Exhibit 4.3
REGISTRATION RIGHTS AGREEMENT effective as of March 6, 2000 between
ABGENIX, INC., a Delaware corporation ("ABX"), having a place of business at
0000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000, and MILLENNIUM
PHARMACEUTICALS, INC., a Delaware corporation ("Millennium"), having a place of
business at 00 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000.
1
1. REGISTRATION OF SHARES. Subject to reasonable cooperation by ABX,
within 10 days after each payment due date under Section 6.1 at which Millennium
elects to effect payment with Registrable Securities (20 days in the case of the
payment due date specified in Section 6.1.1), Millennium shall file with the
Securities and Exchange Commission ("SEC") a registration statement on Form S-3
(the "Registration Statement") covering the resale to the public by ABX of such
Registrable Securities. Millennium shall use its best efforts to cause the
Registration Statement to be declared effective by the SEC as soon as
practicable. Millennium shall cause the Registration Statement to remain
effective for a period of six (6) months (subject to extension pursuant to
Section 3 hereof) or until such earlier time as all of the Registrable
Securities shall have been sold pursuant thereto. The Registration Statement
shall not cover any securities other than the Registrable Securities unless (a)
otherwise agreed to by ABX or (b) Millennium is otherwise required to include
shares of Common Stock or other securities held by third parties pursuant to
existing and future contractual commitments of Millennium.
2. REGISTRATION PROCEDURES.
(a) In connection with the filing by Millennium of each Registration
Statement, Millennium shall:
(1) before filing with the SEC the Registration Statement, furnish to
ABX and its counsel a draft thereof and provide them with a reasonable
opportunity for review thereof and comment thereon, such review to be conducted
and such comments to be delivered with reasonable promptness;
(2) promptly (A) notify ABX of the filing and effectiveness thereof, of
the receipt of any comments from the SEC or any state securities law authorities
with respect thereto, of any oral or written stop order with respect thereto,
and of any suspension of the registration or qualification of the Registrable
Securities in any jurisdiction or any initiation or threatening of any
proceedings with respect to the foregoing, and (B) use its reasonable efforts to
obtain the withdrawal of any order suspending the registration or qualification
(or the effectiveness thereof) or suspending or preventing the use of any
related prospectus in any jurisdiction with respect thereto;
(3) furnish to ABX a conformed copy of the Registration Statement and
each amendment and supplement thereto (in each case, including all exhibits
thereto and documents
2
incorporated by reference therein) and such additional number of copies of such
Registration Statement, each amendment and supplement thereto, the prospectus
(including each preliminary prospectus) included in the Registration Statement
and prospectus supplements and all exhibits thereto and documents incorporated
by reference therein and such other documents as ABX may reasonably request in
order to facilitate the disposition of the Registrable Securities;
(4) if requested by ABX, subject to approval of counsel to Millennium,
promptly incorporate in a prospectus supplement or post-effective amendment to
the Registration Statement such information concerning the plan of distribution
of the Registrable Securities as ABX reasonably shall furnish to Millennium in
writing and request be included therein; and make all required filings of such
prospectus supplement or post-effective amendment as soon as reasonably possible
after being notified of the matters to be incorporated therein;
(5) notify ABX, at any time when a prospectus relating to the
Registrable Securities is required to be delivered under the Securities Act
other than during a Blackout Period (as defined below), upon the discovery that,
or of the happening of any event as a result of which, the Registration
Statement as then in effect contains an untrue statement of a material fact or
omits to state any material fact required to be stated therein or any fact
necessary to make the statements therein not misleading, and promptly prepare
and furnish to ABX a supplement or amendment to the prospectus contained in the
Registration Statement so that the Registration Statement shall not, and such
prospectus as thereafter delivered to the purchaser of Registrable Securities
shall not, contain an untrue statement of a material fact or omit to state any
material fact required to be stated therein or any fact necessary to make the
statements therein not misleading;
(6) cause all of the Registrable Securities to be listed on each
securities exchange and included in each Trading Market on which or through
which the securities of the same class of Millennium are then listed or traded;
and
(7) make generally available to its security holders as soon as
practicable (but in any event not later than 90 days following the end of the
12-month period beginning at the end of the fiscal quarter during which the
effective date of the Registration Statement occurs) an earnings statement
(which need not be audited) of Millennium and its subsidiaries complying with
Section 11(a) of the Securities Act or Rule 158 promulgated by the SEC under the
Securities Act.
(b) Millennium shall use its best efforts to register or qualify the
Registrable Securities covered by the Registration Statement under the
securities laws of each state of the
3
United States; provided, however, that Millennium shall not be required in
connection with this paragraph (b) to qualify as a foreign corporation or
execute a general consent to service of process in any jurisdiction.
(c) If Millennium has delivered preliminary or final prospectuses to
ABX and after having done so the prospectus is amended or supplemented to comply
with the requirements of the Securities Act, Millennium shall promptly notify
ABX and, if requested by Millennium, ABX shall immediately cease making offers
or sales of shares under the Registration Statement and return all prospectuses
to Millennium. Millennium shall promptly provide ABX with revised or
supplemented prospectuses and, following receipt of the revised or supplemented
prospectuses, ABX shall be free to resume making offers and sales under the
Registration Statement.
(d) Millennium shall pay the expenses incurred by it in complying with
its obligations under this Section 2, including all registration and filing
fees, exchange listing fees, blue sky fees and expenses, printing expenses, fees
and expenses of its counsel, and fees and expenses of its accountants, but
excluding (i) any brokerage fees, selling commissions or underwriting discounts
incurred by ABX in connection with sales under the Registration Statement and
(ii) the fees and expenses of any counsel retained by ABX.
3. LIMITATIONS ON REGISTRATION RIGHTS.
Millennium may, by written notice to ABX, (i) delay the filing or
effectiveness of a Registration Statement or (ii) suspend a Registration
Statement after effectiveness and require that ABX immediately cease sales of
shares pursuant to such Registration Statement, in either case for a reasonable
period of time (a "Blackout Period"), in the event that (A) Millennium files a
registration statement (other than a registration statement on Form X-0, Xxxx
X-0 or their respective successor forms) with the SEC for a primary public
offering of its equity securities or securities convertible into or exercisable
for equity securities or (B) Millennium is engaged in any activity or
transaction or preparations or negotiations for any activity or transaction that
Millennium desires to keep confidential for business reasons, if Millennium
determines in good faith that the public disclosure requirements imposed on
Millennium under the Securities Act of 1933, as amended (the "Securities Act")
in connection with such Registration Statement would require disclosure of such
activity, transaction, preparations or negotiations.
If Millennium delays or suspends a Registration Statement or requires
ABX to cease sales of shares pursuant to paragraph (a) above, Millennium shall,
as promptly as practicable
4
following the termination of the circumstance which entitled Millennium to do
so, take such actions as may be necessary to file or reinstate the effectiveness
of such Registration Statement and/or give written notice to ABX authorizing it
to resume sales pursuant to such Registration Statement. If as a result thereof
the prospectus included in a Registration Statement has been amended to comply
with the requirements of the Securities Act, Millennium shall enclose such
revised prospectus with the notice to ABX given pursuant to this paragraph (b),
and ABX shall make no offers or sales of shares pursuant to such Registration
Statement other than by means of such revised prospectus.
Notwithstanding anything herein to the contrary, the aggregate number
of days included in any Blackout Periods with respect to each Registration
Statement shall not exceed 60 days, and the period of time that Millennium is
obligated to cause such Registration Statement to remain effective under Section
1 hereof shall be extended for a period of time equal to the number of days
included in such Blackout Periods.
4. REQUIREMENTS OF ABX.
(a) Millennium shall not be required to include any Registrable
Securities in the Registration Statement unless ABX furnishes to Millennium in
writing such information regarding it and the proposed sale of Registrable
Securities by ABX as Millennium may reasonably request in writing in connection
with the Registration Statement or as shall be required in connection therewith
by the SEC or any state securities law authorities.
(b) ABX agrees to effect all sales of Registrable Securities through a
registered broker-dealer. ABX hereby covenants to promptly report to Millennium
in writing any sales made pursuant to the Registration Statement.
5. INDEMNIFICATION.
(a) Millennium will indemnify and hold harmless ABX, its officers,
directors, employees and agents and each person who controls ABX within the
meaning of Section 15 of the Securities Act from and against any and all losses,
claims, damages, expenses or liabilities, joint or several, to which they or any
of them become subject under the Securities Act, applicable state securities
laws or under any other statute or at common law or otherwise, as incurred, and,
except as hereinafter provided, will reimburse ABX and each such officer,
director, employee,
5
agent and controlling person for any legal or other expenses reasonably incurred
by them or any of them in connection with investigating or defending any actions
whether or not resulting in any liability, insofar as such losses, claims,
damages, expenses, liabilities or actions arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, in any preliminary or amended preliminary prospectus or
in the final prospectus (or the Registration Statement or any such prospectus as
from time to time amended or supplemented by Millennium), or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances in which they were made, not
misleading, or any violation by Millennium of the Securities Act or any rule or
regulations promulgated under the Securities Act or any state securities laws
applicable to Millennium and relating to action or inaction required of
Millennium in connection with such registration. Notwithstanding the foregoing,
Millennium shall have no obligation to indemnify ABX if: (i) such untrue
statement or omission was made in such Registration Statement, preliminary or
amended preliminary prospectus or final prospectus in reliance upon and in
conformity with information furnished in writing to Millennium in connection
therewith by ABX expressly for use therein, or (ii) such untrue statement or
alleged untrue statement or omission or alleged omission was contained in a
preliminary prospectus and corrected in a final or amended prospectus copies of
which were delivered to ABX on a timely basis, and ABX failed to deliver a copy
of the final or amended prospectus at or prior to the confirmation of the sale
of the Registrable Securities to the person asserting any such loss, claim,
damage or liability in any case where such delivery is required by the
Securities Act.
(b) ABX will indemnify and hold harmless Millennium, each of its
directors, each of its officers who have signed or otherwise participated in the
preparation of the Registration Statement and each person, if any, who controls
Millennium within the meaning of Section 15 of the Securities Act from and
against any and all losses, claims, damages, expenses or liabilities, joint or
several, to which they or any of them may become subject under the Securities
Act, applicable state securities law or under any other statute or at common law
or otherwise, and, except as hereinafter provided, will reimburse Millennium and
each such director, officer, or controlling person for any legal or other
expenses reasonably incurred by them or any of them in connection with
investigating or defending any actions whether or not resulting in any
liability, insofar as such losses, claims, damages, expenses, liabilities or
actions arise out of or are based upon any untrue statement of a material fact
contained in the Registration Statement, in any preliminary or amended
preliminary prospectus or in the final prospectus (or in the Registration
Statement or any such prospectus as from time to time amended or supplemented)
or arise out of or are based upon the omission to state therein a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading, but only to the extent that such statement or omission
was made in reliance upon and in conformity with information furnished in
writing to Millennium in connection therewith by ABX expressly for use therein.
Notwithstanding the foregoing, the liability of ABX under this paragraph (b)
shall not exceed the proceeds received by ABX from the sale of Registrable
Securities pursuant to the Registration Statement.
6
(c) In order to provide for just and equitable contribution to joint
liability under the Securities Act in any case in which Millennium or ABX makes
a claim for indemnification pursuant to this Section 5 but it is judicially
determined (by the entry of a final judgment or decree by a court of competent
jurisdiction and the expiration of time to appeal or the denial of the last
right of appeal) that such indemnification may not be enforced in such case
notwithstanding that this Section 5 provides for indemnification, in such case,
then Millennium and ABX will contribute to the aggregate losses, claims, damages
or liabilities to which they may be subject (after contribution from others) in
such proportion as is appropriate to reflect the relative fault of Millennium on
the one hand and of ABX on the other in connection with the statements or
omission which resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations or, if the allocation provided
herein is not permitted by applicable law, in such proportion as shall be
appropriate to reflect the relative benefits received by Millennium and ABX from
the offering of the securities covered by such Registration Statement. The
relative fault of Millennium on the one hand and of ABX on the other shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by Millennium on the one hand or
by ABX on the other, and each party's relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission;
provided, however, that, in any such case (i) ABX will not be required to
contribute any amount in excess of the proceeds received by ABX from the sale of
Registrable Securities offered by it pursuant to the Registration Statement; and
(ii) no person or entity guilty of fraudulent misrepresentation within the
meaning of Section 11(f) of the Securities Act will be entitled to contribution
from any person or entity who was not guilty of such fraudulent
misrepresentation.
(d) Each person entitled to indemnification under this Section 5 (an
"Indemnitee") shall give notice to the party required to provide indemnification
(the "Indemnitor") promptly after such Indemnitee has actual knowledge of any
claim as to which indemnity may be sought, and the Indemnitor shall assume the
defense of any such claim and any litigation resulting therefrom, including the
employment of counsel selected by the Indemnitor (and reasonably acceptable to
the Indemnitee) and shall assume the payment of all expenses. The Indemnitee
shall have the right to employ separate counsel in any such action and to
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such Indemnitee, except that the Indemnitor shall pay
the fees and expenses of such counsel if counsel retained by the Indemnitor
reasonably determines that dual representation would be inadvisable due to
actual or potential differing interests between the parties. The failure of any
Indemnitee to give notice as provided herein shall not relieve the Indemnitor of
its obligations under this Section 5.3.5 except to the extent the Indemnitor is
materially prejudiced thereby. The Indemnitor shall not be liable for any
settlement of any such action or proceedings effected without its written
consent, but if settled with its written consent, or if there be a final
judgment for the plaintiff in any such action or proceeding, the Indemnitor
shall indemnify and hold harmless such Indemnitee from and against any loss or
liability (to the extent stated above) by
7
reason of such settlement or judgment. Each Indemnitee shall furnish such
information regarding itself or the claim in question as an Indemnitor may
reasonably request in writing and as shall be reasonably required in connection
with the defense of such claim and litigation resulting therefrom.
6. LEGENDS . Each certificate representing Registrable Securities initially
shall bear a legend substantially in the following form:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended, and
may not be offered, sold or otherwise transferred, pledged or
hypothecated, other than to a wholly-owned subsidiary of the
holder or pursuant to Rule 144 under such Act, unless and
until such shares are registered under such Act or an opinion
of counsel satisfactory to Millennium Pharmaceuticals, Inc. is
obtained to the effect that such registration is not
required."
The foregoing legend shall be removed from the certificates representing any
Registrable Securities, at the request of the holder thereof, at such time as
they become (a) subject to a Registration Statement declared effective under the
Securities Act, or (b) eligible for resale pursuant to Rule 144(k) under the
Securities Act.
7. RULE 144 INFORMATION. With a view to making available to ABX the
benefits of Rule 144 under the Securities Act and any other rule or regulation
of the SEC that may at any time permit ABX to sell Registrable Securities to the
public without registration, Millennium agrees that it shall, at all times from
the date hereof until all of the Registrable Securities shall have been sold by
ABX:
(a) make and keep available adequate current public information, as
those terms are understood and defined in Rule 144 under the Securities Act;
(b) use its best efforts to file with the SEC in a timely manner all
reports and other documents required to be filed by Millennium under the
Securities Act and the Securities Exchange Act of 1934, as amended (the
"Exchange Act"); and
8
(c) furnish to ABX, promptly upon request, a written statement by
Millennium as to its compliance with the reporting requirements of Rule 144 and
of the Securities Act and the Exchange Act, a copy of the most recent annual or
quarterly report of Millennium, and such other reports and documents of
Millennium and other information in the possession of or reasonably obtainable
by Millennium as ABX may reasonably request in availing itself of any rule or
regulation of the SEC allowing ABX to sell any such securities without
registration.
9
