EXHIBIT 4.5
REGISTRATION RIGHTS
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated the ____ of April, 1999,
between ____________________ (the "Holder") and GALAGEN INC., a Delaware
corporation (the "Company").
WHEREAS, simultaneously with the execution and delivery of this
Agreement, the Holder is purchasing from the Company, pursuant to a Subscription
Agreement and Investment Letter of even date herewith (the "Subscription
Agreement"), shares of Common Stock of the Company (the "Shares"); and
WHEREAS, the Company desires to grant to the Holder the registration
rights set forth herein with respect to the Shares;
NOW, THEREFORE, the parties hereto mutually agree as follows:
Section 1. REGISTRABLE SECURITIES. As used herein the term
"Registrable Security" means the Shares; provided, however, that with respect to
any particular Registrable Security, such security shall cease to be a
Registrable Security when, as of the date of determination, (i) it has been
effectively registered under the Securities Act of 1933, as amended (the "Act"),
and disposed of pursuant thereto, (ii) registration under the Act is no longer
required for the immediate public distribution of such security as a result of
the provisions of Rule 144(k) promulgated under the Act, or (iii) it has ceased
to be outstanding. The term "Registrable Securities" means any and/or all of
the securities falling within the foregoing definition of a "Registrable
Security." In the event of any merger, reorganization, consolidation,
recapitalization or other change in corporate structure affecting the Common
Stock of the Company, such adjustment shall be made in the definition of
"Registrable Security" as is appropriate in order to prevent any dilution or
enlargement of the rights granted pursuant to this Section 1.
Section 2. RESTRICTIONS ON TRANSFER. The Holder acknowledges and
understands that prior to the registration of the Shares as provided herein, the
Shares are "restricted securities" as defined in Rule 144 promulgated under the
Act. The Holder understands that no disposition or transfer of the Shares may
be made by Holder in the absence of (i) an opinion of counsel from counsel to
the Holder, which opinion and counsel shall be reasonably satisfactory to the
Company and its counsel, that such transfer may be made without registration
under the Act or (ii) such registration.
Section 3. REGISTRATION RIGHTS.
(a) The Company shall, within four months of the date hereof,
file with the Securities and Exchange Commission (the "Commission"), at the sole
expense of the
Company (except as provided in Section 3(c) hereof), in respect
of all Registrable Securities, a registration statement under the Act so as to
permit a public offering and sale of the Registrable Securities under the Act
(the "Registration Statement").
(b) The Company will keep any Registration Statement or
post-effective amendment filed under this Section 3 current under the Act until
the earliest of (i) the date that all of the Registrable Securities have been
sold pursuant to the Registration Statement, (ii) the date that the Registrable
Securities may be sold under the provisions of Rule 144(k) or (iii) the second
anniversary of the effective date of the Registration Statement.
(c) Except as otherwise provided in Section 9 hereof, all fees,
disbursements and out-of-pocket expenses and costs incurred by the Company in
connection with the preparation and filing of any Registration Statement under
subparagraph 3(a) and in complying with applicable securities and Blue Sky laws
(including, without limitation, all attorneys' fees) shall be borne by the
Company. The Holder shall bear the cost of underwriting discounts and
commissions, if any, applicable to the Registrable Securities being registered
and the fees and expenses of its counsel. The Company shall use its best
efforts to qualify any of the Registrable Securities for sale in such states as
the Holder reasonably designates and shall furnish indemnification in the manner
provided in Section 6 hereof. However, the Company shall not be required to
qualify in any state which will require an escrow or other restriction relating
to the Company and/or the sellers. The Company at its expense will supply the
Holder with copies of the Registration Statement and the prospectus included
therein (the "Prospectus") and other related documents in such quantities as may
be reasonably requested by the Holder.
(d) No provision contained herein shall preclude the Company
from selling securities pursuant to any Registration Statement in which it is
required to include Registrable Securities pursuant to this Section 3.
(e) If, at any time or from time to time after the effective
date of the Registration Statement, the Company notifies the Holder in writing
of the existence of a Potential Material Event (as hereinafter defined), the
Holder shall not offer or sell any Registrable Securities or engage in any other
transaction involving or relating to Registrable Securities, from the time of
the giving of notice with respect to a Potential Material Event until the Holder
receives written notice from the Company that such Potential Material Event
either has been disclosed to the public or no longer constitutes a Potential
Material Event; PROVIDED, HOWEVER, that the Company may not so suspend the
rights of the Holder for more than one (1) thirty (30) day period and one (1)
twenty (20) day period in the aggregate during any twelve month period, with at
least a ten (10) business day interval between such periods, during the period
the Registration Statement is required to be in effect.
"Potential Material Event" means any of the following: (a) the
possession by the Company of material information not ripe for disclosure in a
registration statement (including disclosure to be made in a document filed
pursuant to the Securities Exchange Act of 1934, as amended, and incorporated by
reference into such registration statement (an "Incorporated Document")), which
shall be evidenced by determinations in good faith by the Chief Executive
Officer or the Board of Directors of the Company that disclosure of such
information in the
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Registration Statement (or in an Incorporated Document) would
be detrimental to the business and affairs of the Company; or (b) any material
engagement or activity by the Company which would, in the good faith
determination of the Chief Executive Officer or the Board of Directors of the
Company, be adversely affected by disclosure in a registration statement
(including disclosure to be made in an Incorporated Document) at such time,
which determination shall be accompanied by a good faith determination by the
Chief Executive Officer or the Board of Directors of the Company that the
Registration Statement (including any Incorporated Documents) would be
materially misleading absent the inclusion of such information.
Section 4. COOPERATION WITH COMPANY. The Holder will cooperate with
the Company in all respects in connection with this Agreement, including timely
supplying all information reasonably requested by the Company and executing and
returning all documents reasonably requested in connection with the registration
and sale of the Registrable Securities.
Section 5. REGISTRATION PROCEDURES. In connection with the
registration of the Registrable Securities under the Act, the Company shall
(except as otherwise provided in this Agreement), as expeditiously as possible:
(a) prepare and file with the Commission such amendments and
supplements to the Registration Statement and the Prospectus as may be necessary
to keep the Registration Statement effective and to comply with the provisions
of the Act with respect to the sale or other disposition of all securities
covered by the Registration Statement whenever the Holder of the Registrable
Securities shall desire to sell or otherwise dispose of the same (including
prospectus supplements with respect to the sales of securities from time to time
pursuant to Rule 415 promulgated under the Act);
(b) furnish to the Holder such numbers of copies of the
Prospectus, including any amendment or supplement thereto, in conformity with
the requirements of the Act, as the Holder may reasonably request in order to
facilitate the public sale or other disposition of the Registrable Securities
owned by the Holder;
(c) use its best efforts to register and qualify the Registrable
Securities covered by the Registration Statement under such other securities or
blue sky laws of such jurisdictions as the Holder shall reasonably request
(subject to the limitations set forth in Section 3(c) above), and do any and all
other acts and things which may be necessary or advisable to enable the Holder
to consummate the public sale or other disposition in such jurisdiction of the
Registrable Securities owned by the Holder, except that the Company shall not
for any such purpose be required to qualify to do business as a foreign
corporation in any jurisdiction wherein it is not so qualified or to file
therein any general consent to service of process;
(d) use its best efforts to list the Registrable Securities on
the Nasdaq National Market or other national securities exchange on which any
securities of the Company are then listed, if the listing of such securities is
then permitted under the rules of Nasdaq or of such exchange;
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(e) enter into and perform its obligations under an underwriting
agreement, if the offering is an underwritten offering, in usual and customary
form, with the managing underwriter or underwriters of such underwritten
offering; and
(f) notify the Holder, at any time when a Prospectus relating
thereto covered by the Registration Statement is required to be delivered under
the Act, of the happening of any event of which it has knowledge as a result of
which the Prospectus included in the Registration Statement, as then in effect,
includes an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in the light of the circumstances then existing.
Section 6. INDEMNIFICATION.
(a) In the event of the filing of any Registration Statement
with respect to Registrable Securities pursuant to Section 3 hereof, the Company
agrees to indemnify and hold harmless the Holder and each person, if any, who
controls the Holder within the meaning of the Act (the "Distributing Holder")
against any losses, claims, damages or liabilities, joint or several (which
shall, for all purposes of this Agreement, include, but not be limited to, all
costs of defense and investigation and all attorneys' fees), to which the
Distributing Holder may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in the Registration Statement, or any related
preliminary prospectus, Prospectus or amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that the Company will not be liable
in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in such Registration Statement, preliminary
prospectus, Prospectus or amendment or supplement thereto in reliance upon, and
in conformity with, written information furnished to the Company by the
Distributing Holder specifically for use in the preparation thereof. This
Section 6(a) shall not inure to the benefit of any Distributing Holder with
respect to any person asserting such loss, claim, damage or liability who
purchased the Registrable Securities which are the subject thereof if the
Distributing Holder failed to send or give (in violation of the Act or the rules
and regulations promulgated thereunder) a copy of the Prospectus contained in
the Registration Statement to such person at or prior to the written
confirmation to such person of the sale of such Registrable Securities, where
the Distributing Holder was obligated to do so under the Act or the rules and
regulations promulgated thereunder. This indemnity agreement will be in
addition to any liability which the Company may otherwise have.
(b) Each Distributing Holder agrees that it will indemnify and
hold harmless the Company, and each officer and director of the Company or
person, if any, who controls the Company within the meaning of the Act, against
any losses, claims, damages or liabilities (which shall, for all purposes of
this Agreement, include, but not be limited to, all costs of defense and
investigation and all attorneys' fees) to which the Company or any such officer,
director or controlling person may become subject under the Act or otherwise,
insofar as such
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losses claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of
any material fact contained in the Registration Statement, or any related
preliminary prospectus, Prospectus or amendment or supplement thereto, or
arise out of or are based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, but in each case only to the extent
that such untrue statement or alleged untrue statement or omission or alleged
omission was made in such Registration Statement, preliminary prospectus,
Prospectus or amendment or supplement thereto in reliance upon, and in
conformity with, written information furnished to the Company by such
Distributing Holder specifically for use in the preparation thereof. The
indemnity obligation of the Distributing Holder set forth in this Section
6(b) shall not exceed the proceeds received by the Distributing Holder upon a
sale of Registrable Securities pursuant to the Registration Statement. This
indemnity agreement will be in addition to any liability which the
Distributing Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 6, notify the indemnifying party of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve the
indemnifying party from any liability which it may have to any indemnified party
except to the extent the indemnified party's failure to so notify in breach of
this Section 6(c) materially prejudices the indemnifying party's ability to
defend such action or claim. In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate in, and, to the
extent that it may wish, jointly with any other indemnifying party similarly
notified, assume the defense thereof, subject to the provisions herein stated
and after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this Section 6 for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation, unless the
indemnifying party shall not pursue the action to its final conclusion. The
indemnified party shall have the right to employ separate counsel in any such
action and to participate in the defense thereof, but the fees and expenses of
such counsel shall not be at the expense of the indemnifying party if the
indemnifying party has assumed the defense of the action with counsel reasonably
satisfactory to the indemnified party; provided that if the indemnified party is
the Distributing Holder, the fees and expenses of such counsel shall be at the
expense of the indemnifying party if (i) the employment of such counsel has been
specifically authorized in writing by the indemnifying party, or (ii) the named
parties to any such action (including any impleaded parties) include both the
Distributing Holder and the indemnifying party and the Distributing Holder shall
have been advised by such counsel that there may be one or more legal defenses
available to the indemnifying party different from or in conflict with any legal
defenses which may be available to the Distributing Holder (in which case the
indemnifying party shall not have the right to assume the defense of such action
on behalf of the Distributing Holder, it being understood, however, tha the
indemnifying party shall, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances, be liable only for the reasonable
fees and
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expenses of one separate firm of attorneys for the Distributing Holder,
which firm shall be designated in writing by the Distributing Holder). No
indemnifying party shall, without the written consent of the indemnified party,
effect the settlement or compromise of any action in respect of which
indemnification may be sought hereunder unless such settlement or compromise
includes an unconditional release of the indemnified party from all liability
arising out of such action or claim.
Section 7. CONTRIBUTION. In order to provide for just and equitable
contribution under the Act in any case in which (i) the indemnified party makes
a claim for indemnification pursuant to Section 6 hereof but is judicially
determined (by the entry of a final judgment or decree by a court of competent
jurisdiction and the expiration of time to appeal or the denial of the last
right of appeal) that such indemnification may not be enforced in such case
notwithstanding the fact that the express provisions of Section 6 hereof provide
for indemnification in such case, or (ii) contribution under the Act may be
required on the part of any indemnified party, then the Company and the
applicable Distributing Holder shall contribute to the aggregate losses, claims,
damages or liabilities to which they may be subject (which shall, for all
purposes of this Agreement, include, but not be limited to, all costs of defense
and investigation and all attorneys' fees), in either such case (after
contribution from others) on the basis of relative fault as well as any other
relevant equitable considerations. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company on the one hand or the applicable
Distributing Holder on the other hand, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Distributing Holder agree that it
would not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to in this
Section 7. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this Section 7 shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
Section 8. NOTICES. Any notice pursuant to this Agreement by the
Company or by the Holder shall be in writing and shall be deemed to have been
duly given if delivered by (i) hand, (ii) by facsimile and followed by mail
delivery, (iii) if mailed by certified mail, return receipt requested, postage
prepaid, or (iv) if sent by overnight courier, addressed as follows:
(a) If to the Holder, to its, his or her address set forth on
the signature page of this Agreement.
(b) If to the Company, at GalaGen Inc., 0000 Xxx Xxx Xxxx, Xxxxx
Xxxxx, Xxxxxxxxx 00000, Attn: Chief Executive Officer, (tele) (000) 000-0000,
(fax) (000) 000-0000,
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or to such other address as any such party may designate by notice to the other
party. Notices shall be deemed given at the time they are delivered personally
or five (5) days after they are mailed in the manner set forth above or two (2)
days after they are sent by overnight courier in the manner set forth above. If
notice is delivered by facsimile to the Company and followed by mail, delivery
shall be deemed given two (2) days after such facsimile is sent.
Section 9. ASSIGNMENT. This Agreement is binding upon and inures to
the benefit of the parties hereto and their respective heirs, successors and
permitted assigns. This Agreement cannot be assigned, amended or modified by the
parties hereto, except by written agreement executed by the parties; provided,
however, that in the event that the Holder transfers any of the Shares to an
Affiliate (as defined in Rule 405 under the Act) of the Holder in accordance
with the provisions of the Subscription Agreement, the Holder may, without the
consent of the Company, concurrently assign the rights under this Agreement with
respect to such Shares to such Affiliate if such Affiliate agrees to pay all
expenses incurred by the Company in connection with such transfer and assignment
including, without limitation, any expenses associated with amending the
Registration Statement.
Section 10. COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 11. HEADINGS. The headings in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
Section 12. GOVERNING LAW, VENUE. This Agreement shall be governed
by and construed in accordance with the laws of the State of Delaware applicable
to contracts made and to be performed entirely within such State, without regard
to its principles of conflicts of laws.
Section 13. SEVERABILITY. If any provision of this Agreement shall
for any reason be held invalid or unenforceable, such invalidity or
unenforceablity shall not affect any other provision hereof and this Agreement
shall be construed as if such invalid or unenforceable provision had never been
contained herein.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, on the day and year first above written.
GALAGEN INC.
By ________________________________
Its ____________________________
HOLDER:
___________________________________
By ________________________________
Its ____________________________
Address: __________________________
___________________________________
___________________________________
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