REGISTRATION RIGHTS AGREEMENT
This is a REGISTRATION RIGHTS AGREEMENT (this "Agreement") dated as
of November 6, 1997 among PANAX PHARMACEUTICAL COMPANY LTD., a New York
corporation (the "Company"), and the other persons named on the signature page
hereof (the "Former CorBec Stockholders").
BACKGROUND
A. The Former CorBec Stockholders hold an aggregate of 100% of the
outstanding capital stock, on a fully diluted basis, of CorBec
Pharmaceuticals, Inc., a Delaware corporation ("CorBec").
B. The Company, CorBec and certain of the Former CorBec Stockholders
are parties to an Agreement and Plan of Reorganization dated as of October 31,
1997 (the "Reorganization Agreement"). All Capitalized terms not defined
herein shall have the meanings ascribed to them in the Reorganization
Agreement.
C. Under the Reorganization Agreement, the Company will acquire
CorBec pursuant to a merger in which a newly formed subsidiary of the Company
will be merged into CorBec. In this Merger, the holders of all of CorBec's
common stock outstanding immediately prior to the Effective Time will receive
shares of common stock of the Company. A portion of these Acquiror Shares will
be delivered to the Former CorBec Stockholders pursuant to Section 1.4 of the
Reorganization Agreement upon surrender of their certificates evidencing
shares of Old Company Common Stock (the "Upfront Shares"). Additional Acquiror
Shares may be delivered to the Former CorBec Stockholders pursuant to Section
1.6 of the Reorganization Agreement in the future pursuant to milestone
payments (the "Milestone Shares").
D. This Agreement applies to all the shares of Acquiror Stock that
may be delivered to the Former CorBec Stockholders pursuant to Section 1 of
the Reorganization Agreement (i.e., both the Upfront Shares and the Milestone
Shares). This Agreement is being entered into in satisfaction of conditions
precedent to the consummation of the Reorganization Agreement, as set forth in
Sections 7.3, 8.14 and 9.9 of the Reorganization Agreement.
TERMS
In consideration of the foregoing premises and the mutual agreements
set forth herein and in the Reorganization Agreement, and intending to be
legally bound hereby, the parties hereto agree as follows:
1. Definitions. In addition to the terms defined above, as used herein, unless
the context otherwise requires, the following terms have the following
respective meanings:
Applicable Period: The seven-year period commencing upon the
earlier to occur of (i) the expiration or withdrawal of the
Shelf Registration Statement or (ii) June 30, 1999.
Common Stock: The Company's Common Stock, $.0001 par value.
Commission: The Securities and Exchange Commission or any
other federal agency at the time administering the
Securities Act.
Exchange Act: The Securities Exchange Act of 1934, or any
similar federal statute, and the rules and regulations of
the Commission thereunder, all as the same shall be in
effect at the time. Reference to a particular section of the
Securities Exchange Act of 1934 shall include a reference to
the comparable section, if any, of any such similar federal
statute.
Pending Private Placement: The pending private offering by
the Company of up to 17 million shares of Common Stock
pursuant to the Company's Amended and Restated Confidential
Private Placement Memorandum dated October 27, 1997, as
supplemented on November 5, 1997.
Private Placement Purchasers: The purchasers of shares in
the Pending Private Placement.
Registrable Securities: The shares of Common Stock issued or
issuable to the Former CorBec Stockholders pursuant to
Section 1 of the Reorganization Agreement (even though the
Milestone Shares have not yet been issued), and any shares
of voting common stock issued or issuable with respect to
any such Common Stock by way of stock dividend or stock
split or in connection with a combination of shares,
recapitalization, merger, consolidation or other
reorganization or otherwise. As to any particular
Registrable Securities, once issued such securities shall
cease to be Registrable Securities when (a) a registration
statement with respect to the sale of such securities shall
have become effective under the Securities Act and such
securities shall have been disposed of in accordance with
such registration statement, (b) they shall have become
eligible to be distributed to the public pursuant to Rule
144 (or any successor provision) under the Securities Act
and not subject to any volume limits under such Rule, (c)
they shall have been otherwise transferred, new certificates
for them not bearing a legend restricting further transfer
shall have been delivered by the Company and subsequent
disposition of them shall not require registration or
qualification of them under the Securities Act or any
similar state law then in force, or (d) they shall have
ceased to be outstanding.
Registration Expenses: All expenses incident to the
Company's performance of or compliance with Section 2,
including, without limitation, all registration, filing and
National Association of Securities Dealers fees, all fees
and expenses of complying with securities or blue sky laws,
all word processing, duplicating and printing expenses,
messenger and delivery expenses, the fees and disbursements
of counsel for the Company and of its independent public
accountants, including the expenses of any "cold comfort"
letters required by or incident to such performance and
compliance, premiums and other costs of policies of
insurance against liabilities arising out of the public
offering of the Registrable Securities being registered and
any fees and disbursements of underwriters customarily paid
by issuers or sellers of securities, but excluding
underwriting discounts and commissions, brokers fees and
transfer taxes, if any, provided that, in any case where
Registration Expenses are not to be borne by the Company,
such expenses shall not include salaries of Company
personnel or general overhead expenses of the Company,
auditing fees, premiums or other expenses relating to
liability insurance required by underwriters of the Company
or other expenses for the preparation of financial
statements or other data normally prepared by the Company in
the ordinary course of its business or which the Company
would have incurred in any event.
Requisite Holders: Any holder or holders of at least
50.1% (by number of shares) of the Registrable Securities.
Securities Act: The Securities Act of 1933, or any similar
federal statute, and the rules and regulations of the
Commission thereunder, all as of the same shall be in effect
at the time. References to a particular section of the
Securities Act of 1933 shall include a reference to the
comparable section, if any, of any such similar federal
Statute.
Shelf Registration Statement: The registration statement,
which, under the subscription agreement in the Pending
Private Placement, the Company is obligated to use its best
efforts to (i) file with the SEC within 30 days after the
final closing date of the Pending Private Placement, (ii)
have declared effective by the SEC and (iii) cause to remain
effective for 18 months thereafter.
Subscription Agreement. The subscription agreement, as
executed by each of the Private Placement Purchasers in
connection with their purchases of shares in the Pending
Private Placement, substantially in the form of Exhibit B to
the Company's Amended and Restated Private Placement
Memorandum dated October 27, 1997, as supplemented on
November 5, 1997.
2. Registration under Securities Act.
2.1. Registration of Upfront Shares.
(a) Shelf. The Company will include the Upfront Shares in
the Shelf Registration Statement to allow for the unrestricted public offer
and sale of the Upfront Shares by the Former CorBec Stockholders. The Company
will use its best efforts to (i) prepare and file the Shelf Registration
Statement with the SEC within 30 days after the final closing of the Pending
Private Placement, (ii) cause the Shelf Registration Statement to be declared
effective under the Securities Act and (iii) cause it to remain effective for
a period of 18 months. The Company will pay all Registration Expenses in
connection with the Shelf Registration Statement. The Company will notify the
Former CorBec Stockholders that the Shelf Registration Statement has become
effective promptly after it has been declared so by the SEC.
(b) Lock-Up. In order to facilitate completion of the
Pending Private Placement, and notwithstanding the filing of the Shelf
Registration Statement, the Former CorBec Stockholders may not transfer and
sell any Upfront Shares until the 61st day following the date the Shelf
Registration Statement is declared effective by the SEC.
2.2. Demand Registration.
(a) General. If at any time after the earlier to occur of
(i) the termination of effectiveness of the Shelf Registration Statement or
(ii) the issuance of Milestone Shares upon the realization of the first
milestone triggering the issuance of shares to occur under Section 1.6 of the
Reorganization Agreement, the Company shall receive a written request for the
registration of Registrable Securities (the "Demand Notice") from the
Requisite Holders, the Company shall prepare and file with the SEC a
Registration Statement covering the Registrable Securities which are the
subject of such request and shall use its best efforts to cause such
Registration Statement to become effective under the Act. In addition, upon
the receipt of such request, the Company shall promptly give written notice to
all other record holders of Registrable Securities that such registration is
to be effected. The Company shall include in such Registration Statement such
Registrable Securities for which it has received written requests to register
by such other record holders within 30 days after the delivery of the
Company's written notice to such other record holders.
(b) Conversion to Piggy-Back Registration. In the event that
at the time of the Demand Notice the Company is in the process of preparing a
Registration Statement relating to an underwritten public offering, then the
Company will notify the sender(s) of the Demand Notice of the same, which
notice will be deemed to be the notice referred to in the first sentence of
Section 2.3(a). The Demand Notice shall then be deemed rescinded and the
parties will proceed under Section 2.3. This process will not constitute a
demand registration for purposes of Section 2.2(c) or for any other purpose.
(c) Occurrences. The obligations of the Company under this
Section 2.2 shall be limited to one registration statement prior to the
issuance of Milestone Shares upon the realization of the first milestone
triggering the issuance of shares to occur under Section 1.6 of the
Reorganization Agreement. Thereafter, when any tranche of Milestone Shares
becomes issuable, the Company will be obligated under this Section 2.2 to file
one registration statement. These "per tranche" obligations shall not be
cumulative, however, and any outstanding obligation of the Company to file a
registration statement under this Section 2.2. shall expire upon the
incurrence of the obligation to file an additional registration statement in
connection with the issuance of a new tranche of Milestone Shares.
2.3. Piggyback Registrations.
(a) General. Subject to the limitations set forth in this
Agreement, at any time during the Applicable Period if the Company proposes to
register any of its securities under the Securities Act (other than for
purposes of a "rights" offering or pursuant to a registration on Form S-4 or
Form S-8 or any successor or similar form), for sale for its own account, it
will each such time give prompt written notice to all holders of Registrable
Securities of its intention to do so and of the intended method of disposition
thereof and of such holders' rights under this Section 2.3. Upon the written
request of any such holder made within 10 days after the receipt of any such
notice (which request shall specify the Registrable Securities intended to be
disposed of by such holder), the Company will use its best efforts to effect
the registration under the Securities Act of all Registrable Securities which
the Company has been so requested to register by the holders thereof, to the
extent requisite to permit the disposition (in accordance with the intended
methods thereof as aforesaid) of the Registrable Securities so to be
registered, provided that if, at any time after giving written notice of its
intention to register any securities 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 or to delay registration of
such securities, the Company may, at its election, give written notice of such
determination to each holder of Registrable Securities and, thereupon, (i) in
the case of a determination not to register, shall 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), and (ii) in the case of a determination to delay
registering, shall be permitted to delay registering any Registrable
Securities, for the same period as the delay in registering such other
securities. The Company will pay all Registration Expenses in connection with
each registration of Registrable Securities requested pursuant to this Section
2.3.
(b) Underwritten Offerings. If the securities covered by a
registration statement filed by the Company pursuant to this Section 2.3
(other than those securities held by the holders of Registrable Securities)
are to be sold by underwriters in an underwritten public offering, the Company
shall use its reasonable best efforts to cause the managing underwriter of the
proposed offering to permit the securities owned by the holders of Registrable
Securities to be included in the proposed offering on the same terms;
provided, however, that the Registrable Securities included in such
registration shall be sold or distributed in a manner identical to the manner
in which the other securities that are the subject of such registration are
sold or distributed. Notwithstanding the foregoing, if the Registrable
Securities requested for inclusion pursuant to this Section 2.3 together with
any other shares that have similar piggyback registration rights and any other
shares proposed to be offered by persons other than the Company (such other
shares and the Registrable Securities being collectively referred to as the
"Requested Stock") would, in the good faith judgment of the managing
underwriter of such public offering, reduce the number of shares to be offered
by the Company or interfere with the successful marketing of the shares of
stock offered by the Company, the number of shares of Requested Stock
otherwise to be included in the underwritten public offering may be reduced
pro rata (by the number of shares) among the holders thereof requesting such
registration or excluded in their entirety if so required by the managing
underwriter.
To the extent only a portion of the Requested Stock is
included in the underwritten public offering, those shares of Requested Stock
that are thus excluded from the underwritten public offering shall not be
disposed of by the holders thereof for a period, not to exceed 180 days after
consummation of the underwritten public offering, that the managing
underwriter reasonably determines is necessary in order to effect such
offering; provided, however, that (except as to holders who are affiliates of
the Company) such date shall not be later than the earliest date at which
similar restrictions on sales of securities of the Company by any
non-affiliate of the Company are terminated, released or waived. For purposes
of the foregoing sentence, the term "dispose of" means to sell, offer,
contract to sell, pledge, grant any option to purchase or otherwise dispose of
Registrable Securities or any securities convertible into or exchangeable or
exerciseable for, or any rights to purchase or acquire, Registrable
Securities. Such term contemplates, among other things, any hedging or other
type of transaction that is designed or reasonably expected to lead to or
result in a disposition of Registrable Securities during the "Black-out
Period," including, without limitation, any short sale (whether or not against
the box) or any purchase, sale or grant of any right (including, without
limitation, any put or call option) with respect to Registrable Securities or
with respect to any security that includes, relates to or derives any
significant part of its value from Registrable Securities.
2.4. Registration Procedures.
(a) General. If and whenever the Company is required to use
its best efforts to effect the registration of any Registrable Securities
under the Securities Act as provided in Section 2.1, 2.2 or 2.3, the Company
will as expeditiously as possible:
(i) prepare and, as soon thereafter as
possible, file with the Commission the
requisite registration statement to effect
such registration and thereafter use its
best efforts to cause such registration
statement to become effective (provided
that the Company may discontinue any
registration of its securities that are
not Registrable Securities (and, under the
circumstances specified in Section 2.3(a),
its securities that are Registrable
Securities) at any time prior to the
effective date of the registration
statement relating thereto;
(ii) 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 and to comply with the
provisions of the Securities Act with
respect to the disposition of all
securities covered by such registration
statement for a period of 135 days or, if
earlier in any case, until such time as
all of such securities have been disposed
of by the seller or sellers thereof set
forth in such registration statement;
(iii) furnish to each seller of Registrable
Securities covered by such registration
statement such number of conformed copies
of such registration statement and of each
such amendment and supplement thereto (in
each case including all exhibits), such
number of copies of the prospectus
contained in such registration statement
(including each preliminary prospectus and
any summary prospectus) and any other
prospectus filed under Rule 424 under the
Securities Act, in conformity with the
requirements of the Securities Act, and
such other documents, as such seller may
reasonably request;
(iv) use its diligent efforts to register or
qualify all Registrable Securities and
other securities covered by such
registration statement under such other
securities or blue sky laws of such
jurisdictions as each seller thereof shall
reasonably request, to keep such
registration or qualification in effect
for so long as such registration statement
remains in effect, and take any other
action which may be reasonably necessary
or advisable to enable such seller to
consummate the disposition in such
jurisdictions of the securities owned by
such seller, except that the Company shall
not for any such purpose be required to
qualify generally to do business as a
foreign corporation in any jurisdiction
wherein it would not but for the
requirements of this Section 2.4(a)(iv) be
obligated to be so qualified or to consent
to general service of process in any such
jurisdiction;
(v) use its diligent efforts to cause all
Registrable Securities covered by such
registration statement to be registered
with or approved by such other
governmental agencies or authorities as
may be necessary to enable the seller or
sellers thereof to consummate the
disposition of such Registrable
Securities;
(vi) in the case of any registration pursuant
hereto for sale in any underwritten
offering, furnish to each seller of
Registrable Securities a signed
counterpart, addressed to such seller (and
underwriters, if any) of (A) an opinion of
counsel for the Company, dated the
effective date of such registration
statement (and the date of the closing
under the underwriting agreement),
reasonably satisfactory in form and
substance to such seller, and (B) a
"comfort" letter, dated the effective date
of such registration statement (and dated
the date of the closing under the
underwriting agreement), signed by the
independent public accountants who have
certified the Company's financial
statements included in such registration
statement, covering substantially the same
matters with respect to such registration
statement (and the prospectus included
therein) and, in the case of the
accountants' letter, with respect to
events subsequent to the date of such
financial statements, as are customarily
covered in opinions of issuer's counsel
and in accountants' letters delivered to
the underwriters in underwritten public
offerings of securities;
(vii) notify each seller of Registrable
Securities covered by such registration
statement, at any time when a prospectus
relating thereto is required to be
delivered under the Securities Act within
the time period mentioned in Section
2.4(a)(ii), upon discovery that, or upon
the happening of any event as a result of
which, the prospectus included in such
registration statement, as then in effect,
includes an untrue statement of a material
fact or omits to state any material fact
required to be stated therein or necessary
to make the statements therein not
misleading in the light of the
circumstances under which they were made,
and at the request of any such seller
promptly prepare and provide to such
seller a reasonable number of copies of a
supplement to or an amendment of such
prospectus as may be necessary so that, as
thereafter delivered to the purchasers of
such securities, such prospectus shall not
include 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 in the light of the
circumstances under which they were made;
(viii) otherwise use its best efforts to comply
with all applicable rules and regulations
of the Commission, and attempt in good
faith to furnish to each such seller a
reasonable period prior to the filing
thereof a copy of any amendment or
supplement to such registration statement
or prospectus and shall not file any
amendment or supplement to which any such
seller shall have reasonably objected on
the grounds that the disclosures contained
in such amendment or supplement relating
to such seller do not comply in all
material respects with the requirements of
the Securities Act or of the rules or
regulations thereunder;
(ix) provide and cause to be maintained a
transfer agent for all Registrable
Securities covered by such registration
statement from and after a date not later
than the effective date of such
registration statement; and
(x) use its best efforts to list all
Registrable Securities covered by such
registration statement on any securities
exchange on which any of the Registrable
Securities are then listed.
(b) Holders' Information and Agreements. The Company may
require each holder of Registrable Securities as to which any registration is
being effected (A) to furnish the Company such information regarding such
holder and the distribution of such securities as the Company may from time to
time reasonably request in writing, and (B) in the case of an underwritten
offering, to execute all agreements, indemnities and other documents
reasonably required under the terms of the underwriting arrangements.
(c) Abeyance. Each holder of Registrable Securities agrees
by acquisition of such Registrable Securities that upon receipt of any notice
from the Company of the happening of any event of the kind described in
Section 2.4(a)(vii), such holder will immediately discontinue such holder's
disposition of Registrable Securities pursuant to the registration statement
relating to such Registrable Securities until such holder's receipt of the
copies of the supplemented or amended prospectus contemplated by Section
2.4(a)(vii) and, if so directed by the Company, 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 relating to such Registrable
Securities current at the time of receipt of such notice. In the event the
Company shall give any such notice, the 135-day period referred to in Section
2.4(a)(ii) shall be extended by the length of the period from and including
the date when each holder of Registrable Securities covered by such
registration statement has received such notice to the date on which each such
holder shall have received the copies of the supplemented or amended
prospectus contemplated by Section 2.4(a)(vii).
2.5. Preparation: Reasonable Investigation.
In connection with the preparation and filing of each
registration statement under the Securities Act pursuant to this Agreement,
the Company will give the holders of Registrable Securities registered under
such registration statement and their counsel, the opportunity to participate
in the preparation of such registration statement, each prospectus included
therein or filed with the Commission, and each amendment thereof or supplement
thereto, and, subject to the execution of confidentiality agreements, will
give each of the holders such access to its books and records and such
opportunities to discuss the business of the Company with its officers and the
independent public accountants who have certified its financial statements as
shall be necessary, in the opinion of such holders' and such underwriters'
respective counsel, to conduct a reasonable investigation within the meaning
of the Securities Act.
2.6. Indemnification.
(a) Indemnification by the Company. In the event of any
registration of any Registrable Securities under the Securities Act pursuant
hereto, the Company will, and hereby does, indemnify and hold harmless each
holder of any Registrable Securities covered by any registration statement
filed pursuant hereto, its partners, directors and officers, and each other
Person, if any, who controls such holder within the meaning of the Securities
Act, against any losses, claims, damages or liabilities, joint or several, to
which such holder or any such partner, director or officer or controlling
person may become subject under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions or proceedings,
whether commenced or threatened, in respect thereof), arise out of or are
based upon any untrue statement or alleged untrue statement of any material
fact contained in such registration statement, any preliminary prospectus,
final prospectus or summary prospectus contained therein, or any amendment or
supplement thereto, or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein, in the case of any prospectus in light of the
circumstances under which they were made, not misleading, and the Company will
reimburse such holder and each such partner, director, officer, and
controlling person for any legal or any other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim,
liability, action or proceeding; 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 or proceeding in respect thereof) or expense arises out
of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in such registration statement, any such
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement in reliance upon and in conformity with written information
furnished to the Company by or on behalf of such holder. Such indemnity shall
remain in full force and effect regardless of any investigation made by or on
behalf of such holder or any such director, officer or controlling person and
shall survive the transfer of such securities by such holder.
(b) Indemnification by the Sellers. In the event of any
registration of any Registrable Securities under the Securities Act pursuant
hereto, each holder of Registrable Securities covered by any registration
statement filed pursuant hereto will, and hereby does, indemnify and hold
harmless the Company, each director of the Company, each officer of the
Company and each other Person, if any, who controls the Company within the
meaning of the Securities Act, against any losses, claims, damages or
liabilities, joint or several, to which the Company, or any director, officer
or controlling person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
or proceedings, whether commenced or threatened, in respect thereof), arise
out of or are based upon any untrue statement or alleged untrue statement of
any material fact contained in such registration statement, any preliminary
prospectus, final prospectus or summary prospectus contained therein, or any
amendment or supplement thereto, or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in the case of any prospectus in light of the
circumstances under which they were made, not misleading, if such statement or
alleged 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 and each such holder of Registrable Securities will
reimburse the Company and each director, officer or controlling person for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability, action or
proceeding. Such indemnity shall remain in full force and effect, regardless
of any investigation made by or on behalf of the Company or any such director,
officer or controlling Person and shall survive the transfer of such
securities by such holder.
(c) Notices of Claims. etc. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in this Section 2.6, such indemnified party
will, if a claim in respect thereof is to be made against an indemnifying
party, give written notice to the latter of the commencement of such action,
provided that the failure of any indemnified party to give notice as provided
herein shall not relieve the indemnifying party of its obligations under this
Section 2.6, except to the extent that the indemnifying party is actually
prejudiced by such failure to give notice. In case any such action is brought
against an indemnified party, unless in such indemnified party's reasonable
judgment a conflict of interest between such indemnified and indemnifying
parties may exist in respect of such claim, the indemnifying party shall be
entitled to participate therein and to assume the defense thereof, jointly
with any other indemnifying party similarly notified to the extent that it may
wish, with counsel reasonably satisfactory to such indemnified party, and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party for any legal or other expenses subsequently
incurred by the latter in connection with the defense thereof. No indemnifying
party shall, without the consent of the indemnified party, consent to entry of
any judgment or enter into any settlement that does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a full release from all liability in respect to such
claim or litigation.
(d) Other Indemnification. Indemnification similar to that
specified in this Section 2.6 (with appropriate modifications) shall be given
by the Company and each holder of Registrable Securities with respect to any
required registration or other qualification with respect to such holder's
Registrable Securities under any federal or state law or regulation of any
governmental authority other than the Securities Act.
(e) Indemnification Payments. The indemnification required
by this Section 2.6 shall be made by periodic payments of the amount thereof
during the course of the investigation or defense, as and when bills are
received or expense, loss, damage or liability is incurred.
3. Rule 144.
The Company will use its best efforts to file the reports required to
be filed by it under the Securities Act and the Exchange Act and the rules and
regulations adopted by the Commission thereunder (or, if the Company is not
required to file such reports, it will, upon the request of any holder of
Registrable Securities, make publicly available other information) to the
extent required from time to time to enable such holder to sell Registrable
Securities without registration under the Securities Act within the
limitations of the exemptions provided by Rule 144 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. Upon the request of any holder
of Registrable Securities, the Company will deliver to such holder a written
statement as to whether it has complied with such requirements.
4. Amendments and Waivers.
This Agreement may be amended and the Company may take any action
prohibited by this Agreement or omit to perform any act required by this
Agreement to be performed by it, only if the Company shall have obtained the
written consent to such amendment, action or omission to act, of the Requisite
Holders. Each holder of any Registrable Securities at the time or thereafter
outstanding shall be bound by any consent authorized pursuant to this Section
4, whether or not such Registrable Securities shall have been marked to
indicate such consent.
5. Nominees for Beneficial Owners.
In the event that any Registrable Securities are held by a nominee
for the beneficial owner thereof, the beneficial owner thereof may, at its
election, be treated as the holder of such Registrable Securities for purposes
of any request or other action by any holder or holders of Registrable
Securities pursuant to this Agreement or any determination of any number or
percentage of shares of Registrable Securities held by any holder or holders
of Registrable Securities contemplated by this Agreement. If the beneficial
owner of any Registrable Securities so elects, the Company may require
assurances reasonably satisfactory to it of such owner's beneficial ownership
of such Registrable Securities.
6. Notices.
All communications provided for hereunder shall be sent by
first-class mail and (a) if to a party other than the Company, to the
registered address of such party on record with the Company's transfer agent,
or at such other address (or if to a non-registered beneficial owner of
Registrable Securities, to such address) as such party shall have furnished to
the Company in writing, or (b) if addressed to the Company, at 000 Xxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, Attention: President or at such other
address, or to the attention of such other officer, as the Company shall have
furnished to each holder of Registrable Securities at the time outstanding.
7. Assignment.
This Agreement shall be binding upon and inure to the benefit of and
be enforceable by the parties hereto and their respective successors and
permitted assigns. Notwithstanding any other provision contained herein, the
rights of holders of Registrable Securities to have the Company register
Registrable Securities pursuant to this Agreement may only be assigned: (a) to
a holder of Registrable Securities who acquired such Registrable Securities
pursuant to Section 1 of the Reorganization Agreement (or any officer,
director, partner, limited partner or stockholder thereof); (b) if the
transferor or assignor agrees in writing with the transferee or assignee to
assign such rights, and a copy of such agreement is furnished to the Company
within a reasonable period of time after such assignment; (c) if the Company
is, within a reasonable period of time after such transfer or assignment,
furnished with written notice of (i) the name and address of such transferee
or assignee and (ii) the securities with respect to which such registration
rights are being transferred or assigned; (d) if immediately following such
transfer or assignment the further disposition of such securities by the
transferee or assignee is restricted under the Securities Act and applicable
state securities laws and (e) if at or before the time the Company received
the written notice contemplated by clause (c) of this sentence the transferee
agrees to be bound by all of the provisions contained herein and by
restrictions on transfer similar to those set forth in Section 7.1(d) of the
Reorganization Agreement.
8. Descriptive Headings.
The descriptive headings of the several sections and paragraphs of
this Agreement are inserted for reference only and shall not limit or
otherwise affect the meaning hereof.
9. Governing Law.
This Agreement shall be construed and enforced in accordance with,
and the rights of the parties shall be governed by, the laws of the State of
Delaware, without regard to conflicts of laws principles.
10. Counterparts.
This Agreement may be executed simultaneously in any number of
counterparts, each of which shall be deemed an original, but all such
counterparts shall together constitute one and the same instrument. If the
Company and the Stockholders (as defined in the Reorganization Agreement)
execute counterparts hereof, then this Agreement will be effective
and enforceable against each party that executes a counterpart even if fewer
than all the Former CorBec Stockholders execute counterparts.
[THE REMAINDER OF THIS PAGE LEFT BLANK INTENTIONALLY]
IN WITNESS WHEREOF, and intending to be legally bound
hereby, the parties have duly executed this Agreement as of the date first
above written.
PANAX PHARMACEUTICAL COMPANY LTD.
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------------
Xxxxx X. Xxxxxxxx, Ph.D., President
PLEXUS VENTURES, INC. XXXXXXX MEDICAL VENTURES 1993, L.P.
By: Xxxxxxx/Dover Limited Partnership,
As General Partner
By: /s/ Xxxx X. Xxxxxxxx
----------------------------------
Xxxx X. Xxxxxxxx, President By: Wilmington Securities, Inc.,
As General Partner
TRUSTEES OF THE UNIVERSITY By: /s/ Xxxxxxx Xxxxxx
OF PENNSYLVANIA -----------------------------------------
Xxxxxxx Xxxxxx, Vice President
XXXXXXX MEDICAL VENTURES 1995, L.P.
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxxx By: Xxxxxxx/Dover Limited Partnership,
Title: Treasurer As General Partner
/s/ Xxxx Xxxxxxxxx By: Wilmington Securities, Inc.,
---------------------------------- As General Partner
Xxxx Xxxxxxxxx, M.D.
By: /s/ Xxxxxxx Xxxxxx
------------------------------------------
/s/ Jong-Gu Park Xxxxxxx Xxxxxx, Vice President
-------------------------------------
Jong-Gu Park, Ph.X. XXXXXXX MEDICAL VENTURES 1996, L.P.
/s/ Xxxx Xxxxxxx By: Xxxxxxx/Dover Limited Partnership,
------------------------------------- As General Partner
Xxxx Xxxxxxx, Ph.D.
By: Wilmington Securities, Inc.,
As General Partner
ESTATE OF XXXXX X. XXXXX
By: /s/ Xxxxxxx Xxxxxx
------------------------------------------
/s/ Xxx X. Xxxxx Xxxxxxx Xxxxxx, Vice President
--------------------------------
Name: Xxx. Xxxxx X. Xxxxx
Title:
