Exhibit 99.2
REGISTRATION RIGHTS AGREEMENT
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This Agreement dated as of September 23, 1997 is entered into by and among
Diatide, Inc., a Delaware corporation (the "Company"), and the Stockholders
identified on Schedule I hereto (the "Stockholders").
In consideration of the mutual promises and covenants contained in this
Agreement, the Company and the Stockholders agree as follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following terms
shall have the following respective meanings:
"COMMISSION" means the Securities and Exchange Commission, or any
other Federal agency at the time administering the Securities Act and the
Exchange Act.
"COMMON STOCK" means the common stock, $.001 par value per share,
of the Company.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, or any similar Federal statute, and the rules and regulations of the
Commission issued under such Act, as they each may, from time to time, be in
effect.
"OTHER REGISTRABLE SHARES" means at any time all shares of Common
Stock (other than Stockholder Registrable Shares) (i) currently or hereafter
issued by the Company with respect to which the holders thereof have the right
to require the Company to register such shares pursuant to the Securities Act;
(ii) which would otherwise be Stockholder Registrable Shares but for the second
to last sentence under the definition of Stockholder Registrable Shares; (iii)
shares of Common Stock held by Chase Venture Capital Associates, L.P. on the
date hereof and (iv) any other shares of Common Stock issued in respect of the
shares described in the preceding clauses (i), (ii) and (iii) (because of
stock-splits, stock dividends, reclassifications, recapitalizations, or similar
events); PROVIDED, HOWEVER, that shares of Common Stock shall cease to be Other
Registrable Shares (i) upon any sale pursuant to a Registration Statement or
Rule 144 under the Securities Act or (ii) with respect to shares which would be
Stockholder Registrable Shares but for the second to last sentence under the
definition of Stockholder Registrable Shares, upon any sale or transfer in any
manner to a person or entity which, by virtue of Section 13 of this Agreement,
is not entitled to the rights provided by this Agreement.
"REGISTRABLE SHARES" means at any time Stockholder Registrable
Shares and Other Registrable Shares.
"REGISTRATION EXPENSES" means the expenses described in
Section 5.
"REGISTRATION STATEMENT" means a registration statement filed by
the Company with the Commission for a public offering and sale of securities of
the Company (other than a registration statement on Form S-8 or Form S-4, or
their successors, or any other form for a limited purpose, or any registration
statement covering only securities proposed to be issued in exchange for
securities or assets of another corporation).
"SECURITIES ACT" means the Securities Act of 1933, as amended, or
any successor Federal statute, and the rules and regulations of the Commission
issued under such Act, as they each may, from time to time, be in effect.
"SHARES" means the shares of Series A Convertible Preferred
Stock, par value $.01 per share, as more fully defined in Section 2.1 of the
Securities Purchase Agreement dated as of September 23, 1997 by and among the
Company and the Stockholders.
"STOCKHOLDER PRIORITY" shall mean at any time $11,800,000 less
any net proceeds received by or payable to the holders of the Stockholder
Registrable Shares sales of Registrable Shares or their respective predecessors
in interest pursuant to (i) sales of Registrable Shares (other than Other
Registrable Shares) pursuant to any prior required registration pursuant to
Section 2 hereof or incidental registration pursuant to Section 3 hereof, (ii)
sales of Registrable Shares (other than Other Registrable Shares) pursuant to
Rule 144 under the Securities Act, (iii) sales of Registrable Shares to an
unaffiliated party, or (iv) any event which is treated as a liquidation of the
Company (or any successor) pursuant to the terms of the Certificate of
Designations for the Shares.
"STOCKHOLDER REGISTRABLE SHARES" means (i) the shares of Common
Stock issued or issuable upon conversion or exchange of the Shares, (ii) the
shares of Common Stock issued or issuable upon the exercise of the Warrants to
purchase 181,538 shares of Common Stock (the "Warrant Shares") issued to the
Stockholders on September 23, 1997 (the "Warrants") and (iii) any other shares
of Common Stock issued in respect of the securities described in the preceding
clauses (i) and (ii) (because of stock splits, stock dividends,
reclassifications, recapitalizations, or similar events); PROVIDED, HOWEVER,
that shares of Common Stock which are Stockholder Registrable Shares shall cease
to be Stockholder Registrable Shares upon (i) any sale pursuant to a
Registration Statement or Rule 144 under the Securities Act, or (ii) upon any
sale in any manner to a person or entity which, by virtue of Section 13 of this
Agreement, is not entitled to the rights provided by this Agreement.
Notwithstanding the foregoing, on and after the time that the Stockholder
Priority is reduced to zero, all securities which are Stockholder Registrable
Shares shall cease to
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be Stockholder Registrable Shares and shall thereafter be included in the
definition of Other Registrable Shares. Wherever reference is made in this
Agreement to a request or consent of holders of a certain percentage of
Stockholder Registrable Shares, the determination of such percentage shall
include shares of Common Stock issuable upon conversion of the Shares and upon
exercise of the Warrants even if such conversion has not been effected or such
exercise has not been made.
"STOCKHOLDERS" means the Stockholders and any persons or entities
to whom the rights granted under this Agreement are transferred by any
Stockholder, their successors or assigns pursuant to Section 13 hereof.
2. REQUIRED REGISTRATIONS.
(a) At any time after October 1, 1998, a Stockholder or Stockholders
holding in the aggregate at least 51% of the Stockholder Registrable Shares
(determined without regard to the second to last sentence under the definition
of Stockholder Registrable Shares) may request, in writing, that the Company
effect the registration on Form S-1 or Form S-2 (or any successor form) of
Registrable Shares owned by such Stockholder or Stockholders with an aggregate
value of at least $5,000,000; PROVIDED, HOWEVER, that no Stockholder or
Stockholders shall have the right to request a registration pursuant to this
Section 2(a) at any time the Company is eligible to file a Registration
Statement on Form S-3 (or any successor form) or any other Form applicable to
secondary offerings.
(b) At any time after the Company becomes eligible to file a
Registration Statement on Form S-3 (or any successor form relating to secondary
offerings), a Stockholder or Stockholders holding in the aggregate at least 51%
of the Stockholder Registrable Shares (determined without regard to the second
to last sentence under the definition of Stockholder Registrable Shares) may
request the Company, in writing, to effect the registration on Form S-3 (or such
successor form), of Registrable Shares held by such holders with an aggregate
value of at least $1,000,000.
(c) In the case of a registration requested pursuant to this Section
2, if the holders initiating the registration intend to distribute the
Registrable Shares by means of an underwriting, they shall so advise the Company
in their request. In the event such registration is underwritten, the right of
other Stockholders to participate shall be conditioned on such Stockholders'
participation in such underwriting.
(d) Upon receipt of any request for registration pursuant to this
Section 2, the Company shall promptly give written notice of such proposed
registration to all Stockholders. Such Stockholders shall have the right, by
giving written notice to the Company within 30 days after the Company provides
its notice, to elect to have included in such registration such of their
Registrable Shares as such
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Stockholders may request in such notice of election, subject in the case of an
underwriting to the approval of the underwriter managing the offering as
provided in Section 2(e) below and to the priorities set forth in Section 2(g)
below. Thereupon, the Company shall, as expeditiously as possible, use its best
efforts to effect the regis tration on Form S-1 or Form S-2 (or any successor
forms) in the case of a registration requested pursuant to Section 2(a) above,
or on Form S-3 (or such successor form), in the case of a registration requested
pursuant to Section 2(b) above, of all Registrable Shares which the Company has
been requested to register.
(e) Notwithstanding any other provision of this Section 2, if the
managing underwriter advises the Stockholders initiating a registration pursuant
to Section 2(c) in writing that marketing factors require a limitation of the
number of shares to be underwritten, then the Stockholders initiating the
registration shall so advise all other Stockholders holding Registrable Shares
which would otherwise be included in the underwriting and the number of
Registrable Shares that may be included in the underwriting shall be allocated
among all such Stockholders, including the Stockholders initiating the
registration, in proportion (as nearly as practicable) to the number of
Registrable Shares of the Company owned by each such Stockholder. If the
managing underwriter does not limit the number of Registrable Shares to be
underwritten subject to Section 2(g) below, the Company and other holders of
securities of the Company who have registration rights similar to those set
forth herein may include Common Stock for their respective accounts in such
registration if the managing underwriter states that such inclusion would not
adversely affect the offering of Registrable Shares for any reason and if the
number of Registrable Shares held by the Stockholders which would otherwise have
been included in such registration and underwriting will not thereby be limited
or reduced.
(f) The Company shall not be required to effect more than one
registration pursuant to Section 2(a) above ("Demand Registration Statement")
but may be required to effect Demand Registration Statements pursuant to Section
2(b) above without limitation other than as set forth in Section 2(b). In
addition, the Company shall not be required to effect more than one registration
pursuant to this Section 2 during any six month period. For purposes of this
Section 2(f), a Registration Statement shall not be counted as a Demand
Registration Statement until such time as such Registration Statement has been
declared effective by the Commission and has remained effective for 120 days, or
if sooner, until all the Registrable Shares registered thereunder have been
sold.
(g) The Company will include Common Stock in an underwritten Demand
Registration Statement required pursuant to Sections 2(a) or 2(b) above as
follows:
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(i) First, among the holders of Stockholders who have requested
to be included in such registration pursuant to Section 2
hereof, PRO RATA based upon the number of Registrable Shares
owned by each Stockholder.
(ii) Second, PRO RATA among the other persons or entities holding
Other Registrable Shares.
3. INCIDENTAL REGISTRATION.
(a) Whenever the Company proposes to file a Registration Statement
(other than pursuant to Section 2) at any time and from time to time, it will,
prior to such filing, give written notice to all Stockholders of its intention
to do so and, upon the written request of a Stockholder or Stockholders given
within 30 days after the Company provides such notice (which request shall state
the intended method of disposition of such Registrable Shares), the Company
shall use its best efforts to cause all Registrable Shares which the Company has
been requested by such Stockholder or Stockholders to register to be registered
under the Securities Act to the extent necessary to permit their sale or other
disposition in accordance with the intended methods of distribution specified in
the request of such Stockholder or Stockholders; provided that the Company shall
have the right to postpone or withdraw any registration effected pursuant to
this Section 3 without obligation to any Stockholder.
(b) In connection with any offering under this Section 3 involving an
underwriting, the Company shall not be required to include any Registrable
Shares in such underwriting unless the holders thereof accept the terms of the
underwriting as agreed upon between the Company and/or the holders of shares of
Common Stock or other securities of the Company who have registration rights
similar to those set forth in Section 2 hereof and who have initiated or are
participating in the offering pursuant to such rights (the "Initiating
Rightsholders") and the underwriters selected by it, and then only in such
quantity as will not, in the opinion of the underwriters, jeopardize the success
of the offering of securities proposed to be offered and sold by the Company.
If in the opinion of the managing underwriter the registration of all, or part
of, the Registrable Shares which the Stockholders have requested to be included
would materially and adversely affect such offering, then the Company shall be
required to include in the underwriting only that number of Registrable Shares
(as determined in accordance with the next sentence), if any, which the managing
underwriter believes may be sold without causing such adverse effect. If the
number of Registrable Shares to be included in the underwriting in accordance
with the foregoing is less than the total number of shares which the holders of
Registrable Shares have requested to be included, then (i) the Stockholders who
have requested registrations shall first be entitled to include all shares that
they have requested to be included to the extent necessary to reduce the
Stockholder Priority to
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zero, (ii) the party or parties initiating the registration (i.e., the Company
or the Initiating Shareholders) shall then be entitled to include all shares
that they have requested to be registered and (iii) the Stockholders who have
requested registration and other holders of shares of Common Stock or other
securities of the Company entitled to include shares of Common Stock in such
registration on a parity with the Stockholders (other than the Shareholders who
shall be entitled to include the total number of shares they have requested as
provided in clause (i) and the Initiating Stockholders with respect to the
shares included as provided in clause (ii)) shall participate in the
underwriting pro rata based upon their total ownership of shares of Common Stock
of the Company.
4. REGISTRATION PROCEDURES. If and whenever the Company is required by
the provisions of this Agreement to use its best efforts to effect the
registration of any of the Registrable Shares under the Securities Act, the
Company shall:
(a) file with the Commission a Registration Statement with respect to
such Registrable Shares and use its best efforts to cause that Registration
Statement to become and remain effective for 120 days from the effective date or
such lesser period until all such Shares are sold;
(b) as expeditiously as possible prepare and file with the Commission
any amendments and supplements to the Registration Statement and the prospectus
included in the Registration Statement as may be necessary to keep the
Registration Statement effective for 120 days from the effective date or such
lesser period until all the Registrable Shares are sold;
(c) as expeditiously as possible furnish to each selling Stockholder
such reasonable numbers of copies of the prospectus, including a preliminary
prospectus, in conformity with the requirements of the Securities Act, and such
other documents as the selling Stockholder may reasonably request in order to
facilitate the public sale or other disposition of the Registrable Shares owned
by the selling Stockholder;
(d) as expeditiously as possible use its best efforts to register or
qualify the Registrable Shares covered by the Registration Statement under the
securities or Blue Sky laws of such states as the selling Stockholders shall
reasonably request, and do any and all other acts and things that may be
necessary or desirable to enable the selling Stockholders to consummate the
public sale or other disposition in such states of the Registrable Shares owned
by the selling Stockholder; PROVIDED, HOWEVER, that the Company shall not be
required in connection with this paragraph (d) to qualify as a foreign
corporation or execute a general consent to service of process in any
jurisdiction;
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(e) as expeditiously as possible, cause all such Registrable Shares
to be listed on each securities exchange or quotation system on which similar
securities issued by the Corporation are then listed;
(f) promptly provide a transfer agent and registrar for all such
Registrable Shares not later than the effective date of such registration
statement;
(g) promptly make available for inspection by the sellers of such
Registrable Shares, any managing underwriter participating in any disposition
pursuant to such registration statement, and any attorney or accountant or other
agent retained by any such underwriter or selected by the sellers of Registrable
Shares, all financial and other records, pertinent corporate documents and
properties of the Company and cause the Company's officers, directors, employees
and independent accountants to supply all information reasonably requested by
any such seller, underwriter, attorney, accountant or agent in connection with
such registration statement;
(h) as expeditiously as possible, notify each seller of such
Registrable Shares, promptly after it shall receive notice thereof, of the time
when such registration statement has become effective or a supplement to any
prospectus forming a part of such registration statement has been filed; and
(i) as expeditiously as possible, notify each seller of such
Registrable Shares of any request by the Commission for the amending or
supplementing of such registration statement or prospectus or for additional
information.
If the Company has delivered preliminary or final prospectuses to the
selling Stockholders and after having done so the prospectus is amended to
comply with the requirements of the Securities Act, the Company shall promptly
notify the selling Stockholders and, if requested, the selling Stockholders
shall immediately cease making offers of Registrable Shares and return all
prospectuses to the Company. The Company shall promptly provide the selling
Stockholders with revised prospectuses and, following receipt of the revised
prospectuses, the selling Stockholders shall be free to resume making offers of
the Registrable Shares.
5. ALLOCATION OF EXPENSES. The Company will pay all Registration
Expenses for all registrations under Sections 2(a) and 2(b), and all
registrations under Section 3 of this Agreement; PROVIDED, HOWEVER, that if a
registration is withdrawn at the request of the Stockholders requesting such
registration (other than as a result of information concerning the business or
financial condition of the Company which is made known to the Stockholders after
the date on which such registration was requested, which withdrawal is made
within 10 days after such information is made known to the Stockholders) and if
the requesting Stockholders elect not to have such registration counted as a
registration requested under, as the case may be,
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Sections 2(a) or 2(b), the requesting Stockholders shall pay the Registration
Expenses of such registration pro rata in accordance with the number of their
Registrable Shares included in such registration. Such expenses shall be borne
by the Stockholders on a pro rata basis, based on the number of Registrable
Shares included in such registration by each such Stockholder. For purposes of
this Section, the term "Registration Expenses" shall mean all expenses incurred
by the Company in complying with this Agreement including, without limitation,
all registration and filing fees, exchange listing fees, printing expenses, fees
and disbursements of counsel for the Company, state Blue Sky fees and expenses,
and the expense of any special audits incident to or required by any such
registration, but excluding underwriting discounts, selling commissions and the
fees and expenses of selling Stockholders' own counsel.
6. INDEMNIFICATION AND CONTRIBUTION. In the event of any registration of
any of the Registrable Shares under the Securities Act pursuant to this
Agreement, the Company will indemnify and hold harmless the seller of such
Registrable Shares, each underwriter of such Registrable Shares, and each other
person, if any, who controls such seller or underwriter within the meaning of
the Securities Act or the Exchange Act against any losses, claims, damages or
liabilities, joint or several, to which such seller, underwriter or controlling
person may become subject under the Securities Act, the Exchange Act, state
securities or Blue Sky laws or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in any Registration Statement under which such Registrable Shares were
registered under the Securities Act, any preliminary prospectus or final
prospectus contained in the Registration Statement, or any amendment or
supplement to such Registration Statement, or arise out of or are based upon the
omission or alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and the
Company will reimburse such seller, underwriter and each such controlling person
for any legal or any other expenses reasonably incurred by such seller,
underwriter or controlling person in connection with investigating or defending
any such loss, claim, damage, liability or action; PROVIDED, HOWEVER, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any untrue statement
or omission made in such Registration Statement, preliminary prospectus or
prospectus, or any such amendment or supplement, in reliance upon and in
conformity with information furnished to the Company, in writing, by or on
behalf of such seller, underwriter or controlling person specifically for use in
the preparation thereof.
In the event of any registration of any of the Registrable Shares under the
Securities Act pursuant to this Agreement, each seller of Registrable Shares,
severally and not jointly, will indemnify and hold harmless the Company, each of
its directors and officers and each underwriter (if any) and each person, if
any, who controls the
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Company or any such underwriter within the meaning of the Securities Act or the
Exchange Act, against any losses, claims, damages or liabilities, joint or
several, to which the Company, such directors and officers, underwriter or
controlling person may become subject under the Securities Act, Exchange Act,
state securities or Blue Sky laws or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement under which such Registrable Shares were
registered under the Securities Act, any preliminary prospectus or final
prospectus contained in the Registration Statement, or any amendment or
supplement to the Registration Statement, or arise out of or are based upon any
omission or alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, if the
statement or omission was made in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of such seller,
specifically for use in connection with the preparation of such Registration
Statement, prospectus, amendment or supplement; PROVIDED, HOWEVER, that the
obligations of a Stockholder hereunder shall be limited to an amount equal to
the proceeds to such Stockholder of Registrable Shares sold as contemplated
herein.
Each party entitled to indemnification under this Section 6 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom; PROVIDED, that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not be unreasonably
withheld); and, PROVIDED, FURTHER, that the failure of any Indemnified Party to
give notice as provided herein shall not relieve the Indemnifying Party of its
obligations under this Agreement except to the extent that the Indemnifying
Party is adversely affected by such failure. The Indemnified Party may
participate in such defense at such party's expense; PROVIDED, HOWEVER, that the
Indemnifying Party shall pay such expense if representation of such Indemnified
Party by the counsel retained by the Indemnifying Party would be inappropriate
due to actual or potential differing interests between the Indemnified Party and
any other party represented by such counsel in such proceeding; provided further
that in no event shall the Indemnifying Party be required to pay the expenses of
more than one law firm per jurisdiction as counsel for the Indemnified Party.
The Indemnifying Party also shall be responsible for the expenses of such
defense if the Indemnifying Party does not elect to assume such defense. No
Indemnifying Party, in the defense of any such claim or litigation shall, except
with the consent of each Indemnified Party, consent to entry of any judgment or
enter into any settlement which does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such Indemnified Party of a
release from all liability in respect of such claim or litigation, and no
Indemnified Party shall consent to entry of any judgment or settle
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such claim or litigation without the prior written consent of the Indemnifying
Party, which consent shall not be unreasonably withheld.
In order to provide for just and equitable contribution in circumstances in
which the indemnification provided for in this Section 6 is due in accordance
with its terms but for any reason is held to be unavailable to an Indemnified
Party in respect to any losses, claims, damages and liabilities referred to
herein, then the Indemnifying Party shall, in lieu of indemnifying such
Indemnified Party, contribute to the amount paid or payable by such Indemnified
Party as a result of such losses, claims, damages or liabilities to which such
party may be subject in such proportion as is appropriate to reflect the
relative fault of the Company on the one hand and the Stockholders on the other
in connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company and the Stockholders shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of material fact related to information supplied by the Company
or the Stockholders and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Stockholders agree that it would not be just and equitable
if contribution pursuant to this Section 6 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above. Notwithstanding the provisions
of this paragraph of Section 6, in no case shall any one Stockholder be liable
or responsible for any amount in excess of the net proceeds received by such
Stockholder from the offering of Registrable Shares; PROVIDED, HOWEVER, that 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 who was not guilty of such fraudulent misrepresentation. Any party
entitled to contribution will, promptly after receipt of notice of commencement
of any action, suit or proceeding against such party in respect of which a claim
for contribution may be made against another party or parties under this
Section, notify such party or parties from whom contribution may be sought, but
the omission so to notify such party or parties from whom contribution may be
sought shall not relieve such party from any other obligation it or they may
have thereunder or otherwise under this Section. No party shall be liable for
contribution with respect to any action, suit, proceeding or claim settled
without its written consent.
7. INDEMNIFICATION WITH RESPECT TO UNDERWRITTEN OFFERING. In the event
that Registrable Shares are sold pursuant to a Registration Statement in an
underwritten offering pursuant to Section 2(c), the Company agrees to (a) enter
into an underwriting agreement containing customary representations and
warranties with respect to the business and operations of an issuer of the
securities being registered and customary covenants and agreements to be
performed by such issuer, including without limitation customary provisions with
respect to indemnification by
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the Company of the underwriters of such offering; (b) engage reputable legal
counsel to render customary opinions and advice with respect to the Registration
Statement and (c) engage a nationally recognized public accounting firm to issue
customary "cold comfort letters" and advice with respect to the Registration
Statement.
8. INFORMATION BY HOLDER. Each holder of Registrable Shares included in
any registration shall furnish to the Company such information regarding such
holder and the distribution proposed by such holder as the Company may
reasonably request in writing and as shall be required in connection with any
registration, qualification or compliance referred to in this Agreement. In
addition, each person that is, becomes or was a Stockholder at any time under
this Agreement, shall promptly furnish to the Company upon request, information
relating to such Stockholder's and it's affiliates holdings of Company
securities, including, without limitation, the number of shares owned by such
Stockholder and its affiliates, the date of such holdings, the date and number
of shares transferred or sold at any time and the name of the transferee, and
the purchase price (or net consideration, if applicable) received by such
Stockholder upon the transfer of any Company security.
9. LIMITATIONS ON REGISTRATION RIGHTS.
(a) Notwithstanding the provisions of Section 2, the Company may by
written notice to the Stockholders (x) delay filing a Demand Registration
Statement requested by a Stockholder (a "Delayed Demand Registration
Statement") or (y) require that the Stockholders immediately cease sales of
shares under any effective Registration Statement ("Suspended Registration
Statement"), in any period during which the Company is engaged in (i) a
registered public offering of the Company, or (ii) any activity or transaction
or preparations or negotiations for any activity or transaction ("Company
Activity") that the Company desires to keep confidential for business reasons,
if the Company determines in good faith that the public disclosure requirements
imposed on the Company under the Securities Act in connection with any such
Registration Statement would require disclosure of the Company Activity;
provided, that, (i) in the aggregate, all such delays of filing Delayed Demand
Registration Statements and/or cessations of sales under Suspended Registration
Statements shall not exceed 150 days in any 12-month period and (ii) the Company
shall cause any suspended Registration Statement to remain effective for one
additional day for each day, or any portion of a day, that the Stockholders were
required to cease sales of shares thereunder.
(b) If the Company requires the Stockholders to cease sales of shares
pursuant to Section 9(a) above, the Company shall, as promptly as practicable
following the termination of the circumstance which entitled the Company to do
so, give written notice to the Stockholders that such circumstance has
terminated and that they may resume sales pursuant to the Suspended Registration
Statement. If the prospectus included in such Suspended Registration Statement
has been amended to
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comply with the requirements of the Securities Act, the Company shall enclose
such revised prospectus with the notice to Stockholders given pursuant to this
Section 9(b), and the Stockholders shall make no offers or sales of shares
pursuant to such Suspended Registration Statement other than by means of such
revised prospectus.
10. "STAND-OFF" AGREEMENT. Each Stockholder, if requested by the Company
and an underwriter of Common Stock or other securities of the Company, shall
agree not to sell or otherwise transfer or dispose of any Registrable Shares or
other securities of the Company held by such Stockholder (except shares
permitted to be sold pursuant to Section 2 or 3 of this Agreement) for a
specified period of time (not to exceed 90 days) following the effective date of
a Registration Statement pursuant to which such Stockholder or an affiliate
thereof has registered shares ("Stand-Off Agreement"). The Company may impose
stop-transfer instructions with respect to the Registrable Shares or other
securities subject to the foregoing restriction until the end of the stand-off
period. Nothing in this Section 10 shall prohibit transfers to affiliates
pursuant to Section 13 hereof.
11. RULE 144 REQUIREMENTS. The Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act;
(b) use its best efforts to file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act; and
(c) furnish to any holder of Registrable Shares upon request a
written statement by the Company as to its compliance with the reporting
requirements of said Rule 144, and of the Securities Act and the Exchange Act, a
copy of the most recent annual or quarterly report of the Company, and such
other reports and documents of the Company as such holder may reasonably request
to avail itself of any similar rule or regulation of the Commission allowing it
to sell any such securities without registration.
12. MERGERS, ETC. The Company shall not, directly or indirectly, enter
into any merger, consolidation or reorganization in which the Company shall not
be the surviving corporation unless the proposed surviving corporation shall,
prior to such merger, consolidation or reorganization, agree in writing to
assume the obligations of the Company under this Agreement, and for that purpose
references hereunder to "Registrable Shares" shall be deemed to be references to
the securities which the Stockholders would be entitled to receive in exchange
for Registrable Shares under any such merger, consolidation or reorganization;
PROVIDED, HOWEVER, that the provisions of this Section 12 shall not apply in the
event of any merger, consolidation or reorganization in which the Company is not
the surviving corporation if all
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Stockholders are entitled to receive in exchange for their Registrable Shares
consideration consisting solely of (i) cash, (ii) securities of the acquiring
corporation which may be immediately sold to the public without registration
under the Securities Act, or (iii) securities of the acquiring corporation which
the acquiring corporation has agreed to register within 90 days of completion of
the transaction for resale to the public pursuant to the Securities Act.
13. TRANSFERS OF CERTAIN RIGHTS.
(a) This Agreement, and the rights and obligations of each
Stockholder hereunder, may be assigned by such Stockholder to another
Stockholder, to any affiliate of such Stockholder or to any person or entity
acquiring at least 300,000 Stockholder Registrable Shares (determined without
regard to the second to last sentence under the definition of the Stockholder
Registrable Shares) (such number being subject to adjustment for any stock
dividend, stock split, subdivision, combination or other recapitalization of the
Common Stock of the Company); provided, however, that the transferee provides
written notice of such assignment to the Company stating its name and address
and identifying the securities with respect to which such rights are being
assigned; and provided further, that the Company receives the written instrument
provided in subparagraph (b) below. Any transferee to whom a transfer is made
in accordance with the immediately preceding sentence shall be deemed a
Stockholder for purposes of this Agreement.
(b) Any transferee (other than a Stockholder) to whom rights
hereunder are transferred shall, as a condition to such transfer, deliver to the
Company a written instrument by which such transferee agrees to be bound by the
obligations imposed upon Stockholders under this Agreement to the same extent as
if such transferee were a party thereto.
(c) A transferee to whom rights are transferred pursuant to this
Section 13 may not again transfer such rights to any other person or entity,
other than as provided in this Section 13.
14. GENERAL.
(a) NOTICES. All notices, requests, consents, and other
communications under this Agreement shall be in writing and shall be delivered
by hand, sent by a reputable overnight business courier or mailed by first class
certified or registered mail, return receipt requested, postage prepaid:
If to the Company, at Nine Xxxxx Xxxxx, Xxxxxxxxxxx, Xxx Xxxxxxxxx 00000,
Attention: President, or at such other address or addresses as may have been
furnished in writing by the Company to the Stockholders, with a copy to Xxxx and
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Xxxx XXX, 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxxxxx X.
Carp, Esq.
If to the Stockholders, to their respective addresses set forth on Schedule
I hereto, or at such other address or addresses as may have been furnished to
the Company in writing by such Stockholders, with a copy to X'Xxxxxxxx, Graev &
Karabell, LLP, 00 Xxxxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx
X. Xxxxxx Esq.
Notices provided in accordance with this Section 14(a) shall be deemed
delivered (i) upon personal delivery if notice is hand delivered, (ii) on the
next business day if the notice is given by a reputable overnight business
courier and (iii) three business days after deposit in the United States mail if
sent by United States mail return receipt requested.
(b) ENTIRE AGREEMENT. This Agreement embodies the entire agreement
and understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements and understandings relating to such
subject matter.
(c) NO THIRD PARTY BENEFICIARY. This Agreement shall not confer any
rights or remedies on any person or entity other than the Company and the
Stockholders.
(d) AMENDMENTS AND WAIVERS. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), with the written consent of the Company and the Stockholders
holding a majority of the Stockholder Registrable Shares (determined without
regard to the second to last sentence under the definition of Stockholder
Registrable Shares) held by all of the Stockholders; PROVIDED, that this
Agreement may be amended with the consent of the holders of less than all
Stockholder Registrable Shares only in a manner which affects all Stockholder
Registrable Shares in the same fashion. No waivers of or exceptions to any
term, condition or provision of this Agreement, in any one or more instances,
shall be deemed to be, or construed as, a further or continuing waiver of any
such term, condition or provision.
(e) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
shall be one and the same document.
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(f) SEVERABILITY. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement.
(g) GOVERNING LAW: This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware.
IN WITNESS WHEREOF, this Agreement has been executed on the day and year
first above written by the parties listed below:
DIATIDE, INC.
By:
------------------------------------
Name:
Title:
CHASE VENTURE CAPITAL
ASSOCIATES, L.P.
By: Chase Capital Partners,
its General Partner
By:
------------------------------------
Name:
Title:
MEDSOURCE S.A.
By:
------------------------------------
Name:
Title:
NEOMED FUND LIMITED
By:
------------------------------------
Name:
Title:
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SCHEDULE I
----------
INVESTORS
---------
Chase Venture Capital Associates, L.P.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx, M.D.
Medsource S.A.
x/x XX Xxxxxxx XX
Xxxxxxxxxx 0
XX-0000 Xxxxxxxxxxxx
Xxxxxxxxxxx
Neomed Fund Limited
c/o Bank of Bermuda Limited
Bank of Xxxxxxx Xxxxxxxx
X.X. Xxx XX 0000
Xxxxxxxx, Xxxxxxx XXXX
Xxxxxxxxx: Xx. Xxxxx Xxxxx
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