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|DC_DOCS\96018.1||
PERIMMUNE HOLDINGS, INC.
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
Dated as of December 22, 1997
PERIMMUNE HOLDINGS, INC.
0000 Xxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000
This Amended and Restated Registration Rights Agreement
("Agreement") is made and entered into as of December 22, 1997,
by and among PerImmune Holdings, Inc., a Delaware corporation
(the "Company"), and the stockholder of the Company who is a
signatory hereto (the "Investor").
WHEREAS, the Company and the Investor entered into that
certain Registration Rights Agreement dated as of June 16, 1997
in connection with that certain Stock Purchase Agreement dated as
of June 16, 1997 (the "June Stock Purchase Agreement"), pursuant
to which the Investor purchased 20 shares of Series B Convertible
Preferred Stock, par value $0.01.
WHEREAS, the Company and the Investor have entered into
that certain Stock Purchase Agreement dated as of the date hereof
(the "December Stock Purchase Agreement"), pursuant to which the
Investor purchased 100 shares of Series B Convertible Preferred
Stock, par value $0.01.
WHEREAS, the Company desires to grant the same
registration rights it granted to the Investor in respect of the
shares purchased pursuant to the June Stock Purchase Agreement,
to such Investor in respect of the shares purchased pursuant to
the December Stock Purchase Agreement.
Accordingly, in consideration of the foregoing and of
the mutual promises, covenants and conditions set forth below,
the parties hereby agree as follows:
1. Definitions
As used in this Agreement, the following capitalized
terms shall have the following meanings:
Board of Directors: The Board of Directors of the
Company.
Claim: Any loss, claim, damages, liability or
expense (including the reasonable costs of
investigation and legal fees and expenses).
Common Stock: The common stock, par value $0.01 per
share, of the Company.
Equity Security: Any capital stock of the Company or
any security convertible, with or without consideration,
into any such stock, or any security carrying any warrant or
right to subscribe to or purchase any such stock, or any
such warrant or right.
Exchange Act: The Securities Exchange Act of 1934, as
from time to time amended.
Firm Commitment Underwritten Offering: An offering in
which the underwriters agree to purchase securities for
distribution pursuant to a registration statement under the
Securities Act and in which the obligation of the
underwriters is to purchase all the securities being offered
if any are purchased.
Holder: The beneficial owner of a security. For all
purposes of this Agreement, the Company shall be entitled to
treat the record owner of a security as the beneficial owner
of such security unless the Company has been given written
notice of the existence and identity of a different
beneficial owner.
Indemnified Holder: Any Holder of Registrable
Securities, any officer, director, employee or agent of any
such Holder and any Person who controls any such Holder
within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act.
Misstatement: An untrue statement of a material fact or
an omission to state a material fact required to be stated
in a Registration Statement or Prospectus or necessary to
make the statements in a Registration Statement, Prospectus
or preliminary prospectus not misleading.
Person: A natural person, partnership, corporation,
business trust, association, joint venture or other entity
or a government or agency or political subdivision thereof.
Piggyback Registration: A registration pursuant to
Section 2 hereof.
Preferred Stock: The Series B Convertible Preferred
Stock, par value $0.01 per share, issued and sold pursuant
to the Stock Purchase Agreements (as defined herein).
Prospectus: The prospectus included in any Registration
Statement, as supplemented by any and all prospectus
supplements and as amended by any and all post-effective
amendments and including all material incorporated by
reference in such prospectus.
Qualifying IPO: The first registered, underwritten
public offering of shares of Common Stock by the Company.
Registrable Securities: (a) The shares of Common Stock
held by the Investor, and (b) any securities issued or
issuable with respect to such Common Stock by way of a stock
dividend or stock split or in connection with a combination
of shares, recapitalization, merger, consolidation or
reorganization; provided that any such share or other
security shall be deemed to be Registrable Securities only
if and so long as it is a Transfer Restricted Security.
Registration: A Piggyback Registration.
Registration Expenses: The out-of-pocket expenses of a
Registration, including:
(1) all registration and filing fees (including fees with
respect to filings required to be made with the National
Association of Securities Dealers);
(2) fees and expenses of compliance with securities or blue sky
laws (including fees and disbursements of counsel for the
underwriters or selling holders in connection with blue sky
qualifications of the Registrable Securities and determinations
of their eligibility for investment under the laws of such
jurisdictions as the managing underwriters or holders of a
majority of the Registrable Securities being sold may designate);
(3) printing, messenger, telephone and delivery expenses;
(4) fees and disbursements of counsel for the Company, counsel
for the underwriters and of not more than one firm of attorneys
for the sellers of the Registrable Securities (the attorneys for
such sellers to be determined by a vote of the majority of the
aggregate shares of Registrable Securities requested to be
included in the Registration Statement for such Registration);
(5) fees and disbursements of all independent certified public
accountants of the Company incurred in connection with such
Registration (including the expenses of any special audit and
"cold comfort" letters incident to such registration);
(6) fees and disbursements of underwriters (excluding discounts,
commissions or fees of underwriters, selling brokers, dealer
managers or similar securities industry professionals relating to
the distribution of the Registrable Securities);
(7) premiums and other costs of securities acts liability
insurance if the Company so desires or if the underwriters or
selling holders of Registrable Securities so require; and
(8) fees and expenses of any other Persons retained by the
Company.
Registration Statement: Any registration statement
under the Securities Act on an appropriate form (which form
shall be available for the sale of the Registrable
Securities in accordance with the intended method or methods
of distribution thereof and shall include all financial
statements required by the SEC to be filed therewith) which
covers Registrable Securities pursuant to the provisions of
this Agreement, including the Prospectus included in such
registration statement, amendments (including post-effective
amendments) and supplements to such registration statement,
and all exhibits to and all material incorporated by
reference in such registration statement.
Securities Act: The Securities Act of 1933, as from
time to time amended.
SEC: The Securities and Exchange Commission.
Stock Purchase Agreements: The June Stock Purchase
Agreement and the December Stock Purchase Agreement.
Transfer Restricted Security: A security that has not
been sold to or through a broker, dealer or underwriter in a
public distribution or other public securities transaction
or sold in a transaction exempt from the registration and
prospectus delivery requirements of the Securities Act under
Rule 144 promulgated thereunder (or any successor rule).
The foregoing notwithstanding, a security shall remain a
Transfer Restricted Security until (i) all stop transfer
instructions or notations and restrictive legends with
respect to such security have been lifted or removed and
(ii) the Holder of such security has received at Company
expense an opinion of counsel to the Company (which counsel
and opinion are reasonably satisfactory to such Holder), to
the effect that such shares in such Holder's hands are
freely transferable in any public or private transaction
without registration under the Securities Act (or such
Holder has waived receipt of such opinion).
Underwritten Registration or Underwritten Offering: A
registration in which securities of the Company are sold to
an underwriter for distribution to the public.
2. Piggyback Registrations
(a) Participation
Each time the Company decides to file a Registration
Statement under the Securities Act (other than on Forms S-4 or S-
8 or any successor form thereto and other than in connection with
a Qualifying IPO) covering the offer and sale by it or any of its
security holders of any of its securities for money, the Company
shall give written notice thereof to all Holders of outstanding
Registrable Securities, which written notice shall state that the
Company has decided to so file a registration statement and shall
include the approximate date that such registration statement is
expected to be filed with the SEC and the name of any underwriter
(if any) with respect to such offering. The Company shall
include in such registration statement such shares of Registrable
Securities for which it has received written requests to register
such shares within 30 days after such written notice has been
given. If the registration statement is to cover an Underwritten
Offering, such Registrable Securities shall be included in the
underwriting on the same terms and conditions as the securities
otherwise being sold through the underwriters.
(b) Underwriter's Cutback
Subject to the requirements of Section 10 hereof, if in
the good faith judgment of the managing underwriter of such
offering the inclusion of all of the shares of Registrable
Securities and any other Common Stock requested to be registered
would interfere with the successful marketing of a smaller number
of such shares, then the number of shares of Registrable
Securities and other Common Stock to be included in the offering
shall be reduced to such smaller number with the participation in
such offering to be in the following order of priority: (1)
first, the shares of Common Stock which the Company proposes to
sell for its own account, (2) second, the shares of Registrable
Securities and any other shares of Common Stock requested to be
included. Any necessary allocation among the Holders of shares
within each of the foregoing groups shall be pro rata among such
Holders requesting such registration based upon the number of
shares of Common Stock and Registrable Securities owned by such
Holders.
(c) Company Control
The Company may decline to file a Registration
Statement after giving notice to any Holder pursuant to Section
3(a) above, or withdraw a Registration Statement after filing and
after such notice, but prior to the effectiveness thereof,
provided that the Company shall promptly notify each Holder in
writing of any such action and provided further that the Company
shall bear all expenses incurred by such Holder or otherwise in
connection with such withdrawn Registration Statement.
3. Hold-Back Agreements
Upon the written request of the managing underwriter of
any Underwritten Offering of the Company's securities, a Holder
of Registrable Securities shall not sell, make any short sale of,
loan, grant any option for the purchase of, or otherwise dispose
of any Registrable Securities (other than those included in such
registration) without the prior written consent of such managing
underwriter for a period (not to exceed 30 days before the
effective date and 180 days thereafter) that such managing
underwriter reasonably determines is necessary in order to effect
the underwritten public offering; provided that each of the
officers and directors of the Company shall have entered into
substantially similar holdback agreements with such managing
underwriter covering at least the same period.
4. Registration Procedures
If and whenever the Company is required to register
Registrable Securities in a Piggyback Registration, the Company
will use its best efforts to effect such registration to permit
the sale of such Registrable Securities in accordance with the
intended plan of distribution thereof, and pursuant thereto the
Company will as expeditiously as possible:
a) prepare and file with the SEC as soon as practicable a
Registration Statement with respect to such Registrable
Securities and use its best efforts to cause such Registration
Statement to become effective and remain continuously effective
until the date earlier to occur of (i) the date six months from
the date such Registration Statement was declared effective, and
(ii) the date the last of the Registrable Securities covered by
such Registration Statement have been sold provided that before
filing a Registration Statement or Prospectus or any amendments
or supplements thereto, the Company shall furnish to the Holders
of the Registrable Securities covered by such Registration
Statement and the underwriters, if any, draft copies of all such
documents proposed to be filed, which documents will be subject
to the review of such Holders and underwriters, and the Company
shall not file any Registration Statement or amendment thereto or
any Prospectus or any supplement thereto to which the Holders of
a majority of the Registrable Securities covered by such
Registration Statement or the underwriters, if any, shall
reasonably object;
b) prepare and file with the SEC such amendments and post-
effective amendments to the Registration Statement, and such
supplements to the Prospectus, as may be requested by any Holder
of Registrable Securities or any underwriter of Registrable
Securities or as may be required by the rules, regulations or
instructions applicable to the registration form used by the
Company or by the Securities Act or rules and regulations
thereunder to keep the Registration Statement effective until all
Registrable Securities covered by such Registration Statement are
sold in accordance with the intended plan of distribution set
forth in such Registration Statement or supplement to the
Prospectus;
c) promptly notify the selling Holders of Registrable
Securities and the managing underwriter, if any, and (if
requested by any such Person) confirm such advice in writing,
(1) when the Prospectus or any supplement or post-effective
amendment has been filed, and, with respect to the Registration
Statement or any post-effective amendment, when the same has
become effective,
(2) of any request by the SEC for amendments or supplements to
the Registration Statement or the Prospectus or for additional
information,
(3) of the issuance by the SEC of any stop order suspending the
effectiveness of the Registration Statement or the initiation of
any proceedings for that purpose,
(4) if at any time the representations and warranties of the
Company contemplated by clause (1) of paragraph (o) below cease
to be accurate in all material respects,
(5) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Registrable
Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, and
(6) of the existence of any fact which results in the
Registration Statement, the Prospectus or any document
incorporated therein by reference containing a Misstatement;
d) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of the Registration Statement
at the earliest possible time;
e) if requested by the managing underwriter or a Holder of
Registrable Securities being sold in connection with an
Underwritten Offering, immediately incorporate in a supplement or
post-effective amendment such information as the managing
underwriter and the Holders of a majority of the Registrable
Securities being sold agree should be included therein relating
to the sale of the Registrable Securities, including, without
limitation, information with respect to the number of shares of
Registrable Securities being sold to underwriters, the purchase
price being paid therefor by such underwriters and with respect
to any other terms of the Underwritten Offering of the
Registrable Securities to be sold in such offering; and make all
required filings of such supplement or post-effective amendment
as soon as notified of the matters to be incorporated in such
supplement or post-effective amendment;
f) promptly prior to the filing of any document which is to be
incorporated by reference into the Registration Statement or the
Prospectus (after initial filing of the Registration Statement)
provide copies of such document to counsel to the selling Holders
of Registrable Securities and to the managing underwriter, if
any, and make the Company's representatives available for
discussion of such document and make such changes in such
document prior to the filing thereof as counsel for such selling
Holders or underwriters may reasonably request;
g) furnish to each selling Holder of Registrable Securities and
the managing underwriter, without charge, at least one signed
copy of the Registration Statement and any post-effective
amendments thereto, including financial statements and schedules,
all documents incorporated therein by reference and all exhibits
(including those incorporated by reference);
h) deliver to each selling Holder of Registrable Securities and
the underwriters, if any, without charge, as many copies of each
Prospectus (and each preliminary prospectus) as such Persons may
reasonably request (the Company hereby consenting to the use of
each such Prospectus (or preliminary prospectus) by each of the
selling Holders of Registrable Securities and the underwriters,
if any, in connection with the offering and sale of the
Registrable Securities covered by such Prospectus (or preliminary
prospectus);
i) prior to any public offering of Registrable Securities,
register or qualify or cooperate with the selling Holders of
Registrable Securities, the underwriters, if any, and their
respective counsel in connection with the registration or
qualification of such Registrable Securities for offer and sale
under the securities or blue sky laws of such jurisdictions as
such selling Holders or underwriters may designate in writing and
do anything else necessary or advisable to enable the disposition
in such jurisdictions of the Registrable Securities covered by
the Registration Statement; provided that the Company shall not
be required to qualify generally to do business in any
jurisdiction where it is not then so qualified or to take any
action which would subject it to general service of process in
any such jurisdiction where it is not then so subject;
j) cooperate with the selling Holders of Registrable Securities
and the managing underwriter, if any, to facilitate the timely
preparation and delivery of certificates not bearing any
restrictive legends representing the Registrable Securities to be
sold and cause such Registrable Securities to be in such
denominations and registered in such names as the managing
underwriter may request at least three business days prior to any
sale of Registrable Securities to the underwriters;
k) use its best efforts to cause the Registrable Securities
covered by the Registration Statement to be registered with or
approved by such other governmental agencies or authorities as
may be necessary to enable the seller or sellers thereof or the
underwriters, if any, to consummate the disposition of such
Registrable Securities;
l) if the Registration Statement or the Prospectus contains a
Misstatement, prepare a supplement or post-effective amendment to
the Registration Statement or the related Prospectus or any
document incorporated therein by reference or file any other
required document so that, as thereafter delivered to the
purchasers of the Registrable Securities, the Prospectus will not
contain a Misstatement;
m) cause all Registrable Securities covered by the Registration
Statement to be listed on any national securities exchange or
authorized for quotation on NASDAQ or in the National Market
System on which Common Stock is then listed or is authorized for
quotation, if requested by the Holders of a majority of such
Registrable Securities or the managing underwriter, if any;
n) provide a CUSIP number for all Registrable Securities not
later than the effective date of the Registration Statement;
o) enter into such agreements (including an underwriting
agreement) and do anything else necessary or advisable in order
to expedite or facilitate the disposition of such Registrable
Securities, and in such connection, whether or not the
registration is an Underwritten Registration:
(1) make such representations and warranties to the Holders of
such Registrable Securities and the underwriters, if any, in
form, substance and scope as are customarily made by issuers to
underwriters in primary Underwritten Offerings;
(2) obtain opinions of counsel to the Company and updates
thereof (which counsel and opinions (in form, scope and
substance) shall be reasonably satisfactory to the managing
underwriter, if any, and the Holders of a majority of the
Registrable Securities being sold) addressed to each selling
Holder and the underwriter, if any, covering the matters
customarily covered in opinions delivered to underwriters in
primary Underwritten Offerings and such other matters as may be
reasonably requested by such Holders or underwriters;
(3) obtain "cold comfort" letters and updates thereof from the
Company's independent certified public accountants addressed to
the selling Holders of Registrable Securities and the
underwriters, if any, such letters to be in customary form and
covering matters of the type customarily covered in "cold
comfort" letters by underwriters in connection with primary
Underwritten Offerings;
(4) if an underwriting agreement is entered into, cause the same
to include the indemnification and contribution provisions and
procedures of Section 6 hereof with respect to all parties to be
indemnified pursuant to said Section (or, with respect to the
indemnification of such underwriters, such similar
indemnification and contribution provisions as such underwriters
shall customarily require); and
(5) deliver such documents and certificates as may be requested
by the Holders of a majority of the Registrable Securities being
sold and the managing underwriter, if any, to evidence compliance
with clause (1) above and with any customary conditions contained
in the underwriting agreement or other agreement entered into by
the Company.
The above shall be done at each closing under such underwriting
or similar agreement or as and to the extent otherwise reasonably
requested by the Holders of a majority of the Registrable
Securities being sold;
p) make available for inspection by representatives of the
Holders of a majority of the Registrable Securities being sold,
any underwriter participating in any disposition pursuant to such
Registration Statement, and any attorney or accountant retained
by the sellers or any such underwriter, all financial and other
records and pertinent corporate documents and properties of the
Company, and cause the Company's officers, directors and
employees to supply all information reasonably requested by any
such representative, underwriter, attorney or accountant in
connection with the Registration; provided that any records,
information or documents that are designated by the Company in
writing as confidential shall be kept confidential by such
Persons unless disclosure of such records, information or
documents is required by court or administrative order; and
q) otherwise use its best efforts to comply with all applicable
rules and regulations of the SEC, and make generally available to
its security holders earnings statements satisfying the
provisions of Section 11(a) of the Securities Act, no later than
45 days after the end of any 12-month period (or 90 days, if such
period is a fiscal year) (x) commencing at the end of any fiscal
quarter in which Registrable Securities are sold to underwriters
in an Underwritten Offering, or, if not sold to underwriters in
such an offering, (y) beginning with the first month of the
Company's first fiscal quarter commencing after the effective
date of the Registration Statement, which statements shall cover
said 12-month periods.
Notwithstanding the foregoing, the Company shall, upon
written notice delivered to the Holders of Registrable
Securities, be entitled to postpone the filing or declaration of
effectiveness of a Registration Statement required or proposed to
be filed hereunder (i) upon the happening of any event of the
kind described in Section 4(c)(6), or (ii) if, in the reasonable
determination of the Company, there exists circumstances not yet
disclosed to the public, which would be required to be disclosed
in such Registration Statement and the disclosure of which would
be materially harmful to the Company. The Company shall use its
best efforts to minimize the length of any postponement or
discontinuance provided that the Company may postpone for a
period of sixty (60) days the disclosure of any circumstances if,
in the reasonable determination of the Company, such disclosure
would be materially harmful to the Company.
5. Registration Expenses
(a) Piggyback Registrations
The Company shall bear all Registration Expenses
incurred in connection with all Piggyback Registrations.
(b) Company Expenses
The Company also will, in any event, pay its internal
expenses (including, without limitation, all salaries and
expenses of its officers and employees performing legal or
accounting duties), the expense of any annual audit, the fees and
expenses incurred in connection with any listing of the
securities to be registered on a securities exchange, and the
fees and expenses of any Person, including special experts,
retained by the Company.
6. Indemnification
(a) Indemnification by the Company
The Company agrees to indemnify and hold harmless each
Indemnified Holder from and against all Claims arising out of or
based upon any Misstatement or alleged Misstatement, except
insofar as such Misstatement or alleged Misstatement was based
upon information furnished in writing to the Company by any
Indemnified Holder expressly for use in the document containing
such Misstatement or alleged Misstatement. This indemnity shall
not be exclusive and shall be in addition to any liability which
the Company may otherwise have.
The foregoing notwithstanding, the Company shall not be
liable to the extent that any such Claim arises out of or is
based upon a Misstatement or alleged Misstatement made in any
preliminary prospectus if (i) such Indemnified Holder failed to
send or deliver a copy of the Prospectus with or prior to the
delivery of written confirmation of the sale of Registrable
Securities giving rise to such Claim and (ii) the Prospectus
would have corrected such untrue statement or omission.
In addition, the Company shall not be liable to the
extent that any such Claim arises out of or is based upon a
Misstatement or alleged Misstatement in a Prospectus, (x) if such
Misstatement or alleged Misstatement is corrected in an amendment
or supplement to such Prospectus and (y) having previously been
furnished by or on behalf of the Company with copies of the
Prospectus as so amended or supplemented, such Indemnified Holder
thereafter fails to deliver such Prospectus as so amended or
supplemented prior to or concurrently with the sale to the person
who purchased a Registrable Security from such Indemnified Holder
and who is asserting such Claim.
The Company shall also indemnify underwriters, selling
brokers, dealer managers and similar securities industry
professionals participating in a distribution covered by a
Registration Statement, their officers and directors and each
Person who controls such Persons (within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act) to
the same extent as provided above with respect to the
indemnification of the Indemnified Holders of Registrable
Securities.
(b) Indemnification Procedures
If any action or proceeding (including any governmental
investigation or inquiry) shall be brought or asserted against an
Indemnified Holder in respect of which indemnity may be sought
from the Company, such Indemnified Holder shall promptly notify
the Company in writing, and the Company shall assume the defense
thereof, including the employment of counsel satisfactory to such
Indemnified Holder and the payment of all expenses.
Such Indemnified Holder 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 separate
counsel shall be the expense of such Indemnified Holder unless
(i) the Company has agreed to pay such fees and expenses, (ii)
the Company shall have failed to assume the defense of such
action or proceeding or has failed to employ counsel satisfactory
to such Indemnified Holder in any such action or proceeding or
(iii) the named parties to any such action or proceeding
(including any impleaded parties) include both such Indemnified
Holder and the Company, and such Indemnified Holder shall have
been advised by counsel that there may be one or more legal
defenses available to such Indemnified Holder that are different
from or additional to those available to the Company.
If such Indemnified Holder notifies the Company in
writing that it elects to employ separate counsel at the expense
of the Company as permitted by the provisions of the preceding
paragraph, the Company shall not have the right to assume the
defense of such action or proceeding on behalf of such
Indemnified Holder. The foregoing notwithstanding, the Company
shall not be liable for the reasonable fees and expenses of more
than one separate firm of attorneys at any time for such
Indemnified Holder and any other Indemnified Holders (which firm
shall be designated in writing by such Indemnified Holders) in
connection with any one such action or proceeding or separate but
substantially similar or related actions or proceedings in the
same jurisdiction arising out of the same general allegations or
circumstances.
The Company shall not be liable for any settlement of
any such action or proceeding effected without its written
consent, but if settled with its written consent, or if there be
a final judgment for the plaintiff in any such action or
proceeding, the Company agrees to indemnify and hold harmless
such Indemnified Holders from and against any loss or liability
by reason of such settlement or judgment.
(c) Indemnification by Holder of Registrable Securities
Each Holder of Registrable Securities agrees to
indemnify and hold harmless the Company, its directors and
officers and each Person, if any, who controls the Company within
the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act to the same extent as the foregoing
indemnity from the Company to such Holder, but only with respect
to information relating to such Holder furnished in writing by
such Holder expressly for use in any Registration Statement,
Prospectus or preliminary prospectus. In no event, however,
shall the liability hereunder of any selling Holder of
Registrable Securities be greater than the dollar amount of the
proceeds received by such Holder upon the sale of the Registrable
Securities giving rise to such indemnification obligation.
In case any action or proceeding shall be brought
against the Company or its directors or officers or any such
controlling person, in respect of which indemnity may be sought
against a Holder of Registrable Securities, such Holder shall
have the rights and duties given the Company and the Company or
its directors or officers or such controlling person shall have
the rights and duties given to each Holder by Sections 6(a) and
6(b) above.
The Company shall be entitled to receive indemnities
from underwriters, selling brokers, dealer managers and similar
securities industry professionals participating in the
distribution, to the same extent as provided above with respect
to information so furnished in writing by such Persons
specifically for inclusion in any Prospectus or Registration
Statement.
(d) Contribution
If the indemnification provided for in this Section 6
is unavailable to an indemnified party under Section 6(a) or
Section 6(c) above (other than by reason of exceptions provided
in those Sections) in respect of any Claims referred to in such
Sections, then each applicable 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 Claims in such proportion as is appropriate to reflect the
relative fault of the Company on the one hand and of the
Indemnified Holder on the other in connection with the statements
or omissions which resulted in such Claims as well as any other
relevant equitable considerations. The amount paid or payable by
a party as a result of the Claims referred to above shall be
deemed to include, subject to the limitations set forth in
Section 6(b), any legal or other fees or expenses reasonably
incurred by such party in connection with investigating or
defending any action or claim.
The relative fault of the Company on the one hand and
of the Indemnified Holder on the other shall be determined by
reference to, among other things, whether the Misstatement or
alleged Misstatement relates to information supplied by the
Company or by the Indemnified Holder and the parties' relative
intent, knowledge, access to information and opportunity to
correct or prevent such Misstatement or alleged Misstatement.
The Company and each Holder of Registrable Securities
agree that it would not be just and equitable if contribution
pursuant to this Section 6(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 above.
Notwithstanding the provisions of this Section 6(d), an
Indemnified Holder shall not be required to contribute any amount
in excess of the amount by which (i) the total price at which the
securities that were sold by such Indemnified Holder and
distributed to the public were offered to the public exceeds (ii)
the amount of any damages which such Indemnified Holder has
otherwise been required to pay by reason of such Misstatement.
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.
7. Exchange Act Reporting Requirements
From and after the effective date of the first
registration statement filed by the Company under the Securities
Act, the Company shall (whether or not it shall then be required
to do so) timely file such information, documents and reports as
the Commission may require or prescribe under Section 13 or 15(d)
(whichever is applicable) of the Exchange Act. In addition, the
Company shall take such other measures and file such other
information, documents and reports, as shall hereafter be
required by the Commission as a condition to the availability of
Rule 144 under the Securities Act (or any successor provision)
and the use of Form S-3.
From and after such date, the Company shall forthwith
upon request furnish any Holder of Registrable Securities (i) a
written statement by the Company that it has complied with such
reporting requirements, (ii) a copy of the most recent annual or
quarterly report of the Company, and (iii) such other reports and
documents filed by the Company with the Commission as such Holder
may reasonably request in availing itself of an exemption for the
sale of Registrable Securities without registration under the
Securities Act.
The purpose of the foregoing requirements are (x) to
enable any such Holder to comply with the current public
information requirements contained in paragraph (c) of Rule 144
under the Securities Act (or any successor provision) and (y) to
qualify the Company for the use of registration statements on
Form S-3.
8. Requirements for Participation in Underwritten Offerings
No Person may participate in any Underwritten Offering
pursuant to a Registration hereunder unless such Person (a)
agrees to sell such Person's securities on the basis provided in
any underwriting arrangements approved by the Persons entitled
hereunder to approve such arrangements and (b) completes and
executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the
terms of such underwriting arrangements.
9. Suspension of Sales
Upon receipt of written notice from the Company that
(i) a Registration Statement or Prospectus contains a
Misstatement, or (ii) in the reasonable determination of the
Company, there exists circumstances not yet disclosed to the
public which would be required to be disclosed in such
Registration Statement and the disclosure of which would be
materially harmful to the Company, each Holder of Registrable
Securities shall forthwith discontinue disposition of Registrable
Securities until such Holder has received copies of the
supplemented or amended Prospectus required by Section 4(1)
hereof, or until such Holder is advised in writing by the Company
that the use of the Prospectus may be resumed, and, if so
directed by the Company, such Holder shall deliver to the Company
(at the Company's expense) all copies, other than permanent file
copies then in such Holder's possession, of the Prospectus
covering such Registrable Securities current at the time of
receipt of such notice. The Company shall use its reasonable
best efforts to minimize the length of such suspension of sales,
provided, that the Company may require the suspension of sales
for a period of sixty (60) days in the event that the disclosure
of any circumstances, in the reasonable determination of the
Company would be materially harmful to the Company.
10. Miscellaneous
(a) Remedies
Each Holder of Registrable Securities, in addition to
being entitled to exercise all rights provided herein, in the
Stock Purchase Agreements and granted by law, including recovery
of damages, shall be entitled to specific performance of its
rights under this Agreement. The Company agrees that monetary
damages would not be adequate compensation for any loss incurred
by reason of a breach by it of the provisions of this Agreement
and hereby agrees to waive the defense in any action for specific
performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements
The Company shall not on or after the date of this
Agreement enter into any agreement with respect to its securities
that is inconsistent with the rights granted to the Holders of
Registrable Securities in this Agreement or otherwise conflicts
with the provisions hereof.
Except as otherwise disclosed to the Investor, the
Company has not previously entered into any agreement with
respect to its securities granting any registration rights to any
Person.
(c) Amendments and Waivers
The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or sup
plemented, and waivers or consents to departures from the
provisions hereof may not be given unless the Company has
obtained the written consent of the Holders of at least a
majority of the outstanding shares of Registrable Securities.
The foregoing notwithstanding, a waiver or consent to departure
from the provisions hereof that relates exclusively to the rights
of Holders of shares of Registrable Securities whose shares are
being sold pursuant to a Registration Statement and that does not
directly or indirectly affect the rights of other Holders of
shares of Registrable Securities may be given by the Holders of a
majority of the shares of Registrable Securities being sold.
(d) Notices
All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery,
registered first-class mail, telex, telecopier, or air courier
guaranteeing overnight delivery:
i) if to a Holder of Registrable Securities, at the most
current address given by such Holder to the Company in accordance
with the provisions hereof, which address initially is, with
respect to each Investor, the address set forth in Section 9.2(a)
of the June Stock Purchase Agreement, with a copy to Reicker,
Clough, Xxxx & Xxxx LLP, 0000 Xxxxx Xxxxxx, Xxxxx X, Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000-0000, Attention: Xxx Xxxxxxx, Esq.; and
ii) if to the Company, initially at its address set forth in
Section 9.2(b) of the June Stock Purchase Agreement and
thereafter at such other address, notice of which is given in
accordance with the provisions hereof, with a copy to with a
copy to Xxxxxx & Xxxxxxx, Xxxxxx & Xxxxxxx, 0000 Xxxxxxxxxxxx
Xxxxxx, X.X., Xxxxx 0000, Xxxxxxxxxx, X.X. 00000, Attention:
Xxxxx X. Xxxxxxxxx, Esq.
All such notices and communications shall be deemed to
have been duly given: at the time delivered by hand, if
personally delivered; five business days after being deposited in
the mail, postage prepaid, if mailed; when answered back, if
telexed; when receipt acknowledged, if telecopied; and on the
next business day, if timely delivered to an air courier
guaranteeing overnight delivery. The Company shall promptly
provide a list of the most current addresses of the Holders of
Registrable Securities given to it in accordance with the
provisions hereof to any such Holder for the purpose of enabling
such Holder to communicate with other Holders in connection with
this Agreement.
(e) Successors and Assigns
This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of each of the parties.
(f) Counterparts
This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same
agreement.
(g) Table of Contents and Headings
The table of contents and headings in this Agreement
are for convenience of reference only and shall not limit or
otherwise affect the meaning hereof.
(h) Governing Law
This Agreement shall be governed by and construed in
accordance with the laws of the State of Maryland.
(i) Severability
In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance,
is held invalid, illegal or unenforceable, the validity, legality
and enforceability of any such provision in every other respect
and of the remaining provisions contained herein shall not be
affected or impaired thereby.
(j) Forms
All references in this Agreement to particular forms of
registration statements are intended to include all successor
forms which are intended to replace, or to apply to similar
transactions as, the forms herein referenced.
(k) Entire Agreement
This Agreement and the Stock Purchase Agreements are
intended by the respective parties to those agreements as the
final expression of their respective agreement and are intended
to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject
matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or
referred to herein or therein with respect to the registration
rights granted by the Company with respect to the securities sold
pursuant to the Stock Purchase Agreements. This Agreement and
the Stock Purchase Agreements supersede all prior agreements and
understandings between the parties with respect to such subject
matter.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.
COMPANY:
PERIMMUNE HOLDINGS, INC.
By: /s/XXXXXXX X. XXXXX
Name:
Xxxxxxx X. Xxxxx
Title:
President
INVESTOR:
MENTOR CORPORATION
By: /s/XXXXXXXXXXX X. XXXXXX
Name:
Xxxxxxxxxxx X. Xxxxxx
Title:
Chairman, CEO
1. DEFINITIONS 1
2. PIGGYBACK REGISTRATIONS 5
(A) PARTICIPATION 5
(B) UNDERWRITER'S CUTBACK 5
(C) COMPANY CONTROL 6
3. HOLD-BACK AGREEMENTS 6
4. REGISTRATION PROCEDURES 6
5. REGISTRATION EXPENSES 11
(A) PIGGYBACK REGISTRATIONS 11
(B) COMPANY EXPENSES 11
6. INDEMNIFICATION 12
(A) INDEMNIFICATION BY COMPANY 12
(B) INDEMNIFICATION PROCEDURES 13
(C) INDEMNIFICATION BY HOLDER OF REGISTRABLE SECURITIES 13
(D) CONTRIBUTION 14
7. EXCHANGE ACT REPORTING REQUIREMENTS 15
8. REQUIREMENTS FOR PARTICIPATION IN UNDERWRITTEN OFFERINGS 16
9. SUSPENSION OF SALES 16
10. MISCELLANEOUS 16
(A) REMEDIES 16
(B) NO INCONSISTENT AGREEMENTS 17
(C) AMENDMENTS AND WAIVERS 17
(D) NOTICES 17
(E) SUCCESSORS AND ASSIGNS 18
(F) COUNTERPARTS 18
(G) TABLE OF CONTENTS AND HEADINGS 18
(H) GOVERNING LAW 18
(I) SEVERABILITY 18
(J) FORMS 19
(K) ENTIRE AGREEMENT 19
