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EXHIBIT 99.3
ATRIX NEWCO, LTD.
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made
as of July 18, 2000 by and among ATRIX NEWCO, LTD., a Bermuda exempted limited
liability company (the "Company"), ATRIX LABORATORIES, INC., a Delaware
corporation ("Atrix"), and ELAN INTERNATIONAL SERVICES, LTD., a Bermuda exempted
limited liability company ("EIS").
R E C I T A L S:
A. Pursuant to a Subscription, Joint Development and Operating
Agreement dated as of the date hereof by and among the Company, Atrix, ELAN
CORPORATION, PLC, an Irish public limited company, and EIS (the "JDOA"), Atrix
has acquired certain common shares, par value U.S.$1.00 per share (the "Common
Shares"), and certain non-voting convertible preferred shares, par value
U.S.$1.00 per share (the "Preferred Shares"), of the Company and EIS has
acquired certain Preferred Shares.
B. The execution of the JDOA has occurred on the date hereof
and it is a condition to the closing of the transactions contemplated thereby
that the parties execute and deliver this Agreement.
C. The parties desire to set forth herein their agreement on
the terms and subject to the conditions set forth herein related to the granting
of certain registration rights to the Holders (as defined below) relating to the
Common Shares held and the Common Shares issuable upon conversion of Preferred
Shares by such Holders.
A G R E E M E N T:
The parties hereto agree as follows:
1. Certain Definitions. As used in this Agreement, the
following terms shall have the following respective meanings:
"Commission" shall mean the U.S. Securities and Exchange
Commission.
"Exchange Act" shall mean the U.S. Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission thereunder,
all as the same shall be in effect from time to time.
"Holders" or "Holders of Registrable Securities" shall mean
Atrix, EIS and any Person who shall have acquired Registrable Securities from
either Atrix or EIS as permitted herein and in the JDOA, either individually or
jointly, as the case may be, in a transaction pursuant to which registration
rights are transferred pursuant to Section 10 hereof.
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"Person" shall mean an individual, a partnership, a company,
an association, a joint stock company, a trust, a joint venture, an
unincorporated organization or a governmental or quasi-governmental entity, or
any department, agency or political subdivision thereof.
"Registrable Securities" means (i) any Common Shares
subscribed for pursuant to the JDOA; (ii) any Common Shares issued or issuable
upon conversion of the Preferred Shares; (iii) any Common Shares issued or
issuable in respect of the securities referred to in clause (i) and (ii) above
upon any stock split, stock dividend, recapitalization or similar event, and
(iv) any other Common Stock held by the Holders from time to time, until, in the
case of any such security, it is effectively registered under the Securities Act
and disposed of in accordance with the registration statement covering it;
excluding in all cases, however, any Registrable Securities that may be sold
under Rule 144(k) promulgated under the Securities Act, as such rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the Commission, and Registrable Securities sold by a Person in a transaction
(including a transaction pursuant to a registration statement under this
Agreement and a transaction pursuant to Rule 144 promulgated under the
Securities Act) in which registration rights are not transferred pursuant to
Section 10 hereof. Whenever a number or percentage of Registrable Securities is
to be determined pursuant to this Agreement, each then outstanding Preferred
Share that is convertible into Common Shares will be deemed to be equal to the
number of Common Shares for which such Preferred Share is then so convertible.
The terms "register," "registered" and "registration" refer to
a registration effected by preparing and filing a registration statement in
compliance with the Securities Act.
"Registration Expenses" shall mean all expenses, other than
Selling Expenses, incurred by the Company in complying with Sections 2 or 3
hereof, including without limitation, all registration, qualification and filing
fees, exchange listing 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.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Selling Expenses" shall mean all underwriting discounts,
selling commissions and stock transfer taxes and the costs, fees and expenses of
any accountants, attorneys or other experts retained by the Holders.
2. Demand Registrations.
(a) Requests for Registration. From any time after the
consummation of the Company's initial public offering in the United States of
its Common Shares under the Securities Act, in the event that any Holder or
Holders who collectively hold Registrable Securities representing at least 5% of
the Registrable Securities then outstanding shall have the right (subject to the
limitations below) to request registration under the Securities Act of all or
part of their Registrable Securities on Form S-1 or S-3 (or any successor form
to Form S-1 or S-3, or any similar short-form registration statement) (each, a
"Demand Registration"). The request for the Demand Registration shall specify
the approximate number of Registrable Securities requested to be registered,
which must have a minimum expected aggregate offering price to the
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public of at least U.S.$5,000,000. Within 10 days after receipt of any such
request, the Company will give written notice of such requested registration to
all other Holders of Registrable Securities. The Company shall include such
other Holders' Registrable Securities in such offering if they have responded
affirmatively within 10 days after the receipt of the Company's notice. Each of
EIS and Atrix shall be permitted one Demand Registration hereunder. A
registration will not count as a permitted Demand Registration until it has
become effective (unless such Demand Registration has not become effective due
solely to the fault of the Holders requesting such registration, including a
request by such Holders that such registration be withdrawn).
(b) Priority on Demand Registrations. If a Demand Registration
is an underwritten offering and the managing underwriters advise the Company in
writing that in their opinion the number of Registrable Securities and, if
permitted hereunder, other securities requested to be included in such offering,
exceeds the number of Registrable Securities and other securities, if any, which
can be sold in such offering without adversely affecting the marketability of
the offering, the Company will include in such registration:
(i) first, the Registrable Securities requested to be included
in such registration by the Holders (or, if necessary, such Registrable
Securities pro rata among the Holders thereof based upon the number of
Registrable Securities owned by each such Holder); and
(ii) thereafter, other securities requested to be included in
such registration, as determined by the Company.
No securities other than Registrable Securities hereunder shall be included in
such Demand Registration without the prior written consent of Holders who
collectively hold Registrable Securities representing at least 50% of the
Registrable Securities requested to be registered by such Holders.
(c) Restrictions on Demand Registration. The Company may
postpone or suspend for up to three months in any 12-month period the filing or
the effectiveness of a registration statement for a Demand Registration if the
Company determines in good faith that such Demand Registration (i) would
reasonably be expected to have a material adverse effect on (x) any proposal or
plan by the Company to engage in any financing, acquisition or disposition of
assets (other than in the ordinary course of business) or (y) any merger,
consolidation, tender offer or similar transaction or (ii) would require
disclosure of any information that the board of directors of the Company
determines in good faith the disclosure of which would be detrimental to the
Company; provided, however, that in such event, the Holders initially requesting
such Demand Registration will be entitled to withdraw such request and, if such
request is withdrawn, such Demand Registration will not count as a permitted
Demand Registration hereunder and the Company will pay any Registration Expenses
in connection with such registration.
(d) Underwriting. If the Holders initiating the registration
request intend to distribute the Registrable Securities covered by their request
by means of an underwriting, then they shall so advise the Company as a part of
their request made pursuant to Section 2(a) and the Company shall include such
information in the written notice to the other Holders pursuant to
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Section 2(a). In such event (unless otherwise mutually agreed by a majority in
interest of the Holders requesting such registration), the right of any Holder
to include Registrable Securities in such registration shall be conditioned upon
such Holder's participation in the underwriting and the inclusion of such
Holder's Registrable Securities in the underwriting to the extent provided
herein. All Holders proposing to distribute their securities through such
underwriting shall enter into an underwriting agreement in customary form with
the managing underwriter or underwriters selected for such underwriting by the
Holders holding more than fifty percent (50%) of the Registrable Securities to
be underwritten, subject to any existing agreements of the Company and to the
Company's prior written approval, which will not be unreasonably withheld or
delayed.
(e) Other Registration Rights. Except as provided in this
Agreement, so long as any Holder owns any Registrable Securities, the Company
will not grant to any Persons the right to request the Company to register any
equity securities of the Company, or any securities convertible or exchangeable
into or exercisable for such securities, which conflicts with the rights granted
to the Holders hereunder, without the prior written consent of the Holders of at
least 50% of the Registrable Securities.
3. Piggyback Registrations.
(a) Right to Piggyback. If at any time the Company shall
propose to register Common Shares under the Securities Act (other than in a
registration statement on Form S-3 relating to sales of securities to
participants in a Company dividend reinvestment plan, or Form S-4 or S-8 or any
successor form or in connection with an acquisition or exchange offer or an
offering of securities solely to the existing shareholders or employees of the
Company) (each, a "Piggyback Registration"), the Company will (i) give prompt
written notice to all Holders of Registrable Securities of its intention to
effect such a registration and (ii) subject to Section 3(b) and the other terms
of this Agreement, will include in such registration all Registrable Securities
which are permitted under applicable securities laws to be included in the form
of registration statement selected by the Company and with respect to which the
Company has received written requests for inclusion therein within 10 days after
the receipt of the Company's notice. The Holders will be permitted to withdraw
all or any part of the Registrable Securities from a Piggyback Registration at
any time prior to the effective date of such Piggyback Registration.
(b) Priority on Piggyback Registrations. If a Piggyback
Registration is to be an underwritten offering, and the managing underwriters
advise the Company in writing that in their opinion the number of securities
requested to be included in such registration exceeds the number which can be
sold in such offering without adversely affecting the marketability of the
offering, the Company will include in such registration:
(i) first, the securities the Company proposes to sell;
(ii) second, the Registrable Securities requested to be
included in such registration by the Holders, pro rata among the
Holders of such Registrable Securities, on the basis of the number of
shares requested to be included in such registration by each of such
Holders; and
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(iii) thereafter, other securities requested to be included in
such registration, as determined by the Company.
The Holders of any Registrable Securities included in such an
underwritten offering will execute an underwriting agreement and power of
attorney and custody agreement, each in customary form and in form and substance
satisfactory to the managing underwriters.
(c) Right to Terminate Registration. If at any time after
giving written notice of its intention to register any of its securities as set
forth in Section 3(a) and prior to the effective date of the registration
statement filed in connection with such registration, the Company shall
determine for any reason not to register such securities, the Company may, at
its election, give written notice of such determination to each Holder of
Registrable Securities and thereupon be relieved of its obligation to register
any Registrable Securities in connection with such registration (but not from
its obligation to pay the Registration Expenses in connection therewith as
provided herein).
(d) Selection of Underwriters. The Company will have the right
to select the investment banker(s) and manager(s) to administer an offering
pursuant to a Piggyback Registration, subject to the approval of the holders of
a majority of the Registrable Securities requested to be included in such
Registration, which approval will not be unreasonably withheld or delayed.
4. Expenses of Registration. Except as otherwise provided
herein or as may otherwise be prohibited by applicable law, all Registration
Expenses incurred in connection with all registrations pursuant to Sections 2
and 3 hereof shall be borne by the Company; provided, that, and notwithstanding
anything herein contained to the contrary, the Company shall not have any
obligation pursuant to the provisions hereof unless and until the Company is
able to satisfy (after taking into account such obligations) the requirements of
Section 39A (2A) of the Bermuda Companies Act of 1981 (or any successor
legislation). All Selling Expenses relating to securities registered on behalf
of the Holders of Registrable Securities shall be borne by such Holders.
5. Holdback Agreements.
(a) The Company agrees (i) not to effect any public sale or
distribution of its equity securities, or any securities convertible into or
exchangeable or exercisable for such securities, during the seven-day period
prior to, and during the 180-day period following, the effective date of any
underwritten Demand Registration or any underwritten Piggyback Registration
(except as part of such underwritten registration or pursuant to registration
statements on Form S-4 or Form S-8 or any successor form), unless the
underwriters managing the registered public offering otherwise agree, and (ii)
to use reasonable efforts to cause its officers and directors and each holder of
at least 5% (on a fully-diluted basis) of its outstanding Common Shares, or any
securities convertible into or exchangeable or exercisable for Common Shares,
purchased from the Company at any time after the date of this Agreement (other
than in a registered public offering) to agree not to effect any public sale or
distribution (including sales pursuant to Rule 144) of any such securities
during such periods (except as part of such
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underwritten registration, if otherwise permitted), unless the underwriters
managing the registered public offering otherwise agree.
(b) Each Holder agrees, if requested by the managing
underwriters in an underwritten offering of Common Stock or securities
convertible for Common Stock of the Company, not to effect any offer, sale,
distribution or transfer, including a sale pursuant to Rule 144 (or any similar
provision then effect) under the Securities Act (except as part of such
underwritten registration), during the seven-day period prior to, and during the
90-day period (or such shorter period as may be agreed to in writing by the
Company and the Holders of at least 50% of the Registrable Securities)
following, the effective date of such Registration Statement; provided that each
of the Persons described in clause 5(a)(ii) shall also have agreed to such
restriction on sale; and provided, however, that no Holder shall be required to
enter into more than one such agreement in any 12-month period.
6. Registration Procedures. Whenever the Holders of
Registrable Securities have requested that any Registrable Securities be
registered pursuant to this Agreement, the Company will use all reasonable
efforts to effect the registration and the sale of such Registrable Securities
in accordance with the intended method or methods of distribution thereof, and
pursuant thereto the Company will as expeditiously as possible:
(a) subject to Section 2(c) hereof, prepare and file with the
Commission a registration statement on any appropriate form for which
the Company qualifies with respect to such Registrable Securities and
use all reasonable efforts to cause such registration statement to
become effective (provided that before filing a registration statement
or prospectus or any amendments or supplements thereto, the Company
will (i) furnish to the counsel selected by the selling Holders copies
of all such documents proposed to be filed, which documents will be
subject to the review of such counsel, and (ii) notify each selling
Holder of Registrable Securities covered by such registration of any
stop order issued or threatened by the Commission);
(b) subject to Section 2(c) hereof, prepare and file with the
Commission such amendments and supplements to such registration
statement and the prospectus used in connection therewith as may be
reasonably necessary to keep such registration statement effective for
a period equal to the shorter of (i) six months and (ii) the time by
which all securities covered by such registration statement have been
sold, and comply with the provisions of the Securities Act with respect
to the disposition of all securities covered by such registration
statement during such period in accordance with the intended methods of
disposition by the sellers thereof set forth in such registration
statement;
(c) furnish to each seller of Registrable Securities such
number of copies of such registration statement, each amendment and
supplement thereto, the prospectus included in such registration
statement (including each preliminary prospectus) and such other
documents as such seller may reasonably request in order to facilitate
the disposition of the Registrable Securities owned by such seller;
(d) use all reasonable efforts to register or qualify such
Registrable Securities under the securities or blue sky laws of such
jurisdictions as any seller reasonably
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requests and do any and all other acts and things which may be
reasonably necessary or advisable to enable such seller to consummate
the disposition in such jurisdictions of the Registrable Securities
owned by such seller (provided that the Company will not be required to
(i) qualify generally to do business in any jurisdiction where it would
not otherwise be required to qualify but for this Section 6(d), (ii)
subject itself to taxation in any jurisdiction or (iii) take any action
that would subject it to general service of process in any such
jurisdiction);
(e) notify each seller of such Registrable Securities, at any
time when a prospectus relating thereto is required to be delivered
under the Securities Act, of the happening of any event as a result of
which the prospectus included in such registration statement contains
an untrue statement of a material fact or omits any fact necessary to
make the statements therein not misleading, and, at the request of any
such seller, the Company will prepare a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus will not contain an untrue
statement of a material fact or omit to state any fact necessary to
make the statements therein not misleading; provided, however, that the
Company shall not be required to amend the registration statement or
supplement the Prospectus for a period of up to six months if the board
of directors of the Company determines in good faith that to do so
would reasonably be expected to have a material adverse effect on any
proposal or plan by the Company to engage in any financing, acquisition
or disposition of assets (other than in the ordinary course of
business) or any merger, consolidation, tender offer or similar
transaction or would require the disclosure of any information that the
board of directors of the Company determines in good faith the
disclosure of which would be detrimental to the Company, it being
understood that the period for which the Company is obligated to keep
the Registration Statement effective shall be extended for a number of
days equal to the number of days the Company delays amendments or
supplements pursuant to this provision;
(f) cause all such Registrable Securities to be listed on each
securities exchange, if any, on which similar securities issued by the
Company are then listed;
(g) provide a transfer agent and registrar for all such
Registrable Securities not later than the effective date of such
registration statement;
(h) enter into such customary agreements (including
underwriting agreements in customary form) and take all such other
actions as the Holders of a majority of the Registrable Securities
being sold or the underwriters, if any, reasonably request in order to
expedite or facilitate the disposition of such Registrable Securities;
(i) make available for inspection by a representative of the
Holders of Registrable Securities included in the registration
statement, any underwriter participating in any disposition pursuant to
such registration statement and any attorney, accountant or other agent
retained by any such seller or underwriter, all pertinent financial and
other records, pertinent corporate documents and properties of the
Company, and cause the Company's officers, directors, employees and
independent accountants to supply all
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information reasonably requested by any such seller, underwriter,
attorney, accountant or agent in connection with such registration
statement;
(j) otherwise use its reasonable efforts to comply with all
applicable rules and regulations of the Commission, and make available
to its security holders, as soon as reasonably practicable, an earnings
statement covering the period of at least 12 months beginning with the
first day of the Company's first full calendar quarter after the
effective date of the registration statement, which earnings statement
shall satisfy the provisions of Section 11(a) of the Securities Act and
Rule 158 thereunder;
(k) in the event of the issuance of any stop order suspending
the effectiveness of a registration statement, or of any order
suspending or preventing the use of any related prospectus or
suspending the qualification of any Common Shares included in such
registration statement for sale in any jurisdiction, use all reasonable
efforts promptly to obtain the withdrawal of such order; and
(l) if the registration is an underwritten offering, use all
reasonable efforts to obtain a so-called "cold comfort" letter from the
Company's independent public accountants in customary form and covering
such matters of the type customarily covered by cold comfort letters.
7. Obligations of Holders. Whenever the Holders of Registrable
Securities sell any Registrable Securities pursuant to a Demand Registration or
a Piggyback Registration, such Holders shall be obligated to comply with the
applicable provisions of the Securities Act, including the prospectus delivery
requirements thereunder, and any applicable state securities or blue sky laws.
In addition, each Holder of Registrable Securities will be deemed to have agreed
by virtue of its acquisition of such Registrable Securities that, upon receipt
of any notice described in Section 6(e), such holder will forthwith discontinue
disposition of such Registrable Securities covered by such registration
statement or prospectus until such Holder's receipt of the copies of the
supplemented or amended prospectus contemplated by Section 6(e), or until it is
advised in writing by the Company that the use of the applicable prospectus may
be resumed, and has received copies of any additional or supplemental filings
that are incorporated or deemed to be incorporated by reference in such
prospectus. The Holders shall keep confidential the fact and content of any
notice given by the Company pursuant to Section 6(e).
8. Indemnification.
(a) The Company agrees to indemnify, to the fullest extent
permitted by applicable law, each Holder of Registrable Securities, its officers
and directors and each Person who controls such Holder (within the meaning of
the Securities Act) against all losses, claims, damages, liabilities, expenses
or any amounts paid in settlement of any litigation, investigation or proceeding
commenced or threatened to which each such indemnified party may become subject
under the Securities Act, including without limitation attorneys' fees and
disbursements (collectively, "Claims") insofar as such Claim arose out of (i)
any untrue or alleged untrue statement of material fact contained, on the
effective date thereof, in any registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or (ii) any omission
or alleged omission to state therein a material fact required to be stated
therein or
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necessary to make the statements therein not misleading, except insofar as the
same is caused by or contained in any information furnished in writing to the
Company by such Holder expressly for use therein, by such Holder's failure to
deliver a copy of the registration statement or prospectus or any amendments or
supplements thereto after the Company has furnished such Holder with a
sufficient number of copies of the same or by such Holder's failure to comply
with applicable securities laws. In connection with an underwritten offering,
the Company will indemnify the underwriters, their officers and directors and
each Person who controls the underwriters (within the meaning of the Securities
Act) to the same extent as provided above with respect to the indemnification of
the Holders of Registrable Securities.
(b) In connection with any registration statements in which a
Holder of Registrable Securities is participating, each such Holder will, to the
fullest extent permitted by applicable law, indemnify the Company, its directors
and officers and each Person who controls the Company (within the meaning of the
Securities Act) against any and all Claims to which each such indemnified party
may become subject under the Securities Act insofar as such Claim arose out of
(i) any untrue or alleged untrue statement of material fact contained, on the
effective date thereof, in any registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto, (ii) 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 or (iii) any failure
to comply with applicable securities laws; provided, that, with respect to a
Claim arising pursuant to clause (i) or (ii) above, the material misstatement or
omission is contained in the information such Holder provided to the Company
pursuant to Section 11 hereof; provided, further, that the obligation to
indemnify will be individual to each Holder and will be limited to the amount of
net proceeds received by such Holder from the sale of Registrable Securities
pursuant to such registration statement.
(c) Any Person entitled to indemnification hereunder will (i)
give prompt written notice to the indemnifying party of any claim with respect
to which it seeks indemnification (but the failure to provide such notice shall
not release the indemnifying party of its obligation under paragraphs (a) and
(b), unless and then only to the extent that, the indemnifying party has been
prejudiced by such failure to provide such notice) and (ii) unless in such
indemnified party's reasonable judgment, based on written advice of counsel, a
conflict of interest between such indemnified and indemnifying parties may exist
with respect to such claim, permit such indemnifying party to assume the defense
of such claim with counsel reasonably satisfactory to the indemnified party. An
indemnifying party who is not entitled to, or elects not to, assume the defense
of a claim will not be obligated to pay the fees and expenses of more than one
counsel for all parties indemnified by such indemnifying party with respect to
such claim, unless in the reasonable judgment of any indemnified party, based on
written advice of counsel, a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim.
(d) The indemnifying party shall not be liable to indemnify an
indemnified party for any settlement, or consent to judgment of any such action
effected without the indemnifying party's written consent (but such consent will
not be unreasonably withheld, delayed or conditioned). Furthermore, the
indemnifying party shall not, except with the prior written approval 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
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plaintiff to each indemnified party of a release from all liability in respect
of such claim or litigation without any payment or consideration provided by
each such indemnified party.
(e) If the indemnification provided for in this Section 8 is
unavailable to an indemnified party under clauses (a) and (b) above in respect
of any losses, claims, damages or liabilities referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities in such proportion as is
appropriate to reflect the relative fault of the Company, the underwriters, the
sellers of Registrable Securities and any other sellers participating in the
registration statement in connection with the misstatement or omission which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative fault of the Company, the
underwriters, the sellers of Registrable Securities and any other sellers
participating in the registration statement 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 or by the sellers of Registrable Securities
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission; provided that in
no event shall the liability of any selling Holder hereunder be greater in
amount than the dollar amount of the proceeds received by such Holder upon the
sale of the Registrable Securities giving rise to such indemnification
obligation. 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.
(f) The indemnification provided for under this Agreement will
remain in full force and effect regardless of any investigation made by or on
behalf of the indemnified party or any officer, director or controlling person
of such indemnified party and will survive the transfer of the Registrable
Securities.
9. Participation in Underwritten Registrations. No Holder may
participate in any registration hereunder which is underwritten unless such
Holder (a) agrees to sell such Holder's securities on the basis provided in any
underwriting arrangements approved by the Holder or Holders entitled hereunder
to approve such arrangements, (b) as expeditiously as possible notifies the
Company of the occurrence of any event as a result of which any prospectus
contains an untrue statement of material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading and (c) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
10. Transfer of Registration Rights. The rights granted to any
Holder under this Agreement may be assigned to any permitted transferee of
Registrable Securities, in connection with any transfer or assignment of
Registrable Securities by a Holder; provided, however, that: (a) such transfer
is otherwise effected in accordance with applicable securities laws, (b) such
transfer is permitted by the JDOA, (c) if not already a party hereto, the
assignee or transferee agrees in writing prior to such transfer to be bound by
the provisions of this Agreement applicable to the transferor and (d) Atrix or
EIS, as applicable, if a transferor, shall act as agent and representative for
such Holder for the giving and receiving of notices hereunder.
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11. Information by Holder. Each Holder shall furnish to the
Company such written information regarding such Holder and any distribution
proposed by such Holder as the Company may reasonably request in writing and as
shall be reasonably required in connection with any registration, qualification
or compliance referred to in this Agreement and shall promptly notify the
Company of any changes in such information.
12. Exchange Act Compliance. The Company shall comply with all
of the reporting requirements of the Exchange Act then applicable to it, if any,
and shall comply with all other public information reporting requirements of the
Commission which are conditions to the availability of Rule 144 for the sale of
the Registrable Securities. The Company shall cooperate with each Holder in
supplying such information as may be necessary for such Holder to complete and
file any information reporting forms presently or hereafter required by the
Commission as a condition to the availability of Rule 144.
13. Termination of Registration Rights. All registration
rights and obligations (including, without limitation, under Section 5 under
this Agreement shall terminate and be of no further force and effect, as to any
particular Holder, at such time as all Registrable Securities held by such
Holder are eligible to be sold without compliance with the registration
requirements of the Securities Act pursuant to Rule 144(k) promulgated
thereunder or have been resold pursuant to a registration statement hereunder.
14. Miscellaneous.
(a) No Inconsistent Agreements. The Company will not hereafter
enter into any agreement with respect to its securities which is inconsistent
with or violates the rights granted to the Holders of Registrable Securities in
this Agreement without the prior written consent of a majority in interest of
such Registrable Securities.
(b) Remedies. Any Person having rights under any provision of
this Agreement will be entitled to enforce such rights specifically to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or other security) for specific performance and for other injunctive
relief in order to enforce or prevent violation of the provisions of this
Agreement; provided, however, that in no event shall any Holder have the right
to enjoin, delay or interfere with any offering of securities by the Company.
(c) Amendments and Waivers. Except as otherwise provided
herein, the provisions of this Agreement may be amended or waived only with the
prior written consent of the Company and Holders of at least 50% of the
Registrable Securities; provided, however, that without the prior written
consent of all the Holders, no such amendment or waiver shall reduce the
foregoing percentage required to amend or waive any provision of this Agreement.
(d) Successors and Assigns. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
and their respective successors and
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permitted assigns. This Agreement may be transferred by EIS and Atrix and their
respective permitted assigns and transferees to their respective affiliates, as
well as any special purpose financing or similar vehicle established by them, or
any other Person to whom any shares of Common Stock or Preferred Stock may be
transferred, as permitted by the JDOA. Other than as set forth above, no party
shall transfer or assign this Agreement without the prior written consent of the
other party, which will not be unreasonably withheld, delayed or conditioned. In
addition, whether or not any express assignment has been made, the provisions of
this Agreement which are for the benefit of Holders of Registrable Securities
are also for the benefit of, and enforceable by, any permitted transferee of
Registrable Securities, in accordance with Section 10 hereof.
(e) Severability. In case any provision of this Agreement
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not be in any way affected or
impaired thereby.
(f) Counterparts and Facsimile. This Agreement may be executed
in any number of counterparts, and each such counterpart hereof shall be deemed
to be an original instrument, but all such counterparts together shall
constitute one agreement. This Agreement may be signed and delivered to the
other party by facsimile transmission; such transmission shall be deemed a valid
signature.
(g) Descriptive Headings. The section and paragraph headings
contained in this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement.
(h) Governing Law; Disputes. This Agreement shall be governed
by and construed in accordance with the internal laws of the State of New York,
without giving effect to principles of conflicts of laws.
(i) Notices. All notices, demands and requests of any kind to
be delivered to any party in connection with this Agreement shall be in writing
and shall be deemed to have been duly given if personally or hand delivered or
if sent by internationally-recognized overnight courier or by registered or
certified mail, return receipt requested and postage prepaid, or by facsimile
transmission, addressed as follows:
(i) if to the Company, to:
Atrix Newco, Ltd.
c/o Conyers Xxxx & Xxxxxxx
Clarendon House
Church Street, P.O. Box HM 666
Xxxxxxxx XX CX, Bermuda
Attention: Xxxxx X. Xxxxx
Facsimile: (000) 000-0000
with a copy to each of Atrix, EIS and their
respective counsel at the addresses indicated below
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(ii) if to Atrix, to:
Atrix Laboratories, Inc.
0000 Xxxxxxxx Xxxxx
Xxxx Xxxxxxx, Xxxxxxxx 00000
Attention: Chief Executive Officer
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxxx & Xxxxxxxx LLP
0000 Xxxxxxxx Xxxxx
000 00xx Xxxxxx
Xxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
Facsimile (000) 000-0000
(iii) if to EIS, to:
Elan International Services, Ltd.
Flatts, Smiths Parish
Bermuda FL 04
Attention: Chief Executive Officer
Facsimile: (000) 000-0000
with a copy to:
Xxxxx Xxxxxxxxxxx LLC
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx, Esq.
Facsimile: (000) 000-0000
or to such other address as the party to whom notice is to be given may have
furnished to the other party hereto in writing in accordance with provisions of
this Section 14(i). Any such notice or communication shall be deemed to have
been effectively given (i) in the case of personal or hand delivery, on the date
of such delivery, (ii) in the case of an internationally-recognized overnight
delivery courier, on the second business day after the date when sent, (iii) in
the case of mailing, on the fifth business day following that day on which the
piece of mail containing such communication is posted and (iv) in the case of
facsimile transmission, on the business day following the date of transmission
as evidenced by confirmation of receipt.
(j) Entire Agreement. This Agreement constitutes the full and
entire understanding and agreement of the parties with regard to the subject
matter hereof and supersedes all prior agreements and understandings among the
parties with respect thereto.
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IN WITNESS WHEREOF, the parties have executed this
Registration Rights Agreement as of the date first written above.
ATRIX NEWCO, LTD.
By: /s/ XXXXX X. XXXXXXX
---------------------
Name: Xxxxx X. Xxxxxxx
Title: Chairman and Chief Executive Officer
ATRIX LABORATORIES, INC.
By: /s/ XXXXX X. XXXXXXX
---------------------
Name: Xxxxx X. Xxxxxxx
Title: Chairman and Chief Executive Officer
ELAN INTERNATIONAL SERVICES, LTD.
By: /s/ XXXXX XXXXXX
---------------------
Name: Xxxxx Xxxxxx
Title: President and Chief Financial Officer
