Exhibit 10.1
RESALE REGISTRATION RIGHTS AGREEMENT
between
CELL GENESYS, INC.,
X.X. XXXXXX SECURITIES INC. and
XXXXXX BROTHERS INC.
as representatives of the Initial Purchasers
DATED AS OF OCTOBER 20, 2004
TABLE OF CONTENTS
Page
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1. Definitions......................................................................... 1
2. Shelf Registration.................................................................. 4
3. Additional Amounts.................................................................. 6
4. Registration Procedures............................................................. 7
5. Registration Expenses............................................................... 13
6. Indemnification and Contribution.................................................... 14
7. Rule 144A........................................................................... 17
8. Participation in Underwritten Registrations......................................... 18
9. Miscellaneous....................................................................... 18
i
RESALE REGISTRATION RIGHTS AGREEMENT, dated as of October 20, 2004,
between Cell Genesys, Inc., a Delaware corporation (together with any successor
entity, herein referred to as the "Company"), X.X. Xxxxxx Securities Inc. and
Xxxxxx Brothers Inc., as representatives of the several initial purchasers (the
"Initial Purchasers") listed on Schedule I to the purchase agreement dated
October 14, 2004 between the Company and the Initial Purchasers (the "Purchase
Agreement").
Pursuant to the Purchase Agreement, the Initial Purchasers have agreed to
purchase from the Company $110,000,000 ($145,000,000 if the Initial Purchasers
exercise their option in full) aggregate principal amount of 3.125% Convertible
Senior Notes due 2011 (the "Notes"). The Notes initially will be convertible
into fully paid, nonassessable shares of common stock, par value $0.001 per
share, of the Company (the "Common Stock") on the terms, and subject to the
conditions, set forth in the Indenture (as defined herein). To induce the
Initial Purchasers to purchase the Notes, the Company has agreed to provide the
registration rights set forth in this Agreement pursuant to the Purchase
Agreement.
The parties hereby agree as follows:
1. Definitions. As used in this Agreement, the following capitalized
terms shall have the following meanings:
Additional Amounts: As defined in Section 3(a) hereof.
Additional Amounts Each May 1 and November 1, commencing
Payment Date: May 1, 2005.
Affiliate: As such term is defined in Rule 405
under the Securities Act.
Agreement: This Resale Registration Rights
Agreement, as amended, modified or
otherwise supplemented from time to
time in accordance with the terms
hereof.
Blue Sky Application: As defined in Section 6(a)(i) hereof.
Business Day: A day other than a Saturday or Sunday
or any day on which banking
institutions in The City of New York
are authorized or obligated by law or
executive order to close.
Closing Date: The date of this Agreement.
Commission: Securities and Exchange Commission.
Common Stock: As defined in the preamble hereto.
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Company: As defined in the preamble hereto.
Effectiveness Period: As defined in Section 2(a)(iii)
hereof.
Effectiveness Target Date: As defined in Section 2(a)(ii)
hereof.
Exchange Act: Securities Exchange Act of 1934, as
amended, and the rules and
regulations of the Commission
thereunder.
Holder: A Person who owns, beneficially or
otherwise, Transfer Restricted
Securities.
Indemnified Holder: As defined in Section 6(a) hereof.
Indenture: The Indenture, dated as of October
20, 2004, between the Company and
U.S. Bank National Association, as
trustee (the "Trustee"), pursuant to
which the Notes are to be issued, as
such Indenture is amended, modified
or supplemented from time to time in
accordance with the terms thereof.
Initial Purchasers: As defined in the preamble hereto.
Interest Payment Date: Each May 1 and November 1 of each
year, commencing May 1, 2005.
Majority of Holders: Holders holding more than 50% of the
aggregate principal amount of Notes
outstanding; provided that, for
purpose of this definition, a holder
of shares of Common Stock which
constitute Transfer Restricted
Securities when issued upon
conversion of the Notes shall be
deemed to hold an aggregate principal
amount of Notes (in addition to the
principal amount at maturity of Notes
held by such holder) equal to $1,000
times the quotient of (i) the number
of such shares of Common Stock
received upon conversion of the Notes
and then held by such holder divided
by (ii) the conversion rate(s) in
effect at the time such holder
converted Notes into such shares of
Common Stock.
NASD: National Association of Securities
Dealers, Inc.
Notes: As defined in the preamble hereto.
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Person: An individual, partnership,
corporation, unincorporated
organization, limited liability
company, trust, joint venture or a
government or agency or political
subdivision thereof.
Prospectus: The prospectus included in a
Shelf Registration Statement, as
amended or supplemented by any
prospectus supplement and by all
other amendments thereto,
including post-effective
amendments, and all material
incorporated by reference into
such Prospectus.
Purchase Agreement: As defined in the preamble hereto.
Questionnaire: As defined in Section 2(b) hereof.
Questionnaire Deadline: As defined in Section 2(b) hereof.
Record Holder: With respect to any Additional
Amounts Payment Date, each Person who
is a Holder on the record date with
respect to the Interest Payment Date
on which such Additional Amounts
Payment Date shall occur. In the case
of a Holder of shares of Common Stock
issued upon conversion of the Notes,
"Record Holder" shall mean each
Person who is a Holder of shares of
Common Stock that constitute Transfer
Restricted Securities on each April
15 or October 15 preceding an
Additional Payment Date, as
applicable.
Registration Default: As defined in Section 3(a) hereof.
Securities Act: Securities Act of 1933, as amended,
and the rules and resolutions of the
Commission thereunder.
Shelf Filing Deadline: As defined in Section 2(a)(i) hereof.
Shelf Registration Statement: As defined in Section 2(a)(i) hereof.
Suspension Notice: As defined in Section 4(c) hereof.
Suspension Period: As defined in Section 4(b)(i) hereof.
TIA: Trust Indenture Act of 1939, as
amended, and the rules and
regulations of the Commission
thereunder, in each case, as in
effect on the date the Indenture is
qualified under the TIA.
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Transfer Restricted Securities: Each Note and each share of Common
Stock issued upon conversion of Notes
until the earliest of:
(a) the date on which such Note or such
share of Common Stock issued upon
conversion thereof has been
effectively registered under the
Securities Act and disposed of in
accordance with the Shelf
Registration Statement;
(b) the date on which such Note or such
share of Common Stock issued upon
conversion thereof is transferred in
compliance with Rule 144 under the
Securities Act or may be sold or
transferred by a person who is not an
Affiliate of the Company pursuant to
Rule 144 under the Securities Act (or
any other similar provision then in
force) without any volume or manner
of sale restrictions thereunder; and
(c) the date on which such Note or such
share of Common Stock issued upon
conversion ceases to be outstanding
(whether as a result of redemption,
repurchase and cancellation,
conversion or otherwise); provided
that any Note and any Common Stock
issued upon conversion of such Note
that is redeemed or repurchased by
the Company shall not be deemed
Transfer Restricted Securities for
purposes of this Agreement upon
resale by the Company
Underwritten Registration A registration in which Transfer
Restricted
or Underwritten Offering: Securities are sold to an underwriter
for reoffering to the public pursuant
to the Shelf Registration Statement.
2. Shelf Registration.
(a) The Company shall:
(i) not later than 90 days after the date hereof (the "Shelf
Filing Deadline"), cause to be filed a registration statement pursuant to Rule
415 under the Securities Act (together with any amendments or supplements
thereto, and including any documents incorporated by reference therein, the
"Shelf Registration Statement"), which Shelf Registration Statement shall
provide for resales of all Transfer Restricted Securities held by Holders that
have provided the information required pursuant to the terms of Section 2(b)
hereof;
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(ii) use its commercially reasonable efforts to cause the
Shelf Registration Statement to be declared effective by the Commission as
promptly as practicable, but in no event later than 180 days after the date
hereof (the "Effectiveness Target Date"); and
(iii) use its commercially reasonable efforts to keep the
Shelf Registration Statement continuously effective, supplemented and amended as
required by the provisions of Section 4(b) hereof (and subject to the right of
the Company to suspend the use of the Shelf Registration Statement by delivery
of a Suspension Notice in accordance with Section 4(b)(i) hereof) to the extent
necessary to ensure that (1) it is available for resales by the Holders of
Transfer Restricted Securities entitled to the benefit of this Agreement and (2)
conforms with the requirements of this Agreement and the Securities Act for a
period (the "Effectiveness Period") until the earliest of:
(A) two years following the last date of original
issuance of any of the Notes;
(B) the date when all of the Holders of Transfer
Restricted Securities are able to sell all Transfer Restricted Securities
immediately without restriction pursuant to Rule 144(k) under the
Securities Act or any successor rule thereto;
(C) the date when all Transfer Restricted Securities
have ceased to be outstanding (whether as a result of redemption,
repurchase and cancellation, conversion or otherwise); or
(D) the date when all Transfer Restricted Securities
registered under the Shelf Registration Statement have been disposed of in
accordance with the Shelf Registration Statement.
(b) To have its Transfer Restricted Securities included in the
Shelf Registration Statement pursuant to this Agreement at the time of
effectiveness, each Holder shall complete the Selling Securityholder Notice and
Questionnaire, the form of which is contained in Appendix A to the Offering
Memorandum relating to the Notes (the "Questionnaire"), and deliver the
Questionnaire within 20 Business Days of the date of the Questionnaire (the
"Questionnaire Deadline"). The Company shall mail the Questionnaire at least 20
Business Days (but not more than 40 Business Days) prior to the time the Company
intends in good faith to have the Shelf Registration Statement declared
effective by the Commission. Upon receipt of a written request for additional
information from the Company, each Holder who intends to be named as a selling
securityholder in the Shelf Registration Statement shall furnish to the Company
in writing, within 20 Business Days after such Holder's receipt of such request,
such additional information regarding such Holder and the proposed distribution
by such Holder of its Transfer Restricted Securities, in connection with the
Shelf Registration Statement or Prospectus or Preliminary Prospectus included
therein and in any application to be filed with or under state securities law,
as the Company may reasonably request. In connection with all such requests for
information from Holders of Transfer Restricted Securities, the Company shall
notify such Holders of the requirements set forth in this paragraph regarding
their obligation to provide the information requested pursuant to this Section.
Each Holder must notify the Company not later than three Business Days prior to
any proposed sale by that Holder pursuant to the Shelf
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Registration Statement. This notice will be effective for five Business Days.
Holders who have not delivered a Questionnaire prior to the effectiveness of the
Shelf Registration Statement may receive a Questionnaire from the Company upon
request. Upon receipt of such a completed Questionnaire from a Holder following
the effectiveness of the Shelf Registration Statement, the Company shall, as
promptly as reasonably practicable, and in any event within 30 calendar days,
file such amendments to the Shelf Registration Statement or supplements to a
related Prospectus as are necessary to permit such Holder to be named in, and to
transfer its Transfer Restricted Securities pursuant to, the Shelf Registration
Statement; provided, however, that in no event will the Company be obligated to
file such an amendment or supplement more than once in any 90-day period. Each
Holder as to which the Shelf Registration Statement is being effected agrees to
furnish promptly to the Company all information required to be disclosed in
order to make information previously furnished to the Company by such Holder not
materially misleading.
3. Additional Amounts.
(a) If:
(i) the Shelf Registration Statement is not filed with the
Commission prior to or on the Shelf Filing Deadline;
(ii) the Shelf Registration Statement has not been declared
effective by the Commission prior to or on the Effectiveness Target Date;
(iii) except as provided in Section 4(b)(i) hereof, the Shelf
Registration Statement is filed and declared effective but, during the
Effectiveness Period, shall thereafter cease to be effective or fail to be
usable for its intended purpose without being succeeded within five Business
Days by a post-effective amendment to the Shelf Registration Statement, a
supplement to the Prospectus or a report filed with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act that cures such failure
and, in the case of a post-effective amendment, is itself immediately declared
effective; or
(iv) (A) prior to or on the 60th or 90th day, as the case may
be, of any Suspension Period, such suspension has not been terminated or (B)
Suspension Periods exceed an aggregate of 120 days in any 360-day period,
(each such event referred to in foregoing clauses (i) through (iv), a
"Registration Default"), the Company hereby agrees to pay additional amounts
("Additional Amounts") with respect to the Notes from and including the day
following the Registration Default to but excluding the earlier of (1) the day
on which the Registration Default has been cured and (2) the expiration of the
Effectiveness Period, accruing at a rate:
(x) with respect to each day during the first 90-day
period during which a Registration Default shall have occurred and be
continuing, equal to 0.25% per annum of the principal amount of the Notes, and
(y) with respect to each day during the period
commencing on the 91st day following the day the Registration Default shall have
occurred and be
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continuing, equal to 0.50% per annum of the principal amount of the Notes;
provided that in no event shall Additional Amounts accrue at a rate per
annum exceeding 0.50% of the principal amount of the Notes.
Notwithstanding the foregoing, Additional Amounts shall not accrue under clauses
(iii) and (iv) above with respect to Holders that do not submit a properly
completed Questionnaire by the Questionnaire Deadline and are not otherwise
named as a selling Holder in the Shelf Registration Statement.
(b) Notwithstanding Section 3(a) above, in the event that (i) the
Company is required under Section 2(b) to file a post-effective amendment to the
Shelf Registration Statement due to the failure of a Holder of Notes to deliver
to the Company a completed and signed Questionnaire prior to the Questionnaire
Deadline, along with any other information the Company may reasonably request,
and (ii) the filing of such post-effective amendment to the Shelf Registration
Statement has the effect of suspending the ability of the other holders of
Transfer Restricted Securities already listed as selling Holders in the Shelf
Registration Statement to resell their Transfer Restricted Securities, then
Additional Amounts otherwise payable under this Section 3 shall not accrue until
after the tenth day of such suspension.
(c) All accrued Additional Amounts shall be paid in arrears to
Record Holders by the Company on each Additional Amounts Payment Date in the
same manner as payment of interest on the Notes. Upon the cure of all
Registration Defaults relating to any particular Security, the accrual of
Additional Amounts with respect to such Security will cease. The Company agrees
to deliver all notices, certificates and other documents contemplated by the
Indenture in connection with the payment of Additional Amounts.
Notwithstanding any other provision of this Agreement, no Additional
Amounts shall accrue to any Transfer Restricted Security from and after the
earlier of the date such security is no longer a Transfer Restricted Security
and the expiration of the Effectiveness Period. All obligations of the Company
set forth in this Section 3 that are outstanding with respect to any Notes at
the time such security ceases to be a Transfer Restricted Security shall survive
until such time as all such obligations with respect to such Transfer Restricted
Security shall have been satisfied in full.
The Additional Amounts set forth above shall be the exclusive monetary
remedy available to the Holders of Notes for such Registration Default.
4. Registration Procedures.
(a) In connection with the Shelf Registration Statement, the
Company shall comply with all the provisions of Section 4(b) hereof and shall
use its commercially reasonable efforts to effect such registration to permit
the sale of the Transfer Restricted Securities being sold in accordance with the
intended method or methods of distribution thereof, and pursuant thereto, shall
prepare and file with the Commission a Shelf Registration Statement relating to
the registration on any appropriate form under the Securities Act.
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(b) In connection with the Shelf Registration Statement and any
Prospectus required by this Agreement to permit the sale or resale of Transfer
Restricted Securities, the Company shall:
(i) Use its commercially reasonable efforts to keep the
Shelf Registration Statement continuously effective during the Effectiveness
Period; upon the occurrence of any event or the existence of any fact that would
cause the Shelf Registration Statement or the Prospectus contained therein, in
either case including any document incorporated by reference therein, (1) to
contain a material misstatement or omission or (2) not be effective and usable
for resale of Transfer Restricted Securities during the Effectiveness Period,
the Company shall file promptly an appropriate amendment to the Shelf
Registration Statement, a supplement to the Prospectus or a report filed with
the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act, in the case of clause (1), correcting any such misstatement or omission,
and, in the case of either clause (1) or (2), use its commercially reasonable
efforts to cause such amendment to be declared effective and the Shelf
Registration Statement and the related Prospectus to become usable for their
intended purposes as soon as practicable thereafter. Notwithstanding the
foregoing, the Company may suspend the effectiveness of the Shelf Registration
Statement by written notice to the Holders for a period not to exceed an
aggregate of 60 days in any 90-day period or 120 days in any 360-day period
(each such period, a "Suspension Period") if:
(A) an event occurs and is continuing as a result of
which the Shelf Registration Statement would, in the Company's reasonable
judgment, contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading; and
(B) the Company reasonably determines that the
disclosure of such event at such time would have a material adverse effect
on the business of the Company (and its subsidiaries, if any, taken as a
whole);
provided that in the event the disclosure relates to a previously undisclosed
proposed or pending material business transaction, the disclosure of which the
Company determines in good faith would be reasonably likely to impede the
Company's ability to consummate such transaction, the Company may extend a
Suspension Period from 60 days to 90 days; provided, however, that Suspension
Periods shall not exceed an aggregate of 120 days in any 360-day period. The
Company shall not be required to specify in the written notice to the Holders
the nature of the event giving rise to the Suspension Period. Any suspension
caused solely by the Company being required under Section 2(b) to file a
post-effective amendment to the Shelf Registration Statement due to the failure
of a Holder of Notes to deliver to the Company a completed and signed
Questionnaire prior to the Questionnaire Deadline shall not accrue against the
60 day, 90 day and 120 day periods for an aggregate amount of time not to exceed
the lesser of the date on which such post-effective amendment is declared
effective and the ten day period described in Section 3(b).
(ii) Prepare and file with the Commission such amendments and
post-effective amendments to the Shelf Registration Statement as may be
necessary to keep the Shelf Registration Statement effective during the
Effectiveness Period; cause the Prospectus to be
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supplemented by any required Prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 under the Securities Act, and to comply fully with
the applicable provisions of Rules 424 and 430A under the Securities Act in a
timely manner; and comply with the provisions of the Securities Act with respect
to the disposition of all securities covered by the Shelf Registration Statement
during the applicable period in accordance with the intended method or methods
of distribution by the sellers thereof set forth in the Shelf Registration
Statement or supplement to the Prospectus.
(iii) Advise the underwriter(s), if any, and selling Holders
promptly (but in any event within two Business Days) and, if requested by such
Persons, to confirm such advice in writing:
(A) when the Prospectus or any Prospectus supplement
or post-effective amendment (other than a document incorporated by
reference upon filing with the Commission) has been filed, and, with
respect to the Shelf Registration Statement or any post-effective
amendment thereto (other than a document incorporated by reference upon
filing with the Commission), when the same has become effective,
(B) of any request by the Commission for amendments to
the Shelf Registration Statement or amendments or supplements to the
Prospectus or for additional information relating thereto,
(C) of the issuance by the Commission of any stop
order suspending the effectiveness of the Shelf Registration Statement
under the Securities Act or of the suspension by any state securities
commission of the qualification of the Transfer Restricted Securities for
offering or sale in any jurisdiction, or the initiation of any proceeding
for any of the preceding purposes, or
(D) of the existence of any fact or the happening of
any event, during the Effectiveness Period (but not as to the substance of
any such fact or event), that makes any statement of a material fact made
in the Shelf Registration Statement, the Prospectus, any amendment or
supplement thereto, or any document incorporated by reference therein
untrue, or that requires the making of any additions to or changes in the
Shelf Registration Statement or the Prospectus in order to make the
statements therein not misleading.
If at any time the Commission shall issue any stop order suspending the
effectiveness of the Shelf Registration Statement, or any state securities
commission or other regulatory authority shall issue an order suspending the
qualification or exemption from qualification of the Transfer Restricted
Securities under state securities or Blue Sky laws, the Company shall use its
commercially reasonable efforts to promptly obtain the withdrawal or lifting of
such order and will provide to the Initial Purchasers and each Holder who is
named in the Shelf Registration Statement prompt notice of the withdrawal of any
such order.
(iv) Furnish to each of the selling Holders, and the counsel
to the Holders described in Section 5(a)(iv), before its initial filing with the
Commission, a copy of the Shelf Registration Statement and copies of any
Prospectus included therein (other than
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documents incorporated by reference after the initial filing of the Shelf
Registration Statement), and, if such Holder so requests in writing, copies of
each amendment or supplement thereto. Prior to the date the Shelf Registration
Statement is declared effective, the Company shall use its reasonable efforts to
take into account and reflect in an amendment to the Shelf Registration
Statement, and any Prospectus included therein, any comments on the Shelf
Registration Statement, and any Prospectus included therein, as initially filed
as the selling Holder, and the counsel to the Holders described in Section
5(a)(iv), may reasonably propose.
(v) Furnish to each of the underwriter(s), if any, before
filing with the Commission, a copy of the Shelf Registration Statement and
copies of any Prospectus included therein or any amendments or supplements to
the Shelf Registration Statement or Prospectus (other than documents
incorporated by reference after the initial filing of the Shelf Registration
Statement), which documents will be subject to the review of such
underwriter(s), if any, for a period of at least five Business Days (in the case
of the initial filing of the Shelf Registration Statement and Prospectus) and
two Business Days (in the case of any amendment or supplement thereto), and the
Company will not file the Shelf Registration Statement or Prospectus or any
amendment or supplement to the Shelf Registration Statement or Prospectus (other
than documents incorporated by reference) to which the underwriter(s), if any,
shall reasonably object prior to the filing thereof. An underwriter, if any,
shall be deemed to have reasonably objected to such filing if the Shelf
Registration Statement, amendment, Prospectus or supplement, as applicable, as
proposed to be filed, contains a material misstatement or omission.
(vi) Make available at reasonable times for inspection by one
or more representatives of any underwriter participating in any distribution
pursuant to the Shelf Registration Statement, and any attorney or accountant
retained by such underwriter(s), all financial and other records, pertinent
corporate documents and properties of the Company as shall be reasonably
necessary to enable them to exercise any applicable due diligence
responsibilities, and cause the Company's officers, directors, managers and
employees to supply all information reasonably requested by any such
underwriter, attorney or accountant in connection with the Shelf Registration
Statement after the filing thereof and before its effectiveness, provided,
however, that any information designated by the Company as confidential at the
time of delivery of such information shall be kept confidential by the recipient
thereof.
(vii) If requested by any selling Holders or the
underwriter(s), if any, promptly incorporate in the Shelf Registration Statement
or Prospectus, pursuant to a supplement or post effective amendment if
necessary, such information as such selling Holders and underwriter(s), if any,
may reasonably request to have included therein, including, without limitation:
(1) information relating to the "Plan of Distribution" of the Transfer
Restricted Securities, (2) information with respect to the principal amount of
Notes or number of shares of Common Stock being sold to such underwriter(s), (3)
the purchase price being paid therefor and (4) any other terms of the offering
of the Transfer Restricted Securities to be sold in such offering; and make all
required filings of such Prospectus supplement or post effective amendment as
soon as reasonably practicable and in accordance with Section 2(b) hereof after
the Company is notified of the matters to be incorporated in such Prospectus
supplement or post effective amendment.
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(viii) Furnish to each selling Holder and each of the
underwriter(s), if any, upon their request, without charge, at least one copy of
the Shelf Registration Statement, as first filed with the Commission, and of
each amendment thereto (and any documents incorporated by reference therein or
exhibits thereto (or exhibits incorporated in such exhibits by reference) as
such Person may request).
(ix) Deliver to each selling Holder and each of the
underwriter(s), if any, without charge, as many copies of the Prospectus
(including each preliminary prospectus) and any amendment or supplement thereto
as such Persons reasonably may request; subject to any notice by the Company in
accordance with this Section 4(b) of the existence of any fact or event of the
kind described in Section 4(b)(iii)(D), the Company hereby consents to the use
of the Prospectus and any amendment or supplement thereto by each of the selling
Holders and each of the underwriter(s), if any, in connection with the offering
and the sale of the Transfer Restricted Securities covered by the Prospectus or
any amendment or supplement thereto.
(x) In connection with an Underwritten Offering, the Company
shall upon request, furnish to each underwriter, if any, in such substance and
scope as they may reasonably request and as are customarily made by issuers to
underwriters in primary underwritten offerings for selling security holders,
upon the date of closing of any sale of Transfer Restricted Securities in an
Underwritten Registration:
(A) a certificate, dated the date of such closing,
signed by an executive officer of the Company confirming, as of the date
thereof, as are customarily covered in an officer's certificate to
underwriters in connection with underwritten offerings of securities;
(B) opinions, each dated the date of such closing, of
counsel to the Company covering such of the matters as are customarily
covered in legal opinions to underwriters in connection with underwritten
offerings of securities; and
(C) customary comfort letters, dated the date of such
closing, from the Company's independent accountants in the customary form
and covering matters of the type customarily covered in comfort letters to
underwriters in connection with underwritten offerings of securities.
(xi) Set forth in full in the underwriting agreement, if any,
indemnification provisions and procedures which provide rights no less
protective than those set forth in Section 6 hereof with respect to all parties
to be indemnified.
(xii) Deliver such other documents and certificates as may be
reasonably requested by such parties to evidence compliance with Section
4(b)(ix) above and with any customary conditions contained in the underwriting
agreement or other agreement entered into by the selling Holders pursuant to
this Section 4 (b) (xi).
(xiii) Before any public offering of Transfer Restricted
Securities, cooperate with the selling Holders, the underwriter(s), if any, and
their respective counsel in connection with the registration and qualification
of the Transfer Restricted Securities under the securities or Blue Sky laws of
such jurisdictions in the United States as the selling Holders or
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underwriter(s), if any, may reasonably request and do any and all other acts or
things necessary or advisable to enable the disposition in such jurisdictions of
the Transfer Restricted Securities covered by the Shelf Registration Statement;
provided, however, that the Company shall not be required (A) to register or
qualify as a foreign corporation or a dealer of securities where it is not now
so qualified or to take any action that would subject it to the service of
process in any jurisdiction where it is not now so subject or (B) to subject
itself to taxation in any such jurisdiction if it is not now so subject.
(xiv) Cooperate with the selling Holders and the
underwriter(s), if any, to facilitate the timely preparation and delivery of
certificates representing Transfer Restricted Securities to be sold and not
bearing any restrictive legends (unless required by applicable securities laws);
and enable such Transfer Restricted Securities to be in such denominations and
registered in such names as the Holders or the underwriter(s), if any, may
request at least two Business Days before any sale of Transfer Restricted
Securities made by such underwriter(s).
(xv) Use its commercially reasonable efforts to cause the
Transfer Restricted Securities covered by the Shelf Registration Statement to be
registered with or approved by such other U.S. governmental agencies or
authorities as may be necessary to enable the seller or sellers thereof or the
underwriter(s), if any, to consummate the disposition of such Transfer
Restricted Securities.
(xvi) Provide CUSIP numbers for all Transfer Restricted
Securities not later than the effective date of the Shelf Registration Statement
and provide the Trustee under the Indenture with certificates for the Notes that
are in a form eligible for deposit with The Depository Trust Company.
(xvii) Cooperate and assist in any filings required to be made
with the NASD and in the performance of any due diligence investigation by any
underwriter that is required to be retained in accordance with the rules and
regulations of the NASD.
(xviii) Otherwise use its commercially reasonable efforts to
comply with all applicable rules and regulations of the Commission and all
reporting requirements under the Exchange Act.
(xix) Cause the Indenture to be qualified under the TIA not
later than the effective date of the Shelf Registration Statement required by
this Agreement, and, in connection therewith, cooperate with the Trustee and the
holders of Notes to effect such changes to the Indenture as may be required for
such Indenture to be so qualified in accordance with the terms of the TIA; and
execute and use its commercially reasonable efforts to cause the Trustee
thereunder to execute all documents that may be required to effect such changes
and all other forms and documents required to be filed with the Commission to
enable such Indenture to be so qualified in a timely manner.
(xx) Cause all shares of Common Stock covered by the Shelf
Registration Statement to be listed or quoted, as the case may be, on each
securities exchange or automated quotation system on which similar securities
issued by the Company are then listed or
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quoted.
(xxi) Provide to each Holder upon written request each
document filed with the Commission pursuant to the requirements of Section 13
and Section 15 of the Exchange Act after the effective date of the Shelf
Registration Statement.
(xxii) If requested by the underwriter(s), make appropriate
officers of the Company available to the underwriter(s) for meetings with
prospective purchasers of the Transfer Restricted Securities and prepare and
present to potential investors customary "road show" or marketing materials in a
manner consistent with other new issuances of other securities similar to the
Transfer Restricted Securities.
(c) Each Holder agrees by acquisition of a Transfer Restricted
Security that, upon receipt of any notice (a "Suspension Notice") from the
Company of the existence of any fact of the kind described in Section
4(b)(iii)(D) hereof, such Holder will, and will use its reasonable efforts to
cause any underwriter(s) in an Underwritten Offering to, forthwith discontinue
disposition of Transfer Restricted Securities pursuant to the Shelf Registration
Statement until:
(i) such Holder has received copies of the supplemented or
amended Prospectus contemplated by Sections 4(b)(i) and 4(b)(viii) hereof; or
(ii) such Holder is advised in writing by the Company that
the use of the Prospectus may be resumed, and has received copies of any
additional or supplemental filings that are incorporated by reference in the
Prospectus.
Each Holder agrees to keep the receipt of a Suspension Notice and its contents
confidential. If so directed by the Company, each Holder will deliver to the
Company (at the Company's expense) all copies, other than permanent file copies
then in such Holder's possession, of the Prospectus covering such Transfer
Restricted Securities that was current at the time of receipt of such notice of
suspension.
5. Registration Expenses.
(a) All expenses incident to the Company's performance of or
compliance with this Agreement shall be borne by the Company regardless of
whether a Shelf Registration Statement becomes effective, including, without
limitation:
(i) all registration and filing fees and expenses (including
filings made by any Initial Purchasers or Holders with the NASD);
(ii) all fees and expenses of compliance with federal
securities and state Blue Sky or securities laws;
(iii) all expenses of printing (including printing of
Prospectuses and certificates for the Common Stock to be issued upon conversion
of the Notes) and the Company's expenses for messenger and delivery services and
telephone;
- 13 -
(iv) all fees and disbursements of counsel to the Company
and, subject to Section 5(b) below, the Holders of Transfer Restricted
Securities;
(v) all application and filing fees in connection with
listing (or authorizing for quotation) the Common Stock on a national securities
exchange or automated quotation system pursuant to the requirements hereof; and
(vi) all fees and disbursements of independent certified
public accountants of the Company (including the expenses of any special audit
and comfort letters required by or incident to such performance).
The Company shall bear its internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing legal, accounting
or other duties), the expenses of any annual audit and the fees and expenses of
any Person, including special experts, retained by the Company. Notwithstanding
the foregoing, the Holders of the Transfer Restricted Securities being
registered shall pay (1) all agency fees and commissions and underwriting
discounts and commissions attributable to the sale of such Transfer Restricted
Securities and (2) the fees and disbursements of any counsel retained by any
Holder, other than the counsel to the Holders of Transfer Restricted Securities
referred to in Section 5(a)(iv) above.
(b) In connection with the Shelf Registration Statement required
by this Agreement and any other documents delivered to any Holders, the Company
shall reimburse the Initial Purchasers and the Holders of Transfer Restricted
Securities being registered pursuant to the Shelf Registration Statement, as
applicable, for the reasonable fees and disbursements of not more than one
counsel, which shall be chosen by a Majority of Holders for whose benefit the
Shelf Registration Statement is being prepared.
6. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless each Holder,
such Holder's officers, directors, partners and employees and each person, if
any, who controls such Holder within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act (each, an "Indemnified
Holder"), from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof (including, but not limited to, any
loss, claim, damage, liability or action relating to resales of the Transfer
Restricted Securities), to which such Indemnified Holder may become subject,
insofar as any such loss, claim, damage, liability or action arises out of, or
is based upon:
(i) any untrue statement or alleged untrue statement of a
material fact contained in (A) the Shelf Registration Statement or Prospectus or
any amendment or supplement thereto or (B) any blue sky application or other
document or any amendment or supplement thereto prepared or executed by the
Company (or based upon written information furnished by or on behalf of the
Company expressly for use in such blue sky application or other document or
amendment on supplement) filed in any jurisdiction specifically for the purpose
of qualifying any or all of the Transfer Restricted Securities under the
securities law of any state or other jurisdiction (such application or document
being hereinafter called a "Blue Sky Application"); or
- 14 -
(ii) the omission or alleged omission to state in the Shelf
Registration Statement, Prospectus or any amendment or supplement thereto, or in
any Blue Sky Application, any material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading,
and shall reimburse each Indemnified Holder promptly upon demand for any legal
or other expenses reasonably incurred by such Indemnified Holder in connection
with investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage, liability or action arises out of, or is
based upon, (A) any untrue statement or alleged untrue statement or omission or
alleged omission made in the Shelf Registration Statement or Prospectus or
amendment or supplement thereto or Blue Sky Application or other document
referred to in Section 6(a)(i) hereof in reliance upon and in conformity with
written information furnished to the Company by or on behalf of such Holder (or
its related Indemnified Holder) specifically for inclusion therein and (B) the
failure of the Indemnified Holder to deliver any corrective amendment or
supplement after delivery by the Company to such Indemnified Holder of such
amendment or supplement. The foregoing indemnity agreement is in addition to any
liability that the Company may otherwise have to any Indemnified Holder.
(b) Each Holder, severally and not jointly, shall indemnify and
hold harmless the Company, its officers, directors and employees and each
person, if any, who controls the Company within the meaning of the Securities
Act, from and against any loss, claim, damage or liability, joint or several, or
any action in respect thereof, to which the Company or any such officer,
director, employee or controlling person may become subject, insofar as any such
loss, claim, damage or liability or action arises out of, or is based upon:
(i) any untrue statement or alleged untrue statement of any
material fact contained in the Shelf Registration Statement or Prospectus or any
amendment or supplement thereto or any Blue Sky Application or other document
referred to in Section 6(a)(i) hereof; or
(ii) the omission or the alleged omission to state in the
Shelf Registration Statement, Prospectus or any amendment or supplement thereto,
or in any Blue Sky Application or other document referred to in Section 6(a)(i)
hereof, any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
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 reliance upon and in
conformity with written information furnished to the Company by or on behalf of
such Holder (or its related Indemnified Holder) specifically for use therein,
and shall reimburse the Company and any such officer, employee or controlling
person promptly upon demand for any legal or other expenses reasonably incurred
by the Company or any such officer, employee or controlling person in connection
with investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred. In no event
shall the liability of any Holder hereunder be greater in amount than the dollar
amount of the proceeds received by such
- 15 -
Holder upon the sale of the Transfer Restricted Securities pursuant to the Shelf
Registration Statement giving rise to such indemnification obligation. The
foregoing indemnity agreement is in addition to any liability that any Holder
may otherwise have to the Company and any such officer, employee or controlling
person.
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 6, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 6 except to the extent it has
been materially prejudiced by such failure and, provided, further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 6.
If any such claim or action shall be brought against an indemnified party, and
the indemnified party shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that it wishes, jointly with any other similarly notified indemnifying party, to
assume the defense thereof with counsel satisfactory to the indemnified party.
After notice from the indemnifying party to the indemnified party of its
election to assume the defense of such claim or action, the indemnifying party
shall not be liable to the indemnified party under this Section 6 for any legal
or other expenses subsequently incurred by the indemnified party in connection
with the defense thereof other than reasonable costs of investigation; provided,
however, that a Majority of Holders shall have the right to employ a single
counsel to represent jointly a Majority of Holders and their respective
officers, directors, partners, employees and controlling persons who may be
subject to liability arising out of any claim in respect of which indemnity may
be sought by a Majority of Holders against the Company under this Section 6,
and, if a Majority of Holders seeking indemnification shall have been advised by
legal counsel that there may be one or more legal defenses available to them and
their respective directors, officers, partners, employees and controlling
persons that are different from or additional to those available to the Company
and its officers, directors, employees and controlling persons, the fees and
expenses of a single separate counsel shall be paid by the Company. No
indemnifying party shall:
(i) without the prior written consent of the indemnified
parties (which consent shall not be unreasonably withheld) settle or compromise
or consent to the entry of any judgment with respect to any pending or
threatened claim, action, suit or proceeding in respect of which indemnification
or contribution may be sought hereunder (whether or not the indemnified parties
are actual or potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or proceeding,
or
(ii) be liable for any settlement of any such action effected
without its written consent (which consent shall not be unreasonably withheld),
but if settled with its written consent or if there be a final judgment for the
plaintiff in any such action, the indemnifying party agrees to indemnify and
hold harmless any indemnified party from and against any loss or liability by
reason of such settlement or judgment.
- 16 -
(d) If the indemnification provided for in this Section 6 shall
for any reason be unavailable or insufficient to hold harmless an indemnified
party under Section 6(a) or 6(b) in respect of any loss, claim, damage or
liability (or action in respect thereof) referred to therein, each indemnifying
party shall, in lieu of indemnifying such indemnified party, contribute to the
amount paid or payable by such indemnified party as a result of such loss,
claim, damage or liability (or action in respect thereof):
(i) in such proportion as is appropriate to reflect the
relative benefits received by the Company from the offering and sale of the
Transfer Restricted Securities on the one hand and a Holder with respect to the
sale by such Holder of the Transfer Restricted Securities on the other, or
(ii) if the allocation provided by Section 6(d)(i) is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in Section 6(d)(i) but also the relative
fault of the Company on the one hand and the Holders on the other in connection
with the statements or omissions or alleged statements or alleged omissions that
resulted in such loss, claim, damage or liability (or action in respect
thereof), as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and a Holder on
the other with respect to such offering and such sale shall be deemed to be in
the same proportion as the total net proceeds from the offering of the Notes
purchased under the Purchase Agreement (before deducting expenses) received by
the Company on the one hand, bear to the total proceeds received by such Holder
with respect to its sale of Transfer Restricted Securities on the other. The
relative fault of the parties shall be determined by reference to 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 Holders on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and each Holder agree that it would not
be just and equitable if the amount of contribution pursuant to this Section
6(d) were determined by pro rata allocation or by any other method of allocation
that does not take into account the equitable considerations referred to in the
first sentence of this paragraph (d). The amount paid or payable by an
indemnified party as a result of the loss, claim, damage or liability, or action
in respect thereof, referred to above in this Section 6 shall be deemed to
include, for purposes of this Section 6, any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
or preparing to defend any such action or claim. Notwithstanding the provisions
of this Section 6, no Holder shall be required to contribute any amount in
excess of the amount by which the total price at which the Transfer Restricted
Securities purchased by it were resold exceeds the amount of any damages which
such Holder has otherwise been required to pay by reason of any untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Holders' obligations to
contribute as provided in this Section 6(d) are several and not joint.
7. Rule 144A. In the event the Company is not subject to Section 13 or
15(d) of the Exchange Act, the Company hereby agrees with each Holder, for so
long as any Transfer
- 17 -
Restricted Securities remain outstanding, to make available to any Holder or
beneficial owner of Transfer Restricted Securities in connection with any sale
thereof and any prospective purchaser of such Transfer Restricted Securities
from such Holder or beneficial owner, the information required by Rule
144A(d)(4) under the Securities Act in order to permit resales of such Transfer
Restricted Securities pursuant to Rule 144A.
8. Participation in Underwritten Registrations. No Holder may
participate in any Underwritten Registration hereunder unless such Holder:
(a) agrees to sell such Holder's Transfer Restricted Securities on
the basis provided in any underwriting arrangements approved by the Persons
entitled hereunder to approve such arrangements; and
(b) completes and executes all reasonable questionnaires, powers
of attorney, indemnities, underwriting agreements, lock-up letters and other
documents required under the terms of such underwriting arrangements.
In any such Underwritten Offering, the investment banker or investment bankers
and manager or managers that will administer the offering will be selected by a
Majority of Holders whose Transfer Restricted Securities are included in such
offering; provided that such investment bankers and managers must be reasonably
satisfactory to the Company. Notwithstanding anything herein to the contrary,
the Company shall not be required to facilitate an Underwritten Offering
pursuant to the Shelf Registration Statement by any Holders unless the offering
relates to at least $25,000,000 aggregate principal amount of Notes.
9. Miscellaneous.
(a) Remedies. The Company acknowledges and agrees that any failure
by the Company to comply with its obligations under Section 2 hereof may result
in material irreparable injury to the Initial Purchasers or the Holders for
which there is no adequate remedy at law, that it will not be possible to
measure damages for such injuries precisely and that, in the event of any such
failure, the Initial Purchasers or any Holder may obtain such relief as may be
required to specifically enforce the Company's obligations under Section 2
hereof. The Company further agrees to waive the defense in any action for
specific performance that a remedy at law would be adequate.
(b) Actions Affecting Transfer Restricted Securities. The Company
shall not, directly or indirectly, take any action with respect to the Transfer
Restricted Securities as a class that would adversely affect the ability of the
Holders of Transfer Restricted Securities to include such Transfer Restricted
Securities in a registration undertaken pursuant to this Agreement.
(c) No Inconsistent Agreements. The Company will not, on or after
the date of this Agreement, enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the Holders in this
Agreement or otherwise conflicts with the provisions hereof. In addition, the
Company shall not grant to any of its security holders (other than the Holders
of Transfer Restricted Securities in such capacity) the right to include any of
its securities in the Shelf Registration Statement provided for in this
Agreement other than the Transfer Restricted Securities. Except as contained in
any agreement filed as an exhibit to the
- 18 -
Company's Annual Report on Form 10-K for the year ended December 31, 2003, the
Company has not previously entered into any agreement (which has not expired or
been terminated) granting any registration rights with respect to its securities
to any Person which rights conflict with the provisions hereof.
(d) Amendments and Waivers. This Agreement may not be amended,
modified or supplemented, and waivers or consents to or departures from the
provisions hereof may not be given, unless the Company has obtained the written
consent of a Majority of Holders or such greater percentage of the Holders as
required by the Indenture.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, first class mail
(registered or certified, return receipt requested), telex, facsimile
transmission, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of the
registrar under the Indenture or the transfer agent of the Common Stock, as the
case may be; and
(ii) if to the Company:
Cell Genesys, Inc.
000 Xxxxxx Xxxxxxxxx
Xxxxx Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, PC
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Telephone: (000) 000-0000
Fax: (000) 000-0000
All such notices and communications shall be deemed to have been duly given: at
the time delivered by hand, if personally delivered; five Business Days after
being deposited in the mail, postage prepaid, if mailed; when answered back, if
telexed; when receipt acknowledged, if transmitted by facsimile; and on the next
Business Day, if timely delivered to an air courier guaranteeing overnight
delivery.
(f) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent Holders of Transfer Restricted Securities; provided,
however, that (i) this Agreement shall not inure to the benefit of or be binding
upon a successor or assign of a Holder unless and to the extent such successor
or assign
- 19 -
acquired Transfer Restricted Securities from such Holder and (ii) nothing
contained herein shall be deemed to permit any assignment, transfer or other
disposition of Transfer Restricted Securities in violation of the terms of the
Purchase Agreement or the Indenture.
If any transferee of any Holder shall acquire Transfer
Restricted Securities, in any manner, whether by operation of law or otherwise,
such Transfer Restricted Securities shall be held subject to all of the terms of
this Agreement, and by taking and holding such Transfer Restricted Securities
such person shall be conclusively deemed to have agreed to be bound by and to
perform all of the terms and provisions of this Agreement.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Securities Held by the Company or Its Affiliates. Whenever the
consent or approval of Holders of a specified percentage of Transfer Restricted
Securities is required hereunder, Transfer Restricted Securities held by the
Company or its Affiliates shall not be counted in determining whether such
consent or approval was given by the Holders of such required percentage.
(i) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(j) Governing Law. This Agreement shall be governed by, and
construed in accordance with, the internal laws of the State of New York.
(k) Severability. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal
or unenforceable, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby.
(l) Entire Agreement. This Agreement is intended by the parties as
a final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein with respect to the registration rights granted by the Company with
respect to the Transfer Restricted Securities. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such
subject matter.
- 20 -
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
Cell Genesys, Inc.
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President and Chief
Financial Officer
X.X. Xxxxxx Securities Inc.
Xxxxxx Brothers Inc.
Acting severally on behalf of themselves and the several initial purchasers
named in Schedule I to the Purchase Agreement
By: X.X. Xxxxxx Securities Inc.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
By: Xxxxxx Brothers Inc.
By: /s/ Xxxxxxxx Xxxx
-------------------------------
Name: Xxxxxxxx Xxxx
Title: Vice President
[Signature Page to Registration Rights Agreement]