Exhibit 3
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as of the 7th
day of May, 1999, by and between SangStat Medical Corporation, a Delaware
corporation ("SangStat"), and Xxxxxx Laboratories, an Illinois corporation
("Xxxxxx").
RECITALS
WHEREAS, SangStat and Abbott are parties to the Stock Purchase Agreement,
dated the Closing Date (together with all exhibits, schedules, supplements and
any amendments thereto, the "Stock Purchase Agreement");
WHEREAS, the execution and delivery of this Agreement is a condition to the
Closing of the Stock Purchase Agreement; and
WHEREAS, all terms not otherwise defined herein shall have the same
meanings ascribed to them in the Stock Purchase Agreement;
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. REGISTRATION RIGHTS. SangStat covenants and agrees as follows:
1.1 DEFINITIONS. For purposes of this Agreement:
(a) The term "Act" means the Securities Act of
1933, as amended.
(b) The term "1934 Act" shall mean the Securities
Exchange Act of 1934, as amended.
(c) The term "Holder" means both Xxxxxx and any
transferee of Xxxxxx to whom registration rights granted under this Agreement
are assigned pursuant to Section 1.6 of this Agreement.
(d) The terms "register," "registered," and
"registration" refer to a registration effected by preparing and filing a
registration statement or similar document in compliance with the Act, and
the declaration or ordering of effectiveness of such registration statement
or document.
(e) The term "Registrable Securities" means the Common
Stock of SangStat issued to Xxxxxx pursuant to the Stock Purchase Agreement,
and any Common Stock of SangStat issued as a dividend or other distribution
with respect to such Common Stock.
(f) The term "Rule 144" shall mean Rule 144
promulgated under the Act, as amended, or any similar successor rule thereto
that may be promulgated by the SEC.
(g) The term "SEC" shall mean the Securities and
Exchange Commission.
1.2 REGISTRATION.
(a) If SangStat shall receive at any time after
November 15, 2001, a written request from a Holder that SangStat file a
registration statement under the Act covering the registration of all of the
Registrable Securities, then SangStat shall use all commercially reasonable
efforts to file within 45 days of such written request, at its own expense
(excluding any brokers fees or commissions) a registration statement on Form
S-3 (or such other registration statement as is then available) and any
related qualification or compliance with respect to all of the Registrable
Securities so as to permit or facilitate the sale and distribution of all of
the Registrable Securities. SangStat agrees to use reasonable commercial
efforts to accelerate the effectiveness of the registration statement as soon
as practicable after filing but no less than within three (3) business days
of any notification by the SEC of its decision not to review the registration
statement or its determination that it has completed its review of the
registration statement and has no further comments for SangStat.
(b) SangStat agrees it will not include any additional
securities of SangStat other than the Registrable Securities and will not
permit any other person or entity to include any additional securities in the
registration statement to be filed pursuant to this Section 1.
1.3 OBLIGATIONS OF SANGSTAT. Whenever required under this
Section 1 to effect the registration of any Registrable Securities, SangStat
shall:
(a) Prepare and file with the SEC a registration
statement under the Act to register the resale of the Registrable Securities
by the Holder and use its best efforts to cause such registration statement
to become effective, and, subject to the provisions below, use its best
efforts to keep such registration statement effective until the distribution
contemplated in the registration statement has been completed or until the
provisions of Section 1.8 hereof are applicable. If at any time after a
registration statement becomes effective, SangStat advises Xxxxxx in writing
that the registration statement shall contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, or any
prospectus comprising a part of such registration statement shall contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading or the
occurrence or existence of any pending corporate development that, in the
reasonable discretion of SangStat, makes it appropriate to suspend the
availability of the registration statement and the related prospectus,
SangStat shall give notice to Xxxxxx that the availability of the
registration statement is suspended and Xxxxxx shall suspend any further sale
of Registrable Securities pursuant to the registration statement until Xxxxxx
has been informed in writing that the registration statement is available.
With respect to pending corporate developments, SangStat shall be entitled to
exercise its right to suspend the availability of the registration statement
for a period exceeding not more than sixty (60) days in any six (6) month
period, not to exceed in the aggregate one hundred twenty (120) days in any
twelve (12) month period. With respect to material misstatements or
omissions, SangStat shall use reasonable commercial efforts to amend the
registration statement to correct such misstatements or omissions as soon as
reasonably practicable.
(b) Subject to subsection 1.3(a), prepare and file
with the SEC such amendments and supplements to such registration statement
and the prospectus used in connection with such registration statement as may
be necessary to comply with the provisions of the Act with respect to the
disposition of all securities covered by such registration statement.
(c) Furnish to the Holder such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Act, and such other documents as the Holder may
reasonably request in order to facilitate the disposition of Registrable
Securities owned by the Holder.
(d) Use its best efforts to register and qualify the
securities covered by such registration statement under such other securities
or Blue Sky laws of such jurisdictions as shall be reasonably requested by
the Holder; provided that SangStat shall not be required in connection
therewith or as a condition thereto to qualify to do business or to file a
general consent to service of process in any such states or jurisdictions,
unless SangStat is already subject to service in such jurisdiction and except
as may be required by the Act.
(e) Amend its listing application with the Nasdaq
Stock Market and any other securities exchange on which similar securities of
SangStat are or become listed or quoted to include the Registrable Securities
as soon as practicable after the Closing Date.
(f) Notify the Holder, promptly after SangStat shall
have received notice thereof, of the date and time the registration statement
and each post-effective amendment thereto has become effective or a
supplement to any prospectus forming a part of such registration statement
has been filed.
1.4 INFORMATION FROM THE HOLDER. It shall be a condition
precedent to the obligations of SangStat to take any action pursuant to this
Section 1 with respect to the Registrable Securities that the Holder shall
furnish to SangStat the information requested on Appendix 1.4 hereto, which
shall include such information regarding the Holder, the Registrable
Securities held by it, and the intended method of disposition of such
securities, and such other information as shall be reasonably requested by
SangStat and required to effect the registration of the Registrable
Securities.
1.5 EXPENSES OF REGISTRATION. All expenses of the Holder,
except underwriting discounts (if any) or commissions, including (without
limitation) all registration, filing and qualification fees, printers' and
accounting fees, fees and disbursements of counsel for SangStat shall be
borne by SangStat; provided, however, that SangStat shall not be required to
pay any legal and accounting fees incurred by the Holder.
1.6 ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause
SangStat to register Registrable Securities pursuant to this Agreement may be
assigned by Xxxxxx to a transferee of Registrable Securities only if: (a)
SangStat is, prior to such transfer, furnished with written notice of the
name and address of such transferee and the Registrable Securities with
respect to which such registration rights are being assigned and a copy of a
duly executed written instrument in form reasonably satisfactory to SangStat
by which such transferee assumes all of
the obligations and liabilities of its transferor hereunder and agrees itself
to be bound hereby; (b) immediately following such transfer the disposition
of such Registrable Securities by the transferee is restricted under the Act;
(c) such assignment includes all of the Registrable Securities then held by
Xxxxxx; PROVIDED, HOWEVER, that such share limitation shall not apply to
transfers by Xxxxxx to its subsidiaries if all such transferees or assignees
agree in writing to appoint a single representative as their attorney-in-fact
for the purpose of receiving any notices and exercising their rights under
this Agreement, and (d) Xxxxxx guarantees the performance of the Holder of
its obligations under this Agreement.
1.7 INDEMNIFICATION.
(a) The Holder will indemnify and hold harmless
SangStat, as well as each of its directors, each of its officers who has
signed the registration statement, affiliates, each person, if any, who
controls SangStat within the meaning of the Act, against any losses, claims,
damages, or liabilities (joint or several) to which any of the foregoing
persons may become subject (under the Act, the 1934 Act or otherwise),
insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereto) arise out of or are based upon omissions or
violations (collectively, a "Violation"): (i) any untrue statement or alleged
untrue statement of a material fact contained in such registration statement,
including any preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto, (ii) any omission or alleged omission
to state therein a material fact required to be stated therein, or necessary
to make the statements therein not misleading, or (iii) any violation or
alleged violation by SangStat of the Act, the 1934 Act, any rule or
regulation promulgated under the Act or the 1934 Act or other federal or
state law, in each case to the extent that such Violation is contained in any
written information furnished by the Holder for inclusion in such
registration; and the Holder will pay, as incurred, any legal or other
expenses reasonably incurred by any person intended to be indemnified
pursuant to this subsection 1.7(a), in connection with investigating or
defending any such loss, claim, damage, liability, or action; provided,
however, that the indemnity agreement contained in this subsection 1.7(a)
shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability, action or proceeding if such settlement is effected
without the consent of the Holder, which consent shall not be unreasonably
withheld; PROVIDED, THAT, in no event shall any indemnity under this
subsection 1.7(a) exceed the net proceeds from the offering received by such
Holder.
(b) SangStat will indemnify and hold harmless a
Holder, as well as each of such Holders's officers, directors, partners,
legal counsel, affiliates and persons controlling Holder, against any losses,
claims, damages, or liabilities (joint or several) to which any of the
foregoing persons may be subject (under the Act, the 1934 Act or otherwise),
insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereto) arise out of or are based upon any of the
following statements, omissions or violations (collectively, a "Violation"):
(i) any untrue statement or alleged untrue statement of a material fact
contained in a registration statement, including any preliminary prospectus
or final prospectus contained therein or any amendments or supplements
thereto, (ii) any omission or alleged omission to state therein a material
fact required to be stated therein, or necessary to make the statements
therein not misleading, or (iii) any violation or alleged violation by the
Holder of the Act, the 1934 Act or
any rule or regulation promulgated under the Act or the 1934 Act or other
federal or state law, in each case to the extent that such Violation is based
on any untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with any written information
furnished by SangStat in an instrument duly executed by the Holder; and
SangStat will pay, as incurred, any legal or other expenses reasonably
incurred by any person intended to be indemnified pursuant to this subsection
1.7(b) in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the indemnity agreement
contained in this subsection 1.7(b) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability, action, or proceeding
if settlement is effected without the consent of SangStat, which consent
shall not be unreasonably withheld.
(c) Promptly after receipt by an indemnified party
under this Section 1.7 of notice of the commencement of any action (including
any governmental action), such indemnified party will, if a claim in respect
thereof is to be made against any indemnifying party under this Section 1.7,
deliver to the indemnifying party a written notice of the commencement
thereof and the indemnifying party shall have the right to participate in at
the indemnifying party's expense, and, to the extent the indemnifying party
so desires, jointly with any other indemnifying party similarly noticed, to
assume the defense thereof with counsel mutually satisfactory to the parties
at the indemnifying party's expense; provided, however, that an indemnified
party (together with all other indemnified parties which may be represented
without conflict by one counsel) shall have the right to retain one separate
counsel, with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential
conflicts of interests between such indemnified party and any other party
represented by such counsel in such proceeding. No indemnifying party, in
defense of any such claim or litigation, shall, except with the consent of
each indemnified party, consent to entry of any judgement or enter into any
settlement which does not include as an unconditional term thereof the giving
by the claimant or plaintiff to the indemnified party of a release from all
liability in respect to such claim or litigation.
(d) If the indemnification provided for in this
Section 1.7 is unavailable or insufficient to hold harmless to an indemnified
party with respect to any loss, liability, claim, damage, or expense referred
to therein, then the indemnifying party, in lieu of indemnifying such
indemnified party hereunder, shall contribute to the amount paid or payable
by such indemnified party as a result of such loss, liability, claim, damage,
or expense in such proportion as is appropriate to reflect the relative fault
of the indemnifying party on the one hand and of the indemnified party on the
other in connection with the statements or omissions that resulted in such
loss, liability, claim, damage, or expense as well as any other relevant
equitable considerations. The relative fault of the indemnifying party and of
the indemnified party shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative
intent, knowledge, access to information, and opportunity to correct or
prevent such statement or omission. Notwithstanding the provisions of this
paragraph (d), Holder shall not be required to contribute any amount in
excess of the amount of net proceeds received by such Holder from the sale of
such Holder's Registrable Securities. Moreover, no person or entity guilty of
fraudulent misrepresentation within the meaning of Section 11(f) of the Act
shall be entitled to contribution from any person or entity who was not
guilty of such fraudulent misrepresentation.
(e) The obligations of a Holder under this Section 1.7
shall survive the completion of any offering of Registrable Securities in a
registration statement under this Agreement and shall be in addition to any
other liability which SangStat and the Holder may have.
(f) Notwithstanding the foregoing, to the extent that
the provisions on indemnification and contribution contained in an
underwriting agreement (if any) entered into in connection with the
underwritten public offering are in conflict with the foregoing provisions,
the provisions in the underwriting agreement shall control.
1.8 TERMINATION OF REGISTRATION RIGHTS. The registration rights
provided in this Section 1 shall terminate if all shares of Registrable
Securities may be sold pursuant to Rule 144 in any three (3) month period.
Upon the termination of registration rights pursuant to this Section 1.8,
SangStat shall have the right to withdraw the registration statement, or any
portion thereof, covering the Registrable Securities.
1.9 LEGENDS. Each certificate representing the Common Stock
purchased pursuant to the terms of the Stock Purchase Agreement, shall be
stamped or otherwise imprinted with a legend substantially in the following
form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933 OR ANY STATE SECURITIES LAWS AND MAY NOT BE TRANSFERRED OR OTHERWISE
DISPOSED OF UNLESS IT HAS BEEN REGISTERED UNDER SUCH ACT AND ALL SUCH APPLICABLE
LAWS OR AN EXEMPTION FROM REGISTRATION IS AVAILABLE."
A certificate shall not bear such legend if in the opinion of counsel reasonably
satisfactory to SangStat the securities being sold thereby may be publicly sold
without registration under the Securities Act and any applicable state
securities laws.
1.10 REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934. With a view
to making available to a Holder the benefits of Rule 144 promulgated under
the Act and any other rule or regulation of the SEC that may at any time
permit a Holder to sell securities of SangStat to the public without
registration or pursuant to a registration on Form S-3, SangStat agrees to:
(a) make and keep public information available, as
those terms are understood and defined in SEC Rule 144, at all times;
(b) file with the SEC in a timely manner all reports
and other documents required of SangStat under the Act and the 1934 Act; and
(c) furnish to the Holder, so long as the Holder owns
any Registrable
Securities, forthwith upon request (i) a written statement by SangStat that
it has complied with the reporting requirements of SEC Rule 144, the Act and
the 1934 Act, or that it qualifies as a registrant whose securities may be
resold pursuant to Form S-3, (ii) a copy of the most recent annual or
quarterly report of SangStat and such other reports and documents so filed by
SangStat, and (iii) such other information as may be reasonably requested in
availing the Holder of any rule or regulation of the SEC that permits the
selling of any such securities without registration or pursuant to such form.
2. MISCELLANEOUS.
2.1 AMENDMENT. This Agreement may only be amended by a writing
signed by the Holder and SangStat.
2.2 ENTIRE AGREEMENT; CONTROLLING DOCUMENT. This Agreement
constitutes the entire agreement of the parties with respect to the subject
matter hereof and supersedes any and all prior negotiations, correspondence
and understandings between the parties with respect to the subject matter
hereof, whether oral or in writing.
2.3 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
2.4 HEADINGS. The section headings used in this Agreement are
intended principally for convenience and shall not by themselves determine
the rights and obligations of the parties to this Agreement.
2.5 DELAY AND WAIVER. No delay on the part of either party in
exercising any right under this Agreement shall operate as a waiver of such
right. The waiver by either party of any other term or condition of this
Agreement shall not be construed as a waiver of a subsequent breach or
failure of the same term or condition or a waiver of any other term or
condition contained in this Agreement.
2.6 GOVERNING LAW. This Agreement shall be governed by and
construed under the laws of the State of Delaware without regard to conflicts
of law principles.
2.7 TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
2.8 EXPENSES. Each party shall pay all costs and expenses that
it incurs with respect to the negotiation, execution, and delivery of this
Agreement.
2.9 ALTERNATIVE DISPUTE RESOLUTION. The parties agree to
effectuate all reasonable efforts to resolve in an amicable manner any and
all disputes between them in connection with this Agreement. The parties
agree that any dispute that arises in connection with this Agreement, which
cannot be amicably resolved informally shall be finally settled as set forth
in the Alternative Dispute Resolution provisions of Exhibit E to the
Co-Promotion Agreement between
Xxxxxx and SangStat dated as of May 7, 1999.
2.10 AMENDMENTS AND WAIVERS. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively) only with the written consent of SangStat and the Holder.
2.11 SEVERABILITY. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, such provision shall be
excluded from this Agreement and the balance of the Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
2.12 FURTHER ASSURANCES. SangStat and Xxxxxx shall do and
perform or cause to be performed all such further acts and things and shall
execute and deliver all such other agreements, certificates, instruments or
documents as the other party may reasonably request from time to time in
order to carry out the intent and purposes of this Agreement and the
consummation of the transactions contemplated by the Agreement. Neither
SangStat nor Xxxxxx shall voluntarily undertake any course of action
inconsistent with the satisfaction of the requirements applicable to them as
set forth in this Agreement, and each shall promptly do all such acts and
take all such measures as may be appropriate to enable them to perform as
early as practicable their obligations under this Agreement.
2.13 NO THIRD PARTY RIGHTS. Nothing in this Agreement shall
create or be deemed to create any rights in any person or entity not a party
to his Agreement.
2.14 MUTUAL DRAFTING. This Agreement is the joint product of
SangStat and Xxxxxx and each provision of the Agreement has been subject to
consultation, negotiation and agreement of SangStat and Xxxxxx and their
respective legal counsel and advisers and any rule of construction that a
document shall be interpreted or construed against the drafting party shall
not apply.
IN WITNESS WHEREOF, the parties have executed this
Registration Rights Agreement as of the date first above written.
SANGSTAT MEDICAL CORPORATION
By:
Address: 0000 Xxxxx Xxxxx
Xxxxx Xxxx, XX 00000
XXXXXX LABORATORIES:
By:
Name:
Title:
Address:
APPENDIX 1.4
XXXXXX INFORMATION:
All information furnished below by the undersigned for use in the Registration
Statement on Form S-3 is, and on the date such shares registered thereunder,
will be true, correct, and complete in all material respects, and does not, and
on the date on which the undersigned sells such shares, will not, contain any
untrue statement of a material fact or omit to state any material fact necessary
to make such information not misleading. By completing and returning this
information statement, the undersigned hereby consents to the use of its,
address, and share ownership information in the Form S-3 of SangStat Medical
Corporation.
A. DATE.
Fill in Date: ______________________________
B. NAME. Print:
Print and sign name or names ______________________________
exactly as name or names appear on
share certificate. If certificate is held ______________________________
in more than one name, all must sign.
Sign:
______________________________
______________________________
C. ADDRESS.
Fill in your address: ______________________________
______________________________
______________________________
D. STOCK OWNED.
Fill in number of shares of Of Record Beneficially
Common Stock owned of record
and beneficially.
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E. AGGREGATE NUMBER OF SHARES OF COMMON STOCK TO BE SOLD:
_____________ Shares
F. STATUS.
The undersigned is an individual ( ), partnership ( ), corporation ( ), or
other, as more fully described below ( ). The undersigned is not acting in a
fiduciary capacity or as a nominee in selling shares in the public offering,
except as indicated below.
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