EXHIBIT 10.27
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of July 6, 1999, by and between
Celgene Corporation, a Delaware corporation (the "Company"), and Xxxx Xxxxxxx
Mutual Life Insurance Company, Xxxx Xxxxxxx Variable Life Insurance Company, and
Xxxxxxx Mezzanine Partners L.P. (collectively, the "Purchasers" and singly, each
"Purchaser") entered into in connection with the issuance of a Convertible Note
due June 30, 2004 convertible into shares of Common Stock, par value $.01 per
share ("Common Stock") of the Company.
1. Certain Definitions.
For purposes of this Registration Rights Agreement, the following terms
shall have the following respective meanings:
(a) "Commission" shall mean the Securities and Exchange Commission, or any
other federal agency at the time administering the Exchange Act or the
Securities Act, whichever is the relevant statute for the particular purpose.
(b) Convertible Note" shall mean the Convertible Note due June 30, 2004, of
the Company to be issued and sold to the Purchaser, and any Convertible Note
issued in exchange therefor or in lieu thereof.
(c) "Effective Time" shall mean the date on which the Commission declares
the Shelf Registration effective or on which the Shelf Registration otherwise
becomes effective.
(d) "Exchange Act" shall mean the Securities Exchange Act of 1934, or any
successor thereto and the rules and regulations promulgated thereunder, as the
same shall be amended from time to time.
(e) "Issue Date" shall mean the date on which a Convertible Note is
initially issued.
(f) The term "person" shall mean a corporation, association, partnership,
organization, business, individual, government or political subdivision thereof
or governmental agency.
(g) ";Registration Expenses" shall have the meaning assigned thereto in
Section 4 hereof.
(h) ".Securities Act" shall mean the Securities Act of 1933, or any
successor thereto and the rules and regulations promulgated thereunder, as the
same shall be amended from time to time.
(i) "Shares" means the shares of Common Stock issuable upon exercise of the
Convertible Note.
(j) "Shelf Registration" shall have the meaning assigned thereto in Section
2 hereof.
In addition, capitalized terms not defined herein shall have the meaning
ascribed in the Convertible Note.
2. Shelf Registration of Shares.
(a) Not later than July 6, 2000, the Company shall file under the
Securities Act a "shelf" registration statement providing for the registration
of, and the sale on a continuous or delayed basis by the Purchasers of, all
shares issuable upon conversion of the Convertible Notes, pursuant to Rule 415
under the Securities Act and/or any similar rule that may be adopted by the
Commission (the "Shelf Registration"). The Company agrees to use its best
efforts to cause the Shelf Registration to become or be declared effective no
later than 45 calendar days after the filing thereof and to keep such Shelf
Registration continuously effective for a period ending on the earliest to occur
of (i) the second anniversary of the Issue Date, (ii) notification to the
Company by each Purchaser that it has sold all Shares issuable upon conversion
of the Convertible Notes so owned by it, or (iii) such time as the Purchasers
may sell all of such shares pursuant to Rule 144(k) under the Securities Act.
The Company further agrees, if necessary, to supplement or make amendments to
the Shelf Registration, if required by the rules, regulations or instructions
applicable to the registration form used by the Company for such Shelf
Registration or by the Securities Act or rules and regulations thereunder for
shelf registration, and the Company agrees to furnish to each Purchaser copies
of any such supplement or amendment prior to its being used and/or filed with
the Commission, and will not file any such supplement or amendment to which any
Purchaser reasonably objects.
(b) Notwithstanding the foregoing, following the effectiveness of the Shelf
Registration, the Company many, at any time, suspend the effectiveness of such
Shelf Registration for up to 60 days, as appropriate (a "Suspension Period"), by
giving notice to each Purchaser, if the Company shall have determined that the
Company may be required to disclose any material corporate development which
disclosure may jeopardize a material transaction or otherwise have a material
adverse effect on the Company. The Company will use its best efforts to minimize
the length of any Suspension Period. Notwithstanding the foregoing, no more than
one Suspension Period may occur within any 180 day period, and no Suspension
Period shall be effective at any time the Company or any affiliate of the
Company is publicly selling shares of the capital stock of the Company (other
than pursuant to a registration statement on the Securities and Exchange
Commission Form S-8). The period of any such suspension of registration
statement shall be added to the period of time the Company agrees to keep the
Shelf Registration effective as provided in Section 2(a). Each Purchaser agrees
that, upon receipt of any notice from the Company of a Suspension Period, such
Purchaser shall forthwith discontinue disposition of shares covered by the Shelf
Registration until such Purchaser (i) is advised in writing by the Company that
the use of the
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applicable prospectus may be resumed, (ii) has received copies of a supplemental
or amended prospectus, if applicable, and (iii) has received copies of any
additional or supplemental filings which are incorporation or deemed to be
incorporated by reference in such prospectus.
3. Registration Procedures.
(a) In connection with any obligation of the Company to register Shares,
the Company shall use its best efforts to effect or cause such registration to
permit the sale of the Shares by the Purchasers in accordance with the intended
method or methods of distribution thereof described in the applicable
registration statement. In connection therewith, the Company shall, within the
time specified in Section 2 above:
(i) prepare and file with the Commission a registration statement on any
form which may be utilized by the Company and which shall permit the disposition
of the Shares in accordance with the intended method or methods thereof, as
specified in writing by each Purchaser;
(ii) comply with the provisions of the Securities Act with respect to the
disposition of all of the Shares covered by such registration statement in
accordance with the intended methods of disposition by each Purchaser set forth
in such registration statements;
(iii) provide (A) each Purchaser, (B) the underwriters (which term, for
purposes of these Registration Rights, shall include a person deemed to be an
underwriter within the meaning of Section 2(11) of the Securities Act), if any,
thereof, (C) the sales or placement agent, if any, therefor, (D) counsel for
such underwriters or agent, and (E) counsel for the Purchasers the opportunity
to participate in the preparation of such registration statement, each
prospectus included therein or filed with the Commission, and each amendment or
supplement thereto;
(iv) for a reasonable period prior to the filing of such registration
statement, and throughout the period specified in Section 2 hereof, make
available for inspection by the parties referred to in Section 3(a)(iii) above
who shall certify to the Company that they have a current intention to sell the
Shares pursuant to the registration statement such financial and other
information and books and records of the Company, and cause the officers,
employees, counsel and independent certified public accountants of the Company
to respond to such inquiries, as shall be reasonably necessary, in the judgment
of the respective counsel referred to in such Section, to conduct a reasonable
investigation within the meaning of Section 11 of the Securities Act; provided,
however, that each such party shall be required to maintain in confidence and
not to disclose to any other person any information or records provided by the
Company and clearly marked or otherwise adequately identified by the Company as
being confidential until such time as (A) such information becomes a matter of
public record (whether by virtue of its inclusion in
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such registration statement or otherwise), or (B) such person shall be required
so to disclose such information pursuant to the subpoena or order of any court
or other governmental agency or body having jurisdiction over the matter or over
such party (subject to the requirements of such order, and only after such
person shall have given the Company prompt prior written notice of such
requirement), or (C) such information is required to be set forth in .such
registration statement or the prospectus included therein or in an amendment to
such registration statement or an amendment or supplement to such prospectus in
order that such registration statement, prospectus, amendment or supplement, as
the case may be, does not contain an untrue statement of a material fact or omit
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading;
(v) promptly notify each Purchaser, the sales or placement agent, if any,
therefor and the managing underwriter or underwriters, if any, thereof and
confirm such advice in writing, (A) when such registration statement or the
prospectus included therein or any prospectus amendment or supplement or
post-effective amendment has been filed, and, with respect to such registration
statement or any post-effective amendment, when the same has become effective,
(B) of any comments by the Commission and by the Blue Sky or securities
commissioner or regulator of any state with respect thereto or any request by
the Commission for amendments or supplements to such registration statement or
prospectus or for additional information, (C) of the issuance by the Commission
of any stop order suspending the effectiveness of such registration statement or
the initiation or overt threatening of any proceedings for that purpose, (D) if
at any time the representations and warranties of the Company contemplated by
Section 5 hereof cease to be true and correct in all material respects, (E) of
the receipt by the Company of any notification with respect to the suspension of
the qualification of the Shares for sale in any jurisdiction or the initiation
or overt threatening of any proceeding for such purpose, or (F) at any time when
a prospectus is required to be delivered under the Securities Act, if such
registration statement, prospectus, prospectus amendment or supplement or
post-effective amendment, or any document incorporated by reference in any of
the foregoing, contains an untrue statement of a material fact or omits to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then existing;
(vi) use its best efforts to obtain the withdrawal of any order suspending
the effectiveness of such registration statement or any post-effective amendment
thereto at the earliest practicable date;
(vii) if requested by any managing underwriter or underwriters, any
placement or sales agent or any Purchaser, promptly incorporate in a prospectus
supplement or post-effective amendment such information as is required by the
applicable rules and regulations of the Commission that such managing
underwriter or underwriters, such agent or such Purchaser specify should be
included therein
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relating to the terms of the sale of such Shares, including, without limitation,
information with respect to the number of Shares being sold by such Purchaser or
agent or to any underwriters, the name and description of such Purchaser, agent
or underwriter, the offering price of such Shares and any discount, commission
or other compensation payable in respect thereof, the purchase price being paid
therefor by such underwriters and with respect to any other terms of the
offering of the Shares to be sold by such Purchaser or agent or to such
underwriters; and make all required filings of such prospectus supplement or
post-effective amendment promptly after notification of the matters to be
incorporated in such prospectus supplement or post-effective amendment;
(viii) furnish to each Purchaser, each placement or sales agent, if any,
therefor, each underwriter, if any, thereof and the respective counsel referred
to in Section 3(a)(iii) a copy of such registration statement in the form in
which it became effective, each such amendment and supplement thereto (in each
case including all exhibits thereto and documents incorporated by reference
therein) and such number of copies of such registration statement (excluding
exhibits thereto and documents incorporated by reference therein unless
specifically so requested by any Purchaser, agent or underwriter, as the case
may be) and of the prospectus included in such registration statement (including
each preliminary prospectus and any summary prospectus), in conformity with the
requirements of the Securities Act, and such other documents, as any Purchaser,
agent, if any, and underwriter, if any, may reasonably request in order to
facilitate the offering and disposition of the Shares owned by such Purchaser,
offered or sold by such agent or underwritten by such underwriter and to permit
such Purchaser, agent and underwriter to satisfy the prospectus delivery
requirements of the Securities Act; and the Company hereby consents to the use
of such prospectus (including such preliminary and summary prospectus) and any
amendment or supplement thereto by any Purchaser and by any such agent and
underwriter, in each case in the form most recently provided to such party by
the Company, in connection with the offering and sale of the Shares covered by
the prospectus (including such preliminary and summary prospectus) or any
supplement or amendment thereto;
(ix) use its best efforts to (A) register or qualify the Shares to be
included in such registration statement under such securities laws or blue sky
laws of such jurisdictions as each Purchaser and each placement or sales agent,
if any, therefor and underwriter, if any, thereof shall reasonably request, (B)
keep such registrations or qualifications in effect and comply with such laws so
as to permit the continuance of offers, sales and dealings therein in such
jurisdictions during the respective periods such registration statements are
required to remain effective under Section 2 above and for so long as may be
necessary to enable each Purchaser or any agent or underwriter to complete its
distribution of Shares pursuant to such registration statement and (C) take any
and all other actions as may be reasonably necessary or advisable to enable each
Purchaser, agent, if any, and underwriter, if any, to
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consummate the disposition in such jurisdictions of such Shares; provided,
however, that the Company shall not be required for any such purpose to (I)
qualify as a foreign corporation in any jurisdiction wherein it would not
otherwise be required to qualify but for the requirements of this Section
3(a)(ix) or (II) consent to general service of process in any such jurisdiction;
(x) use its best efforts to obtain the consent or approval of each
governmental agency or authority, whether federal, state or local, which may be
required to effect the Shelf Registration or the offering or sale in connection
therewith or to enable the Purchaser to offer, or to consummate the disposition
of, its Shares;
(xi) cooperate with each Purchaser and the managing underwriters, if any,
to facilitate the timely preparation and delivery of any certificates
representing Shares to be sold, which certificates shall be printed,
lithographed or engraved, or produced by any combination of such methods, and
which shall not, once sold under the Shelf Registration, bear any restrictive
legends; and, in the case of an underwritten offering, enable such Shares to be
in such denominations and registered in such names as the managing underwriters
may request at least two business days prior to any sale of the Shares;
(xii) enter into one or more underwriting agreements, engagement letters,
agency agreements or similar agreements, as appropriate, including (without
limitation) customary provisions relating to indemnification and contribution,
and take such other actions in connections therewith as any Purchaser shall
reasonably request in order to expedite or facilitate the disposition of the
Shares;
(xiii) notify each Purchaser in writing of any proposal by the Company to
amend or waive any provision of these Registration Rights pursuant to Section
7(g) hereof and of any amendment or waiver effected pursuant thereto, each of
which notices shall contain the text of the amendment or waiver proposed or
effected, as the case may be;
(xiv) in the event that any broker-dealer registered under the Exchange Act
shall underwrite any Shares or participate as a member of an underwriting
syndicate or selling group or "assist in the distribution" (within the meaning
of the Rules of Fair Practice and the By-Laws of the National Association of
Securities Dealers, Inc. ("NASD")) thereof, whether as an underwriter, a
placement or sales agent or a broker or dealer in respect thereof, or otherwise,
assist such broker-dealer in complying with the requirements of such Rules and
By-Laws, including, without limitation, by providing such information to such
broker-dealer as may be required in order for such broker-dealer to comply with
the requirements of the Rules of Fair Practice of the NASD;
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(xv) comply with all applicable rules and regulations of the Commission,
and make generally available to its security holders as soon as practicable but
in any event not later than eighteen months after the effective date of such
registration statement, an earning statement of the Company and in subsidiaries
complying with Section 11(a) of the Securities Act (including, at the option of
the Company, Rule 158 thereunder); and
(xvi) use its best efforts to have the Shares approved for trading on the
Nasdaq National Market.
(b) In the event that the Company would be required, pursuant to Section
3(a)(v)(F) above, to notify each Purchaser, the placement or sales agent, if
any, therefor and the managing underwriters, if any, thereof, the Company shall
without delay prepare and furnish to each Purchaser, to each placement or sales
agent, if any, and to each underwriter, if any, a reasonable number of copies of
a prospectus supplemented or amended in form and substance reasonably
satisfactory to them, so that, as thereafter delivered to purchasers of Shares,
such prospectus shall not contain an 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 not misleading in light of the circumstances then existing.
Each Purchaser agrees that upon receipt of any notice from the Company pursuant
to Section 3(a)(v)(F) hereof, such Purchaser shall forthwith discontinue the
disposition of Shares pursuant to the registration statement applicable to such
Shares until such Purchaser shall have received copies of such amended or
supplemented prospectus, and if so directed by the Company, such Purchaser shall
deliver to the Company (at the Company's expense) all copies, other than
permanent file copies, then in such Purchaser's possession of the prospectus
covering such Shares at the time of receipt of such notice.
(c) The Company may require any Purchaser to furnish to the Company such
information regarding such Purchaser and such Purchaser's intended method of
distribution of the Shares as the Company may from time to time reasonably
request in writing, but only to the extent that such information is required in
order to comply with the Securities Act. Each Purchaser agrees to notify the
Company as promptly as practicable of any inaccuracy or change in information
previously furnished by such Purchaser to the Company or of the occurrence of
any event in either case as a result of which any prospectus relating to such
registration contains or would contain an untrue statement of a material fact
regarding such Purchaser or such Purchaser's intended method of distribution of
such Shares or omits to state any material fact regarding such Purchaser or such
Purchaser's intended method of distribution of such Shares required to be stated
therein or necessary to make the statements therein not misleading in light of
the circumstances then existing, and promptly to furnish to the Company any
additional information required to correct and update any previously furnished
information or required so that such prospectus shall not contain, with respect
to such Purchaser or the distribution of such Shares, an 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 not misleading in light of the
circumstances then existing. Each Purchaser agrees that upon delivering any
notice to the Company pursuant to this Section 3(c), such Purchaser shall
forthwith discontinue the disposition of Shares pursuant to the registration
statement applicable to such Shares until such
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Purchaser shall have received copies of such amended or supplemented prospectus,
and if so directed by the Company, such Purchaser shall deliver to the Company
(at the Company's expense) all copies, other than permanent file copies then in
such Purchaser's possession of the prospectus covering such Shares at the time
of receipt of such notice.
4. Registration Expenses.
The Company agrees to bear and to pay or cause to be paid promptly upon
request being made therefor all expenses incident to the Company's performance
of or compliance with these Registration Rights as they relate to the Shelf
Registration, including, without limitation, (i) all Commission and any NASD
registration and filing fees and expenses, (ii) all fees and expenses in
connection with the qualification of the Shares for offering and sale under the
State securities and blue sky laws referred to in Section 3(a)(ix) hereof,
including reasonable fees and disbursements of counsel for the placement or
sales agent or underwriters in connection with such qualifications, (iii) all
fees and expenses in connection with the approval for trading of the Shares on
the Nasdaq National Market, (iv) all expenses relating to the preparation,
printing, distribution and reproduction of each registration statement required
to be filed hereunder, each prospectus included therein or prepared for
distribution pursuant hereto, each amendment or supplement to the foregoing, the
certificates representing the Shares and all other documents relating hereto,
(v) internal expenses (including, without limitation, all salaries and expenses
of the Company's officers and employees performing legal or accounting duties),
and (vi) fees, disbursements and expenses of counsel and independent certified
public accountants of the Company (including the expenses of any opinions or
"cold comfort" letters required by or incident to such performance and
compliance) (collectively, the "Registration Expenses"). Notwithstanding the
foregoing, such Purchaser shall pay all agency fees and commissions and
underwriting discounts and commissions attributable to the sale of the Shares
and the fees and disbursements of any counsel or other advisors or experts
retained by such Purchaser in connection with the sale of its shares.
5. Representations and Warranties.
The Company represents and warrants to, and agrees with, each Purchaser
that:
(a) Each registration statement covering Shares and each prospectus
(including any preliminary or summary prospectus) contained therein or furnished
pursuant to Section 3(a)(viii) hereof and any further amendments or supplements
to any such registration statement or prospectus, when it becomes effective or
is filed with the Commission, as the case may be, and, in the case of an
underwritten offering of Shares, at the time of the closing under the
underwriting agreement relating thereto will conform in all material respects to
the requirements of the Securities Act, and will not contain an 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 not misleading; and at all
times subsequent to the Effective Time when a prospectus would be required to be
delivered under the Securities Act, other than from (i) such time as a notice
has been give to such Purchaser pursuant to Section 3(a)(v)F) hereof until (ii)
such time as the Company furnishes an amended or supplemented prospectus
pursuant to Section 3(b) hereof, each such registration statement, and each
prospectus
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(including any summary prospectus) contained therein or furnished pursuant to
Section 3(a)(viii) hereof, as then amended or supplemented, will conform in all
material respects to the requirements of the Securities Act, and will not
contain an 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 not
misleading in the light of the circumstances then existing; provided, however,
that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished in
writing to the Company by such Purchaser expressly for use therein.
(b) Any documents incorporated by reference in any prospectus referred to
in Section 5(a) hereof, when they become or became effective or are or were
filed with the Commission, or if amended, when amended, as the case may be, will
conform or conformed in all material respects to the requirements of the
Exchange Act, and none of such documents will contain or contained an untrue
statement of a material fact or will omit or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by such Purchaser expressly
for use therein.
6. Indemnification.
(a) Indemnification by the Company. Upon the registration of Shares
pursuant to Section 2 hereof, and in consideration of the agreements of the
Purchasers contained herein, and as an inducement to the Purchasers to purchase
the Convertible Notes, the Company shall, and it hereby agrees to, indemnify and
hold harmless each Purchaser and each person who participates as a placement or
sales agent or as an underwriter in any offering or sale of such Shares against
any losses, claims, damages or liabilities, joint or several, to which such
Purchaser or any such agent or underwriter 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 an
untrue statement or alleged untrue statement of a material fact contained in any
registration statement under which such Shares were registered under the
Securities Act, or any preliminary, final or summary prospectus contained
therein or furnished by the Company to such Purchaser, agent or underwriter, or
any amendment or supplement 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, and
the Company shall, and it hereby agrees to, reimburse such Purchaser, such agent
and such underwriter for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that the Company shall not be liable
to any such Person in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in such
registration statement or preliminary, final or summary prospectus, or amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company by such Person expressly for use therein; provided
further, however, that the Company shall not be liable to any such Person if
such Person failed to deliver a prospectus in the form most recently provided by
the Company (including any amendments or supplements thereto previously provided
by the
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Company), in any such case to the extent that any loss, claim, damage or
liability arises out of or is based upon an untrue statement or an omission
which was corrected in such most recently furnished prospectus (including any
such amendments or supplements).
(b) Indemnification by the Purchaser and any Agents and Underwriters. The
Company may require, as a condition to including any Shares in any registration
statement filed pursuant to Section 2 hereof and to entering into an
underwriting agreement, if any, with respect thereto, that the Company shall
have received an undertaking reasonably satisfactory to it from each
participating Purchaser and from each underwriter, if any, named in any such
underwriting agreement, severally and not jointly or jointly and severally, to
(i) indemnify and hold harmless the Company against any losses, claims, damages
or liabilities to which the Company 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 an untrue statement or
alleged untrue statement of a material fact contained in such registration
statement, or any preliminary, final or summary prospectus contained therein or
furnished by the Company to any Purchaser, agent or underwriter, or any
amendment or supplement 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, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon and
in conformity with written information furnished to the Company by such
Purchaser or underwriter expressly for use therein, and (ii) reimburse the
Company for any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such action or claim as such
expenses are incurred. Notwithstanding the above, the obligation of such
Purchaser for indemnity shall be limited to an amount equal to the net proceeds
received by such Purchaser in the applicable underwriting.
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified party
under subsection (a) or (b) above of written notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is to be
made against an indemnifying party pursuant to the indemnification provisions of
or contemplated by this Section 6, notify such indemnifying party in writing of
the commencement of such action; but the omission so to notify the indemnifying
party shall not relieve it from any liability which it may have to any
indemnified party other than under the indemnification provisions of or
contemplated by Section 6(a) or 6(b) hereof. In case any such action shall be
brought against any indemnified party and it shall notify an indemnifying party
of the commencement thereof, such indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, such indemnifying party shall not be
liable to such indemnified party for any legal expenses of other counsel or any
other expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of investigation
unless, in the case of an indemnification obligation arising under Section (a),
(i) the employment of such additional counsel has been authorized in writing by
the Company in connection with defending such action,
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or (ii) the Company and the Purchaser are advised by such additional counsel
that the Purchaser has available defenses involving a potential conflict with
the interests of the Company, in which event, the fees and expenses of such
additional counsel shall be borne by the Company. No indemnifying party shall
consent to entry of any judgment or enter into any settlement of a claim against
an indemnified party without the consent of the indemnified party which does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to such indemnified party of an unconditional release from all liability in
respect to such claim or litigation.
(d) Contribution. Each party hereto agrees that, if for any reason the
indemnification provisions contemplated by Section 6(a) or Section 6Co) are
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, claims, damages or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by indemnified party on
the one hand and the indemnifying party on the other from any offering of the
Shares. If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law or if the indemnified party failed
to give the notice required under subsection (c) above, then each indemnifying
party shall contribute to such amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the indemnifying party and the indemnified party
in connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and each Purchaser on the other shall be deemed to be in
the same proportion as the total purchase price received by the Company upon
issuance of the Convertible Note bears to the difference between the proceeds
from the offering of the Shares received by such Purchaser and such purchase
price. The relative fault of such indemnifying party and indemnified party shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by such indemnifying party or by
such indemnified party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The parties hereto agree that it would not be just and equitable if
contributions pursuant to this Section 6(d) were determined by pro rata
allocation (even if any Purchaser or any agents or underwriters or all of them
were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to in this Section 6(d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, or liabilities (or actions in respect
thereof) referred to above shall be deemed to include any legal or other fees or
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6(d), no Purchaser shall be required to contribute
any amounts in excess of the amount by which the dollar amount of the proceeds
received by such Purchaser from the sale of any Shares (after deducting any
fees, discounts and commissions applicable thereto) exceeds the amount of any
damages which such Purchaser has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission, and no
underwriter shall be required to contribute any amount in excess of the amount
by
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which the total price at which the Shares underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11 (f) of the
Securities Act) shall be entitled to contribute from any person who was not
guilty of such fraudulent misrepresentation. Any underwriters' obligations in
this Section 6(d) to contribute shall be several in proportion to the principal
amount of Shares underwritten by them and not joint.
(e) The obligations of the Company under this Section 6 shall be in
addition to any liability which the Company may otherwise have and shall emend,
upon the same terms and conditions, to each officer, director and partner of
each Purchaser, any agent and any underwriter and each person, if any, who
controls such Purchaser or any agent or underwriter within the meaning of the
Securities Act; and the obligations of each Purchaser and any agents and
underwriters contemplated by this Section 6 shall be in addition to any
liability which such Purchaser or any such agent or underwriter, respectively,
may otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company (including any person who, with his consent,
is named in any registration statement as about to become a director of the
Company) and to each person, if any, who controls the Company within the meaning
of the Securities Act.
7. Miscellaneous
(a) No Inconsistent Agreements. The Company represents, warrants, covenants
and agrees that it has not granted, and shall not grant, registration rights
with respect to Shares or any other securities which would conflict with the
terms contained in these Registration Rights.
(b) Specific Performance. The parties hereto acknowledge that there may be
no adequate remedy at law if any party fails to perform any of its obligations
hereunder and that each party may be irreparably harmed by any such failure, and
accordingly agree that each party, in addition to any other remedy to which it
may be entitled at law or in equity, shall be entitled to compel specific
performance of the obligations of any other party under the Registration Rights
in accordance with the terms and conditions of these Registration Rights, in any
court of the United States or any State thereof having jurisdiction.
(c) Notices. Any notice or other communication required or permitted to be
given hereunder shall be deemed effectively given when personally delivered,
telexed, transmitted by facsimile or mailed by pre-paid certified mail, return
receipt requested, or by telephone when confirmed in writing by one of the
preceding methods addressed as follows (as applicable):
If to the Company, to:
Celgene Corporation
0 Xxxxxx Xxxx Xxxxx
Xxxxxx, XX 00000
12
Attention: Xxxx X. Xxxxxxx
Telephone Number: (000) 000-0000
Facsimile Transmission Number: (000) 000-0000
with a copy to:
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Telephone Number: (000) 000-0000
Facsimile Transmission Number: (000) 000-0000
If to Purchasers, to the Person designated by Purchaser and at
the address as set forth on Schedule I in the Note Purchase
Agreement dated the date hereof between the Purchasers and the
Company
with a copy to:
Xxxxxx, Hall & Xxxxxxx
Exchange Place
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx, Xx.
Telephone Number: (000) 000-0000
Facsimile Transmission Number: (000) 000-0000
or to such other address or number and to the attention of such other person as
either party may designate by written notice to the other party. Notice shall be
effective upon actual receipt.
(d) Survival. The respective indemnities, agreements, representations,
warranties and each other provision set forth in these Registration Rights or
made pursuant hereto shall remain in full force and effect regardless of any
investigation (or statement as to the results thereof) made by or on behalf of
each Purchaser, any director, officer or partner of such Purchaser, any agent or
underwriter or any director, officer or partner thereof, or any controlling
person of any of the foregoing and shall survive the transfer of the Shares by
such Purchaser.
(e) Law Governing. These Registration Rights shall be governed by and
construed in accordance with the laws of the State of New York.
(f) Headings. The descriptive headings of the several Sections and
paragraphs of these Registration Rights are inserted for convenience only, do
not constitute a part of these
13
Registration Rights and shall not affect in any way the meaning or
interpretation of these Registration Rights.
(g) Entire Agreement; Amendments. These Registration Rights and the other
writings referred to herein or delivered pursuant hereto which form a part
hereof contain the entire understanding of the parties with respect to its
subject matter. These Registration Rights supersede all prior agreements and
understandings between the parties with respect to its subject matter. These
Registration Rights may be amended and the observance of any term of these
Registration Rights may be waived (either generally or in a particular instance
and either retroactively or prospectively) only be a written instrument duly
executed by the Company and each Purchaser.
(h) Assignment. In connection with any permitted transfer of the
Convertible Note or any portion thereof in a principal amount of not less than
$100,000 any Purchaser may assign its rights hereunder in respect of such
Convertible Note to the transferee. Upon such assignment the transferee shall,
insofar as the transferred Convertible Notes are concerned, be entitled to all
of the rights, and be subject to all of the obligations, of a Purchaser under
these Registration Rights, and all references to such "Purchaser" herein shall
thereafter be deemed to refer to the Purchaser, or such transferee, or both, as
the circumstances warrant.
(i) Counterparts. This agreement may be executed by the parties
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
[the remainder of this page is intentionally left blank]
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[Signature Page of Registration Rights Agreement]
Agreed to and accepted as of the date referred to above.
CELGENE CORPORATION
By:
---------------------------------
Name: Xxxxxx X. Hugin
-------------------------------
Title: Senior Vice President & CFO
------------------------------
XXXX XXXXXXX MUTUAL LIFE INSURANCE COMPANY
By:
---------------------------------
Name:. Xxxxxxx X. Xxxxxxx
-------------------------------
Title: Senior Investment Officer
------------------------------
XXXX XXXXXXX VARIABLE LIFE INSURANCE COMPANY
By:
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
-------------------------------
Title: Senior Investment Officer
------------------------------
XXXXXXX MEZZANINE PARTNERS L.P.
By: Xxxxxxx Mezzanine Investments LLC, its General Partner
By: Xxxx Xxxxxxx Mutual Life Insurance Company.
as Investment Manager
By:
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
--------------------------------
Title: Senior Investment Officer
-------------------------------
Exchange.3019985.2
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