REGISTRATION RIGHTS AGREEMENT
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THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as of the
23rd day of December, 1997 by and among INCYTE PHARMACEUTICALS, INC., a Delaware
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corporation ("Incyte") and the stockholders of Synteni, Inc., a Delaware
corporation ("Synteni"), listed on Schedule A hereto (the "Holders").
WHEREAS, Incyte, Bond Acquisition Corporation, a wholly owned
subsidiary of Incyte ("Merger Subsidiary"), and Synteni have entered into that
certain Agreement and Plan of Merger (the "Merger Agreement"), pursuant to which
Merger Subsidiary will be merged with and into Synteni, Inc. (the "Merger") and
the Holders will receive pursuant to the Merger shares (the "Shares") of Incyte
common stock, $.001 par value ("Common Stock"); and
WHEREAS, in connection with the issuance of the Shares in the Merger,
Incyte and the Holders desire to provide for the rights of the Holders with
respect to the registration of certain of the Shares according to the terms of
this Agreement.
NOW THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Definitions.
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1.1 The term "Commission" means the Securities and Exchange Commission
or any other federal agency at the time administering the Securities Act.
1.2 The term "Exchange Act" means the Securities Exchange Act of 1934,
as amended, or any similar successor federal statute and the rules and
regulations thereunder, all as the same shall be in effect from time to time.
1.3 The term "Holder" means any person owning or having the right to
acquire Registrable Securities or any assignee thereof in accordance with
Section 10 hereof;
1.4 The terms "register," "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement or
similar document in compliance with the Securities Act, and the declaration or
ordering of effectiveness of such registration statement or document;
1.5 The term "Registrable Securities" means (i) forty-five percent
(45%) of the Shares held by each Holder (rounded up to the nearest whole share),
and (ii) Common Stock issued prior to the Effective Date (as defined in Section
2.1 below) as a dividend or other distribution with respect to, or in exchange
for or in replacement of, the Shares, excluding in all cases, however, any
Registrable Securities sold by a person in a transaction in which such person's
registration rights are not assigned; provided, however, that any Shares
previously sold to the public pursuant
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to a registered public offering or pursuant to Rule 144 under the Securities Act
shall cease to be Registrable Securities.
1.6 The term "Securities Act" means the Securities Act of 1933, as
amended, or any similar successor federal statute and the rules and regulations
thereunder, all as the same shall be in effect from time to time.
1.7 All other capitalized terms not otherwise defined herein shall have
the meanings ascribed to them in the Merger Agreement to which this Exhibit E is
attached.
2. Registration.
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2.1 Incyte shall prepare and file with the Commission a registration
statement on Form S-3 for an offering to be made on a continuous basis pursuant
to Rule 415 under the Securities Act covering the then outstanding Registrable
Securities then held by each Holder (the "Registration Statement"), and shall
use reasonable efforts to cause the Registration Statement to be declared
effective on or prior to the date (the "Effective Date") that is 180 days after
the Closing Date (as such term is defined in the Merger Agreement).
2.2 A Holder may inform Incyte in writing that such Holder wishes to
exclude all or a portion of its Registrable Securities from the Registration
Statement.
2.3 The registration of the Registrable Securities provided for in this
Section 2 shall not be underwritten.
3. Obligations of Incyte. Incyte shall, as expeditiously as reasonably
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possible:
3.1 Prepare and file with the Commission the Registration Statement and
use its reasonable efforts to cause the Registration Statement to become
effective on or prior to the Effective Date, and keep the Registration Statement
continuously effective under the Securities Act until the earlier of the
expiration of 90 days after the Effective Date or the date on which this
Agreement has terminated with respect to all the Holders of Registrable
Securities (such period is hereinafter referred to as the "Effectiveness
Period"). In the event that, in the reasonable judgment of Incyte, it is
advisable to suspend use of the prospectus relating to the Registration
Statement for a discrete period of time (a "Deferral Period") due to pending
material corporate developments or similar material events that have not yet
been publicly disclosed and as to which Incyte believes public disclosure will
be prejudicial to Incyte, Incyte shall deliver a certificate in writing, signed
by its Chief Executive Officer or Chief Financial Officer, to each Holder, to
the effect of the foregoing and, upon receipt of such certificate, such the
Holders agree not to dispose of such Holder's Registrable Securities covered by
the Registration Statement (other than in transactions exempt from the
registration requirements under the Securities Act) until Holders are advised in
writing by Incyte that use of the prospectus may be resumed; provided, however,
that such Deferral Period shall be no longer than 60 days, executive officers
and directors of Incyte shall be prohibited from selling shares of Incyte Common
Stock during the Deferral Period and there shall be no more than one Deferral
Period during the Effectiveness
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Period. The Effectiveness Period shall be extended for a period of time equal
to such Deferral Period.
3.2 Prepare and file with the Commission such amendments and
supplements to the Registration Statement and the prospectus used in connection
with the 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 the Registration Statement.
3.3 Furnish to the Holders covered by the Registration Statement such
numbers of copies of a prospectus, including a preliminary prospectus, in
conformity with the requirements of the Securities Act, and such other documents
as they may reasonably request in order to facilitate the disposition of such
Registrable Securities.
3.4 Use all reasonable efforts to register and qualify the securities
covered by the Registration Statement under such other securities or Blue Sky
laws of such United States jurisdictions as shall be reasonably requested by the
Holders thereof and keep such registrations and qualifications in effect during
the Effectiveness Period, provided that Incyte 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.
4. Obligations of the Holders; Procedures for Sales of Shares Under the
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Registration Statement.
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4.1 It shall be a condition precedent to the obligations of Incyte to
take any action pursuant to this Agreement that the selling Holders shall
furnish to Incyte such information regarding themselves, the Registrable
Securities held by them, and the intended method of disposition of such
securities as shall be required to effect the registration of the Registrable
Securities. Incyte agrees to permit all customary methods of disposition (other
than underwritten offerings) to be included in the plan of distribution
described in the Registration Statement and, to the extent permitted by law and
reasonably concurred with by counsel for Incyte, the plan of distribution for
any Holder that is a partnership may include distributions to partners of such
partnership.
4.2 For any offer or sale of any of the Registrable Securities under
the Registration Statement by a Holder in a transaction that is not exempt under
the Securities Act, the Holder, in addition to complying with any other federal
securities laws, shall deliver a copy of the final prospectus (together with any
amendment of or supplement to such prospectus) of Incyte covering the
Registrable Securities, in the form furnished to the Holder by Incyte, to the
purchaser of any of the Registrable Securities on or before the settlement date
for the purchase of such Registrable Securities.
4.3 Upon the receipt by a Holder of any notice from Incyte of (1) the
existence of any fact or the happening of any event as a result of which the
prospectus included in the Registration Statement, as the Registration Statement
is then in effect, contains an untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
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(2) the issuance by the Commission of any stop order or injunction suspending or
enjoining the use or the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose, or the taking of any similar
action by the securities regulators of any state or other jurisdiction, or (3)
the request by the Commission or any other federal or state governmental agency
for amendments or supplements to the Registration Statement or related
prospectus or for additional information related thereto, such Holder shall
forthwith discontinue disposition of such Holder's Registrable Securities
covered by the Registration Statement or related prospectus (other than in
transactions exempt from the registration requirements under the Securities Act)
until such Holder's receipt of the supplemented or amended prospectus or until
such Holder is advised in writing by Incyte that the use of the applicable
prospectus may be resumed. In such a case, Incyte shall as promptly as
practicable (i) prepare an amendment to correct or update the prospectus, (ii)
use its reasonable efforts to remove the impediments referred to in subclause
(ii) above, or (iii) comply with the requests referred to in subclause (3)
above, and the Effectiveness Period shall be extended by the number of days from
and including the date of the giving of such notice to and including the date
when each Holder shall have received a copy of the supplemented or amended
prospectus or when such Holder is advised in writing by Incyte that the use of
the applicable prospectus may be resumed.
5. Expenses. Incyte shall bear and pay all expenses incurred by Incyte
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in connection with any registration, filing or qualification of Registrable
Securities with respect to the Registration Statement for each Holder thereof
(which right may be assigned as provided in Section 8 hereof), including
(without limitation) all registration, filing and qualification fees, printers'
and accounting fees relating or apportionable thereto, fees and disbursements of
counsel for Incyte, blue sky fees and expenses, including fees and disbursements
of counsel related to all blue sky matters, the expenses of providing materials
pursuant to Section 3.3 hereof, but excluding the fees and disbursements of
counsel for the selling Holders, stock transfer taxes that may be payable by the
selling Holders, and all underwriting discounts and commissions relating to
Registrable Securities, which shall be borne by the Holders.
6. Delay of Registration. No Holder shall have any right to obtain or
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seek an injunction restraining or otherwise delaying the Registration Statement
as the result of any controversy that might arise with respect to the
interpretation or implementation of this Agreement.
7. Indemnification. In the event any Registrable Securities are
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included in the Registration Statement under this Agreement:
7.1 To the extent permitted by law, Incyte will indemnify and hold
harmless each Holder of such Registrable Securities, the officers and directors
of each such Holder, and each person, if any, who controls such Holder within
the meaning of the Securities Act or the Exchange Act, against any losses,
claims, damages or liabilities (joint or several) to which they may become
subject under the Securities Act, the Exchange Act or other federal or state
law, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any of the following statements,
omissions or violations (collectively, a "Violation"): (i) any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement, including any preliminary prospectus or final prospectus contained
therein
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or any amendments or supplements thereto, (ii) the omission or alleged omission
to state therein a material fact required to be stated therein, or necessary to
make the statements therein not misleading, or (iii) any violation or alleged
violation by Incyte of the Securities Act, the Exchange Act, any state
securities law or any rule or regulation promulgated under the Securities Act,
the Exchange Act or any state securities law; and Incyte will reimburse each
such Holder, officer or director, or controlling person for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the indemnity agreement contained in this Section 7.1 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 Incyte (which consent
shall not be unreasonably withheld), nor shall Incyte be liable in any such case
for any such loss, claim, damage, liability or action to the extent that it
arises out of or is based upon a Violation which occurs in reliance upon and in
conformity with written information furnished expressly for use in connection
with such registration by any such Holder, officer, director, or controlling
person.
7.2 To the extent permitted by law, each selling Holder will indemnify
and hold harmless Incyte, each of its directors, each of its officers who have
signed the Registration Statement, each person, if any, who controls Incyte
within the meaning of the Securities Act, and any other Holder selling
securities in the Registration Statement or any of its directors or officers or
any person who controls such Holder, against any losses, claims, damages or
liabilities (joint or several) to which Incyte or any such director, officer or
controlling person, or other such Holder or director, officer or controlling
person may become subject, under the Securities Act, the Exchange Act or other
federal or state law, insofar as such losses, claims, damages or liabilities (or
actions in respect thereto) arise out of or are based upon any Violation, in
each case to the extent (and only to the extent) that such Violation occurs in
reliance upon and in conformity with written information furnished by such
Holder expressly for use in connection with such registration; and each such
Holder will reimburse any legal or other expenses reasonably incurred by Incyte
or any such director, officer, controlling person, or other Holder, director,
officer or controlling person in connection with investigating or defending any
such loss, claim, damage, liability, or action; provided, however, that the
indemnity agreement contained in this Section 7.2 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, that in no event shall any indemnity
under this Section 7.2 exceed the gross proceeds received by such Holder from
the sale of Registrable Securities as contemplated hereunder.
7.3 Promptly after receipt by an indemnified party under this Section 7
of notice of the commencement of any action (including any governmental action),
such indemnified party will, if a claim in respect thereof is to be made against
any indemnifying party under this Section 7, deliver to the indemnifying party a
written notice of the commencement thereof and the indemnifying party shall have
the right to participate in, and, to the extent the indemnifying party so
desires, jointly with any other indemnifying party similarly noticed, to assume
the defense thereof with counsel mutually satisfactory to the parties; provided,
however, that 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
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such indemnified party and any other party represented by such counsel in such
proceeding. The failure to deliver written notice to the indemnifying party
within a reasonable time of the commencement of any such action, if materially
prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
7, but the omission so to deliver written notice to the indemnifying party will
not relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 7.
7.4 The obligations of Incyte and the Holders under this Section 7
shall survive the completion of any offering of Registrable Securities in the
Registration Statement under this Agreement, and otherwise.
8. Assignment of Registration Rights. The rights to cause Incyte to
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register Registrable Securities pursuant to this Agreement may be assigned by
any Holder (i) who transfers Registrable Securities with a value (based on the
closing price of the Common Stock as of the trading day immediately prior to the
date of transfer) of at least $250,000 or, if less, all of his, her or its
shares of Registrable Securities or (ii) in a transfer that does not require the
amendment or supplement of the Registration Statement and prospectus; provided,
in each case, Incyte is, within a reasonable time after such transfer, furnished
with written notice of the name and address of such transferee or assignee and
the securities with respect to which such registration rights are being
assigned; and provided, further, that such assignment shall be effective only if
immediately following such transfer the further disposition of such securities
by the transferee or assignee is restricted under the Securities Act.
Notwithstanding the foregoing, a Holder that is a partnership may assign its
rights hereunder to its partners in connection with a distribution of
Registrable Securities to such partners without limitation on the amount of
Registrable Securities being transferred. For the purposes of determining the
number of shares of Registrable Securities held by a transferee or assignee, the
holdings of transferees and assignees of a partnership who are partners or
retired partners of such partnership (including spouses and ancestors, lineal
descendants and siblings of such partners or spouses who acquire Registrable
Securities by gift, will or intestate succession) shall be aggregated together
and with the partnership; provided that all assignees and transferees who would
not qualify individually for assignment of registration rights shall have a
single attorney-in-fact for the purpose of exercising any rights, receiving
notices or taking any action under this Section 8.
9. Termination of Registration Rights. Incyte's obligations pursuant to
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this Agreement (other than those in Section 7) shall terminate as to any Holder
of Registrable Securities on the earlier of (i) when the Holder can sell all of
such Holder's Registrable Securities pursuant to Rule 144 under the Securities
Act during any 90-day period or (ii) on expiration of the Effectiveness Period.
10. Miscellaneous.
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10.1 Successors and Assigns. Except as otherwise provided herein, the
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terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties. Nothing in
this Agreement, express or implied, is intended to confer upon any party other
than the parties hereto or their respective successors and assigns
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any rights, remedies, obligations, or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement.
10.2 Notices. Unless otherwise provided, any notice, request, demand or
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other communication required or permitted under this Agreement shall be given in
writing and shall be deemed effectively given upon personal delivery to the
party to be notified, or when sent by telex, telecopier (with receipt
confirmed), or overnight courier service, or upon deposit with the United States
Post Office, by registered or certified mail, postage prepaid and addressed as
follows (or at such other address as a party may designate by notice to the
other):
If to Incyte: Incyte Pharmaceuticals, Inc.
0000 Xxxxxx Xxxxx
Xxxx Xxxx, XX 00000
Attention: Chief Executive Officer
Telecopier: (000) 000-0000
with a copy to: Pillsbury Madison & Sutro LLP
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxx
Telecopier: (000) 000-0000
If to the Holders: to their respective addresses shown on the
signature pages hereto
with a copy to: Xxxxxx Godward LLP
0 Xxxx Xxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxxx
Telecopier: (000) 000-0000
10.3 Waivers. The observance of any term of this Agreement may be
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waived (either generally or in a particular instance and either retroactively or
prospectively) only with the written consent of the party against whom such
waiver is sought to be enforced. No waiver by either party of any default with
respect to any provision, condition or requirement hereof shall be deemed to be
a continuing waiver in the future thereof or a waiver of any other provision,
condition or requirement hereof; nor shall any delay or omission of either party
to exercise any right hereunder in any manner impair the exercise of any such
right accruing to it thereafter.
10.4 Severability. If one or more provisions of this Agreement are held
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to be unenforceable, invalid or void by a court of competent jurisdiction, such
provision shall be excluded from this Agreement and the balance of this
Agreement shall be interpreted as if such provision were so excluded and shall
be enforceable in accordance with its terms.
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10.5 Entire Agreement; Amendments.
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(a) Except as otherwise provided herein, this Agreement contains the
entire understanding of the parties with respect to the matters covered herein
and supersedes all prior agreements and understandings, written or oral, between
the parties relating to the subject matter hereof.
(b) 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), only with the written
consent of Incyte and the holders of a majority of the Registrable Securities
then outstanding. Any amendment or waiver effected in accordance with this
paragraph shall be binding upon each holder of any Registrable Securities then
outstanding, each future holder of all such Registrable Securities, and Incyte.
10.6 Governing Law. This Agreement shall be governed by and construed
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under the laws of the State of California (irrespective of its choice of law
principles).
10.7 Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
10.8 Titles and Subtitles. The titles and subtitles used in this
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Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement. Any reference in this Agreement to a
statutory provision or rule or regulation promulgated thereunder shall be deemed
to include any similar successor statutory provision or rule or regulation
promulgated thereunder.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
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date first above written.
INCYTE PHARMACEUTICALS, INC.
By /s/ Xxx X. Xxxxxxxxx
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Name Xxx X. Xxxxxxxxx
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Title Chief Executive Officer
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SCHEDULE A
TO REGISTRATION RIGHTS AGREEMENT
Name of Holder Number of Registrable Securities
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Xxxxxxxxx X. Xxxxxx 5,781
Xxxxxx X. Xxxxxxxx 2,890
Xxxx Xxxxxxxxx 1,122
Xxxx Xxxxx 5,607
Comdisco, Inc. 1,128
Xxxxxxxxx X. Xxxxxxxxx 281
GC&H Investments 2,890
Xxxxx Xxxxxxx 842
Xxxxxxx X. Xxxxx 1,734
Xxxxxxx X. Xxxx 2,804
Xxxx X. Xxxxxxx 2,890
Xxxxxx X. Xxxxx 5,607
Xxxxxxx Xxxxxxx Xxxxxxxx & Xxxxx VIII L.P. 274,570
KPCB Life Sciences Zaibatsu Fund II 14,451
Xxxxxxx X. Xxxxxxxxxx 4,068
Xxxxxx X. Xxxxxxx 4,249
Xxxxxx X. Xxxxxxxxxx, Xx., Trustee Under 1,445
Declaration of Trust U/T/D 8/21/95
Xxxxxxx Xxxxx 11,214
Xxxxxx Xxxxx, Xx. 2,804
Xxx Xxxxx 3,925
Xxxxxx Xxxxxx and Xxxxxx Xxxxxx, 207,459
JTWROS
Tidhar Xxxx Xxxxxx 437,346
Xxxxxx Xxxxxx and Xxxx Xxxxxx, JTWROS 28,035
Sosei Co., Ltd. 995
Stanford University 8,671
Xxxxxxx X. Xxxxxxxx 2,243
Xxxx Xxxxxx 5,607
The Xxxxxx X. and Xxxxx X. Xxxxx 4,046
Revocable Trust
Xxxxxxx Xxxxxx, Ph.D. 5,607
Xxxxx Xxxxxxx 2,804
A-1
