EXHIBIT 1.2
Execution Copy
TARGETED GENETICS CORPORATION
REGISTRATION RIGHTS AGREEMENT
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THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made as of July
20th, 1999 by and among Targeted Genetics Corporation, a Washington corporation
(the "Company"), and Elan International Services, Ltd., a Bermuda private
limited company ("EIS").
R E C I T A L S:
A. Pursuant to a securities purchase agreement dated as of the date hereof
by and between the Company and EIS (the "Purchase Agreement"), EIS has acquired,
or will acquire in the future, certain shares of common stock of the Company
(the "Common Stock"), Series B Convertible Exchangeable Preferred Stock of the
Company (the "Series B Preferred Stock"), and a convertible promissory note (the
"Note"), which Series B Preferred Stock and Note are convertible into shares of
Common Stock.
B. The execution of the Purchase Agreement 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
Stock held by such Holders and the Common Stock underlying the Series B
Preferred Stock and the Note.
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
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shall have the following respective meanings:
"Commission" shall mean the U.S. Securities and Exchange Commission.
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"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
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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 EIS and any
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Person who shall have acquired Registrable Securities from EIS as permitted
herein, either
individually or jointly, as the case may be, in a transaction pursuant to which
registration rights are transferred pursuant to Section 10 hereof.
"Person" shall mean an individual, a partnership, a company, an
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association, a joint stock company, a trust, a joint venture, an unincorporated
organization and a governmental or quasi-governmental entity, or any department,
agency or political subdivision thereof.
"Registrable Securities" means (i) any shares of Common Stock purchased
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pursuant to the Purchase Agreement, any shares of Common Stock issued or
issuable upon conversion of shares of Series B Preferred Stock (or issued as
dividends thereon) or the Note, and (ii) any Common Stock issued or issuable in
respect of the securities referred to in clause (i) above upon any stock split,
stock dividend, recapitalization or similar event; excluding in all cases,
however, any Registrable Securities that may be sold under Rule 144 promulgated
under the Securities Act, without being subject to the volume limitations under
Rule 144, 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.
The terms "register," "registered" and "registration" refer to a
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registration effected by preparing and filing a registration statement in
compliance with the Securities Act.
"Registration Expenses" shall mean all expenses, other than Selling
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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, and 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.
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"Selling Expenses" shall mean all underwriting discounts, selling
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commissions and stock transfer taxes applicable to the securities registered by
the Holders and the costs of any accountants or other experts retained by the
Holders.
2. Demand Registration.
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(a) Requests for Registration. In the event that (i) the Company receives
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from the Holders a written request that the Company file a registration
statement on Form S-3 (or any successor form to Form S-3), or any similar short-
term registration statement, for a public offering of Registrable Securities (a
"Demand Registration"), the reasonably anticipated aggregate price to the public
of which, net of underwriting discounts and commissions, would be at least
$1,000,000 and (ii) the Company is a registrant eligible to use Form S-3 to
register
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the Registrable Securities for such an offering, 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. The Holders in aggregate will be entitled to request only two Demand
Registrations hereunder. A registration will not count as the 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 Registration. If a Demand Registration is an
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underwritten offering and the managing underwriters advise the Company in
writing that in their opinion the number of Registrable Securities requested to
be included in such offering exceeds the number of Registrable Securities which
can be sold in such offering without adversely affecting the marketability of
the offering, the Company will include in such registration such number of
Registrable Securities allocated pro rata among the Holders thereof based upon
the number of Registrable Securities owned by each such Holder. 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
then outstanding.
(c) Restrictions on Demand Registration. The Company may postpone the
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filing or the effectiveness of a registration statement for a Demand
Registration if the Company determines in good faith that such Demand
Registration 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
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 the permitted
Demand Registration hereunder and the Company will pay any Registration Expenses
in connection with such registration.
(d) Selection of Underwriters. The Holders will have the right to select
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the investment banker(s) and manager(s) to administer an offering pursuant to
the Demand Registration, subject 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
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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.
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3. Piggyback Registrations. (a) Right to Piggyback. At any time
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that the Company shall propose to register Common Stock under the Securities Act
(other than in a registration on Form S-3 relating to sales of securities to
participants in a Company dividend reinvestment plan, 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), the Company shall give prompt written notice to all Holders of
Registrable Securities of its intention to effect such a registration and,
subject to Section 3(b) and the other terms of this Agreement, shall include in
such registration all Registrable Securities that 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 by the Holders within 10 days after the receipt of the
Company's notice (each, a "Piggyback Registration").
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(b) Priority on Piggyback Registrations. If a Piggyback Registration
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is an underwritten registration on behalf of the Company, 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 shall include in such registration, only as may be
permitted in the reasonable business judgment of the managing underwriters for
such registration:
(i) first, up to that number of securities the Company proposes to
sell;
(ii) second, up to that number of Registrable Securities requested to
be included in such registration by the Holders and that number of securities
requested to be included in such registration by any other Person, pro rata
among the Holders of such Registrable Securities and such other Persons, on the
basis of the number of shares owned by each of such Holders subject to the
rights of such other Persons under agreements existing as of the date hereof;
and
(iii) third, up to that number of other securities requested to be
included in such registration.
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The Holders of any Registrable Securities included in such a registration shall
execute an underwriting agreement in form and substance satisfactory to the
managing underwriters.
(c) Right to Terminate Registration. If, at any time after giving written
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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 shall have the right to select
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the investment banker(s) and manager(s) to administer an offering pursuant to a
Piggyback Registration and, subject to Section 2(d), pursuant to a Demand
Registration.
4. Expenses of Registration. Except as otherwise provided herein, all
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Registration Expenses incurred in connection with registrations pursuant to
Section 2 and all Selling Expenses relating to securities registered on behalf
of the Holders of Registrable Securities shall be borne by such Holders. All
Registration Expenses incurred in connection with registrations pursuant to
Section 3 shall be borne by the Company.
5. Holdback Agreements.
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(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, for its own account during the seven days prior
to and during the 90-day period beginning on the effective date of any
underwritten Demand Registration (except (A) as part of such underwritten
registration, (B) pursuant to registration statements on Form S-4 or Form S-8 or
any successor form, (C) pursuant to a registration statement then in effect or
(D) as required under any existing contractual obligation of the Company),
unless the underwriters managing the registered public offering otherwise agree,
and (ii) to use reasonable efforts to cause each holder of at least 5% (on a
fully-diluted basis) of its outstanding Common Stock, or any securities
convertible into or exchangeable or exercisable for Common Stock, 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 underwritten registration, if
otherwise permitted), unless the underwriters managing the registered public
offering otherwise agree.
(b) Each Holder agrees, in the event of a public offering of Common Stock
under a registration statement on Form X-0, X-0 or S-4, 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
registration), beginning on the date of
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receipt of a written notice from the Company setting forth its intention to
effect such registration and ending on the earlier of (i) 180 days from the date
of receipt of such written notice or (ii) 90 days from the effective date of
such Registration Statement.
6. Registration Procedures. Whenever the Company is under the obligation
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to register Registrable Securities hereunder, the Company will use all
reasonable efforts to effect the registration and the sale of such Registrable
Securities, and pursuant thereto the Company will as expeditiously as possible:
(a) subject to Section 2(c) and 3(a) hereof, prepare and file with the
Commission a registration statement on any 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 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 Holder of
Registrable Securities covered by such registration of any stop order issued or
threatened by the Commission);
(b) subject to Section 2(c), 3(b) and 6(e) 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 necessary to keep such
registration statement effective for, in the case of a Demand Registration, a
period equal to the shorter of (i) 120 days 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 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) consent to general service of process in any such
jurisdiction);
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(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 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 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. Upon receipt of any notice pursuant to this Section 6(e), the
Holders shall suspend all offers and sales of securities of the Company and all
use of any prospectus until advised by the Company that offers and sales may
resume, and shall keep confidential the fact and content of any notice given by
the Company pursuant to this Section 6(e);
(f) cause all such Registrable Securities to be listed on each securities
exchange 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 information reasonably
requested by any such seller, underwriter, attorney, accountant or agent in
connection with such registration statement;
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(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 Stock 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
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sell any Registrable Securities pursuant to a Demand 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.
8. Indemnification. (a) In connection with any registration statement for
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a Demand Registration in which a Holder of Registrable Securities is
participating, the Company agrees to indemnify, to the fullest extent permitted
by applicable law, each such 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 (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 such 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 necessary to make the statements therein not misleading,
except insofar as the same are caused by or contained in any information
furnished in writing to the Company by such Holder expressly for use therein or
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. 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.
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(b) In connection with any registration statements for a Demand
Registration in which a Holder of Registrable Securities is participating, each
such Holder will furnish to the Company in writing such customary information as
the Company reasonably requests for use in connection with any such registration
statement or prospectus (the "Seller's Information") and, to the fullest extent
permitted by applicable law, will 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 such 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 necessary to make the statements therein not misleading;
provided that with respect to a Claim arising pursuant to clause (i) or (ii)
above, the material misstatement or omission is contained in such Seller's
Information; provided, further, that the obligation to indemnify will be
individual to each Holder and will be limited to the amount of 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 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 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 consent (but such consent will not be
unreasonably withheld). 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 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
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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 not only the relative benefits
received by the Company (if any), the underwriters, the sellers of Registrable
Securities and any other sellers participating in the registration statement
from the sale of shares pursuant to the registered offering of securities for
which indemnity is sought but also 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 statement or
omission which resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received
by the Company (if any), the underwriters, the sellers of Registrable Securities
and any other sellers participating in the registration statement shall be
deemed to be based on the relative relationship of the total net proceeds from
the offering (before deducting expenses) to the Company (if any), the total
underwriting commissions and fees from the offering (before deducting expenses)
to the underwriters and the total net proceeds from the offering (before
deducting expenses) to the sellers of Registrable Securities and any other
sellers participating in the registration statement. 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.
(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
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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
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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) 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, (c) such transferee shall
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own Registrable Securities representing at least 350,000 shares of Common Stock
(as adjusted for any combinations, consolidations, stock distributions, stock
dividends or other recapitalizations with respect to such shares), and (d) EIS
shall act as agent and representative for such Holder for the giving and
receiving of notices hereunder.
11. Information by Holder. Each Holder shall furnish to the Company such
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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
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reporting requirements of the Exchange Act then applicable to it 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 granted
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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 can be sold within a four-month period without compliance with the
registration requirements of the Securities Act pursuant to Rule 144 (including
Rule 144(k)) promulgated thereunder or have been resold pursuant to a Demand
Registration.
14. Miscellaneous.
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(a) No Inconsistent Agreements. The Company will not hereafter enter into
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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
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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.
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(c) Amendments and Waivers. Except as otherwise provided herein, the
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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. All covenants and agreements in this Agreement
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by or on behalf of any of the parties hereto will bind and inure to the benefit
of the respective successors and assigns of the parties hereto, and shall inure
to the benefit and be enforceable by each Holder of Registrable Securities from
time to time. 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. Whenever possible, each provision of this Agreement
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will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be prohibited by or
invalid under applicable law, such provision will be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
this Agreement.
(f) Counterparts. This Agreement may be executed simultaneously in two or
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more counterparts, any one of which need not contain the signatures of more than
one party, but all such counterparts taken together will constitute one and the
same Agreement.
(g) Descriptive Headings. The descriptive headings of this Agreement are
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inserted for convenience only and do not constitute a part of this Agreement.
(h) Governing Law. All questions concerning the construction, validity and
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interpretation of this Agreement will be governed by the laws of the State of
New York without regard to principles of conflicts of laws, except that all
issues concerning the relative rights of the Company and its shareholders shall
be governed by Washington State Law, without giving effect to the principles
thereof relating to 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 delivered or if sent by nationally-
recognized overnight courier or by registered or certified airmail, return
receipt requested and postage prepaid or by facsimile transmission, addressed as
follows:
(i) if to the Company, to:
Targeted Genetics Corporation
0000 Xxxxx Xxx
Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000
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Facsimile: (000) 000-0000
Attention: Chief Financial Officer
with a copy to:
Xxxxxxx Coie
0000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
(ii) if to EIS, to:
Elan International Services, Ltd.
Flatts, Smiths Parish
Bermuda, FL 04
Facsimile: (000) 000-0000
Attention: President
with a copy to:
Xxxxx Xxxxxxxxxxx LLC
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxxx, Esq.
(j) Entire Agreement. This Agreement constitutes the full and entire
----------------
understanding and agreement between the parties with regard to the subject
matter hereof.
[Signature page follows]
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IN WITNESS WHEREOF, the parties have executed this Registration
Rights Agreement as of the date first written above.
TARGETED GENETICS CORPORATION
By: /s/ Xxxxxxx Xxxxxx
----------------------------
Name: H. Xxxxxxx Xxxxxx
Title: President & CEO
ELAN INTERNATIONAL SERVICES, LTD.
By: /s/ Xxxxx Xxxxxx
----------------------------
Name: Xxxxx Xxxxxx
Title: President & CFO
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