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Exhibit 10.1
ABGENIX, INC.
REGISTRATION RIGHTS AGREEMENT
This Agreement is made as of November 18, 1998 by and between Abgenix,
Inc., a Delaware corporation (the "Company"), and the persons and entities
listed on the Schedule of Holders attached hereto as Schedule 1 (the "Holders").
WHEREAS, pursuant to a Stock Purchase Agreement (the "CG Agreement") of
even date herewith between Cell Genesys, Inc., a Delaware corporation ("CG"),
and the Holders, CG is selling 1,146,300 shares of the Company's Common Stock
(the "Shares") to the Holders for the purchase price of $9,499,961.25; and
WHEREAS, to induce the Holders to enter into the CG Agreement, the
Company has agreed to provide the Holders with certain registration rights with
respect to the Shares pursuant to the terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the mutual promises, covenants and
conditions set forth in this Agreement, the Company and the Holders agree as
follows:
1. Certain Definitions. As used in this Agreement, the following terms
shall have the following respective meanings:
Business Day. Each Monday, Tuesday, Wednesday, Thursday and Friday
that is not a day on which banking institutions in New York are authorized or
obligated by law or executive order to close.
Effectiveness Period. See Section 2(a) hereof.
Exchange Act. The Securities Exchange Act of 1934, as amended, or any
similar federal statute and the rules and regulations of the SEC promulgated
thereunder.
Initial Shelf Registration. See Section 2(a) hereof.
Losses. See Section 5(a) hereof.
Prospectus. The prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under the Securities Act), as
amended or supplemented by any prospectus supplement, including, without
limitation, with respect to the terms of the offering of any portion of the
Registrable Securities covered by such Registration Statement and all other
amendments and supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus. Such Prospectus and any amendments
or supplements shall comply with the Securities Act.
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Register. The terms "register," "registered" and "registration" refer
to a registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement by the SEC.
Registrable Securities. The Shares or other securities issued or
issuable with respect to the Shares as a result of any stock split, stock
dividend, recapitalization, exchange, combination, merger, consolidation,
distribution or similar event.
Registration Expenses. See Section 4 hereof.
Registration Statement. Any registration statement of the Company
which covers any of the Registrable Securities pursuant to the provisions of
this Agreement, including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits, and
all material incorporated by reference or deemed to be incorporated by reference
in such registration statement. Such Registration Statement and any amendments
or supplements thereto shall comply with the Securities Act.
Replacement Shelf Registration. See Section 2(b) hereof.
Rule 144. 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 SEC.
SEC. The Securities and Exchange Commission.
Securities Act. The Securities Act of 1933, as amended, and the rules
and regulations promulgated by the SEC thereunder.
Shelf Registration. See Section 2 hereof.
Special Counsel. Proskauer Rose LLP, or such other successor counsel
as shall be specified by the Xxxxxxx Capital Group LLC ("ZCG") on behalf of the
Holders as special counsel to the Holders, the fees and expenses of which will
be paid by the Company pursuant to Section 4 hereof.
Subsequent Shelf Registration. See Section 2(c) hereof.
2. Shelf Registration.
(a) The Company shall prepare and file with the SEC, not later than
January 15, 1999, a Registration Statement for an offering to be made on a
continuous basis pursuant to Rule 415 of the Securities Act (a "Shelf
Registration") covering all of the Registrable Securities (the "Initial Shelf
Registration"). The Initial Shelf Registration shall be on Form S-1. The Company
shall use its reasonable efforts to cause the Initial Shelf Registration to be
declared effective under the Securities Act by the SEC as soon as practicable
(but in no event on or prior to January 28, 1999) and to keep the Initial Shelf
Registration continuously effective under the Securities Act until November 18,
2000 (the "Effectiveness Period"), or such shorter period ending when (i) all
Registrable Securities covered by the Initial Shelf Registration have been sold
or shall have ceased to be Registrable Securities, (ii) the
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Replacement Shelf Registration, as defined below, covering all of the
Registrable Securities has been declared effective under the Securities Act or
(iii) a Subsequent Shelf Registration, as defined below, covering all of the
Registrable Securities has been declared effective under the Securities Act.
(b) As soon as the Company is eligible to use Form S-3 permitting
registration of the Company's securities for resale by the Holders, the Company
shall prepare and file with the SEC a Registration Statement for a Shelf
Registration covering all of the Registrable Securities (the "Replacement Shelf
Registration"). The Replacement Shelf Registration shall be on Form S-3 or
another appropriate form permitting registration of such Registrable Securities
for resale by the Holders. On the date that the Replacement Shelf Registration
is declared effective under the Securities Act by the SEC, the Company shall
withdraw the Initial Shelf Registration and no further sales of Registrable
Securities shall be made pursuant to the Initial Shelf Registration as of such
date; provided, however, that in no event shall the Initial Shelf Registration
be withdrawn until such time as the Replacement Shelf Registration has been
declared effective under the Securities Act by the SEC. After the Replacement
Shelf Registration has been declared effective by the SEC, the Company shall use
reasonable efforts to keep the Replacement Shelf Registration continuously
effective under the Securities Act until the end of the Effectiveness Period or
such shorter period ending when (i) all Registrable Securities covered by the
Replacement Shelf Registration have been sold or shall have ceased to be
Registrable Securities, or (ii) a Subsequent Shelf Registration, as defined
below, covering all of the Registrable Securities has been declared effective
under the Securities Act.
(c) If the Initial Shelf Registration, Replacement Shelf Registration
or any Subsequent Shelf Registration, as defined below, ceases to be effective
for any reason at any time during the Effectiveness Period (other than because
all Registerable Securities registered thereunder shall have been sold or shall
have ceased to be Registerable Securities), the Company shall use its best
efforts to obtain the prompt withdrawal of any order suspending the
effectiveness thereof, and in any event shall within 45 days of such cessation
of effectiveness amend the Shelf Registration in a manner reasonably expected to
obtain the withdrawal of the order suspending the effectiveness thereof, or file
an additional "shelf" Registration Statement pursuant to Rule 415 of the
Securities Act covering all of the Registrable Securities (a "Subsequent Shelf
Registration"). If a Subsequent Shelf Registration is filed, the Company shall
use its best efforts to cause the Subsequent Shelf Registration to be declared
effective under the Securities Act by the SEC as soon as practicable after such
filing and shall use reasonable efforts to keep such Registration Statement
continuously effective until the end of the Effectiveness Period.
(d) The Company shall supplement and amend the Shelf Registration if
required by the rules, regulations or instructions applicable to the
registration form used by the Company for such Shelf Registration, if required
by the Securities Act, or if reasonably requested by any Holder or by any
underwriter of the Registrable Securities.
3. Registration Procedures. In connection with the Company's
registration obligations under Section 2 hereof, the Company shall effect such
registrations to permit the sale of the Registrable Securities in accordance
with the intended method or methods of disposition thereof and pursuant thereto
the Company shall as expeditiously as possible:
(a) Prepare and file with the SEC a Registration Statement or
Registration Statements on any appropriate form under the Securities Act
available for the sale of the Registrable Securities by
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the Holders in accordance with the intended method or methods of distribution
thereof, and cause each such Registration Statement to become effective and
remain effective as provided herein; provided, that before filing any such
Registration Statement or Prospectus or any amendments or supplements thereto
(other than documents that would be incorporated or deemed to be incorporated
therein by reference and that the Company is required by applicable securities
laws or stock exchange requirements to file) the Company shall furnish to the
Special Counsel and the managing underwriters of such offering, if any, copies
of all such documents proposed to be filed, which documents will be subject to
the review of the Special Counsel and such underwriters.
(b) Prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement continuously effective for the applicable period
specified in Section 2; cause the related Prospectus to be timely supplemented
by any required Prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 (or any similar provisions then in force) under the
Securities Act; and comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such Registration
Statement during the applicable period in accordance with the intended methods
of disposition by the Holders set forth in such Registration Statement as so
amended or such Prospectus as so supplemented.
(c) Notify the Holders, the Special Counsel and the managing
underwriters, if any, promptly, and (if requested by any such person) confirm
such notice in writing, (i) when a Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to a Registration
Statement or any post-effective amendment, when the same has become effective,
(ii) of any request by the SEC or any other federal or state governmental
authority during the period of effectiveness of the Registration Statement for
amendments or supplements to a Registration Statement or related Prospectus or
for additional information, (iii) of the issuance by the SEC or any other
federal or state governmental authority of any stop order suspending the
effectiveness of a Registration Statement or the initiation of any proceedings
for that purpose, (iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification or exemption from qualification
of any of the Registrable Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, (v) of the
happening of any event which makes any statement made in such Registration
Statement or related Prospectus or any document incorporated or deemed to be
incorporated therein by reference untrue in any material respect or which
requires the making of any changes in the Registration Statement or Prospectus
so that, in the case of the Registration Statement, it will not contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading,
and that in the case of the Prospectus, it will not contain any untrue statement
of a material fact or omit to state any material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, and (vi) of the Company's reasonable determination that a
post-effective amendment to a Registration Statement would be appropriate.
(d) Use every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement, or the lifting of any
suspension of the qualification (or exemption from qualification) of any of the
Registrable Securities for sale in any jurisdiction, at the earliest possible
moment.
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(e) Subject to the last paragraph of this Section 3, if reasonably
requested by the managing underwriters, if any, or the Holders (i) promptly
incorporate in a Prospectus supplement or post-effective amendment such
information as the managing underwriters, if any, or the Holders agrees should
be included therein as required by applicable law, (ii) make all required
filings of such Prospectus supplement or such post-effective amendment as soon
as practicable after the Company has received notification of the matters to be
incorporated in such Prospectus supplement or post-effective amendment, and
(iii) supplement or make amendments to any Registration Statement consistent
with clause (i) or (ii) above; provided, that the Company shall not be required
to take any actions under this Section 3(e) that are not, in the opinion of
counsel for the Company, necessary or advisable to comply with applicable law.
(f) Furnish to the Holders, the Special Counsel and each managing
underwriter, if any, without charge, at least one conformed copy of the
Registration Statement or Registration Statements and any post-effective
amendment thereto, including financial statements but excluding schedules, all
documents incorporated or deemed to be incorporated therein by reference and all
exhibits (unless requested in writing by the Holders, Special Counsel or
managing underwriter, if any).
(g) Promptly deliver to the Holders, the Special Counsel and the
underwriters, if any, without charge, as many copies of the Prospectus or
Prospectuses relating to such Registrable Securities (including each preliminary
prospectus) and any amendment or supplement thereto as such persons may
reasonably request; and the Company hereby consents to the use of such
Prospectus or each amendment or supplement thereto by the Holders and the
underwriters, if any, in connection with the offering and sale of the
Registrable Securities covered by such Prospectus or any amendment or supplement
thereto.
(h) Prior to any public offering of Registrable Securities, to
register or qualify or cooperate with the Holders, the underwriters, if any, and
the Special Counsel in connection with the registration or qualification (or
exemption from such registration or qualification) of such Registrable
Securities for offer and sale under the securities or Blue Sky laws of such
jurisdictions within the United States as the Holders or underwriter, if any,
reasonably requests in writing; keep each such registration or qualification (or
exemption therefrom) effective during the period such Registration Statement is
required to be kept effective and do any and all other acts or things necessary
or advisable to enable the disposition in such jurisdictions of the Registrable
Securities covered by the applicable Registration Statement; provided, that the
Company will not be required to (i) qualify generally to do business in any
jurisdiction where it is not then so qualified or (ii) take any action that
would subject it to general service of process in suits or to taxation in any
such jurisdiction where it is not then so subject.
(i) Cause the Registrable Securities covered by the applicable
Registration Statement to be registered with or approved by such other
governmental agencies or authorities within the United States, except as may be
required solely as a consequence of the nature of a Holder in which case the
Company will cooperate in all reasonable respects with the filing of such
Registration Statement and the granting of such approvals, as may be necessary
to enable the Holders or the underwriters, if any, to consummate the disposition
of such Registrable Securities.
(j) Upon the occurrence of any event contemplated by Section 3(c)(v)
or 3(c)(vi) above, prepare a supplement or post-effective amendment to each
Registration Statement or a supplement to the related Prospectus or any document
incorporated therein by reference or file any other
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required document so that, as thereafter delivered to the purchasers of the
Registrable Securities being sold thereunder, such Prospectus will not contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading.
(k) Enter into such agreements (including, in the event of an
underwritten offering, an underwriting agreement in form, scope and substance as
is customary in underwritten offerings) and take all such other actions in
connection therewith (including, in the event of an underwritten offering, those
reasonably requested by the managing underwriters, if any, or the Holders) in
order to expedite or facilitate the disposition of such Registrable Securities
and in such connection, whether or not an underwriting agreement is entered into
and if the registration is an underwritten registration, (i) make such
representations and warranties, subject to the Company's ability to do so, to
the Holders and the underwriters, if any, with respect to the business of the
Company and its subsidiaries, the Registration Statement, Prospectus and
documents incorporated by reference or deemed incorporated by reference, if any,
in each case, in form, substance and scope as are customarily made by issuers to
underwriters in underwritten offerings and confirm the same if and when
requested; (ii) use its reasonable efforts to obtain opinions of counsel to the
Company and updates thereof (which counsel and opinions (in form, scope and
substance) shall be reasonably satisfactory to the managing underwriters, if
any, Special Counsel and the Holders) addressed to the Holders and each of the
underwriters, if any, covering the matters customarily covered in opinions
requested in underwritten offerings; (iii) use its reasonable efforts to obtain
"cold comfort" letters and updates thereof from the independent certified public
accountants of the Company (and, if necessary, any other certified public
accountants of any subsidiary of the Company or any business acquired or to be
acquired by the Company for which financial statements and financial data is, or
is required to be, included in the Registration Statement), addressed to the
Holders and each of the underwriters, if any, such letters to be in customary
form and covering matters of the type customarily covered in "cold comfort"
letters in connection with underwritten offerings; and (iv) deliver such
documents and certificates as may be reasonably requested by the Holders, the
Special Counsel and the managing underwriters, if any, to evidence the continued
validity of the representations and warranties of the Company and its
subsidiaries made pursuant to clause (i) above and to evidence compliance with
any customary conditions contained in the underwriting agreement or other
agreement entered into by the Company. The above shall be done at each closing
under such underwriting or similar agreement as and to the extent required
thereunder.
(l) If necessary in connection with a disposition of Registrable
Securities pursuant to a Registration Statement, make available for inspection
by a representative of the Holders, any underwriter participating in any
disposition of Registrable Securities, if any, and any attorney or accountant
retained by the Holders or underwriter, financial and other records, pertinent
corporate documents and properties of the Company, and cause the executive
officers, directors and employees of the Company to supply all information
reasonably requested by any such representative, underwriter, attorney or
accountant in connection with such disposition; provided that any records,
information or documents that are designated by the Company in writing as
confidential at the time of delivery of such records, information or documents
shall be kept confidential by such persons unless (i) such records, information
or documents are in the public domain or otherwise publicly available, (ii)
disclosure of such records, information or documents is required by court or
administrative order after the exhaustion of appeals therefrom or (iii)
disclosure of such records, information or documents, in the written opinion of
counsel (reasonably acceptable to the Company) to such person, is otherwise
required by law
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(including, without limitation, pursuant to the requirements of the Securities
Act), which opinion shall be delivered to the Company at least five days prior
to the date on which such disclosure is sought, and provided further that any
information obtained pursuant to this provision shall only be used in connection
with the transaction for which such information was obtained.
Notwithstanding anything in this Agreement to the contrary, the
Holders shall not be entitled to sell any of such Registrable Securities
pursuant to a Registration Statement or to receive a Prospectus relating thereto
unless the Holders (A) have at such time a current intent to sell such
Registrable Securities, and confirms such intent in writing, and (B) have
furnished the Company promptly after the Company's request, such information
regarding the Holders and the distribution of such Registrable Securities as the
Company may from time to time reasonably request. The Company may refrain from
filing such registration for the Holders' Registrable Securities if it does not
furnish such information provided above. Each of the Holders agrees promptly to
furnish to the Company all information required to be disclosed in order to make
the information previously furnished to the Company by Holders not misleading
with respect to such Holder.
The Holders agree by acquisition of such Registrable Securities that,
upon receipt of any notice from the Company of (A) the happening of any event of
the kind described in Section 3(c)(ii), 3(c)(iii), 3(c)(iv), 3(c)(v) or 3(c)(vi)
hereof or (B) that, in the judgment of the Company, it is advisable to suspend
use of the Prospectus for a discrete period of time due to pending corporate
developments, public filings with the SEC or similar events, the Holders will
forthwith discontinue disposition of such Registrable Securities covered by such
Registration Statement or Prospectus until the Holders' receipt of the copies of
the supplemented or amended Prospectus contemplated by Section 3(j) hereof, or
until it is advised in writing (the "Advice") 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; provided, however, that the Company may only
suspend use of the Prospectus for up to fifty (50) trading days in any twelve
(12) month period and, within such 12 month period, for not more than fifteen
(15) trading days in any thirty (30) trading day period. The Company shall use
its reasonable efforts to insure that the use of the Prospectus may be resumed
as soon as practicable.
4. Registration Expenses. All fees and expenses incident to the
Company's performance of or compliance with this Agreement shall be borne by the
Company whether or not any of the Registration Statements become effective. Such
fees and expenses shall include, without limitation, (i) all registration and
filing fees (including, without limitation, fees and expenses (x) with respect
to filings required to be made with the National Association of Securities
Dealers, Inc. and (y) of compliance with federal securities or Blue Sky laws
(including, without limitation, fees and disbursements of Special Counsel in
connection with Blue Sky qualifications of the Registrable Securities (which
fees and disbursements shall not exceed $10,000) and determination of the
eligibility of the Registrable Securities for investment under the laws of such
jurisdictions as the managing underwriters, if any, or the Holders may
designate), (ii) printing expenses (including, without limitation, expenses of
printing certificates for Registrable Securities in a form eligible for deposit
with The Depository Trust Company and of printing prospectuses if the printing
of prospectuses is requested by the Special Counsel or the Holders, (iii) fees
and disbursements of counsel for the Company and the Special Counsel in
connection with the Shelf Registration (provided that fees and disbursements of
Special Counsel, in addition to the fees and disbursements of Special Counsel
relating to the Blue Sky
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laws, shall not exceed $40,000), (iv) fees and disbursements of all independent
certified public accountants referred to in Section 3(k)(iii) hereof (including
the expenses of any special audit and "cold comfort" letters required by or
incident to such performance), and (v) Securities Act liability insurance
obtained by the Company in its sole discretion. In addition, the Company shall
pay its internal expenses (including, without limitation, all salaries and
expenses of its officers and employees performing legal or accounting duties),
the expense of any annual audit, the fees and expenses incurred in connection
with the listing of the securities to be registered on any securities exchange
on which similar securities issued by the Company are then listed and rating
agency fees and the fees and expenses of any person, including special experts,
retained by the Company. Notwithstanding the provisions of this Section 4, the
Holders shall pay all registration expenses to the extent that the Company is
prohibited by applicable Blue Sky laws from paying for or on behalf of the
Holders. Notwithstanding anything set forth in this Agreement, the aggregate
fees and disbursements of the Special Counsel for all Shelf Registrations of the
Company shall not exceed $50,000.
All underwriting discounts, selling commissions and stock transfer
taxes applicable to the sale of the Registrable Securities, all fees and
disbursements of Special Counsel not included within the immediately preceding
paragraph and all fees and disbursements of counsel for the underwriters, if
any, shall be paid by the Holders.
5. Indemnification.
(a) Indemnification by the Company. The Company shall indemnify and
hold harmless, to the fullest extent permitted by law, ZCG and its members and
each selling Holder and each person, if any, who controls such Holder (within
the meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange
Act) from and against all losses, liabilities, claims, damages and expenses
(including but not limited to reasonable attorney fees and any and all
reasonable expenses whatsoever incurred in investigating, preparing or defending
against litigation, commenced or threatened, or any claim whatsoever, and any
and all amounts paid in settlement of any claim or litigation) (collectively,
"Losses"), arising out of or based upon any untrue or alleged untrue statement
of a material fact contained in any Registration Statement, Prospectus or form
of Prospectus or in any amendment or supplement thereto or in any preliminary
prospectus, or arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading, except insofar as the same are based solely upon
information furnished in writing to the Company by ZCG or any Holder expressly
for use therein; provided, that the Company shall not be liable to ZCG or any
Holder (or any person controlling any of the Holders) to the extent that any
such Losses arise out of or are based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in any prospectus if either (A)
(i) ZCG or any of the Holders failed to send or deliver a copy of the Prospectus
with or prior to the delivery of written confirmation of the sale by the Holders
of a Registrable Security to the person asserting the claim from which such
Losses arise and (ii) the Prospectus would have corrected such untrue statement
or alleged untrue statement or such omission or alleged omission, or (B) (x)
such untrue statement or alleged untrue statement, omission or alleged omission
is corrected in an amendment or supplement to the Prospectus and (y) having
previously been furnished by or on behalf of the Company with copies of the
Prospectus as so amended or supplemented, the Holders thereafter fail to deliver
such Prospectus as so amended or supplemented, with or prior to the delivery of
written confirmation of the sale of a Registrable Security to the person
asserting the claim
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from which such Losses arise. The Company shall also indemnify each underwriter
and each person who controls such person (within the meaning of Section 15 of
the Securities Act or Section 20(a) of the Exchange Act) to the same extent as
provided above with respect to the indemnification of the Holder.
(b) Indemnification by Holder. In connection with any Registration
Statement in which the Holders are participating, ZCG or the Holders shall
furnish to the Company in writing such information as the Company reasonably
requests for use in connection with any Registration Statement or Prospectus and
each Holder agrees to indemnify, to the fullest extent permitted by law, the
Company, its directors and officers and each other person who controls the
Company (within the meaning of Section 15 of the Securities Act and Section 20
of the Exchange Act), from and against all Losses arising out of or based upon
any untrue statement of a material fact contained in any Registration Statement,
Prospectus or preliminary prospectus or arising out of or based upon any
omission of a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading, to the extent, but only to the extent, that such untrue
statement or omission is contained in any information so furnished in writing by
ZCG or the Holders to the Company expressly for use in such Registration
Statement or Prospectus. In no event shall the liability of any of the Holders
hereunder exceed the gross proceeds received from sales of its Registrable
Securities. The Company shall be entitled to receive indemnities from
underwriters participating in the distribution to the same extent as provided
above with respect to information so furnished in writing by such persons
expressly for use in any Prospectus or Registration Statement.
(c) Conduct of Indemnification Proceedings. If any person shall be
entitled to indemnity hereunder (an "indemnified party"), such indemnified party
shall give prompt notice to the party from which such indemnity is sought (the
"indemnifying party") of any claim or of the commencement of any proceeding with
respect to which such indemnified party seeks indemnification or contribution
pursuant hereto; provided, that the failure to so notify the indemnifying party
shall not relieve the indemnifying party from any obligation or liability except
to the extent that the indemnifying party has been prejudiced materially by such
failure. All such fees and expenses (including any fees and expenses incurred in
connection with investigating or preparing to defend such action or proceeding)
shall be paid to the indemnified party on a quarterly basis following written
notice thereof to the indemnifying party (notwithstanding the absence of
judicial determination as to the propriety and enforceability of the
indemnifying party's obligation to reimburse the indemnified party for such
expense and the possibility that such payments might later be held to have been
improper by a court of competent jurisdiction). In case any such action is
brought against an indemnified party, the indemnifying party shall be entitled
to participate therein and it may elect by written notice delivered to the
indemnified party within a reasonable period of time after receiving the
aforesaid notice from such indemnified party, to assume the defense thereof with
counsel reasonably satisfactory to such indemnified party.
(d) Contribution. If the indemnification provided for in this Section
5 is unavailable to an indemnified party under Section 5(a) or 5(b) hereof in
respect of any Losses or is insufficient to hold such indemnified party
harmless, then each applicable indemnifying party, in lieu of indemnifying such
indemnified party, shall, jointly and severally, contribute to the amount paid
or payable by such indemnified party as a result of such Losses, in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party or indemnifying parties, on the one hand, and such indemnified party, on
the other hand, in connection with the actions, statements or omissions that
resulted in such Losses as well as any other relevant equitable considerations.
The relative fault of such indemnifying party or
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indemnifying parties, on the one hand, and such indemnified party, on the other
hand, shall be determined by reference to, among other things, whether any
action in question, including any untrue or alleged untrue statement of a
material fact or omission or alleged omission of a material fact, has been taken
or made by, or relates to information supplied by, such indemnifying party or
indemnified party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action, statement or
omission. The amount paid or payable by a party as a result of any Losses shall
be deemed to include any reasonable legal or other reasonable fees or expenses
incurred by such party in connection with any proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 5(d) were determined by pro rata
allocation or by any other method or allocation that does not take into account
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding this Section 5(d), if any of the Holders are the indemnifying
party, such Holders shall not be required to contribute any amount in excess of
the amount by which the total price at which the Registrable Securities sold by
such Holder and distributed to the public were offered to the public exceeds the
amount of any damages which such Holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
The indemnity, contribution and expense reimbursement obligations of the
Company hereunder shall be in addition to any liability the Company may
otherwise have hereunder or otherwise. The provisions of this Section 5 shall
survive so long as Registrable Securities remain outstanding, notwithstanding
any termination of this Agreement.
6. Rule 144 Information Requirements. For so long as any Registerable
Securities are "restricted securities" under Rule 144, the Company agrees to
timely file the reports required to be filed by it under the Securities Act and
the Exchange Act. Notwithstanding the foregoing, nothing in this Section 6 shall
be deemed to require the Company to register any of its securities under any
section of the Exchange Act.
7. Sale without Registration. The Holders agree to comply in all
respects with the provisions of this Section 7 so long as each certificate
representing the Shares is required to bear the legend in substantially the form
set forth in Section 7 of the CG Agreement among the Holders and CG (or any
similar legend). Prior to any proposed transfer of any Registrable Securities by
the Holders which shall not be registered under the Securities Act, the Holders
shall give written notice to the Company of its intention to effect such
transfer, accompanied by: (a) such information as is reasonably necessary in
order to establish that such transfer may be made without registration under the
Securities Act; and (b) at the expense of such Holder's transferee, an
unqualified written opinion of legal counsel, satisfactory in form and substance
to the Company, to the effect that such transfer may be made without
registration under the Securities Act; provided that nothing contained in this
Section 7 shall relieve the Company from complying with its obligations pursuant
to Section 2 of this Agreement.
8. Termination Registration Rights Held By CG. Each Holder hereby
acknowledges that it has received a copy of the Amended and Restated Stockholder
Rights Agreement dated January 12,
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1998 among the Company and certain holders of the Company's capital stock (the
"First Rights Agreement"). Each Holder hereby agrees that, by virtue of its
purchase of the Shares from CG, it shall not be entitled to any of the rights
provided in the First Rights Agreement.
9. Standoff Agreement. Each Holder agrees not to sell, make any short
sale of, loan, grant any option for the purchase of, or otherwise dispose of any
Registrable Securities without the prior written consent of BancBoston Xxxxxxxxx
Xxxxxxxx, prior to December 30, 1998 (which date is six months following the
consummation of the Company's initial public offering). Each Holder further
agrees that the Company may impose stop transfer instructions in order to
enforce the foregoing covenant.
10. Transfer of Registration Rights. The rights to cause the Company to
register securities granted to the Holders under Section 2 hereof may be
assigned to any transferee or assignee who is (a) a subsidiary, parent, general
partner, limited partner, retired partner, member or retired member of a Holder,
(b) a Holder's ancestors, descendants or spouse or to trusts for the benefit of
such persons or such Holder or (c) a client, employee or member of ZCG, provided
that (i) such transfer may otherwise be effected in accordance with applicable
securities laws, (ii) the Company is given written notice of any such transfer
five (5) Business Days prior to the date of said transfer, stating the name and
address of said transferee or assignee and identifying the securities with
respect to which such registration rights are being assigned and (iii) the
transferee or assignee of such rights is not deemed by the Board of Directors of
the Company, in its reasonable judgment, to be a competitor of the Company and
provided further that the transferee or assignee of such rights assumes in
writing in a form reasonably acceptable to the Company the obligations of the
Holders under this Agreement.
11. Holders Representations. In connection with the purchase of the
Shares and the rights granted to the Holders hereunder, each Holder represents
and warrants to the Company the following:
(a) Each Holder is an "accredited investor" as that term is defined
in Rule 501 of Regulation D promulgated under the Securities Act and is an
investor in securities of early stage companies and acknowledges that it is able
to protect its interests, and bear the economic risk of its investment and has
such knowledge and experience in financial or business matters that it is
capable of evaluating the merits and risks of the investment in the Shares. If
other than an individual, the Purchaser also represents it has not been
organized for the purpose of acquiring the Shares.
(b) ZCG has voting and dispositive control over the Shares being
acquired by the Holders pursuant to this Agreement.
(c) The Holder is aware of the Company's business affairs and
financial condition, and has acquired sufficient information about the Company
to reach an informed and knowledgeable decision to acquire the Shares. The
Holder is acquiring these Shares for its own account for investment purposes
only and not with a view to, or for the resale in connection with, any
"distribution" thereof for purposes of the Securities Act.
(d) The Holder understands that the Shares have not been registered
under the Securities Act and are hereby issued in reliance upon a specific
exemption therefrom, which exemption
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depends upon, among other things, the bona fide nature of the Holder's
investment intent as expressed herein.
(e) The Holder further understands that the Shares must be held
indefinitely unless subsequently registered under the Securities Act or unless
an exemption from registration is otherwise available. In addition, the Holder
understands that the certificate evidencing the Shares will be imprinted with a
legend which prohibits the transfer of the Shares unless they are registered or
such registration is not required in the reasonable opinion of counsel for the
Company.
(f) The Holder understands that the Shares constitute "restricted
securities" within the meaning of Rule 144, promulgated under the Securities
Act. Purchaser is aware that Rule 144, in substance, except as otherwise
provided in subsection (k) of such rule, permits limited public resale of
"restricted securities" acquired, directly or indirectly, from the issuer
thereof (or from an affiliate of such issuer), in a non-public offering subject
to the satisfaction of certain conditions, including, among other things: (1)
the availability of certain public information about the Company; (2) the resale
occurring not earlier than the expiration of the applicable holding period
stated therein, (3) the sale being made through a broker in an unsolicited
"broker's transaction" or in transactions directly with a market maker (as said
term is defined under the Securities Exchange Act of 1934, as amended) and the
amount of securities being sold during any three-month period not exceeding the
specified limitations stated therein. The Holder also understands that the
holding period under Rule 144 will commence on November 18, 1998.
(g) The Holder further understands that at the time it wishes to sell
the Shares there may be no public market upon which to make such a sale, and
that, even if such a public market then exists, the Company may not be
satisfying the current public information requirements of Rule 144, and that, in
such event, the Holder would be precluded from selling the Shares under Rule 144
even if the minimum holding period had been satisfied.
(h) The Holder further understands that in the event all of the
applicable requirements of Rule 144 are not satisfied, registration under the
Securities Act, compliance with Regulation A, or some other registration
exemption will be required; and that, notwithstanding the fact that Rule 144 is
not exclusive, the Staff of the SEC has expressed its opinion that persons
proposing to sell private placement securities other than in a registered
offering and otherwise than pursuant to Rule 144 will have a substantial burden
of proof in establishing that an exemption from registration is available for
such offers or sales, and that such persons and their respective brokers who
participate in such transactions do so at their own risk.
(i) The Holder understands that the Shares are subject to a market
standoff agreement with the managing underwriter for the Company's initial
public offering and will remain subject to such agreement until December 30,
1998.
(j) The Holder acknowledges that an investment in the Company
involves known and unknown risks, uncertainties and other factors which may
result in the Holder's loss of its entire investment. The Company is an early
stage biopharmaceutical company that develops and intends to commercialize
antibody therapeutic products for the prevention and treatment of a variety of
disease conditions. The Company's product candidates are at an early stage of
development and have not been approved for marketing by any regulatory agencies.
In addition, significant investment in research and
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development, manufacturing, preclinical and clinical testing, regulatory and
sales and marketing activity will be necessary for the Company to commercialize
its product candidates. There can be no assurance that any of the Company's
product candidates can be successfully developed. If successfully developed,
there can be no assurance that the Company's product candidates will be approved
for marketing by regulatory agencies, will result in any meaningful benefits to
patients, will be accepted by the medical community or will generate sufficient
or sustainable revenues to enable the Company to be profitable.
The Holder acknowledges that is has received a copy of the Company's
Quarterly Report on Form 10-Q for the quarter ended September 30, 1998 and
reviewed the "Risk Factors" contained therein, which "Risk Factors" are deemed
incorporated by reference into this Agreement.
12. Company Representations. In connections with the rights granted to
the Holders hereunder, the Company represents and warrants to each Holder the
following:
(a) Authorization. The Company has full corporate power to execute,
deliver and perform this Agreement and the Agreement has been duly executed and
delivered by the Company and is the legal, valid and, assuming due execution by
the Holders, binding obligation of the Company, enforceable in accordance with
its terms, subject to applicable bankruptcy, insolvency, moratorium,
reorganization or similar laws affecting creditors' rights generally, and to
general equitable principles.
(b) Capitalization. The authorized capital stock of the Company
consists of 50,000,000 shares of Common Stock and 5,000,000 shares of Preferred
Stock. As of November 18, 1998, 11,105,585 shares of Common Stock are
outstanding and no other shares of capital stock are outstanding.
(c) Valid Issuance of CG Stock. The Shares to be sold pursuant to
the CG Agreement were, when issued by the Company to CG, duly authorized,
validly issued, fully paid and nonassessable, and were issued in compliance with
applicable federal and state securities laws.
(d) 1934 Act Filings. The Company has filed in a timely manner, and
has delivered to ZCG a copy of the Company's Quarterly Report on Form 10-Q for
the quarter ended September 30, 1998.
13. Miscellaneous.
(a) Remedies. In the event of a breach by the Company of its
obligations under this Agreement, the Holders, in addition to being entitled to
exercise all rights granted by law, including recovery of damages, will be
entitled to specific performance of their rights under this Agreement. The
Company agrees that monetary damages would not be adequate compensation for any
loss incurred by reason of a breach by it of any of the provisions of this
Agreement and hereby further agrees that, in the event of any action for
specific performance in respect of such breach, it shall waive the defense that
a remedy at law would be adequate.
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(b) No Conflicting Agreements. The Company has not, as of the date
hereof, and shall not, on or after the date of this Agreement, enter into any
agreement with respect to its securities which materially conflicts with the
rights granted to the Holders in this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of the
Holders.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing and shall be deemed given (i) when
made, if made by hand delivery, (ii) upon confirmation, if made by telecopier or
(iii) one business day after being deposited with a reputable next-day courier,
postage prepaid, to the parties as follows:
(x) if to the Holders, c/o Zesiger Capital Group, LLC, 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X.
Xxxxxxx, or to such other address as a Holder may hereafter
furnish to the Company in writing in accordance herewith.
(y) if to the Company, to Abgenix, Inc., 0000 Xxxxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxxxx 00000, Attention: President, or to such
other address as the Company may hereafter furnish to ZCG in
writing in accordance herewith.
(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and permitted assigns of each of
the parties.
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be original and all of which taken together
shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, AS APPLIED TO CONTRACTS
MADE AND PERFORMED WITHIN THE STATE OF DELAWARE, WITHOUT REGARD TO PRINCIPLES OF
CONFLICT OF LAWS.
(i) Severabilitv. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall in
no way be affected, impaired or invalidated, and the parties hereto shall use
their best efforts to find and employ an alternative means to achieve the same
or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention
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of the parties that they would have executed the remaining terms, provisions,
covenants and restrictions without including any of such which may be hereafter
declared invalid, void or unenforceable.
(j) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and is intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein and the registration rights
granted by the Company with respect to the Shares. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein, with respect to the registration rights granted by the Company with
respect to the Shares. This Agreement supersedes all prior agreements and
understandings among the parties with respect to such registration rights.
(k) Attorneys' Fees. In any action or proceeding brought to enforce
any provision of this Agreement, or where any provision hereof is validly
asserted as a defense, the prevailing party, as determined by the court, shall
be entitled to recover reasonable attorneys' fees in addition to any other
available remedy.
(l) Further Assurances. Each of the parties hereto shall use all
reasonable efforts to take, or cause to be taken, all appropriate action, do or
cause to be done all things reasonably necessary, proper or advisable under
applicable law, and execute and deliver such documents and other papers, as may
be required to carry out the provisions of this Agreement and the other
documents contemplated hereby and consummate and make effective the transactions
contemplated hereby.
(m) Termination. This Agreement and the obligations of the parties
hereunder shall terminate upon the earlier of the end of the Effectiveness
Period or when all of the Registrable Securities have been sold or cease to be
Registrable Securities, except for any liabilities or obligations under Sections
4 or 5 or 6 or the provisos of Section 3(1) above, which shall remain in effect
in accordance with their terms.
(n) Actions by the Holders. Any action to be taken by the Holders
pursuant to the Agreement may be taken by the Holders of a majority of the
Registrable Securities that have not been sold pursuant to a Shelf Registration.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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The foregoing Registration Rights Agreement is hereby executed as of the
date first above written.
"COMPANY"
ABGENIX, INC.,
a Delaware corporation
By: /s/ R. Xxxxx Xxxxx
------------------------------------------
Title: President and Chief Executive Officer
--------------------------------------
"HOLDERS"
The Holders and Beneficial Owners
Whose Names Are Set Forth
on Schedule 1 Attached Hereto
By: Xxxxxxx Capital Group LLC as Attorney-
in-Fact for Each Such Holder and
Beneficial Owner
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------------
Xxxxxx X. Xxxxxxx, Manager
17
SCHEDULE 1
SCHEDULE OF HOLDERS
NUMBER OF
SHARES OF
REGISTRABLE
HOLDER AND BENEFICIAL OWNER NOMINEE AND RECORD HOLDER SECURITIES
-----------------------------------------------------------------------------------------------------------
Xxxx Xxxxxxx, Trustee of the 1982 Xxxxxxxxx Xxxx & Co. 8,000
Xxxxxx Xxxxxxx Trust
Xxxxxx Xxxxxx Xxxxxxx Xxxxxx Xxxxxx Xxxxxxx 12,000
City of Milford Pension & Retirement Fund City of Milford Pension & Retirement 90,000
Fund
City of Stamford Firemen's Pension Fund City of Stamford Firemen's Pension 46,000
Fund
Xxxxxxx X. Xxxxx Xxxxxxx X. Xxxxx 17,000
Xxxx & Xxxx Xxxxxxxx JTWROS Xxxx & Xxxx Xxxxxxxx JTWROS 3,000
Xxxxxx & Xxxxx Xxxxxxx JTWROS Xxxxxx & Xxxxx Xxxxxxx JTWROS 5,000
HBL Charitable Unitrust HBL Charitable Unitrust 8,000
Xxxxx Xxxx Xxxx & Co. 8,000
Xxxxx Foundation Hare & Co. 8,000
Xxxx Xxx X. Xxxxxxxx Trust for Self Xxxx & Co. 10,000
Xxxxxx Trust Co. of the Bahamas Ltd. as Xxxxxx Trust Co. of the Bahamas Ltd. 16,000
Trustee U/A/D 11/30/93 as Trustee U/A/D 11/30/93
Xxxxxx Capital, LLC Xxxxxx Capital, LLC 8,000
NFIB Employee Pension Trust Houvis & Co. FBO NFIB 22,000
Employee Pension Trust
Norwalk Employees' Pension Plan Hare & Co. 48,000
Xxxxxxx Xxxxxxxxxx of NY Xxxx & Co. 6,000
Public Employee Retirement system of Idaho Mellon Bank NA custodian for PERSI- 181,000
Xxxxxxx Capital
Roanoke College FirstUnion & Co. 19,000
State of Oregon PERS/ZCG Westcoast & Co. 546,300
The Xxxxxx Xxxxxxxx Family Trust Xxxx & Co. 8,000
The Xxxxxxx Xxxxxx Foundation Batrus & Co. 16,000
The Xxxxxx Investment Partnership I, L.P. The Xxxxxx Investment Partnership I, 8,000
L.P.
Van Loben Sels Foundation Hare & Co. 19,000
Xxxxx Family LLC Xxxxxx & Co. 24,000
Xxxxxxx Investment Partners XX Xxxxxxx Investment Partners LP 10,000
-----------------------------------------------------------------------------------------------------
1,146,300
