EXHIBIT 9
Execution Copy
RIBOZYME PHARMACEUTICALS, INC.
REGISTRATION RIGHTS AGREEMENT
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THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made as of
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January 7th, 2000 by and between Ribozyme Pharmaceuticals, Inc., a Delaware
corporation (the "Company"), and Elan International Services, Ltd., a Bermuda
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exempted limited liability company ("EIS").
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R E C I T A L S:
A. Pursuant to a Securities Purchase Agreement dated as of the date
hereof by and between the Company and EIS (the "Purchase Agreement"), EIS has
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acquired, or may acquire in the future, certain shares of common stock, par
value $.01, of the Company (the "Common Stock"), certain shares of Series A
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Convertible Exchangeable Preferred Stock par value $.01, of the Company (the
"Series A Preferred Stock"), a convertible promissory note (the "Note"), certain
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shares of Series B Convertible Preferred Stock of the Company par value $.01,
(the "Series B Preferred Stock"), and warrants to acquire shares of Common Stock
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(the "Warrants"; together with the Series A Preferred Stock, the Note and Series
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B Preferred Stock, the "Securities"), which Securities are convertible or
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exercisable into or for shares of Common Stock.
B. The execution of the Purchase Agreement has occurred on the date
hereof and it is a condition to the closing of the transactions contemplated
thereby that the parties execute and deliver this Agreement.
C. The parties desire to set forth herein their agreement as to the
terms and conditions related to the granting of certain registration rights to
the Holders (as defined below) relating to the Common Stock held by such Holders
and the Common Stock underlying the Securities.
A G R E E M E N T:
The parties hereto agree as follows:
1. Certain Definitions. As used in this Agreement, the following
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terms shall have the following respective meanings:
"Commission" shall mean the U.S. Securities and Exchange Commission.
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"Exchange Act" shall mean the Securities Exchange Act of 1934, as
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amended, and the rules and regulations of the Commission thereunder, all as the
same shall be in effect from time to time.
"Holders" or "Holders of Registrable Securities" shall mean EIS and
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any Person who shall have acquired Registrable Securities from EIS as permitted
herein, either individually or jointly, as the case may be, in a transaction
pursuant to which registration rights are transferred pursuant to Section 10
hereof.
"Person" shall mean an individual, a partnership, a company, an
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association, a joint stock company, a trust, a joint venture, an unincorporated
organization and a governmental or quasi-governmental entity, or any department,
agency or political subdivision thereof.
"Registrable Securities" means (i) any shares of Common Stock
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purchased pursuant to the Purchase Agreement, (ii) any shares of Common Stock
issued or issuable upon conversion or exercise of any of the Securities, (iii)
any Common Stock held or acquired by Persons having registration rights as to
such Common Stock as of the date hereof, (iv) the Common Stock into which the
Company's Series L Preferred Stock is convertible, (v) any Common Stock issued
or issuable in respect of the securities referred to in clauses (i) through (iv)
above upon any stock split, stock dividend, recapitalization or similar event;
excluding in all cases, however, any Registrable Securities that have been sold
under Rule 144 promulgated under the Securities Act, and Registrable Securities
sold by a Person in a transaction (including a transaction pursuant to a
registration statement under this Agreement and a transaction pursuant to Rule
144 under the Securities Act) in which registration rights are not transferred
pursuant to Section 10 hereof.
The terms "register," "registered" and "registration" refer to a
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registration effected by preparing and filing a registration statement in
compliance with the Securities Act.
"Registration Expenses" shall mean all expenses, other than Selling
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Expenses, incurred by the Company in complying with Sections 2 or 3 hereof,
including without limitation, all registration, qualification and filing fees,
exchange listing fees, printing expenses, escrow fees, fees and disbursements of
counsel for the Company, blue sky fees and expenses, and the expense of any
special audits incident to or required by any such registration.
"Securities Act" shall mean the Securities Act of 1933, as amended.
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"Selling Expenses" shall mean all underwriting discounts, selling
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commissions and stock transfer taxes applicable to the securities registered by
the Holders and the costs and fees of any accountants, attorneys or other
experts retained by the Holders or Holder.
2. Demand Registration.
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(a) Requests for Registration In the event that the Company receives
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from the Holder(s) a written request that the Company file a registration
statement on Form S-1 or S-3 (or any successor form to Form S-3), or any other
short-form registration statement, for a public
offering of Registrable Securities (a "Demand Registration"), the reasonably
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anticipated aggregate price to the public of which, net of underwriting
discounts and commissions, would be at least $5,000,000, within 10 days after
receipt of any such request, the Company will give written notice of such
requested registration to all other Holders of Registrable Securities. The
Company shall include such other Holders' Registrable Securities in such
offering if they have responded affirmatively within 10 days after the receipt
of the Company's notice. The Holders in aggregate will be entitled to request
one Demand Registration hereunder. A registration will not count as a Demand
Registration until it has become effective (unless such Demand Registration has
not become effective due solely to the fault of the Holders requesting such
registration, including a request by such Holders that such registration be
withdrawn).
(b) Priority on Demand Registration. If a Demand Registration is an
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underwritten offering and the managing underwriters advise the Company in
writing that in their opinion the number of Registrable Securities requested to
be included in such offering exceeds the number of Registrable Securities that
can be sold in such offering without adversely affecting the marketability of
the offering, the Company will include in such registration (x) first such
number of Registrable Securities allocated pro rata among the Holders thereof
and the other Persons holding Registrable Securities based upon the number of
Registrable Securities owned by each such Holder and other Persons holding
Registrable Securities requested to be included in such offering and (y) then
any other shares of Common Stock proposed to be sold by the Company or other
Persons. No securities other than Registrable Securities hereunder shall be
included in such Demand Registration without the prior written consent of
Holders who collectively hold Registrable Securities representing at least 50%
of the Registrable Securities then outstanding.
(c) Restrictions on Demand Registration. The Company may postpone the
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filing or the effectiveness of a registration statement for a Demand
Registration one time for up to 90 days if the Company determines in good faith
that such Demand Registration would reasonably be expected to have a material
adverse effect on any proposal or plan by the Company to engage in any
financing, acquisition or disposition of assets (other than in the ordinary
course of business) or any merger, consolidation, tender offer or similar
transaction or would require disclosure of any information that the board of
directors of the Company determines in good faith the disclosure of which would
be detrimental to the Company; provided, that in such event, the Holders
initially requesting such Demand Registration will be entitled to withdraw such
request and, if such request is withdrawn, such Demand Registration will not
count as a permitted Demand Registration hereunder and the Company will pay any
Registration Expenses in connection with such registration.
(d) Selection of Underwriters. The Holders will have the right to
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select the investment banker(s) and manager(s) to administer an offering
pursuant to the Demand Registration, subject to any existing agreements of the
Company and to the Company's prior written approval, which will not be
unreasonably withheld or delayed.
(e) Other Registration Rights. Except as provided in this Agreement,
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so long as any Holder owns any Registrable Securities, the Company will not
grant to any Persons the right to request the Company to register any equity
securities of the Company, or any securities convertible or exchangeable into or
exercisable for such securities, which conflicts with the rights granted to the
Holders hereunder, without the prior written consent of the Holders of at least
50% of the Registrable Securities.
3. Piggyback Registrations. (a) Right to Piggyback. At any time
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that the Company shall propose to register Common Stock under the Securities Act
(other than in a registration on Form S-3 relating to sales of securities to
participants in a Company dividend reinvestment plan, S-4 or S-8 or any
successor form or in connection with an acquisition or exchange offer or an
offering of securities solely to the existing shareholders or employees of the
Company), the Company shall give prompt written notice to all Holders of
Registrable Securities of its intention to effect such a registration and,
subject to Section 3(b) and the other terms of this Agreement, shall include in
such registration all Registrable Securities that are permitted under applicable
securities laws to be included in such registration and with respect to which
the Company has received written requests for inclusion therein by the Holders
within 20 days after the receipt of the Company's notice (each, a "Piggyback
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Registration"; together with a Demand Registration, a "Registration").
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(b) Priority on Piggyback Registrations. If a Piggyback Registration
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is an underwritten registration on behalf of the Company, and the managing
underwriters advise the Company in writing that in their opinion the number of
securities requested to be included in such registration exceeds the number that
can be sold in such offering without adversely affecting the marketability of
the offering, the Company shall include in such registration, only as may be
permitted in the reasonable business judgment of the managing underwriters for
such registration:
(i) first, up to that number of securities the Company proposes
to sell;
(ii) second, up to that number of Registrable Securities
requested to be included in such registration by the Holders and by any
other Person, pro rata among the Holders of such Registrable Securities and
such other Persons, on the basis of the number of shares of Registrable
Securities of such Holders and other Persons requested to be included in
such offering; and
(iii) third, up to that number of other securities requested to
be included in such registration.
The Holders of any Registrable Securities included in such a registration shall
execute an underwriting agreement and customary accompanying documents in form
and substance satisfactory to the managing underwriters.
(c) Right to Terminate Registration. If, at any time after giving
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written notice
of its intention to register any of its securities as set forth in Section 3(a)
and prior to the effective date of the registration statement filed in
connection with such registration, the Company shall determine for any reason
not to register such securities, the Company may, at its election, give written
notice of such determination to each Holder of Registrable Securities and
thereupon be relieved of its obligation to register any Registrable Securities
in connection with such registration (but not from its obligation to pay the
Registration Expenses in connection therewith as provided herein).
(d) Selection of Underwriters. The Company shall have the right to
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select the investment banker(s) and manager(s) to administer an offering
pursuant to a Piggyback Registration and, subject to the approval of the holders
of a majority of the Registrable Securities which approval will not be
unreasonably withheld or delayed.
4. Expenses of Registration. Except as otherwise provided herein,
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all Registration Expenses incurred in connection with registrations pursuant to
Sections 2 and 3 shall be borne by the Company and all Selling Expenses relating
to securities registered on behalf of the Holders of Registrable Securities
shall be borne by such Holders.
5. Holdback Agreements.
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(a) The Company agrees (i) not to effect any public sale or
distribution of its equity securities, or any securities convertible into or
exchangeable or exercisable for such securities, for its own account during the
seven days prior to and during the 90-day period beginning on the effective date
of any underwritten Registration (except (A) as part of such underwritten
registration, (B) pursuant to registration statements on Form S-4 or Form S-8 or
any successor form, (C) pursuant to a registration statement then in effect or
(D) as required under any existing contractual obligation of the Company),
unless the underwriters managing the registered public offering otherwise agree,
and (ii) to cause its officers and directors and to use reasonable efforts to
cause each holder of at least 5% (on a fully-diluted basis) of its outstanding
Common Stock, or any securities convertible into or exchangeable or exercisable
for Common Stock, to agree not to effect any public sale or distribution
(including sales pursuant to Rule 144) of any such securities during such
periods (except as part of such underwritten registration, if otherwise
permitted), unless the underwriters managing the registered public offering
otherwise agree.
(b) Each Holder agrees, in the event of a public offering by the
Company of Common Stock under a registration statement on Form X-0, X-0 or S-4,
not to effect any offer, sale, distribution or transfer, including a sale
pursuant to Rule 144 (or any similar provision then effect) under the Securities
Act (except as part of such registration), beginning on the date of receipt of a
written notice from the Company setting forth its intention to effect such
registration and ending on the earlier of (i) 180 days from the date of receipt
of such written notice or (ii) 90 days from the effective date of such
Registration Statement; provided, that each of the Persons described in Section
5(a)(ii) shall also have agreed to such restriction on sale.
6. Registration Procedures. Whenever the Company is under the
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obligation to register Registrable Securities held by the Holders hereunder, the
Company will use all reasonable efforts to effect the Registration and the sale
of such Registrable Securities, and pursuant thereto the Company will as
expeditiously as possible:
(a) subject to Section 2(c) and 3(a) hereof, prepare and file with the
Commission a registration statement on any form for which the Company
qualifies with respect to such Registrable Securities and use all
reasonable efforts to cause such registration statement to become effective
(provided that before filing a registration statement or prospectus or any
amendments or supplements thereto, the Company will (i) furnish to the
counsel selected by the Holders copies of all such documents proposed to be
filed, which documents will be subject to the review of such counsel, and
(ii) notify each Holder of Registrable Securities covered by such
registration of any stop order issued or threatened by the Commission);
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective for a period equal to the shorter of (i) 120 days and
(ii) the time by which all securities covered by such registration
statement have been sold, and comply 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 sellers thereof set forth in such
registration statement;
(c) furnish to each seller of Registrable Securities such number of
copies of such registration statement, each amendment and supplement
thereto, the prospectus included in such registration statement (including
each preliminary prospectus) and such other documents as such seller may
reasonably request in order to facilitate the disposition of the
Registrable Securities owned by such seller;
(d) use all reasonable efforts to register or qualify such Registrable
Securities under the securities or blue sky laws of such jurisdictions as
any seller reasonably requests and do any and all other acts and things
which may be reasonably necessary or advisable to enable such seller to
consummate the disposition in such jurisdictions of the Registrable
Securities owned by such seller (provided that the Company will not be
required to (i) qualify generally to do business in any jurisdiction where
it would not otherwise be required to qualify but for this Section 6(d),
(ii) subject itself to taxation in any jurisdiction, or (iii) consent to
general service of process in any such jurisdiction);
(e) notify each seller of such Registrable Securities, at any time
when a prospectus relating thereto is required to be delivered under the
Securities Act, of the occurrence of any event as a result of which the
prospectus included in such registration
statement contains an untrue statement of a material fact or omits any fact
necessary to make the statements therein not misleading, and, at the
request of any such seller, the Company will prepare a supplement or
amendment to such prospectus so that, as thereafter delivered to the
purchasers of such Registrable Securities, such prospectus will not contain
an untrue statement of a material fact or omit to state any fact necessary
to make the statements therein not misleading; provided, however, that the
Company shall not be required to amend the registration statement or
supplement the Prospectus for a period of up to six months if the board of
directors of the Company determines in good faith that to do so would
reasonably be expected to have a material adverse effect on any proposal or
plan by the Company to engage in any financing, acquisition or disposition
of assets (other than in the ordinary course of business) or any merger,
consolidation, tender offer or similar transaction or would require the
disclosure of any information that the board of directors of the Company
determines in good faith the disclosure of which would be detrimental to
the Company, it being understood that the period for which the Company is
obligated to keep the Registration Statement effective shall be extended
for a number of days equal to the number of days the Company delays
amendments or supplements pursuant to this provision. Upon receipt of any
notice pursuant to this Section 6(e), the Holders shall suspend all offers
and sales of securities of the Company and all use of any prospectus until
advised by the Company that offers and sales may resume, and shall keep
confidential the fact and content of any notice given by the Company
pursuant to this Section 6(e);
(f) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are
then listed;
(g) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration
statement;
(h) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the
Holders of a majority of the Registrable Securities being sold or the
underwriters, if any, reasonably request in order to expedite or facilitate
the disposition of such Registrable Securities;
(i) make available for inspection by a representative of the Holders
of Registrable Securities included in the registration statement, any
underwriter participating in any disposition pursuant to such registration
statement and any attorney, accountant or other agent retained by any such
seller or underwriter, all pertinent financial and other records, pertinent
corporate documents and properties of the Company, and cause the Company's
officers, directors, employees and independent accountants to supply all
information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement;
(j) otherwise use its reasonable efforts to comply with all applicable
rules and regulations of the Commission, and make available to its security
holders, as soon as reasonably practicable, an earnings statement covering
the period of at least 12 months beginning with the first day of the
Company's first full calendar quarter after the effective date of the
registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(k) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the
qualification of any Common Stock included in such registration statement
for sale in any jurisdiction, use all reasonable efforts promptly to obtain
the withdrawal of such order; and
(l) if the registration is an underwritten offering, use all
reasonable efforts to obtain a so-called "cold comfort" letter from the
Company's independent public accountants in customary form and covering
such matters of the type customarily covered by cold comfort letters.
7. Obligations of Holders. Whenever the Holders of Registrable
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Securities sell any Registrable Securities pursuant to a Registration, such
Holders shall be obligated to comply with the applicable provisions of the
Securities Act, including the prospectus delivery requirements thereunder, and
any applicable state securities or blue sky laws.
8. Indemnification. (a) In connection with any registration
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statement for a Registration in which a Holder of Registrable Securities is
participating, the Company agrees to indemnify, to the fullest extent permitted
by applicable law, each such Holder of Registrable Securities, its officers and
directors and each Person who controls such Holder (within the meaning of the
Securities Act) against all losses, claims, damages, liabilities, expenses or
any amounts paid in settlement of any litigation, investigation or proceeding
commenced or threatened to which each such indemnified party may become subject
under the Securities Act, including without limitation, attorneys fees and
disbursements (collectively, "Claims") insofar as such Claim arose out of (i)
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any untrue or alleged untrue statement of material fact contained, on the
effective date thereof, in any such registration statement, prospectus or
preliminary prospectus or any amendment thereof or supplement thereto or (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,
except insofar as the same are caused by or contained in any information
furnished in writing to the Company by such Holder expressly for use therein, by
such Holder's failure to deliver a copy of the registration statement or
prospectus or any amendments or supplements thereto after the Company has
furnished such Holder with a sufficient number of copies of the same or by such
Holder's failure to comply with applicable securities laws. In connection with
an underwritten offering, the Company will indemnify the underwriters, their
officers and directors and each Person who controls the underwriters (within
the meaning of the Securities Act) to the same extent as provided above with
respect to the indemnification of the Holders of Registrable Securities.
(b) In connection with any registration statements for a Registration
in which a Holder of Registrable Securities is participating, each such Holder
will furnish to the Company in writing such customary information as the Company
reasonably requests for use in connection with any such registration statement
or prospectus (the "Seller's Information") and, to the fullest extent permitted
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by applicable law, will indemnify the Company, its directors and officers and
each Person who controls the Company (within the meaning of the Securities Act)
against any and all Claims to which each such indemnified party may become
subject under the Securities Act insofar as such Claim arose out of (i) any
untrue or alleged untrue statement of material fact contained, on the effective
date thereof, in any such registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto, (ii) any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements regarding Seller's Information therein not
misleading or (iii) any failure on the part of the Holder to comply with
applicable securities laws; provided, that with respect to a Claim arising
pursuant to clause (i) or (ii) above, the material misstatement or omission is
contained in such Seller's Information; provided, further, that the obligation
to indemnify will be individual to each Holder and will be limited to the amount
of proceeds received by such Holder from the sale of Registrable Securities
pursuant to such registration statement.
(c) Any Person entitled to indemnification hereunder will (i) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification (but the failure to provide such notice shall not
release the indemnifying party of its obligation under paragraphs (a) and (b),
unless and then only to the extent that, the indemnifying party has been
prejudiced by such failure to provide such notice) and (ii) unless in such
indemnified party's reasonable judgment, based on written advice of counsel, a
conflict of interest between such indemnified and indemnifying parties may exist
with respect to such claim, permit such indemnifying party to assume the defense
of such claim with counsel reasonably satisfactory to the indemnified party. An
indemnifying party who is not entitled to, or elects not to, assume the defense
of a claim will not be obligated to pay the fees and expenses of more than one
counsel for all parties indemnified by such indemnifying party with respect to
such claim, unless in the reasonable judgment of any indemnified party, based on
written advice of counsel, a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim.
(d) The indemnifying party shall not be liable to indemnify an
indemnified party for any settlement, or consent to judgment of any such action
effected without the indemnifying party's written consent (but such consent will
not be unreasonably withheld). Furthermore, the indemnifying party shall not,
except with the prior written approval of each indemnified party, consent to
entry of any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to each
indemnified
party of a release from all liability in respect of such claim or litigation
without any payment or consideration provided by each such indemnified party.
(e) If the indemnification provided for in this Section 8 is
unavailable to an indemnified party under clauses (a) and (b) above in respect
of any losses, claims, damages or liabilities referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities in such proportion as is
appropriate to reflect not only the relative benefits received by the Company
(if any), the underwriters, the sellers of Registrable Securities and any other
sellers participating in the registration statement from the sale of shares
pursuant to the registered offering of securities for which indemnity is sought
but also the relative fault of the Company, the underwriters, the sellers of
Registrable Securities and any other sellers participating in the registration
statement in connection with the statement or omission which resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company (if any), the
underwriters, the sellers of Registrable Securities and any other sellers
participating in the registration statement shall be deemed to be based on the
relative relationship of the total net proceeds from the offering (before
deducting expenses) to the Company (if any), the total underwriting commissions
and fees from the offering (before deducting expenses) to the underwriters and
the total net proceeds from the offering (before deducting expenses) to the
sellers of Registrable Securities and any other sellers participating in the
registration statement. The relative fault of the Company, the underwriters,
the sellers of Registrable Securities and any other sellers participating in the
registration statement shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the sellers of Registrable Securities and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(f) The indemnification provided for under this Agreement will remain
in full force and effect regardless of any investigation made by or on behalf of
the indemnified party or any officer, director or controlling person of such
indemnified party and will survive the transfer of the Registrable Securities.
9. Participation in Underwritten Registrations. No Holder may
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participate in any registration hereunder which is underwritten unless such
Holder (a) agrees to sell such Holder's securities on the basis provided in any
underwriting arrangements approved by the Holder or Holders entitled hereunder
to approve such arrangements, (b) as expeditiously as possible notifies the
Company of the occurrence of any event as a result of which any prospectus
contains an untrue statement of material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading and (c) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
10. Transfer of Registration Rights. The rights granted to any Holder
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under this Agreement may be assigned to any permitted transferee of Registrable
Securities, in connection with any transfer or assignment of Registrable
Securities by a Holder; provided, however, that: (a) such transfer is otherwise
effected in accordance with applicable securities laws, (b) if not already a
party hereto, the assignee or transferee agrees in writing prior to such
transfer to be bound by the provisions of this Agreement applicable to the
transferor, and (c) EIS shall act as agent and representative for such Holder
for the giving and receiving of notices hereunder.
11. Information by Holder. Each Holder shall furnish to the Company
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such written information regarding such Holder and any distribution proposed by
such Holder as the Company may reasonably request in writing and as shall be
reasonably required in connection with any registration, qualification or
compliance referred to in this Agreement and shall promptly notify the Company
of any changes in such information.
12. Exchange Act Compliance. The Company shall comply with all of
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the reporting requirements of the Exchange Act then applicable to it and shall
comply with all other public information reporting requirements of the
Commission which are conditions to the availability of Rule 144 for the sale of
the Registrable Securities. The Company shall cooperate with each Holder in
supplying such information as may be necessary for such Holder to complete and
file any information reporting forms presently or hereafter required by the
Commission as a condition to the availability of Rule 144.
13. Termination of Registration Rights. All registration rights
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granted under this Agreement shall terminate and be of no further force and
effect, as to any particular Holder, at such time as all Registrable Securities
held by such Holder have been sold under Rule 144 under the Securities Act.
14. Miscellaneous.
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(a) No Inconsistent Agreements. The Company will not hereafter enter
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into any agreement with respect to its securities which is inconsistent with or
violates the rights granted to the Holders of Registrable Securities in this
Agreement without the prior written consent of a majority in interest of such
Registrable Securities.
(b) Remedies. Any Person having rights under any provision of this
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Agreement will be entitled to enforce such rights specifically to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or other security) for specific performance and for other injunctive
relief in order to enforce or prevent violation of the provisions of this
Agreement; provided, however, that in no event
shall any Holder have the right to enjoin, delay or interfere with any offering
of securities by the Company.
(c) Amendments and Waivers. Except as otherwise provided herein, the
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provisions of this Agreement may be amended or waived only with the prior
written consent of the Company and Holders of at least 50% of the Registrable
Securities; provided that without the prior written consent of all the Holders,
no such amendment or waiver shall reduce the foregoing percentage required to
amend or waive any provision of this Agreement.
(d) Successors and Assigns. All covenants and agreements in this
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Agreement by or on behalf of any of the parties hereto will bind and inure to
the benefit of the respective successors and assigns of the parties hereto, and
shall inure to the benefit and be enforceable by each Holder of Registrable
Securities from time to time. In addition, whether or not any express
assignment has been made, the provisions of this Agreement which are for the
benefit of Holders of Registrable Securities are also for the benefit of, and
enforceable by, any permitted transferee of Registrable Securities in accordance
with Section 10 hereof.
(e) Severability. Whenever possible, each provision of this Agreement
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will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be prohibited by or
invalid under applicable law, such provision will be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
this Agreement.
(f) Counterparts. This Agreement may be executed simultaneously in
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two or more counterparts, any one of which need not contain the signatures of
more than one party, but all such counterparts taken together will constitute
one and the same Agreement.
(g) Descriptive Headings. The descriptive headings of this Agreement
--------------------
are inserted for convenience only and do not constitute a part of this
Agreement.
(h) Governing Law. All questions concerning the construction,
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validity and interpretation of this Agreement will be governed by the laws of
the State of Delaware without regard to principles of conflicts of laws.
(i) Notices. All notices, demands and requests of any kind to be
-------
delivered to any party in connection with this Agreement shall be in writing and
shall be deemed to have been duly given if personally delivered or if sent by
nationally-recognized overnight courier or by registered or certified airmail,
return receipt requested and postage prepaid or by facsimile transmission,
addressed as follows:
(i) if to the Company, to:
Ribozyme Pharmaceuticals, Inc.
0000 Xxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Chief Executive Officer
Facsimile: (000) 000-0000
with a copy to:
Rothgerber Xxxxxxx & Xxxxx LLC
0000 00/xx/ Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxx
Facsimile: (000) 000-0000
(ii) if to EIS, to:
Elan International Services, Ltd.
000 Xx. Xxxxx Xxxxx
Xxxxxx, Xxxxxx Xxxxxx
Xxxxxxx, XX 04
Facsimile: (000) 000-0000
Attention: President
with a copy to:
Xxxxx Xxxxxxxxxxx LLC
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxxx
(j) Entire Agreement. This Agreement constitutes the full and entire
----------------
understanding and agreement between the parties with regard to the subject
matter hereof and supersedes all prior agreements relating to such subject
matter.
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
RIBOZYME PHARMACEUTICALS, INC.
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxx
Title:VP. Coporate Development
ELAN INTERNATIONAL SERVICES, LTD.
By: _____________________________
Name:
Title:
