AMENDMENT NO. 1 TO REGISTRATION RIGHTS AGREEMENT
EXHIBIT
10.1
AMENDMENT
NO. 1 TO REGISTRATION RIGHTS AGREEMENT
This
AMENDMENT
NO. 1 TO REGISTRATION RIGHTS AGREEMENT (this
“Amendment”)
dated
September 7, 2007, is entered into by and among Synvista Therapeutics, Inc.,
a
Delaware corporation (the “Company”),
and
the purchasers (the “Purchasers”)
identified on the signature pages to that certain Registration Rights Agreement
dated as of July 25, 2007 (the “Registration
Rights Agreement”).
WHEREAS,
in connection with the execution and delivery of that certain Series B Preferred
Stock and Warrant Purchase Agreement dated April 5, 2007, by and among the
Company and the Purchasers, the Company issued and sold to the Purchasers (i)
an
aggregate of 10,000,000 of its Series B Convertible Preferred Stock, $0.01
par
value per share (the “Series
B Preferred Stock”),
and
(ii) warrants (the “Warrants”),
each
dated July 25, 2007, to purchase and aggregate of 3,100,000 shares of the Series
B Preferred Stock, and pursuant to the Registration Rights Agreement, the
Company granted the Purchasers certain registration rights with respect to
the
common stock, $0.01 par value per share (“Common
Stock”),
of
the Company issuable upon conversion of the Series B Preferred Stock,
and
WHEREAS,
in accordance with Section 6(g) of the Registration Rights Agreement, the
Company and the Purchasers desire to amend the Registration Rights Agreement
as
set forth herein.
NOW
THEREFORE, in consideration of the mutual covenants contained herein, and for
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Company and each of the Purchasers agree as follows:
1. Amendment
to Registration Rights Agreement.
| a) |
The
definition of Effectiveness Date is hereby deleted in its entirety
and
replaced with the following:
|
“Effectiveness
Date”
means,
with respect to each Registration Statement required to be filed hereunder,
the
60th calendar day following the date on which such Registration Statement is
filed (the 90th calendar day in the case of a “full review” by the Commission)
if the Registration Statement is on Form S-3 or the 240th
calendar
day following the date on which such Registration Statement is filed if the
Registration Statement is on Form S-1; provided,
however,
in the
event the Company is notified by the Commission that one of the above
Registration Statements will not be reviewed or is no longer subject to further
review and comments, the Effectiveness Date as to such Registration Statement
shall be the fifth Trading Day following the date on which the Company is so
notified if such date precedes the dates required above.
1
| b) |
The
definition of Filing Date is hereby deleted in its entirety and replaced
with the following:
|
“Filing
Date”
means,
as applicable, the First Filing Date, the Second Filing Date or the Final Filing
Date, and with respect to any additional Registration Statements which are
requested pursuant to Section 2(a), the 30th
calendar
day following the date of such request, and with respect to any additional
Registration Statements which may be required pursuant to Section 6(f)(ii),
the
60th
calendar
day following the date on which the Company notifies the Holders of such
request.
| c) |
The
definition of Registration Statement is hereby deleted in its entirety
and
replaced with the following:
|
“Registration
Statement”
means
the registration statements required to be filed hereunder and any additional
registration statements contemplated by Section 6(f)(ii), including (in each
case) the Prospectus, amendments and supplements to such registration statement
or Prospectus, including pre- and post-effective amendments, all exhibits
thereto, and all material incorporated by reference or deemed to be incorporated
by reference in such registration statement.
2
| d) |
The
following definitions are hereby added to Section
1
|
“First
Filing Date”
means,
with respect to the initial Registration Statement required pursuant to Section
2(a) hereunder, September 7, 2007.
“Second
Filing Date”
means,
with respect to the second Registration Statement required pursuant to Section
2(a) hereunder, the date that is 6 months following the effectiveness of the
Registration Statement filed on the First Filing Date.
“Final
Filing Date”
means,
with respect to the final Registration Statement required pursuant to Section
2(a) hereunder, the date that is 6 months following the effectiveness of the
Registration Statement filed on the Second Filing Date.
“Non-Affiliate
Public Float”
means
the number of shares of issued and outstanding shares of Common Stock, not
including shares of Common Stock held by Affiliates, as such term is used and
construed in the Securities Act.
| e) |
The
first sentence of Section 2(a) is hereby deleted in its entirety and
replaced with the following:
|
“On
or
prior to each of the First Filing Date and the Second Filing Date, the Company
shall prepare and file with the Commission a “Shelf” Registration Statement
covering the resale of an amount of Registrable Securities equal to
approximately one-third (1/3) of the then current Non-Affiliate Public Float,
or
if greater, the maximum number of Registrable Securities permitted by
publicly-available written guidance, rules of general applicability of the
Commission staff, or written comments, requirements or request of the Commission
staff to the Company in connection with the review of any Registration Statement
as determined jointly by the Company and a majority of the Holders of
Registrable Securities (the “Commission
Guidance”)
for an
offering to be made on a continuous basis pursuant to Rule 415. On or prior
to
the Final Filing Date, the Company shall prepare and file with the Commission
a
“Shelf” Registration Statement covering, as requested by the Holders of a
majority of the Registrable Securities, either (i) the resale of the Registrable
Securities not covered by the Registration Statements filed on the First Filing
Date and the Second Filing Date that are then effective, or (ii) the maximum
number of Registrable Securities permitted by the Commission Guidance for an
offering to be made on a continuous basis pursuant to Rule 415. Commencing
on
the six month anniversary of the Final Filing Date, at any time upon written
notice from a majority of the Holders of Registrable Securities, the
3
Company
shall prepare and file with the Commission such “Shelf” Registration Statements
covering, as requested by the Holders of a majority of the Registrable
Securities, either (i) the resale of the Registrable Securities not covered
by
the Registration Statements filed prior to the date of such notice that are
then
effective or (ii) the maximum number of Registrable Securities permitted by
the
Commission Guidance for an offering to be made on a continuous basis pursuant
to
Rule 415. If the amount of the Registrable Securities to be registered in any
Registration Statement is less than the amount of the total number of
Registrable Securities not included in any other Registration Statements that
are then effective, then, the number of Registrable Securities to be registered
on such Registration Statement will first be reduced by the Registrable
Securities issuable upon exercise of the Warrants and second by the Registrable
Securities issuable upon the conversion of the Preferred Stock, each on a pro
rata basis based on the total number of Registrable Securities not included
in
any other Registration Statements that are then effective held by each
Holder.
| f) |
Section
2(b) is hereby deleted in its entirety and replaced with the
following:
|
If:
(i) a Registration Statement is not filed on or prior to its Filing Date (if
the
Company files a Registration Statement without affording the Holders the
opportunity to review and comment on the same as required by Section 3(a),
the
Company shall not be deemed to have satisfied this clause (i)), or (ii) the
Company fails to file with the Commission a request for acceleration in
accordance with Rule 461 promulgated under the Securities Act, within five
Trading Days of the date that the Company is notified (orally or in writing,
whichever is earlier) by the Commission that a Registration Statement will
not
be “reviewed,” or not subject to further review, or (iii) prior to its
Effectiveness Date, the Company fails to file a pre-effective amendment and
otherwise respond in writing to comments made by the Commission in respect
of
such Registration Statement within 15 calendar days after the receipt of
comments by or notice from the Commission that such amendment is required in
order for a Registration Statement to be declared effective, or (iv) a
Registration Statement filed or required to be filed hereunder is not declared
effective by the Commission by its Effectiveness Date, or (v) after the
Effectiveness Date, a Registration Statement ceases for any reason to remain
continuously effective as to all Registrable Securities for which it is required
to be effective, or the Holders are otherwise not permitted to utilize the
Prospectus therein to resell such Registrable Securities for more than 15
consecutive calendar days or more than an aggregate of 25 calendar days during
any 12-month period (which need not be consecutive calendar days) (any such
failure or breach being referred to as an “Event”,
and for purposes of clause (i) or (iv) the date on which such Event occurs,
or
for purposes of clause (ii) the date on which such five Trading Day period
is
exceeded, or for purposes of clause (iii) the date which such 15 calendar day
period is exceeded, or for purposes of clause (v) the date on which
4
such
15
or 25 calendar day period, as applicable, is exceeded being referred to as
the
“Event Date”), then in addition to any other rights the Holders may have
hereunder or under applicable law, on such Event Date and on each monthly
anniversary of such Event Date (if the applicable Event shall not have been
cured by such date) until the applicable Event is cured, the Company shall
pay
to each Holder an amount in cash, as partial liquidated damages and not as
a
penalty, equal to 1% of the aggregate purchase price paid by such Holder
pursuant to the Purchase Agreement for any Securities then held by such Holder,
subject to an overall limit of 8% for each calendar year, provided, however,
that, with respect to a Registration Statement filed pursuant to Section 2(a),
(a) in the case of (iv), if the Commission does not declare the Registration
Statement effective on or before the Effectiveness Date, or (b), if the
Commission allows the Registration Statement to be declared effective at any
time before or after the Effectiveness Date, subject to the withdrawal of
certain Registrable Securities from the Registration Statement, and the reason
for (a) or (b) is the Commission’s determination that (x) the offering of any of
the Registrable Securities constitutes a primary offering of securities by
the
Company, (y) Rule 415 may not be relied upon for the registration of any or
all
of the Registrable Securities, and/or (z) a Holder of any Registrable Securities
must be named as an underwriter, the Holders understand and agree that the
Company may reduce, on a pro rata basis, the total number of Registrable
Securities to be registered on behalf of each such Holder, and the failure
to
include such Registrable Securities in any Registration Statement shall not
constitute an Event and the Company shall not be required to pay any partial
liquidated damages as described above. The partial liquidated damages pursuant
to the terms hereof shall apply on a daily pro rata basis for any portion of
a
month prior to the cure of an Event.
| g) |
Section
3(c) is hereby deleted in its entirety and replaced with the
following:
|
“[Intentionally
Omitted]”
| h) |
The
first sentence of Section 4 is hereby deleted in its entirety and replaced
with the following:
|
All
fees and expenses (exclusive of underwriting discounts and commissions) incident
to the preparation, filing and obtaining and maintaining the effectiveness
of
the first three Registration Statements required to be filed pursuant to Section
2(a) of this Agreement shall be borne by the Company whether or not any
Registrable Securities are sold pursuant to such Registration Statements;
provided, however, the Company shall pay up to a maximum of $30,000 for
reasonable fees and expenses of no more than one special counsel for the
5
Purchasers
if such Registration Statements are on Form S-3 or up to a maximum of $60,000
for reasonable fees and expenses of no more than one special counsel for the
Purchasers if the Company is not then eligible to register for resale the
Registrable Securities on Form S-3. The Holders of Registrable Securities shall
be responsible for the payment all of their own, as well as 50% of the
Company’s, fees and expenses (exclusive of underwriting discounts and
commissions) incident to the preparation, filing and obtaining and maintaining
the effectiveness of all other Registration Statements required to be filed
pursuant to Section 2(a) and incident to the performance of or compliance with
Section 6(f)(ii) of this Agreement on a pro rata basis based on the number
of
Registrable Shares included by each Holder in such Registration Statement,
provided, however, that the Holders of Registrable Securities shall pay up
to a
maximum of the lesser of (i) $10,000 or (ii) 0.5% of the value of the
Registrable Securities included on such Registration Statement as determined
by
the Closing Price on the effective date of such Registration Statement of the
Company’s reasonable fees and expenses in connection with the preparation and
filing of each Registration Statement on Form S-3 or up to a maximum of the
lesser of (i) $25,000 or (ii) 0.5% of the value of the Registrable Securities
included on such Registration Statement as determined by the Closing Price
on
the effective date of such Registration Statement of the Company’s reasonable
fees and expenses in connection with the preparation and filing of each
Registration Statement on Form S-1.
| i) |
Section
6(f) is hereby deleted in its entirety and replaced with the
following:
|
(i)
Piggy-Back Registrations.
(A)
If at any time during the Effectiveness Period there is not an effective
Registration Statement covering the Registrable Securities that are then
required to be registered in accordance with Section 2(a) or Section 6(f)(ii)
hereof, and the Company shall determine to prepare and file with the
Commission a registration statement relating to an offering for its own account
or the account of others under the Securities Act of any of its equity
securities, other than on Form S-4 or Form S-8 (each as promulgated under the
Securities Act) or their then equivalents relating to equity securities to
be
issued solely in connection with any acquisition of any entity or business
or
equity securities issuable in connection with the stock option or other employee
benefit plans, then the Company shall send to each Holder a written notice
of
such determination and, if within 15 days after the date of such notice, any
such Holder shall so request in writing, the Company shall include in such
registration statement all or any part of the Registrable Securities required
to
be included pursuant to Section 2(a), but not so included, that such Holder
requests to be registered; provided, however, that, the Company shall not be
required to register any Registrable Securities pursuant to this Section
6(f)(i)(A) that are eligible for resale pursuant to Rule 144(k) promulgated
under the Securities Act or that are the subject of a then effective
Registration Statement.
6
(B)
If,
at any time, the Company shall determine to prepare and file with the Commission
a registration statement relating to an underwritten public offering for its
own
account or the account of others under the Securities Act of any of its equity
securities, other than on Form S-4 (as promulgated under the Securities Act)
or
its then equivalent relating to equity securities to be issued solely in
connection with any acquisition of any entity or business, then the Company
shall send to each Holder a written notice of such determination and, if within
15 days after the date of such notice, any such Holder shall so request in
writing, the Company shall include in such registration statement all or any
part of such Registrable Securities such Holder requests to be registered;
provided,
however,
that,
the Company shall not be required to register any Registrable Securities of
a
Holder, if all of the Registrable Securities of such Holder pursuant to this
Section 6(f)(i)(B) that are eligible for resale pursuant to Rule 144(k)
promulgated under the Securities Act or are the subject of one or more then
effective Registration Statements. If the total amount of Registrable Securities
that are to be included by the Company for its own account and at the request
of
Holders thereof exceeds the amount of securities that the underwriters
reasonably believe compatible with the success of the offering, then the Company
will include in such registration only the number of securities which in the
opinion of such underwriters can be sold, in the following order:
(1)
first,
the equity securities to be registered on behalf of the Company;
(2)
then,
the
Registrable Securities requested to be included by the Holders pro rata based
on
the number of Registrable Securities owned by each of them which each of them
request be included in such registration; provided,
however,
that
the number of Registrable Securities shall not be reduced below 30% of the
securities included in such registration statement; and
(3)
then,
any
other equity securities.
(ii)
Demand
Registrations.
(a) If,
at any time the Company shall receive a written request (specifying that it
is
being made pursuant to this Section 6(f)(ii)) from Holders of a majority of
Registrable Securities not registered in any then effective Registration
Statement that the Company file a registration statement under the Securities
Act in connection with an underwritten public offering, then the Company shall
send to each Holder a written notice of such request and if within 15 days
after
the date of such notice, any such Holder shall so request in writing, the
Company shall
7
include
in such Registration Statement all or any part of such Registrable Securities
not registered in any then effective Registration Statement such Holder requests
to be registered and shall file such Registration Statement by its Filing Date.
Subject to the terms of this Agreement, the Company shall use its good faith
commercially reasonable efforts to cause a Registration Statement to be declared
effective under the Securities Act as promptly as possible after the filing
thereof, but in any event prior to the applicable Effectiveness Date. The
Company shall telephonically request effectiveness of such Registration
Statement as of 5:00 pm Eastern Time on a Trading Day.
(b) Notwithstanding
the foregoing obligations, if the Company furnishes to Holders requesting a
registration pursuant to this Section 6(f)(ii) a certificate signed by the
Company’s chief executive officer stating that in the good faith judgment of the
Company’s Board of Directors as evidenced by a board resolution, it would be
materially detrimental to the Company and its stockholders for such registration
statement to either become effective or remain effective for as long as such
registration statement otherwise would be required to remain effective, because
such action would (i) materially interfere with a significant acquisition,
corporate reorganization, or other similar transaction involving the Company;
(ii) require premature disclosure of material information that the Company
has a
bona fide business purpose for preserving as confidential; or (iii) render
the
Company unable to comply with requirements under the Securities Act or Exchange
Act, then the Company shall have the right to defer taking action with respect
to such filing, and any time periods with respect to filing or effectiveness
thereof shall be tolled correspondingly, for a period of not more than ninety
(90) days after the request of the Initiating Holders is given; provided,
however, that the Company may not invoke this right more than once in any twelve
(12) month period, and provided further that the Company shall not register
any
securities for its own account or that of any other stockholder during such
ninety (90) day period.
(c) The
Company shall immediately notify the Holders via facsimile or electronic
transmission of the effectiveness of a Registration Statement on the same
Trading Day that the Company telephonically confirms effectiveness with the
Commission, which shall be the date requested for effectiveness of a
Registration Statement. The Company shall, by 9:30 am Eastern Time on the
Trading Day after the Effective Date, file a final Prospectus with the
Commission as required by Rule 424. Failure to so notify the Holder within
one
(1) Trading Day of such notification or effectiveness or failure to file a
final
Prospectus as aforesaid shall be deemed an Event under Section 2(b). If the
total amount of Registrable Securities that are to be included at the request
of
Holders thereof and by the Company for its own account and exceeds the amount
of
securities that the underwriters reasonably believe compatible with the success
of the offering, then the Company will include in such registration statement
only the number of securities which in the opinion of such underwriters can
be
sold, in the following order:
8
(1)
first,
the Registrable Securities requested to be included by the Holders pro rata
based on the number of Registrable Securities owned by each of them which each
of them request be included in such registration;
(2)
then,
the
equity securities to be registered on behalf of the Company; and
(3)
then,
any
other equity securities.
(iii) Underwriting
Requirements.
The
Company shall (together with all Holders proposing to distribute their
securities through such underwriting) enter into an underwriting agreement
with
the underwriters selected for such underwriting either (A) by the Company in
the
case of an underwriting pursuant to Section 6(f)(i)(B) or (B) by the Holders
of
a majority of the Registrable Securities being registered and agreed to by
the
Company in the case of an underwriting pursuant to Section 6(f)(ii). In any
registration pursuant to Sections 6(f)(i)(B) or 6(f)(ii), each Holder shall
take
all action with respect to executing such underwriting agreement, including
being liable in respect of (A) any representations and warranties being made
by
each Holder, and (B) any indemnification agreements and “lock-up” agreements
made by each Holder for the benefit of the underwriters in such underwriting
agreement; provided,
however,
that
(1) with respect to individual representations and warranties regarding such
matters as legal capacity or due organization of such Holder, authority to
participate in the underwritten public offering, compliance by such Holder
with
laws and agreements applicable to it, ownership (free and clear of liens,
charges, encumbrances and adverse claims) of Registrable Securities to be sold
by such Holder and accuracy of information with respect to such Holder furnished
for inclusion in any disclosure document relating to each underwritten public
offering, the aggregate amount of such liability shall not exceed the net
proceeds received by such participating Holder from the underwritten public
offering and (2) to the extent selling stockholders give further
representations, warranties and indemnities, then with respect to all other
representations, warranties and indemnities of sellers of shares in such
underwritten public offering, the aggregate amount of such liability shall
not
exceed the lesser of (y) such Holder’s pro rata portion of any such
liability, in accordance with such Holder’s portion of the total number of
Registrable Securities included in the underwritten public offering or (z)
the
net proceeds received by such Holder from the underwritten public
offering.
9
2. Ratification.
The
parties hereby ratify and confirm in all respects the Registration Rights
Agreement, as amended by this Amendment.
3. Governing
Law.
All
questions concerning the construction, validity, enforcement and interpretation
of the Registration Rights Agreement shall be governed by and construed and
enforced in accordance with the internal laws of the State of New York, without
regard to the principles of conflicts of law thereof.
4. Other
Matters.
The
Company hereby acknowledges and agrees that the execution and delivery by the
Purchasers of this Amendment shall not be deemed to create a course of dealing
or otherwise obligate the Purchasers to execute similar extensions, amendments
or waivers under the same or similar circumstances in the future.
5. Execution.
This
Amendment may be executed in two or more counterparts, all of which when taken
together shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to
the
other party, it being understood that both parties need not sign the same
counterpart. In the event that any signature is delivered by facsimile
transmission or by e-mail delivery of a “.pdf” format data file, such signature
shall create a valid and binding obligation of the party executing (or on whose
behalf such signature is executed) with the same force and effect as if such
facsimile or “.pdf” signature page were an original thereof.
[remainder
left intentionally blank]
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IN
WITNESS WHEREOF, the undersigned hereby executes this Amendment as of the date
first set forth above.
| SYNVISTA THERAPEUTICS, INC. |
Address
for Notice:
|
||
| /s/ Xxxx Xxxxxxxxx | 000 Xxxx Xxxxx Xxxxxx | ||
|
Name:
Xxxx Xxxxxxxxx
Title:
President
|
Xxxxxxxx,
XX 00000
|
||
|
With
a copy to (which shall not constitute notice):
Xxxxx
Xxxxx Xxxx Xxxxxx Xxxxxxx and Xxxxx, P.C.
Xxx
Xxxxxxxxx Xxxxxx
Xxxxxx,
XX 00000
Attn:
Xxxxxxx X. Xxxxxx, Esq.
|
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE
PAGE FOR PURCHASER FOLLOWS]
IN
WITNESS WHEREOF, the undersigned hereby executes this Amendment No. 1 as of
the
date first set forth above.
| Atticus Global Advisors, Ltd. | XXXXX/XXXXX INVESTMENTS, L.P. | |||
| By: | /s/ Xxxxxxx Xxxxxxx | By: | Xxxxx/Xxxxx Capital, L.P., | |
|
Name:
Xxxxxxx Xxxxxxx
Title:
Director
|
By: |
its general partner Xxxxx/Xxxxx Capital (GP), LLC, its
general partner
|
||
| By: | /s/ Xxxxx Xxxxx, Ph.D. | |||
|
Name:
Xxxxx Xxxxx, Ph.D.
Title:
Managing Member
|
||||
| Green Way Managed
Account
Series, Ltd.,
in respect to its segregated account, Green Way Portfolio X |
XXXXX BIOTECH FUND I, L.P. | |||
| By: | /s/ Xxxxxxxxx Xxxx-Xxxxxx | By: | Xxxxx Biotech Capital, L.P., | |
|
Name:
Xxxxxxxxx Xxxx-Xxxxxx
Title:
President and Director
|
By: |
its general partner Xxxxx
Biotech Capital (GP), LLC,
its general partner |
||
| By: | /s/ Xxxxx Xxxxx, Ph.D. | |||
|
Name:
Xxxxx Xxxxx, Ph.D.
Title:
Managing Member
|
||||
| Xxxxxx and Xxxxxxx LLC | Xxxxx Brothers Life Sciences, L.P. | |||
| By: | /s/ Xxxxxx X. Xxxxx | By: | Xxxxx Brothers Life Sciences Capital, L.P. | |
|
Name:
Xxxxxx X. Xxxxx
Title:
Chief Financial Officer
|
By: |
its general partner Xxxxx
Brothers Life Sciences Capital (GP), LLC
its general partner |
||
| By: | /s/ Xxxxx Xxxxx, Ph.D. | |||
|
Name:
Xxxxx Xxxxx, Ph.D.
Title:
Managing Member
|
||||
| 14159, L.P. | ||||
| By: | 14159 Capital, L.P., | |||
|
|
By: |
its general partner 14159
Capital (GP), LLC,
its general partner |
||
| By: | /s/ Xxxxx Xxxxx, Ph.D. | |||
|
Name:
Xxxxx Xxxxx, Ph.D.
Title:
Managing Member
|
||||
