REGISTRATION RIGHTS AGREEMENT
Exhibit 10.2
Registration Rights Agreement (the “Agreement”), dated as of May 20, 2009, by and
between PolyMedix, Inc., a corporation organized under the laws of Delaware, USA with its principal
executive office at 000 X. Xxxxxx-Xxxxxxx Xxxx, Xxxxx 000, Xxxxxx, XX 00000 (the
“Company”), and Dutchess Equity Fund, LP, a Delaware Limited Partnership, with its
principal office at 00 Xxxxxxxxxxxx Xxxxxx, Xxxxx 0, Xxxxxx, XX 00000 (the “Investor”).
Whereas, in connection with the Investment Agreement by and between the Company and the
Investor of this date (the “Investment Agreement”), the Company may, at its option, issue
and sell to the Investor up to 12,000,000 shares of the Company’s common stock, par value $0.001
per share (the “Common Stock”), to be purchased pursuant to the terms and subject to the
conditions set forth in the Investment Agreement; and
Whereas, to induce the Investor to execute and deliver the Investment Agreement, the Company
has agreed to provide certain registration rights under the Securities Act of 1933, as amended, and
the rules and regulations thereunder, or any similar successor statute (collectively, the “1933
Act”), and applicable state securities laws, with respect to the shares of Common Stock
issuable pursuant to the Investment Agreement.
Now therefore, in consideration of the foregoing promises and the mutual covenants contained
hereinafter and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Company and the Investor hereby agree as follows:
Section 1. DEFINITIONS.
As used in this Agreement, the following terms shall have the following meanings:
“Execution Date” means the date of this Agreement set forth above.
“Investor” shall have the meaning set forth above in the preamble to this Agreement.
“Person” means a corporation, a limited liability company, an association, a
partnership, an organization, a business, an individual, a governmental or political subdivision
thereof or a governmental agency.
“Principal Market” means the Nasdaq Capital Market, the NYSE Amex, the New York Stock
Exchange, the Nasdaq Global Market, the Nasdaq Global Select Market or the OTC Bulletin Board,
whichever is the principal market on which the Common Stock of the Company is listed or quoted.
“Register,” “Registered,” and “Registration” refer to the Registration
effected by preparing and filing one (1) or more Registration Statements in compliance with the
1933 Act and pursuant to Rule 415 under the 1933 Act or any successor rule providing for offering
securities on a continuous basis.
“Registrable Securities” means (i) the shares of Common Stock issued or issuable
pursuant to the Investment Agreement, and (ii) any shares of capital stock issued or issuable with
respect to such shares of Common Stock, if any, as a result of any stock split, stock dividend,
recapitalization, exchange or similar event or otherwise, which have not been (x) included in the
Registration Statement that has been declared effective by the SEC and resold by the Investor, or
(y) resold by the Investor under circumstances meeting all of the applicable conditions of Rule 144
(or any similar provision then in force) under the 1933 Act.
“Registration Statement” means the registration statement of the Company filed under
the 1933 Act covering the Registrable Securities.
POLYMEDIX, INC. EQUITY LINE REGISTRATION RIGHTS. MAY. 2009.
All capitalized terms used in this Agreement and not otherwise defined herein shall have the
same meaning ascribed to them as in the Investment Agreement.
Section 2. REGISTRATION.
(a) The Company shall, within twenty-one (21) days of the date of this Agreement, file with
the SEC the Registration Statement or Registration Statements (as is necessary) on Form S-1
covering the resale of all of the Registrable Securities, which Registration Statement(s) shall
state that, in accordance with Rule 416 promulgated under the 1933 Act, such Registration Statement
also covers such indeterminate number of additional shares of Common Stock as may become issuable
upon stock splits, stock dividends or similar transactions. The Company shall initially register
for resale 12,000,000 shares of Common Stock, except to the extent that the SEC requires the share
amount to be reduced as a condition of effectiveness.
(b) The Company shall use all commercially reasonable efforts to have the Registration
Statement(s) declared effective by the SEC within ninety (90) calendar days after the Execution
Date.
(c) The Company agrees not to include any securities other than Registrable Securities in the
Registration Statement without Investor’s prior written consent which Investor may withhold in its
sole discretion.
Section 3. RELATED OBLIGATIONS.
The Company shall have the following obligations with respect to the Registration Statement:
(a) The Company shall use all commercially reasonable efforts to cause such Registration
Statement relating to the Registrable Securities to become effective within ninety (90) days after
the Execution Date and shall keep such Registration Statement effective until the earlier to occur
of the date on which (A) the Investor shall have sold all the Registrable Securities; or (B) the
Company has no right to put any additional shares of Common Stock to the Investor under the
Investment Agreement (the “Registration Period”). The Registration Statement (including
any amendments or supplements thereto and prospectuses contained therein) shall not contain any
untrue statement of a material fact or omit to state 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. The Company shall use all commercially reasonable efforts to respond to all SEC
comments within fourteen (14) business days from receipt of such comments by the Company. The
Company shall use all commercially reasonable efforts to cause the Registration Statement relating
to the Registrable Securities to become effective no later than five (5) business days after
notice from the SEC that the Registration Statement may be declared effective. The Investor
acknowledges that it will be identified as an underwriter and selling shareholder in the
Registration Statement and agrees to provide all information which it is required by law to provide
to the Company or which may be required to respond to comments from the SEC, including the plan of
distribution of the Registrable Securities, which shall be acceptable to the Company, and the
Company’s obligations set forth above shall be conditioned on the receipt of such information.
(b) The Company shall prepare and file with the SEC such amendments (including post-effective
amendments) and supplements to the Registration Statement and the prospectus used in connection
with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated
under the 1933 Act, as may be necessary to keep such Registration Statement effective during the
Registration Period, and, during such period, comply with the provisions of the 1933 Act with
respect to the disposition of all Registrable Securities of the Company covered by such
Registration Statement. In the event the number of shares of Common Stock covered by the
Registration Statement filed pursuant to this Agreement is at any time insufficient to cover all of
the Registrable Securities, the Company shall amend such Registration Statement, or file a new
Registration Statement (on the short form available therefor, if applicable), or both, so as to
cover all of the Registrable Securities, in each case, as soon as practicable, but in any event
within thirty (30) calendar days after the necessity therefor arises. The Company shall
use commercially reasonable efforts to cause such amendment and/or new Registration Statement
to become effective as soon as practicable following the filing thereof.
POLYMEDIX, INC. EQUITY LINE REGISTRATION RIGHTS. MAY. 2009.
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(c) The Company shall make available to the Investor, upon the Investor’s request, whose
Registrable Securities are included in any Registration Statement and its legal counsel without
charge, to the extent such information is not available via XXXXX, (i) one (1) copy of the
Registration Statement and any amendment(s) thereto, including financial statements and schedules,
all documents incorporated therein by reference and all exhibits, the prospectus included in such
Registration Statement (including each preliminary prospectus) and, with regards to such
Registration Statement(s), to the extent such materials do not constitute material non-public
information, any correspondence by or on behalf of the Company to the SEC or the staff of the SEC
and any correspondence from the SEC or the staff of the SEC to the Company or its representatives;
(ii) upon the effectiveness of any Registration Statement, the Company shall make available copies
of the prospectus included in such Registration Statement and all amendments and supplements
thereto; and (iii) such other documents, including copies of any preliminary or final prospectus,
as the Investor may reasonably request from time to time in order to facilitate the disposition of
the Registrable Securities.
(d) The Company shall use commercially reasonable efforts to (i) register and qualify the
resale of Registrable Securities covered by the Registration Statement under any applicable
securities or “blue sky” laws of such states in the United States as the Investor reasonably
requests; (ii) prepare and file in those jurisdictions, such amendments (including post-effective
amendments) and supplements to such registrations and qualifications as may be necessary to
maintain the effectiveness thereof during the Registration Period; (iii) take such other actions as
may be necessary to maintain such registrations and qualifications in effect at all times during
the Registration Period, and (iv) take all other actions reasonably necessary or advisable to
qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the
Company shall not be required in connection therewith or as a condition thereto to (x) qualify to
do business in any jurisdiction where it would not otherwise be required to qualify but for this
Section 3(d), or (y) subject itself to general taxation in any such jurisdiction. The Company
shall promptly notify the Investor who holds Registrable Securities of the receipt by the Company
of any notification with respect to the suspension of the registration or qualification of any of
the Registrable Securities for sale under applicable securities or “blue sky” laws of any
jurisdiction in the United States or its receipt of actual notice of the initiation or threatening
of any proceeding for such purpose.
(e) As promptly as practicable after becoming aware of such event, the Company shall notify
Investor in writing of the happening of any event as a result of which the prospectus included in
the Registration Statement, as then in effect, includes an untrue statement of a material fact or
omission to state a material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not misleading
(“Registration Default”) and use all commercially reasonable efforts to promptly prepare a
supplement or amendment to such Registration Statement and take any other necessary steps to cure
the Registration Default (which, if such Registration Statement is on Form S-3, may consist of a
document to be filed by the Company with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of
the 1934 Act and to be incorporated by reference in the prospectus) to correct such untrue
statement or omission, and make available copies of such supplement or amendment to the Investor,
upon the Investor’s request. The Company shall also promptly notify the Investor (i) when a
prospectus or any prospectus supplement or post-effective amendment has been filed; (ii) of any
request by the SEC for amendments or supplements to the Registration Statement or related
prospectus or related information, (iii) of the Company’s reasonable determination that a
post-effective amendment to the Registration Statement would be appropriate, (iv) in the event the
Registration Statement is no longer effective, or (v) if the Registration Statement is stale as a
result of the Company’s failure to timely file reports under the 1934 Act or otherwise.
(f) The Company shall use all commercially reasonable efforts to prevent the issuance of any
stop order or other suspension of effectiveness of the Registration Statement, or the suspension
of the qualification of any of the Registrable Securities for resale in any jurisdiction and, if
such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the
earliest possible moment and, to the extent permitted by applicable law or regulatory authority, to
notify the Investor
holding Registrable Securities being sold of the issuance of such order and the resolution
thereof or its receipt of actual notice of the initiation or threat of any proceeding concerning
the effectiveness of the Registration Statement.
POLYMEDIX, INC. EQUITY LINE REGISTRATION RIGHTS. MAY. 2009.
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(g) The Company shall permit the Investor and one (1) legal counsel, designated by the
Investor, to review and comment upon the Registration Statement and all amendments and supplements
thereto at least one (1) calendar day prior to their filing with the SEC. However, any
postponement of a filing of a Registration Statement or any postponement of a request for
acceleration or any postponement of the effective date or effectiveness of a Registration Statement
at the written, reasonable request of the Investor (collectively, the “Investor’s Delay”)
shall not act to trigger any penalty of any kind, or any cash amount due or any in-kind amount due
the Investor from the Company under any and all agreements of any nature or kind between the
Company and the Investor. The event(s) of an Investor’s Delay shall act to suspend all obligations
of any kind or nature of the Company under any and all agreements of any nature or kind between the
Company and the Investor.
(h) Intentionally Omitted.
(i) The Company shall hold in confidence and not make any disclosure of information
concerning the Investor unless (i) disclosure of such information is necessary to comply with
federal or state securities laws, (ii) the disclosure of such information is necessary to avoid or
correct a misstatement or omission in any Registration Statement, (iii) the release of such
information is ordered pursuant to a subpoena or other final, non-appealable order from a court or
governmental body of competent jurisdiction, (iv) such information has been made generally
available to the public other than by disclosure in violation of this Agreement or any other
agreement, or (v) the Investor consents to the disclosure of such information by the Company. To
the extent permitted by applicable law or regulatory authority, the Company agrees that it shall,
upon learning that disclosure of such information concerning the Investor is sought in or by a
court or governmental body of competent jurisdiction or through other means, give prompt written
notice to the Investor and allow the Investor, at the Investor’s expense, to undertake appropriate
action to prevent disclosure of, or to obtain a protective order covering such information.
(j) The Company shall use all commercially reasonable efforts to maintain the listing or
eligibility for quotation on the Principal Market of all the Registrable Securities covered by any
Registration Statement. The Company shall pay all fees and expenses in connection with satisfying
its obligation under this Section 3(j).
(k) Except as otherwise provided in the Investment Agreement, the Company shall cooperate
with the Investor to facilitate the prompt preparation and delivery of certificates representing
the Registrable Securities to be offered pursuant to the Registration Statement and enable such
certificates to be in such denominations or amounts, as the case may be, as the Investor may
reasonably request (and after any sales of such Registrable Securities by the Investor, such
certificates not bearing any restrictive legend).
(l) The Company shall provide a transfer agent for all the Registrable Securities not later
than the effective date of the first Registration Statement filed pursuant hereto.
(m) If reasonably requested by the Investor, the Company shall (i) as soon as reasonably
practical incorporate in a prospectus supplement or post-effective amendment such information as
the Investor reasonably determines should be included therein relating to the resale and
distribution of Registrable Securities; (ii) make all required filings of such prospectus
supplement or post-effective amendment as soon as reasonably possible after being notified of the
matters to be incorporated in such prospectus supplement or post-effective amendment; and
(iii) supplement or make amendments to any Registration Statement if reasonably requested by the
Investor.
(n) The Company shall use all commercially reasonable efforts to cause the Registrable
Securities covered by the applicable Registration Statement to be registered with or approved by
such other governmental agencies or authorities as may be necessary to facilitate the disposition
of such Registrable Securities.
POLYMEDIX, INC. EQUITY LINE REGISTRATION RIGHTS. MAY. 2009.
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(o) The Company shall otherwise use all commercially reasonable efforts to comply with all
applicable rules and regulations of the SEC in connection with any registration hereunder.
(p) Intentionally Omitted.
(q) Intentionally Omitted.
Section 4. OBLIGATIONS OF THE INVESTOR.
(a) At least five (5) calendar days prior to the first anticipated filing date of the
Registration Statement, the Company shall notify the Investor in writing of the information the
Company requires from the Investor for the Registration Statement. It shall be a condition
precedent to the obligations of the Company to complete the registration pursuant to this Agreement
with respect to the Registrable Securities, and the Investor agrees to furnish to the Company that
information regarding itself, the Registrable Securities and the intended plan of distribution of
the Registrable Securities as shall reasonably be required to effect the registration of such
Registrable Securities and the Investor shall execute such documents in connection with such
registration as the Company may reasonably request, including providing to the Company a completed
Selling Stockholder Questionnaire in the form attached to this Agreement as Appendix I. The
Investor covenants and agrees that, in connection with any sale of Registrable Securities by it
pursuant to the Registration Statement, it shall comply with the “Plan of Distribution” section of
the then current prospectus relating to such Registration Statement.
(b) The Investor, by its acceptance of the Registrable Securities, agrees to cooperate with
the Company as reasonably requested by the Company in connection with the preparation and filing of
any Registration Statement hereunder.
(c) The Investor agrees that, upon receipt of written notice from the Company of the
happening of any event of the kind described in Section 3(f) or the first sentence of 3(e), the
Investor will immediately discontinue disposition of Registrable Securities pursuant to any
Registration Statement(s) covering such Registrable Securities until the Investor’s receipt of the
copies of the supplemented or amended prospectus contemplated by Section 3(f) or the first sentence
of 3(e).
Section 5. EXPENSES OF REGISTRATION.
All expenses, other than underwriting discounts and commissions and other than as set forth in
the Investment Agreement, incurred in connection with registrations including comments, filings or
qualifications pursuant to Sections 2 and 3, including, without limitation, all registration,
listing and qualifications fees, printing and accounting fees, and reasonable fees and
disbursements of counsel for the Company or for the Investor shall be paid by the Company.
POLYMEDIX, INC. EQUITY LINE REGISTRATION RIGHTS. MAY. 2009.
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Section 6. INDEMNIFICATION.
In the event any Registrable Securities are included in the Registration Statement under this
Agreement:
(a) To the fullest extent permitted by law, the Company, under this Agreement, will, and
hereby does, indemnify, hold harmless and defend the Investor, the directors, officers, partners,
employees, counsel, agents, representatives of, and each Person, if any, who controls, the Investor
within the meaning of the 1933 Act or the Securities Exchange Act of 1934, as amended (the
“1934 Act”) (each, an “Indemnified Person”), against any losses, claims, damages,
liabilities, judgments, fines, penalties, charges, costs, attorneys’ fees, amounts paid in
settlement or expenses, joint or several (collectively, “Claims”), incurred in
investigating, preparing or defending any action, claim, suit, inquiry, proceeding,
investigation or appeal taken from the foregoing by or before any court or governmental,
administrative or other regulatory agency, body or the SEC, whether pending or threatened, whether
or not an Indemnified Party is or may be a party thereto (“Indemnified Damages”), to which
any of them may become subject insofar as such Claims (or actions or proceedings, whether commenced
or threatened, in respect thereof) arise out of or are based upon: (i) any untrue statement or
alleged untrue statement of a material fact in the Registration Statement or any post-effective
amendment thereto or in any filing made in connection with the qualification of the offering under
the securities or other “blue sky” laws of any jurisdiction in which the Investor has requested in
writing that the Company register or qualify the Shares (“Blue Sky Filing”), or the
omission or alleged omission to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which the statements therein were
made, not misleading, (ii) any untrue statement or alleged untrue statement of a material fact
contained in the final prospectus (as amended or supplemented, if the Company files any amendment
thereof or supplement thereto with the SEC) or the omission or alleged omission to state therein
any material fact necessary to make the statements made therein, in light of the circumstances
under which the statements therein were made, not misleading, or (iii) any violation or alleged
violation by the Company of the 1933 Act, the 1934 Act, any other law, including, without
limitation, any state securities law, or any rule or regulation thereunder relating to the offer or
sale of the Registrable Securities pursuant to the Registration Statement (the matters in the
foregoing clauses (i) through (iii) being, collectively, “Violations”). Subject to the
restrictions set forth in Section 6(c) the Company shall reimburse the Investor and each such
controlling person, promptly as such expenses are incurred and are due and payable, for any
reasonable legal fees or other reasonable expenses incurred by them in connection with
investigating or defending any such Claim. Notwithstanding anything to the contrary contained
herein, the indemnification agreement contained in this Section 6(a): (i) shall not apply to a
Claim arising out of or based upon a Violation which is due to the inclusion in the Registration
Statement of the information furnished to the Company by any Indemnified Person expressly for use
in connection with the preparation of the Registration Statement or any such amendment thereof or
supplement thereto; (ii) shall not be available to the extent such Claim is based on (a) a failure
of the Investor to deliver or to cause to be delivered the prospectus made available by the Company
or (b) the Indemnified Person’s use of an incorrect prospectus despite being timely advised by the
Company in writing not to use such incorrect prospectus; (iii) any claims based on the manner of
sale of the Registrable Securities by the Investor or of the Investor’s failure to register as a
dealer under applicable securities laws; (iv) any omission of the Investor to notify the Company of
any material fact that should be stated in the Registration Statement or prospectus relating to the
Investor or the manner of sale; and (v) any amounts paid in settlement of any Claim if such
settlement is effected without the prior written consent of the Company, which consent shall not be
unreasonably withheld. Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of the Indemnified Person and shall survive the resale of the
Registrable Securities by the Investor pursuant to the Registration Statement.
(b) In connection with any Registration Statement in which Investor is participating, the
Investor agrees to indemnify, hold harmless and defend, to the same extent and in the same manner
as is set forth in Section 6(a), the Company, each of its directors, each of its officers, each
Person, if any, who controls the Company within the meaning of the 1933 Act or the 1934 Act and the
Company’s agents (collectively and together with an Indemnified Person, an “Indemnified
Party”), against any Claim or Indemnified Damages to which any of them may become subject,
under the 1933 Act, the 1934 Act or otherwise, insofar as such Claim or Indemnified Damages arise
out of or are based upon any Violation, in each case to the extent, and only to the extent, that
such Violation is due to (i) the inclusion in the Registration Statement of the written information
furnished to the Company by the Investor expressly for use in connection with such Registration
Statement, (ii) a failure of the Investor to deliver or to cause to be delivered the prospectus
made available by the Company or the Investor’s use of an incorrect prospectus despite being timely
advised by the Company in writing not to use such incorrect prospectus; (iii) the Investor’s
failure to register as a dealer under applicable securities laws; or (iv) any omission of the
Investor to notify the Company of any material fact that should be stated in the Registration
Statement or prospectus relating to the Investor or the manner of sale, and, subject to Section
6(c), the Investor will reimburse any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such Claim; provided, however, that the indemnity
agreement contained in this Section 6(b) and the agreement with respect to contribution contained
in Section 7 shall not apply to amounts
paid in settlement of any Claim if such settlement is effected without the prior written
consent of the Investor, which consent shall not be unreasonably withheld, conditioned or delayed.
Such indemnity shall remain in full force and effect regardless of any investigation made by or on
behalf of such Indemnified Party and shall survive the resale of the Registrable Securities by the
Investor pursuant to the Registration Statement.
POLYMEDIX, INC. EQUITY LINE REGISTRATION RIGHTS. MAY. 2009.
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(c) Promptly after receipt by an Indemnified Person or Indemnified Party under this Section 6
of notice of the commencement of any action or proceeding (including any governmental action or
proceeding) involving a Claim, such Indemnified Person or Indemnified Party shall, if a Claim in
respect thereof is to be made against any indemnifying party under this Section 6, 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 control of the defense thereof with
counsel mutually satisfactory to the indemnifying party and the Indemnified Person or the
Indemnified Party, as the case may be; provided, however, that an Indemnified Person or Indemnified
Party shall have the right to retain its own counsel with the fees and expenses to be paid by the
indemnifying party, if, in the reasonable opinion of counsel retained by the Indemnified Person or
Indemnified Party, the representation by counsel of the Indemnified Person or Indemnified Party and
the indemnifying party would be inappropriate due to actual or potential differing interests
between such Indemnified Person or Indemnified Party and any other party represented by such
counsel in such proceeding. The indemnifying party shall pay for only one (1) separate legal
counsel for the Indemnified Persons or the Indemnified Parties, as applicable, and such counsel
shall be selected by the Investor, if the Investor is entitled to indemnification hereunder, or the
Company, if the Company is entitled to indemnification hereunder, as applicable. The Indemnified
Party or Indemnified Person shall cooperate fully with the indemnifying party in connection with
any negotiation or defense of any such action or Claim by the indemnifying party and shall furnish
to the indemnifying party all information reasonably available to the Indemnified Party or
Indemnified Person which relates to such action or Claim. The indemnifying party shall keep the
Indemnified Party or Indemnified Person fully apprised at all times as to the status of the defense
or any settlement negotiations with respect thereto. No indemnifying party shall be liable for any
settlement of any action, claim or proceeding affected without its written consent, provided,
however, that the indemnifying party shall not unreasonably withhold, delay or condition its
consent. No indemnifying party shall, without the consent of the Indemnified Party or Indemnified
Person, consent to entry of any judgment or enter into any settlement or other compromise which
does not include as an unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party or Indemnified Person of a release from all liability in respect to such Claim.
Following indemnification as provided for hereunder, the indemnifying party shall be subrogated to
all rights of the Indemnified Party or Indemnified Person with respect to all third parties, firms
or corporations relating to the matter for which indemnification has been made. The failure to
deliver written notice to the indemnifying party within a reasonable time of the commencement of
any such action shall not relieve such indemnifying party of any liability to the Indemnified
Person or Indemnified Party under this Section 6, except to the extent that the indemnifying party
is prejudiced in its ability to defend such action.
(d) The indemnity agreements contained herein shall be in addition to (i) any cause of action
or similar right of the Indemnified Party or Indemnified Person against the indemnifying party or
others, and (ii) any liabilities the indemnifying party may be subject to pursuant to law.
Section 7. CONTRIBUTION.
To the extent any indemnification by an indemnifying party is prohibited or limited by law,
the indemnifying party agrees to make the maximum contribution with respect to any amounts for
which it would otherwise be liable under Section 6 to the fullest extent permitted by law;
provided, however, that: (i) no contribution shall be made under circumstances where the
indemnifying party would not have been liable for indemnification under the fault standards set
forth in Section 6; (ii) no seller of Registrable Securities guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any
Person who was not guilty of fraudulent misrepresentation; and (iii) contribution by any seller of
Registrable Securities shall be limited in amount to the net amount of proceeds received by such
seller from the sale of such Registrable Securities.
POLYMEDIX, INC. EQUITY LINE REGISTRATION RIGHTS. MAY. 2009.
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Section 8. REPORTS UNDER THE 1934 ACT.
With a view to making available to the Investor the benefits of Rule 144 promulgated under the
1933 Act or any other similar rule or regulation of the SEC that may at any time permit the
Investor to sell securities of the Company to the public without registration (“Rule 144”),
provided that the Investor holds any Registrable Securities are eligible for resale under Rule 144
and such information is necessary in order for the Investor to sell such Securities pursuant to
Rule 144, the Company agrees to:
(a) make and keep public information available, as those terms are understood and defined in
Rule 144;
(b) file with the SEC in a timely manner all reports and other documents required of the
Company under the 1933 Act and the 1934 Act so long as the Company remains subject to such
requirements (it being understood that nothing herein shall limit the Company’s obligations under
Section 5(c) of the Investment Agreement) and the filing of such reports and other documents is
required for the applicable provisions of Rule 144; and
(c) furnish to the Investor, promptly upon request, (i) a written statement by the Company
that it has complied with the reporting requirements of Rule 144, the 1933 Act and the 1934 Act,
and (ii) such other information as may be reasonably requested to permit the Investor to sell such
securities pursuant to Rule 144 without registration.
Section 9. NO ASSIGNMENT OF REGISTRATION RIGHTS.
The rights and obligations under this Agreement shall not be assignable.
Section 10. AMENDMENT OF REGISTRATION RIGHTS.
The provisions of this Agreement may be amended only with the written consent of the Company
and Investor.
Section 11. MISCELLANEOUS.
(a) Any notices or other communications required or permitted to be given under the terms of
this Agreement that must be in writing will be deemed to have been delivered (i) upon receipt, when
delivered personally; (ii) upon receipt, when sent by facsimile (provided a confirmation of
transmission is mechanically or electronically generated and kept on file by the sending party); or
(iii) one (1) day after deposit with a nationally recognized overnight delivery service, in each
case properly addressed to the party to receive the same. The addresses and facsimile numbers for
such communications shall be:
If to the Company:
PolyMedix, Inc.
000 X. Xxxxxx-Xxxxxxx Xxxx; Xxxxx 000
Xxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xx Xxxxx, Chief Financial Officer
E-mail: xxxxxx@xxxxxxxxx.xxx
000 X. Xxxxxx-Xxxxxxx Xxxx; Xxxxx 000
Xxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xx Xxxxx, Chief Financial Officer
E-mail: xxxxxx@xxxxxxxxx.xxx
POLYMEDIX, INC. EQUITY LINE REGISTRATION RIGHTS. MAY. 2009.
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If to the Investor:
Dutchess Equity Fund, LP
00 Xxxxxxxxxxxx Xxxxxx, Xxxxx 0
Xxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxxxxx X. Xxxxx, Chief Operating Officer & Managing Director
E-mail: xxxxxx@xxxx.xxx
00 Xxxxxxxxxxxx Xxxxxx, Xxxxx 0
Xxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxxxxx X. Xxxxx, Chief Operating Officer & Managing Director
E-mail: xxxxxx@xxxx.xxx
Each party shall provide five (5) business days prior notice to the other party of any change
in address, phone number or facsimile number.
(b) Failure of any party to exercise any right or remedy under this Agreement or otherwise,
or delay by a party in exercising such right or remedy, shall not operate as a waiver thereof.
(c) This Agreement constitutes the entire agreement among the parties hereto with respect to
the subject matter hereof and thereof. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein and therein.
(d) This Agreement supersedes all prior agreements and understandings among the parties
hereto with respect to the subject matter hereof and thereof.
(e) The headings in this Agreement are for convenience of reference only and shall not limit
or otherwise affect the meaning hereof. Whenever required by the context of this Agreement, the
singular shall include the plural and masculine shall include the feminine. This Agreement shall
not be construed as if it had been prepared by one of the parties, but rather as if all the parties
had prepared the same.
(f) This Agreement may be executed in two or more identical counterparts, each of which shall
be deemed an original but all of which shall constitute one and the same agreement. This
Agreement, once executed by a party, may be delivered to the other party hereto by facsimile
transmission or by e-mail delivery of a “.pdf” format data file of a copy of this Agreement bearing
the signature of the party so delivering this Agreement.
(g) Each party shall do and perform, or cause to be done and performed, all such further acts
and things, and shall execute and deliver all such other agreements, certificates, instruments and
documents, as the other party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the transactions contemplated
hereby.
(h) In case any provision of this Agreement is held by a court of competent jurisdiction to be
excessive in scope or otherwise invalid or unenforceable, such provision shall be adjusted rather
than voided, if possible, so that it is enforceable to the maximum extent possible, and the
validity and enforceability of the remaining provisions of this Agreement will not in any way be
affected or impaired thereby.
Section 12. DISPUTES SUBJECT TO ARBITRATION GOVERNED BY MASSACHUSETTS LAW.
All disputes arising under this agreement shall be governed by and interpreted in accordance
with the laws of the Commonwealth of Massachusetts, without regard to principles of conflict of
laws. The parties to this agreement will submit all disputes arising under this agreement to
arbitration in Boston, Massachusetts before a single arbitrator of the American Arbitration
Association (“AAA”). The arbitrator shall be selected by application of the rules of the
AAA, or by mutual agreement of the parties, except that such arbitrator shall be an attorney
admitted to practice law in the Commonwealth of Massachusetts. No party to this agreement will
challenge the jurisdiction or venue provisions as provided in this section. Nothing contained
herein shall prevent the party from obtaining an injunction.
*.*.*
POLYMEDIX, INC. EQUITY LINE REGISTRATION RIGHTS. MAY. 2009.
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SIGNATURE PAGE OF REGISTRATION RIGHTS AGREEMENT
Your signature on this Signature Page evidences your agreement to be bound by the terms and
conditions of the Investment Agreement and the Registration Rights Agreement as of the date first
written above.
The undersigned signatory hereby certifies that he has read and understands the Registration Rights
Agreement, and the representations made by the undersigned in this Registration Rights Agreement
are true and accurate, and agrees to be bound by its terms.
| DUTCHESS EQUITY FUND, LP |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||
| Xxxxxxx X. Xxxxxxxx | ||||
| Managing Member of: Dutchess Capital Management, LLC General Partner to: Dutchess Equity Fund, LP |
||||
| POLYMEDIX, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxx | |||
| Xxxxxx X. Xxxxx | ||||
| Vice President, Finance Chief Financial Officer |
||||
POLYMEDIX, INC. EQUITY LINE REGISTRATION RIGHTS. MAY. 2009.
10
