EXHIBIT 10.20
GENVEC, INC.
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made as of the 22nd
day of April, 1998 by and among GenVec, Inc., a Delaware corporation (the
"Company") and the stockholders set forth on Schedule 1 (the "Class A and B
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Purchasers"), the stockholders set forth on Schedule 2 (the "Additional Class B
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Purchasers"), each stockholder set forth on Schedule 3 if such stockholder
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executes this Agreement (the "Theragen Common Purchasers"), each stockholder set
forth on Schedule 4 if such stockholder executes this Agreement (the "Theragen
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Preferred Purchasers"), and together with the Theragen Common Purchasers, the
"Theragen Purchasers"), the stockholders set forth on Schedule 5 (the "Class C
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Purchasers"), the stockholders set forth on Schedule 6 (the "Second Class C
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Purchasers"), SCIOS, Inc. ("SCIOS"), the Xxxxxx-Xxxxxxx Company ("Xxxxxx-
Xxxxxxx") and Xxxxxx X. Xxxxxxx, M.D. ("Crystal").
RECITALS
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A. The Company and the Class A and B Purchasers are parties to the
Amended and Restated Preferred Stock Purchase Agreement, dated as of May 19,
1993, as amended by Amendment No. 1, dated as of November 17, 1994 and as
further amended by the Amendment and Waiver Agreement, dated as of September 19,
1995 and Amendment No. 1, dated October 3, 1997 (the "Class A and B Agreement")
pursuant to which the Class A and B Purchasers were granted certain registration
rights.
B. The Company and each of the Class A and B Purchasers have agreed
to amend the Class A and B Agreement in the manner set forth herein.
C. The Company and the Additional Class B Purchasers are parties to
the Preferred Stock Purchase Agreement, dated as of May 26, 1993, as amended by
Amendment No. 1, dated as of November 17, 1994 and as further amended by the
Amendment and Waiver Agreement, dated as of September 19, 1995 and Amendment No.
1, dated October 3, 1997 (the "Class B Agreement") pursuant to which the
Additional Class B Purchasers were granted certain registration rights.
D. The Company and each of the Additional Class B Purchasers have
agreed to amend the Class B Agreement in the manner set forth herein.
E. The Company and the Theragen Purchasers are parties to the
Agreement and Plan of Merger, dated as of June 23, 1994, as amended by the
Closing Agreement, dated as of August 4, 1994 (the "Theragen Agreement")
pursuant to which the Theragen Purchasers were granted certain registration
rights.
F. Pursuant to Section 10.01 of the Theragen Agreement, such
registration rights were terminated as of June 23, 1996.
G. The Company desires to offer the Theragen Purchasers the
opportunity to receive the registration rights set forth herein.
H. The Company and the Class C Purchasers are parties to the Class C
Preferred Stock Purchase Agreement, dated as of November 17, 1994, as amended by
the Amendment and Waiver Agreement, dated as of September 19, 1995 and Amendment
No. 1, dated October 3, 1997 (the "Class C Agreement") pursuant to which the
Class C Purchasers were granted certain registration rights.
I. The Company and all of the Class C Purchasers have agreed to
amend the Class C Agreement in the manner set forth herein.
J. The Company and the Second Class C Purchasers are parties to the
Second Class C Stock Purchase Agreement, dated as of September 19, 1995, as
amended by Amendment No. 1, dated October 3, 1997 (the "Second Class C
Agreement") pursuant to which the Second Class C Purchasers were granted certain
registration rights.
K. The Company and a majority of the Second Class C Purchasers have
agreed to amend the Second Class C Agreement in the manner set forth herein.
L. The Company and SCIOS are parties to the Warrant Agreement, dated
as of May 31, 1996 (the "SCIOS Agreement") pursuant to which SCIOS was granted
certain registration rights.
M. The Company and SCIOS have agreed to amend the SCIOS Agreement in
the manner set forth herein.
N. The Company and Xxxxxx-Xxxxxxx are parties to the Stock Purchase
Agreement, dated as of July 21, 1997 (the "Xxxxxx-Xxxxxxx Agreement") pursuant
to which Xxxxxx-Xxxxxxx was granted certain registration right.
O. The Company and Xxxxxx-Xxxxxxx have agreed to amend the Xxxxxx-
Xxxxxxx Agreement in the manner set forth herein.
P. The Company and Crystal are parties to the Consulting Agreement,
dated as of March 31, 1993, as amended by Option Agreement and Amendment No. 1
and Waiver, dated as of September 18, 1995 and as further amended by the letter
dated August 19, 1997 (the "Crystal Agreement") pursuant to which Crystal was
granted certain registration rights.
Q. The Company and Crystal have agreed to amend the Crystal
Agreement in the manner set forth herein.
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NOW THEREFORE, the parties agree as follows:
SECTION 1
TERMINATIONS
1.1 CLASS A AND B AGREEMENT. In consideration for the rights granted in
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this Agreement, the Class A and B Purchasers agree that Section 4.2 and Section
8 of the Class A and B Agreement (including all rights and obligations under
such sections) are hereby terminated and of no further force and effect. All
other sections and portions of the Class A and B Agreement, and all other rights
granted to, and all obligations of, the parties under the Class A and B
Agreement shall remain in full force and effect.
1.2 CLASS B AGREEMENT. In consideration for the rights granted in this
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Agreement, the Additional Class B Purchasers agree that Section 4.2 and Section
8 of the Class B Agreement (including all rights and obligations under such
sections) are hereby terminated and of no further force and effect. All other
sections and portions of the Class B Agreement, and all other rights granted to,
and all obligations of, the parties under the Class B Agreement shall remain in
full force and effect.
1.3 CLASS C AGREEMENT. In consideration for the rights granted herein,
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the Class C Purchasers agree that Section 4.2 and Section 8 of the Class C
Agreement (including all rights and obligations under such sections) are hereby
terminated and of no further force and effect. All other sections and portions
of the Class C Agreement, and all other rights granted to, and all obligations
of, the parties under the Class C Agreement shall remain in full force and
effect.
1.4 SECOND CLASS C AGREEMENT. In consideration for the rights granted
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herein, the Second Class C Purchasers agree that Section 4.2 and Section 8 of
the Second Class C Agreement (including all rights and obligations under such
sections) are hereby terminated and of no further force and effect. All other
sections and portions of the Second Class C Agreement, and all other rights
granted to, and all obligations of, the parties under the Second Class C
Agreement shall remain in full force and effect.
1.5 SCIOS AGREEMENT. In consideration for the rights granted herein,
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SCIOS agrees that Section 14(b), Section 15 and Section 16 of the SCIOS
Agreement (including all rights and obligations under such sections) are hereby
terminated and of no further force and effect. All other sections and portions
of the SCIOS Agreement (including without limitation, Section 14(c)) and all
rights granted to, and all obligations of, the parties under the SCIOS Agreement
shall remain in full force and effect.
1.6 XXXXXX-XXXXXXX AGREEMENT. In consideration for the rights granted
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herein, Xxxxxx-Xxxxxxx agrees that Section 8 of the Xxxxxx-Xxxxxxx Agreement
(including all rights and obligations under such section) is hereby terminated
and of no further force and effect. All other sections and portions of the
Xxxxxx-Xxxxxxx Agreement (including without limitation, Section 7), and all
rights granted to, and all obligations of the parties under the Xxxxxx-Xxxxxxx
Agreement shall remain in full force and effect.
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1.7 CRYSTAL AGREEMENT. In consideration for the rights granted herein,
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Crystal agrees that as of the date hereof Section 12 of the Crystal Agreement
(including all rights and obligations under such section) is terminated and of
no further force and effect.
SECTION 2
REGISTRATION RIGHTS
2.1 CERTAIN DEFINITIONS. As used in this Agreement, the following terms
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shall have the following respective meanings:
"Class A and B Conversion Stock" shall mean the Common Stock issued or
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issuable upon conversion of the Class A Preferred Stock issued pursuant to the
Class A and B Agreement (the "Class A Preferred") and the Class B Preferred
Stock issued pursuant to the Class A and B Agreement and the Class B Agreement
(the "Financing Class B Preferred").
"Class A and B Holder" shall mean any Class A and B Purchaser or any
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Additional Class B Purchaser holding Class A and B Registrable Securities and
any person holding Class A and B Registrable Securities to whom the rights under
this Section 2 have been transferred in accordance with Section 2.13 of this
Agreement.
"Class A and B Registrable Securities" shall mean (i) the Class A and
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B Conversion Stock; and (ii) any Common Stock of the Company issued or issuable
in respect of the Class A Preferred and Financing Class B Preferred or other
securities issued or issuable pursuant to the conversion of the Class A
Preferred and the Financing Class B Preferred, upon any stock split, stock
dividend, recapitalization, merger, consolidation or similar event (a
"Recapitalization") or any Common Stock otherwise issued or issuable with
respect to the Class A Preferred and Financing Class B Preferred, provided,
however, that shares of Common Stock or other securities shall no longer be
treated as Class A and B Registrable Securities after they have been sold to or
through a broker or dealer or underwriter in a public distribution or a public
securities transaction, whether in a registered offering, pursuant to Rule 144
or otherwise.
"Class C Conversion Stock" shall mean the Common Stock issued or
------------------------
issuable upon conversion of the Class C Preferred Stock issued pursuant to the
Class C Agreement and the Second Class C Agreement (the "Class C Preferred").
"Class C Holder" shall mean any Class C Purchaser or any Second Class
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C Purchaser holding Class C Registrable Securities and any person holding Class
C Registrable Securities to whom the rights under this Section 2 have been
transferred in accordance with Section 2.12 of this Agreement.
"Class C Registrable Securities" shall mean (i) the Class C Conversion
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Stock; and (ii) any Common Stock of the Company issued or issuable in respect of
the Class C Conversion Stock or other securities issued or issuable pursuant to
the conversion of the Class C Preferred, upon any
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Recapitalization or any Common Stock otherwise issued or issuable with respect
to the Class C Preferred, provided, however, that shares of Common Stock or
other securities shall no longer be treated as Class C Registrable Securities
after they have been sold to or through a broker or dealer or underwriter in a
public distribution or a public securities transaction, whether in a registered
offering, pursuant to Rule 144 or otherwise.
"Commission" shall mean the Securities and Exchange Commission or any
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other federal agency at the time administering the Securities Act.
"Conversion Stock" shall mean the Class A and B Conversion Stock, the
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Theragen Conversion Stock, the Class C Conversion Stock, the SCIOS Conversion
Stock, the Xxxxxx-Xxxxxxx Conversion Stock and the Crystal Conversion Stock.
"Crystal Conversion Stock" shall mean the Common Stock issued or
------------------------
issuable upon vesting of the Restricted Stock (as defined int he Crystal
Agreement) and upon exercise of the Option (as defined in the Crystal
Agreement).
"Crystal Holder" shall mean Crystal (so long as he holds any Crystal
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Registrable Securities) and any person holding Crystal Registrable Securities to
whom rights under this Section 2 have been transferred in accordance with
Section 2.13 of this Agreement.
"Crystal Registrable Securities" shall mean (i) the Crystal Conversion
------------------------------
Stock; and (ii) any Common Stock of the Company issued or issuable in respect of
the Crystal Conversion Stock or other securities issued or issuable pursuant to
the vesting or conversion of the Restricted Stock or Option, upon any
Recapitalization or any Common Stock otherwise issued or issuable with respect
to the Restricted Stock or Option, provided, however, that shares of Common
Stock or other securities shall no longer be treated as Crystal Registrable
Securities after they have been sold to or through a broker or dealer or
underwriter in a public distribution or a public securities transaction, whether
in a registered offering, pursuant to Rule 144 or otherwise.
"Demand Holder" shall mean any Class A and B Holder, Theragen
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Preferred Holder or Class C Holder.
"Demand Registrable Securities" shall mean the Class A and B
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Registrable Securities, Theragen Preferred Registrable Securities and the Class
C Registrable Securities.
"Holder" shall mean any Class A and B Holder, Theragen Holder, Class C
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Holder, SCIOS Holder, Xxxxxx-Xxxxxxx Holder or Crystal Holder.
"Initiating Holders" shall mean (i) Class A and B Holders of not less
------------------
than 50% of the Class A and B Registrable Securities; (ii) Theragen Preferred
Holders of greater than 50% of the Theragen Preferred Registrable Securities; or
(iii) Class C Holders of not less than 50% of the Class C Registrable
Securities.
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"Preferred" means Class A Preferred, Class B Preferred, Class C
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Preferred and the Xxxxxx-Xxxxxxx Preferred.
"Purchasers" means the Class A and B Purchasers, the Additional Class
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B Purchasers, the Theragen Purchasers, the Class C Purchasers, the Second Class
C Purchasers, SCIOS, Xxxxxx-Xxxxxxx and Crystal.
"Registrable Securities" means the Class A and B Registrable
----------------------
Securities, the Theragen Registrable Securities, the Class C Registrable
Securities, the SCIOS Registrable Securities, the Xxxxxx-Xxxxxxx Registrable
Securities and the Crystal Registerable Securities.
The terms "register," "registered" and "registration" refer to a
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registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
"Registration Expenses" shall mean all expenses, except as otherwise
---------------------
stated below, incurred by the Company in complying with Sections 2.5, 2.6 and
2.7, including, without limitation, all registration, qualification and filing
fees, printing expenses, escrow fees, fees and disbursements of counsel for the
Company, blue sky fees and expenses, the expense of any special audits incident
to or required by any such registration (but excluding the compensation of
regular employees of the Company which shall be paid in any event by the
Company) and the reasonable fees and expenses of one counsel for all Demand
Holders in the event of the exercise of any demand registration provided for in
Section 2.5.
"Restricted Securities" shall mean the securities of the Company
---------------------
required to bear the legend set forth in Section 2.3.
"S-3 Holder" shall mean the Class A and B Holders, the Theragen
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Preferred Holders, the Class C Holders, the SCIOS Holders and the Xxxxxx-Xxxxxxx
Holders.
"S-3 Initiating Holders" shall mean (i) Class A and B Holders of
----------------------
greater than 50% of the Class A and B Registrable Securities, (ii) Theragen
Preferred Holders of greater than 50% of the Theragen Preferred Registrable
Securities, (iii) Class C Holders of greater than 50% of the Class C Registrable
Securities, (iv) SCIOS Holders of greater than 80% of the SCIOS Registrable
Securities or (v) Xxxxxx-Xxxxxxx Holders of greater than 80% of the Xxxxxx-
Xxxxxxx Registrable Securities.
"S-3 Registrable Securities" shall mean Class A and B Registrable
--------------------------
Securities, Theragen Preferred Registrable Securities, Class C Registrable
Securities, SCIOS Registrable Securities and Xxxxxx-Xxxxxxx Registrable
Securities.
"SCIOS Conversion Stock" shall mean the Common Stock issued or
----------------------
issuable upon exercise of the warrant granted pursuant to the SCIOS Agreement.
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"SCIOS Holder" shall mean SCIOS (so long as it holds any SCIOS
------------
Registrable Securities) and any person holding SCIOS Registrable Securities to
whom the rights under this Section 2 have been transferred in accordance with
Section 2.13 of this Agreement.
"SCIOS Registrable Securities" shall mean (i) the SCIOS Conversion
----------------------------
Stock; and (ii) any Common Stock of the Company issued or issuable in respect of
the SCIOS Conversion Stock or other securities issued or issuable pursuant to
the exercise of the warrant granted pursuant to the SCIOS Agreement, upon any
Recapitalization or Common Stock otherwise issued or issuable with respect to
the warrant granted pursuant to the SCIOS Agreement, provided, however, that
shares of Common Stock or other securities shall no longer be treated as SCIOS
Registrable Securities after they have been sold to or through a broker or
dealer or underwriter in a public distribution or a public securities
transaction, whether in a registered offering, pursuant to Rule 144 or
otherwise.
"Securities Act" shall mean the Securities Act of 1933, as amended, or
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any similar federal statute and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Selling Expenses" shall mean all underwriting discounts, selling
----------------
commissions and stock transfer taxes applicable to the securities registered by
the Holders and, except as set forth above, all reasonable fees and
disbursements of counsel for any Holder.
"Theragen Common Conversion Stock" shall mean the Common Stock issued
--------------------------------
pursuant the Theragen Agreement.
"Theragen Common Holder" shall mean any Theragen Common Purchaser
----------------------
holding Theragen Common Registrable Securities and any person holding Theragen
Common Registrable Securities to whom the rights under this Section 2 have been
transferred in accordance with Section 2.13 of this Agreement.
"Theragen Common Registrable Securities" shall mean (i) the Theragen
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Common Conversion Stock; and (ii) any Common Stock of the Company issued or
issuable in respect of the Theragen Common Conversion Stock or upon any
Recapitalization, provided, however, that shares of Common Stock or other
securities shall no longer be treated as Theragen Common Registrable Securities
after they have been sold to or through a broker or dealer or underwriter in a
public distribution or a public securities transaction, whether in a registered
offering, pursuant to Rule 144 or otherwise.
"Theragen Conversion Stock" shall mean the Theragen Common Conversion
-------------------------
Stock and the Theragen Preferred Conversion Stock.
"Theragen Holder" shall mean the Theragen Common Holder and the
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Theragen Preferred Holder.
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"Theragen Preferred Conversion Stock" shall mean the Common Stock
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issued or issuable upon conversion of the Class B Preferred Stock issued
pursuant the Theragen Agreement (the "Theragen Preferred," and together with the
Financing Class B Preferred, the "Class B Preferred").
"Theragen Preferred Holder" shall mean any Theragen Preferred
-------------------------
Purchaser holding Theragen Preferred Registrable Securities and any person
holding Theragen Preferred Registrable Securities to whom the rights under this
Section 2 have been transferred in accordance with Section 2.13 of this
Agreement.
"Theragen Preferred Registrable Securities" shall mean (i) the
-----------------------------------------
Theragen Preferred Conversion Stock; and (ii) any Common Stock of the Company
issued or issuable in respect of the Theragen Preferred Conversion Stock or
other securities issued or issuable pursuant to the conversion of the Theragen
Preferred, upon any Recapitalization or any Common Stock otherwise issued or
issuable with respect to the Theragen Preferred, provided, however, that shares
of Common Stock or other securities shall no longer be treated as Theragen
Preferred Registrable Securities after they have been sold to or through a
broker or dealer or underwriter in a public distribution or a public securities
transaction, whether in a registered offering, pursuant to Rule 144 or
otherwise.
"Theragen Registrable Securities" shall mean the Theragen Common
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Registrable Securities and the Theragen Preferred Registrable Securities.
"Xxxxxx-Xxxxxxx Conversion Stock" shall mean the Common Stock issued
-------------------------------
or issuable pursuant to and the Common Stock issued or issuable upon conversion
of the preferred stock of the Company issued pursuant to the Xxxxxx-Xxxxxxx
Agreement (the "Xxxxxx-Xxxxxxx Preferred").
"Xxxxxx-Xxxxxxx Holder" shall mean Xxxxxx-Xxxxxxx (so long as it holds
---------------------
any Xxxxxx-Xxxxxxx Registrable Securities) and any person holding Xxxxxx-Xxxxxxx
Registrable Securities to whom the rights under this Section 2 have been
transferred in accordance with Section 2.13 of this Agreement.
"Xxxxxx-Xxxxxxx Registrable Securities" shall mean (i) the Warner-
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Xxxxxxx Conversion Stock; and (ii) any Common Stock of the Company issued or
issuable in respect of the Xxxxxx-Xxxxxxx Conversion Stock or other securities
issued or issuable pursuant to the conversion of the Xxxxxx-Xxxxxxx Preferred,
upon any Recapitalization or any Common Stock otherwise issued or issuable with
respect to the Xxxxxx-Xxxxxxx Preferred, provided, however, that shares of
Common Stock or other securities shall no longer be treated as Xxxxxx-Xxxxxxx
Registrable Securities after they have been sold to or through a broker or
dealer or underwriter in a public distribution or a public securities
transaction, whether in a registered offering, pursuant to Rule 144 or
otherwise.
2.2 RESTRICTIONS ON TRANSFERABILITY. The Preferred and the Conversion
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Stock shall not be sold, assigned, transferred or pledged except upon the
conditions specified in this Section 2, which conditions are intended to ensure
compliance with the provisions of the Securities Act. Each Purchaser will cause
any proposed purchaser, assignee, transferee, or pledgee of the Preferred or
Conversion Stock held by a Purchaser to agree to take and hold such securities
subject to the provisions and upon the conditions specified in this Section 2.
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2.3 RESTRICTIVE LEGEND. Each certificate representing the Preferred, the
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Conversion Stock and any other securities issued in respect of the Preferred or
the Conversion Stock upon any stock split, stock dividend, recapitalization,
merger, consolidation or similar event, shall (unless otherwise permitted by the
provisions of Section 2.4 below) be stamped or otherwise imprinted with a legend
substantially in the following form (in addition to any legend required under
applicable state securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933. SUCH SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION OR AN EXEMPTION FROM THE REGISTRATION AND PROSPECTUS
DELIVERY REQUIREMENTS OF SAID ACT.
Each Purchaser and Holder consents to the Company making a notation on
its records and giving instructions to any transfer agent of the Preferred or
the Conversion Stock in order to implement the restrictions on transfer
established in this Section 2.3.
2.4 NOTICE OF PROPOSED TRANSFERS. The holder of each certificate
----------------------------
representing Restricted Securities by acceptance thereof agrees to comply in all
respects with the provisions of this Section 2.4. Prior to any proposed sale,
assignment, transfer or pledge of any Restricted Securities (other than (i) a
transfer not involving a change in beneficial ownership or (ii) in transactions
involving the distribution without consideration of Restricted Securities by any
of the Purchasers to any of its partners, or retired partners, or to the estate
of any of its partners or retired partners), unless there is in effect a
registration statement under the Securities Act covering the proposed transfer,
the holder thereof shall give written notice to the Company of such holder's
intention to effect such transfer, sale, assignment or pledge. Each such notice
shall describe the manner and circumstances of the proposed transfer, sale,
assignment or pledge in sufficient detail, and, if requested by the Company,
shall be accompanied, at such holder's expense, by either (i) an unqualified
written opinion of legal counsel who shall be, and whose legal opinion shall be,
reasonably satisfactory to the Company addressed to the Company, to the effect
that the proposed transfer of the Restricted Securities may be effected without
registration under the Securities Act, or (ii) a "no action" letter from the
Commission to the effect that the transfer of such securities without
registration will not result in a recommendation by the staff of the Commission
that action be taken with respect thereto, whereupon the holder of such
Restricted Securities shall be entitled to transfer such Restricted Securities
in accordance with the terms of the notice delivered by the holder to the
Company. It is agreed that the Company will not request an opinion of counsel
for the holder for transactions made in reliance on Rule 144 under the
Securities Act except in unusual circumstances, the existence of which shall be
determined in good faith by the Board of Directors of the Company, and in any
case the Company will not request an opinion of counsel for the holder for
transactions made in reliance on Rule 144(k) under the Securities Act. Each
certificate evidencing the Restricted Securities transferred as above provided
shall bear, except if such transfer is made pursuant to Rule 144, the
appropriate restrictive legend set forth in Section 2.3 above, except that such
certificate shall not bear such restrictive legend if in the opinion of counsel
for such holder and the Company such legend is not required in order to
establish compliance with any provision of the Securities Act.
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2.5 REQUESTED REGISTRATION.
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(a) Request for Registration. In case the Company shall receive from
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Initiating Holders a written request that the Company effect any registration,
qualification or compliance with respect to Demand Registrable Securities on a
form of registration statement other than Form S-3 (or any successor form to
Form S-3), the Company will:
(i) promptly give written notice of the proposed registration,
qualification or compliance to all other Demand Holders; and
(ii) as soon as practicable, use its diligent efforts to effect
such registration, qualification or compliance (including, without limitation,
appropriate qualification under applicable blue sky or other state securities
laws and appropriate compliance with applicable regulations issued under the
Securities Act and any other governmental requirements or regulations) as may be
so requested and as would permit or facilitate the sale and distribution of all
or such portion of such Demand Registrable Securities as are specified in such
request, together with all or such portion of the Demand Registrable Securities
of any Demand Holders joining in such request as are specified in a written
request received by the Company within 20 days after receipt of such written
notice from the Company;
provided, however, that the Company shall not be obligated to take any action to
effect any such registration, qualification or compliance pursuant to this
Section 2.5:
(A) In any particular jurisdiction in which the Company
would be required to execute a general consent to service of process in
effecting such registration, qualification or compliance unless the Company is
already subject to service in such jurisdiction and except as may be required by
the Securities Act;
(B) Prior to (i) December 1, 1998 if the closing of the
initial public offering of the Company's Common Stock (the "IPO") has not
occurred on or prior to such date or (ii) if the closing of the IPO has occurred
on or prior to December 1, 1998, then 180 days after the date of the final
prospectus relating to the IPO;
(C) During the period starting with the date sixty (60)
days prior to the Company's estimated date of filing of, and ending on the date
six (6) months immediately following the effective date of, any registration
statement pertaining to securities of the Company (other than a registration of
securities in a Rule 145 transaction or with respect to an employee benefit
plan), provided that the Company is actively employing in good faith all
reasonable efforts to cause such registration statement to become effective;
(D) Unless the anticipated aggregate offering price, net
of underwriting discounts and commissions, of all Demand Registered Securities
sought to be registered by all Initiating Holders pursuant to this Section 2.5,
would exceed $5,000,000;
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(E) After the Company has effected three such registrations
pursuant to this subparagraph 1.5(a), and such registrations have been declared
or ordered effective and the securities offered pursuant to such registrations
have been sold;
(F) If the Company shall furnish to the Initiating Holders
a certificate signed by the President of the Company stating that in the good
faith judgment of the Board of Directors it would be seriously detrimental to
the Company or its stockholders for a registration statement to be filed in the
near future, then the Company's obligation to use its best efforts to register,
qualify or comply under this Section 2.5 shall be deferred for a period not to
exceed 90 days from the date of receipt of written request from the Initiating
Holders, provided, however, that the Company shall not exercise the right to
defer registration granted pursuant to this paragraph (F) more than one time in
any twelve month period.
Subject to the foregoing clauses (A) through (F), the Company shall file a
registration statement covering the Demand Registrable Securities so requested
to be registered as soon as practicable after receipt of the request or requests
of the Initiating Holders.
(b) Underwriting. In the event that a registration pursuant to
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Section 2.5 is for a registered public offering involving an underwriting, the
Company shall so advise the Demand Holders as part of the notice given pursuant
to Section 2.5(a)(i). In such event, the right of any Demand Holder to
registration pursuant to Section 2.5 shall be conditioned upon such Demand
Holder's participation in the underwriting arrangements required by this Section
2.5, and the inclusion of such Demand Holder's Registrable Securities in the
underwriting to the extent requested shall be limited to the extent provided
herein.
The Company shall (together with all Demand Holders proposing to distribute
their securities through such underwriting) enter into an underwriting agreement
in customary form with the managing underwriter selected for such underwriting
by a majority in interest of the Initiating Holders, but subject to the
Company's reasonable approval. Notwithstanding any other provision of this
Section 2.5, if the managing underwriter advises the Initiating Holders in
writing that marketing factors require a limitation of the number of shares to
be underwritten, then (i) first the securities other than the Demand Registrable
Securities and (ii) next the securities requested to be registered by the
Company, shall be excluded from such registration. If a limitation of the
number of shares is thereafter still required, the Initiating Holders shall so
advise all Demand Holders of Registrable Securities and the number of shares of
Registrable Securities that may be included in the registration and underwriting
shall be allocated among all Demand Holders thereof in proportion, as nearly as
practicable, to the respective amounts of Registrable Securities held by such
Demand Holders at the time of filing the registration statement. No Registrable
Securities excluded from the underwriting by reason of the underwriter's
marketing limitation shall be included in such registration. To facilitate the
allocation of shares in accordance with the above provisions, the Company or the
underwriters may round the number of shares allocated to any Demand Holder to
the nearest 100 shares.
If any Demand Holder of Registrable Securities disapproves of the terms of
the underwriting, such person may elect to withdraw therefrom by written notice
to the Company, the managing
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underwriter and the Initiating Holders. Any securities excluded or withdrawn
from such underwriting, in the event that such underwriting represents the
initial underwritten public offering of the Company's securities, shall be
withdrawn from such registration, and shall not be transferred in a public
distribution prior to 180 days after the effective date of the registration
statement relating thereto, or such other shorter period of time as the
underwriters may require. If by the withdrawal of such Registrable Securities a
greater number of Registrable Securities held by other Demand Holders may be
included in such registration (up to the maximum of any limitation imposed by
the underwriters), then the Company shall offer to all Demand Holders who have
included Registrable Securities in the registration the right to include
additional Registrable Securities calculated in the same manner used in this
Section 2.5(b) in determining the allocation of shares to be sold when subject
to an underwriter limitation.
2.6 COMPANY REGISTRATION.
--------------------
(a) Notice of Registration. If at any time or from time to time the
----------------------
Company shall determine to register any of its securities, either for its own
account or the account of a security holder or holders, other than (i) a
registration relating solely to employee benefit plans, or (ii) a registration
relating solely to a Commission Rule 145 transaction, the Company will:
(i) give to each Holder at least 30 days prior written
notice thereof; and
(ii) include in such registration (and any related
qualification under blue sky laws or other compliance), and in any underwriting
involved therein, all the Registrable Securities specified in a written request
or requests, made within 20 days after receipt of such written notice from the
Company, by any Holder;
provided, however, that the Company shall not be obligated to take such actions
with respect to any SCIOS Holder if such registration is to be effected on any
form other than a registration statement or Form S-3 (or any successor form to
Form S-3)
(b) Underwriting. If the registration of which the Company gives
------------
notice is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as a part of the written notice given
pursuant to Section 2.6(a)(i). In such event the right of any Holder to
registration pursuant to Section 2.6 shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of Registrable Securities
in the underwriting to the extent provided herein. All Holders proposing to
distribute their securities through such underwriting shall (together with the
Company and the other holders distributing their securities through such
underwriting) enter into an underwriting agreement in customary form with the
managing underwriter selected for such underwriting by the Company.
Notwithstanding any other provision of this Section 2.6, if the managing
underwriter determines that marketing factors require a limitation of the number
of shares to be underwritten, the managing underwriter may limit (or exclude
entirely) the shares held by other holders of registration rights, and following
exclusion of such shares, the Registrable Securities to be included in such
registration; provided, however, in no event shall any shares being sold by a
stockholder exercising a demand registration right similar to that granted in
Section 2.5 be excluded from such
-12-
offering in a manner inconsistent with provisions similar to Section 2.5(b). The
Company shall advise all Holders and other holders exercising their registration
rights to distribute their securities through such underwriting of any such
limitation, and shall first limit (or exclude entirely) the shares held by
holders of registration rights (other than the Holders), and following exclusion
of such shares, the number of shares of Registrable Securities that may be
included in the registration and underwriting shall be allocated among all
Holders exercising their registration rights in proportion, as nearly as
practicable, to the respective amounts of Registrable Securities held by such
Holders. If any Holder or holder disapproves of the terms of any such
underwriting, it may elect to withdraw therefrom by written notice to the
Company and the managing underwriter. Any securities excluded or withdrawn from
such underwriting, in the event that such underwriting represents the initial
underwritten public offering of the Company's securities, shall be withdrawn
from such registration, and shall not be transferred in a public distribution
prior to 180 days after the effective date of the registration statement
relating thereto, or such other shorter period of time as the underwriters may
require.
(c) Right to Terminate Registration. The Company shall have the right
-------------------------------
to terminate or withdraw any registration initiated by it under this Section 2.6
prior to the effectiveness of such registration whether or not any Holder has
elected to include securities in such registration.
2.7 REGISTRATION ON FORM S-3.
------------------------
(a) If any S-3 Initiating Holder or Holders requests that the Company
file a registration statement on Form S-3 (or any successor form to Form S-3)
for a public offering of shares of the S-3 Registrable Securities, and the
Company is a registrant entitled to use Form S-3 to register the S-3 Registrable
Securities for such an offering, the Company shall: (i) promptly give written
notice of the proposed registration to all other S-3 Holders of Registrable
Securities and (ii) use its best efforts to cause, as soon as practicable, all
S-3 Registrable Securities to be registered as may be so requested for the
offering on such form and to cause such S-3 Registrable Securities to be
qualified in such jurisdictions as the S-3 Initiating Holder or other S-3
Holders may reasonably request. The substantive provisions of Section 2.5(b)
shall be applicable to each registration initiated under this Section 2.7.
(b) Notwithstanding the foregoing, the Company shall not be obligated
to take any action pursuant to this Section 2.7: (i) in any particular
jurisdiction in which the Company would be required to execute a general consent
to service of process in effecting such registration, qualification or
compliance unless the Company is already subject to service in such jurisdiction
and except as may be required by the Securities Act; or (ii) if the Company
shall furnish to such S-3 Initiating Holders a certificate signed by the
President of the Company stating that in the good faith judgment of the Board of
Directors it would be seriously detrimental to the Company or its stockholders
for registration statements to be filed in the near future, then the Company's
obligation to use its best efforts to file a registration statement shall be
deferred for a period not to exceed 90 days from the receipt of the request to
file such registration by such S-3 Initiating Holders, provided, however, that
the Company shall not exercise the right to defer registration granted by this
subparagraph (b)(ii) more than once in any twelve month period.
-13-
(c) Notwithstanding the foregoing, (i) this Section 2.7 shall not
apply to any SCIOS Holder, and no SCIOS Holder shall have any right or
obligation under this Section 2.7 until June 1, 1999 and (ii) the Company shall
not be required to include SCIOS Registration Securities in more than one (1)
registration pursuant to Section 2.7.
(d) Notwithstanding the foregoing, (i) this Section 2.7 shall apply
to any Xxxxxx-Xxxxxxx Holder, and Xxxxxx-Xxxxxxx Holder shall have rights and
obligations pursuant to this Section 2.7, only if such Xxxxxx-Xxxxxxx Holder is
unable to sell the Xxxxxx-Xxxxxxx Registrable Securities within eighteen (18)
months after the end of the Restriction Period (as defined in the Xxxxxx-Xxxxxxx
Agreement) pursuant to Rules 144(k) (or a successor rule) under the Securities
Act or pursuant to Section 2.6, (ii) the Company shall not be required to
include Xxxxxx-Xxxxxxx Registrable Securities in more than one (1) registration
pursuant to this Section 2.7, and (iii) the Company shall not be required to
include any Xxxxxx-Xxxxxxx Registrable Securities in any registration pursuant
to this Section 2.7 unless the expected net proceeds to Xxxxxx-Xxxxxxx exceeds
$5,000,000.
2.8 EXPENSES OF REGISTRATION.
------------------------
(a) All Registration Expenses incurred in connection with all
registrations pursuant to Sections 2.5 and 2.6, shall be borne by the Company.
Unless otherwise stated, all Selling Expenses relating to securities registered
on behalf of the Holders and all other Registration Expenses shall be borne by
the Holders of such securities pro rata on the basis of the number of shares so
registered.
(b) All Registration Expenses and Selling Expenses incurred in
connection with a registration pursuant to Section 2.7 shall be borne pro rata
by the Holder or Holders requesting the registration on Form S-3 according to
the number of Registrable Securities included in such registration.
2.9 REGISTRATION PROCEDURES. The Company will keep each Holder whose
-----------------------
Registrable Securities are included in any registration pursuant to this
Agreement advised as to the initiation and completion of such registration. At
its expense the Company will with all deliberate speed:
(a) Prepare and file with the Commission a registration statement
with respect to such securities and use its best efforts to cause such
registration statement to become and remain effective for at least one hundred
eighty (180) days or until the distribution described in the Registration
Statement has been completed;
(b) Furnish to the Holders participating in such registration and to
the underwriters of the securities being registered such reasonable number of
copies of the registration statement, preliminary prospectus, final prospectus
and such other documents as such underwriters may reasonably request in order to
facilitate the public offering of such securities;
(c) Prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statements as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement;
-14-
(d) Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or Blue Sky
laws of such jurisdictions as shall be reasonably requested by the Holders,
provided that the Company shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions; and
(e) In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter of such offering. Each Holder participating
in such underwriting shall also enter into and perform its obligations under
such an agreement.
2.10 INDEMNIFICATION
---------------
(a) The Company will indemnify each Holder, each of its officers and
directors and partners, and each person controlling such Holder within the
meaning of Section 15 of the Securities Act, with respect to which registration,
qualification or compliance has been effected pursuant to the Agreement, and
each underwriter, if any, and each person who controls any underwriter within
the meaning of Section 15 of the Securities Act, against all expenses, claims,
losses, damages or liabilities (or actions in respect thereof), including any of
the foregoing incurred in settlement of any litigation, commenced or threatened,
arising out of or based on any untrue statement (or alleged untrue statement) of
a material fact contained in any registration statement, prospectus, offering
circular or other document, or any amendment or supplement thereto, incident to
any such registration, qualification or compliance, or based on any omission (or
alleged omission) to state therein a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances in
which they were made, not misleading, or any violation by the Company of the
Securities Act or any rule or regulation promulgated under the Securities Act
applicable to the Company in connection with any such registration,
qualification or compliance, and the Company will reimburse each such Holder,
each of its officers and directors, and each person controlling such Holder,
each such underwriter and each person who controls any such underwriter, for any
legal and any other expenses reasonably incurred in connection with
investigating, preparing or defending any such claim, loss, damage, liability or
action, provided that the Company will not be liable in any such case to the
extent that any such claim, loss, damage, liability or expense arises out of or
is based on any untrue statement or omission or alleged untrue statement or
omission, made in reliance upon and in conformity with written information
furnished to the Company by an instrument duly executed by such Holder,
controlling person or underwriter and stated to be specifically for use therein.
(b) Each Holder will, if Registrable Securities held by such Holder
are included in the securities as to which such registration, qualification or
compliance is being effected, indemnify the Company, each of its directors and
officers, each underwriter, if any, of the Company's securities covered by such
a registration statement, each person who controls the Company or such
underwriter within the meaning of Section 15 of the Securities Act, and each
other such Holder, each of its officers, directors and partners and each person
controlling such Holder within the meaning of Section 15 of the Securities Act,
against all claims, losses, damages and liabilities (or actions in respect
thereof) arising out of or based on any untrue statement (or alleged untrue
statement) of a material fact contained in any such
-15-
registration statement, prospectus, offering circular or other document, or any
omission (or alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse the Company, such Holders, such directors, officers, partners,
persons, underwriters or control persons for any legal or any other expenses
reasonably incurred in connection with investigating or defending any such
claim, loss, damage, liability or action, in each case to the extent, but only
to the extent, that such untrue statement (or alleged untrue statement) or
omission (or alleged omission) is made in such registration statement,
prospectus, offering circular or other document in reliance upon and in
conformity with written information furnished to the Company by an instrument
duly executed by such Holder and stated to be specifically for use therein. In
no event shall any indemnity under this Section 2.10 exceed the proceeds from
the offering received by such Holder.
(c) Each party entitled to indemnification under this Section 2.10
(the "Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not unreasonably be
withheld), and the Indemnified Party may participate in such defense at such
party's expense, and provided further that the failure of any Indemnified Party
to give notice as provided herein shall not relieve the Indemnifying Party of
its obligations under this Section 2.10 unless the failure to give such notice
is materially prejudicial to an Indemnifying Party's ability to defend such
action and provided further, that the Indemnifying Party shall not assume the
defense for matters as to which there is a conflict of interest or separate and
different defenses. No Indemnifying Party, in the defense of any such claim or
litigation, shall, except with the consent of each Indemnified Party, consent to
entry of any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or
litigation. No Indemnifying Party shall be liable for indemnification hereunder
with respect to any settlement or consent to judgment, in connection with any
claim or litigation to which these indemnification provisions apply, that has
been entered into without the prior consent of the Indemnifying Party (which
consent will not be unreasonably withheld).
(d) If the indemnification provided for in this Section 2.10 is held
by a court of competent jurisdiction to be unavailable to an Indemnified Party
with respect to any losses, claims, damages or liabilities referred to herein,
the Indemnifying Party, in lieu of indemnifying such Indemnified Party
thereunder, shall to the extent permitted by applicable law contribute to the
amount paid or payable by such Indemnified Party as a result of such loss,
claim, damage or liability in such proportion as is appropriate to reflect the
relative fault of the Indemnifying Party on the one hand and of the Indemnified
Party on the other in connection with the untrue statement or omission or
alleged untrue statement or omission that resulted in such loss, claim, damage
or liability, as well as any other relevant equitable considerations. The
relative fault of the Indemnifying Party and of the Indemnified Party shall be
determined by a court of law by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission to state a
material fact relates to information supplied by the Indemnifying Party or by
the Indemnified Party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission;
-16-
provided, that in no event shall any contribution by a Holder hereunder exceed
the proceeds from the offering received by such Holder.
2.11 Information by Holder. The Holder or Holders of Registrable
---------------------
Securities included in any registration shall furnish to the Company such
information regarding such Holder or Holders, the Registrable Securities held by
it or them and the distribution proposed by such Holder or Holders as the
Company may request in writing and as shall be required in connection with any
registration, qualification or compliance referred to in this Section 2.11.
2.12 Rule 144 Reporting. With a view to making available the benefits of
------------------
certain rules and regulations of the Commission that may at any time permit the
sale of the Restricted Securities to the public without registration, after such
time as a public market exists for the Common Stock of the Company, the Company
agrees to use its diligent efforts to:
(i) Make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act, at all times after
the effective date that the Company becomes subject to the reporting
requirements of the Securities Act or the Securities Exchange Act of 1934, as
amended (the "Exchange Act");
(ii) File with the Commission in a timely manner all reports and
other documents required of the Company under the Securities Act and the
Exchange Act (at any time after it has become subject to such reporting
requirements); and
(iii) So long as a Holder owns any Restricted Securities, furnish to
the Holder forthwith upon request a written statement by the Company as to its
compliance with the reporting requirements of Rule 144 (at any time after ninety
(90) days after the effective date of the first registration statement filed by
the Company for an offering of its securities to the general public), and of the
Securities Act and the Exchange Act (at any time after it has become subject to
such reporting requirements), a copy of the most recent annual or quarterly
report of the Company, and such other reports and documents of the Company and
other information in the possession of or reasonably obtainable by the Company
as a Holder may reasonably request in availing itself of any rule or regulation
of the Commission allowing a Holder to sell any such securities without
registration.
2.13 TRANSFER OF REGISTRATION RIGHTS. The rights to cause the Company to
-------------------------------
register securities granted Purchasers under Sections 2.5, 2.6 and 2.7 may be
assigned (i) in connection with transactions involving the distribution without
consideration of Registrable Securities by any of the Purchasers to any of its
partners or retired partners or the estate of any of its partners or retired
partners, or (ii) to a transferee or assignee reasonably acceptable to the
Company in connection with any transfer or assignment of Registrable Securities
by a Purchaser, provided that (a) such transfer may otherwise be effected in
accordance with applicable securities laws, Sections 2.3 and 2.4 and as to
Xxxxxx-Xxxxxxx, Section 7 of the Xxxxxx-Xxxxxxx Agreement and as to SCIOS,
Section 14(c) of the SCIOS Agreement, and (b) such assignee or transferee
acquires at least 100,000 shares of the applicable Conversion Stock (adjusted
for stock splits, stock dividends, stock recombinations and the like after the
date of this Agreement).
-17-
2.14 STANDOFF AGREEMENT. Each Holder agrees in connection with the
------------------
Company's initial public offering of the Company's securities, (1) not to sell,
make short sale of, loan, grant any options for the purchase of, or otherwise
dispose of any securities of the Company (other than those securities included
in the registration) without the prior written consent of the Investor or the
underwriters managing such initial underwritten public offering of the Company's
securities (the "Managing Underwriter") for one hundred eighty (180) days from
the effective date of such registration, and (2) further agrees to execute any
agreement reflecting (1) above as may be requested by the Managing Underwriter,
provided that the officers and directors of the Company who own stock of the
Company also agree to such restrictions. Each Holder shall cause any proposed
purchaser, assignee, transferee or pledgee of any shares held by such Holder to
agree to take and hold such securities subject to this Section 2.14.
SECTION 3
MISCELLANEOUS
-------------
3.1 GOVERNING LAW. This Agreement shall be governed in all respects by
-------------
the internal laws of the State of Delaware.
3.2 SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, the
----------------------
provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto.
3.3 ENTIRE AGREEMENT; AMENDMENT. This Agreement constitutes the full and
---------------------------
entire understanding and agreement and supersedes any existing agreement between
the parties with regard to the subject matter hereof, including without
limitation any understanding or agreement relating to registration set forth in
the Class A and B Agreement, the Class B Agreement, the Theragen Agreement, the
Class C Agreement, the Second Class C Agreement, the SCIOS Agreement, the
Crystal Agreement, Section 8 of the Xxxxxx-Xxxxxxx Agreement and in Section
14(c) (but excluding the restrictions on transfer and/or legend requirements) of
the SCIOS Agreement. Except as expressly provided herein, neither this
Agreement nor any term hereof may be amended, waived, discharged or terminated
other than by a written instrument signed by the party against whom enforcement
of any such amendment, waiver, discharge or termination is sought; provided,
however, that (i) Demand Holders of sixty-six and two thirds percent (66-2/3%)
of Class A and B Registrable Securities, Theragen Preferred Registrable
Securities and Class C Registrable Securities may, with the Company's written
consent, waive, modify, or amend on behalf of all holders any provision of
Section 2.5, (ii) Holders of sixty-six and two thirds percent (66-2/3%) of the
Registrable Securities may, with the Company's written consent, waive, modify,
or amend on behalf of all holders any provision of Section 2.6, (iii) S-3
Holders of sixty-six and two thirds percent (66-2/3%) of Class A and B
Registrable Securities, Theragen Preferred Registrable Securities, Class C
Registrable Securities and Xxxxxx-Xxxxxxx Registrable Securities may, with the
Company's written consent, waive, modify, or amend on behalf of all holders any
provision of Section 2.7 (other than Section 2.7(c) and Section 2.7(d)), (iv)
SCIOS may, with the Company's written consent, waive, modify, or amend Section
1.5 and Section 2.7(c), (v) Xxxxxx-Xxxxxxx may, with the Company's
-18-
written consent, waive, modify, or amend Section 1.6 and Section 2.7(d), (vi)
the Holders of sixty-six and two thirds percent (66-2/3%) of the Class A
Preferred Stock and Class B Preferred Stock (on an as converted to Common Stock
basis) issued pursuant to the Class A and B Agreement may, with the Company's
written consent, waive, modify, or amend Section 1.1, (vii) the Holders of
sixty-six and two thirds percent (66-2/3%) of the Class B Preferred Stock (on an
as converted to Common Stock basis) issued pursuant to the Class B Agreement
may, with the Company's written consent, waive, modify, or amend Section 1.2,
(viii) the Holders of a majority of the Class C Preferred Stock (on an as
converted to Common Stock basis) issued pursuant to the Class C Agreement may,
with the Company's written consent, waive, modify, or amend Section 1.3, (ix)
the Holders of a majority of the Class C Preferred Stock (on an as converted to
Common Stock basis) issued pursuant to the Second Class C Agreement may, with
the Company's written consent, waive, modify, or amend Section 1.4, (x) the
Holders of a majority of the Crystal Conversion Stock may, with the Company's
written consent, waive, modify, or amend Section 1.7 and (xi) Holders of a
majority of Registrable Securities may, with the Company's written consent,
waive, modify, or amend Section 2 (other than Section 2.5, Section 2.6 and
Section 2.7) and Section 3 (other than Section 3.3(i), (ii), (iii), (iv), (v),
through (x)).
3.4 NOTICES. All notices and other communications required or permitted
-------
hereunder shall be in writing and shall be mailed by registered or certified
mail, postage prepaid, or otherwise delivered by hand or by messenger, addressed
(a) if to a Purchaser, at such address as the Purchaser shall have furnished to
the Company in writing, (b) if to any other Holder at such address as such
Holder shall have furnished the Company in writing, or, until any such Holder so
furnishes an address to the Company, then to and at the address of the last
Holder of such shares who has so furnished an address to the Company, or (c) if
to the Company, at 00000 Xxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000 addressed to
the attention of the Chief Executive Officer, or at such other address as the
Company shall have furnished to the Purchasers. Each such notice or other
communication shall for all purposes of this Agreement be treated as effective
or having been given when delivered if delivered personally or sent by telegram,
telefax or telex (receipt confirmed), or, if sent by mail, at the earlier of its
receipt or 72 hours after the same has been deposited in a regularly maintained
receptacle for the deposit of the United States mail, addressed and mailed as
described above, or if sent by electronic mail, then one business day following
delivery. Notwithstanding anything in this Agreement to the contrary, a
consent, waiver, modification or amendment delivered by electronic mail shall be
effective.
3.5 DELAYS OR OMISSIONS. Except as expressly provided herein, no delay
-------------------
or omission to exercise any right, power or remedy accruing to any holder of any
Registrable Securities, upon any breach or default of the Company under this
Agreement, shall impair any such right, power or remedy of such holder nor shall
it be construed to be a waiver of any such breach or default, or an acquiescence
therein, or of or in any similar breach or default thereafter occurring; nor
shall any waiver of any single breach or default be deemed a waiver of any other
breach or default theretofore or thereafter occurring. Any waiver, permit,
consent or approval of any kind or character on the part of any holder of any
breach or default under this Agreement, or any waiver on the part of any holder
of any provisions or conditions of this Agreement, must be in writing and shall
be effective only to the extent specifically set forth in such writing and as
set forth in Section 3.3 above. All remedies, either under this Agreement or by
law or otherwise afforded to any holder, shall be cumulative and not
alternative. Except as expressly provided herein, no delay or omission to
exercise any right, power, or remedy occurring to the Company,
-19-
upon any breach or default of the holder under this Agreement, shall impair any
such right, power, or remedy of the Company, nor shall it be construed to be a
waiver of any such breach or default, or an acquiescence therein, or of or in
any similar breach or default thereafter occurring; nor shall any waiver of any
single breach or default be deemed a waiver of any other breach or default
theretofore or thereafter occurring. Any waiver, permit, consent or approval of
any kind or character on the part of the Company of any breach of default under
this Agreement, or any waiver on the part of the Company of any provisions or
conditions of this Agreement, must be in writing and shall be effective only to
the extent specifically set forth in such writing. All remedies, either under
this Agreement or by law or otherwise afforded to the Company, shall be
cumulative and not alternative.
3.6 EXPENSES. The Company and each Purchaser shall bear its own expenses
--------
incurred on its behalf with respect to this Agreement and the transactions
contemplated hereby (except as otherwise provided herein) and any amendments or
waivers hereto.
3.7 ATTORNEYS' FEES. In the event of any litigation in a court of
---------------
competent jurisdiction arising in connection with this Agreement and the
transactions contemplated hereby, the prevailing party in judgment shall be
entitled to recover reasonable legal fees and costs in connection with such
action.
3.8 COUNTERPARTS. This Agreement may be executed in any number of
------------
counterparts, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one
instrument.
3.9 SEVERABILITY. In the event that any provision of this Agreement
------------
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision; provided that no such severability shall be effective if
it materially changes the economic benefit of this Agreement to any party.
3.10 TITLES AND SUBTITLES. The titles and subtitles used in this
--------------------
Agreement are used for convenience only and are not considered in construing or
interpreting this Agreement.
3.11 INAPPLICABILITY OF CERTAIN SECTIONS TO XXXXXX-XXXXXXX. Sections 2.2,
-----------------------------------------------------
2.3 and 2.4 shall not apply to the Xxxxxx-Xxxxxxx Preferred and the Xxxxxx-
Xxxxxxx Conversion Stock, and instead the provisions of Section 7 of the Xxxxxx-
Xxxxxxx Agreement shall continue to govern the transferability of such shares.
All provisions of the Xxxxxx-Xxxxxxx Agreement (except Section 8, which is
superseded by this Agreement) shall continue in full force and effect.
-20-
The foregoing Agreement is hereby executed as of the date first written
above.
"COMPANY"
GENVEC, INC.
a Delaware corporation
By:____________________________________
Xxxx Xxxxxxx, Ph.D.
President and Chief Executive Officer
ARCH VENTURE FUND, LIMITED PARTNERSHIP
By: ARCH Development Corporation
General Partner
By:____________________________________
Name:
Title:
ARCH VENTURE FUND II, L.P.
By: ARCH Management Partners II, L.P.
General Partner
By: ARCH Venture Partners, L.P.
General Partner
By: ARCH Venture Corporation
General Partner
By:____________________________________
Name:
Title:
[REGISTRATION RIGHTS AGREEMENT DATED 4/22/98]
-00-
XXXXX X. XXXXXXX
By:____________________________________
Xxxxxxx X. Xxxxx
Attorney-In-Fact
XXXXXX XXXX
_______________________________________
BIOTECH GROWTH SA
By:____________________________________
Name:
Title:
CANAAN CAPITAL LIMITED PARTNERSHIP
By: Canaan Capital Management L.P.
General Partner
By: Canaan Capital Partners L.P.
General Partner
By:____________________________________
Xxxxx X. Xxxx
Managing General Partner
CANAAN CAPITAL OFFSHORE LIMITED PARTNERSHIP, C.V.
By: Canaan Capital Management L.P.
General Partner
By: Canaan Capital Partners L.P.
General Partner
By:____________________________________
Xxxxx X. Xxxx
Managing General Partner
[REGISTRATION RIGHTS AGREEMENT DATED 4/22/98]
-22-
CANAAN S.B.I.C., L.P.
By: Canaan S.B.I.C. Partners, L.P.
General Partner
By:____________________________________
Xxxxx X. Xxxx
Managing General Partner
XXXXXX XXXXXX
_______________________________________
CIP CAPITAL L.P.
By:____________________________________
Name:
Title:
THE CIT GROUP/VENTURE CAPITAL, INC.
By:____________________________________
Name:
Title:
XXXXXX X. XXXXXX
_______________________________________
XXXXXXX X. XXXXXX
_______________________________________
[REGISTRATION RIGHTS AGREEMENT DATED 4/22/98]
-00-
XXXX XXXXXX
_______________________________________
DIFCO, INC.
By:____________________________________
Name:
Title:
ENTERPRISE DEVELOPMENT FUND, L.P.
By:____________________________________
Xxxxxx X. Xxxxxx
General Partner
ENTERPRISE DEVELOPMENT FUND LIMITED PARTNERSHIP
By:____________________________________
Xxxxxx X. Xxxxxx
General Partner
ENTERPRISE DEVELOPMENT FUND LIMITED PARTNERSHIP
By:____________________________________
X. Xxxxxx
General Partner
[REGISTRATION RIGHTS AGREEMENT DATED 4/22/98]
-24-
XXXXXXXXXXX XXXXX
_______________________________________
XXXXX X. XXXX
_______________________________________
FOURTH GENERATION PARTNERS
By:____________________________________
Xxxxxxx X. Xxxxx
Managing Partner
GENENTECH, INC.
By:____________________________________
Name: Xxxxxxx X. Xxxx
Title: Vice President, Corporate Law
XXXXXX X. XXXXXXXX, III
_______________________________________
XXXXXXX MEDICAL VENTURES 1992 L.P.
By: Xxxxxxx/Dover Limited
Partnership, General Partner
By: Wilmington Securities, Inc.
General Partner of Xxxxxxx/Dover Limited
Partnership
By:____________________________________
Xxxxxxx Xxxxxx
Vice President
[REGISTRATION RIGHTS AGREEMENT DATED 4/22/98]
-25-
XXXXXXX MEDICAL VENTURES 1993 L.P.
By: Xxxxxxx/Dover Limited
Partnership, General Partner
By: Wilmington Securities, Inc.
General Partner of Xxxxxxx/Dover Limited
Partnership
By:____________________________________
Xxxxxxx Xxxxxx
Vice President
XXXXXXX MEDICAL VENTURES 1994 L.P.
By: Xxxxxxx/Dover Limited Partnership
General Partner
By: Wilmington Securities, Inc.
General Partner of Xxxxxxx/Dover Limited
Partnership
By:____________________________________
Xxxxxxx Xxxxxx
Vice President
LEAF XXXXX
_______________________________________
XXXXXXXXX X. XXXXXXX
_______________________________________
XXXXX X. XXXXXXX
_______________________________________
[REGISTRATION RIGHTS AGREEMENT DATED 4/22/98]
-26-
MINDFUL PARTNERS
By:____________________________________
Xxxxxx Xxxxxx
General Partner
XXXXX X. & XXXX X. PEAR, TENANTS IN ENTIRETIES
By:____________________________________
Xxxxx X. Pear
By:____________________________________
Xxxx X. Pear
PRINCE VENTURE PARTNERS III, L.P.
By: PRINCE VENTURE, L.P.
General Partner
By:____________________________________
Xxxxxxx Xxxx
General Partner
PRISM PARTNERS I
By:____________________________________
Xxxxx Xxxxxxxxx
General Partner
QUAI LIMITED
By:____________________________________
Xxxxxxxxx Xxxxxxx
Attorney-In-Fact
XXXX XXXXXXX
______________________________________
XXXX XXXXX
_______________________________________
[REGISTRATION RIGHTS AGREEMENT DATED 4/22/98]
-00-
XXXXXX XXXXXXX IV, L.P.
By: SV ASSOCIATES IV, L.P.
General Partner
By:____________________________________
Petri Vainio
General Partner
SIERRA VENTURES INTERNATIONAL IV, L.P.
By: SV ASSOCIATES IV, L.P.
General Partner
By:____________________________________
Petri Vainio
General Partner
XXXXX X. XXXXX, PH.D.
_______________________________________
STATE OF MICHIGAN RETIREMENT SYSTEM
By: State Treasurer of the State of Michigan,
Custodian of the Michigan Public School
Employees' Retirement System, State
Employees' Retirement System, Michigan State
Police Retirement System, and Michigan Judges
Retirement System
By:____________________________________
Xxxx X. Xxxx
Administrator, Alternative
Investment Division
XXXXX X. XXXX
_______________________________________
[REGISTRATION RIGHTS AGREEMENT DATED 4/22/98]
-28-
XXXXXX-XXXXXXX COMPANY
By:____________________________________
Name:
Title:
[REGISTRATION RIGHTS AGREEMENT DATED 4/22/98]
-29-
XXXXXX XXXXXXXXXX
_______________________________________
[REGISTRATION RIGHTS AGREEMENT DATED 4/22/98]
-30-
XXXXXX X. CRYSTAL, M.D.
_______________________________________
[REGISTRATION RIGHTS AGREEMENT DATED 4/22/98]
-31-
SCIOS, INC.
By:____________________________________
Name:
Title:
[REGISTRATION RIGHTS AGREEMENT DATED 4/22/98]
-32-
SCHEDULE 1
----------
Arch Venture Fund Limited Partnership
Arch Venture Fund II, L.P.
Genentech, Inc.
Xxxxxxx Medical Ventures 1992, X.X.
Xxxxxxx Medical Ventures 1993, L.P.
Prince Venture Partners III, L.P.
Sierra Ventures IV, L.P.
Sierra Ventures International IV, L.P.
-33-
SCHEDULE 2
----------
Arch Venture Fund Limited Partnership
Arch Venture Fund II, L.P.
-34-
SCHEDULE 3
----------
Xxxxxx Xxxx
Xxxxxx Xxxxxx
Xxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Xxxx XxXxxx
Enterprise Development Fund Limited Partnership
Xxxxxxxxxxx Xxxxx
Xxxxx X. Xxxx
Xxxxxx X. Xxxxxxxx, III
Leaf Xxxxx
Xxxxxxxxx X. Xxxxxxx
Xxxxx X. XxXxxxx
Xxxx Xxxxxxx
Xxxxx X. Xxxxx, Ph.D.
Xxxxx X. Xxxx
Xxxxxx-Xxxxxxx Company
Xxxxxx Xxxxxxxxxx
-35-
SCHEDULE 4
----------
Difco, Inc.
Enterprise Development Fund Limited Partnership
Xxxx Xxxxx
Xxxxxx-Xxxxxxx Company
-36-
SCHEDULE 5
----------
Arch Venture Fund II, L.P.
Enterprise Development Fund, L.P.
Genentech, Inc.
Xxxxxxx Medical Ventures 1994, L.P.
Prince Venture Partners III, L.P.
Sierra Ventures IV, L.P.
Sierra Ventures International IV, L.P.
-37-
SCHEDULE 6
----------
Xxxxx X. Xxxxxxx
Biotech Growth SA
Canaan Capital Limited Partnership
Canaan Capital Offshore Limited Partnership, C.V.
Canaan S.B.I.C., L.P.
CIP Capital L.P.
The CIT Group/Venture Capital, Inc.
Fourth Generation Partners
Mindful Partners, L.P.
Prism Partners I, L.P.
Quai Limited
State of Michigan Retirement System
Xxxxx and Xxxx Pear
-38-
