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EXHIBIT 10.4
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT dated
September 13, 1999, and effective as of September 1, 1999 (the "Effective Date")
between ANTEX BIOLOGICS INC., a Delaware corporation (the "Company") and
SMITHKLINE XXXXXXX BIOLOGICALS MANUFACTURING S.A., a Belgian company ("SB Bio").
W I T N E S S E T H:
WHEREAS, pursuant to an Omnibus Agreement (the "Omnibus
Agreement") dated the date hereof, among the Company, SB Bio and MicroCarb Human
Vaccines Inc., a Delaware corporation ("MCHV"), SB Bio has acquired 3,595,264
shares of the common stock of the Company, par value $.01 per share (the "Common
Stock");
WHEREAS, pursuant to an Amended and Restated Warrant (the
"Warrant") dated the date hereof between the Company and SB Bio, the Company has
granted SB Bio a warrant to purchase up to 4,731,958 shares of the Common Stock;
and
WHEREAS, the Company desires to provide SB Bio and its
successors and permitted assigns with certain rights regarding the registration
of (i) 3,595,264 shares of the Common Stock acquired on the date hereof and (ii)
up to 4,731,958 shares of the Common Stock issuable upon the exercise of the
Warrant.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements made herein, and other good valuable consideration, the receipt and
sufficiency of which are hereby acknowledged and accepted, the parties hereto
agree as follows:
1. Definitions. As used herein, unless the context otherwise
requires, the following terms have the following respective meanings:
"Affiliate" has the meaning set forth in Rule 12b-2 under the
Exchange Act.
"Closing Price" means the last sale price, regular way, as
reported in the principal consolidated transaction reporting system with respect
to securities listed or admitted to trading on the principal national securities
exchange on which the Registrable Securities shall be listed or admitted to
trading on a Trading Day or, if the Registrable Securities shall not be listed
or admitted to trading on any national securities exchange on such Trading Day,
the last reported transaction price on such Trading Day or, if not so quoted,
the closing bid price in the over-the-counter market on such Trading Day, as
reported by Nasdaq or such other system then in use.
"Commission" means the United States Securities and Exchange
Commission or any other federal agency at the time administering the Securities
Act.
"Common Stock" has the meaning set forth in the first WHEREAS
clause of the Recitals.
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"Demand" has the meaning set forth in Section 2.1.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any similar federal statute, and the rules and regulations of the
Commission thereunder, as the same shall be in effect at the time. Reference to
a particular section of the Securities Exchange Act of 1934, as amended, shall
include reference to the comparable section, if any, of any such subsequent
similar federal statute.
"Nasdaq" means the National Association of Securities Dealers
Automated Quotations System or such other securities trading system then in use.
"Person" means any individual, partnership, joint venture,
corporation, trust, unincorporated organization, government or department or
agency of a government.
"Registrable Common Securities" means the 3,595,264 shares of
Common Stock acquired on the date hereof and the shares of Common Stock issued
upon any exercise of the Warrant.
"Registrable Securities" means collectively the Registrable
Common Securities and any other securities issuable in connection therewith or
in replacement thereof by way of a dividend, distribution, recapitalization,
exchange, merger, consolidation or other reorganization. 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 been sold as permitted by, and in compliance
with, Rule 144 (or any successor provision) promulgated under the Securities Act
or (c) they shall have ceased to be outstanding.
"Registration Expenses" means 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, Inc. fees, all listing fees, all fees and expenses of complying with
securities or blue sky laws (including, without limitation, reasonable fees and
disbursements of counsel for the underwriters in connection with blue sky
qualifications of the Registrable Securities), 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 "comfort" letters required by or incident
to such performance and compliance, and any fees and disbursements of
underwriters customarily paid by issuers or sellers of securities.
"Securities Act" means the Securities Act of 1933, as amended,
or any subsequent similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
References to a particular section of the Securities Act of 1933, as amended,
shall include a reference to the comparable section, if any, of any such
subsequent similar federal statute.
"Trading Day" means a day on which the principal national
securities exchange on which the Registrable Securities in question shall be
listed or admitted to trading shall be open for the transaction of business or,
if the Registrable Securities shall not be listed or admitted to
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trading on any national securities exchange, any day on which trading takes
place in the over-the-counter market.
"Warrant" has the meaning set forth in the second WHEREAS clause of
the Recitals.
2. Registration Rights.
2.1. Registration on Demand.
2.1.1. Demand. Subject to Section 2.1.7, upon the written request
(the "Demand") of SB Bio that the Company effect the registration under the
Securities Act of all or part of SB Bio's Registrable Securities, the Company
shall effect, as soon as practicable and in any event within 120 days after the
Demand is received from SB Bio, the registration under the Securities Act, of
the Registrable Securities which the Company has been so requested to register
by SB Bio.
2.1.2. Registration of Other Securities. Whenever the Company
shall effect a registration pursuant to this Section 2.1 in connection with an
underwritten offering by SB Bio of Registrable Securities, holders of securities
of the Company who have "piggyback" registration rights may include all or a
portion of such securities in such registration, offering or sale. If the
managing underwriter of any such offering shall inform the Company by letter of
its belief that the number or type of securities of the Company requested by
holders of the securities of the Company other than SB Bio to be included in
such registration would materially and adversely affect the underwritten
offering, then the Company shall include in such registration, to the extent of
the number and type of securities which the Company is so advised can be sold in
(or during the time of) such offering, first, all of the Registrable Securities
specified by SB Bio in the Demand and second, for each holder of the Company's
securities other than SB Bio, the fraction of such holder's securities proposed
to be registered which is obtained by dividing (i) the number of the securities
of the Company that such holder proposes to include in such registration by (ii)
the total number of securities proposed to be included in such registration by
all holders other than SB Bio.
2.1.3. Registration Statement Form. Registrations under this
Section 2.1 shall be on such appropriate registration form of the Commission as
shall be selected by the Company. The Company shall include in any such
registration statement all information which, in the opinion of counsel to the
Company, is required to be included.
2.1.4. Expenses. The Company shall pay the Registration Expenses
in connection with the first Demand registration requested pursuant to this
Section 2.1, but excluding underwriting discounts and selling commissions
relating to the sale or disposition of SB Bio's Registrable Securities, and the
fees and expenses of SB Bio's own counsel. SB Bio shall pay all the Registration
Expenses in connection with the second and third Demand registrations requested
pursuant to this Section 2.1. If the registration pursuant to the first Demand
is withdrawn at the request of SB Bio and if SB Bio elects not to have such
registration count as the first Demand registration under this Section 2.1, SB
Bio shall pay all the Registration Expenses of such registration.
2.1.5. Effective Registration Statement. A registration requested
pursuant to this Section 2.1 shall not be deemed to have been effected (i)
unless a registration statement with
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respect thereto has become effective, (ii) if after it has become effective,
such registration is interfered with by any stop order, injunction or other
order or requirement of the Commission or other governmental agency or court for
any reason and has not thereafter become effective, or (iii) in the case of an
underwritten offering, if the conditions to closing specified in the
underwriting agreement, if any, entered into in connection with such
registration are not satisfied or waived.
2.1.6. Selection of Underwriters. In connection with each
underwritten offering, SB Bio shall promptly select an underwriter subject to
the approval of the Company (which approval shall not be unreasonably withheld
by the Company).
2.1.7. Limitations on Registration on Demand. The Company shall
not be required to prepare and file a registration statement pursuant to this
Section 2.1 which would become effective within 120 days following the effective
date of a registration statement (other than a registration statement filed on
Form S-8) filed by the Company with the Commission pertaining to an underwritten
public offering of convertible debt securities or equity securities for cash for
the account of the Company or another holder of securities of the Company if SB
Bio was afforded the opportunity to include at least fifty (50%) percent of its
Registrable Securities in such registration pursuant to Section 2.2. In no event
shall the Company be required to effect (i) in the aggregate, more than three
registrations pursuant to this Section 2.1, (ii) more than one registration
pursuant to this Section 2.1 in any 180 day period and (iii) any registration,
if, in the good faith determination of the Company's Board of Directors, such
registration would adversely affect certain activities of the Company to the
material detriment of the Company, then the Company may at its option direct
that such Demand be delayed for a period not in excess of 90 days from the date
of the Company's receipt of the Demand, such right to delay a Demand shall be
exercised by the Company not more than once in any twelve month period.
2.2. Piggyback Registration.
2.2.1. Right to Include Registrable Securities. If the Company at
any time proposes to register any of its securities under the Securities Act by
registration on Forms X-0, X-0, X-0 or any successor or similar form(s) (except
registrations on such Forms or similar forms solely for registration of
securities in connection with (i) an employee benefit plan or dividend
reinvestment plan or a merger or consolidation or (ii) debt securities which are
not convertible into Common Stock), whether or not for sale for its own account,
it shall each such time give written notice to SB Bio of its intention to do so
and of SB Bio's rights under this Section 2.2 at least 30 days prior to the
anticipated filing date of a registration statement with respect to such
registration with the Commission. Upon the written request of SB Bio made as
promptly as practicable and in any event within 10 business days after the
receipt of any such notice, which request shall specify the Registrable
Securities intended to be disposed of by SB Bio, the Company shall 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 SB Bio;
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 SB Bio and (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 any obligation of the Company to
pay the Registration Expenses in connection therewith), without
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prejudice, (provided, however, that SB Bio may request that such registration be
effected as a registration under Section 2.1 hereof) 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.
2.2.2. Priority in Piggyback Registrations. Notwithstanding
anything in Section 2.2.1 above to the contrary, if the managing underwriter of
any underwritten offering shall inform the Company by letter of its belief that
the number or type of Registrable Securities requested to be included in such
registration would materially and adversely affect such offering, then the
Company shall notify SB Bio of such fact and give SB Bio the opportunity to
negotiate with the managing underwriter regarding the inclusion in such
registration of all of the Registrable Securities requested by SB Bio to be
included therein. If the managing underwriter does not agree to include more
than eighty (80%) percent (or such lesser percentage as SB Bio shall, in its
sole discretion, agree to) of the number of the Registrable Securities initially
requested by SB Bio to be included in such registration, then the Company shall
include in such registration, to the extent of the number and type which the
Company is so advised can be sold in (or during the time of) such offering,
first, all securities proposed by the Company to be sold for its own account or
by the holder of securities who initiated a demand registration, and second, for
each holder of the Company's securities other than the holder of the securities
who initiated a demand registration, the fraction of such holder's securities
proposed to be registered which is obtained by dividing (i) the number of the
securities of the Company that such holder proposes to include in such
registration by (ii) the total number of securities proposed to be sold in such
offering by such holders.
2.3. Registration Procedures.
2.3.1. In connection with the registration of any Registrable
Securities under the Securities Act as provided in Sections 2.1 and 2.2, the
Company shall as expeditiously as possible:
(i) prepare and 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 and remain effective;
(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 Registrable Securities covered by such registration statement
for such period as shall be required for the disposition of all of such
Registrable Securities;
(iii) furnish to SB Bio 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 SB Bio may reasonably request;
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(iv) use its best efforts (x) 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 States of the
United States of America where an exemption is not available and as SB Bio shall
reasonably request, (y) to keep such registration or qualification in effect for
so long as such registration statement remains in effect, and (z) to take any
other action which may reasonably be necessary or advisable to enable SB Bio to
consummate the disposition in such jurisdictions of the Registrable Securities
to be sold by SB Bio, 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 paragraph
(iv), be obligated to be so qualified or to consent to general service of
process in any such jurisdiction;
(v) use its best efforts to cause all Registrable Securities
covered by such registration statement to be registered with or approved by such
other federal or state governmental agencies or authorities as may be necessary
in the opinion of counsel to the Company and counsel to SB Bio to consummate the
disposition of such Registrable Securities in accordance with their intended
method of disposition;
(vi) furnish to SB Bio, (x) an opinion of outside counsel for the
Company, and (y) a "comfort" letter signed by the certified independent public
accountants who have certified the Company's financial statements included or
incorporated by reference in such registration statement, each covering
substantially the same matters with respect to such registration statement (and
the prospectus included therein) and, in the case of the accountant's comfort
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
accountant's comfort letters delivered to the underwriters in underwritten
public offerings of securities (and dated the dates such opinions and comfort
letters are customarily dated);
(vii) notify SB Bio when a prospectus relating thereto is
required to be delivered under the Securities Act, 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 SB Bio promptly
prepare and furnish to SB Bio such 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 make available to its
securityholders, as soon as reasonably practicable, an earnings statement
meeting the requirements of Section 11(a) of the Securities Act, which the
Company shall be entitled to satisfy by complying with the requirements of Rule
158 promulgated thereunder, and promptly furnish a copy of the same to SB Bio;
(ix) provide and cause to be maintained a transfer agent and
registrar 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
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(x) use its best efforts to list all Registrable Securities
covered by such registration statement on any national securities exchange or
over-the-counter market, if any, on which Registrable Securities of the same
class, and if applicable, series, covered by such registration statement are
then listed.
SB Bio agrees that upon receipt of any notice from the Company of
the happening of an event of the kind described in Section 2.3.1(vii), SB Bio
will forthwith discontinue its disposition of Registrable Securities pursuant to
the registration statement relating to such Registrable Securities until SB
Bio's receipt of the copies of the supplemented or amended prospectus
contemplated by Section 2.3.1(vii).
2.4. Underwritten Offerings.
2.4.1. Requested Underwritten Offerings. If requested by the
underwriters for any underwritten offering by SB Bio pursuant to a registration
requested under Section 2.1, the Company will enter into an underwriting
agreement with such underwriters for such offering, such agreement to be
reasonably satisfactory in substance and form to the Company, SB Bio and the
underwriters, and to contain such representations and warranties by the Company
and SB Bio and such other terms as are generally prevailing in agreements of
that type, including, without limitation, indemnities to the effect and to the
extent provided in Section 2.6. SB Bio will cooperate with the Company in the
negotiation of the underwriting agreement and will give consideration to the
reasonable suggestions of the Company regarding the form and substance thereof.
SB Bio shall be a party to such underwriting agreement. SB Bio shall not be
required to make any representations or warranties to or agreements with the
Company or the underwriters other than representations, warranties or agreements
regarding SB Bio, SB Bio's Registrable Securities, SB Bio's intended method of
distribution and any other representations or warranties required by law or
customarily given by selling shareholders in an underwritten public offering.
2.4.2. Piggyback Underwritten Offerings. If the Company proposes
to register any of its securities under the Securities Act as contemplated by
Section 2.2 and such securities are to be distributed by or through one or more
underwriters, subject to the priority and other provisions of Section 2.2.2 the
Company will, if requested by SB Bio, arrange for such underwriters to include
all the Registrable Securities to be offered and sold by SB Bio among the
securities of the Company to be distributed by such underwriters. SB Bio shall
become a party to the underwriting agreement negotiated between the Company and
such underwriters. SB Bio shall not be required to make any representations or
warranties to or agreements with the Company or the underwriters other than
representations, warranties or agreements regarding SB Bio, SB Bio's Registrable
Securities and SB Bio's intended method of distribution or any other
representations or warranties required by law or customarily given by selling
shareholders in an underwritten public offering.
2.4.3. Holdback Agreements.
(i) If any registration of Registrable Securities shall be in
connection with an underwritten public offering, SB Bio agrees if required by
the underwriter or underwriters not to effect any public sale or distribution,
including any sale pursuant to Rule 144 under the Securities Act, of any
Registrable Securities, and not to effect any such public sale or distribution
of any other equity security of the Company or of any security convertible into
or exchangeable or exercisable for any equity security of the Company (in each
case, other than as part of such
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underwritten public offering) during the 15 days prior to, and during the 90-day
period beginning on, the effective date of such registration statement, provided
that SB Bio has received written notice of such registration at least 15 days
prior to such effective date.
(ii) If any registration of Registrable Securities shall be in
connection with an underwritten public offering, the Company agrees (x) if
required by the underwriter or underwriters not to effect any public sale or
distribution of any of its equity securities or of any security convertible into
or exchangeable or exercisable for any equity security of the Company (other
than in connection with any employee stock option or other benefit plan which
has been duly adopted by the Company and which provides for the distribution to
participants in the plan of equity securities of the Company or securities
convertible or exchangeable or exercisable for equity securities of the Company)
during the 15 days prior to, and during the 90-day period beginning on the
effective date of such registration statement (except as part of such
registration) and (y) that any agreement entered into after the date of this
Agreement pursuant to which the Company issues or agrees to issue any privately
placed equity securities shall contain a provision under which holders of such
securities agree that, if required by the underwriter or underwriters, they will
not effect any public sale or distribution of any such securities during the
period referred to in the foregoing clause (x), including any sale pursuant to
Rule 144 under the Securities Act (except as part of such registration, if
permitted), if such holder is participating in the offering pursuant to such
registration.
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 SB Bio not less than 30
days prior written notice of the preparation of such registration statement and
give SB Bio and its counsel and accountants the opportunity to participate, at
SB Bio's expense, in the preparation of such registration statement, each
prospectus included therein or filed with the Commission, and each amendment
thereof or supplement thereto, and give each of them such access to its books
and records, such opportunities to discuss the business of the Company with
officers and the independent public accountants who have certified its financial
statements as shall be necessary, in the opinion of SB Bio's counsel, to conduct
a reasonable investigation within the meaning of the Securities Act. Any
expenses incurred by SB Bio in connection with any such investigation shall be
borne by SB Bio.
2.6. Indemnification.
2.6.1. Indemnification by the Company. In the event of any
registration of any securities of the Company under the Securities Act, the
Company will, and hereby does, indemnify and hold harmless, in the case of any
registration statement filed pursuant to Sections 2.1 or 2.2, SB Bio, its
directors, officers, employees, agents and affiliates and, to the extent
required by any underwriting agreement entered into by the Company, each other
Person who participates as an underwriter in the offering or sale of such
securities and each other Person who controls SB Bio or any such underwriter
within the meaning of the Securities Act, insofar as 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 fact contained in any registration statement under which
such securities were registered under the Securities Act, 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 fact required to be stated therein or necessary to
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make the statements therein in light of the circumstances in which they were
made not misleading, and the Company will reimburse SB Bio and each such
director, officer, agent or affiliate, and, to the extent required by any
underwriting agreement entered into by the Company, underwriter 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 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 through an
instrument duly executed by SB Bio, specifically stating that it is for use in
the preparation thereof. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of SB Bio or any such
director, officer, agent or affiliate or controlling Person and shall survive
the transfer of such securities by SB Bio.
2.6.2. Indemnification by SB Bio. If any Registrable Securities
are included in any registration statement, SB Bio will indemnify and hold
harmless (in the same manner and to the same extent as set forth in Section
2.6.1 above) the Company, each director of the Company, each officer of the
Company and each employee of the Company with respect to any statement or
alleged statement in or omission or alleged omission from such registration
statement, any preliminary prospectus, final prospectus or summary prospectus
contained therein, or any amendment or supplement thereto, 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 through an
instrument duly executed by SB Bio specifically stating that it is for use in
the preparation of such registration statement, preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement.
2.6.3. Notice 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 the preceding paragraphs of this Section 2.6,
such indemnified party will, if a claim in respect thereof is to be made against
an indemnifying party, immediately give written notice to the latter of the
commencement of such action; provided, however, that the failure of any
indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under the preceding paragraphs of this
Section 2.6, except to the extent that the indemnifying party is materially
prejudiced by such failure. The indemnified party shall be entitled to receive
the indemnification payments described in Section 2.6.6 after providing such
written notice to the indemnifying party. 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 in 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 other than reasonable costs
related to the indemnified party's cooperation with the indemnifying party,
unless in such indemnified party's reasonable judgment a conflict of interest
between such indemnified and indemnifying parties arises in respect of such
claim after the assumption of the defense thereof. No indemnifying party shall
be liable for any
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settlement of any action or proceeding effected without its written consent,
which consent shall not be unreasonably withheld. No indemnifying party shall,
without the consent of the indemnified party, consent to entry of any judgment
or enter into any settlement which does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such indemnified party of a
release from all liability in respect to such claim or litigation.
2.6.4. Contribution. If the indemnification provided for in this
Section 2.6 shall for any reason be held by a court to be unavailable to an
indemnified party under Section 2.6.1 or 2.6.2 hereof in respect of any loss,
claim, damage or liability, or any action in respect thereof, then, in lieu of
the amount paid or payable under Sections 2.6.1 or 2.6.2 hereof, the indemnified
party and the indemnifying party under Sections 2.6,1 or 2.6.2 hereof shall
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating the
same), (i) in such proportion as shall be appropriate to reflect the relative
benefits received by the Company on one hand and SB Bio on the other or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect the relative fault of the
Company on one hand and SB Bio on the other which resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as any other relevant
equitable considerations. No Person guilty of fraudulent misrepresentation
(within the meaning of the Securities Act) shall be entitled to contribution
with respect to such fraudulent misrepresentation from any Person who was not
guilty of such fraudulent misrepresentation. In addition, no Person shall be
obligated to contribute hereunder any amounts in payment for any settlement of
any action or claim, effected without such Person's written consent, which
consent shall not be unreasonably withheld.
2.6.5. Other Indemnification. Indemnification and contribution
similar to that specified in the preceding paragraphs of this Section 2.6 (with
appropriate modifications) shall be given by the Company and SB Bio with respect
to any required registration or other qualification of securities under any
federal or state law or regulation of any governmental authority other than the
Securities Act.
2.6.6. Indemnification Payments. The indemnification and
contribution 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 by the
indemnified party.
3. Rule 144. With a view to making available the benefits of
certain rules and regulations of the Commission which may at any time permit the
sale of the Registrable Securities to the public without registration, the
Company agrees to:
(a) use its best efforts to facilitate the sale of the
Registrable Securities to the public, without registration under the Securities
Act, pursuant to Rule 144 promulgated under the Securities Act;
(b) make and keep public information available, as those terms
are understood and defined in Rule 144 promulgated under the Securities Act at
all times;
(c) use its best efforts to file with the Commission in a
timely manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act; and
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(d) deliver a written statement as to whether it has complied
with such requirements of this Section, to SB Bio upon SB Bio's request.
4. Legend. Any certificate evidencing Registrable Securities
shall bear the following legend in addition to any other legend that may be
required by law:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A
REGISTRATION RIGHTS AGREEMENT, DATED SEPTEMBER 13, 1999 AND
EFFECTIVE AS OF SEPTEMBER 1, 1999, BETWEEN ANTEX BIOLOGICS INC.
AND SMITHKLINE XXXXXXX BIOLOGICALS MANUFACTURING, S.A. A COPY OF
SUCH AGREEMENT SHALL BE FURNISHED WITHOUT CHARGE BY ANTEX
BIOLOGICS INC. TO THE HOLDER HEREOF UPON SUCH HOLDER'S WRITTEN
REQUEST."
5. Modification; Waivers. This Agreement may be modified or
amended only with the written consent of each party hereto. No party hereto
shall be released from its obligations hereunder without the written consent of
the other party. The observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively) by the party entitled to enforce such term, but any such waiver
shall be effective only if in a writing signed by the party against which such
waiver is to be asserted. Except as otherwise specifically provided herein, no
delay on the part of any party hereto in exercising any right, power or
privilege hereunder shall operate as a waiver thereof, nor shall any waiver on
the part of any party hereto of any right, power or privilege hereunder operate
as a waiver of any other right, power or privilege hereunder nor shall any
single or partial exercise of any right, power or privilege hereunder preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege hereunder.
6. Entire Agreement. This Agreement represents the entire
understanding and agreement between the parties hereto with respect to the
subject matter hereof and supersedes all other prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter hereof.
7. Severability. If any provision of this Agreement, or the
application of such provision to any Person or circumstance, shall be held
invalid, the remainder of this Agreement or the application of such provision to
other Persons or circumstances, to the extent permitted by law, shall not be
affected thereby; provided, that the parties shall negotiate in good faith with
respect to an equitable modification of the provision or application thereof
held to be invalid.
8. Notices.
(a) Any notice or communication to any party hereto shall be
duly given if in writing and delivered in person, receipt requested, or air
courier guaranteeing two (2) day delivery, or facsimile (with written
confirmation of receipt) to such other party's address or facsimile number set
forth below.
If to Antex Biologics Inc.:
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000 Xxxxxxxxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
Attention: Chief Executive Officer
Facsimile: (000) 000-0000
If to SmithKline Xxxxxxx Biologicals
Manufacturing s.a.:
Xxx xx X'Xxxxxxxx 00
X-0000 Xxxxxxxxx
Xxxxxxx
Attention: President, General Manager
Facsimile: 011-32-2-656-8026
with a copy to:
SmithKline Xxxxxxx Corp.
Xxx Xxxxxxxx Xxxxx
X.X. Xxx 0000
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxx, III, Esq.
Facsimile: (000) 000-0000
(b) All notices and communications will be deemed to have been
duly given: at the time delivered by hand, if personally delivered or facsimiled
(with written confirmation of receipt); and the next business day after timely
delivery to the courier, if sent by air courier guaranteeing two (2) day
delivery.
9. Successors and Assigns. This Agreement shall inure to the
benefit of and shall be binding upon the Company and SB Bio and their respective
successors and permitted assigns. SB Bio may assign its rights under this
Agreement to any Person to whom SB Bio transfers any of the Registrable
Securities, the Omnibus Agreement, the Warrant or any interest therein without
the necessity of obtaining any consent to such assignment.. In the event that SB
Bio assigns its rights to a holder or holders of only a portion of the
Registrable Securities, then all references to SB Bio herein shall also be
deemed to refer to such other holder or holders, but in such event SB Bio will
have the sole right to make all decisions by and give notices for such holder or
holders under this Agreement; provided, that if SB Bio no longer owns any
Registrable Securities, then all decisions and notices hereunder shall be made
by the holders of not less than a majority of the Registrable Securities
outstanding and all other holders of Registrable Securities shall be bound by
any such decision.
10. Counterparts. This Agreement may be executed in two or more
counterparts, each of which for all purposes shall be deemed to be an original
and all of which together shall constitute the same agreement.
11. Headings. The Section headings in this Agreement are for
convenience of reference only, and shall not be deemed to alter or affect the
meaning or interpretation of any provisions hereof.
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12. Construction. This Agreement shall be governed, construed and
enforced in accordance with the laws of the State of Delaware, without regard to
its principles of conflict of laws.
13. No Adverse Agreements. The Company has not previously, and
will not hereafter, enter into any agreement with respect to its securities
which adversely affects the rights granted to SB Bio in this Agreement.
14. Recapitalizations, etc. In the event that any capital stock
or other securities are issued in respect of, in exchange for, or in
substitution of, any Registrable Securities by reason of any reorganization,
recapitalization, reclassification, merger, consolidation, spin-off, partial or
complete liquidation, stock dividend, split-up, sale of assets, distribution to
stockholders or combination of the shares of Registrable Securities or any other
similar change in the Company's capital structure, appropriate adjustments shall
be made in this Agreement so as to fairly and equitably preserve, as far as
practicable, the original rights and obligations of the parties hereto under
this Agreement.
15. Specific Performance. The parties hereto agree that the
Registrable Securities of the Company cannot be purchased or sold in the open
market other than pursuant to Rule 144 or pursuant to an effective registration
statement and that, for these reasons, among others, the holder or holders of
the Registrable Securities will be irreparably damaged in the event that this
Agreement is not specifically enforceable. Accordingly, in the event of any
controversy concerning the Registrable Securities which are the subject of this
Agreement, or any right or obligation to register such securities, such right or
obligation shall be enforceable in a court of equity by specific performance.
The rights granted in this Section 15 shall be cumulative and not exclusive, and
shall be in addition to any and all other rights which the parties hereto may
have hereunder, at law or in equity. SB Bio consents to the jurisdiction of the
federal courts of the State of Delaware in any suit, action or proceeding
brought pursuant to this Section 15, waives any objection it may have to the
laying of venue in any such suit, action or proceeding in any of such court, and
agrees that service of any court paper may be made in such manner as may be
provided under applicable laws or court rules governing service of process.
16. Term. This Agreement shall continue in full force and effect
until the earlier of (i) seven (7) years after the Effective Date and (ii) the
first date on which SB Bio and its permitted assigns may sell all of the
Registrable Securities held by them in a ninety (90) day period pursuant to Rule
144 under the Securities Act.
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IN WITNESS WHEREOF, the parties have caused this Agreement
to be executed on September 13, 1999, and effective as of September 1, 1999, and
delivered by their respective duly authorized officers.
ANTEX BIOLOGICS INC.
By: /s/X. X. Xxxxxxxx
---------------------------------------
Name: X. X. Xxxxxxxx
Title: Chairman & CEO
SMITHKLINE XXXXXXX BIOLOGICALS MANUFACTURING S.A.
By: /s/Jean Stephenne
---------------------------------------
Name: Jean Stephenne
Title: President, General Manager
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