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EXHIBIT 10.21
STANDSTILL AND REGISTRATION RIGHTS AGREEMENT
THIS AGREEMENT, dated as of June 28, 1996, is between PerSeptive
Biosystems, Inc. a Delaware corporation ("PBIO"), and ChemGenics Pharmaceuticals
Inc., a Delaware corporation (the "Company").
WITNESSETH:
WHEREAS on the date hereof, PBIO is acquiring 9,792,679 shares (the
"Shares") of Common Stock, par value $0.001 per share, of the Company (the
"Common Stock") and a warrant (the "Warrant") to purchase up to 4,896,335
additional shares of Common Stock (the "Warrant Shares") for investment purposes
pursuant to the terms of a Master Agreement, dated as of May 7, 1996 (the
"Master Agreement;" terms capitalized and not defined herein shall have the
meaning ascribed to them in the Master Agreement); and
WHEREAS the execution and delivery of this Agreement by the parties is
a condition precedent to the parties' obligations under the Master Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements set forth herein and for other good and valuable
consideration the receipt and sufficiency of which is hereby acknowledged, the
parties, intending to be legally bound hereby, agree as follows:
ARTICLE I
REPRESENTATIONS AND WARRANTIES
Section 1.01 PBIO represents and warrants to the Company as follows:
(a) PBIO has full legal right, power and authority to enter
into and perform this Agreement. The execution and delivery of this Agreement by
PBIO and the consummation by PBIO of the transactions contemplated hereby have
been duly authorized by all necessary corporate action on behalf of PBIO. This
Agreement is a valid and binding obligation of PBIO enforceable against PBIO in
accordance with its terms.
(b) Neither the execution and delivery of this Agreement by
PBIO nor the consummation by PBIO of the transactions contemplated hereby
conflicts with or constitutes a violation of or default under the charter or
by-laws of PBIO, any statute, law, regulation, order or decree applicable to
PBIO, or any contract, commitment, agreement, arrangement or restriction of any
kind to which PBIO is a party or by which PBIO is bound.
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Section 1.02 The Company represents and warrants to PBIO as follows:
(a) The Company has full legal right, power and authority to
enter into and perform this Agreement. The execution and delivery of this
Agreement by the Company and the consummation by the Company of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
on behalf of the Company. This Agreement is a valid and binding obligation of
the Company enforceable against the Company in accordance with its terms.
(b) Neither the execution and delivery of this Agreement by
the Company nor the consummation by the Company of the transactions contemplated
hereby conflicts with or constitutes a violation of or default under the charter
or by-laws of the Company, any statute, law, regulation, order or decree
applicable to the Company, or any contract, commitment, agreement, arrangement
or restriction of any kind to which the Company is a party or by which the
Company is bound.
ARTICLE II
LIMITATIONS AND RESTRICTIONS
Section 2.01. Restrictions on Certain Actions by PBIO. PBIO agrees that
until the tenth anniversary of this Agreement, PBIO will not, nor will it permit
any of its affiliates or associates (as such terms are used in Rule 12b-2 of the
Securities Exchange Act of 1934 (the "Exchange Act"), these terms to have such
meaning throughout this Agreement), unless in any such case specifically invited
to do so by the Board of Directors of the Company, to:
(a) acquire, announce an intention to acquire, offer or
propose to acquire, by purchase, by gift, by joining a partnership, limited
partnership, syndicate or other entity or "group" (as such term is used in
Section 13(d)(3) of the Exchange Act, such term to have such meaning throughout
this Agreement) or otherwise, any (i) assets, businesses or properties of the
Company other than in the ordinary course of business or pursuant to the express
terms of the Consulting and Interim Services Agreement and/or the License
Agreement between PBIO and the Company, each dated the date hereof, or (ii)
shares of Common Stock or any securities convertible into, exchangeable for or
exercisable for Common Stock, or any put, call, or other derivative security
related to the Common Stock (all such securities, collectively, "Voting
Securities"), provided, however, that this provision shall not prevent PBIO from
exercising either the Warrant or its rights pursuant to Section 5.06 of the
Master Agreement.
(b) participate in the formation or encourage the formation
of, or join or in any way participate with, any "person" (as such term is used
in Section 13(d)(3) of the Exchange
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Act and Section 2(2) of the Securities Act of 1933 (the "Securities Act"), such
term to have such meaning throughout this Agreement) which owns or seeks to
acquire beneficial ownership of Voting Securities;
(c) solicit, or participate in any "solicitation" of "proxies"
or become a "participant" in any "election contest" (as such terms are defined
or used in Regulation 14A under the Exchange Act, these terms to have such
meaning throughout this Agreement) with respect to the Company;
(d) initiate, propose or otherwise solicit stockholders for
the approval of one or more stockholder proposals with respect to the Company or
induce any other person to initiate any stockholder proposal;
(e) seek to place any representative on the Board of Directors
of the Company, or to prevent the election of any person to the Board of
Directors nominated and recommended by the Board of Directors, or to affect the
size of or composition of the Company's Board of Directors, or seek to have
called any meeting of the stockholders of the Company or seek any consent of
stockholders in lieu of a meeting, except that PBIO may cause the nomination of
individuals to the Company's Board of Directors pursuant to the PBIO Voting
Agreement of even date herewith;
(f) deposit any Voting Securities in a voting trust or, except
as specifically contemplated by this Agreement, the Master Agreement or the PBIO
Voting Agreement, subject them to a voting agreement or other agreement or
arrangement with respect to the voting of such Voting Securities;
(g) otherwise act, alone or in concert with others, to seek to
control the management, Board of Directors, policies or affairs of the Company
(except through PBIO's representative(s) on the Company's Board of Directors and
Executive Committee, if any, acting in their capacity as such) or solicit,
propose, seek to effect or negotiate with any other person (including, without
limitation, the Company) with respect to any form of business combination or
other extraordinary transaction with the Company or any of its subsidiaries or
any restructuring, recapitalization, similar transaction or other transaction
not in the ordinary course of business with respect to the Company or any of its
subsidiaries, solicit, make or propose or negotiate with any other person with
respect to, or announce an intent to make, any tender offer or exchange offer
for any securities of the Company or any of its subsidiaries, or publicly
disclose an intent, purpose, plan or proposal with respect to the Company, any
of its subsidiaries or any securities or assets of the Company or any of its
subsidiaries, that would violate the provisions of this Section 2.01, or assist,
participate in, facilitate or solicit any effort or attempt by any person to do
so or seek to do any of the foregoing; or
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(h) request the Company (or its directors, officers, employees
or agents) to amend or waive any provision of this Agreement (including, without
limitation, this Section 2.01(h)) or otherwise seek any modification to or
waiver of any of the agreements or obligations of PBIO, its affiliates or its
associates under this Agreement.
Section 2.02. Restrictions on Sales by PBIO. PBIO agrees that
until the third anniversary of this Agreement, it will not, nor will it permit
any of its affiliates or associates, to sell, solicit an offer to sell, agree to
sell, offer or propose to sell (collectively "Sell"), any Voting Securities of
the Company or derivative securities relating thereto ("Company Securities");
and thereafter (i) during the period commencing on June 29, 1999 and ending June
28, 2000 will not Sell any Company Securities other than up to 979,268 Shares
plus up to 10% of the Warrant Shares actually acquired by PBIO upon exercise of
the Warrant; (ii) during the period commencing on June 29, 2000 and ending June
28, 2001 will not Sell any Company Securities other than up to 1,958,536 Shares
plus (a) such number of Shares permitted to be sold in the prior year and not
sold and (b) up to an additional 20% of the Warrant Shares actually acquired by
PBIO upon exercise of the Warrant; or (iii) in any year thereafter will not Sell
any Company Securities other than up to 3,427,438 Shares plus up to 35% of the
Warrant Shares actually acquired by PBIO upon exercise of the Warrant; except as
follows:
(a) PBIO may transfer shares of the Company to a wholly-owned
subsidiary subject to all of the terms and conditions of this Agreement,
provided that PBIO maintains 100% ownership and voting control of such
subsidiary, such subsidiary executes a written agreement satisfactory to the
Company to evidence its agreement to be bound hereby, and the certificates for
any securities of such subsidiary are marked with a legend restricting the
transfer of such securities and specifically referring to this Agreement;
(b) Following the closing of the Company's initial public offering (the
"IPO") of common stock pursuant to a registration statement declared effective
by the Securities and Exchange Commission (the "Commission") during the
three-year period following the date hereof, if in the written opinion of PBIO's
independent public accountants PBIO must consolidate or include the Company's
profits and losses in its profit and loss statements unless PBIO reduces its
ownership to twenty percent (20%) or less of the Company's Common Stock, and the
aggregate amount of losses to be consolidated may reasonably exceed $100,000, in
order to avoid such consolidation or inclusion, PBIO shall be permitted to sell
or otherwise dispose of such minimum number of shares as is required to reduce
PBIO's ownership to the maximum percentage ownership, currently 19.99%, or such
lesser amount as may be required in the written opinion of such accountants, in
order to avoid such consolidation or inclusion;
(c) PBIO may sell its shares pursuant to a tender offer for all
outstanding shares of the Company's Common Stock approved by the Company's Board
of Directors; and
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(d) Without duplication of any of the shares permitted to be sold
pursuant to any of the other provisions of this Section 2.02, PBIO may sell all
or any part of the Warrant Shares actually acquired by PBIO upon exercise of the
Warrant pursuant to a resale of such shares in a registration contemplated by
Section 3.01, or on a Form S-3 Registration Statement as contemplated by Section
3.02(b) hereof.
Section 2.03. Voting. In connection with all matters subject
to the vote of security holders of the Company during the term of this
Agreement, as long as PBIO (alone or with its affiliates or associates)
beneficially owns (calculated in accordance with Rule 13d-3 promulgated under
the Exchange Act) at least twenty percent (20%) of the capital stock on a fully
diluted basis of the Company, PBIO shall, and shall direct its associates and
affiliates to, vote all the Voting Securities owned by them (a) in accordance
with the recommendation of the Company's Board of Directors with respect to such
matter, provided, however, that PBIO shall not be required to vote in favor of
any proposal that would materially impair its rights under this Agreement, the
Warrant, the Master Agreement or the License Agreement, or (b) in the absence of
a recommendation, in the same proportion as the votes cast by all other holders
of the Voting Securities with respect to such matter. As long as PBIO (alone or
with its affiliates or associates) beneficially owns less than twenty percent
(20%) and more than ten percent (10%) of the Company's voting stock on a fully
diluted basis, PBIO will vote in favor of (and take no actions in opposition to)
any merger, sale of assets, consolidation or the like involving the Company and
recommended by the Company's Board of Directors, and shall vote in favor of and
not oppose any proposed merger or sale of all or substantially all of the
outstanding shares of the Company's stock recommended by the Company's Board of
Directors. PBIO shall be entitled to rely upon the information provided to it in
writing by the Company or, in the absence thereof, filed by the Company with the
Commission, regarding the number of shares of capital stock outstanding and
issuable upon exercise or conversion of options, warrants or the other
securities.
ARTICLE III
REGISTRATION RIGHTS
Section 3.01. "Piggy-Back" Registrations. If at any time after
the IPO, the Company shall determine to register for its own account or the
account of others under the Securities Act (other than a registration demanded
by PBIO pursuant to Section 3.02 hereof) any of its equity securities, other
than on Form S-4 or Form S-8 or their then equivalents or otherwise relating to
shares of Common Stock to be issued in connection with any acquisition of any
entity or business or shares of Common Stock issuable in connection with stock
option or other employee benefit plans, it shall send to PBIO written notice of
such determination and, if within ten (10) business days after receipt of such
notice, PBIO shall so request in writing, the Company shall use its best efforts
to include in such registration statement all or any part
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of the Registrable Shares PBIO requests to be registered; provided, however,
that prior to the third anniversary of this Agreement, the Company shall not be
required to include in any such registration statement any shares other than
shares issued or issuable upon exercise of the Warrant ("Warrant Shares"), and
provided further that as a condition to including any Warrant Shares in such a
registration statement PBIO shall have either acquired such shares or
irrevocably agreed to acquire such shares upon the effectiveness of the
registration statement. As used in this Article III, the term "Registrable
Shares" shall include: (i) the Shares; (ii) any additional shares of Common
Stock acquired by PBIO pursuant to Section 5.06 of the Master Agreement and
(iii) any shares of Common Stock acquired by PBIO upon exercise of the Warrant.
If, in connection with any offering involving an underwriting, the
managing underwriter shall impose a limitation on the number of shares of Common
Stock which may be included in the registration statement because, in its
judgment, such limitation is necessary to effect an orderly public distribution,
then the Company shall be obligated to include in such registration statement
only such limited portion (which may be none) of the Registrable Shares with
respect to which PBIO has requested inclusion pursuant hereto as may reasonably
be determined by the managing underwriters; provided, that inclusion of any of
PBIO's Registrable Shares shall be subordinate to the currently existing
"piggyback" registration rights granted by the Company. Any inclusion of
Registrable Shares in an offering, when the managing underwriter has so limited
the number of shares that may be included in such offering, shall be allocated
as follows: first, pro rata among the holders of registration rights granted by
the Company prior to the date hereof seeking to include their shares, in
proportion to the number of shares of Common Stock (whether or not such shares
are sought to be included in such offering) held by such persons; and
thereafter, to PBIO. The Company shall have the right to withdraw any
registration initiated by it pursuant to this Section 3.01.
Section 3.02. Registrations on Form S-3. (a) In addition to
the rights provided PBIO in Section 3.01 above, if the registration of
Registrable Shares under the Securities Act can be effected on Form S-3 (or any
similar form promulgated by the Commission), then, at any time after the third
anniversary of this Agreement, upon the written request of PBIO, the Company
will use its best efforts to effect qualification and registration under the
Securities Act on Form S-3 of such portion of the Registrable Shares as PBIO
shall specify, up to the lesser of (i) twenty-five percent (25%) of the
Registrable Shares then held by PBIO, and (ii) the amount of Registrable Shares
then held by PBIO and permitted to be sold under Section 2.02 of this Agreement;
provided, however, the Company shall not be required to effect a registration
pursuant to this Section 3.02 unless the market value of the Registrable Shares
to be sold in any such registration shall be estimated to be at least $1,000,000
at the time of filing such registration statement, and further provided that the
Company shall not be required to effect more than one (1) registration during
any twelve (12) month period pursuant to this Section 3.02 and four (4)
registrations in the aggregate under this Section 3.02. No request for
registration
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under this Section 3.02 may be made within the one hundred and eighty day period
after the effective date of a registration statement filed by the Company or
while the Company is in the process of preparing a registration statement.
(b) In addition to the rights provided PBIO in Sections 3.01 and
3.02(a) above, if the registration of Registrable Shares under the Securities
Act can be effected on Form S-3 (or any similar form promulgated by the
Commission), then, on one occasion at any time upon the exercise of the Warrant
or delivery by PBIO to the Company of its irrevocable agreement to exercise the
Warrant (unless the per share price of the Shares on the date of the
effectiveness of the Registration Statement is 20% or more less than the price
on the date of such notice (a "20% Decline")) upon the effectiveness of the
registration statement contemplated by this Section 3.02(b), upon the written
request of PBIO, the Company will use its best efforts to effect qualification
and registration under the Securities Act on Form S-3 of such portion of the
Registrable Warrant Shares as PBIO shall have so acquired or agreed to acquire
and shall specify in writing to the Company; provided, however, (i) the Company
shall not be required to effect a registration pursuant to this Section 3.02(b)
unless the market value of the Registrable Shares to be sold in any such
registration shall be estimated to be at least $1,000,000 at the time of filing
such registration statement, (ii) the Company shall not be required to effect
more than one (1) registration under this Section 3.02(b) unless the Warrant is
not exercised as a result of a 20% Decline, in which event PBIO shall have the
right to request an additional registration under this Section 3.02(b) no
earlier than twelve months later, (iii) if a registration statement under this
Section 3.02(b) shall be in connection with a firm commitment underwriting, then
the underwriter shall be reasonably acceptable to the Company, (iv)
notwithstanding Section 3.07, PBIO shall pay directly or reimburse the Company
on demand for fifty percent (50%) of all reasonable costs and expenses of such
registration, including, but not limited to, the Company's printing, legal and
accounting fees and expenses, Commission and NASD filing fees and "blue sky"
fees and expenses, (v) no request for registration under this Section 3.02(b)
may be made within the one hundred and eighty day period after the effective
date of a registration statement filed by the Company or while the Company is in
the process of preparing a registration statement, and (vi) the Company shall
have the right to delay the filing or effectiveness of any registration under
this Section 3.02(b) for a period of up to ninety days if in the reasonable
determination of the Board of Directors of the Company the filing or
effectiveness of the registration statement would adversely affect a pending
financing of the Company, an acquisition, merger, recapitalization,
consolidation, reorganization or other similar transaction by or of the Company,
pre-existing and continuing negotiations, discussions or pending proposals with
respect to any of the foregoing transactions, or the financial condition of the
Company in view of the disclosure of any pending or threatened litigation,
claim, assessment or governmental investigation which may be required thereby.
Section 3.03 Effectiveness. The Company will use its best
efforts to maintain the effectiveness for up to 90 days, and up to two years in
the case of a registration pursuant to
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Section 3.02(b) pursuant to which PBIO has exercised the Warrant in accordance
with the first sentence thereof, (or in either case such shorter period of time
as the underwriters need to complete the distribution of a registered offering
or until the securities are actually sold) of any registration statement
pursuant to which any of the Registrable Shares are being offered, and from time
to time will amend or supplement such registration statement and the prospectus
contained therein to the extent necessary to comply with the Securities Act and
any applicable state securities statute or regulation. The Company will also
provide PBIO with as many copies of the prospectus contained in any such
registration statement as it may reasonably request. For a period not to exceed
ninety (90) days, the Company shall not be obligated to prepare and file, or be
prevented from delaying or abandoning, a registration statement pursuant to this
Agreement at any time when the Company, in its good faith judgment with advice
of counsel, reasonably believes:
(a) that the filing thereof at the time requested, or the
offering of Registrable Shares pursuant thereto, would materially and
adversely affect (a) a pending or scheduled public offering of the
Company's securities, (b) an acquisition, merger, recapitalization,
consolidation, reorganization or similar transaction by or of the
Company, (c) pre-existing and continuing negotiations, discussions or
pending proposals with respect to any of the foregoing transactions, or
(d) the financial condition of the Company in view of the disclosure of
any pending or threatened litigation, claim, assessment or governmental
investigation which may be required thereby; and
(b) that the failure to disclose any material information with
respect to the foregoing would cause a violation of the Securities Act
or the Exchange Act.
Section 3.04. Indemnification of PBIO. In the event that the
Company registers any of the Registrable Shares under the Securities Act, the
Company will indemnify and hold harmless PBIO and each underwriter of
Registrable Shares (including their officers, directors, affiliates and partners
and including any broker or dealer through whom Registrable Shares may be sold
in such registration) and each person, if any, who controls PBIO or any such
underwriter within the meaning of Section 15 of the Securities Act from and
against any and all losses, claims, damages, expenses or liabilities, joint or
several, to which they or any of them become subject under the Securities Act,
applicable state securities laws or under any other statute or at common law or
otherwise, as incurred, and, except as hereinafter provided, will reimburse
PBIO, each such underwriter and each such controlling person, if any, for any
legal or other expenses reasonably incurred by them or any of them in connection
with investigating or defending any actions whether or not resulting in any
liability, as incurred, insofar as such losses, claims, damages, expenses,
liabilities or actions arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the registration
statement, in any preliminary or amended preliminary prospectus or in the final
prospectus (or the registration statement or prospectus as from time to time
amended or supplemented by the
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Company) 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 in
order to make the statements therein not misleading, or any violation by the
Company of any rule or regulation promulgated under the Securities Act or any
state securities laws applicable to the Company and relating to action or
inaction required of the Company in connection with such registration, unless
(i) such untrue statement or alleged untrue statement or omission or alleged
omission was made in such registration statement, preliminary or amended
preliminary prospectus or final prospectus in reliance upon and in conformity
with information furnished in writing to the Company in connection therewith by
PBIO (in the case of indemnification of PBIO), any such underwriter (in the case
of indemnification of such underwriter) or any such controlling person (in the
case of indemnification of such controlling person) expressly for use therein,
or unless (ii) in the case of a sale directly by PBIO (including a sale of
Registrable Shares through any underwriter retained by PBIO to engage in a
distribution solely on behalf of PBIO), such untrue statement or alleged untrue
statement or omission or alleged omission was contained in a preliminary
prospectus and corrected in a final or amended prospectus copies of which were
delivered to PBIO or such underwriter on a timely basis, and PBIO failed to
deliver a copy of the final or amended prospectus at or prior to the
confirmation of the sale of the Registrable Shares to the person asserting any
such loss, claim, damage or liability in any case where such delivery is
required by the Securities Act.
Promptly after receipt by PBIO, any underwriter or any
controlling person of notice of the commencement of any action in respect of
which indemnity may be sought against the Company, PBIO, or such underwriter or
such controlling person, as the case may be, shall notify the Company in writing
of the commencement thereof (provided, that failure to so notify the Company
shall not relieve the Company from any liability it may have hereunder, except
to the extent prejudiced by such failure) and, subject to the provisions
hereinafter stated, the Company shall be entitled to assume the defense of such
action (including the employment of counsel, who shall be counsel reasonably
satisfactory to PBIO, such underwriter or such controlling person, as the case
may be) and the payment of expenses insofar as such action shall relate to any
alleged liability in respect of which indemnity may be sought against the
Company.
PBIO, any such underwriter or any such controlling person
shall have the right to employ separate counsel in any such action and to
participate in the defense thereof but the fees and expenses of such counsel
subsequent to any assumption of the defense by the Company shall not be at the
expense of the Company unless the employment of such counsel has been
specifically authorized in writing by the Company; provided, however, that, if
the defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be reasonable defenses available to it which are different from
or additional to those available to the indemnifying party or if the interests
of the indemnified party reasonably may be deemed to conflict with the interests
of the indemnifying party, the indemnified party shall have the right to select
a separate
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counsel and to assume such legal defenses and otherwise to participate in the
defense of such action, with the expenses and fees of such separate counsel and
other expenses related to such participation to be reimbursed by the
indemnifying party as incurred. At any time, PBIO may select separate counsel
and assume its own legal defense with the expenses and fees of such separate
counsel and other expenses related to such separate counsel to be borne by PBIO.
The Company shall not be liable to indemnify PBIO, any underwriter or any
controlling person for any settlement of any such action effected without the
Company's written consent (which consent shall not be unreasonably withheld or
delayed). The Company shall not, except with the approval of each party being
indemnified under this Section 3.04, 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 the parties being so indemnified of a
release from all liability in respect to such claim or litigation.
In order to provide for just and equitable contribution to
joint liability under the Securities Act in any case in which PBIO, or any
controlling person of PBIO, makes a claim for indemnification pursuant to this
Section 3.04 but it is judicially determined (by the entry of a final judgment
or decree by a court of competent jurisdiction and the expiration of time to
appeal or the denial of the last right of appeal) that such indemnification may
not be enforced in such case notwithstanding the fact that this Section 3.04
provides for indemnification in such case, then, the Company and PBIO will
contribute to the aggregate losses, claims, damages or liabilities to which they
may be subject (after contribution from others) in such proportion as is
appropriate to reflect the relative fault of the Company on the one hand and of
PBIO 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 on the one hand and
of PBIO on the other 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 the
Company on the one hand or by PBIO on the other, and each party's relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission; provided, however, that, in any such case, (A) PBIO
will not be required to contribute any amount in excess of the public offering
price of all Registrable Shares offered by it pursuant to such registration
statement; and (B) no person or entity guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) will be entitled to
contribution from any person or entity who was not guilty of such fraudulent
misrepresentation.
The indemnities provided in this Section 3.04 shall survive the
transfer of any Registrable Shares by PBIO.
Section 3.05 Indemnification of Company. In the event that the Company
registers any of the Registrable Shares under the Securities Act, PBIO will
indemnify and hold harmless the Company, each of its directors, each of its
officers who have signed or otherwise participated
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in the preparation of the registration statement, each underwriter of the
Registrable Shares so registered (including any broker or dealer through whom
such of the shares may be sold) and each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act from and against
any and all losses, claims, damages, expenses or liabilities, joint or several,
to which they or any of them may become subject under the Securities Act,
applicable state securities laws or under any other statute or at common law or
otherwise, and, except as hereinafter provided, will reimburse the Company and
each such director, officer, underwriter or controlling person for any legal or
other expenses reasonably incurred by them or any of them in connection with
investigating or defending any actions whether or not resulting in any
liability, insofar as such losses, claims, damages, expenses, liabilities or
actions arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the registration statement, in any
preliminary or amended preliminary prospectus or in the final prospectus (or in
the registration statement or prospectus as from time to time amended or
supplemented) 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 in
order to make the statements therein not misleading, but only insofar as any
such statement or omission was made in reliance upon and in conformity with
information furnished in writing to the Company in connection therewith by PBIO
expressly for use therein; provided, however, that PBIO's obligations hereunder
shall be limited to an amount equal to the proceeds received by PBIO for the
Registrable Shares sold in such registration.
Promptly after receipt of notice of the commencement of any
action in respect of which indemnity may be sought against PBIO, the Company
shall notify PBIO in writing of the commencement thereof (provided, that failure
to so notify PBIO shall not relieve PBIO from any liability it may have
hereunder, except to the extent prejudiced by such failure), and PBIO shall,
subject to the provisions hereinafter stated, be entitled to assume the defense
of such action (including the employment of counsel, who shall be counsel
reasonably satisfactory to the Company) and the payment of expenses insofar as
such action shall relate to the alleged liability in respect of which indemnity
may be sought against PBIO. The Company and each such director, officer,
underwriter or controlling person shall have the right to employ separate
counsel in any such action and to participate in the defense thereof, but the
fees and expenses of such counsel subsequent to any assumption of the defense by
PBIO shall not be at the expense of PBIO unless employment of such counsel has
been specifically authorized in writing by PBIO. PBIO shall not be liable to
indemnify any person for any settlement of any such action effected without
PBIO's written consent (which consent shall not be unreasonably withheld or
delayed).
In order to provide for just and equitable contribution to
joint liability under the Securities Act in any case in which the Company, its
officers, directors or controlling persons ("Company Indemnitees") exercising
its rights under this Article III, makes a claim for indemnification pursuant to
this Section 3.05, but it is judicially determined (by the entry of a final
judgment or decree by a court of competent jurisdiction and the expiration of
time to appeal
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or the denial of the last right of appeal) that such indemnification may not be
enforced in such case notwithstanding that this Section 3.05 provides for
indemnification, in such case, then, the Company Indemnitee and PBIO will
contribute to the aggregate losses, claims, damages or liabilities to which they
may be subject (after contribution from others) in such proportion as is
appropriate to reflect the relative fault of the Company Indemnitee on the one
hand and of the PBIO 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
Indemnitee on the one hand and of PBIO on the other 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 the Company Indemnitee on the one hand or by
PBIO on the other, and each party's relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission;
provided, however, that, in any such case, (A) PBIO will not be required to
contribute any amount in excess of the public offering price of all such
Registrable Shares offered by it pursuant to such registration statement; and
(B) no person or entity guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) will be entitled to contribution
from any person or entity who was not guilty of such fraudulent
misrepresentation.
Section 3.06. Further Obligations of the Company. Whenever
under the preceding Sections of this Article III, the Company is required
hereunder to register Registrable Shares, it agrees that it shall also do the
following:
(a) Furnish to PBIO such copies of each preliminary and final
prospectus and such other documents as PBIO may reasonably request to
facilitate the public offering of the Registrable Shares;
(b) Use its best efforts to register or qualify the
Registrable Shares covered by said registration statement under the
applicable securities or "blue sky" laws of such jurisdictions as PBIO
may reasonably request; provided, however, that the Company shall not
be obligated to qualify to do business in any jurisdictions where it is
not then so qualified or to take any action which would subject it to
the service of process in suits other than those arising out of the
offer or sale of the securities covered by the registration statement
in any jurisdiction where it is not then so subject;
(c) Permit PBIO or its counsel or other representatives to
inspect and copy such corporate documents and records as may reasonably
be requested by them, after reasonable advance notice and without undue
interference with the operation of the Company's business;
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(d) Furnish to PBIO a copy of all documents filed with and all
correspondence from or to the Commission in connection with any such
offering of securities;
(e) Use its best efforts to insure the obtaining of all
necessary approvals from the National Association of Securities
Dealers, Inc.; and
(f) Otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make available
to its security holders, as soon as reasonably practicable, an earning
statement covering the period of at least twelve months, but not more
than eighteen months, beginning with the first month after the
effective date of the registration statement covering a Public
Offering, which earning statement shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder.
Whenever under the preceding Sections of this Article III PBIO
is registering Registrable Shares pursuant to any registration statement, (i)
PBIO agrees to timely provide to the Company, at its request, such information
and materials as it may reasonably request in order to effect the registration
of such Registrable Shares and (ii) if the offering is underwritten, the Company
and PBIO agree to execute an underwriting agreement containing customary
conditions.
Section 3.07. Expenses. Subject to Section 3.02(b) in the case
of each registration effected under Section 3.01 or 3.02, the Company shall bear
its own reasonable costs and expenses of each such registration on behalf of
PBIO, including, but not limited to, the Company's printing, legal and
accounting fees and expenses, Commission and NASD filing fees and "blue sky"
fees and expenses; provided, however, that the Company shall have no obligation
to pay or otherwise bear any portion of the underwriters' commissions or
discounts or transfer taxes attributable to the Registrable Shares being offered
and sold by PBIO, or the fees and expenses of counsel for PBIO in connection
with the registration of the Registrable Shares.
The Company shall pay all expenses in connection with any registration
initiated pursuant to this Article III which is withdrawn, delayed or abandoned
at the request of the Company, unless such registration is withdrawn, delayed or
abandoned solely because of any action of PBIO.
Section 3.08. Non-Transferability. PBIO's rights and
obligations contained in this Article III shall not be transferable to any other
party under any circumstances, whether by operation of law or otherwise.
Section 3.09 Lock-Up Agreement. PBIO agrees, if so requested
by the Company in connection with any public offering of the Company's
securities, not to sell, grant any option
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or right to buy or sell, or otherwise transfer or dispose of in any manner,
whether in privately-negotiated or open-market transactions, any Common Stock or
other securities of the Company held by it during the 180-day period following
the effective date of a registration statement filed pursuant to a public
offering, nor will it permit any of its affiliates or associates to do any of
the foregoing. PBIO, its affiliates or associates shall enter into "lock-up"
agreements to such effect. Such "lock-up" agreements shall be in writing and in
form and substance satisfactory to the Company. The Company may impose
stop-transfer instructions with respect to the Shares (or securities) subject to
the foregoing restrictions until the end of said 180-day period.
Section 3.10 Termination of Registration Rights.
Notwithstanding any other term or provision of this Article III, at such time as
PBIO is free to sell the Registrable Shares without registration pursuant to
Rule 144(k) promulgated under the Securities Act, all rights of PBIO as to such
Registrable Shares under Sections 3.01 and 3.02 of this Article III shall
terminate.
ARTICLE IV
MISCELLANEOUS
Section 4.01. Interpretation. For all purposes of this Agreement, the
term Company Common Stock shall include any securities of any issuer entitled to
vote generally for the election of directors of such issuer which securities the
holders of the Company Common Stock shall have received or as a matter of right
be entitled to receive as a result of (i) any capital reorganization or
reclassification of the capital stock of the Company, (ii) any consolidation,
merger or share exchange of the Company with or into another corporation or
(iii) any sale or substantially all the assets of the Company.
Section 4.02. Enforcement. (a) PBIO acknowledges and agrees that
irreparable damage would occur if any of the provisions of this Agreement were
not performed in accordance with their specific terms or were otherwise
breached. Accordingly, the Company will be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
its provisions in any court of the United States or any state having
jurisdiction, this being in addition to any other remedy to which the Company
may be entitled at law or in equity.
(b) No failure or delay on the part of the Company in the
exercise of any power, right or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such power, right or
privilege preclude other or further exercise thereof or of any other right,
power or privilege.
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Section 4.03. Entire Agreement. This Agreement, together with the
applicable provisions of the Master Agreement and the PBIO Voting Agreement,
constitutes the entire understanding of the parties with respect to the
transactions contemplated hereby and thereby. This Agreement may be amended only
by an agreement in writing executed by the Company and PBIO.
Section 4.04. Severability. If any provision of this Agreement is held
by a court of competent jurisdiction to be unenforceable, the remaining
provisions shall remain in full force and effect. It is declared to be the
intention of the parties that they would have executed the remaining provisions
without including any that may be declared unenforceable.
Section 4.05. Headings. Descriptive headings are for convenience only
and will not control or affect the meaning or construction of any provision of
this Agreement.
Section 4.06. Counterparts. This Agreement may be executed in two or
more counterparts, and each such executed counterpart will be an original
instrument.
Section 4.07. Notices. All notices, consents, requests, instructions,
approvals and other communications provided for in this Agreement and all legal
process in regard to this Agreement will be validly given, made or served, if in
writing and delivered personally, by telecopy (except for legal process) or sent
by certified mail postage paid.
if to the Company: ChemGenics Pharmaceuticals Inc.
One Xxxxxxx Xxxxxx
Xxxxxxxx 000, Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxxx
with a copy to: Xxxxxxx X. Xxxxxx, Esq.
Mintz, Levin, Cohn,
Ferris, Glovsky and Popeo, P.C.
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Fax: (000) 000-0000
if to PBIO: PerSeptive Biosystems, Inc.
000 Xxx Xxxxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx
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with copies to: Xxxxx X. Xxxx, Esq.
Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Fax: (000) 000-0000
or to such other address or telecopy number as any party may, from time to time,
designate in a written notice given in a like manner. Notice by telecopy shall
be deemed delivered on the day telephone confirmation of receipt is given.
Section 4.08. Successors and Assigns. This Agreement shall bind the
successors and assigns of the parties, and inure to the benefit of any successor
or assign of any of the parties; provided, however, that no party may assign
this Agreement without the other party's prior written consent; provided
further, however, that the rights contained in Article III of this Agreement may
not be transferred or assigned under any circumstances.
Section 4.09. Legend. Each certificate representing shares of capital
stock of the Company beneficially owned by PBIO or its affiliates or associates
shall bear a legend in substantially the following form, until such time as the
shares of capital stock represented thereby are no longer subject to the
provisions hereof:
"The sale, transfer or assignment of the securities
represented by this certificate are subject to the terms and
conditions of a certain Standstill and Registration Rights
Agreement dated June 28, 1996, as amended from time to time,
between the Company and PerSeptive Biosystems, Inc. Copies of
such Agreement may be obtained at no cost by written request
made by the holder of record of this certificate to the
Secretary of the Company."
Section 4.10. Term. The term of this Agreement shall be the period from
the date first referred to above through and including June 28, 2006.
Section 4.11. Governing Law. This Agreement will be governed by and
construed and enforced in accordance with the law of The Commonwealth of
Massachusetts, without giving effect to the conflict of laws principles thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first referred to above.
CHEMGENICS PHARMACEUTICALS INC.
By:_____________________________________
Xxxxx X. Xxxxxxxxx, Ph.D.
President and Chief Executive Officer
PERSEPTIVE BIOSYSTEMS, INC.
By:_____________________________________
Xxxxxx X. Xxxxxx, Ph.D.
President and Chief Executive Officer
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