REGISTRATION RIGHTS AGREEMENT
Execution
Copy
This
Registration Rights Agreement (the “Agreement”)
is made and entered into as of this 25th day of August, 2009 by and among
Novelos Therapeutics, Inc., a Delaware corporation
(the “Company”),
Purdue Pharma L.P., a Delaware limited partnership (“Purdue”)
and, together with any holders of Registrable Securities that becomes a party
hereto pursuant to 7(c) hereof, the “Holders.” Capitalized terms not
otherwise defined herein shall have the meanings ascribed thereto in the
Securities Purchase Agreement.
WHEREAS, pursuant to a
Securities Purchase Agreement dated herewith (the “Securities
Purchase Agreement”) the Company has agreed to issue and sell (the “Common
Shares”) to Purdue, and Purdue has agreed to purchase from the
Company, in the aggregate, 13,636,364 shares of the Company’s common stock,
$0.00001 par value per share (the “Common Stock”), and warrants
to acquire shares of Common Stock equal to 35% of the aggregate number of shares
of Common Stock to be issued and sold to Purdue pursuant to the Closings rounded
up to the next even number at each Closing, approximately 4,772,728 shares of
Common Stock (the “Warrants”),
upon the terms and conditions set forth in the Securities Purchase Agreement;
and
WHEREAS, the Company has
agreed to register the Common Shares and the shares of Common Stock issuable
upon exercise of the Warrants in accordance with the terms of this
Agreement;
The
Parties hereby agree as follows:
1. Certain
Definitions.
As used
in this Agreement, the following terms shall have the following
meanings:
“FINRA”
shall mean the Financial Industry Regulatory Authority.
“Holders”
shall mean Purdue together with any holders of Registrable Securities that
becomes a party hereto pursuant to 7(c) hereof.
“Prospectus”
shall mean the prospectus included in any Registration Statement, as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Registrable Securities covered by such
Registration Statement and by all other amendments and supplements to the
prospectus, including post-effective amendments and all material incorporated by
reference in such prospectus.
“Register,”
“registered”
and “registration”
refer to a registration made by preparing and filing a Registration Statement or
similar document in compliance with the 1933 Act, and the declaration or
ordering of effectiveness of such Registration Statement or
document.
“Registrable
Securities” shall mean (i) all the Common Shares issued pursuant to the
Securities Purchase Agreement and (ii) the shares of Common Stock issuable upon
the exercise of the Warrants, including any shares of Common Stock issued or
that become issuable, in respect of any Registrable Security upon exercise of
the Warrants, as the case may be, as a result of stock splits, stock dividends
or similar transactions with respect to the Common Stock; provided, that, a security
shall cease to be a Registrable Security upon a sale pursuant to a Registration
Statement.
“Registration
Statement” shall mean any registration statement of the Company filed
under the 1933 Act that covers the resale of any of the Registrable Securities
pursuant to the provisions of this Agreement, amendments and supplements to such
Registration Statement, including post-effective amendments, and all exhibits
and all material incorporated by reference in such Registration
Statement.
|
|
2.
|
Registration.
|
(a) Registration
Statement. Promptly following the earlier of the six month
anniversary of (i) the Final Subsequent Closing and (ii) the end of the
Exclusive Negotiation Period, but in no event after five (5) business days after
the earlier of the six month anniversary of (i) the Final Subsequent Closing and
(ii) the end of the Exclusive Negotiation Period (the “Filing
Deadline”), the Company shall prepare and file with the SEC one
Registration Statement on Form S-1 covering the resale of all of the Registrable
Securities without regard to any limitation on exercise of the
Warrants. Such Registration Statement shall include the plan of
distribution attached hereto as Exhibit
A. Such Registration Statement also shall cover, to the extent
allowable under the 1933 Act and the rules promulgated thereunder (including
Rule 416), such indeterminate number of additional shares of Common Stock
resulting from stock splits, stock dividends or similar transactions with
respect to the Registrable Securities. The Registration Statement
(and each amendment or supplement thereto, and each request for acceleration of
effectiveness thereof) shall be provided in accordance with Section 3(c) to the
Holders and their respective counsel prior to its filing or other submission. If
a Registration Statement covering the Registrable Securities is not filed with
the SEC on or prior to the Filing Deadline, the Company will make pro rata
payments to each Holder, as liquidated damages and not as a penalty, in an
amount equal to 1.5% of the aggregate amount invested by such Holder for each
30-day period or pro rata for any portion thereof following the date by which
such Registration Statement should have been filed for which no Registration
Statement is filed with respect to the Registrable Securities. Such
payments shall be in partial compensation to the Holders, and shall not
constitute the Holders’ exclusive remedy for such events. Such
payments shall be made to each Holder in cash. The amounts payable as
liquidated damages pursuant to this paragraph shall be payable in lawful money
of the United States, and amounts payable as liquidated damages shall be paid
within two (2) Business Days of the last day of each such 30-day period during
which the Registration Statement should have been filed for which no
Registration Statement was filed with respect to the Registrable
Securities. Notwithstanding the foregoing, in the event that any
Subsequent Closings or issuance otherwise of additional Common Shares and
Warrants pursuant to the Securities Purchase Agreement occurs after the Filing
Deadline, promptly following the three month anniversary of each such Subsequent
Closing or aforementioned issuance of additional Common Shares and Warrants, but
in no event after five (5) business days after the three month anniversary of
each such Subsequent Closing or aforementioned issuance of additional Common
Shares and Warrants (each a “Subsequent
Filing Deadline”), the Company shall prepare and file a Registration
Statement on Form S-1 covering the resale of all of the Registrable Securities
issued at each such Subsequent Closing or issuance without regard to any
limitation on exercise of the Warrants. All penalties contained
herein and terms applicable to the Company’s failure to file a Registration
Statement by the Filing Deadline applies fully to the Company’s failure to file
the applicable Registration Statement by each applicable Subsequent Filing
Deadeline.
-2-
(b) Expenses. The
Company will pay all expenses associated with each registration, including
filing and printing fees, counsel and accounting fees and expenses, costs
associated with clearing the Registrable Securities for sale under applicable
state securities laws and listing fees, but excluding the fees and disbursements
of more than one law firm serving as counsel to the Holders, and discounts,
commissions, fees of underwriters, selling brokers, dealer managers or similar
securities industry professionals with respect to the Registrable Securities
being sold.
(c) Effectiveness.
(i) The
Company shall use its best efforts to have the Registration Statement declared
effective not later than the earlier to occur of (x) the 60th day immediately
following the Filing Deadline and any Subsequent Filing Deadline, (y) five (5)
Business Days following the Company’s receipt of a no-review letter from the SEC
relating to the Registration Statement, or (z) the 90th day following the Filing
Deadline and any Subsequent Filing Deadline if the Company’s receives a review
from the SEC relating to the Registration Statement; provided, however, if the
Registration Statement is not declared effective within the time period set
forth above, the Company shall continue to use its best efforts to have the
Registration Statement declared effective as soon as possible
thereafter.
(ii) For
not more than fifteen (15) consecutive days or for a total of not more than
thirty (30) days in any twelve (12) month period, the Company may delay the
disclosure of material non-public information concerning the Company, by
terminating or suspending effectiveness of any registration contemplated by this
Section 2, if
the disclosure of such material non-public information at the time is not, in
the good faith opinion of the Company, in the best interests of the Company (an
“Allowed
Delay”); provided, that the
Company shall promptly (a) notify the Holders in writing of the existence of
(but in no event, without the prior written consent of a Holder, shall the
Company disclose to such Holder any of the facts or circumstances regarding)
material non-public information giving rise to an Allowed Delay, and (b) advise
the Holders in writing to cease all sales under the Registration Statement until
the end of the Allowed Delay.
(d) Underwritten
Offering. If any offering pursuant to a Registration Statement
filed pursuant to Section 2(a) hereof
involves an underwritten offering, the Company shall have the right to select an
investment banker and manager to administer the offering, subject to the
reasonable satisfaction of Purdue.
3. Company
Obligations. The Company will use its best efforts to effect
the registration of the Registrable Securities in accordance with the terms
hereof, and pursuant thereto the Company will, as expeditiously as
possible:
(a) use
its best efforts to cause such Registration Statement to become effective and to
remain continuously effective for a period that will terminate upon the earlier
of (i) the date on which all Registrable Securities covered by such Registration
Statement, as amended from time to time, have been sold and (ii) two years from
the most recent Subsequent Closing or issuance otherwise of additional Common
Shares and Warrants;
-3-
(b) prepare
and file with the SEC such amendments and post-effective amendments to the
Registration Statement and the Prospectus as may be necessary to keep the
Registration Statement effective for the period specified in Section 3(a) and to
comply with the provisions of the 1933 Act and the 1934 Act with respect to the
distribution of all Registrable Securities;
(c) provide
copies to and permit Purdue and its counsel, to review each Registration
Statement and all amendments thereto no fewer than three (3) days prior to their
filing with the SEC and not file any document to which such counsel reasonably
objects within three (3) days following receipt by such counsel of such
Registration Statement and/or amendments thereto;
(d) furnish
to the Holders and their legal counsel (i) promptly after the same is prepared
and publicly distributed, filed with the SEC, or received by the Company (but
not later than two (2) Business Days after the filing date, receipt date or
sending date, as the case may be), an electronic copy of any Registration
Statement and any amendment thereto, each preliminary prospectus and Prospectus
and each amendment or supplement thereto, and each letter written by or on
behalf of the Company to the SEC or the staff of the SEC, and each item of
correspondence from the SEC or the staff of the SEC, in each case relating to
such Registration Statement (other than any portion thereof which contains
information for which the Company has sought confidential treatment), and (ii)
such number of copies of a Prospectus, including a preliminary prospectus, and
all amendments and supplements thereto and such other documents as each Holder
may reasonably request in order to facilitate the disposition of the Registrable
Securities owned by such Holder, which in any event, shall not exceed ten (10)
Prospectuses;
(e) in
the event the Company selects an underwriter for the offering, the Company shall
enter into and perform its reasonable obligations under an underwriting
agreement, in usual and customary form, including, without limitation, customary
indemnification and contribution obligations, with the underwriter of such
offering;
(f) if
required by the underwriter, the Company shall furnish, on the effective date of
the Registration Statement (i) an opinion, dated as of such date, from
independent legal counsel representing the Company for purposes of such
Registration Statement, in form, scope and substance as is customarily given in
an underwritten public offering, addressed to the underwriter and (ii) a letter,
dated such date, from the Company’s independent certified public accountants in
form and substance as is customarily given by independent certified public
accountants to underwriters in an underwritten public offering, addressed to the
underwriter and the Holders;
(g) use
its reasonable best efforts to prevent the issuance of any stop order or other
suspension of effectiveness and, if such order is issued, obtain the withdrawal
of any such order at the earliest possible moment;
(h) prior
to any public offering of Registrable Securities, use its reasonable best
efforts to register or qualify or cooperate with the Holders and their counsel
in connection with the registration or qualification of such Registrable
Securities for offer and sale under the securities or blue sky laws of such
jurisdictions reasonably requested by the Holders and do any and all other
reasonable acts or things necessary or advisable to enable the distribution in
such jurisdictions of the Registrable Securities covered by the Registration
Statement;
-4-
(i) cause
all Registrable Securities covered by a Registration Statement to be listed or
traded on each securities exchange, interdealer quotation system or other market
on which similar securities issued by the Company are then listed or
traded;
(j) immediately
notify the Holders, at any time when a Prospectus relating to the Registrable
Securities is required to be delivered under the 1933 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 light of
the circumstances then existing, and at the request of any such Holder, promptly
prepare and furnish to such Holder a reasonable 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 Registrable 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 light of the circumstances then existing;
and
(k) otherwise
use its best efforts to comply with all applicable rules and regulations of the
SEC under the 1933 Act and the 1934 Act and take such other actions as may be
reasonably necessary to facilitate the registration of the Registrable
Securities hereunder; and make available to its security holders, as soon as
reasonably practicable, but not later than the Availability Date (as defined
below), an earnings statement covering a period of at least twelve (12) months,
beginning after the effective date of each Registration Statement, which
earnings statement shall satisfy the provisions of Section 11(a) of the 1933 Act
(for the purpose of this subsection 3(k),
“Availability
Date” means the 45th day following the end of the fourth fiscal quarter
that includes the effective date of such Registration Statement, except that, if
such fourth fiscal quarter is the last quarter of the Company’s fiscal year,
“Availability
Date” means the 90th day after the end of such fourth fiscal
quarter).
4.
Due Diligence Review;
Information. Upon receipt of an appropriate confidentiality
agreement, the Company shall make available, during normal business hours, for
inspection and review by the Holders, advisors to and representatives of the
Holders (who may or may not be affiliated with the Holders), and any underwriter
participating in any disposition of Common Stock on behalf of the Holders
pursuant to a Registration Statement or amendments or supplements thereto or any
blue sky, FINRA or other filing, all financial and other records, all filings
with the SEC, and all other corporate documents and properties of the Company as
may be reasonably necessary for the purpose of such review, and cause the
Company’s officers, directors and employees, within a reasonable time period, to
supply all such information reasonably requested by the Holders or any such
representative, advisor or underwriter in connection with such Registration
Statement (including, without limitation, in response to all questions and other
inquiries reasonably made or submitted by any of them), prior to and from time
to time after the filing and effectiveness of the Registration Statement for the
sole purpose of enabling the Holders and such representatives, advisors and
underwriters and their respective accountants and attorneys to conduct initial
and ongoing due diligence with respect to the Company and the accuracy of such
Registration Statement.
-5-
Notwithstanding
the foregoing, the Company shall not disclose material nonpublic information to
the Holders, or to advisors to or representatives of the Holders, unless prior
to disclosure of such information the Company identifies such information as
being material nonpublic information and provides the Holders, such advisors and
representatives with the opportunity to accept or refuse to accept such material
nonpublic information for review.
5. Obligations of the
Holders.
(a) Each
Holder agrees to furnish to the Company a completed Questionnaire in the form
attached to this Agreement as Exhibit B (a “Selling Shareholder
Questionnaire”) not prior to 120 days after the earlier of (i) the Final
Subsequent Closing Date and (ii) the end of the Exclusive Negotiation Period,
with respect to a Registration Statement filed in conjunction with the Filing
Deadline, and not prior to 30 days after each Subsequent Closing or issuance
with respect to Registration Statements filed in conjunction with each
Subsequent Filing Deadline, and not more than 150 days after the earlier of (i)
the Final Subsequent Closing Date and (ii) the end of the Exclusive Negotiation
Period, with respect to a Registration Statement filed in conjunction with the
Filing Deadline, and not more than 60 days after each Subsequent Closing or
issuance with respect to Registration Statements filed in conjunction with each
Subsequent Filing Deadline. A Holder who fails to furnish a Selling
Stockholder Questionnaire within 150 days after each Closing with respect to a
Registration Statement filed in conjunction with the Filing Deadline and within
60 days after each Closing with respect to a Registration Statement filed in
conjunction with each Subsequent Filing Deadline may have its Registrable
Securities excluded from the applicable Registration Statement, provided that
the Company has provided such Holder with notice at least 20 days prior (but no
more than 60 days prior) to the expiration of such 150 day period and 10 days
prior (but no more than 30 days prior) to the expiration of such 60 day
period.
(b) Each
Holder, by its acceptance of the Registrable Securities, agrees to cooperate
with the Company as reasonably requested by the Company in connection with the
preparation and filing of a Registration Statement hereunder, unless such Holder
has notified the Company in writing of its election to exclude all of its
Registrable Securities from such Registration Statement.
(c) In
the event the Company, at the request of the Holders, determines to engage the
services of an underwriter, each such Holder agrees to enter into and perform
its obligations under an underwriting agreement, in usual and customary form,
including, without limitation, customary indemnification and contribution
obligations, with the managing underwriter of such offering and take such other
actions as are reasonably required in order to expedite or facilitate the
dispositions of the Registrable Securities.
-6-
(d) Each
Holder agrees that, upon receipt of any notice from the Company of the happening
of any event rendering a Registration Statement no longer effective, such Holder
will immediately discontinue disposition of Registrable Securities pursuant to
the Registration Statement covering such Registrable Securities, until the
Holder’s receipt of copies of the supplemented or amended Prospectus filed with
the SEC and declared effective and, if so directed by the Company, the Holder
shall 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 Holder’s
possession of the Prospectus covering the Registrable Securities current at the
time of receipt of such notice.
(e) No
Holder may participate in any third party underwritten registration hereunder
unless it (i) agrees to sell the Registrable Securities on the basis provided in
any underwriting arrangements in usual and customary form entered into by the
Company, (ii) completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents reasonably required
under the terms of such underwriting arrangements, and (iii) agrees to pay its
pro rata share of all underwriting discounts and
commissions. Notwithstanding the foregoing, no Holder shall be
required to make any representations to such underwriter, other than those with
respect to itself and the Registrable Securities owned by it, including its
right to sell the Registrable Securities, and any indemnification in favor of
the underwriter by the Holders shall be several and not joint and limited in the
case of any Holder, to the net proceeds received by such Holder from the sale of
its Registrable Securities. The scope of any such indemnification in
favor of an underwriter shall be limited to the same extent as the indemnity
provided in Section
6(b) hereof.
6. Indemnification.
(a) Indemnification by the
Company. The Company will indemnify and hold harmless each
Holder and any controlling person (as defined in Section 15 of the 0000 Xxx) and
their respective officers, directors, members, employees and agents, successors
and assigns (the “Indemnified Persons”), against any losses, claims, damages or
liabilities, joint or several, to which such Indemnified Person may become
subject under the 1933 Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement of any material fact
contained in any Registration Statement, any preliminary prospectus or final
prospectus contained therein, or any amendment or supplement thereof; (ii) any
blue sky application or other document executed by the Company specifically for
blue sky compliance or based upon written information furnished by the Company
filed in any state or other jurisdiction in order to qualify any or all of the
Registrable Securities under the securities laws thereof (any such application,
document or information herein called a “Blue Sky
Application”);
(iii) the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading;
(iv) any violation by the Company, or its directors, officers, employees or
agents of any rule or regulation promulgated under the 1933 Act applicable to
the Company or its directors, officers, employees or agents and relating to
action or inaction required of the Company or any of them in connection with
such registration; or (v) any failure to register or qualify the Registrable
Securities included in any such Registration Statement in any state where the
Company or its agents has affirmatively undertaken or agreed in writing that the
Company will undertake such registration or qualification on a Holder’s behalf
(the undertaking of any underwriter chosen by the Company being attributed to
the Company) and will reimburse such Holder, and each such officer, director or
member and each such controlling person for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
Company will not be liable in any such case if and to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
conformity with information furnished in writing by such Holder or any such
controlling person specifically for use in such Registration Statement or
Prospectus.
-7-
(b) Indemnification by the
Holders. In connection with any Registration Statement
pursuant to the terms of this Agreement, each Holder will furnish to the Company
in writing such information as the Company reasonably requests concerning such
Holder or the proposed manner of such Holder’s distribution for use in
connection with any Registration Statement or Prospectus and agrees, severally
but not jointly, to indemnify and hold harmless, to the fullest extent permitted
by law, the Company, its Subsidiaries and its and their respective directors,
officers, employees, shareholders and each person who controls the Company
(within the meaning of the 0000 Xxx) against any losses, claims, damages,
liabilities and expenses (including reasonable attorney fees) resulting from any
untrue statement of a material fact or any omission of a material fact required
to be stated in the Registration Statement or Prospectus or preliminary
prospectus or amendment or supplement thereto or necessary to make the
statements therein not misleading, to the extent, but only to the extent that
such untrue statement or omission is contained in any information furnished in
writing by such Holder to the Company specifically for inclusion in such
Registration Statement or Prospectus or amendment or supplement
thereto. In no event shall the liability of a Holder be greater in
amount than the aggregate dollar amount of the proceeds (net of all expenses
paid by such Holder and the amount of any damages such Holder has otherwise been
required to pay by reason of such untrue statement or omission) received by such
Holder upon the sale of the Registrable Securities included in the Registration
Statement giving rise to such indemnification obligation.
(c) Conduct of Indemnification
Proceedings. Any person entitled to indemnification hereunder
shall (i) give prompt notice to the indemnifying party of any claim with respect
to which it seeks indemnification and (ii) permit such indemnifying party to
assume the defense of such claim with counsel reasonably satisfactory to the
indemnified party; provided that any
person entitled to indemnification hereunder shall have the right to employ
separate counsel and to participate in the defense of such claim, but the fees
and expenses of such counsel shall be at the expense of such person unless (a)
the indemnifying party has agreed to pay such fees or expenses, or (b) the
indemnifying party shall have failed to assume the defense of such claim and
employ counsel reasonably satisfactory to such person or (c) in the reasonable
judgment of any such person, based upon advice of its counsel, a conflict of
interest exists between such person and the indemnifying party with respect to
such claims (in which case, if the person notifies the indemnifying party in
writing that such person elects to employ separate counsel at the expense of the
indemnifying party, the indemnifying party shall not have the right to assume
the defense of such claim on behalf of such person); and provided, further, that the
failure of any indemnified party to give notice as provided herein shall not
relieve the indemnifying party of its obligations hereunder, except to the
extent that such failure to give notice shall materially adversely affect the
indemnifying party in the defense of any such claim or litigation. It
is understood that the indemnifying party shall not, in connection with any
proceeding in the same jurisdiction, be liable for fees or expenses of more than
one separate firm of attorneys at any time for all such indemnified
parties. No indemnifying party will, except with the consent of the
indemnified party, consent to entry of any judgment or enter into any settlement
that 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 of such claim or litigation.
-8-
(d) Contribution. If
for any reason the indemnification provided for in the preceding paragraphs (a)
and (b) is unavailable to an indemnified party or insufficient to hold it
completely harmless, other than as expressly specified therein, then the
indemnifying party shall contribute to the amount paid or payable by the
indemnified party as a result of such loss, claim, damage or liability in such
proportion as is appropriate to reflect the relative fault of the indemnified
party and the indemnifying party, as well as any other relevant equitable
considerations. No person guilty of fraudulent misrepresentation
within the meaning of Section 11(f) of the 1933 Act shall be entitled to
contribution from any person not guilty of such fraudulent
misrepresentation. In no event shall the contribution obligation of a
Holder be greater in amount than the aggregate dollar amount of the proceeds
(net of all expenses paid by such holder and the amount of any damages such
Holder has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission) received by it upon the sale
of the Registrable Securities giving rise to such contribution
obligation.
7. Miscellaneous.
(a) Amendments and
Waivers. This Agreement shall not be amended except by a
writing signed by (i) the Company and (ii) Purdue. The Company may
take any action herein prohibited, or omit to perform any act herein required to
be performed by it, only if the Company shall have obtained the written consent
to such amendment, action or omission to act, of Purdue.
(b) Notices. All
notices and other communications provided for or permitted hereunder shall be
made as set forth in the Securities Purchase Agreement.
(c) Assignments and Transfers by
Holders. The provisions of this Agreement shall be binding
upon and inure to the benefit of the Holders and their respective successors and
assigns. A Holder may transfer or assign, in whole or in part, to one
or more persons and Associated Companies its rights hereunder in connection with
the transfer of Registrable Securities by such Holder to such person, provided, that, such Holder
complies with all applicable laws thereto and provides written notice of
assignment to the Company promptly after such assignment is
effected.
(d) Assignments and Transfers by
the Company. This Agreement shall not be assigned by the
Company without the prior written consent of each Holder, except that without
the prior written consent of the Holders, but after notice duly given, the
Company shall assign its rights and delegate its duties hereunder to any
successor-in-interest corporation, and such successor-in-interest shall assume
such rights and duties, in the event of a merger or consolidation of the Company
with or into another corporation or the sale of all or substantially all of the
Company’s assets.
-9-
(e) Benefits of the
Agreement. The terms and conditions of this Agreement shall
inure to the benefit of and be binding upon the respective permitted successors
and assigns of the Parties. Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the Parties hereto or
their respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
(f) Counterparts;
Faxes. 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. This Agreement
may also be executed via facsimile, which shall be deemed an
original.
(g) 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.
(h) Severability. Any
provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof but shall be interpreted as if it were written so as to be
enforceable to the maximum extent permitted by applicable law, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. To the
extent permitted by applicable law, the Parties hereby waive any provision of
law which renders any provisions hereof prohibited or unenforceable in any
respect.
(i) Further
Assurances. The Parties shall execute and deliver all such
further instruments and documents and take all such other actions as may
reasonably be required to carry out the transactions contemplated hereby and to
evidence the fulfillment of the agreements herein contained.
(j) Entire
Agreement. This Agreement is intended by the Parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the Parties hereto in respect of
the subject matter contained herein. This Agreement supersedes all
prior agreements and understandings between the Parties with respect to such
subject matter.
-10-
(k) Governing Law; Consent to
Jurisdiction. This Agreement shall be governed by, and
construed in accordance with, the internal laws of the State of New York without
regard to the choice of law principles thereof. Each of the Parties
hereto irrevocably submits to the exclusive jurisdiction of the courts of the
State of New York located in New York County and the United States District
Court for the Southern District of New York for the purpose of any suit, action,
proceeding or judgment relating to or arising out of this Agreement and the
transactions contemplated hereby. Service of process in connection
with any such suit, action or proceeding may be served on each Party hereto
anywhere in the world by the same methods as are specified for the giving of
notices under this Agreement. Each of the Parties hereto irrevocably
consents to the jurisdiction of any such court in any such suit, action or
proceeding and to the laying of venue in such court. Each Party
hereto irrevocably waives any objection to the laying of venue of any such suit,
action or proceeding brought in such courts and irrevocably waives any claim
that any such suit, action or proceeding brought in any such court has been
brought in an inconvenient forum. THE COMPANY AND EACH OF THE HOLDERS
HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING RELATING TO OR ARISING OUT OF THIS AGREEMENT AND THE TRANSACTIONS
CONTEMPLATED HEREBY.
[Signature
Pages Follow]
-11-
Company
Signature Page to Registration Rights Agreement
IN
WITNESS WHEREOF, the Company has executed this Agreement or caused its duly
authorized officer to execute this Agreement as of the date first above
written.
| NOVELOS THERAPEUTICS, INC. | ||
| By: |
/s/
Xxxxx X. Xxxxxx
|
|
|
Name:
Xxxxx X. Xxxxxx
|
||
| Title: President and CEO | ||
-12-
Holder
Signature Page to Registration Rights Agreement
IN
WITNESS WHEREOF, the undersigned has executed this Registration Rights Agreement
or caused its duly authorized officers to execute this Registration Rights
Agreement as of the date first above written.
|
Purdue Pharma, L.P.
|
||
|
Name
of entity
|
||
|
By:
Purdue Pharma, Inc. ,
|
||
|
its
general partner
|
||
|
By:
|
/s/ Xxxx X. Xxxxxxx
|
|
|
Name: Xxxx
X. Xxxxxxx
|
||
|
Title: President,
Chief Executive Officer
|
||
|
Jurisdiction
of organization of entity
|
||
|
Address:
|
||
|
One
Stamford Forum
|
||
|
Xxxxxxxx,
XX 00000
|
||
-13-
Exhibit
A
Plan
of Distribution
The
selling stockholders, which as used herein includes donees, pledgees,
transferees or other successors-in-interest selling shares of common stock or
interests in shares of common stock received after the date of this prospectus
from a selling stockholder as a gift, pledge, partnership distribution or other
transfer, may, from time to time, sell, transfer or otherwise dispose of any or
all of their shares of common stock or interests in shares of common stock on
any stock exchange, market or trading facility on which the shares are traded or
in private transactions. These dispositions may be at fixed prices,
at prevailing market prices at the time of sale, at prices related to the
prevailing market price, at varying prices determined at the time of sale, or at
negotiated prices.
The
selling stockholders may use any one or more of the following methods when
disposing of shares or interests therein:
-
ordinary brokerage transactions and transactions in which the broker-dealer
solicits purchasers;
- block
trades in which the broker-dealer will attempt to sell the shares as agent, but
may position and resell a portion of the block as principal to facilitate the
transaction;
-
purchases by a broker-dealer as principal and resale by the broker-dealer for
its account;
- an
exchange distribution in accordance with the rules of the applicable
exchange;
-
privately negotiated transactions;
- short
sales;
- through
the writing or settlement of options or other hedging transactions, whether
through an options exchange or otherwise;
-
broker-dealers may agree with the selling stockholders to sell a specified
number of such shares at a stipulated price per share;
- a
combination of any such methods of sale; and
- any
other method permitted pursuant to applicable law.
The
selling stockholders may, from time to time, pledge or grant a security interest
in some or all of the shares of common stock owned by them and, if they default
in the performance of their secured obligations, the pledgees or secured parties
may offer and sell the shares of common stock, from time to time, under this
prospectus, or under an amendment to this prospectus under Rule 424(b)(3) or
other applicable provision of the Securities Act amending the list of selling
stockholders to include the pledgee, transferee or other successors in interest
as selling stockholders under this prospectus. The selling
stockholders also may transfer the shares of common stock in other
circumstances, in which case the transferees, pledgees or other successors in
interest will be the selling beneficial owners for purposes of this
prospectus.
-14-
In
connection with the sale of our common stock or interests therein, the selling
stockholders may enter into hedging transactions with broker-dealers or other
financial institutions, which may in turn engage in short sales of the common
stock in the course of hedging the positions they assume. The selling
stockholders may also sell shares of our common stock short and deliver these
securities to close out their short positions, or loan or pledge the common
stock to broker-dealers that in turn may sell these securities. The
selling stockholders may also enter into option or other transactions with
broker-dealers or other financial institutions or the creation of one or more
derivative securities which require the delivery to such broker-dealer or other
financial institution of shares offered by this prospectus, which shares such
broker-dealer or other financial institution may resell pursuant to this
prospectus (as supplemented or amended to reflect such
transaction).
The
aggregate proceeds to the selling stockholders from the sale of the common stock
offered by them will be the purchase price of the common stock less discounts or
commissions, if any. Each of the selling stockholders reserves the
right to accept and, together with their agents from time to time, to reject, in
whole or in part, any proposed purchase of common stock to be made directly or
through agents. We will not receive any of the proceeds from this
offering. Upon any exercise of the warrants by payment of cash, however, we will
receive the exercise price of the warrants.
The
selling stockholders also may resell all or a portion of the shares in open
market transactions in reliance upon Rule 144 under the Securities Act of 1933,
provided that they meet the criteria and conform to the requirements of that
rule.
The
selling stockholders and any underwriters, broker-dealers or agents that
participate in the sale of the common stock or interests therein may be
"underwriters" within the meaning of Section 2(11) of the Securities
Act. Any discounts, commissions, concessions or profit they earn on
any resale of the shares may be underwriting discounts and commissions under the
Securities Act. Selling stockholders who are "underwriters" within
the meaning of Section 2(11) of the Securities Act will be subject to the
prospectus delivery requirements of the Securities Act.
To the
extent required, the shares of our common stock to be sold, the names of the
selling stockholders, the respective purchase prices and public offering prices,
the names of any agents, dealer or underwriter, any applicable commissions or
discounts with respect to a particular offer will be set forth in an
accompanying prospectus supplement or, if appropriate, a post-effective
amendment to the registration statement that includes this
prospectus.
In order
to comply with the securities laws of some states, if applicable, the common
stock may be sold in these jurisdictions only through registered or licensed
brokers or dealers. In addition, in some states the common stock may
not be sold unless it has been registered or qualified for sale or an exemption
from registration or qualification requirements is available and is complied
with.
-15-
We have
advised the selling stockholders that the anti-manipulation rules of Regulation
M under the Exchange Act may apply to sales of shares in the market and to the
activities of the selling stockholders and their affiliates. In
addition, we will make copies of this prospectus (as it may be supplemented or
amended from time to time) available to the selling stockholders for the purpose
of satisfying the prospectus delivery requirements of the Securities
Act. The selling stockholders may indemnify any broker-dealer that
participates in transactions involving the sale of the shares against certain
liabilities, including liabilities arising under the Securities
Act.
We have
agreed to indemnify the selling stockholders against liabilities, including
liabilities under the Securities Act and state securities laws, relating to the
registration of the shares offered by this prospectus.
We have
agreed with the selling stockholders to keep the registration statement of which
this prospectus constitutes a part effective until the earlier of (1) such time
as all of the shares covered by this prospectus have been disposed of pursuant
to and in accordance with the registration statement or (2) two years from the
Closing Date.
-16-
Exhibit
B
Selling
Stockholder Questionnaire
|
|
c/o
Foley Xxxx LLP
|
|
|
000
Xxxxxxx Xxxxxxxxx
|
|
|
Xxxxxx,
XX 00000
|
|
|
Attention: Xxxxxxx
Xxxxxx, Esq.
|
|
|
Facsimile:
(000) 000-0000
|
Reference
is made to the Registration Rights Agreement (the “Agreement”), made between
Novelos Therapeutics, Inc., a Delaware corporation (the “Company”), and the
Holders noted therein.
Pursuant
to Section 6(a) of the Agreement, the undersigned hereby furnishes to the
Company the following information for use by the Company in connection with the
preparation of the Registration Statement.
(1) Name
and Contact Information:
|
Full
legal name of record holder:
|
|
|
|
Address
of record holder:
|
|
|
|
|
||
|
Social
Security Number or Taxpayer identification number of record
holder:
|
|
|
|
Identity
of beneficial owner (if different
than record holder):
|
|
|
|
Name
of contact person:
|
|
|
|
Telephone
number of contact person:
|
|
|
|
Fax
number of contact person:
|
|
|
|
E-mail
address of contact person:
|
|
|
-17-
|
|
(2)
|
Beneficial Ownership of
Registrable Securities:
|
|
|
(a)
|
Number
of Registrable Securities owned by Selling
Stockholder:
|
|
|
(b)
|
Number
of Registrable Securities requested to be
registered:
|
|
|
(3)
|
Beneficial
Ownership of Other Securities of the Company Owned by the Selling
Stockholder:
|
Except as
set forth below in this Item (3), the undersigned is not the beneficial or
registered owner of any securities of the Company other than the Registrable
Securities listed above in Item (2)(a).
Type and
amount of other securities beneficially owned by the Selling
Stockholder:
(4) Relationships
with the Company:
Except as
set forth below, neither the undersigned nor any of its affiliates, officers,
directors or principal equity holders (5% or more) has held any position or
office or has had any other material relationship with the Company (or its
predecessors or affiliates) during the past three years.
State any
exceptions here:
(5) Plan
of Distribution:
Except as
set forth below, the undersigned intends to distribute pursuant to the
Registration Statement the Registrable Securities listed above in Item (2) in
accordance with the “Plan of Distribution” section set forth
therein:
State any
exceptions here:
-18-
(6) Selling
Stockholder Affiliations:
(a) Is
the Selling Stockholder a registered broker-dealer?
(b) Is
the Selling Stockholder an affiliate of a registered
broker-dealer(s)? (For purposes of this response, an “affiliate” of,
or person “affiliated” with, a specified person, is a person that directly, or
indirectly through one or more intermediaries, controls or is controlled by, or
is under common control with, the person specified.)
(c) If
the answer to Item (6)(b) is yes, identify the registered broker-dealer(s) and
describe the nature of the affiliation(s):
(d) If
the answer to Item (6)(b) is yes, did the Selling Stockholder acquire the
Registrable Securities in the ordinary course of business (if not, please
explain)?
(e) If
the answer to Item (6)(b) is yes, did the Selling Stockholder, at the time of
purchase of the Registrable Securities, have any agreements, plans or
understandings, directly or indirectly, with any person to distribute the
Registrable Securities (if yes, please explain)?
(7) Voting
or Investment Control over the Registrable Securities:
If the
Selling Stockholder is not a natural person, please identify the natural person
or persons who have voting or investment control over the Registrable Securities
listed in Item (2) above:
-19-
Pursuant
to Section 3(c) of the Agreement, the undersigned acknowledges that the Company
may, by notice to the Holder at its last known address, suspend or withdraw the
Registration Statement and require that the undersigned immediately cease sales
of Registrable Securities pursuant to the Registration Statement under certain
circumstances described in the Agreement. At any time that such
notice has been given, the undersigned may not sell Registrable Securities
pursuant to the Registration Statement.
The
undersigned hereby agrees to sell such shares only pursuant to and in the manner
contemplated by the Registration Statement, including the Plan of Distribution
section contained therein (in substantially the form attached hereto as Exhibit
A), or pursuant to an exemption from the registration requirements under the
Securities Act. The undersigned hereby further acknowledges that
pursuant to Section 7(b) of the Agreement, the undersigned shall indemnify the
Company and each of its directors and officers against, and hold the Company and
each of its directors and officers harmless from, any losses, claims, damages,
expenses or liabilities (including reasonable attorneys fees) to which the
Company or its directors and officers may become subject by reason of any
statement or omission in the Registration Statement made in reliance upon, or in
conformity with, a written statement by the undersigned, including the
information furnished in this Questionnaire by the undersigned.
By
signing below, the undersigned consents to the disclosure of the information
contained herein in its answers to Items (1) through (7) above and the inclusion
of such information in the Registration Statement, any amendments thereto and
the related prospectus. The undersigned understands that such
information will be relied upon by the Company in connection with the
preparation or amendment of the Registration Statement and the related
prospectus.
The
undersigned has reviewed the answers to the above questions and affirms that the
same are true, complete and accurate. THE UNDERSIGNED AGREES TO
NOTIFY THE COMPANY IMMEDIATELY OF ANY MATERIAL CHANGES IN THE FOREGOING
INFORMATION.
|
Dated:
|
|
,
2009
|
|
|
|
|
||
|
Signature
of Record Holder
|
|||
|
(Please
sign your name in exactly the same manner as the certificate(s) for the
shares being registered)
|
|||
-20-
