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EXHIBIT 4.12
$ 3.25 CONVERTIBLE EXCHANGEABLE PREFERRED STOCK
REGISTRATION RIGHTS AGREEMENT
Dated as of March 4, 1998
by and among
ALKERMES, INC.,
as the Company,
and
BANCAMERICA XXXXXXXXX XXXXXXXX
NATIONSBANC XXXXXXXXXX SECURITIES LLC
XXXXX & COMPANY
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
X.X. XXXXXX SECURITIES INC.
PAINEWEBBER INCORPORATED
and
XXXXX XXXXXX INC.,
as Purchasers
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This Registration Rights Agreement is made and entered into as of March
4, 1998, by and among Alkermes, Inc., a Pennsylvania corporation (the
"Company"), and BancAmerica Xxxxxxxxx Xxxxxxxx, NationsBanc Xxxxxxxxxx
Securities LLC, Xxxxx & Company, Credit Suisse First Boston Corporation, Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, X.X. Xxxxxx Securities Inc.,
PaineWebber Incorporated, and Xxxxx Xxxxxx Inc. (the "Purchasers") who have
purchased or have the right to purchase up to 2,300,000 shares of $3.25
Convertible Exchangeable Preferred Stock (the "Preferred Stock") of the Company
pursuant to the Purchase Agreement (as such term is defined below).
This Agreement is made pursuant to the Purchase Agreement, dated
February 27, 1998, among the Company and the Purchasers (the "Purchase
Agreement"). In order to induce the Purchasers to enter into the Purchase
Agreement, the Company has agreed to provide the registration rights provided
for in this Agreement to the Purchasers and their respective direct and indirect
transferees (i) for the benefit of the Purchasers, (ii) for the benefit of the
holders from time to time of the Preferred Stock (including the Purchasers), the
holders from time to time of the Common Stock issuable or issued upon conversion
of the Preferred Stock and the Debentures, and the holders from time to time of
the Debentures issuable or issued upon exchange of the Preferred Stock, and
(iii) for the benefit of the securities constituting the Transfer Restricted
Securities. The execution of this Agreement is a condition to the closing of the
transactions contemplated by the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions. As used in this Agreement, the following terms
shall have the following meanings:
Act: As defined in this Section 1.
Additional Interest: As defined in Section 2.3 of the Indenture.
Advice: As defined in the last paragraph of Section 2(d) hereof.
Affiliate: An affiliate of any specified person shall mean any
other person directly or indirectly controlling or controlled by or under direct
or indirect common control with such specified person. For the purposes of this
definition, "control," when used with respect to any person, means the power to
direct the management and policies of such person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise and
the terms "affiliated," "controlling" and "controlled" have meanings correlative
to the foregoing.
Agreement: This Registration Rights Agreement, as the same may be
amended, supplemented or modified from time to time in accordance with the terms
hereof.
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Business Day: Each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions in New York, New York are
authorized or obligated by law or executive order to close.
Preferred Stock Statement. The Statement with Respect to Shares
filed with the Secretary of State of the Commonwealth of Pennsylvania setting
forth the rights, preferences and limitations of the Preferred Stock.
Closing Date: March 4, 1998.
Common Stock: Common Stock, $.01 par value per share, of the
Company and any other shares of common stock as may constitute "Common Stock"
for purposes of the Preferred Stock Statement or the Indenture, in each case, as
issuable or issued upon conversion of the shares of Preferred Stock or the
Debentures.
Company: Alkermes, Inc., a Pennsylvania corporation, and any
successor corporation thereto.
controlling person: As defined in Section 6(a) hereof.
Damages Payment Date: Each of the quarterly dividend payment
dates provided in the Preferred Stock Statement.
Debentures. The Company's 6 1/2% Convertible Subordinated
Debentures issuable at the rate of $50 principal amount of Debentures for each
share of Preferred Stock.
Effectiveness Period: As defined in Section 2(a) hereof.
Effectiveness Target Date: The 120th day following the Closing
Date.
Exchange Act: The Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated by the SEC thereunder.
Filing Date: The 60th day after the Closing Date.
Holder: Each owner of any Transfer Restricted Securities.
Indemnified Person: As defined in Section 6(a) hereof.
Indenture: The Indenture, dated as of the date hereof, between
the Company and the Trustee, pursuant to which the Debentures are to be issued,
as the same may be amended, modified or supplemented from time to time in
accordance with the terms thereof.
Liquidated Damages: As defined in Section 3(a) hereof.
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Purchasers: As defined in the first paragraph hereof.
Proceeding: An action, claim, suit or proceeding (including,
without limitation, an investigation or partial proceeding, such as a
deposition), whether commenced or threatened.
Prospectus: The prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed in reliance upon Rule 430A), as
amended or supplemented by any prospectus supplement, with respect to the resale
of any of the Transfer Restricted Securities covered by such Registration
Statement, and all other amendments and supplements to any such prospectus,
including post-effective amendments, and all materials incorporated by reference
or deemed to be incorporated by reference, if any, in such prospectus.
Purchase Agreement: As defined in the second paragraph hereof.
Record Holder: (i) with respect to any Damages Payment Date
relating to any share of Preferred Stock as to which any such Liquidated Damages
have accrued, the registered Holder of such share of Preferred Stock on the
record date with respect to the dividend payment date under the Preferred Stock
Statement on which such Damages Payment Date shall occur, (ii) with respect to
any Damages Payment Date relating to any shares of Common Stock as to which any
such Liquidated Damages have accrued, the registered Holder of such shares 15
days prior to the next succeeding Damages Payment Date; and (iii) with respect
to any Damages Payment Date relating to any Debentures as to which any such
Liquidated Damages have accrued, the registered Holder of such Debentures 15
days prior to the next succeeding Damages Payment Date.
Registration Default: As defined in Section 3(a) hereof.
Registration Statement: Any registration statement of the Company
filed with the SEC pursuant to the Securities Act that covers the resale of any
of the Transfer Restricted Securities pursuant to the provisions of this
Agreement, including the Prospectus, amendments and supplements to such
registration statement or Prospectus, including pre- and post-effective
amendments, all exhibits thereto, and all material incorporated by reference or
deemed to be incorporated by reference, if any, in such registration statement.
Requisite Information: As defined in Section 2(c) hereof.
Rule 144: Rule 144 promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time, or any successor
rule or regulation.
Rule 144A: Rule 144A promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time, or any successor
rule or regulation.
Rule 158: Rule 158 promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time, or any successor
rule or regulation.
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Rule 415: Rule 415 promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time, or any successor
rule or regulation.
Rule 424: Rule 424 promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time, or any successor
rule or regulation.
Rule 430A: Rule 430A promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time, or any successor
rule or regulation.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended, and the
rules and regulations promulgated by the SEC thereunder.
Shelf Registration Statement: As defined in Section 2(a) hereof.
Special Counsel: The special counsel to the Holders as more fully
described in Section 5(b).
TIA: The Trust Indenture Act of 1939, as amended, and the rules
and regulations promulgated by the SEC thereunder.
Transfer Restricted Securities: The Preferred Stock, the shares
of Common Stock into which such shares of Preferred Stock or the Debentures are
converted or convertible (including any shares of Common Stock issued or
issuable thereon upon any stock split, stock combination, stock dividend or the
like), upon original issuance thereof and at all times subsequent thereto, and
the Debentures into which such shares of Preferred Stock are exchanged or
exchangeable, upon original issuance thereof and at all times subsequent
thereto, and associated related rights, if any, until, in the case of any such
shares of Preferred Stock, Common Stock or Debentures (and associated rights)
(i) the date on which the resale thereof has been effectively registered under
the Securities Act and disposed of in accordance with the Registration Statement
relating thereto, (ii) the date on which such security has been distributed to
the public pursuant to Rule 144 or is saleable pursuant to paragraph (k) of Rule
144 or (iii) the date on which it ceases to be outstanding, whichever date is
earliest.
Transfer Agent. The registrar and transfer agent for the
Company's Preferred Stock and Common Stock, as the case may be.
Trustee: The trustee under the Indenture.
Underwritten registration or underwritten offering: A
registration in connection with which securities of the Company are sold to an
underwriter for reoffering to the public pursuant to an effective Registration
Statement.
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References herein to the term "Holders of a majority in interest
of Transfer Restricted Securities" or words to a similar effect shall mean, with
respect to any request, notice, demand, objection or other action by the Holders
hereunder or pursuant hereto (each, an "Act"), registered Holders of a number of
shares of then-outstanding Common Stock constituting Transfer Restricted
Securities and an aggregate amount of then outstanding Preferred Stock or
Debentures, as the case may be, constituting Transfer Restricted Securities,
such that the sum of such shares of Common Stock and the shares of Common Stock
issuable upon conversion of such Preferred Stock or Debentures, as the case may
be, constitutes in excess of 50% of the sum of all of the then-outstanding
shares of Common Stock constituting Transfer Restricted Securities and the
number of shares of Common Stock issuable upon conversion of then- outstanding
Preferred Stock or Debentures, as the case may be, constituting Transfer
Restricted Securities. For purposes of the preceding sentence, Transfer
Restricted Securities owned, directly or indirectly, by the Company or its
Affiliates shall be deemed not to be outstanding.
2. Shelf Registration Statement.
(a) The Company agrees to file with the SEC as soon as reasonably
practicable after the Closing Date, but in no event later than the Filing Date,
a Registration Statement for an offering to be made on a continuous basis
pursuant to Rule 415 covering all of the Transfer Restricted Securities or
separate Registration Statements for an offering to be made on a continuous
basis pursuant to Rule 415 covering all of the Preferred Stock constituting
Transfer Restricted Securities and all of the Common Stock constituting Transfer
Restricted Securities, respectively (such Registration Statement or Statements,
collectively, the "Shelf Registration Statement"). Each Shelf Registration
Statement shall be on Form S-3 under the Securities Act or another appropriate
form selected by the Company permitting registration of such Transfer Restricted
Securities for resale by the Holders in the manner or manners reasonably
designated by Holders of a majority in interest of Transfer Restricted
Securities being sold (including, without limitation, up to three underwritten
offerings). The Company shall not permit any securities other than the Transfer
Restricted Securities to be included in any Shelf Registration Statement (except
in the case of any underwritten offering of Common Stock which constitutes
Transfer Restricted Securities, the Company shall be entitled to permit shares
of Common Stock held by ALZA Corporation in compliance with registration rights
granted to ALZA Corporation by the Company). The Company shall use all
reasonable efforts to cause each Shelf Registration Statement to be declared
effective pursuant to the Securities Act as soon as reasonably practicable
following the filing thereof and to keep each Shelf Registration Statement
continuously effective under the Securities Act for two years after the date on
which all of the shares of Preferred Stock are sold (including those sold
pursuant to the over-allotment option granted to the Purchasers in the Purchase
Agreement) to the Purchasers (subject to extensions pursuant to Sections 2(d)
and 2(e) hereof) (the "Effectiveness Period"), or such shorter period ending
when there cease to be any Transfer Restricted Securities outstanding.
(b) Supplements and Amendments. The Company shall use all
reasonable efforts to keep each Shelf Registration Statement continuously
effective by supplementing and amending the Shelf Registration Statement if
required by the rules, regulations or instructions applicable to the
registration form used for such Shelf Registration Statement, if required by the
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Securities Act or if reasonably requested by the Holders of a majority in
interest of the Transfer Restricted Securities or by any underwriter of such
Transfer Restricted Securities; provided, however, that the Effectiveness Period
shall be extended as provided in Sections 2(d) and 2(e) hereof.
(c) Selling Securityholder Information. Each Holder shall furnish
to the Company such information regarding the distribution of its Transfer
Restricted Securities as is required by law to be disclosed in the applicable
Registration Statement (the "Requisite Information") prior to effecting any sale
pursuant to such Registration Statement.
The Company shall file, within two Business Days after the
receipt of notice from any Holder which includes the Requisite Information with
respect to such Holder, a Prospectus supplement pursuant to Rule 424 or
otherwise amend or supplement such Registration Statement to include in the
Prospectus the Requisite Information as to such Holder (and the Transfer
Restricted Securities held by such Holder), and the Company shall provide such
Holder and the Special Counsel within two Business Days after receipt of such
notice with a copy of such Prospectus as so amended or supplemented containing
the Requisite Information in order to permit such Holder to comply with the
Prospectus delivery requirements of the Securities Act in a timely manner with
respect to any proposed disposition of such Holder's Transfer Restricted
Securities; provided, however, that notwithstanding the requirements of Section
4(a) hereof, the Company shall not be required to provide any Holder with a copy
of such Prospectus as so amended or supplemented solely to contain the Requisite
Information in advance of filing the same with the SEC.
If any such Registration Statement refers to any Holder by name
or otherwise as the holder of any securities of the Company, then such Holder
shall have the right to require, in the event that such reference to such Holder
by name or otherwise is not required by the Securities Act or any similar
Federal statute then in force, the deletion of the reference to such Holder in
such Registration Statement at any time subsequent to the time that such
reference ceases to be required.
(d) Certain Notices; Suspension of Sales. Each Holder agrees by
acquisition of such Transfer Restricted Securities that, upon receipt of any
notice from the Company of the happening of any event of the kind described in
Section 4(c)(ii), 4(c)(iii), 4(c)(v) or 4(c)(vi) hereof, such Holder will
forthwith discontinue disposition of such Transfer Restricted Securities covered
by such Registration Statement and Prospectus (other than in transactions exempt
from the registration requirements under the Securities Act) until such Holder's
receipt of the copies of the supplemented or amended Prospectus contemplated by
Sections 4(c)(i) and 4(k) hereof, or until it is advised in writing (the
"Advice") by the Company that the use of the applicable Prospectus may be
resumed, and, in either case, has received copies of any additional or
supplemental filings that are incorporated or deemed to be incorporated by
reference in such Prospectus. If the Company shall give any such notice, the
Effectiveness Period shall be extended by the number of days during such period
from and including the date of the giving of such notice to and including the
date when each Holder shall have received (x) the copies of the supplemented or
amended Prospectus contemplated by Sections 4(c)(i) and 4(k) hereof or (y) the
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Advice, and, in either case, has received copies of any additional or
supplemental filings that are incorporated or deemed to be incorporated by
reference in such Prospectus.
(e) Material Events; Suspension of Sales. Notwithstanding the
provisions contained in this Section 2, in the event that, in the judgment of
the Company's Board of Directors, it is advisable to suspend use of the
Prospectus due to pending corporate developments, public filings with the SEC or
similar events, the Company shall promptly deliver a written certificate to each
registered Holder, the Special Counsel and the managing underwriters, if any, to
the effect that the use of the Prospectus is to be suspended until the Company
shall deliver a written notice that the use of the Prospectus may be resumed.
Thereafter, the use of the Prospectus shall be suspended, and the Company shall
not be required to maintain the effectiveness of, or amend or update the Shelf
Registration Statement, or amend or supplement the Prospectus; provided,
however, that the Company shall only be permitted to suspend the use of the
Prospectus for a period not to exceed 30 days in any six-month period or two
periods not to exceed an aggregate of 60 days in any 12-month period. The
Company will use its best efforts to ensure that the use of the Prospectus may
be resumed as soon as, in the judgment of the Company's Board of Directors,
disclosure of the material relating to such pending development, filing or event
would not have a materially adverse effect on the Company. If the Company shall
give any such suspension notice pursuant to this Section 2(e), the Effectiveness
Period shall be extended by the number of days during such period from and
including the date of giving such notice to and including the date when each
Holder shall have received notice that use of the Prospectus may be resumed.
3. Liquidated Damages and Additional Interest.
(a) The Company and the Purchasers agree that the Holders will
suffer damages if the Company fails to fulfill its obligations pursuant to
Section 2 hereof and that it would not be possible to ascertain the extent of
such damages. Accordingly, the Company hereby agrees to pay liquidated damages
("Liquidated Damages") or Additional Interest to each Holder under the
circumstances and to the extent set forth below:
(i) if the Shelf Registration Statement has not been
filed with the SEC on or prior to the Filing Date; or
(ii) if each Shelf Registration Statement is not
declared effective by the SEC on or prior to the applicable
Effectiveness Target Date; or
(iii) any Shelf Registration Statement ceases to be
effective or usable at any time during the Effectiveness
Period (without being succeeded on the same day immediately by
a post-effective amendment or supplement to such Registration
Statement that cures such failure and that is itself, in the
case of post-effective amendment, immediately declared
effective) for a period of time which shall exceed 90 days in
the aggregate in any period of 365 consecutive days; (any of
the foregoing, a "Registration Default").
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In the event of a Registration Default, the Company will pay Additional
Interest on Debentures constituting Transfer Restricted Securities pursuant to
the terms of the Indenture, and will pay Liquidated Damages to each holder of
Preferred Stock and/or Common Stock issued upon conversion of the Preferred
Stock or Debentures, as the case may be, that are Transfer Restricted
Securities, during the first 90-day period immediately following the occurrence
of such Registration Default in an amount equal to an additional one-quarter of
one percent (0.25%) of the liquidation amount and, if applicable, on an
equivalent basis per share (subject to adjustment in the event of stock splits,
stock recombinations, stock dividends and the like) of Common Stock constituting
Transfer Restricted Securities held by such holder. The rate of accrual of the
Liquidated Damages will increase to one-half of one percent (0.50%) of the
liquidation amount and, if applicable, by an equivalent amount per week per
share (subject to adjustment as set forth above) of Common Stock constituting
Transfer Restricted Securities for each subsequent 90-day period until the
applicable Registration Statement is filed, the applicable Registration
Statement is declared effective and becomes available for effecting sales of
securities, or the Shelf Registration Statement again becomes effective and
becomes available for effecting sales of securities, as the case may be, up to a
maximum amount of liquidated damages of 1.25% of the liquidation amount or if
applicable, an equivalent amount per week per share (subject to adjustment as
set forth above) of Common Stock constituting Restricted Securities. Following
the cure of a Registration Default, Liquidated Damages will cease to accrue with
respect to such Registration Default (without in any way limiting the effect of
any subsequent Registration Default). All accrued Liquidated Damages shall be
paid to the holders of Preferred Stock and/or shares of Common Stock (as
applicable), (i) in the case of the Preferred Stock, in the manner as dividend
payments on the Preferred Stock on dividend payment dates and, (ii) in the case
of Common Stock, (a) if such Common Stock was issued upon conversion of
Preferred Stock, in the manner as dividend payments on Preferred Stock on
dividend payment dates and, (b) if such Common Stock was issued upon conversion
of Debentures, in the manner as interest payments on the Debentures on
semiannual payment dates which correspond to interest payment dates for the
Debentures. The parties hereto hereby agree and acknowledge that the percentage
amounts of Additional Interest payable to holders of Debentures upon a
Registration Default pursuant to the Indenture shall be equivalent to the
percentage amounts set forth above in this Section 3(a) with respect to
Liquidated Damages payable to holders of Preferred Stock and Common Stock.
(b) The Company shall notify the Transfer Agent or the
Trustee, as the case may be, within one Business Day after each and every date
on which a Registration Default occurs. Liquidated Damages shall be paid by the
Company to the Record Holders of Preferred Stock and/or Common Stock, as the
case may be, on each Damages Payment Date by wire transfer of immediately
available funds to the accounts specified by them or by mailing checks to their
registered addresses as they appear in the register of the Company for the
Preferred Stock and Common Stock,, if no such accounts have been specified on or
before the Damages Payment Date; and Additional Interest shall be paid by the
Company to the Record Holders of Debentures on each semi-annual interest payment
date together with interest to be paid on the Debentures pursuant to the terms
of the Indenture (the "Additional Interest Payment Date"), by
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wire transfer of immediately available funds to the accounts specified by them
or by mailing checks to their registered addresses as they appear in the
Debenture register (as defined in the Indenture) if no such accounts have been
specified on or before the Additional Interest Payment Date; provided, however,
that any Liquidated Damages or Additional Interest, as the case may be, accrued
with respect to any shares of Preferred Stock or Debentures or portion thereof
called for redemption on a redemption date, repurchased on a repurchase date, or
converted into shares of Common Stock on a conversion date prior to the Damages
Payment Date or Additional Interest Payment Date, as the case may be, shall, in
any such event, be paid instead to the Holder who submitted such shares of
Preferred Stock or Debentures or portion thereof for redemption, repurchase or
conversion on the applicable redemption date, repurchase date or conversion
date, as the case may be, on such date. In no event shall the Company be
required to pay Liquidated Damages or Additional Interest in excess of the
applicable maximum amount set forth above or in the Indenture, as the case may
be, regardless of whether one or multiple Registration Defaults shall exist.
(c) All of the Company's obligations set forth in this Section
3 which are unsatisfied to any extent with respect to any Transfer Restricted
Securities at the time such security ceases to be a Transfer Restricted Security
shall survive until such time as all such obligations with respect to such
security have been satisfied in full (notwithstanding the earlier termination of
this Agreement).
4. Registration Procedures. In connection with the Company's
registration obligations hereunder, the Company shall effect such registrations
on the appropriate form selected by the Company to permit the resale of Transfer
Restricted Securities in accordance with the intended method or methods of
disposition thereof, and pursuant thereto the Company shall as expeditiously as
reasonably possible:
(a) No fewer than five Business Days prior to the initial
filing of a Registration Statement or Prospectus and no fewer than two Business
Days prior to the filing of any amendment or supplement thereto (excluding,
unless requested, any document that would be incorporated or deemed to be
incorporated therein by reference and then only to the Holder who so requested),
furnish to the registered (as of the most recent reasonably practicable date
which shall not be more than two Business Days prior to the date such document
is personally delivered, delivered to a next-day courier, deposited in the mail
or telecopied, as the case may be) Holders, Special Counsel and the managing
underwriters, if any, copies of all such documents proposed to be filed
(excluding, unless requested, those incorporated or deemed to be incorporated by
reference and then only to the Holder who so requested) and cause the officers
and directors of the Company, counsel to the Company and independent certified
public accountants to the Company to respond to such inquiries as shall be
necessary in connection with such Registration Statement, in the opinion of
Special Counsel and counsel to such underwriters, to conduct a reasonable
investigation within the meaning of the Securities Act. The Company shall not
file any such Registration Statement or related Prospectus or any amendments or
supplements thereto (excluding any document that would be incorporated or deemed
incorporated by reference) to which the Holders of a majority in interest of the
Transfer
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Restricted Securities, Special Counsel, or the managing underwriters, if any,
shall reasonably object on a timely basis;
(b) Prepare and file with the SEC such amendments, including
post-effective amendments, to each Registration Statement as may be necessary to
keep such Registration Statement continuously effective for the applicable time
period set forth in Section 2(a) hereof; cause the related Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 under the Securities Act and the Exchange Act with
respect to the disposition of all securities covered by such Registration
Statement during such period in accordance with the intended method or methods
of disposition by the Holder set forth in such Registration Statement as so
amended or in such Prospectus as so supplemented (including, without limitation,
the filing of any Prospectus supplement pursuant to Rule 424 in order to add or
change any selling security holder information (including any such supplements
or amendments pursuant to Section 2(c) hereof, provided such Holder to which
such change applies complies with the Requisite Information requirements of
Section 2(c) hereof));
(c) Notify the registered (as of the most recent reasonably
practicable date which shall not be more than two Business Days prior to the
date such notice is personally delivered, delivered to a next-day courier,
deposited in the mail or telecopied, as the case may be) Holders, Special
Counsel and the managing underwriters, if any, promptly (and in the case of an
event specified by clause (i)(A) of this paragraph in no event fewer than two
Business Days prior to such filing), and (if requested by any such person),
confirm such notice in writing, (i)(A) when a Prospectus or any Prospectus
supplement or post-effective amendment is proposed to be filed, and, (B) with
respect to a Registration Statement or any post-effective amendment, when the
same has become effective, (ii) of any request of the SEC or any other Federal
or state governmental authority for amendments or supplements to such
Registration Statement or related Prospectus or for additional information
related thereto, (iii) of the issuance by the SEC, any state securities
commission, any other governmental agency or any court of any stop order, order
or injunction suspending or enjoining the use or the effectiveness of the
Registration Statement or the initiation of any proceedings for that purpose,
(iv) if at any time any of the representations and warranties of the Company
contained in any agreement (including any underwriting agreement) contemplated
by Section 4(m) hereof are not true and correct in all material respects, (v) of
the receipt by the Company of any notification with respect to the suspension of
the qualification or exemption from qualification of any of the Transfer
Restricted Securities for sale in any jurisdiction, or the initiation or
threatening of any proceeding for such purpose, and (vi) of the existence of any
fact and the happening of any event that makes any statement made in such
Registration Statement or related Prospectus untrue in any material respect, or
that requires the making of any changes in such Registration Statement or
Prospectus so that in the case of the Registration Statement, it will not
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 and that, in the case of the Prospectus, such Prospectus will not
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;
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(d) Use all reasonable efforts to avoid the issuance of, or,
if issued, obtain the withdrawal of any stop order or order enjoining or
suspending the use or effectiveness of a Registration Statement or the lifting
of any suspension of the qualification (or exemption from qualification) of any
of the Transfer Restricted Securities for sale in any jurisdiction, at the
earliest practicable moment;
(e) If requested by the Special Counsel, the managing
underwriters, if any, or the Holders of a majority in interest of the Transfer
Restricted Securities being sold in connection with such offering, (i) promptly
include in a Prospectus supplement or post-effective amendment such information
as the Special Counsel, the managing underwriters, if any, and such Holders
agree should, in their reasonable judgment, be included therein, and (ii) make
all required filings of such Prospectus supplement or such post-effective
amendment as soon as reasonably practicable after the Company has received
notification of the matters to be included in such Prospectus supplement or
post-effective amendment; provided, however, that the Company shall not be
required to take any action pursuant to this Section 4(e) that, in the opinion
of counsel for the Company, would violate applicable law;
(f) Furnish to each Holder who so requests, Special Counsel
and each managing underwriter, if any, without charge, at least one conformed
copy of each Registration Statement and each amendment thereto, including
financial statements (but excluding schedules, all documents incorporated or
deemed to be incorporated therein by reference and all exhibits, unless
requested in writing by such Holder, Special Counsel or managing underwriter);
(g) Deliver to each Holder, the Special Counsel, and the
underwriters, if any, without charge, as many copies of the Prospectus or
Prospectuses (including each form of Prospectus) and each amendment or
supplement thereto as such persons may reasonably request; and, unless the
Company shall have given notice to such Holder pursuant to Section 4(c)(vi), the
Company hereby consents to the use of such Prospectus and each amendment or
supplement thereto by each of the selling Holders of Transfer Restricted
Securities and the underwriters, if any, in connection with the offering and
sale of the Transfer Restricted Securities covered by such Prospectus and any
amendment or supplement thereto, provided, however, that no Holder shall be
entitled to use the Prospectus unless and until such Holder shall have furnished
to the Company any and all Requisite Information pursuant to Section 2(c)
hereof;
(h) Use all reasonable efforts to register or qualify, or
cooperate with the Holders of Transfer Restricted Securities to be sold or
tendered for, the underwriters, if any, and their respective counsel in
connection with the registration or qualification (or exemption from such
registration or qualification) of, such Transfer Restricted Securities for offer
and sale under the securities or Blue Sky laws of such jurisdictions within the
United States as any Holder or underwriter reasonably requests in writing, keep
each such registration or qualification (or exemption therefrom) effective
during the period such Registration Statement is required to be kept effective
and do any and all other acts or things necessary legally to enable the
disposition in such jurisdictions of the Transfer Restricted Securities covered
by the applicable Registration Statement; provided, however, that the Company
shall not be required to qualify generally to do business in any jurisdiction
where it is not then so qualified, take any action that would subject it
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to general service of process in any such jurisdiction where it is not then so
subject or subject the Company to any tax in any such jurisdiction where it is
not then so subject;
(i) In connection with any sale or transfer of Transfer
Restricted Securities that will result in such securities no longer being
Transfer Restricted Securities, cooperate with the Holders and the managing
underwriters, if any, to (A) facilitate the timely preparation and delivery of
certificates representing Transfer Restricted Securities to be sold, which
certificates shall not bear any restrictive legends, shall bear a CUSIP number
different from the CUSIP number for the Transfer Restricted Securities and shall
be in a form eligible for deposit with The Depository Trust Company and (B)
enable such Transfer Restricted Securities to be in such denominations and
registered in such names as the managing underwriters, if any, or Holders may
reasonably request at least two Business Days prior to any sale of Transfer
Restricted Securities;
(j) Use all reasonable efforts to cause the offering of the
Transfer Restricted Securities covered by the Registration Statement to be
registered with or approved by such other governmental agencies or authorities
within the United States, except as may be required as a consequence of the
nature of a Holder's business, in which case the Company will cooperate in all
reasonable respects with the filing of such Registration Statement and the
granting of such approvals as may be reasonably necessary to enable the seller
or sellers thereof or the underwriters, if any, to consummate the disposition of
such Transfer Restricted Securities; provided, however, that the Company shall
not be required to register the Transfer Restricted Securities in any
jurisdiction that would require the Company to qualify to do business in any
jurisdiction where it is not then so qualified, subject it to general service of
process in any such jurisdiction where it is not then so subject or subject the
Company to any tax in any such jurisdiction where it is not then so subject or
to;
(k) Upon the occurrence of any event contemplated by Section
4(c)(vi) hereof, as promptly as reasonably practicable (subject to any
suspension of sales pursuant to Section 2(e) hereof), prepare a supplement or
amendment, including, if appropriate, a post-effective amendment, to each
Registration Statement or a supplement to the related Prospectus or any document
incorporated or deemed to be incorporated therein by reference, and file any
other required document so that, as thereafter delivered, such Prospectus will
not contain 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,
in light of the circumstances under which they were made, not misleading;
(l) Prior to the effective date of the first Registration
Statement relating to the Transfer Restricted Securities, to provide a CUSIP
number for the Transfer Restricted Securities to be sold pursuant to the
Registration Statement;
(m) Enter into such agreements (including an underwriting
agreement in form, scope and substance as are customary in underwritten
offerings) reasonably satisfactory to the Company and take all such other
reasonable actions in connection therewith (including those reasonably requested
by the managing underwriters, if any, or the Holders of a majority in
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interest of the Transfer Restricted Securities being sold) in order to expedite
or facilitate the sale of such Transfer Restricted Securities; provided,
however, that the Company is required to facilitate no more than three
underwritten offerings. In such connection, whether or not an underwriting
agreement is entered into and whether or not the registration is an underwritten
registration, (i) make such representations and warranties to the Holders of
such Transfer Restricted Securities and the underwriters, if any, with respect
to the business of the Company and its subsidiaries (including with respect to
businesses or assets acquired or to be acquired by any of them), and the
Registration Statement, Prospectus and documents, if any, incorporated or deemed
to be incorporated by reference therein, in each case, in form, substance and
scope as are customarily made by issuers to underwriters in underwritten
offerings and reasonably acceptable to the Company, and confirm the same if and
when requested; (ii) seek to obtain opinions of counsel to the Company and
updates thereof (which counsel and opinions (in form, scope and substance) shall
be reasonably satisfactory to the managing underwriters, if any, and Special
Counsel to the Holders of the Transfer Restricted Securities being sold,
addressed to each selling Holder of Transfer Restricted Securities and each of
the underwriters, if any, covering the matters customarily covered in opinions
requested in underwritten offerings (including any such matters as may be
reasonably requested by such Special Counsel and underwriters); (iii) use all
reasonable efforts to obtain customary "cold comfort" letters and updates
thereof from the independent certified public accountants of the Company (and,
if necessary, any other independent certified public accountants of any
subsidiary of the Company or of any business acquired by the Company for which
financial statements and financial data is, or is required to be, included in
the Registration Statement), addressed (where reasonably possible) to each
selling Holder of Transfer Restricted Securities and each of the underwriters,
if any, such letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with underwritten
offerings; (iv) if an underwriting agreement is entered into, the same shall
contain indemnification provisions and procedures no less favorable to the
selling Holders of Transfer Restricted Securities and the underwriters, if any,
than those set forth in Section 6 hereof (or such other provisions and
procedures acceptable to Holders of a majority in interest of the Transfer
Restricted Securities covered by such Registration Statement and the managing
underwriters); and (v) deliver such documents and certificates as may be
reasonably requested by the Holders of majority in interest of the Transfer
Restricted Securities being sold, their Special Counsel or the managing
underwriters, if any, to evidence the continued validity of the representations
and warranties made pursuant to clause (i) of this Section 4(m) and to evidence
compliance with any customary conditions contained in the underwriting agreement
or other agreement entered into by the Company;
(n) Make available for inspection by a representative of the
Holders of Transfer Restricted Securities being sold, any underwriter
participating in any such disposition of Transfer Restricted Securities, if any,
and any attorney, consultant or accountant retained by such selling Holders or
underwriter, at the offices where normally kept, during reasonable business
hours, all financial and other records, pertinent corporate documents and
properties of the Company and its subsidiaries as they may reasonably request,
and cause the officers, directors, agents and employees of the Company and its
subsidiaries to supply all information in each case reasonably requested by any
such representative, underwriter, attorney, consultant or accountant in
connection with such Registration Statement, provided, however, that such
persons shall first
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agree in writing with the Company that any information that is reasonably and in
good faith designated by the Company in writing as confidential at the time of
delivery or inspection (as the case may be) of such information shall be kept
confidential by such persons, unless (i) disclosure of such information is
required by court or administrative order or is necessary to respond to
inquiries of regulatory authorities, (ii) disclosure of such information is
required by law (including any disclosure requirements pursuant to Federal
securities laws in connection with the filing of any Registration Statement or
the use of any Prospectus), (iii) such information becomes generally available
to the public other than as a result of a disclosure or failure to safeguard by
any such person or (iv) such information becomes available to any such person
from a source other than the Company and such source is not bound by a
confidentiality agreement.
(o) Use all reasonable efforts to cause the Indenture to be
qualified under the TIA not later than the effective date of the first
Registration Statement relating to the Transfer Restricted Securities; and in
connection therewith, cooperate with the Trustee and the Holders of Preferred
Stock constituting Transfer Restricted Securities to effect such changes to the
Indenture, if any, as may be required for such Indenture to be so qualified in
accordance with the terms of the TIA; and execute, and use its best efforts to
cause the Trustee to execute, all customary documents as may be required to
effect such changes, and all other forms and documents (including Form T-1)
required to be filed with the SEC to enable the Indenture to be so qualified
under the TIA in a timely manner.
(p) Comply with applicable rules and regulations of the SEC
and make generally available to its security holders earning statements
satisfying the provisions of Section 11(a) of the Securities Act or Rule 158 (or
any similar rule promulgated under the Securities Act), no later than 45 days
after the end of any 12-month period (or 90 days after the end of any 12-month
period if such period is a fiscal year) (i) commencing at the end of any fiscal
quarter in which Transfer Restricted Securities are sold to underwriters in a
firm commitment or best efforts underwritten offering and (ii) if not sold to
underwriters in such an offering, commencing on the first day of the first
fiscal quarter after the effective date of a Registration Statement, which
statement shall cover said period, consistent with the requirements of Rule 158;
and
(q) (i) list all shares of Common Stock covered by all
Registration Statements on any securities exchange on which the Common Stock is
then listed or (ii) authorize for quotation on the SmallCap Market or the
National Market of the National Association of Securities Dealers Automated
Quotation System ("Nasdaq"), all Common Stock covered by such Registration
Statement if the Common Stock is then so authorized for quotation.
(r) use all reasonable efforts to (i) list all shares of
Preferred Stock covered by such Registration Statement on any securities
exchange on which the Common Stock is then listed or (ii) authorize for
quotation on the SmallCap Market or the National Market of Nasdaq all Preferred
Stock covered by such Registration Statement if the Common Stock is then so
authorized for quotation.
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5. Registration Expenses.
(a) All fees and expenses incident to the performance of or
compliance with this Agreement by the Company shall be borne by it whether or
not any Registration Statement is filed or becomes effective and whether or not
any securities are offered or sold pursuant to any Registration Statement. The
fees and expenses referred to in the foregoing sentence shall include, without
limitation, (i) all registration and filings fees (including, without
limitation, fees and expenses (A) with respect to filings required to be made
with the National Association of Securities Dealers, Inc. and (B) in compliance
with securities or Blue Sky laws (including, without limitation and in addition
to that provided for in (b) below, fees and disbursements of counsel for the
underwriters or the Special Counsel in connection with Blue Sky qualifications
of the Transfer Restricted Securities and determination of the eligibility of
the Transfer Restricted Securities for investment under the laws of such
jurisdictions as the managing underwriters, if any, or Holders of a majority in
interest of Transfer Restricted Securities, may designate)), (ii) printing
expenses (including, without limitation, expenses of printing certificates for
Transfer Restricted Securities in a form eligible for deposit with The
Depository Trust Company and of printing Prospectuses if the printing of
Prospectuses is required by the managing underwriters, if any, or by the Holders
of a majority in interest of the Transfer Restricted Securities included), (iii)
messenger, telephone and delivery expenses, (iv) fees and disbursements of
counsel for the Company and the Special Counsel (plus any local counsel deemed
appropriate by the Holders of a majority in interest of the Transfer Restricted
Securities) in accordance with the provisions of Section 5(b) hereof, (v) fees
and disbursements of all independent certified public accountants referred to in
Section 4(m)(iii) (including, without limitation, the expenses of any special
audit and "comfort" letters required by or incident to such performance), (vi)
Securities Act liability insurance, if the Company so desires such insurance,
and (vii) fees and expenses of all other persons retained by the Company. In
addition, the Company shall pay its internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), the expense of an annual audit and the fees and
expenses incurred in connection with the listing of the securities to be
registered on any securities exchange or the Nasdaq SmallCap Market or the
Nasdaq National Market. Notwithstanding anything in this Agreement to the
contrary, each Holder shall pay all underwriting discounts and brokerage
commissions with respect to any Transfer Restricted Securities sold by it.
(b) In connection with any registration hereunder, the Company
shall reimburse the Holders of the Transfer Restricted Securities being
registered or tendered for in such registration for the fees and disbursements
of not more than one firm of attorneys representing the selling Holders (in
addition to any local counsel), which firm shall be chosen by the Holders of a
majority in interest of the Transfer Restricted Securities. Xxxxx, Xxxxxxx &
Xxxxxxxxx, LLP shall be Special Counsel for all purposes hereof unless and until
another Special Counsel shall have been selected by a majority in interests of
the Transfer Restricted Securities and notice hereof shall have been given to
the Company.
6. Indemnification
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(a) The Company agrees to indemnify and hold harmless (i) each
of the Purchasers, (ii) each Holder, (iii) each person, if any, who controls
(within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act) any of the foregoing (any of the persons referred to in this
clause (iii) being hereinafter referred to as a "controlling person"), and (iv)
the respective officers, directors, partners, employees, representatives and
agents of the Purchasers, the Holders (including predecessor Holders), or any
controlling person (any person referred to in clause (i), (ii), (iii) or (iv)
may hereinafter be referred to as an "Indemnified Person"), from and against any
and all losses, claims, damages, liabilities, expenses and judgments caused by
any untrue statement or alleged untrue statement of a material fact contained in
any Registration Statement or Prospectus or in any amendment or supplement
thereto or in any preliminary Prospectus, or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein (in the case of any Prospectus or
supplement thereto, in light of the circumstances under which they were made)
not misleading, except insofar as such losses, claims, damages, liabilities,
expenses or judgments are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to any
Indemnified Person furnished to the Company by or on behalf of such Indemnified
Person expressly for use therein; provided, however, that the foregoing
indemnity with respect to any preliminary Prospectus shall not inure to the
benefit of any Indemnified Person from whom the person asserting such losses,
claims, damages, liabilities, expenses and judgments purchased securities if
such untrue statement or omission or alleged untrue statement or omission made
in such preliminary Prospectus is eliminated or remedied in the Prospectus and a
copy of the Prospectus shall not have been furnished to such person in a timely
manner due to the wrongful action or wrongful inaction of such Indemnified
Person, whether as a result of negligence or otherwise.
(b) In case any action shall be brought against any
Indemnified Person, based upon any Registration Statement or any such Prospectus
or any amendment or supplement thereto and with respect to which indemnity may
be sought against the Company, such Indemnified Person shall promptly notify the
Company in writing and the Company shall assume the defense thereof, including
the employment of counsel reasonably satisfactory to such Indemnified Person and
payment of all fees and expenses. Any Indemnified Person shall have the right to
employ separate counsel in any such action and participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Person, unless (i) the employment of such counsel shall have
been specifically authorized in writing by the Company, (ii) the Company shall
have failed to assume the defense and employ counsel or (iii) such Indemnified
Person or Persons shall have been advised by counsel that there may be a
conflict between the positions of the indemnifying party or parties and of the
indemnified party or parties in conducting the defense of such action or
proceeding or that there may be legal defenses available to such Indemnified
Person or Persons different from or in addition to those available to the
indemnifying party or parties (in which case the Company shall not have the
right to assume the defense of such action on behalf of such Indemnified Person,
it being understood, however, that the Company shall not, in connection with any
one such action or separate but substantially similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances,
be liable for the fees and expenses of more than one separate firm of attorneys
(in addition to any local counsel) for all such Indemnified Persons, which firm
shall
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be designated in writing by such Indemnified Persons, and that all such fees and
expenses shall be reimbursed as they are incurred). The Company shall not be
liable for any settlement of any such action effected without its written
consent but if settled with the written consent of the Company, the Company
agrees to indemnify and hold harmless any Indemnified Person from and against
any loss or liability by reason of such settlement. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(c) In connection with any Registration Statement pursuant to
which any Holder (or predecessor Holder) sold or offered for resale Transfer
Restricted Securities, such Holder agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, officers, employees,
representatives and agents and any person controlling the Company within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
to the same extent as the foregoing indemnity from the Company to each
Indemnified Person but only with reference to information relating to such
Indemnified Person furnished by or on behalf of such Indemnified Person
expressly for use in such Registration Statement. In case any action shall be
brought against the Company, any of its directors, officers, employees,
representatives and agents or any person controlling the Company based on such
Registration Statement and in respect of which indemnity may be sought against
any Indemnified Person, the Indemnified Person shall have the rights and duties
given to the Company (except that if the Company shall have assumed the defense
thereof, such Indemnified Person shall not be required to do so, but may employ
separate counsel therein and participate in defense thereof but the fees and
expenses of such counsel shall be at the expense of such Indemnified Person),
and the Company, its directors, officers, employees, representatives and agents
and any person controlling the Company shall have the rights and duties given to
the Indemnified Person by Section 6(b) hereof.
(d) If the indemnification provided for in this Section 6 is
unavailable to an indemnified party in respect of any losses, claims, damages,
liabilities, expenses or judgments 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, liabilities, expenses and judgments (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and each Indemnified Person on the other hand pursuant to the Purchase
Agreement or from the offering for resale of the Transfer Restricted Securities
or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company and each such indemnified person in connection with the statements
or omissions which resulted in such losses, claims, damages, liabilities,
expenses or judgments, as well as any other relevant equitable considerations.
The relative fault of the Company and each such indemnified person 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
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by the Company or such Indemnified Person and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company, the Holders and the Purchasers agree that it
would not be just and equitable if contribution pursuant to this Section 6(d)
were determined by pro rata allocation (even if the Indemnified Person were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an indemnified
party as a result of the losses, claims, damages, liabilities, expenses or
judgments referred to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 6, no Indemnified Person shall be required to contribute any amount in
excess of the amount by which the total net profit received by it in connection
with the sale of the Transfer Restricted Securities pursuant to this Agreement
exceeds the amount of any damages which such Indemnified Person has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Indemnified Persons' obligations to contribute pursuant
to this Section 6(d) are several in proportion to the respective amount of
Transfer Restricted Securities included in and sold pursuant to any such
Registration Statement by each Indemnified Person and not joint.
7. Rules 144 and 144A
The Company shall file the reports required to be filed by it
under the Securities Act and the Exchange Act in a timely manner and, if at any
time it is not required to file such reports but in the past had been required
to or did file such reports, it will, upon the request of any Holder, make
available other information as required by, and so long as necessary to permit
sales of, its Transfer Restricted Securities pursuant to Rule 144 and Rule 144A.
Notwithstanding the foregoing, nothing in this Section 7 shall be deemed to
require the Company to register any of its securities pursuant to the Exchange
Act.
8. Underwritten Registrations
If any of the Transfer Restricted Securities covered by any
Shelf Registration Statement are to be sold in an underwritten offering, the
investment banker or investment bankers and manager or managers that will
administer the offering will be investment bankers of recognized national
standing selected by the Holders of a majority in interest of such Transfer
Restricted Securities included in such offering, subject to the consent of the
Company (which will not be unreasonably withheld or delayed).
No person may participate in any underwritten registration
hereunder unless such person (i) agrees to sell such person's Transfer
Restricted Securities on the basis reasonably provided in any underwriting
arrangements approved by the persons entitled hereunder to
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approve such arrangements and (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements, lock-up agreements and
other documents reasonably required under the terms of such underwriting
arrangements.
9. Miscellaneous
(e) Remedies. In the event of a breach by the Company or by a
Holder of any of their respective obligations under this Agreement, each Holder
or the Company, in addition to being entitled to exercise all rights granted by
law, including, without limitation, recovery of damages, will be entitled to
specific performance of its rights under this Agreement. The Company and each
Holder agree that monetary damages would not be adequate compensation for any
loss incurred by reason of a breach by it of any of the provisions of this
Agreement and hereby further agree that, in the event of any action for specific
performance in respect of such breach, they shall waive the defense that a
remedy at law would be adequate. This Section 9(a) shall not apply to any breach
for which Liquidated Damages have been specifically provided hereunder.
(f) No Inconsistent Agreements. The Company shall not enter
into any agreement with respect to its securities that is inconsistent with the
rights granted to the Holders in this Agreement or otherwise conflicts with the
provisions hereof. The Company is not currently a party to any agreement
granting any registration rights with respect to any of its securities to any
person which conflicts with the Company's obligations hereunder or gives any
other party the right to include any securities in any Registration Statement
filed pursuant hereto, except for such rights and conflicts as have been
irrevocably waived. Without limiting the generality of the foregoing, without
the written consent of the Holders of a majority in interest of the Transfer
Restricted Securities, the Company shall not grant to any person the right to
request it to register any of its securities under the Securities Act unless the
rights so granted are subject in all respect to the prior rights of the Holders
set forth herein, and are not otherwise in conflict or inconsistent with the
provisions of this Agreement.
(g) No Adverse Action Affecting the Transfer Restricted
Securities. The Company will not take any action with respect to the Transfer
Restricted Securities which would adversely affect the ability of any of the
Holders to include such Transfer Restricted Securities in a registration
undertaken pursuant to this Agreement.
(h) No Piggyback on Registrations. After the date hereof, the
Company shall not grant to any of its security holders (other than the Holders
in such capacity) the right to include any of its securities in any Shelf
Registration Statement.
(i) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof,
may not be given, without the written consent of the Holders of a majority in
interest of the Transfer Restricted Securities; provided, however, that, for the
purposes of this Agreement, Transfer Restricted Securities that are owned,
directly or indirectly, by either the Company or an Affiliate of the Company are
not deemed outstanding.
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Notwithstanding the foregoing, a waiver or consent to depart from the provisions
hereof with respect to a matter that relates exclusively to the rights of
Holders whose Transfer Restricted Securities are being sold pursuant to an
underwritten offering and that does not directly or indirectly affect the rights
of other Holders may be given by Holders of a majority in interest of the
Transfer Restricted Securities being sold by such Holders pursuant to such an
underwritten offering; provided, however, that the provisions of this sentence
may not be amended, modified, or supplemented except in accordance with the
provisions of the immediately preceding sentence.
(j) Notices. All notices and other communications provided for
herein shall be made in writing by hand-delivery, next day air courier,
certified first-class mail, return receipt requested or telecopy provided a copy
of any such telecopy is immediately followed up by next day courier:
(i) if to a Holder, to the address of such
Holder as it appears in the Preferred Stock,
Common Stock or Debenture register of the
Company, as applicable;
(ii) if to the Company, to:
Alkermes, Inc.
00 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn.: Chief Financial Officer
Telecopy No.: (000) 000-0000
(iii) if to the Special Counsel, to:
Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP
High Street Tower
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxx, Esq.
Telecopy No.: (000) 000-0000
or such other Special Counsel at such other
address and telecopy number as a majority in
interest of the Transfer Restricted
Securities shall have given notice to the
Company as contemplated by Section 5(b)
hereof.
Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given, when delivered by hand,
if personally delivered; one Business Day after being timely delivered to a
next-day air courier, five Business Days after being deposited in the mail,
postage prepaid, if mailed; and when receipt is acknowledged by the
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recipient's telecopier machine, if telecopied; provided a copy of such telecopy
is immediately followed up by next day courier.
(k) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and permitted assigns of each of
the parties and shall inure to the benefit of each existing and future Holder.
The Company may not assign its rights or obligations hereunder without the prior
written consent of the Holders of a majority in interest of the Transfer
Restricted Securities, other than by operation of law pursuant to a merger or
consolidation to which the Company is a party. In the event the Preferred Stock
constituting Transfer Restricted Securities become convertible into common stock
of another person pursuant to the Preferred Stock Statement or the Indenture,
the Company shall cause such person to assume the Company's obligations
hereunder.
(l) Counterparts. This Agreement may be executed in any number
of counterparts by the parties hereto, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one
and the same instrument.
(m) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.
(n) Severability. The remedies provided herein are cumulative
and not exclusive of any remedies provided by law. If any term, provision,
covenant or restriction of this Agreement is held by a court of competent
jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions set forth herein shall remain in
full force and effect and shall in no way be affected, impaired or invalidated,
and the parties hereto shall use their best efforts to find and employ an
alternative means to achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction. It is hereby
stipulated and declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and restrictions without
including any of such that may be hereafter declared invalid, illegal, void or
unenforceable.
(o) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof. All references made in this Agreement to "Section" and
"paragraph" refer to such Section or paragraph of this Agreement, unless
expressly stated otherwise.
(p) Attorneys' Fees. In any action or proceeding brought to
enforce any provision of this Agreement, or where any provision hereof is
validly asserted as a defense, the prevailing party, as determined by the court,
shall be entitled to recover its reasonable attorneys' fees in addition to any
other available remedy.
IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be duly executed as of the date first written above.
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ALKERMES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxx
----------------------------
Title: Senior Vice President, CFO
& Treasurer
---------------------------
The foregoing Registration
Rights Agreement is hereby
confirmed and agreed to as
of the date first written
above:
BANCAMERICA XXXXXXXXX XXXXXXXX
NATIONSBANC XXXXXXXXXX SECURITIES LLC
XXXXX & COMPANY
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
X.X. XXXXXX SECURITIES INC.
PAINEWEBBER INCORPORATED
XXXXX XXXXXX INC.
By: BANCAMERICA XXXXXXXXX XXXXXXXX
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
----------------------------
Authorized Signatory
Acting on behalf of itself and the other
Purchasers
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