Shares, and (iii) any
other shares of Common Stock of the Company issued in respect of such shares
(because of stock splits, stock dividends, reclassifications, recapitalizations,
or similar events).
"COMMON STOCKHOLDER" means (i) Clintec and any persons or entities to
whom the rights granted under the Agreement are transferred by Clintec, (ii) MIT
and any persons or entities to whom the rights granted under this Agreement are
transferred by MIT, and (iii) their successors or assigns as permitted by
Section 15 hereof.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
or any similar United States statute, and the rules and regulations of the
Commission issued under such act, as they each may, from time to time, be in
effect.
"MIT WARRANT" has the meaning provided in the recitals to this
Agreement.
"NOTES" has the meaning provided in the recitals to this Agreement.
"PREFERRED REGISTRABLE SHARES" means (i) the shares of Common Stock
issued or issuable upon conversion of the Series A Preferred Stock issued (a)
pursuant to a Series A Convertible Stock and Warrant Purchase Agreement dated as
of April 5, 1994, as amended, by and among the Company and such Purchasers (the
"Stock Purchase Agreement"), (b) upon conversion of the Series A Warrant Shares,
or (c) as payment of interest on, or upon conversion of the principal amount of,
certain of the Notes, (ii) the shares of Common Stock issued or issuable upon
the conversion of the Company's Series B Preferred Stock, issued as payment of
interest on, or upon conversion of the principal amount of, certain of the
Notes, (iii) the shares of Common Stock issued or issuable upon conversion of
the Company's Series C Preferred Stock issued pursuant to the Series C Stock
Purchase Agreement, and (iv) any other shares of Common Stock of the Company
issued in respect of such shares (because of stock splits, stock dividends,
reclassifications, recapitalizations, or similar events). Wherever reference is
made in this Agreement to a request or consent of holders of a certain
percentage of the Preferred Registrable Shares, or to a number or percentage of
Preferred Registrable Shares held by a Series A Stockholder, a Series B
Stockholder or a Series C Stockholder (all as defined below), such reference
shall be intended to refer to shares of Common Stock issuable upon conversion of
the shares of Series A Preferred Stock, Series B Preferred Stock and Series C
Preferred Stock even though such conversion has not yet been effected.
"PREFERRED STOCKHOLDER" means all Series A Stockholders, Series B
Stockholders and Series C Stockholders.
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"REGISTRATION STATEMENT" means a registration statement filed by the
Company with the Commission for a public offering and sale of securities of the
Company (other than a registration statement on Form S-8 or Form S-4, or their
successors, or any other form for a limited purpose, or any registration
statement covering only securities proposed to be issued in exchange for
securities or assets of another corporation).
"REGISTRATION EXPENSES" means the expenses described in Section 7.
"REGISTRABLE SHARES" means Common Registrable Shares and Preferred
Registrable Shares.
"SECURITIES ACT" means the Securities Act of 1933, as amended, or any
similar United States statute, and the rules and regulations of the Commission
issued under such act, as they each may, from time to time, be in effect.
"SERIES A STOCKHOLDER" has the meaning provided in the recitals to
this Agreement.
"SERIES A WARRANTS" shall mean warrants to purchase shares of Series A
Preferred Stock issued pursuant to the Series A Convertible Preferred Stock and
Warrant Purchase Agreement dated April 5, 1994 by and among the Company and
certain of the Purchasers.
"SERIES A WARRANT SHARES" shall mean the shares of Series A Preferred
Stock reserved by the Company for issuance, or actually issued, upon exercise of
the Series A Warrants.
"SERIES B STOCKHOLDER" means a holder of the Additional Notes, the
interest of which is convertible into shares of Series B Preferred Stock,
pursuant to the Note Purchase Agreement.
"SERIES C STOCKHOLDER" means a holder of shares of Series C Preferred
Stock issued pursuant to the Series C Stock Purchase Agreement.
"STOCKHOLDERS" means all Preferred Stockholders and Common
Stockholders; "STOCKHOLDER" means any Preferred Stockholder or Common
Stockholder.
"MIT WARRANT SHARES" means the shares of Common Stock reserved by the
Company for issuance, or actually issued, upon exercise of the MIT Warrant.
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3. Sale or Transfer of Shares: Legend.
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3.1. The Registrable Shares shall not be sold or transferred unless
either (i) they first shall have been registered under the Securities Act, or
(ii) the Company first shall have been furnished with an opinion of legal
counsel, reasonably satisfactory to the Company, to the effect that such sale or
transfer is exempt from the registration requirements of the Securities Act.
3.2. Each certificate representing the Registrable Shares shall bear a
legend substantially in the following form:
The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Act"), or applicable state securities laws and may not be
transferred or otherwise disposed of unless and until such shares
are registered under the Act and such laws or (1) registration
under applicable state securities is not required and (2) an
opinion of counsel satisfactory to the Company is furnished to
the Company, to the effect that such registration under the Act
is not required."
The foregoing legend shall be removed from the certificates representing
any Registrable Shares at the request of the holder thereof, at such time as
they become registered under the Securities Act or eligible for resale pursuant
to Rule 144(k) under the Securities Act.
4. Required Registrations.
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4.1. Subject to the last sentence of Section 4.3, within 90 days
following written notice from a Preferred Stockholder or Stockholders holding
not less than thirty-five percent (35%) of the then outstanding Preferred
Registrable Shares, the Company shall effect the registration of such Preferred
Registrable Shares on Form S-1 or Form S-2 (or any successor forms) or other
appropriate Registration Statement designated by such Preferred Stockholder or
Stockholders. Subject to the last sentence of Section 4.3, within 90 days
following written notice from a Common Stockholder or Stockholders holding not
less than thirty-five percent (35%) of the then outstanding Common Registrable
Shares, the Company shall effect the registration of such Common Registrable
Shares on Form S-1 or Form S-2 (or any successor forms) or other appropriate
Registration Statement designated by such Common Stockholder or Stockholders.
Any demand registration pursuant to this Section 4.1 must be underwritten on a
firm commitment basis by an investment banker of recognized national or regional
standing in the United States. The right of other Stockholders to participate in
such underwritten registration shall be conditioned on such Stockholders'
participation in such underwriting upon the same terms and conditions. Upon
receipt of any such request, the Company shall promptly give written notice of
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such proposed registration to all Stockholders. Such Stockholders shall have the
right, by giving written notice to the Company within 30 days after the Company
provides its notice, to elect to have included in such registration such of
their Registrable Shares as such Stockholders may request in such notice of
election, subject to the approval of the underwriter managing the offering.
Thereupon, the Company shall, as expeditiously as possible, use its best efforts
to effect the registration, on Form S-1 or Form S-2 (or any successor form) or
such other appropriate Registration Statement designated by such Stockholder or
Stockholders, of all Registrable Shares which the Company has been requested to
so register.
4.2. At any time after the Company becomes eligible to file a
Registration Statement on Form S-3 (or any successor form relating to secondary
offerings), (i) a Preferred Stockholder or Stockholders holding not less than
thirty-five percent (35 %) of the then outstanding Preferred Registrable Shares
may request the Company, in writing, to effect registration on Form S-3 (or such
successor form), of Preferred Registrable Shares or (ii) a Common Stockholder or
Stockholders holding not less than thirty-five percent (35 %) of the then
outstanding Common Registrable Shares may request the Company, in writing, to
effect registration on Form S-3 (or such successor form), of Common Registrable
Shares. Upon receipt of either or both such requests, the Company shall promptly
give written notice of such proposed registration(s) to all Stockholders. Such
Stockholders shall have the right, by giving written notice to the Company
within thirty days after the Company provides its notice, to elect to have
included in such registration such of their Registrable Shares as such
Stockholders may request in such notice of election, subject to the approval of
the underwriter managing the offering. Thereupon, the Company shall, as
expeditiously as possible, use its best efforts to effect the registration, on
Form S-3 (or such successor form), of all Registrable Shares which the Company
has been requested to so register.
4.3. The Company shall not be required to effect more than one
registration pursuant to the first sentence or second sentences of Section 4.1
or more than one registration pursuant to clauses (i) or (ii) of Section 4.2. In
addition, the Company shall not be required to effect any registration (other
than on Form S-3 or any successor form relating to secondary offerings, if
available) within six months after the effective date of any other Registration
Statement of the Company.
4.4. A registration pursuant to the first or second sentence of
Section 4.1 shall not count for purposes of the limitation set forth in Section
4.3 (i) unless the offering becomes effective and the requesting Stockholders
are able to sell at least 75% of the Registrable Shares sought to be included in
the Registration or (ii) if the Company is engaged or has fixed plans within 30
days of the time of the request to engage, in a registered public offering as to
which the Stockholders may include Registerable Shares pursuant to Section 4.5.
In the event of a clause (ii) of this Section 4.4 occurrence, the Company may at
its option direct that such request be
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delayed for a period of six months from the effective date of such offering, any
such right to delay a request to be exercised by the Company not more than once
in any two-year period.
5. Incidental Registration.
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5.1. Whenever the Company proposes to file a Registration Statement
(other than pursuant to Section 4.1 and 4.2 above), prior to such filing it
shall give written notice to all Stockholders of its intention to do so, and
upon the written request of a Stockholder or Stockholders given within 30 days
after the Company provides such notice (which request shall state the intended
method of disposition of such Registrable Shares), the Company shall use its
best efforts to cause all Preferred Registrable Shares which the Company has
been requested to register by the Preferred Stockholders and all Common
Registrable Shares which the Company has been requested to register by the
Common Stockholders to be registered under the Securities Act to the extent
necessary to permit their sale or other disposition in accordance with the
intended methods of distribution specified in the request of such
Stockholder(s); provided that the Company shall have the right to postpone or
withdraw any registration effected pursuant to this Section 5 without obligation
to any Stockholder.
5.2. In connection with any offering under Section 3.1 involving an
underwriting, the Company shall not be required to include any Registrable
Shares in such underwriting unless the holders thereof accept the terms of the
underwriting as agreed upon between the Company and the underwriters selected by
it, and then only in such quantity as will not, in the opinion of the
underwriters, jeopardize the success of the offering by the Company. If in the
opinion of the managing underwriter the registration of all, or part of, the
Registrable Shares which the holders have requested to be included would
materially and adversely affect such public offering, then the Company shall be
required to include in the underwriting only that number of Registrable Shares,
if any, which the managing underwriter believes may be sold without causing such
adverse effect. In the event of such a reduction in the number of shares to be
included in the underwriting, all holders of Registrable Shares who have
requested registration shall participate in the underwriting pro rata based upon
their total ownership of Registrable Shares (or in any other proportion as
agreed upon by such holders) and if any such holder would thus be entitled to
include more shares than such holder requested to be registered, the excess
shall be allocated among such other requesting holders pro rata based on their
ownership of Registrable Shares. No other securities requested to be included in
a registration for the account of anyone other than the Company or the
Stockholders shall be included in a registration unless all Registrable Shares
requested to be included in such registration are so included.
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6. Registration Procedures.
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6.1. If and whenever the Company is required by the provisions of this
Agreement to use its best efforts to effect the registration of any of the
Registrable Shares under the Securities Act, the Company shall:
(a) file with the Commission a Registration Statement with
respect to such Registrable Shares and use its best efforts to cause that
Registration Statement to become and remain effective;
(b) as expeditiously as possible prepare and file with the
Commission any amendments and supplements to the Registration Statement and the
prospectus included in the Registration Statement as may be necessary to keep
the Registration Statement effective for a period of not less than 90 days from
the effective date;
(c) as expeditiously as possible furnish to each selling
Stockholder such reasonable numbers of copies of the prospectus, including a
preliminary prospectus, in conformity with the requirements of the Securities
Act, and such other documents as the selling Stockholder may reasonably request
in order to facilitate the public sale or other disposition of the Registrable
Shares owned by the selling Stockholder; and
(d) as expeditiously as possible use its best efforts to register
or qualify the Registrable Shares covered by the Registration Statement under
the securities or Blue Sky laws of such states as the selling Stockholder shall
reasonably request, and do any and all other acts and things that may be
necessary or desirable to enable the selling Stockholder to consummate the
public sale or other disposition in such jurisdictions of the Registrable Shares
owned by the selling Stockholder; PROVIDED, HOWEVER, that the Company shall not
be required in connection with this paragraph (d) to qualify as a foreign
corporation in any jurisdiction.
6.2. If the Company has delivered preliminary or final prospectuses to
the selling Stockholder and after having done so the prospectus is amended to
comply with the requirements of the Securities Act, the Company shall promptly
notify the selling Stockholder and, if requested, the selling Stockholder shall
immediately cease making offers of Registrable Shares and shall return all
prospectuses to the Company. The Company shall promptly provide the selling
Stockholder with revised prospectuses and, following receipt of the revised
prospectuses, the selling Stockholder shall be free to resume making offers of
the Registrable Shares.
7. ALLOCATION OF EXPENSES. The Company shall pay the Registration Expenses
(as defined below) for (i) the first demand registration on Form S-1 or Form
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S-2 (or any successor forms) or Form S-3 (or any successor form) requested by
any of the Preferred Stockholders pursuant to Section 4.1 or 4.2 hereof and (ii)
the first demand registration on Forms S-1 or S-2 (or any successor forms) or
Form S-3 (or any successor form) requested by any of the Common Stockholders
pursuant to Section 4.1 or 4.2 hereof. If a registration on a Registration
Statement other than Form S-3 (or any successor form) requested by the
Stockholders pursuant to paragraph Section 4.1 is withdrawn at the request of
the Stockholders requesting it (other than as a result of information concerning
the business or financial condition of the Company that is made known to the
Stockholders after the date on which such registration was requested) and if the
requesting Stockholders holding a majority of the Registrable Shares requested
to be included in such registration elect not to have such registration counted
as a registration requested under Section 4.1, the requesting Stockholders shall
pay the Registration Expenses of such registration pro rata in accordance with
the number of their Registrable Shares which were to have been included in such
registration. For purposes of this Section, the term "REGISTRATION EXPENSES"
shall mean all expenses incurred by the Company in complying with Sections 4 and
5 of this Agreement, including, without limitation, all registration and filing
fees, exchange listing fees, printing expenses, fees and disbursements of
counsel for the Company and one counsel for the selling Stockholders,
out-of-pocket expenses of the Company and the underwriters, state Blue Sky fees
and expenses, and the expense of any special audits incident to or required by
any such registration, but excluding underwriting discount and selling
commissions and fees of more than one counsel for the- selling Stockholders.
Such underwriting discounts and selling commissions shall be borne pro rata by
the selling Stockholders in accordance with the number of their Registrable
Shares included in such registration.
8. Indemnification.
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8.1. In the event of any registration of any of the Registrable Shares
under the Securities Act pursuant to this Agreement, then to the extent
permitted by law the Company shall indemnify and hold harmless the seller of
such Registrable Shares, each underwriter of such Registrable Shares and each
other person, if any, who controls such seller or underwriter within the meaning
of the Securities Act or the Exchange Act against any losses, claims, damages or
liabilities, joint or several, to which such seller, underwriter or controlling
person may become subject under the Securities Act, the Exchange Act, state
securities laws or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) 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 such Registrable Shares were registered
under the Securities Act, any preliminary prospectus or final prospectus
contained in the Registration Statement, or any amendment or supplement to such
Registration Statement, or arise out of or are based upon the omission or
alleged omission to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and the Company shall
reimburse such seller,
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underwriter and each such controlling person for any legal or any other expenses
reasonably incurred by such seller, underwriter or controlling person in
connection with investigating or defending any such loss, claim, damage,
liability or action; PROVIDED, HOWEVER, that the Company shall not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any untrue statement or omission made in such
Registration Statement, preliminary prospectus or prospectus, or any such
amendment or supplement, in reliance upon and in conformity with information
furnished to the Company, in writing, by or on behalf of such seller,
underwriter or controlling person specifically for use in the preparation
thereof.
8.2. In the event of any registration of any of the Registrable Shares
under the Securities Act pursuant to this Agreement, then to the extent
permitted by law, each seller of Registrable Shares severally and not jointly,
shall indemnify and hold harmless the Company, each of its directors and
officers and each underwriter (if any) and each person, if any, who controls the
Company or any such underwriter within the meaning of the Securities Act or the
Exchange Act, against any losses, claims, damages or liabilities joint or
several, to which the Company, such directors and officers, underwriter or
controlling person may become subject under the Securities Act, Exchange Act,
state securities laws or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in any
Registration Statement under which such Registrable Shares were registered under
the Securities Act, any preliminary prospectus or final prospectus contained in
the Registration Statement, or any amendment or supplement to the Registration
Statement, or arise out of or are based upon any omission or alleged omission to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, if the statement or omission was made solely
in reliance upon and in conformity with information furnished in writing to the
Company by or on behalf of such seller, specifically for use in connection with
the preparation of such Registration Statement, prospectus, amendment or
supplement; PROVIDED, HOWEVER, that the obligations of such Stockholder
hereunder shall be limited to an amount equal to the proceeds to each
Stockholder of Registrable Shares sold as contemplated herein.
8.3. Indemnification of an underwriter pursuant to this Section 8
shall not be interpreted as providing relief of such underwriter from any or all
of its due diligence obligations. Further, an underwriter shall not be entitled
to indemnification pursuant to this subsection in the event that it fails to
deliver to any selling Stockholder any preliminary or final or revised
prospectus, as required by the Rules and Regulations of the Commission. Finally,
no indemnification shall be provided pursuant to this subsection in the event
that any error in a preliminary prospectus of the Company is subsequently
corrected in the final prospectus of the Company for a
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particular offering, and such final prospectus is delivered to all purchasers in
the offering prior to the date of purchase of the securities.
8.4. Each party entitled to indemnification under this Section 8 (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 any such claim or any
litigation resulting therefrom; PROVIDED, that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not be unreasonably
withheld); and, PROVIDED, FURTHER, that the failure of any Indemnified Party to
give notice as provided herein shall not relieve the Indemnifying Party of its
obligations under this Section 8. The Indemnified Party may participate in such
defense at such party's expense; PROVIDED, HOWEVER, that the Indemnifying Party
shall pay such expense if representation of such Indemnified Party by the
counsel retained by the Indemnifying Party would be inappropriate due to actual
or potential differing interests between the Indemnified Party and any other
party represented by such counsel in such proceeding. 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 that does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such Indemnified Party of a release from all
liability in respect of such claim or litigation, 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.
8.5. CONTRIBUTION. If the indemnification provided for in Sections 8.1
through 8.4 is held by a court of competent jurisdiction to be unavailable to an
Indemnified Party with respect to any losses, claims, damages or liabilities
referred to herein, the Indemnifying Party, in lieu of indemnifying such
Indemnified Party thereunder, shall to the extent permitted by applicable law
contribute to the amount paid or payable by such Indemnified Party as a result
of such loss, claim, damage or liability in such proportion as is appropriate to
reflect the relative fault of the Indemnifying Party on the one hand and of the
Indemnified Party on the other in connection with the violation(s) that resulted
in such loss, claim, damage or liability, as well as any other relevant
equitable considerations. The relative fault of the Indemnifying Party and of
the Indemnified Party shall be determined by a court of law by reference to,
among other things, whether the untrue or alleged untrue statement of 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.
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8.6. INDEMNIFICATION WITH RESPECT TO UNDERWRITTEN OFFERING. In the
event that Registrable Shares are sold pursuant to a Registration Statement in
an underwritten offering pursuant to Subsection 4.1, the Company agrees to enter
into an underwriting agreement containing customary representations and
warranties with respect to the business and operations of an issuer of the
securities being registered and customary covenants and agreements to be
performed by such issuer, including without limitation customary provisions with
respect to indemnification by the Company of the underwriters of such offering.
9. INFORMATION BY HOLDER. Each holder of Registrable Shares included in any
registration shall furnish to the Company such information regarding such holder
and the distribution proposed by such holder as the Company may request in
writing and as shall be required in connection with any registration,
qualification or compliance referred to in this Agreement.
10. RULE 144 REQUIREMENTS. With a view to making available to the
Stockholders the benefits of Rule 144 promulgated under the Securities Act and
any other rule or regulation of the Commission that may at any time permit a
Stockholder to sell securities of the Company to the public without
registration, the Company agrees to use its best efforts to:
(a) make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act (at any time
after it has become subject to the reporting requirements of the Exchange Act);
(b) file with the Commission in a timely manner all reports and
other documents required of the Company under the Securities Act and the
Exchange Act (at any time after it has become subject to such reporting
requirements); and
(c) furnish to any holder of Registrable Shares upon request a
written statement by the Company as to its compliance with the reporting
requirements of said Rule 144 (at any time after 90 days after the closing of
the first sale of securities by the Company pursuant to a Registration
Statement), and of the Securities Act and the Exchange Act (at any time after it
has become subject to such reporting requirements), a copy of the most recent
annual or quarterly report of the Company, and such other reports and documents
of the Company as such holder may reasonably request to avail itself of any
similar rule or regulation of the Commission allowing it to sell any such
securities without registration.
11. SELECTION OF UNDERWRITER. In the case of any registration effected
pursuant to Sections 4.1 or 4.2, the requesting Stockholders shall have the
right to designate the managing underwriter, subject to the approval of the
Company, which approval shall not be unreasonably withheld or delayed.
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12. RESTRICTIONS ON OTHER AGREEMENTS. The Company will not enter into any
agreement with any party which by its terms grants any right relating to the
registration of its Common Stock superior to or on a parity with the rights
granted to the Purchasers, Clintec and MIT pursuant to this Agreement.
13. MERGERS. ETC. The Company shall not, directly or indirectly, enter into
any merger, consolidation or reorganization in which the Company shall not be
surviving corporation unless the proposed surviving corporation shall, prior to
such merger, consolidation or reorganization, agree in writing to assume the
obligations of the Company under this Agreement, and for that purpose references
hereunder to "Registrable Shares" shall be deemed to be references to the
securities which the Stockholders would be entitled to receive in exchange for
Registrable Shares under any such merger, consolidation or reorganization
PROVIDED, HOWEVER, that the provisions of this Section 4.13 shall not apply in
the event of any merger, consolidation or reorganization in which the Company is
not the surviving corporation if all Stockholders are entitled to receive in
exchange for their Registrable Shares consideration consisting solely of (i)
cash, (ii) securities of the acquiring corporation which may be immediately sold
to the public without registration under the Securities Act, or (iii) securities
of the acquiring corporation which the acquiring corporation has agreed to
register within 90 days of completion of the transaction for resale to the
public pursuant to the Securities Act.
14. TERMINATION. All of the Company's obligations to register Registerable
Shares under this Agreement shall terminate on September 30, 2005.
15. Transfer of Rights.
-------------------
15.1. The rights granted to a Stockholder under this Agreement may be
transferred by such Stockholder to another person or entity that is then a
Stockholder, or to any person or entity acquiring at least 250,000 Registrable
Shares (as adjusted for stock splits, stock dividends, recapitalization or
similar events).
15.2. Any transferee (other than a Purchaser or Clintec) to whom
rights under this Agreement are transferred shall, as a condition to such
transfer, deliver to the Company a written instrument by which such transferee
identifies itself, gives the Company notice of the transfer of such rights,
indicates the Registrable Shares owned by it and agrees to be bound by the
obligations imposed upon Stockholders under this Agreement.
15.3. A transferee to whom rights are transferred pursuant to this
Section 6 may not again transfer such rights to any other person or entity,
other than as provided in paragraphs (a) or (b) above.
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15.4. Notwithstanding anything to the contrary herein, any Stockholder
which is a partnership or corporation may transfer rights granted to such
Stockholder under this Agreement to any partner or stockholder thereof to whom
Registrable Shares are transferred and who delivers to the Company a written
instrument in accordance with paragraph (b) above which contains a
representation that the transfer is exempt from registration under the
Securities Act. In the event of such transfer, such partner or stockholder shall
be deemed a Stockholder for purposes of this Agreement and may again transfer
such rights to any other person or entity which acquires Registrable Shares from
such partner or stockholder, in accordance with, and subject to, the provisions
of paragraphs (a), (b) and (c) above.
16. General
-------
16.1. NOTICES. All notices, requests, consents, and other
communications under this Agreement shall be in writing and shall be delivered
by hand or mailed by first class certified or registered mail, return receipt
requested, postage prepaid:
If to the Company at:
Transcend Therapeutics, Inc.
000 Xxxxxxxx Xxxxx, 0X
Xxxxxxxxx, XX 00000
Attention: President
Facsimile: (000) 000-0000
With a copy to:
Xxxx and Xxxx
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
or at such other address or addresses as may have been furnished in writing by
the Company to the Purchasers, MIT and Clintec.
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If to the following Purchasers:
The Venture Capital Fund of New England
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, III
Facsimile: (617) 439A652
Advent International Investors Ii Limited Partnership
Advent Performance Materials Limited Partnership
Global Private Equity U Limited Partnership
Rovent II Limited Partnership
Xxxx X. Xxxxxxx
Xxxxxxx Xxx
c/o Advent International Corporation
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Moufflet
Facsimile: (000) 000-0000
Sprout Capital VI, L.P.
DLJ Capital Corporation
000 Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx & Dodge
Xxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx, Esq.
Facsimile: (617) 227A420
or at such other address or addresses as may be been furnished to the Company in
writing by the above Purchasers.
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If to the following Purchasers or Clintec:
Xxxxxx Healthcare Corporation
Xxx Xxxxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Attention: General Counsel
Facsimile: (708) 948A266
Clintec Nutrition Company
Xxxxx Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: President
Facsimile: (000) 000-0000
Clinical Nutrition Holdings, Inc.
000 Xxxxx Xxxxx Xxxx.
Xxxxxxxx, XX 00000
Attention: President
Facsimile: (000) 000-0000
with a copy to:
Xxxx, Xxxx & Xxxxx
Three First National Plaza
00 Xxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxxx, Esq.
Facsimile: (000) 000-0000
If to MIT:
Massachusetts Institute of Technology
000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Associate Director of Real Estate
Facsimile: (000) 000-0000
with a copy to:
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
If to Xxxxx X. Xxxxxxx:
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Xxxxx X. Xxxxxxx
24 Xxxxxx Xxxxx Vistas
000 Xxxxxx Xxxx Xxxx Xxxx 0000
Xxxxx Xx, XX 00000
If to Xxxxx X. Xxxxxxx:
Xxxxx X. Xxxxxxx
0000 Xxxx 000xx Xxxxxx
Xxxxxxx, XX 00000
If to Xxxxxxx X. Xxxx:
Xxxxxxx X. Xxxx
0000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
or at such other address or addresses as may be been furnished to the Company in
writing by the above Purchaser, Clintec or MIT.
Any such notice provided in accordance with this Section 6 shall be deemed given
when so delivered personally, telegraphed, telexed, sent by facsimile
transmission, or, if mailed, two days after the date of deposit in the United
States mails.
17. ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements and understandings relating to such
subject matter.
18. AMENDMENTS AND WAIVERS. Any term of this Agreement may be amended and
the observance of any term of this Agreement may be waived (either generally or
in a particular instance and either retroactively or prospectively), with the
written consent of the Company and the holders of at least 75% of the
Registrable Shares; PROVIDED, that this Agreement may be amended with the
consent of the holders of less than all Registrable Shares only in a manner
which affects all Registrable Shares in the same fashion. No waivers of or
exceptions to any term, condition or provision of this Agreement, in any one or
more instances, shall be deemed to be, or construed as, a further or continuing
waiver of any such term, condition or provision.
19. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
shall be one and the same document.
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20. SEVERABILITY. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
21. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts, without regard to
the conflicts of law rules of the Commonwealth of Massachusetts.
IN WITNESS WHEREOF, this Agreement has been executed as of the date first
above written.
TRANSCEND THERAPEUTICS, INC.
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------------
Name: Xxxxxx X. Xxxxx, M.D., Ph.D.
Title: President
THE VENTURE CAPITAL FUND OF NEW ENGLAND III, L.P.
By: F H & Co. III, L.P.
General Partner
By: /s/ Xxxxxxx X. Xxxxx, III
---------------------------------------------
Xxxxxxx X. Xxxxx, III
General Partner
SPROUT CAPITAL VI, L.P.
By: DLJ Capital Corporation,
Managing General Partner
By: /s/ Xxxxxxxx Xxxxxxx
---------------------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Vice President
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DLJ CAPITAL CORPORATION
By: /s/ Xxxxxxxx Xxxxxxx
---------------------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Vice President
ADVENT INTERNATIONAL INVESTORS II LIMITED PARTNERSHIP
By: Advent International Corporation, General Partner
By: /s/ Xxxxxx X. Moufflet
---------------------------------------------
Name: Xxxxxx X. Moufflet
Title: Senior Vice President
ADVENT PERFORMANCE MATERIALS LIMITED PARTNERSHIP
By: Advent International Limited Partnership, General Partner
By: Advent International Corporation, General Partner
By: /s/ Xxxxxx X. Moufflet
---------------------------------------------
Name: Xxxxxx X. Moufflet
Title: Senior Vice President
GLOBAL PRIVATE EQUITY II LIMITED PARTNERSHIP
By: Advent International Limited Partnership, General Partner
By: Advent International Corporation, General Partner
By: /s/ Xxxxxx X. Moufflet
---------------------------------------------
Name: Xxxxxx X. Moufflet
Title: Senior Vice President
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ROVENT II LIMITED PARTNERSHIP
By: Advent International Limited Partnership, General Partner
By: Advent International Corporation, General Partner
By: /s/ Xxxxxx X. Moufflet
---------------------------------------------
Name: Xxxxxx X. Moufflet
Title: Senior Vice President
XXXXXX HEALTHCARE CORPORATION
By: /s/ Xxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxx X. Xxxxxxx, Xx.
Title: Vice President
CLINICAL NUTRITION HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
CLINTEC NUTRITION COMPANY
By: /s/ Xxxxxxx X. Xxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Chief Financial Officer
XXXX X. XXXXXXX
By: /s/ Xxxxxx X. Moufflet
---------------------------------------------
Xxxxxx X. Moufflet
as attorney-in-fact for Xxxx X. Xxxxxxx
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XXXXXXX XXX
By: /s/ Xxxxxx X. Moufflet
---------------------------------------------
Xxxxxx X. Moufflet
as attorney-in-fact for Xxxxxxx Xxx
MASSACHUSETTS INSTITUTE OF TECHNOLOGY
By: /s/ Xxxxxx X. Trusseu
-----------------------------------------------
Name: Xxxxxx X. Trusseu
Title: Director of Real Estate/Assoc. Treasurer
/s/ Xxxxx X. Xxxxxxx
---------------------------------------------
Xxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxx
---------------------------------------------
Xxxxxxx X. Xxxx
/s/ Xxxxx X. Xxxxxxx
---------------------------------------------
Xxxxx X. Xxxxxxx
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