REGISTRATION RIGHTS AGREEMENT
Exhibit 10.1
Execution Copy
This REGISTRATION RIGHTS AGREEMENT (this “Agreement”), dated as of September 15, 2009,
is by and between NEUROCRINE BIOSCIENCES, INC. (the “Company”) and KINGSBRIDGE CAPITAL
LIMITED (the “Investor”).
WHEREAS, the Company and the Investor have entered into that certain Common Stock Purchase
Agreement, dated as of the date hereof (the “Purchase Agreement”), pursuant to which the
Company may issue, from time to time, to the Investor up to $75 million worth of shares of Common
Stock as provided for therein;
WHEREAS, pursuant to the terms of, and in consideration for, the Investor’s agreement to enter
into the Purchase Agreement, the Company has agreed to provide the Investor with certain
registration rights with respect to the Registrable Securities (as defined in the Purchase
Agreement) as set forth herein;
NOW, THEREFORE, in consideration of the premises, the representations, warranties, covenants
and agreements contained herein and in the Purchase Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, intending to be legally
bound hereby, the parties hereto agree as follows (capitalized terms used herein and not defined
herein shall have the respective meanings ascribed to them in the Purchase Agreement):
ARTICLE I
REGISTRATION RIGHTS
REGISTRATION RIGHTS
Section 1.1 Registration Statement.
(a) Filing of the Registration Statement. Upon the terms and subject to the
conditions set forth in this Agreement, the Company shall file with the Commission within sixty
(60) calendar days after the Closing Date a registration statement on Form S-3 under the Securities
Act or such other form that permits incorporation of material information by reference as deemed
appropriate by counsel to the Company and reasonably acceptable to the Investor for the
registration for the resale by the Investor of Registrable Securities in an amount not to exceed
19.99% of the shares of Common Stock outstanding on the date immediately prior to the execution of
the Purchase Agreement (the “Registration Statement”).
(b) Effectiveness of the Registration Statement. The Company shall use commercially
reasonable efforts (i) to have the Registration Statement declared effective by the Commission as
soon as reasonably practicable, but in any event no later than one hundred eighty (180) calendar
days after the Closing Date and (ii) to ensure that the Registration Statement remains in effect
throughout the term of this Agreement as set forth in Section 4.2, subject to the terms and
conditions of this Agreement.
(c) Regulatory Disapproval. The contemplated effective date for the Registration
Statement as described in Section 1.1(b) shall be extended without default or liquidated damages
hereunder or under the Purchase Agreement in the event that the Company’s
1
failure to obtain the
effectiveness of the Registration Statement on a timely basis results
from (i) the failure of the Investor to timely provide the Company with information requested by the
Company and necessary to complete the Registration Statement in accordance with the requirements of
the Securities Act or (ii) the Commission’s disapproval of the structure of the transactions
contemplated by the Purchase Agreement, or (iii) events or circumstances that are not in any way
attributable to the Company. In the event of clause (ii) above, the parties agree to cooperate
with one another in good faith to arrive at a resolution acceptable to the Commission.
(d) Failure to Maintain Effectiveness of Registration Statement. In the event the
Company fails to maintain the effectiveness of the Registration Statement (or the Prospectus)
throughout the period set forth in Section 4.2, other than temporary suspensions as set forth in
Section 1.1(e), and the Investor holds any Registrable Securities at any time during the period of
such ineffectiveness (an “Ineffective Period”), and provided that such failure to maintain
effectiveness was within the reasonable control of the Company, the Company shall pay on demand to
the Investor in immediately available funds into an account designated by the Investor an amount
equal to the product of (i) the total number of Registrable Securities issued to the Investor under
the Purchase Agreement and owned by the Investor at any time during such Ineffective Period (and
not otherwise sold, hypothecated or transferred) and (ii) the result, if greater than zero,
obtained by subtracting the VWAP on the Trading Day immediately following the last day of such
Ineffective Period from the VWAP on the Trading Day immediately preceding the day on which any such
Ineffective Period began; provided, however, that (A) the foregoing payments shall
not apply in respect of Registrable Securities (I) that are otherwise freely tradable by the
Investor, including pursuant to Rule 144 under the Securities Act (as such Rule may be amended from
time to time, “Rule 144”) or (II) if the Company offers to repurchase from the Investor
such Registrable Securities for a per share purchase price equal to the VWAP on the Trading Day
immediately preceding the day on which any such Ineffective Period began and (B) unless otherwise
required by any applicable federal and state securities laws, the Company shall be under no
obligation to supplement the Prospectus to reflect the issuance of any Shares pursuant to a Draw
Down at any time prior to the first Trading Day following the Settlement Date with respect to such
Shares and that the failure to supplement the Prospectus prior to such time shall not be deemed a
failure to maintain the effectiveness of the Registration Statement (or Prospectus) for purposes of
this Agreement (including this Section 1.1(d)).
(e) Deferral or Suspension During a Blackout Period. Notwithstanding the provisions
of Section 1.1(d), if in the good faith judgment of the Company, following consultation with legal
counsel, it would be detrimental to the Company or its stockholders for the Registration Statement
to be filed or for resales of Registrable Securities to be made pursuant to the Registration
Statement due to (i) the existence of a material development or potential material development
involving the Company that the Company would be obligated to disclose or incorporate by reference
in the Registration Statement and which the Company has not disclosed, or which disclosure would be
premature or otherwise inadvisable at such time or would have a Material Adverse Effect on the
Company or its stockholders, or (ii) a filing of a Company-initiated registration of any class of
its equity securities, which, in the good faith judgment of the Company, would adversely affect or
require premature disclosure of the filing of such Company-initiated registration (notice thereof,
a “Blackout Notice”), the Company shall have the right to (A) immediately defer the filing
of the Registration Statement for a period of
2
not more than sixty (60) days beyond the date by
which such Registration Statement was otherwise required hereunder to be filed or (B) suspend use
of such Registration Statement for a period of not more than thirty (30) days (any such deferral or suspension period, a
“Blackout Period”). The Investor acknowledges that it would be seriously detrimental to
the Company and its stockholders for such Registration Statement to be filed (or remain in effect)
during a Blackout Period and therefore essential to defer such filing (or suspend the use thereof)
during such Blackout Period and agrees to cease any disposition of the Registrable Securities
during such Blackout Period. The Company may not utilize any of its rights under this Section
1.1(e) to defer the filing of a Registration Statement (or suspend its effectiveness) more than six
(6) times in any twelve (12) month period. In the event that, within fifteen (15) Trading Days
following any Settlement Date, the Company gives a Blackout Notice to the Investor and the VWAP on
the Trading Day immediately preceding such Blackout Period (“Old VWAP”) is greater than the
VWAP on the first Trading Day following such Blackout Period that the Investor may sell its
Registrable Securities pursuant to an effective Registration Statement (“New VWAP”), then
the Company shall pay to the Investor, by wire transfer of immediately available funds to an
account designated by the Investor, the “Blackout Amount.” For the purposes of this Agreement,
Blackout Amount means a percentage equal to (1) one hundred percent (100%) if such Blackout Notice
is delivered prior to the fifth (5th) Trading Day following such Settlement Date; (2) seventy-five
percent (75%) if such Blackout Notice is delivered on or after the fifth (5th) Trading Day
following such Settlement Date, but prior to the tenth (10th) Trading Day following such Settlement
Date; (3) fifty percent (50%) if such Blackout Notice is delivered on or after the tenth (10th)
Trading Day following such Settlement Date, but prior to the fifteenth (15th) Trading Day following
such Settlement Date; and (4) zero percent (0%) thereafter of: the product of (i) the number of
Registrable Securities purchased by the Investor pursuant to the most recent Draw Down and actually
held by the Investor immediately prior to the Blackout Period and (ii) the result, if greater than
zero, obtained by subtracting the New VWAP from the Old VWAP; provided, however,
that no Blackout Amount shall be payable in respect of Registrable Securities (x) that are
otherwise freely tradable by the Investor, including under Rule 144, during the Blackout Period or
(y) if the Company offers to repurchase from the Investor such Registrable Securities for a per
share purchase price equal to the VWAP on the Trading Day immediately preceding the day on which
any such Blackout Period began. For any Blackout Period in respect of which a Blackout Amount
becomes due and payable, rather than paying the Blackout Amount, the Company may at is sole
discretion, issue to the Investor shares of Common Stock with an aggregate market value determined
as of the first Trading Day following such Blackout Period equal to the Blackout Amount
(“Blackout Shares”); provided that at the time of issuance, all such Blackout Shares shall
be registered for resale pursuant to an effective Registration Statement.
(f) Liquidated Damages. The Company and the Investor hereto acknowledge and agree
that the amounts payable under Sections 1.1(d) and 1.1(e) and the Blackout Shares deliverable under
Section 1.1(e) above shall constitute liquidated damages and not penalties. The parties further
acknowledge that (i) the amount of loss or damages likely to be incurred by the Investor is
incapable or is difficult to precisely estimate, (ii) the amounts specified in such subsections
bear a reasonable proportion and are not plainly or grossly disproportionate to the probable loss
likely to be incurred in connection with any failure by the Company to obtain or maintain the
effectiveness of the Registration Statement, (iii) one of the reasons for the Company
3
and the
Investor reaching an agreement as to such amounts was the uncertainty and cost of litigation
regarding the question of actual damages, and (iv) the Company and the Investor are sophisticated
business parties and have been represented by sophisticated and able legal and
financial counsel and negotiated this Agreement at arm’s length. The Investor agrees that, so
long as the Company makes the payments or deliveries provided for in Sections 1.1(d) or 1.1(e), as
applicable, the Company’s failure to maintain the effectiveness, deferral or suspension of the
Registration Statement that triggered such payments or deliveries shall not constitute a material
breach or default of any obligation of the Company to the Investor and such payments or deliveries
shall constitute the Investor’s sole remedies with respect thereto.
ARTICLE II
REGISTRATION PROCEDURES
REGISTRATION PROCEDURES
Section 2.1 Filings; Information. The Company shall effect the registration
with respect to the sale of the Registrable Securities by the Investor in accordance with the
intended methods of disposition thereof. Without limiting the foregoing, the Company in each such
case will do the following as expeditiously as is commercially reasonable, but in no event later
than the deadline, if any, prescribed therefor in this Agreement:
(a) Subject to Section 1.1(e), the Company shall (i) prepare and file with the Commission the
Registration Statement; (ii) use commercially reasonable efforts to cause such filed Registration
Statement to become and to remain effective (pursuant to Rule 415 under the Securities Act or
otherwise); (iii) prepare and file with the Commission such amendments and supplements to the
Registration Statement and the Prospectus used in connection therewith as may be necessary to keep
such Registration Statement effective for the time period prescribed by Section 4.2 and in order to
effectuate the purposes of this Agreement and the Purchase Agreement; and (iv) comply in all
material respects with the provisions of the Securities Act with respect to the disposition of all
securities covered by such Registration Statement during such period in accordance with the
intended methods of disposition by the Investor set forth in such Registration Statement;
provided, however, that the Company shall be under no obligation to supplement the
Prospectus to reflect the issuance of any Shares pursuant to a Draw Down at any time prior to the
first Trading Day following the Settlement Date with respect to such Shares and, provided,
further, that the Investor shall be responsible for the delivery of the Prospectus to the
Persons to whom the Investor sells the Shares, and the Investor agrees to dispose of Registrable
Securities in compliance with the plan of distribution described in the Registration Statement and
otherwise in compliance with applicable federal and state securities laws.
(b) The Company shall deliver to the Investor and its counsel, in accordance with the notice
provisions of Section 4.8, such number of copies of the Registration Statement, each amendment and
supplement thereto (to the extent related to the resale of the Registrable Securities and in each
such case including all exhibits thereto), the Prospectus (including each preliminary prospectus,
and in each case to the extent related to the resale of the Registrable Securities) and such other
documents or information as the Investor or counsel may reasonably request in order to facilitate
the disposition of the Registrable Securities, provided, however, that to the
extent reasonably practicable, such delivery may be accomplished via electronic means.
4
(c) After the filing of the Registration Statement, the Company shall promptly notify the
Investor of any stop order issued or, to the Knowledge of the Company, threatened by the Commission
in connection therewith and take all commercially reasonable actions required to prevent the entry
of such stop order or to remove it if entered.
(d) The Company shall use commercially reasonable efforts to (i) register or qualify the sale
of the Registrable Securities by the Investor under such other securities or blue sky laws of each
jurisdiction in the United States as the Investor may reasonably (in light of its intended plan of
distribution) request, and (ii) cause the sale of the Registrable Securities by the Investor to be
registered with or approved by such other governmental agencies or authorities in the United States
as may be necessary by virtue of the business and operations of the Company and do any and all
other customary acts and things that may be reasonably necessary or advisable to enable the
Investor to consummate the disposition of the Registrable Securities; provided,
however, that the Company will not be required to qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for this Section 2.1(d),
subject itself to taxation in any such jurisdiction, consent or subject itself to general service
of process in any such jurisdiction, change any existing business practices, benefit plans or
outstanding securities or amend or otherwise modify the Charter or Bylaws.
(e) The Company (i) shall make available to the Investor (and will deliver to the Investor’s
counsel), subject to restrictions imposed by the United States federal government or any agency or
instrumentality thereof, copies of all public correspondence between the Commission and the Company
concerning the Registration Statement (to the extent relevant to the resale of the Registrable
Securities) and (ii) will also make available for inspection by the Investor and any attorney,
accountant or other professional retained by the Investor and reasonably acceptable to the Company
(collectively, the “Inspectors”), upon reasonable advance notice during normal business
hours all financial and other records, pertinent corporate documents and properties of the Company
(collectively, the “Records”) as shall be reasonably necessary to enable them to exercise
their due diligence responsibility, and cause the Company’s officers and employees to supply all
information reasonably requested by any Inspectors in connection with the Registration Statement;
provided, however, that (x) the Company shall not be obligated to disclose any
portion of the Records consisting of either (A) material non public information or (B) confidential
information of a third party and (y) any such Inspectors must agree in writing for the benefit of
the Company not to use or disclose any such Records except as provided in this Section 2.1(e).
Records that the Company determines, in good faith, to be confidential and that it notifies the
Inspectors are confidential shall not be disclosed by the Inspectors unless the disclosure or
release of such Records is requested or required pursuant to oral questions, interrogatories,
requests for information or documents or a subpoena or other order from a court of competent
jurisdiction or other judicial or governmental process; provided, however, that
prior to any disclosure or release pursuant to the immediately preceding clause, the Inspectors
shall provide the Company with prompt notice of any such request or requirement so that the Company
may seek an appropriate protective order or waive such Inspectors’ obligation not to disclose such
Records; and, provided, further, that if failing the entry of a protective order or the waiver by
the Company permitting the disclosure or release of such Records, the Inspectors, upon advice of
counsel, are compelled to disclose such Records, the Inspectors may disclose that portion of the
Records that counsel has advised the Inspectors that the Inspectors
5
are compelled to disclose;
provided, however, that upon any such required disclosure, such Inspector shall use
his or her best efforts to obtain reasonable assurances that confidential treatment will be
afforded such information. The Investor agrees that information obtained by it or any Inspector
solely as a result of such inspections (not including any information obtained from a third party
who, insofar as is known to the Investor after reasonable inquiry, is not prohibited from providing
such information by a contractual, legal or fiduciary obligation to
the Company) shall be deemed confidential and shall not be used for any purposes other than as
indicated above or by it or any Inspector as the basis for any market transactions in the
securities of the Company or its affiliates unless and until such information is made generally
available to the public. The Investor further agrees that it will, upon learning that disclosure
of such Records is sought in a court of competent jurisdiction, give notice to the Company and
allow the Company, at its expense, to undertake appropriate action to prevent disclosure of the
Records deemed confidential.
(f) The Company shall otherwise comply in all material respects with all applicable rules and
regulations of the Commission, including, without limitation, compliance with applicable reporting
requirements under the Exchange Act.
(g) The Company shall appoint (or shall have appointed) a transfer agent and registrar for all
of the Common Stock covered by such Registration Statement not later than the effective date of
such Registration Statement.
(h) The Investor shall cooperate with the Company, as reasonably requested by the Company, in
connection with the preparation and filing of any Registration Statement hereunder. The Company
may require the Investor to promptly furnish in writing to the Company such information as may be
required in connection with such registration including, without limitation, all such information
as may be requested by the Commission, the NASDAQ Stock Market or FINRA or any state securities
commission and all such information regarding the Investor, the Registrable Securities held by the
Investor and the intended method of disposition of the Registrable Securities. The Investor agrees
to provide such information requested in connection with such registration within five (5) business
days after receiving such written request and the Company shall not be responsible for, or incur
any penalties under this Agreement with respect to, any delays in obtaining or maintaining the
effectiveness of the Registration Statement caused by the Investor’s failure to timely provide such
information.
(i) Upon receipt of a Blackout Notice from the Company, the Investor shall immediately
discontinue disposition of Registrable Securities pursuant to the Registration Statement covering
such Registrable Securities until (i) the Company advises the Investor that the Blackout Period has
terminated and (ii) the Investor receives copies of a supplemented or amended prospectus, if
necessary. If so directed by the Company, the Investor will deliver to the Company (at the expense
of the Company) or destroy (and deliver to the Company a certificate of destruction) all copies in
the Investor’s possession (other than a limited number of file copies) of the prospectus covering
such Registrable Securities that is current at the time of receipt of such notice.
6
Section 2.2 Registration Expenses. Except as set forth in Section 10.1 of the
Purchase Agreement, the Company shall pay all registration expenses incurred in connection with the
Registration Statement (the “Registration Expenses”), including, without limitation: (a)
all registration, filing, securities exchange listing and fees required by the NASDAQ Stock Market,
(b) all registration, filing, qualification and other fees and expenses of compliance with
securities or blue sky laws (including reasonable fees and disbursements of counsel in connection
with blue sky qualifications of the Registrable Securities), (c) all of the Company’s word
processing, duplicating, printing, messenger and delivery expenses, (d) the Company’s internal
expenses
(including, without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), (e) the fees and expenses incurred by the Company in
connection with the listing of the Registrable Securities, (f) reasonable fees and disbursements of
counsel for the Company and customary fees and expenses for independent certified public
accountants retained by the Company (including the expenses of any special audits or comfort
letters or costs associated with the delivery by independent certified public accountants of such
special audit(s) or comfort letter(s), (g) the fees and expenses of any special experts retained by
the Company in connection with such registration and amendments and supplements to the Registration
Statement and Prospectus, and (h) premiums and other costs of the Company for policies of insurance
against liabilities of the Company arising out of any public offering of the Registrable Securities
being registered, to the extent that the Company in its discretion elects to obtain and maintain
such insurance. Any fees and disbursements of underwriters, broker-dealers or investment bankers,
including without limitation underwriting fees, discounts, transfer taxes or commissions, and any
other fees or expenses (including legal fees and expenses) if any, attributable to the sale of
Registrable Securities, shall be payable by the holders of Registrable Securities included in a
registration under this Agreement.
ARTICLE III
INDEMNIFICATION
INDEMNIFICATION
Section 3.1 Indemnification. The Company agrees to indemnify and hold
harmless the Investor, its partners, affiliates, officers, directors, employees and duly authorized
agents, and each Person or entity, if any, who controls the Investor within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act, together with the partners, affiliates,
officers, directors, employees and duly authorized agents of such controlling Person or entity
(collectively, the “Controlling Persons”), from and against any loss, claim, damage,
liability, costs and expenses (including, without limitation, reasonable attorneys’ fees and
disbursements and costs and expenses of investigating and defending any such claim) (collectively,
“Damages”), joint or several, and any action or proceeding in respect thereof to which the
Investor, its partners, affiliates, officers, directors, employees and duly authorized agents, and
any Controlling Person, may become subject under the Securities Act or otherwise, as incurred,
insofar as such Damages (or actions or proceedings in respect thereof) arise out of, or are based
upon, any untrue statement or alleged untrue statement of a material fact contained in any
Registration Statement, or in any preliminary prospectus, final prospectus, summary prospectus,
amendment or supplement relating to the Registrable Securities or arises out of, or are 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 under the circumstances not misleading, and shall
reimburse the Investor, its partners, affiliates, officers, directors, employees and duly
7
authorized agents, and each such Controlling Person, for any legal and other expenses reasonably
incurred by the Investor, its partners, affiliates, officers, directors, employees and duly
authorized agents, or any such Controlling Person, as incurred, in investigating or defending or
preparing to defend against any such Damages or actions or proceedings; provided,
however, that the Company shall not be liable to the extent that any such Damages arise out
of the Investor’s (or any other indemnified Person’s) (i) failure to send or give a copy of the
final prospectus or supplement (as then amended or supplemented) to the persons asserting an untrue
statement or alleged untrue statement or omission or alleged omission at or prior to the written
confirmation of the sale of Registrable Securities to such person if such statement or omission
was corrected in such final prospectus or supplement or (ii) written confirmation of the sale
of Registrable Securities purchased in any specific Draw Down prior to the filing of a supplement
to the Prospectus to reflect such Draw Down (provided the Company is in compliance with its
covenants with respect to the filing of such supplement); provided, further, that the Company shall
not be liable to the extent that any such Damages arise out of or are based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in such Registration
Statement, or any such preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement in reliance upon and in conformity with written information furnished to the Company by
or on behalf of the Investor or any other person who participates as an underwriter in the offering
or sale of such securities, in either case, specifically stating that it is for use in the
preparation thereof. In connection with any Registration Statement with respect to which the
Investor is participating, the Investor will indemnify and hold harmless, to the same extent and in
the same manner as set forth in the preceding paragraph, the Company, each of its partners,
affiliates, officers, directors, employees and duly authorized agents, and each Person or entity,
if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act, together with the partners, affiliates, officers, directors, employees and
duly authorized agents of such controlling Person or entity (each a “Company Indemnified
Person”) against any Damages to which any Company Indemnified Person may become subject under
the Securities Act, the Exchange Act or otherwise, insofar as such Damages arise out of or are
based upon (a) any untrue statement or alleged untrue statement of a material fact contained in any
Registration Statement, or in any preliminary prospectus, final prospectus, summary prospectus,
amendment or supplement relating to the Registrable Securities or arise out of, or are 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 under the circumstances not misleading to the extent that
such violation occurs in reliance upon and in conformity with written information furnished to the
Company by the Investor or on behalf of the Investor expressly for use in connection with such
Registration Statement, or (b) any failure by the Investor to comply with the Securities Act, the
Exchange Act or any other law or legal requirement applicable to sales under the Registration
Statement, or (c) a written confirmation of the sale of Registrable Securities purchased by the
Investor in any specific Draw Down prior to the filing of a supplement to the Prospectus to reflect
such Draw Down (provided the Company is in compliance with its covenants with respect to the filing
of such supplement).
Section 3.2 Conduct of Indemnification Proceedings. All claims for
indemnification under Section 3.1 shall be asserted and resolved in accordance with the provisions
of Section 9.2 of the Purchase Agreement.
8
Section 3.3 Additional Indemnification. Indemnification similar to that
specified in the preceding paragraphs of this Article III (with appropriate modifications) shall be
given by the Company and the Investor with respect to any required registration or other
qualification of Registrable Securities under any federal or state law or regulation of any
governmental authority other than the Securities Act. The provisions of this Article III shall be
in addition to any other rights to indemnification, contribution or other remedies which an
Indemnified Party or a Company Indemnified Person may have pursuant to law, equity, contract or
otherwise.
To the extent that any indemnification provided for herein is prohibited or limited by law,
the indemnifying party will make the maximum contribution with respect to any amounts for
which it would otherwise be liable under this Article III to the fullest extent permitted by
law. However, (a) no contribution will be made under circumstances where the maker of such
contribution would not have been required to indemnify the indemnified party under the fault
standards set forth in this Article III, (b) if the Investor is guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) the Investor will not
be entitled to contribution from any Person who is not guilty of such fraudulent misrepresentation,
and (c) contribution (together with any indemnification obligations under this Agreement) by the
Investor will be limited in amount to the proceeds received by the Investor from sales of
Registrable Securities.
ARTICLE IV
MISCELLANEOUS
MISCELLANEOUS
Section 4.1 No Outstanding Registration Rights. Except as otherwise disclosed
in accordance with the Purchase Agreement or in the Commission Documents, the Company represents
and warrants to the Investor that there is not in effect on the date hereof any agreement by the
Company pursuant to which any holders of securities of the Company have a right to cause the
Company to register or qualify such securities under the Securities Act or any securities or blue
sky laws of any jurisdiction.
Section 4.2 Term. The registration rights provided to the holders of
Registrable Securities hereunder, and the Company’s obligation to keep the Registration Statement
effective, shall terminate at the earlier of (a) such time that is one year following the
termination of the Purchase Agreement or (b) such time as all Registrable Securities issued prior
to the termination of the Purchase Agreement have ceased to be Registrable Securities.
Notwithstanding the foregoing, Article III, Section 4.2, Section 4.7, Section 4.8, Section 4.9,
Section 4.10, Section 4.11 and Section 4.13 shall survive the termination of this Agreement.
Section 4.3 Rule 144. The Company will, at its expense, promptly take such
action as holders of Registrable Securities may reasonably request to enable such holders of
Registrable Securities to sell Registrable Securities without registration under the Securities Act
within the limitation of the exemptions provided by (a) Rule 144 or (b) any similar rule or
regulation hereafter adopted by the Commission. If at any time the Company is not required to file
such reports, it will, at its expense, forthwith upon the written request of any holder of
Registrable Securities, make available adequate current public information with respect to the
Company within the meaning of Rule 144(c)(2) or such other information as necessary to permit sales
9
pursuant to Rule 144. Upon the request of the Investor, the Company will deliver to the Investor a
written statement, signed by the Company’s principal financial officer, as to whether it has
complied with such requirements.
Section 4.4 Certificate. The Company will, at its expense, forthwith upon the
request of any holder of Registrable Securities, deliver to such holder a certificate, signed by
the Company’s principal financial officer, stating (a) the Company’s name, address and telephone
number (including area code), (b) the Company’s Internal Revenue Service identification number, (c)
the Company’s Commission file number, (d) the number of shares of each class of capital stock
outstanding as shown by the most recent report or statement published by the Company, and (e)
whether the Company has filed the reports required to be filed under the
Exchange Act for a period of at least ninety (90) days prior to the date of such certificate
and in addition has filed the most recent annual report required to be filed thereunder.
Section 4.5 Amendment And Modification. The provisions of this Agreement,
including the provisions of this sentence, may be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may be given, with the prior written consent of
the Company and the Investor. No course of dealing between or among any Person having any interest
in this Agreement will be deemed effective to modify, amend or discharge any part of this Agreement
or any rights or obligations of any person under or by reason of this Agreement.
Section 4.6 Successors and Assigns; Entire Agreement. This Agreement and all
of the provisions hereof shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns. The Company may assign this Agreement at any
time in connection with a sale or acquisition of the Company, whether by merger, consolidation,
sale of all or substantially all of the Company’s assets, or similar transaction, without the
consent of the Investor, provided that the successor or acquiring Person or entity agrees in
writing to assume all of the Company’s rights and obligations under this Agreement. The Investor
may assign its rights and obligations under this Agreement only with the prior written consent of
the Company, and any purported assignment by the Investor absent the Company’s consent shall be
null and void. This Agreement, together with the Purchase Agreement, sets forth the entire
agreement and understanding between the parties as to the subject matter hereof and merges and
supersedes all prior discussions, agreements and understandings of any and every nature among them.
Section 4.7 Severability. If any provision of this Agreement becomes or is
declared by a court of competent jurisdiction to be illegal, unenforceable or void, this Agreement
shall continue in full force and effect without said provision; provided that, if the severance of
such provision materially changes the economic benefits of this Agreement to either party as such
benefits are anticipated as of the date hereof, then such party may terminate this Agreement on
five (5) business days prior written notice to the other party. In such event, the Purchase
Agreement will terminate simultaneously with the termination of this Agreement.
10
Section 4.8 Notices. All notices, demands, requests, consents, approvals, and
other communications required or permitted hereunder shall be given in accordance with Section 10.4
of the Purchase Agreement.
Section 4.9 Governing Law; Dispute Resolution. This Agreement shall be
construed under the laws of the State of New York.
Section 4.10 Headings. The headings in this Agreement are for convenience of
reference only and shall not constitute a part of this Agreement, nor shall they affect their
meaning, construction or effect.
Section 4.11 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original instrument and all of which together
shall constitute one and the same instrument.
Section 4.12 Further Assurances. Each party shall cooperate and take such
action as may be reasonably requested by another party in order to carry out the provisions and
purposes of this Agreement and the transactions contemplated hereby.
Section 4.13 Absence of Presumption. This Agreement shall be construed
without regard to any presumption or rule requiring construction or interpretation against the
party drafting or causing any instrument to be drafted.
11
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by the
undersigned, thereunto duly authorized, as of the date first set forth above.
| KINGSBRIDGE CAPITAL LIMITED |
||||
| By: | /s/ Xxxxxx Xxxxxxx-Xxxxxxx | |||
| Xxxxxx Xxxxxxx-Xxxxxxx | ||||
| Director | ||||
| NEUROCRINE BIOSCIENCES, INC. |
||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Xxxxx X. Xxxxxx, Ph.D. | ||||
| Chief Executive Officer | ||||
[Signature Page to Registration Rights Agreement]
