EXHIBIT 2
LEUKOSITE, INC.
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as of
July 20, 1999 by and among (i) LeukoSite, Inc., a Delaware corporation (the
"Company"), (ii) Perseus Capital LLC., a Delaware limited liability company (the
"Initial Investor"), and (iii) each person who becomes an Investor pursuant to
Section 10 hereof (together with the Initial Investor, the "Investors" and each
individually, an "Investor").
WHEREAS, the Company has agreed to issue and sell to the Initial
Investor, and the Initial Investor has agreed to purchase from the Company, an
aggregate of 1,030,928 shares (the "Shares") of the Company's common stock,
$0.01 par value per share (the "Common Stock"), all upon the terms and
conditions set forth in the Stock Purchase Agreement, dated as of June 22, 1999,
between the Company and the Initial Investor (the "Stock Purchase Agreement");
and
WHEREAS, the terms of the Stock Purchase Agreements provide that it
shall be a condition precedent to the closing of the transactions thereunder,
for the Company and the Initial Investor to execute and deliver this Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties hereto hereby agree as follows:
1. DEFINITIONS. The following terms shall have the meanings provided
therefor below or elsewhere in this Agreement as described below:
"Board" shall mean the board of directors of the Company.
"Closing Date" shall mean the date on which the transactions
contemplated by the Stock Purchase Agreements are consummated (or, if the
transactions are not consummated on the same date, the first date by which the
transactions contemplated by the Stock Purchase Agreements have been
consummated).
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Mandatory Registration Termination Date" shall mean the first day
after the effective date of the Mandatory S-3 Registration Statement on which
the Mandatory S-3 Registration Statement (as defined in Section 2 hereof) shall
not be in effect.
"Person" (whether or not capitalized) shall mean an individual,
partnership, limited liability company, corporation, association, trust, joint
venture, unincorporated organization, and any government, governmental
department or agency or political subdivision thereof.
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"Qualifying Investor" shall have the meaning ascribed thereto in
Section 11 hereof.
"Registrable Shares" shall mean, at the relevant time of reference
thereto, the Shares then held by the Investors (including any shares of capital
stock that were issued in respect thereof pursuant to a stock split, stock
dividend, recombination, reclassification or the like), provided, however, that
the term "Registrable Shares" shall not include any of the Shares that (i)
become eligible for resale without volume limitations pursuant to Rule 144, or
(ii) are sold pursuant to a registration statement that has been declared
effective under the Securities Act by the SEC.
"Rule 144" shall mean Rule 144 promulgated under the Securities Act and
any successor or substitute rule, law or provision.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended.
2. MANDATORY FORM S-3 REGISTRATION.
(a) Within twenty (20) business days after the Closing Date, the
Company will prepare and file with the SEC a registration statement on Form S-3
for the purpose of registering under the Securities Act all of the Registrable
Shares for resale by, and for the account of, the Initial Investor as the
selling stockholder thereunder (the "Mandatory S-3 Registration Statement"). The
Mandatory S-3 Registration Statement shall permit the Initial Investor to offer
and sell, on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act, any or all of the Registrable Shares. The Company agrees to use
reasonable best efforts to cause the Mandatory S-3 Registration Statement to
become effective as soon as practicable. The Company shall only be required to
keep the Mandatory S-3 Registration Statement effective until the earlier to
occur of (i) the date when all of the Registrable Shares registered thereunder
shall have been sold and (ii) July 1, 2000; provided, that in either case such
date shall be extended by the amount of time of any Suspension Period (if any).
Thereafter, the Company shall be entitled to withdraw the Mandatory S-3
Registration Statement and the Investors shall have no further right to offer or
sell any of the Registrable Shares pursuant to the Mandatory S-3 Registration
Statement (or any prospectus relating thereto).
(b) The Mandatory S-3 Registration Statement shall not be underwritten
unless the Company shall otherwise elect in its sole and absolute discretion. In
addition, the Company shall not require that the Mandatory S-3 Registration
Statement be underwritten without the written consent of the Investors.
(c) Notwithstanding anything in this Section 2 to the contrary, if the
Company shall furnish to the Investors a certificate signed by the President or
Chief Executive Officer of the Company stating that the Board of Directors of
the Company has made the good faith determination (i) that continued use by the
Investors of the registration statement filed by the Company pursuant to this
Section 2 for purposes of effecting offers or sales of Registrable Shares
pursuant hereto would require, under the Securities Act and the rules and
regulations promulgated thereunder, premature disclosure in the registration
statement (or the prospectus relating thereto) of material, nonpublic
information concerning the Company, its business or prospects or any proposed
material transaction involving the Company, (ii) that such premature disclosure
would be materially adverse to the Company, its business or prospects or any
such proposed material transaction or would make the successful consummation by
the Company of any such material transaction significantly less likely and (iii)
that it is therefore essential to suspend the use by the
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Investors of such registration statement (and the prospectus relating thereto)
for purposes of effecting offers or sales of Registrable Shares pursuant
thereto, then the right of the Investors to use such registration statement (and
the prospectus relating thereto) for purposes of effecting offers or sales of
Registrable Shares pursuant thereto shall be suspended for a period (the
"Suspension Period") of not more than 90 days after delivery by the Company of
the certificate referred to above in this Section 2(c). During the Suspension
Period, the Investors shall not offer or sell any Registrable Shares pursuant to
or in reliance upon such registration statement (or the prospectus relating
thereto). The Company agrees that, as promptly as practicable after the
consummation, abandonment or public disclosure of the event or transaction that
caused the Company to suspend the use of the registration statement (and the
prospectus relating thereto) pursuant to this Section 2(c), the Company will
provide the Investors with revised prospectuses, if required, and will notify
the Investors of their ability to effect offers or sales of Registrable Shares
pursuant to or in reliance upon such registration statement.
2A. DEMAND FORM S-3 REGISTRATION.
(a) Registration Upon Request; Limitations. In the event that, at any
time or from time to time after the Mandatory Registration Termination Date, the
Company shall receive from any Investor who holds at least twenty-five percent
(25%) of the Registrable Shares a written request or requests (a "Demand
Notice") that the Company effect a registration on Form S-3 (a "Demand
Registration"), or any successor or substitute form, with respect to all or a
part of the Registrable Shares owned by such Investor, then the Company will
promptly give written notice of the proposed registration and the Investor's or
Investors' request therefor to all other Investors, and, as soon as practicable,
use reasonable best efforts to effect such registration of all or such portion
of such Investor's or Registrable Shares as are specified in such request,
together with all or such portion of the Registrable Shares of any other
Investor or Investors joining in such request as are specified in a written
request given within ten (10) business days after receipt of such written notice
from the Company; provided, however, that the Company's obligation under this
Section 2A(a) shall be temporarily suspended if the Company has previously given
a notice of the type specified in Section 3 hereof or this Section 2A(a)
("Registration Notice") from the date the Registration Notice is received until
the date the registration statement referred to in the Registration Notice is
declared effective (the "Temporary Suspension Period"), so long as (i) the
Temporary Suspension Period is no longer than sixty-five (65) days, and (ii) the
Investors are informed in writing that the Company's obligation under this
Section 2A(a) have been temporarily suspended in accordance with this provision;
and provided, further, that the obligations of the Company under this Section
2A(a) shall be subject to the limitations set forth in Sections 2A(c), 2A(d) and
2A(e) below. The Company may include in any registration pursuant to Section
2A(a) hereof additional shares of Common Stock for sale for its own account or
for the account of any other person who has been granted piggy-back registration
rights. No registration under this Section 2A(a) shall be underwritten unless
the Company shall otherwise elect in its sole and absolute discretion.
If the Company receives conflicting instructions, notices or elections
from two or more persons with respect to the same Registrable Shares, then the
Company may act upon the basis of the instructions, notice or election received
from the registered owner of such Registrable Shares.
(b) Selection of Underwriters. If a registration pursuant to Section
2A(a) hereof involves an underwritten offering, the underwriter or underwriters
thereof shall be selected by the Company, provided that the underwriter or
underwriters so selected shall be a nationally recognized investment banking
firm or firms.
(c) Limitation on Number of Registrations. The Company shall not be
required to effect (i) more than two (2) registrations pursuant to Section 2A(a)
and (ii)
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more than one registration pursuant to Section 2A(a) during any consecutive nine
(9) month period.
(d) Limitation on Company's Obligation. Notwithstanding anything in
this Section 2A to the contrary, but in all events subject to the provisions of
Section 2A(f) hereof, the Company shall not be obligated to effect any
registration pursuant to Sections 2A and 3:
(1) if Form S-3, or any successor or substitute form, is not
then available for the registration of such Registrable Shares proposed to be
sold and distributed by such Investor or Investors;
(2) if such Investor or Investors, together with the holders
of any other securities of the Company entitled to inclusion in such
registration, propose to sell Registrable Shares and such other securities (if
any) at an aggregate price to the public of less than $750,000; or
(3) if the Company shall furnish to the Investors a
certificate signed by the President and Chief Executive Officer of the Company
stating that the Board has made the good faith determination that a registration
would require premature disclosure of material, nonpublic information concerning
the Company, its business or prospects, that such premature disclosure would be
materially adverse to the Company and that it is therefore essential to suspend
or defer such registration, then the Company shall have the right either to
suspend the use of an effective registration statement or defer the filing of a
registration statement for a period of not more than ninety (90) days (the
"Deferral Period"); provided, however, that the Company may not utilize this
right more than once with respect to each registration request (or registration
statement filed as a result of a request) made pursuant to, and in accordance
with, Section 2A(a) hereof. If the Board makes the determination described in
the preceding sentence, the Company shall give written notice of such
determination to the holders of Registrable Shares. The Company shall notify the
holders of the expiration of the Deferral Period and shall, if such registration
statement requested pursuant to Section 2A(a) hereof has not yet been filed,
cause the registration statement with respect to the Demand Registration to be
filed on the fifth (5th) business day following the expiration of the Deferral
Period (the "Withdrawal Period") (or, if registration on such date is not
practicable, as promptly as possible thereafter) unless, prior to the expiration
of the Withdrawal Period, the holders holding a majority of Registrable Shares
to be included in any such Demand Registration not yet filed, by written notice
to the Company, withdraws the request made under Section 2(a), in which case,
such request shall not count as one of the Demand Registrations permitted
hereunder and the Company shall pay all expenses in connection with such
registration theretofor incurred in accordance with Section 6 herein.
(e) Limitation on Requests. Notwithstanding anything in this Section 2A
to the contrary, (1) no Investor may request a registration pursuant to this
Section 2A within one hundred and eighty (180) days of the effective date of any
other registration statement filed by the Company with the SEC pursuant to
Sections 2A and 3; and (2) no Investor may request a registration pursuant to
Section 2A(a) at any time after the seventh (7th) anniversary of the Closing
Date.
(f) Unavailability of Form S-3. Notwithstanding anything to the
contrary expressed or implied in this Agreement, if Form S-3 or any substitute
form is not then available for the registration of such Registrable Shares that
would otherwise have been proposed to be sold and distributed by such Investor
or Investors pursuant to this Section 2A, the Company shall be obligated to
prepare and file a registration statement on Form S-1 at the written request or
requests from any Investor or
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Investors given in accordance with Section 2A(a) and the provisions of this
Section 2A (other than Section 2A(d)(2)) shall govern and apply to such request
or requests and such registration on Form S-1.
3. "PIGGYBACK REGISTRATION".
(a) If, at any time after the Mandatory Registration
Termination Date, the Company proposes to register any of its Common Stock under
the Securities Act, whether as a result of a primary or secondary offering of
Common Stock or pursuant to registration rights granted to holders of other
securities of the Company (but excluding in all cases any registration pursuant
to Section 2A hereof or any registrations to be effected on Forms S-4 or S-8 or
other applicable successor Forms), the Company shall, each such time, give to
the Investors twenty (20) days' prior written notice of its intent to do so, and
such notice shall describe the proposed registration and offer such holders the
opportunity to register such number of Registrable Shares as each such holder
may request. Upon the written request of any Investor given within ten (10) days
after the giving of any such notice by the Company, the Company shall use its
reasonable best efforts to cause to be included in such registration the
Registrable Shares of such selling Investor, to the extent requested to be
registered, among all holders of Registrable Shares and other persons entitled
to the inclusion of their shares in such registration, pro rata on the basis of
the number of shares of Common Stock that owned or held by such selling Investor
to all of the shares of Common Stock owned or held by all holders and other
persons entitled to be included within such registration; provided that (i) the
number of Registrable Shares proposed to be sold by such selling Investor is
equal to at least twenty-five percent (25%) of the total number of Registrable
Shares then held by such selling Investor, (ii) such selling Investor agrees to
sell those of its Registrable Shares to be included in such registration in the
same manner and on the same terms and conditions as the other shares of Common
Stock which the Company proposes to register, and (iii) if the registration is
to include shares of Common Stock to be sold for the account of the Company or
any party exercising demand registration rights pursuant to any other agreement
with the Company, the proposed managing underwriter does not advise the Company
that in its opinion the inclusion of such selling Registrable Shares (without
any reduction in the number of shares to be sold for the account of the Company
or such party exercising demand registration rights) is likely to affect
materially and adversely the success of the offering or the price that would be
received for any shares of Common Stock offered, in which case the rights of
such selling Investor shall be as provided in Section 3(b) hereof.
(b) If a registration pursuant to Section 3 hereof involves an
underwritten offering and the managing underwriter shall advise the Company in
writing that, in its opinion, the number of shares of Common Stock requested by
the Investors to be included in such registration is likely to affect materially
and adversely the success of the offering or the price that would be received
for any shares of Common Stock offered in such offering, then, notwithstanding
anything in this Section 3 to the contrary, the Company shall only be required
to include in such registration, to the extent of the number of shares of Common
Stock which the Company is so advised can be sold in such offering, (i) first,
the number of shares of Common Stock proposed to be included in such
registration for the
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account of the Company and/or any stockholders of the Company (other than the
Investors) that have exercised demand registration rights, in accordance with
the priorities, if any, then existing among the Company and/or such stockholders
of the Company with registration rights (other than the Investors), and (ii)
second, the shares of Common Stock requested to be included in such registration
by all other stockholders of the Company (including, without limitation, the
Investors), pro rata among such other stockholders (including, without
limitation, the Investors) on the basis of the number of shares of Common Stock
that each of them requested to be included in such registration.
(c) In connection with any offering involving an underwriting
of shares, the Company shall not be required under this Section 3 or otherwise
to include the Registrable Shares of any Investor therein unless such Investor
accepts and agrees to the terms of the underwriting, which shall be reasonable
and customary, as agreed upon between the Company and the underwriters selected
by the Company.
4. OBLIGATIONS OF THE COMPANY. Whenever the Company is required under
Sections 2A or 3 hereof to use its reasonable best efforts to effect the
registration of any of the Registrable Shares of the Investors, the Company
shall, as expeditiously as practicable:
(a) Prepare and file with the SEC (not later than forty-five
(45) days after receipt of a request to file a registration statement with
respect to Registrable Shares pursuant to Section 3A hereof) a registration
statement with respect to such Registrable Shares and use its reasonable best
efforts to cause such registration statement to become and remain effective;
provided, however that, except to the extent otherwise provided in Section 2A
hereof, the Company shall in no event be obligated to cause any such
registration to remain effective for more than ninety (90) days; provided
further, that before filing a registration statement or prospectus or any
amendments or supplements thereto, the Company shall (i) use reasonable efforts
to provide counsel selected by the holders of a majority of the Registrable
Shares being registered in such registration ("Holders' Counsel") with an
opportunity to participate in the preparation of such registration statement and
each prospectus included therein (and each amendment or supplement thereto) to
be filed with the SEC, and (ii) notify the Holders' Counsel of any stop order
issued or threatened by the SEC and to take all reasonable action required to
prevent the entry of such stop order or to remove it if entered;
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to comply with the provisions of the Securities
Act with respect to the disposition of all Registrable Shares covered by such
registration statement;
(c) Notify the Investors and Holders' Counsel (if any)
promptly and, if requested by any Investor, confirm such advice in writing (i)
when a registration statement has become effective and when any post-effective
amendments and supplements thereto become effective, and (ii) of the issuance by
the SEC or any state securities commission of any stop order suspending the
effectiveness of a registration statement.
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(d) Furnish to the selling Investors such number of copies of
a prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents (including, without
limitation, prospectus amendments and supplements as are prepared by the Company
in accordance with Section 4(e) below) as the selling Investors may reasonably
request in order to facilitate the disposition of such Registrable Shares;
(e) Notify the Investors and Holders' Counsel (if any), at any
time when a prospectus relating to such registration statement is required to be
delivered under the Securities Act, of the happening of any event as a result of
which the prospectus included in or relating to such registration statement
contains an untrue statement of a material fact or omits any fact necessary to
make the statements therein not misleading; and, thereafter, the Company will
promptly prepare (and, when completed, give notice to each Investor) a
supplement or amendment to such prospectus so that, as thereafter delivered to
the purchasers of such Registrable Shares, such prospectus will not contain an
untrue statement of a material fact or omit to state any fact necessary to make
the statements therein not misleading; provided that upon such notification by
the Company, the Investors will not offer or sell Registrable Shares until the
Company has notified the Investors that it has prepared a supplement or
amendment to such prospectus and delivered copies of such supplement or
amendment to the Investors (it being understood and agreed by the Company that
the foregoing proviso shall in no way diminish or otherwise impair the Company's
obligation to promptly prepare a prospectus amendment or supplement as above
provided in this Section 4(e) and deliver copies of same as above provided in
Section 4(d) hereof);
(f) Use its reasonable best efforts to register and qualify
such Registrable Shares under such other securities or Blue Sky laws of such
jurisdictions as each selling Investor shall be reasonably request and do any
and all other acts or things which may be reasonably necessary or advisable to
enable each selling Investor to consummate the public sale or other disposition
in such jurisdiction of Registrable Shares, 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 where it is not then qualified or subject to process;
(g) Use its reasonable best efforts to cause all Registrable
Shares to be listed on the Nasdaq National Stock Market; and
(h) Make available for inspection by any seller of Registrable
Shares, any managing underwriter participating in any disposition pursuant to
such registration statement, Holders' Counsel (if any) and any attorney,
accountant or other agent retained by any such seller or any managing
underwriter (each, an "Inspector" and collectively, the "Inspectors"), during
regular business hours and upon reasonable advance notice, all financial and
other records, pertinent corporate documents and properties of the Company
(collectively, the "Records") as shall be reasonably necessary to enable them to
exercise their due diligence responsibility, and cause the Company's officers,
directors and employees, and the independent public accountants of the Company,
to supply all information reasonably requested by any such Inspector in
connection with such registration statement, subject to obligations of
confidentiality.
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5. FURNISH INFORMATION. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Agreement that
the selling Investors shall furnish to the Company such information regarding
them and the Shares held by them as the Company shall reasonably request and as
shall be required in order to effect any registration by the Company pursuant to
this Agreement.
6. EXPENSES OF REGISTRATION. All expenses incurred in connection with a
registration pursuant to this Agreement (excluding underwriting commissions and
discounts of the selling Investors), including without limitation all
registration and qualification fees, printing expenses, and fees and
disbursements of counsel for the Company and one counsel for the selling
Investors, shall be borne by the Company.
7. DELAY OF REGISTRATION. Subject to Section 13(d) hereof, the
Investors and the Company (other than with respect to Section 4(e)) shall not
take any action to restrain, enjoin or otherwise delay any registration as the
result of any controversy which might arise with respect to the interpretation
or implementation of this Agreement.
8. INDEMNIFICATION. In the event that any Registrable Shares of the
Investors are included in a registration statement pursuant to this Agreement:
(a) To the fullest extent permitted by law, the Company will
indemnify and hold harmless each selling Investor, any underwriter (as defined
in the Securities Act) for the Company, and each officer, director, fiduciary,
employee, member, general partner and limited partner (and affiliates thereof)
of such selling Investor or such underwriter, each broker or other person acting
on behalf of such selling Investor and each person, if any, who controls such
selling Investor or such underwriter within the meaning of the Securities Act,
against any losses, claims, damages or liabilities, joint or several, to which
they may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue or alleged untrue statement of any material fact
contained in such registration statement, including any preliminary prospectus
or final prospectus contained therein or any amendments or supplements thereto,
or arise out of or are based upon 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 any violation by the Company of the
Securities Act or state securities or blue sky laws applicable to the Company
and leading to action or inaction required of the Company in connection with
such registration or qualification under such Securities Act or state securities
or blue sky laws; and, subject to the provisions of Section 8(c), the Company
will reimburse on demand such selling Investor, such underwriter, such broker or
other person acting on behalf of such selling Investor or such officer,
director, fiduciary, employee, member, general partner, limited partner,
affiliate or controlling person for any legal or other expenses reasonably
incurred by any of them in connection with investigating or defending any such
loss, claim, damage,
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liability or action; provided, however, that the indemnity agreement contained
in this Section 8(a) 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),
nor shall the Company be liable in any such case for any such loss, damage,
liability or action to the extent that it arises out of or is based upon an
untrue statement or alleged untrue statement or omission made in connection with
such registration statement, preliminary prospectus, final prospectus, or
amendments or supplements thereto, in reliance upon and in conformity with
written information furnished expressly for use in connection with such
registration by the selling Investors, any underwriter for them or controlling
person with respect to them.
(b) To the fullest extent permitted by law, each selling
Investor will indemnify and hold harmless the Company, each of its directors,
each of its officers who have signed such registration statement, each person,
if any, who controls the Company within the meaning of the Securities Act, any
underwriter for the Company (within the meaning of the Securities Act), and all
other selling Investors against any losses, claims, damages or liabilities to
which the Company or any such director, officer, controlling person, or
underwriter may become subject to, under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereto) arise out of or are based upon any untrue or alleged untrue statement
of any material fact contained in such registration statement, including any
preliminary prospectus contained therein or any amendments or supplements
thereto, or arise out of or are based upon 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, in each case to the extent that such
untrue statement or alleged untrue statement or omission or alleged omission was
made in such registration statement, preliminary prospectus, final prospectus,
or amendments or supplements thereto, in reliance upon and in conformity with
written information furnished by the selling Investor expressly for use in
connection with such registration; and, subject to the provisions of Section
8(c), such selling Investor will reimburse on demand any legal or other expenses
reasonably incurred by the Company or any such director, officer, controlling
person, underwriter or other selling Investor in connection with investigating
or defending any such loss, claim, damage, liability or action, provided,
however, that the maximum amount of liability of each selling Investor hereunder
shall be limited to the proceeds (net of underwriting discounts and commissions,
if any) actually received by such selling Investor from the sale of Registrable
Shares covered by such registration statement; and provided, further, however,
that the indemnity agreement contained in this Section 8(b) 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 those selling Investor(s)
against which the request for indemnity is being made (which consent shall not
be unreasonably withheld).
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against any indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof and the indemnifying party shall have the right to
participate in and, to the extent the indemnifying party desires, jointly with
any other indemnifying party similarly noticed, to assume at its expense the
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defense thereof with counsel mutually satisfactory to the parties; provided,
however, that, if any indemnified party shall have reasonably concluded that
there may be one or more legal defenses available to such indemnified party
which are different from or additional to those available to the indemnifying
party, or that such claim or litigation involves or could have an effect upon
matters beyond the scope of the indemnity agreement provided in this Section 8,
the indemnifying party shall not have the right to assume the defense of such
action on behalf of such indemnified party, and such indemnifying party shall
reimburse such indemnified party and any person controlling such indemnified
party for the fees and expenses of counsel retained by the indemnified party
which are reasonably related to the matters covered by the indemnity agreement
provided in this Section 8. Subject to the foregoing, an indemnified party shall
have the right to employ separate counsel in any such action and to participate
in the defense thereof but the fees and expenses of such counsel shall not be at
the expense of the Company. The failure to notify an indemnifying party promptly
of the commencement of any such action, if materially prejudicial to his ability
to defend such action, shall relieve such indemnifying party of any liability to
the indemnified party under this Section 8, but the omission so to notify the
indemnifying party will not relieve him of any liability which he may have to
any indemnified party otherwise other than under this Section 8.
(d) If the indemnification provided for in this Section 8 from
the indemnifying party is applicable by its terms but unavailable to an
indemnified party hereunder in respect of any losses, claims, damages,
liabilities or expenses referred to therein, then the indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims,
damages, liabilities or expenses in such proportion as is appropriate to reflect
the relative fault of the indemnifying party and indemnified party in connection
with the actions which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
faults of such indemnifying party and indemnified party shall be determined by
reference to, among other things, whether any action in question, including any
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact, has been made by, or relates to information
supplied by, such indemnifying party or indemnified party, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such action. The amount paid or payable by a party as a result of the
losses, claims, damages, liabilities and expenses referred to above shall be
deemed to include, subject to the limitations set forth in Sections 8(a), 8(b)
and 8(c), any legal or other fees, charges or expenses reasonably incurred by
such party in connection with any investigation or proceeding. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person. The parties
hereto agree that it would not be just and equitable if contribution pursuant to
this Section 8(d) were determined by pro rata allocation or by any other method
of allocation which does not take account of the equitable considerations
referred to in the immediately preceding paragraph.
(e) Notwithstanding anything in this Section 8 to the
contrary, if, in connection with an underwritten public offering, the Company,
the Investors and the underwriters enter into an underwriting or purchase
agreement relating to such offering which contains provisions covering
indemnification among the parties, then the indemnification provision of this
Section 8 shall be deemed inoperative for purposes of such offering.
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9. REPORTS UNDER THE EXCHANGE ACT. With a view to making available to
the Investors the use of Section 2A hereof and the benefits of Rule 144 and any
other rule or regulation of the SEC that may at any time permit the Investors to
sell the Shares to the public without registration, the Company agrees to use
reasonable best efforts to: (i) make and keep public information available, as
those terms are understood and defined in the General Instructions to Form S-3,
or any successor or substitute form, and in Rule 144, (ii) file with the SEC in
a timely manner all reports and other documents required to be filed by an
issuer of securities registered under the Securities Act or the Exchange Act,
(iii) as long as any Investor owns any Shares, to furnish in writing upon such
Investor's request 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, and to furnish to such Investor a copy of the most recent annual
or quarterly report of the Company, and such other reports and documents so
filed by the Company as may be reasonably requested in availing such Investor of
any rule or regulation of the SEC permitting the selling of any such Shares
without registration and (iv) undertake any additional actions reasonably
necessary to maintain the availability of a registration statement on Form S-3,
including any successor or substitute forms, or the use of Rule 144.
10. TRANSFER OF REGISTRATION RIGHTS.
(a) In the event that, pursuant to Section 10.9(a) of the Stock
Purchase Agreement, the Initial Investor shall assign, in whole or in part, its
right to purchase Shares to any permitted assignee in accordance with the terms
of the Stock Purchase Agreement, then the Initial Investor shall have the right
to assign to such permitted assignee the Initial Investor's rights under this
Agreement, to the extent of the interest assigned to such permitted assignee by
the Initial Investor; provided, however, that no rights may be assigned to any
such permitted assignee unless such permitted assignee shall execute and deliver
to the Company such permitted assignee's written agreement to become a party to
this Agreement and to become bound and subject to all of the terms and
provisions of this Agreement to the same extent as the Initial Investor. Upon
any such assignment to any such permitted assignee in accordance with the terms
of this Section 10(a), such permitted assignee shall be deemed to be an "Initial
Investor" for purposes of this Agreement.
(b) Except to the extent otherwise provided in Section 10(a) hereof,
none of the rights of any Investor under this Agreement shall be transferred or
assigned to any person unless (i) such person is a Qualifying Investor (as
defined below), and (ii) such person agrees to become a party to, and bound by,
all of the terms and conditions of, this Agreement. For purposes of this Section
10(b), the term "Qualifying Investor" shall mean, with respect to any Investor,
(i) any partner, member or shareholder thereof, (ii) any person, corporation or
partnership controlling, controlled by, or under common control with, such
Investor or any partner thereof, or (iii) any other direct transferee from such
Investor of at least 257,000 shares of Common Stock (subject to adjustment in
the event of stock splits, stock dividends, recombinations, recapitalizations
and the like). None of the rights of any Investor under this Agreement shall be
transferred or assigned to any transferee of Shares pursuant to a "brokers
transaction" within the meaning of Rule 144 under the Securities Act or an
effective registration statement under the Securities Act. Upon transfer of
Shares and rights in accordance with this Section 10(b), such Qualified Investor
shall be deemed an "Investor" hereunder.
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11. LOCKUP AGREEMENT.
(a) Each Investor which holds or owns (at the time of the written
request of the Company or managing underwriter referred to below in Section
11(b) or at any time during the ninety (90) day period commencing on the
effective date of the registration statement relating to such underwritten
public offering of the Company's securities) of record or beneficially (within
the meaning of Section 13(d) of the Exchange Act and the rules and regulations
promulgated thereunder) five percent (5%) or more of the then issued and
outstanding shares of common stock of the Company (including, for this purpose,
shares held or owned by any and all affiliates of such Investor) hereby agrees
that, at the written request of the Company or any managing underwriter of any
underwritten public offering of securities of the Company, such Investor (and
its affiliates) shall not, without the prior written consent of the Company or
such managing underwriter, sell, make any short sale of, loan, grant any option
for the purchase of, pledge, encumber, or otherwise dispose of, or exercise any
registration rights with respect to, any Securities during the ninety (90) day
period commencing on the effective date of the registration statement relating
to such underwritten public offering of the Company's securities. If an Investor
is unable to sell, make any short sale of, loan, grant any option for the
purchase of, pledge, encumber, or otherwise dispose of, or exercise any
registration rights with respect to, any Securities pursuant to an effective
registration statement as a result of the foregoing sentence, and such effective
registration statement was filed pursuant to a request made under Section 2A
hereof, then such request shall not count as one of the Demand Registrations
permitted under Section 2A hereof.
(b) The Company shall use reasonable best efforts to cause each officer
and director of the Company who holds or owns (at the time of the written
request of the Company or managing underwriter referred to below in this Section
11 or at any time during the ninety (90) day period commencing on the effective
date of the registration statement relating to such underwriter public offering
of the Company's securities) of record or beneficially (within the meaning of
Section 13(d) of the Exchange Act and the rules and regulations promulgated
thereunder) five percent (5%) or more of the then issued and outstanding shares
of common stock of the Company, at the written request of the Company or any
managing underwriter of any underwritten public offering of securities of the
Company, not to, without the prior written consent of the Company or such
managing underwriter, sell, make any short sale of, loan, grant any option for
the purchase of, pledge, encumber, or otherwise dispose of, or exercise any
registration rights with respect to, any Securities during the ninety (90) day
period commencing on the effective date of the registration statement relating
to such underwritten public offering of the Company's securities.
12. ENTIRE AGREEMENT. This Agreement constitutes and contains the
entire agreement and understanding of the parties with respect to the subject
matter hereof, and it also supersedes any and all prior negotiations,
correspondence, agreements or understandings with respect to the subject matter
hereof.
13. MISCELLANEOUS.
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(a) This Agreement may not be amended, modified or terminated,
and no rights or provisions may be waived, except with the written consent of
the Majority Holders and the Company.
(b) This Agreement shall be governed by and construed and
enforced in accordance with the laws of the Commonwealth of Massachusetts, and
shall be binding upon the parties hereto and their respective heirs, personal
representatives, successors and permitted assigns and transferees, provided that
the terms and conditions of Section 10 hereof are satisfied. Notwithstanding
anything in this Agreement to the contrary, if at any time any Investor shall
cease to own any Shares, all of such Investor's rights under this Agreement
shall immediately terminate.
(c) Any notices to be given pursuant to this Agreement shall
be in writing and shall be given by certified or registered mail, return receipt
request. Notices shall be deemed given when personally delivered or when mailed
to the addresses of the respective parties as set forth on Exhibit A hereto, or
to such changed address of which any party may notify the others pursuant
hereto, except that a notice of change of address shall be deemed given when
received.
(d) The parties acknowledge and agree that in the event of any
breach of this Agreement, remedies at law will be inadequate, and each of the
parties hereto shall be entitled to specific performance of the obligations of
the other parties hereto and to such appropriate injunctive relief as may be
granted by a court of competent jurisdiction. All remedies, either under this
Agreement or by law or otherwise afforded to any of the parties, shall be
cumulative and not alternative.
(e) This Agreement may be executed in a number of
counterparts. All such counterparts together shall constitute one Agreement, and
shall be binding on all the parties hereto notwithstanding that all such parties
have not signed the same counterpart. The parties hereto confirm that any
facsimile copy of another party's executed counterpart of this Agreement (or its
signature page thereof) will be deemed to be an executed original thereof.
(f) Except as contemplated in Section 8 hereof, this Agreement
is intended solely for the benefit of the parties hereto and is not intended to
confer any benefits upon, or create any rights in favor of, any Person
(including, without limitation, any stockholder or debt holder of the Company)
other than the parties hereto.
(g) If any provision of this Agreement is invalid, illegal or
unenforceable, such provision shall be ineffective to the extent, but only to
the extent of, such invalidity, illegality or unenforceability, without
invalidating the remainder of such provision or the remaining provisions of this
Agreement, unless such a construction would be unreasonable.
(h) This Agreement shall be binding upon, and inure to the
benefit of, the parties hereto and their permitted successors and assigns.
-14-
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement as of the date and year first above written.
LEUKOSITE, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxxxxx
----------------------------
Name: Xxxxxxxxxxx X. Xxxxxxxxx
Title: President and Chief Executive Officer
INITIAL INVESTOR:
PERSEUS CAPITAL LLC
By: /s/ Xxxxxxx X. Xxxxx
--------------------
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President
Exhibit A
All correspondence to the Company shall be addressed as follows:
LeukoSite, Inc.
000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxxxxxx X. Xxxxxxxxx,
President and Chief Executive Officer
Telecopier: (000) 000-0000
with a copy to:
Xxxxxxx Xxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxx, Esq.
Telecopier: (000) 000-0000
All correspondence to the Initial Investor shall be addressed as follows:
Perseus Capital, LLC
The Army and Navy Club Building
0000 X Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx X.X. 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxxxxxx X. Xxxx, Ph.D.
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
