REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is entered into as of
June 30, 2001, by and between Introgen Therapeutics, Inc., a Delaware
corporation (the "Company"), and Aventis Pharmaceuticals Products Inc., a
Pennsylvania corporation ( "APPI"). In addition, Xxxxx-Xxxxxxx Xxxxx
International (Holdings), Inc., a Delaware corporation ("RPRIH"), is entering
into this Agreement for the purpose of Section 8.1 only.
RECITALS
WHEREAS, RPRIH is presently the owner of 3,968,893 shares of the Company's
Common Stock (the "Existing Shares"); and
WHEREAS, the Company and APPI are parties to that certain Restated p53 and
K-ras Agreement of even date herewith, whereby the Company and APPI, among other
things, have agreed to enter into this Agreement; and
WHEREAS, pursuant to that certain Series A Non-Voting Convertible Stock
Purchase Agreement, of even date herewith, by and among the Company, APPI and
RPRIH (the "Stock Purchase Agreement"), the Company has agreed to sell, and APPI
has agreed to purchase, at the Closing, 100,000 shares of the Company's Series A
Non-Voting Convertible Preferred Stock (the "Series A Shares"); and
WHEREAS, as an inducement to enter into the Stock Purchase Agreement and as
additional consideration to APPI, the Stock Purchase Agreement contemplates,
among other things, that the Company, APPI and RPRIH enter into this Agreement
and that this Agreement become effective upon the Closing of the purchase and
sale of the Series A Shares under the Stock Purchase Agreement;
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, hereby agree as follows:
1. Certain Definitions. As used in this Agreement, the following terms
shall have the following respective meanings:
1.1 "Closing" shall have the meaning assigned to such term in the
Stock Purchase Agreement.
1.2 "Common Stock" shall mean the common stock of the Company, par
value $0.001 per share.
1.3 "Effective Date" shall mean the date of the Closing of the
purchase and sale of the Series A Shares under the Stock Purchase
Agreement.
1.4 "Exchange Act" shall mean the United States Securities Exchange
Act of 1934, as amended, and the rules and regulations of the SEC
promulgated thereunder.
1.5 "Holder" shall mean APPI and any other person or entity to whom
Registrable Securities and the rights to cause the Company to register the
Registrable Securities hereunder are transferred or assigned in accordance
with Section 9.
1.6 "Initiating Holders" means the person or persons who hold at least
a majority of the then outstanding Registrable Securities.
1.7 The terms "register," "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
1.8 "Registrable Securities" shall mean (i) the shares of Common Stock
issuable or issued upon conversion of the Series A Shares and (ii) any
other shares of Common Stock issued as (or issuable upon conversion or
exercise of any warrant, right or other security that is issued as) a
dividend or other distribution with respect to or exchange for or
replacement of the Series A Shares, excluding in all cases, however, any
Registrable Securities sold by a person in a transaction in which a
Holder's registration rights under this Agreement are not assigned;
provided, however, that Registrable Securities shall not include any shares
of Common Stock which have been sold to the public either pursuant to a
registration statement or Rule 144 under the Securities Act.
1.9 "Securities Act" shall mean the United States Securities Act of
1933, as amended, and the rules and regulations of the SEC promulgated
thereunder, all as the same shall be in effect at the time.
1.10 "SEC" shall mean the United States Securities and Exchange
Commission or any other federal agency at the time administering the
Securities Act.
2. Piggyback Registration Rights.
2.1 Registration. If the Company shall determine to register any of
its securities under the Securities Act (including for this purpose a
registration effected by the Company for stockholders other than the
Holders, but excluding any registration requested under Section 7.2 of the
Company's Series C Preferred Stock Purchase Agreement dated as of November
30, 1995 (the "Series C Agreement") in which any Existing Shares are
requested to be registered), other than (a) a registration relating solely
to employee benefit plans, (b) a registration, including a registration on
Form S-4, relating solely to a transaction subject to Rule 145 promulgated
under the Securities Act, or (c) a registration on any registration form
which does not permit secondary sales or does not include substantially the
same information as would be required to be included in a registration
statement covering the sale of Registrable Securities, the Company will:
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(i) promptly give to each Holder written notice thereof; and
(ii) include in such registration, and in any underwriting
involved therein, all of the Registrable Securities specified in a
written request or requests made by any Holder within twenty (20) days
after receipt of the written notice from the Company described in
clause (i) above, except as set forth in Section 2.2 below. Such
written request may specify all or a part of a Holder's Registrable
Securities.
2.2 Underwriting. If the registration of which the Company gives
notice is for an underwritten offering, the Company shall so advise the
Holders as a part of the written notice given pursuant to Section 2.1. In
such event, the right of any Holder to registration pursuant to this
Section 2 shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's Registrable Securities in
the underwriting to the extent provided herein. All Holders proposing to
distribute their securities through such underwriting shall (together with
the Company and any other stockholders proposing to distribute their
securities through such underwriting) enter into an underwriting agreement
in customary form with a nationally-recognized underwriter selected by the
Company, subject to the approval of such Holders, which approval shall not
be unreasonably withheld. Notwithstanding any other provision of this
Section 2, if the managing underwriter in any underwritten offering subject
to this Section 2 determines that marketing factors require a limitation on
the number of shares to be offered in the underwritten offering, the
managing underwriter may (subject to the allocation priority set forth
below) exclude from such registration and underwriting up to all of the
Registrable Securities that would otherwise be underwritten pursuant to
this Section 2. The Company shall so advise all holders of securities
requesting registration, and the number of shares of securities that are
entitled to be included in the registration and underwriting under this
Section 2 by persons other than the Company shall be allocated in the
following priority: first, among any stockholders requesting registration
pursuant to the Series C Agreement or the Company's Registration Rights
Agreement, dated as of October 31, 1997 (the "1997 Rights Agreement");
second, among all Holders; and third, among all other stockholders in
proportion, as nearly as practicable, to the respective amounts of
securities that they had requested to be included in such registration at
the time of filing the registration statement. If any Holder or other
stockholder disapproves of the terms of any such underwriting, such Holder
may elect to withdraw therefrom by written notice to the Company and the
managing underwriter. Any Registrable Securities or other securities
excluded or withdrawn from such underwriting shall be withdrawn from such
registration.
2.3 Right to Terminate Registration. The Company shall have the right
to terminate or withdraw any registration initiated by the Company under
this Section 2 without liability prior to the effectiveness of such
registration, whether or not any Holder has elected to include securities
in such registration.
2.4 Termination of Piggyback Rights. The rights granted pursuant to
this Section 2 shall terminate upon the earliest to occur of (X) after a
Holder has sold any Shares pursuant to a registration under this Section 2
on three (3) occasions; provided, however, that if the
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number of Shares requested to be included in an underwritten offering are
reduced as a result of the allocation priority in Section 2.2, then such
offering pursuant to this Section 2 shall not be counted for purposes of
counting the number of registrations under this clause (X), (Y) as to any
Holder, such time at which all Registrable Securities held by such Holder,
together will all Existing Shares held by RPRIH or any other affiliate of
APPI, can be sold in any three-month period without registration in
compliance with Rule 144 of the Securities Act (or any successor rule
thereof), or (Z) four (4) years from the Effective Date of this Agreement;
provided, however, that such four (4) year period shall be extended for the
total number of days of any and all Suspension Periods (as defined in
Section 4.1(a)).
3. Demand Registration.
3.1 Request for Registration. If the Company shall receive from the
Initiating Holders, at any time after the one-year anniversary of the
Effective Date, a written request that the Company effect any registration
with respect to any of the then outstanding Registrable Securities which
would result in an aggregate offering of at least $5,000,000 (or any lesser
aggregate offering if such request for registration is with respect to all
the Registrable Securities of such Initiating Holder under this Agreement),
the Company will:
(a) within 10 days of such request, give written notice of the
proposed registration to all other Holders; and
(b) as soon as practicable, and in any event with 60 days of such
request, file with the SEC and thereafter use its best efforts to
effect such registration (including, without limitation, the execution
of an undertaking to file post effective amendments, appropriate
qualification under applicable blue sky or other state securities laws
and appropriate compliance with applicable regulations issued under
the Securities Act) as may be so requested and as would permit or
facilitate the sale and distribution of all or such portion of such
Registrable Securities as are specified in such request, together with
all or such portion of the Registrable Securities of any Holders
joining in such request as are specified in a written request
delivered to the Company within twenty (20) days after receipt of such
written notice from the Company; provided that the Company shall not
be obligated to effect, or to take any action to effect, any such
registration pursuant to this Section 3:
(i) in any particular jurisdiction in which the Company
would be required to execute a general consent to service of
process in effecting such registration, qualification or
compliance, unless the Company is already subject to service in
such jurisdiction and except as may be required by the Securities
Act;
(ii) after the Company has effected three (3) such
registrations pursuant to this Section 3.1 and such registrations
have been declared or ordered effective and the sales of such
Registrable Securities have closed; provided, however, that if
the effectiveness of any such registration is not maintained for
a period of at least ninety (90) days (or any lesser period of
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time in the event the distribution contemplated by the
registration is fully completed), then such registration shall
not be counted as a registration for the purposes of this clause
(ii);
(iii) during the period starting with the date fifty-five
(55) calendar days prior to the Company's good faith estimate of
the date of filing of, and ending on a date one-hundred-fifty
(150) calendar days after the effective date of, any registration
statement pertaining to a public offering of securities for the
Company's account; provided that the Company is actively
employing in good faith its reasonable best efforts to cause such
registration statement to be effective; or
(iv) during the period starting with the date six (6) months
prior to the Company's good faith estimate of the effective date
of, and ending on a date six (6) months after the effective date
of, any registration statement pertaining to a public offering of
securities for the account of any stockholder requesting
registration pursuant Section 7.2(a) of the Series C Agreement or
pursuant to Section 2 of the 1997 Rights Agreement; provided that
the Company is actively employing in good faith its reasonable
best efforts to cause such registration statement to be effective
and provided further that if the Company has begun to effect a
registration pursuant to this Section 3 and receives a request
for registration from a stockholder pursuant Section 7.2(a) of
the Series C Agreement or pursuant to Section 2 of the 1997
Rights Agreement, then the Company shall immediately inform the
Holders and cease and have no further obligation to take any
action to effect the registration begun pursuant to Section 3.1.
Subject to the foregoing clauses (i) through (iv), the Company shall file a
registration statement covering the Registrable Securities so requested to be
registered as soon as practicable, after receipt of the request or requests of
the Initiating Holders; provided, however, that if the Company shall furnish to
such Holders a certificate signed by the President of the Company (a
"President's Certificate") stating that in the good faith judgment of the Board
of Directors of the Company, it would be seriously detrimental to the Company
and its stockholders for such registration statement to be filed on or before
the time filing would be required and it is therefore essential to defer the
filing of such registration statement, the Company shall have the right to defer
such filing (but not more than once during any twelve-month period) for a period
that the Board of Directors of the Company in its good faith judgment deems
reasonably necessary but in no event shall such period be more than
one-hundred-eighty (180) days after receipt of the request of the Initiating
Holders.
The registration statement filed pursuant to the request of the Initiating
Holders may, subject to the provisions of Section 3.2 below, include other
securities of the Company that are held by officers or directors of the Company
or that are held by persons who, by virtue of agreements with the Company, are
entitled to include their securities in any such registration.
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3.2 Underwriting.
(a) If the Initiating Holders intend to distribute the
Registrable Securities covered by their request by means of an
underwriting, they shall so advise the Company as a part of their
request made pursuant to this Section 3, and the Company shall include
such information in the written notice referred to in Section 3.1(a).
The right of any Holder to registration pursuant to Section 3 shall be
conditioned upon such Holder's participation in such underwriting and
the inclusion of such Holder's Registrable Securities in the
underwriting to the extent provided herein. A Holder may elect to
include in such underwriting all or a part of such Holder's
Registrable Securities.
(b) All Holders proposing to distribute their securities through
an underwritten offering pursuant to this Section 3 shall enter into
an underwriting agreement in customary form with the underwriter or
underwriters. The managing underwriters or underwriters for any such
underwritten offering shall be selected by the Initiating Holder,
subject to approval by the Company, which approval will not be
unreasonably withheld.
(c) Notwithstanding any other provision of this Section 3, if the
underwriter advises the Initiating Holders that marketing factors
require a limitation on the number of shares to be underwritten, then
the Initiating Holders shall so advise all Holders of Registrable
Securities that would otherwise be underwritten pursuant hereto, and
the number of shares of Registrable Securities that may be included in
the underwriting shall be allocated among all Holders thereof, in
proportion (as nearly as practicable) to the amount of Registrable
Securities owned by each Holder; provided, however, that the number of
shares of Registrable Securities to be included in such underwriting
shall not be reduced unless all other shares of Common Stock are first
entirely excluded from such underwriting. If any Holder disapproves of
the terms of any such underwriting, such Holder may elect to withdraw
therefrom by written notice to the Company and the underwriter. Any
Registrable Securities excluded or withdrawn from such underwriting
shall be withdrawn from such registration. If the underwriter has not
limited the number of Registrable Securities or other securities to be
underwritten, the Company may include its securities for its own
account in such registration if the underwriter so agrees and if the
number of Registrable Securities and other securities that would
otherwise have been included in such registration and underwriting
will not thereby be limited.
3.3 Termination of Demand Rights. The rights granted pursuant to this
Section 3 shall terminate upon the earlier to occur of (X) as to any
Holder, such time at which all Registrable Securities held by such Holder,
together with all Existing Shares held by RPRIH or any other affiliate of
APPI, can be sold in any three-month period without registration in
compliance with Rule 144 of the Securities Act (or any successor rule
thereof), or (Y) four (4) years from the Effective Date of this Agreement;
provided, however, that such four (4) year period shall be extended for the
total of (i) any and all Suspension Periods; (ii) any and all periods that
any Holder is prevented from exercising the rights granted pursuant to this
Section 3 by operation of Section 3.1(b)(iii) or Section 3.1(b)(iv); and
(iii) any and all periods that any Holder is prevented from exercising the
rights
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granted pursuant to this Section 3 by the Company's delivery of a
President's Certificate under Section 3.1, unless any Suspension Period or
any limitation on the exercisability of the rights granted pursuant to this
Section 3 by operation of Section 3.1(b)(iv) is caused by any Holder
requesting registration of Existing Shares pursuant to the Series C
Agreement.
4. Registration Procedures.
4.1 Company Procedures. Whenever required under this Agreement to
effect the registration of any Registrable Securities, the Company shall,
as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best efforts to
cause such registration statement to become effective, and, upon the
request of the Holders of a majority of the Registrable Securities
registered thereunder, keep such registration statement effective for
a period of up to ninety (90) days or any lesser period of time in the
event the distribution described in such registration statement has
been fully completed; provided, however, that the Company shall not be
obligated to keep such registration statement effective if the Company
receives a request for registration pursuant Section 7.2(a) of the
Series C Agreement (other than from a Holder) or pursuant to Section 2
of the 1997 Rights Agreement on or prior to the date that six (6)
months after the effective date of, such registration statement. Any
such period during which the Company is excused by operation of this
Section 4.1(a) from maintaining the effectiveness of the registration
statement is referred to as a "Suspension Period."
(b) Prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with
the provisions of the Securities Act with respect to the disposition
of all securities covered by such registration statement.
(c) Furnish to the Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Act, and such other documents as they may
reasonably request in order to facilitate the disposition of
Registrable Securities owned by such Holders.
(d) Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably requested
by the Holders, provided that the Company shall not be required in
connection therewith or as a condition thereto to qualify to do
business or to file a general consent to service of process in any
such states or jurisdictions.
(e) In the event of any underwritten public offering, enter into
and perform its obligations under an underwriting agreement, in usual
and customary form, with the managing underwriter of such offering.
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(f) Notify in writing each Holder 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 in the light of the circumstances then
existing.
(g) Notify in writing each Holder of Registrable Securities
covered by such registration statement, (a) when such registration
statement or the prospectus included therein or any amendment or
supplement or post-effective amendment has been filed, and, with
respect to such registration statement or any post-effective
amendment, when the same has become effective, (b) of any comments
made to the Company or its counsel by the SEC with respect thereto or
any request made to the Company or its counsel by the SEC for
amendments or supplements to such registration statement or prospectus
or for additional information (and furnish counsel for the selling
Holder(s) copies of such comment letters and requests), (c) of the
issuance by the SEC of any stop order suspending the effectiveness of
such registration statement or the initiation or threatening of any
proceedings for that purpose, (d) of the receipt by the Company of any
notification with respect to the suspension of the qualification of
the Registrable Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose.
(h) Use its reasonable best efforts to obtain the withdrawal of
any order suspending the effectiveness of such registration statement
or any post-effective amendment thereto at the earliest practicable
date and notify each Holder of Registrable Securities covered by such
registration statement of the withdrawal of any such order.
(i) Furnish, at the request of any Holder requesting registration
of Registrable Securities pursuant to this Agreement, on the date that
such Registrable Securities are delivered to the underwriters for sale
in connection with a registration pursuant to this Agreement, if such
securities are being sold through underwriters, or, if such securities
are not being sold through underwriters, on the date that the
registration statement with respect to such securities becomes
effective, (i) an opinion, dated such date, of the counsel
representing the Company for the purposes of such registration, in
form and substance as is customarily given to underwriters in an
underwritten public offering, addressed to the underwriters, if any,
and to the Holders requesting registration of Registrable Securities
and (ii) a letter dated such date, from the independent certified
public accountants of the Company, in form and substance as is
customarily given by independent certified public accountants to
underwriters in an underwritten public offering, addressed to the
underwriters, if any, and to the Holders requesting registration of
Registrable Securities.
(j) Make generally available to its securityholders as soon as
practicable but in any event not later than eighteen months after the
effective date of such registration statement, an earning statement
(which need not be audited) complying with Section 11(a) of the
Securities Act (including, at the Company's option, Rule 158
thereunder).
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4.2 Selling Stockholder Procedures. In connection with a request for
registration of any Registrable Securities pursuant to this Agreement, any
selling Holder shall, as expeditiously as reasonably possible:
(a) Furnish to the Company all such information concerning such
Holder necessary for the Company to complete the registration
statement and such Holder will notify the Company promptly if any such
information so furnished is no longer true and correct in all material
respects or if such information so furnished omits any material fact
necessary to make such information not misleading.
(b) In the event of any underwritten public offering, enter into
and perform its obligations under an underwriting agreement, in usual
and customary form, with the managing underwriter of such offering.
(c) In the event of any underwritten public offering, furnish, at
the request of the Company, on the date that such Registrable
Securities are delivered to the underwriters, an opinion, dated as of
such date, of the counsel representing the selling Holders in
connection with such registration, in form and substance as is
customarily given on behalf of selling stockholders in an underwritten
public offering, addressed to the underwriters and the Company.
5. Expenses of Registration. All expenses (other than underwriting
discounts and commissions and fees and disbursements of a special counsel of a
selling stockholder) incurred in connection with registrations, filings or
qualifications pursuant to Sections 2 and 3, including (without limitation) all
registration, federal and state filing and qualification fees and expenses,
printer's fees, accounting fees and fees and disbursements of counsel for the
Company shall be borne by the Company; provided, however, that the Company shall
not be required to pay for any expenses of any registration begun pursuant to
Section 3 if such registration request is subsequently withdrawn at the request
of the Holders of at least a majority of the Registrable Securities to be
registered (in which case all participating Holders shall bear such expenses),
unless the Holders of at least a majority of the Registrable Securities agree to
forfeit their right to one demand registration pursuant to Section 3; provided
further, however, that if at the time of such withdrawal, the Holders have
learned of a material adverse change in the condition, business, or prospects of
the Company from that known to the Holders at the time of their request and have
withdrawn the request following disclosure by the Company of such material
adverse change, then the Holders shall not be required to pay any of such
expenses and shall not forfeit their right to one demand registration pursuant
to Section 3.
6. Indemnification.
6.1 To the extent permitted by law, the Company will indemnify and
hold harmless each Holder, each Holder's officers, directors, employees and
agents, any underwriter (as defined in the Securities Act) for such Holder,
and each person, if any, who controls any such Holder or underwriter within
the meaning of the Securities Act, against any and all claims, losses,
damages
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and liabilities (joint or several) to which they may become subject under
the Securities Act or other federal or state law, insofar as such claims,
losses, damages or liabilities (or actions in respect thereof) arise out of
or are based on: (i) any untrue statement (or alleged untrue statement) of
a material fact contained in any registration statement, prospectus,
offering circular or other document incident to any such registration,
qualification or compliance, (ii) any omission (or alleged omission) to
state therein a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances in which they
were made, not misleading or (iii) any violation (or alleged violation) by
the Company of the Securities Act, the Exchange Act, any state securities
law, or any rule or regulation promulgated under the Securities Act,
Exchange Act or any state securities law; and the Company will pay each
such Holder, officer, director, employee, agent, underwriter or controlling
person, as incurred, any legal or other expenses reasonably incurred by
them in connection with investigating and defending any such claim, loss,
damage, liability or action; provided, however, that the indemnity
agreement contained in this Section 6.1 shall not apply to the extent that
any such claim, loss, damage, liability or expense arises out of or is
based on any untrue statement (or alleged untrue statement), omission (or
alleged omission) or violation (or alleged violation) based upon written
information furnished to the Company by such Holder or underwriter and
stated to be specifically for use in any such registration statement,
prospectus, offering circular or other document; provided further, however,
that the indemnity agreement contained in this Section 6.1 shall not apply
to amounts paid in settlement of any such loss, claim, damage, liability or
action if such settlement is effected without the consent of the Company
(which consent shall not be unreasonably withheld).
6.2 To the extent permitted by applicable law, each Holder will,
indemnify and hold harmless the Company, each of the Company's officers,
directors employees and agents, each person, if any, who controls the
Company within the meaning of the Securities Act, any underwriter, any
other Holder selling securities pursuant to the registration and any
controlling person of any such underwriter or other Holder, against any and
all claims, losses, damages and liabilities (joint or several) to which
they may become subject under the Securities Act or other federal or state
law, insofar as such claims, losses, damages or liabilities (or actions in
respect thereof) arise out of or are based on: (i) any untrue statement (or
alleged untrue statement) of a material fact contained in any registration
statement, prospectus, offering circular or other document incident to any
such registration, qualification or compliance, (ii) any omission (or
alleged omission) to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading or (iii) any
violation (or alleged violation) by the Holder of the Securities Act, the
Exchange Act, any state securities law, or any rule or regulation
promulgated under the Securities Act, Exchange Act or any state securities
law; and such Holder will pay the Company, each of the Company's officers,
directors employees and agents, each person controlling the Company, each
underwriter, each other Holder selling securities pursuant to the
registration and each person controlling any such underwriter or other
Holder, as incurred, any legal or other expenses reasonably incurred by
them in connection with investigating of defending any such claim, loss,
damage, liability or action, in each case to the extent (and only to the
extent) that such untrue statement (or alleged untrue statement), omission
(or alleged omission) or violation
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(or alleged violation) 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 Holder and stated to
be specifically for use therein; provided, however that the indemnity
agreement contained in this Section 6.2 shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Holder (which consent
shall not be unreasonably withheld); provided further, however, that in no
event shall the aggregate liability of a Holder for indemnification under
this Section 6.2 exceed the proceeds received by such Holder from the sale
of Registrable Securities in such offering.
6.3 Each person 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 any 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), and the Indemnified
Party may participate in such defense at such Indemnified Party's expense,
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 Agreement, except to the extent that the Indemnified
Party is prejudiced thereby. Each Indemnified Party shall furnish such
information regarding itself or the claim in question as an Indemnifying
Party may reasonably request and as shall be reasonably required in
connection with defense of such claim and litigation resulting therefrom.
An Indemnified Party shall have the right to retain its own counsel, with
the fees and expenses to be paid by the Indemnifying Party, if
representation of such Indemnified Party by the counsel retained by the
Indemnifying Party would be inappropriate due to actual or potential
differing interests between such Indemnified Party and any other party
represented by such counsel in such proceeding, provided that in no event
shall the Indemnifying Party be required to pay the fees and expenses of
more than one such separate counsel for each Indemnified Party.
6.4 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 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 the
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
allegation(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 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' relevant intent, knowledge,
access to information and opportunity to correct or prevent such statement
or omission;
-11-
provided that in no event shall any contribution by a Holder hereunder exceed
the proceeds from the sale of Registrable Securities received by such Holder.
6.5 The obligations of the Company and Holders under this Section 6
shall survive the completion of any offering of Registrable Securities in a
registration statement and the termination of this Agreement. No
Indemnifying Party, in the defense of any such claim or litigation, shall,
except with the prior written consent of each Indemnified Party (which
consent shall not be unreasonably withheld), consent to the entry of any
judgment or enter into any settlement. Unless waived by the Indemnified
Party, all judgments and settlements must include as an unconditional term
thereof the giving by the claimant or plaintiff to such Indemnified Party
of a release from all liability in respect to such claim or litigation.
7. Rule 144 Reporting. With a view to making available the benefits of
certain rules and regulations of the SEC that may permit the sale of the
Registrable Securities to the public without registration, the Company agrees
to:
7.1 Make and keep public information available as those terms are
understood and defined in Rule 144 under the Securities Act, at all times;
7.2 File with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange
Act;
7.3 furnish to any Holder, so long as the Holder owns any Registrable
Securities, forthwith upon request (i) a written statement by the Company
that it has complied with the reporting requirements of Rule 144 and of the
Securities Act and the Exchange Act, or that it qualifies as a registrant
whose securities may be resold pursuant to Form S-3; and (ii) such
information as may be reasonably requested in availing any Holder of any
rule or regulation of the SEC (exclusive of Rule 144) that permits the
selling of any such securities without registration or pursuant to such
form.
8. Standoff Agreement.
8.1 Prior to October 3, 2001, RPRIH shall not, without the consent of
the Company, sell or otherwise transfer or dispose of (other than to donees
who agree to be similarly bound) any Existing Shares.
8.2 Notwithstanding anything to the contrary in this Agreement, prior
to July 2, 2002, APPI shall not, without the consent of the Company, sell
or otherwise transfer or dispose of (other than to donees who agree to be
similarly bound) any Registrable Securities.
9. Transfer or Assignment of Registration Rights. The rights to cause the
Company to register the Holder's securities granted by the Company under
Sections 2 and 3 hereof may be transferred or assigned by the Holder to a
transferee or assignee of any of the Registrable Securities;
-12-
provided that (a) such transfer is only to an "affiliate" of such Holder (as
such term is defined in Rule 12b-2 of the Exchange Act), (b) the Company is
given written notice by such Holder at the time of said transfer or assignment,
stating the name and address of said transferee or assignee and identifying the
securities with respect to which such registration rights are being transferred
or assigned, and (c) the transferee or assignee of such rights assumes the
obligations of a Holder under this Agreement with respect to the Registrable
Securities that are transferred or assigned. To the extent APPI creates a new
subsidiary and transfers any of the Series A Shares to it, or transfers any of
the Series A Shares to any of its subsidiaries or affiliates (as such term is
defined in Rule 12b-2 of the Exchange Act), APPI shall cause such transferee to
become a signatory to this Agreement by a duly executed addendum agreement (an
"Addendum Agreement") substantially in the form as that attached hereto as
Exhibit A. The execution of an Addendum Agreement by such transferee shall
constitute a permitted amendment of this Agreement.
10. Miscellaneous.
10.1 Governing Law. This Agreement shall be governed in all respects
by and in accordance with the laws of the State of Delaware, without regard
to the principles of conflicts of law thereof.
10.2 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument.
10.3 Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
10.4 Notices. All notices, requests and other communications required
or permitted to be given to a party under this Agreement shall be in
writing and shall be deemed to have been duly given if (i) personally
delivered (by courier service or otherwise) or sent by registered or
certified mail (return receipt requested and postage prepaid), in each case
to the respective address specified below, or such other address as may be
specified in writing by such party to the other parties; or (ii) sent by
confirmed telecopier, as follows:
RPRIH and APPI:
Aventis Pharmaceuticals Products Inc.
Xxxxx 000-000
Xxxxxxxxxxx, Xxx Xxxxxx 00000-0000
Facsimile: (000) 000-0000
Attn: Senior Vice President -- Corporate Development
and
-00-
Xxxxx-Xxxxxxx Xxxxx International (Holdings), Inc.
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attn: Xxxxxxx Xxxxxxx, President
with copies to (which shall not constitute notice):
Xxxxxxx X. Xxxxxx
Vice President, Legal - Corporate Development
Xxxxx 000-000
Xxxxxxxxxxx, Xxx Xxxxxx 00000-0000
Facsimile: (000) 000-0000
and
Xxx X. Xxxx
Xxxxx Xxxxx L.L.P.
Xxx Xxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
Company:
Introgen Therapeutics, Inc.
000 Xxxxxxxx Xxx., Xxxxx 0000
Xxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
Attn: Xxxxx X. Xxxxx
with a copies to (which shall not constitute notice):
Xxxxxx Xxxxxx, Esq.
Xxxxxx & Xxxxxx, L.L.P.
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Facsimile: (512) 498- 9141
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and
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
Professional Corporation
0000 Xxxxxxx xx Xxxxx Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
Attn: Xxxxxxxxxxx X. Xxxxxx, Esq.
10.5 Amendments. Except as permitted by Section 9, this Agreement may
only be amended with the written consent of the Company and the holders of
at least a majority of the outstanding shares of Registrable Securities at
the time of such amendment. Any amendment effected in accordance with
Section 9 or this Section 10.5 shall be binding upon the Company, the
Holders, each transferee of the Registrable Securities, each future holder
of all such Registrable Securities.
10.6 Severability. If any provision of this Agreement should be held
invalid, illegal or unenforceable in any jurisdiction, all other provisions
hereof shall remain in full force and effect in such jurisdiction and shall
be liberally construed in order to carry out the intentions of the parties
as nearly as may be possible. Such invalidity, illegality or
unenforceability shall not affect the validity, legality or enforceability
of such provision in any other jurisdiction.
10.7 Successors and Assigns. The provisions of this Agreement shall be
binding on and inure to the benefit of the parties and their respective
successors and permitted assigns.
10.8 Delays or Omissions; Waiver. No delay or omission to exercise any
right, power or remedy accruing to any party, upon any breach or default of
this Agreement by another party, shall impair any such right, power or
remedy of the non-breaching party, nor shall it be construed to be a waiver
of any such breach or default, or an acquiescence therein, or of or in any
similar breach or default thereafter occurring; nor shall any waiver of any
single breach or default be deemed a waiver of any other breach or default
theretofore or thereafter occurring. Any waiver, permit, consent or
approval of any kind or character on the part of any party of any breach or
default under this Agreement or any waiver on the part of any party of any
provisions or conditions of this Agreement, must be in writing and shall be
effective only to the extent specifically set forth in such writing. All
remedies, either under this Agreement or by law or otherwise afforded to
any holder, shall be cumulative and not alternative.
10.9 Entire Agreement. This Agreement constitutes the entire agreement
among the parties with respect to the subject matter hereof, and supersedes
all prior or contemporaneous agreements and understandings, both written or
oral, among the parties with respect to such subject matter.
-15-
10.10 Telecopy Execution and Delivery. A facsimile, telecopy or other
reproduction of this Agreement may be executed by one or more parties, and
an executed copy of this Agreement may be delivered by one or more parties
by facsimile or similar electronic transmission device pursuant to which
the signature of or on behalf of such party can be seen, and such execution
and delivery shall be considered valid, binding and effective for all
purposes. At the request of any party hereto, all parties shall execute an
original of this Agreement as well as any facsimile, telecopy or other
reproduction hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement of the day and year first above written.
Introgen Therapeutics, Inc.
By:
-----------------------------------------------
Xxxxx X. Xxxxx
President & Chief Executive Officer
Aventis Pharmaceuticals Products Inc.
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
Xxxxx-Xxxxxxx Xxxxx International Holdings Inc.
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
-16-
EXHIBIT A
FORM OF ADDENDUM AGREEMENT
This ADDENDUM AGREEMENT (this "Addendum Agreement") made this ___ day of
__________, 200__ by and between _______________ (the "New Holder") and Introgen
Therapeutics, Inc., a Delaware corporation (the "Company"), and constitutes an
amendment of that certain Registration Rights Agreement dated June 30, 2001 (the
"Agreement"), among the Company, Aventis Pharmaceuticals Products Inc., a
Pennsylvania corporation ("APPI") and, solely for the purposes of Section 8.1 of
the Agreement, Xxxxx-Xxxxxxx Xxxxx International (Holdings), Inc., a Delaware
corporation ("RPRIH").
RECITALS
WHEREAS, the Company and APPI entered into the Agreement in order to impose
certain obligations upon the parties thereto with respect to registration and
transfer of certain Registrable Securities; and
WHEREAS, New Holder is now or will be the holder of certain Registrable
Securities and is or wishes to be entitled to the rights and subject to the
obligations of a Holder under the Agreement; and
WHEREAS, the Agreement requires that all persons or entitled being offered
Registrable Securities by actions taken subsequent to the date of the Agreement,
must enter into an Addendum Agreement binding the New Holder to the Agreement to
the same extent as if the New Holder were an original party thereto;
AGREEMENT
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, hereby agree as follows:
1. Capitalized terms used herein and not otherwise defined shall have the
meanings assigned to such terms in the Agreement.
2. New Holder shall be bound by, and shall have the benefit of, all the
terms and conditions set out in the Agreement to the same extent as if the New
Holder were a Holder under the Agreement.
3. This Addendum Agreement constitutes an amendment to the Agreement shall
be attached to and become a part of the Agreement.
4. Except as modified hereby, New Holder and the Company ratify and confirm
the terms of the Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Addendum
Agreement as of the date first above written.
NEW HOLDER
Print Name of New Holder
By:
-------------------------------------------
Signature
-------------------------------------------
Print Name of Signatory
-------------------------------------------
Title (if applicable)
Address for notices under Section 10.4 of the
Agreement:
----------------------------------------------
----------------------------------------------
----------------------------------------------
INTROGEN THERAPEUTICS, INC.
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
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