EXHIBIT 10.11
SIXTH AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
June 27, 1997
To the several persons named
at the foot hereof
Dear Sirs:
This will confirm that in consideration of the purchase by you
of (i) an aggregate 3,000,000 shares of Series A Convertible Preferred Stock,
par value $0.001 per share, ("Series A Preferred") of Trimeris, Inc., a Delaware
corporation (the "Company"), pursuant to the Preferred Stock Purchase Agreement
dated as of February 11, 1993 among the Company and you and (ii) an aggregate of
27,135,564 shares of Series B Convertible Preferred Stock, par value $0.001 per
share ("Series B Preferred"), of the Company pursuant to the Preferred Stock
Purchase Agreements dated as of July 17, 1995, August 16, 1995 and March 22,
1996 among the Company and you, (iii) an aggregate of 13,317,739 shares of
Series C Convertible Preferred Stock, par value $0.001 per share ("Series C
Preferred") of the Company pursuant to the Series C Preferred Stock Purchase
Agreements dated as of October 7, 1996, January 16, 1997 and March 27, 1997
among the Company and you, and (iv) an aggregate of up to 10,666,667 shares
of Series D Convertible Preferred Stock, par value $0.001 per share ("Series D
Preferred") pursuant to the Series D Convertible Preferred Stock Purchase
Agreement of even date herewith among the Company and you, as an inducement to
you to consummate the transactions contemplated by such purchase agreements, the
Company hereby covenants and agrees with each of you, and with each subsequent
holder of Restricted Stock (as such term is defined herein), as follows:
1. Certain Definitions. As used herein, the following terms
shall have the following respective meanings:
"Commission" shall mean the Securities and Exchange Commission,
or any other federal agency at the time administering the Securities Act.
"Common Stock" shall mean the Common Stock, par value $0.001 per
share of the Company, as constituted as of the date of this Agreement, subject
to adjustment pursuant to the provisions of Section 10 hereof.
"Conversion Shares" shall mean shares of Common Stock issued
upon conversion of the Series A Preferred, the Series B Preferred, the Series C
Preferred or the Series D Preferred.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, or any similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"Registration Expenses" shall mean the expenses so described in
Section 8 hereof.
"Restricted Stock" shall mean any shares of capital stock of the
Company, the certificates for which are required to bear the legend set forth in
Section 2 hereof.
"Securities Act" shall mean the Securities Act of 1933, as
amended, or any similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"Selling Expenses" shall mean the expenses so described in
Section 8 hereof.
2. Restrictive Legend. Each certificate representing the Series
A Preferred, Series B Preferred, Series C Preferred or Series D Preferred, each
certificate issued upon exchange or transfer of any Series A Preferred, Series B
Preferred, Series C Preferred or Series D Preferred, each certificate
representing Conversion Shares, and each certificate issued upon exchange or
transfer of any Conversion Shares other than in a public sale or as otherwise
permitted by the last paragraph of paragraph3 hereof shall be stamped or
otherwise imprinted with a legend substantially in the following form:
"THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE
SECURITIES LAWS, AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF UNLESS THEY HAVE BEEN REGISTERED UNDER THAT ACT AND
LAWS OR EXEMPTIONS FROM REGISTRATION (INCLUDING THE EXEMPTION
FROM REGISTRATION PROVIDED BY REGULATION S PROMULGATED UNDER
THAT ACT) ARE AVAILABLE."
3. Notice of Proposed Transfer. Prior to any proposed transfer
of any Restricted Stock (other than under the circumstances described in Section
4, 5 or 6 hereof), the holder thereof shall give written notice to the Company
of its intention to effect such transfer. Each such notice shall describe the
manner of the proposed transfer and, if requested by the Company, shall be
accompanied by an opinion of counsel reasonably satisfactory to the Company (it
being agreed that Reboul, MacMurray, Xxxxxx, Xxxxxxx & Kristol shall be
satisfactory) to the effect that the proposed transfer of the Restricted Stock
may be effected without registration under the Securities Act and any applicable
state securities laws, whereupon the holder of such Restricted Stock shall be
entitled to transfer such Restricted Stock in accordance with the terms of its
notice; provided, however, that no such opinion or other documentation shall be
required if such notice shall cover a distribution by any of you which is a
partnership to your respective partners. Each certificate of Restricted Stock
transferred as above
provided shall bear the legend set forth in Section2, unless (i)such transfer is
in accordance with the provisions of Rule 144 (or any other rule permitting
public sale without registration under the Securities Act) or (ii)the opinion of
counsel referred to above is to the further effect that the transferee and any
subsequent transferee (other than an affiliate of the Company) would be entitled
to transfer such securities in a public sale without registration under the
Securities Act.
The foregoing restrictions on transferability of Restricted
Stock shall terminate as to any particular shares of Restricted Stock when such
shares shall have been effectively registered under the Securities Act and sold
or otherwise disposed of in accordance with the intended method of disposition
by the seller or sellers thereof set forth in the registration statement
concerning such shares. Whenever a holder of Restricted Stock is able to
demonstrate to the Company (and its counsel) that the provisions of Rule144(k)
of the Securities Act are available to such holder without limitation, such
holder of Restricted Stock shall be entitled to receive from the Company,
without expense, a new certificate not bearing the restrictive legend set forth
in Section2.
4. Required Registration.
(a) At any time after July 31, 1999 the holders of Restricted
Stock constituting at least a majority of the total Restricted Stock outstanding
at such time (treating for the purpose of such computation the holders of the
Series A Preferred, Series B Preferred, Series C Preferred or Series D Preferred
as the holders of the Conversion Shares then issuable upon conversion of such
Series A Preferred, Series B Preferred, Series C Preferred or Series D
Preferred), may request the Company to register under the Securities Act at
least 51 percent of the Restricted Stock held by such requesting holder or
holders (or, if less, Restricted Stock having a reasonably anticipated aggregate
price to the public of not less than $5,000,000) for sale in the manner
specified in such notice; provided, however, that the only securities which the
Company shall be required to register pursuant hereto shall be shares of Common
Stock.
(b) Promptly following receipt of any notice under this
Section4, the Company shall immediately notify any holders of Restricted Stock
from whom notice has not been received and shall use its reasonable best efforts
to register under the Securities Act, for public sale in accordance with the
method of disposition specified in such notice from requesting holders, the
number of shares of Restricted Stock specified in such notice (and in any
notices received from other holders within 20 days after their receipt of such
notice from the Company); provided, however, that if the proposed method of
disposition specified by the requesting holders shall be an underwritten public
offering, the number of shares of Restricted Stock to be included in such an
offering may be reduced (pro rata among the requesting holders based on the
number of shares of Restricted Stock so requested to be registered) if and to
the extent that the managing underwriter shall be of the opinion that such
inclusion would adversely affect the marketing of the Restricted Stock to be
sold. If such method of disposition shall be an underwritten public offering,
the Company may designate the managing underwriter of such offering, subject to
the approval of the selling holders of a majority of the Restricted Stock
included in the offering, which approval shall not be unreasonably withheld. The
Company shall be obligated to register
Restricted Stock pursuant to this Section4 on two occasions only.
Notwithstanding anything to the contrary contained herein, the obligation of the
Company under this Section 4 shall be deemed satisfied only when a registration
statement or registration statements covering all shares of Restricted Stock
specified in notices received as aforesaid, for sale in accordance with the
method of disposition specified by the requesting holder, shall have become
effective and, if such method of disposition is a firm commitment underwritten
public offering, all such shares shall have been sold pursuant thereto.
(c) The Company shall be entitled to include in any registration
statement referred to in this Section4, for sale in accordance with the method
of disposition specified by the requesting holders, shares of Common Stock to be
sold by the Company for its own account, except as and to the extent that, in
the opinion of the managing underwriter (if such method of disposition shall be
an underwritten public offering), such inclusion would adversely affect the
marketing of the Restricted Stock to be sold. Except as provided in this
paragraph(c), the Company will not effect any other registration of its Common
Stock, whether for its own account or that of other holders, (other than a
registration effected solely to implement an employee benefit plan or a
transaction to which Rule 145 or any similar or successor rule of the Commission
under the Securities Act is applicable), from the date of receipt of a notice
from requesting holders pursuant to this Section 4 until the completion of the
period of distribution of the registration contemplated thereby.
(d) The Company shall not be obligated:
(i) to file and cause to become effective any
registration statement within a period of six months after the effective date of
any previous registration statement filed by the Company and with respect to
which the holders of the Restricted Stock, pursuant to Section 6 hereof, were
given the opportunity to include therein all Restricted Stock which was
requested by such holders to be included therein.
(ii) if the proposed method of disposition is an
underwritten public offering and the Company, after diligent efforts in good
faith shall have failed to identify a reputable underwriter reasonably
acceptable to it, the Company shall not be obligated to act hereunder unless the
holder or holders of Restricted Stock can demonstrate to the reasonable
satisfaction of the Company that one or more reputable underwriters are ready,
willing and able to assist the Company in effecting such offering.
5. Form S-3 Registration.
(a) If the Company shall receive, at any time after July 31,
1999, from any holder or holders of Restricted Stock a written request or
requests that the Company effect a registration on FormS-3 and any related
qualification or compliance with respect to Restricted Stock owned by such
holder or holders, the reasonably anticipated aggregate price to the public of
which would exceed $500,000, the Company will:
1. promptly give written notice of the proposed
registration, and any related qualification or compliance, to all other holders
of Restricted Stock; and
2. as soon as practicable, effect such registration
(including, without limitation, the execution of an undertaking to file
post-effective amendments, appropriate qualifications under applicable blue sky
or other state securities laws and appropriate compliance with applicable
regulations issued under the Securities Act and any other government
requirements or regulations) as may be so requested and as would permit or
facilitate the sale and distribution of all or such portion of such holder's or
holders' Restricted Stock as are specified in such request, together with all or
such portion of the Restricted Stock of any holder or holders joining in such
request as are specified in a written request given within thirty (30) days
after receipt of such written notice from the Company, provided that the Company
shall not be obligated to effect any such registration, qualification or
compliance pursuant to this Section5 (A) more than once in any 180-day period,
or (B)if the Company is not entitled to use FormS-3. Subject to the foregoing,
the Company shall file a registration statement covering the Restricted Stock so
requested to be registered as soon as practicable after receipt of the request
or requests of the holders of the Restricted Stock.
(b) Registrations effected pursuant to this Section5 shall not
be counted as requests for registration effected pursuant to Section4.
6. Incidental Registration. If the Company at any time (other
than pursuant to Section4 or 5 hereof) proposes to register any of its Common
Stock under the Securities Act for sale to the public, whether for its own
account or for the account of other security holders or both (other than a
registration effected to implement an employee benefit plan or a transaction to
which Rule 145 or any similar or successor rule of the Commission under the
Securities Act is applicable, on Form S-4 or S-8 or another form not available
for registering the Restricted Stock for sale to the public), it will give
written notice at such time to all holders of outstanding Restricted Stock of
its intention to do so. Upon the written request of any such holder, given
within 30 days after receipt of any such notice by the Company, to register any
of its Restricted Stock (which request shall state the intended method of
disposition thereof), the Company will use its best efforts to cause the
Restricted Stock as to which registration shall have been so requested, to be
included in the securities to be covered by the registration statement proposed
to be filed by the Company, all to the extent requisite to permit the sale or
other disposition by the holder (in accordance with its written request) of such
Restricted Stock so registered; provided that nothing herein shall prevent the
Company from abandoning or delaying such registration at any time. In the event
that any registration pursuant to this Section6 shall be, in whole or in part,
an underwritten public offering of Common Stock, any request by a holder
pursuant to this Section6 to register Restricted Stock shall specify that either
(i) such Restricted Stock is to be included in the underwriting on the same
terms and conditions as the shares of Common Stock otherwise being sold through
underwriters under such registration or (ii) such Restricted Stock is to be sold
in the open market without any underwriting, on terms and conditions comparable
to those normally applicable to offerings of common stock in reasonably similar
circumstances. The number of shares of Restricted Stock to be included in such
an underwriting may be reduced
pro rata among the requesting holders of Restricted Stock (based upon the number
of shares so requested to be registered) if and to the extent that the managing
underwriter shall be of the opinion that such inclusion would adversely affect
the marketing of the securities to be sold by the Company therein; provided,
however, if any shares (other than Restricted Stock) are to be included in such
underwriting for the account of any person other than the Company, then the
number of shares of Restricted Stock and other shares to be included in such
underwritten public offering shall be determined in such a manner so that the
holders of the Restricted Stock shall be entitled to offer the 75 percent of all
shares of stock to be offered by persons other than the Company, with the
remaining 25 percent of the shares to be offered on a pro rata basis among the
holders of other shares and the holders of the Restricted Stock (based on the
number of shares requested to be registered).
Notwithstanding anything to the contrary contained in this
Section 6, in the event that there is a firm commitment underwritten public
offering of securities of the Company pursuant to a registration covering
Restricted Stock and a holder of Restricted Stock does not elect to sell his
Restricted Stock to the underwriters of the Company's securities in connection
with such offering, such holder shall refrain from selling such Restricted Stock
during the period of distribution of the Company's securities by such
underwriters and the period in which the underwriting syndicate participates in
the after market; provided, however, that such holder shall, in any event, be
entitled to sell its Restricted Stock commencing on the 90th day after the
effective date of such registration statement.
7. Registration Procedures and Expenses. If and whenever the
Company is required by the provisions of Section 4, 5 or 6 hereof to use its
best efforts to effect the registration of any of the Restricted Stock under the
Securities Act, the Company will, as expeditiously as possible:
(a) prepare (and afford counsel for the selling holders
reasonable opportunity to review and comment thereon) and file with the
Commission a registration statement (which, in the case of an underwritten
public offering pursuant to Section 4 hereof, shall be on Form S-1 or another
form of general applicability satisfactory to the managing underwriter selected
as therein provided) with respect to such securities and use its best efforts to
cause such registration statement to become and remain effective for the period
of the distribution contemplated thereby (determined as hereinafter provided);
(b) prepare (and afford counsel for the selling holders
reasonable opportunity to review and comment thereon) 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 the period specified in paragraph (a) above
and as to comply with the provisions of the Securities Act with respect to the
disposition of all Restricted Stock covered by such registration statement in
accordance with the sellers' intended method of disposition set forth in such
registration statement for such period;
(c) furnish to each seller and to each underwriter such number
of copies of the registration statement and the prospectus included therein
(including each preliminary prospectus) as such persons may reasonably request
in order to facilitate the public sale or other disposition of the Restricted
Stock covered by such registration statement;
(d) use its best efforts to register or qualify the Restricted
Stock covered by such registration statement under the securities or blue sky
laws of such jurisdictions as the sellers of Restricted Stock or, in the case of
an underwritten public offering, the managing underwriter, shall reasonably
request (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 paragraph (d), (ii) subject itself to taxation in any such
jurisdiction or (iii) consent to general service of process in any
jurisdiction);
(e) immediately notify each seller under such registration
statement and each underwriter, at any time when a prospectus relating thereto
is required to be delivered under the Securities Act, of the happening of any
event as a result of which the prospectus contained in such registration
statement, as then in effect, includes an untrue statement of a material fact or
omits to state any material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the circumstances
then existing;
(f) use its best efforts (if the offering is underwritten) to
furnish, at the request of any seller, on the date that Restricted Stock is
delivered to the underwriters for sale pursuant to such registration: (i)an
opinion dated such date of counsel representing the Company for the purposes of
such registration, addressed to the underwriters and to such seller, stating
that such registration statement has become effective under the Securities Act
and that (A)to the best knowledge of such counsel, no stop order suspending the
effectiveness thereof has been issued and no proceedings for that purpose have
been instituted or are pending or contemplated under the Securities Act, (B)the
registration statement, the related prospectus, and each amendment or supplement
thereof, comply as to form in all material respects with the requirements of the
Securities Act and the applicable rules and regulations of the Commission
thereunder (except that such counsel need express no opinion as to financial
statements, the notes thereto, and the financial schedules and other financial
and statistical data contained therein) and (C)to such other effects as may
reasonably be requested by counsel for the underwriters or by such seller or its
counsel and (ii)a letter dated such date from the independent public accountants
retained by the Company, addressed to the underwriters, stating that they are
independent public accountants within the meaning of the Securities Act and
that, in the opinion of such accountants, the financial statements of the
Company included in the registration statement or the prospectus, or any
amendment or supplement thereof, comply as to form in all material respects with
the applicable accounting requirements of the Securities Act, and such letter
shall additionally cover such other financial matters (including information as
to the period ending no more than five business days prior to the date of such
letter) with respect to the registration in respect of which such letter is
being given as such underwriters or seller may reasonably request;
(g) make available for inspection by each seller, any
underwriter participating in any distribution pursuant to such registration
statement, and any attorney, accountant or other agent retained by such seller
or underwriter, all financial and other records, pertinent corporate documents
and properties of the Company, and cause the Company's officers, directors and
employees to supply all information reasonably requested by any such seller,
underwriter, attorney, accountant or agent in connection with such registration
statement and permit such seller, attorney, accountant or agent to participate
in the preparation of such registration statement;
(h) use its best efforts to cause the Conversion Shares to be
listed for quotation on the Nasdaq National Market or other stock exchange or
trading system on which the Common Stock primarily trades;
(i) advise each seller promptly after the Company received
notice or obtains knowledge thereof, of the issuance of any stop order by the
Commission suspending the effectiveness of such registration statement or the
initiation or threatening of any proceeding for that purpose and promptly use
its good faith, reasonable efforts to prevent the issuance of any stop order to
obtain its prompt withdrawal if such stop order should be issued;
(j) provide and cause to be maintained a transfer agent for all
Conversion Shares covered by such registration statement from and after a date
not later than the effective date of such registration statement; and
(k) make available to its security holders, as soon as
practicable, an earnings statement covering a period of at least twelve months
which satisfies the provisions of Section 11(a) of the Securities Act and Rule
158 thereunder.
For purposes of paragraphs (a) and (b) above and of Section4(c) hereof, the
period of distribution of Restricted Stock in a firm commitment underwritten
public offering shall be deemed to extend until each underwriter has completed
the distribution of all securities purchased by it, and the period of
distribution of Restricted Stock in any other registration shall be deemed to
extend until the earlier of the sale of all Restricted Stock covered thereby or
six months after the effective date thereof.
In connection with each registration hereunder, the selling
holders of Restricted Stock will furnish to the Company in writing such
information with respect to themselves and the proposed distribution by them as
shall be reasonably necessary in order to assure compliance with federal and
applicable state securities laws.
In connection with each registration pursuant to Sections4, 5
and 6 hereof covering an underwritten public offering, the Company agrees to
enter into a written agreement with the managing underwriter selected in the
manner herein provided in such form and containing such provisions as are
customary in the securities business for such an arrangement
between major underwriters and companies of the Company's size and investment
stature, provided, however, that such agreement shall not contain any such
provision applicable to the Company which is inconsistent with the provisions
hereof and provided, further, however, that the time and place of the closing
under said agreement shall be as mutually agreed upon among the Company, such
managing underwriter and the selling holders of Restricted Stock.
8. Expenses. All expenses incurred by the Company in complying
with Sections 4, 5 and 6 hereof, including, without limitation, all registration
and filing fees, printing expenses, fees and disbursements of counsel and
independent public accountants for the Company, fees of the National Association
of Securities Dealers, Inc., Nasdaq or exchange listing fees, fees of transfer
agents and registrars, costs of insurance and fees and expenses of not more than
one counsel for the sellers of Restricted Stock but excluding any Selling
Expenses, are herein called "Registration Expenses". All underwriting discounts,
selling commissions and transfer taxes applicable to the sale of Restricted
Stock are herein called "Selling Expenses".
The Company will pay all Registration Expenses in connection
with each registration statement filed pursuant to Section4, 5 or 6 hereof. All
Selling Expenses in connection with any registration statement filed pursuant to
Section4, 5 or 6 hereof shall be borne by the participating sellers in
proportion to the number of shares sold by each, or by such persons other than
the Company (except to the extent the Company shall be a seller) as they may
agree.
9. Indemnification. In the event of a registration of any of the
Restricted Stock under the Securities Act pursuant to Section 4, 5 or 6 hereof,
the Company will indemnify and hold harmless each seller of such Restricted
Stock thereunder and each underwriter of Restricted Stock thereunder and each
other person, if any, who controls such seller or underwriter within the meaning
of the Securities Act, against any losses, claims, damages or liabilities, joint
or several, to which such seller or underwriter or controlling person may become
subject under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in any registration statement under which such Restricted Stock was
registered under the Securities Act pursuant to Section4, 5 or 6, any
preliminary prospectus or final prospectus contained therein, or any amendment
or supplement thereof, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse each
such seller, each such underwriter and each such controlling person for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the Company will not be liable in any such case if and
to the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission so made in conformity with information pertaining to such
seller or underwriter furnished by such seller, such underwriter or such
controlling person in writing specifically for use in such registration
statement or prospectus.
In the event of a registration of any of the Restricted Stock
under the Securities Act pursuant to Section 4, 5 or 6 hereof, each seller of
such Restricted Stock thereunder,
severally and not jointly, will indemnify and hold harmless the Company and each
person, if any, who controls the Company within the meaning of the Securities
Act, each officer of the Company who signs the registration statement, each
director of the Company, each underwriter and each person who controls any
underwriter within the meaning of the Securities Act, against all losses,
claims, damages or liabilities, joint or several, to which the Company or such
officer or director or underwriter or controlling person may become subject
under the Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact contained
in the registration statement under which such Restricted Stock was registered
under the Securities Act pursuant to Section4, 5 or 6, any preliminary
prospectus or final prospectus contained therein, or any amendment or supplement
thereof, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse the Company and each
such officer, director, underwriter and controlling person for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that such seller will be liable hereunder in any such case if and only to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in reliance upon and in conformity with information pertaining to
such seller, as such, furnished in writing to the Company by such seller
specifically for use in such registration statement or prospectus; provided,
further, however, that the liability of each seller hereunder shall be limited
to the proportion of any such loss, claim, damage, liability or expense which is
equal to the proportion that the public offering price of shares sold by such
seller under such registration statement bears to the total public offering
price of all securities sold thereunder, but not to exceed the proceeds (net of
underwriting discounts and commissions) received by such seller from the sale of
Restricted Stock covered by such registration statement.
Promptly after receipt by an indemnified party hereunder of
notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party hereunder,
notify the indemnifying party in writing thereof, but the omission so to notify
the indemnifying party shall not relieve such indemnifying party from any
liability which it may have to any indemnified party under this Section9, except
to the extent that the indemnifying party is actually prejudiced by such failure
to give notice. In case any such action shall be brought against any indemnified
party and it shall notify the indemnifying party of the commencement thereof,
the indemnifying party shall be entitled to participate in and, to the extent it
shall wish, to assume and undertake the defense thereof with counsel
satisfactory to such indemnified party, and, after notice from the indemnifying
party to such indemnified party of its election so to assume and undertake the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under this Section9 for any legal expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation and of liaison with counsel so selected; provided,
however, that, if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be reasonable defenses available to it which are
different from or additional to those available to the indemnifying party, or if
the interests of the indemnified party reasonably may be deemed to
conflict with the interests of the indemnifying party, the indemnified party
shall have the right to select a separate counsel and to assume such legal
defenses and otherwise to participate in the defense of such action, with the
expenses and fees of such separate counsel and other expenses related to such
participation to be reimbursed by the indemnifying party as incurred.
Notwithstanding the foregoing, any indemnified party shall have
the right to retain its own counsel in any such action, but the fees and
disbursements of such counsel shall be at the expense of such indemnified party
unless (i) the indemnifying party shall have failed to retain counsel for the
indemnified person as aforesaid or (ii) the indemnifying party and such
indemnified party shall have mutually agreed to the retention of such counsel.
It is understood that the indemnifying party shall not, in connection with any
action or related actions in the same jurisdiction, be liable for the fees and
disbursements of more than one separate firm qualified in such jurisdiction to
act as counsel for the indemnified party. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
If the indemnification provided for in the first two paragraphs
of this Section 9 is unavailable or insufficient to hold harmless an indemnified
party under such paragraphs in respect of any losses, claims, damages or
liabilities or actions in respect thereof referred to therein, then each
indemnifying party shall in lieu of indemnifying such indemnified party
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or actions in such proportion as
appropriate to reflect the relative fault of the Company, on the one hand, and
the underwriters and the sellers of such Restricted Stock, on the other, in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or actions as well as any other relevant equitable
considerations, including the failure to give any notice under the third
paragraph of this Section9. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact relates to information supplied by the Company, on the one hand,
or the underwriters and the sellers of such Restricted Stock, on the other, and
to the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
each of you agree that it would not be just and equitable if contributions
pursuant to this paragraph were determined by pro rata allocation (even if all
of the sellers of such Restricted Stock were treated as one entity for such
purpose) or by any other method of allocation which did not take account of the
equitable considerations referred to above in this paragraph. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages,
liabilities or action in respect thereof, referred to above in this paragraph,
shall be deemed to include 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 paragraph, no seller
hereunder shall be required to contribute an amount in excess of (i) the
proportion that the public offering price of shares sold by such seller under
such registration statement bears to the total public offering price of all
securities sold thereunder, but not to exceed the proceeds received by such
seller for the sale of Restricted Stock covered by such registration statement
and (ii) the amount of any damages
which such seller would have otherwise have been required to pay by reason of
such untrue or alleged untrue statement or omission. No person guilty of
fraudulent misrepresentations (within the meaning of Section 11(f) of the
Securities Act), shall be entitled to contribution from any person who is not
guilty of such fraudulent misrepresentation.
The indemnification of underwriters provided for in this
Section9 shall be on such other terms and conditions as are at the time
customary and reasonably required by such underwriters. In that event the
indemnification of the sellers of Restricted Stock in such underwriting shall at
the sellers' request be modified to conform to such terms and conditions. The
provisions of this Section 9 shall be in addition to any other rights to
indemnification or contribution which an indemnified party may have pursuant to
law, equity, contract or otherwise.
10. Changes in Common Stock. If, and as often as, there are any
changes in the Common Stock by way of stock split, stock dividend, combination
or reclassification, or through merger, consolidation, reorganization or
recapitalization, or by any other means, appropriate adjustment shall be made in
the provisions hereof, as may be required, so that the rights and privileges
granted hereby shall continue with respect to the Common Stock as so changed.
11. Representations and Warranties of the Company. The Company
represents and warrants to you as follows:
(a) The execution, delivery and performance of this Agreement by
the Company have been duly authorized by all requisite corporate action and will
not violate any provision of law, any order of any court or other agency of
government, the Certificate of Incorporation or By-laws of the Company, or any
provision of any indenture, agreement or other instrument to which it or any of
its properties or assets is bound, or conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any such
indenture, agreement or other instrument, or result in the creation or
imposition of any lien, charge or encumbrance of any nature whatsoever upon any
of the properties or assets of the Company.
(b) This Agreement has been duly executed and delivered by the
Company and constitutes the legal, valid and binding obligation of the Company,
enforceable in accordance with its terms, subject to considerations of public
policy in the case of the indemnification provisions hereof.
12. Rule 144 Reporting. The Company agrees with you as follows:
(a) The Company shall make and keep public information
available, as those terms are understood and defined in Rule144 under the
Securities Act, at all times from and after the date it is first required to do
so.
(b) The Company shall file with the Commission in a timely
manner all reports and other documents as the Commission may prescribe under
Section 13(a) or
15(d) of the Exchange Act at any time after the Company has become subject to
such reporting requirements of the Exchange Act.
(c) The Company shall furnish to such holder of Restricted Stock
forthwith upon request (i)a written statement by the Company as to its
compliance with the reporting requirements of Rule144 (at any time from and
after the date it first becomes subject to such reporting requirements), and of
the Securities Act and the Exchange Act (at any time after it has become subject
to such reporting requirements), (ii)a copy of the most recent annual or
quarterly report of the Company, and (iii)such other reports and documents so
filed as a holder may reasonably request to avail itself of any rule or
regulation of the Commission allowing a holder of Restricted Stock to sell any
such securities without registration.
13. Miscellaneous.
(a) All covenants and agreements contained in this Agreement by
or on behalf of any of the parties hereto shall bind and inure to the benefit of
the respective successors and assigns of the parties hereto whether so expressed
or not. Without limiting the generality of the foregoing, the registration
rights conferred herein on the holders of Restricted Stock shall inure to the
benefit of any and all subsequent holders from time to time of the Restricted
Stock for so long as the certificates representing the Restricted Stock shall be
required to bear the legend specified in Section2 hereof.
(b) All notices, requests, consents and other communications
hereunder shall be in writing and shall be mailed by first class registered
mail, postage prepaid, addressed as follows:
if to the Company, to it at 0000 Xxxxxxxxxx Xxxxx, Xxxxxx, Xxxxx
Xxxxxxxx 00000, Attention: M. Xxxx Xxxxxxx.
if to any holder of Restricted Stock, at their addresses set
forth in AnnexI hereto;
if to any subsequent holder of Restricted Stock to it at such
address as may have been furnished to the Company in writing by such holder;
or, in any case, at such other address or addresses as shall have been furnished
in writing to the Company (in the case of a holder of Restricted Stock or to the
holders of Restricted Stock (in the case of the Company).
(c) This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
(d) This Agreement constitutes the entire agreement of the
parties with respect to the subject matter hereof and supersedes the Fifth
Amended and Restated Registration Rights Agreement dated as of March 27, 1997
among the Company and certain of you.
This Agreement may not be modified or amended except in writing signed by the
Company and the holders of not less than 66 2/3 percent of the Restricted Stock
(determined on an as-if-converted basis), provided that no such modification or
amendment shall deprive any holder of Restricted Stock of any material right
under this Agreement without such holder's consent. The Company may include
additional purchasers of Series D Preferred as parties to this Agreement and
such purchasers shall be deemed to be a "holder of Restricted Stock" provided
that such purchasers execute a signature page to this Agreement. Except as
otherwise provided in the preceding sentence, the Company will not grant any
registration rights to any other person without the written consent of the
holders of 66 2/3 percent of the Restricted Stock then outstanding (determined
on an as-if-converted basis) if such rights could reasonably be expected to
conflict with, or be on a parity with, the rights of holders of Restricted Stock
granted under this Agreement.
(e) This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
Please indicate your acceptance of the foregoing by signing and
returning the enclosed counterpart of this letter, whereupon this letter (herein
sometimes called "this Agreement") shall be a binding agreement between the
Company and you.
Very truly yours,
TRIMERIS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
_______________________________
Xxxxxxx X. Xxxxxx
Vice President of Business Development,
Chief Operating Officer and
Chief Financial Officer
AGREED TO AND ACCEPTED
as of the date first above written.
DOMAIN PARTNERS II, L.P.
By: One Xxxxxx Square Associates II, L.P.,
its general partner
By: /s/ Xxxxxxxx X. Xxxxxxxxxx
______________________________
Name: Xxxxxxxx X. Xxxxxxxxxx
Title: Attorney-In-Fact
BIOTECHNOLOGY INVESTMENTS LIMITED
By: Old Court Limited
By: /s/ Xxxxxxxx X. Xxxxxxxxxx
________________________________
Name: Xxxxxxxx X. Xxxxxxxxxx
Title: Attorney-In-Fact
DOMAIN PARTNERS III, L.P.
By: One Xxxxxx Square Associates III, L.P.,
its general partner
By: /s/ Xxxxxxxx X. Xxxxxxxxxx
--------------------------------
Name: Xxxxxxxx X. Xxxxxxxxxx
Title: General Partner
DP III ASSOCIATES, L.P.
By: One Xxxxxx Square Associates III, L.P.,
its general partner
By: /s/ Xxxxxxxx X. Xxxxxxxxxx
________________________________
Name: Xxxxxxxx X. Xxxxxxxxxx
Title: General Partner
DOMINION FUND III
By: Dominion Partners III, its general partner
---------------------------------------
By: /s/ Signature Illegible
________________________________
Name: Xxxxxxx X. Xxxxxx
_________________________________
Title: General Partner
__________________________________
SENTRON MEDICAL, INC.
By: /s/ Xxxxxx X. Xxxxxx
_________________________________
Name: Xxxxxx X. Xxxxxx
_________________________________
Title: Group Director, Venture Projects
_________________________________________
XXXXXXXX & COMPANY INC.
By: _________________________________
Name: ___________________________
Title: ___________________________
ASPENTREE CAPITAL
By: /s/ Signature Illegible
____________________________________
Name: X. Xxxxxxx
___________________________________
Title: President
___________________________________
---------------------------------------
Xxxxxxx X. Xxxxxx
/s/ X. Xxxxxx
---------------------------------------
J. Xxxxxx Xxxxxx
/s/ Signature Illegible
---------------------------------------
Xxxxxx X. Xxxxxxx
---------------------------------------
Xxxxxxx X. Xxxxx
/s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Xxxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxxx
_______________________________________
/s/ X. Xxxx Xxxxxxx
---------------------------------------
X. Xxxx Xxxxxxx
/s/ Signature Illegible
---------------------------------------
Xxxxx X.X. Xxxxxxx
---------------------------------------
Xxxxx X. Xxxxxxx
---------------------------------------
Xxxxx X. Xxxxxxx
---------------------------------------
Xxxxx X. Xxxxx
Xxxx X. Xxxxxxxxx and Xxxxx X. Xxxxxxxxx,
Joint Tenants With Rights Of Survivorship
By: /s/ Xxxx X. Xxxxxxxxx
_________________________________
Xxxx X. Xxxxxxxxx, Joint Tenant
By: /s/ Xxxxx X. Xxxxxxxxx
_________________________________
Xxxxx X. Xxxxxxxxx, Joint Tenant
---------------------------------------
Xxxxxxxxxxx X. Xxxxxx
Xxxxx X. Xxxxxx and Xxxxxxxx X. Xxxxxx,
Joint Tenants With Rights Of Survivorship
By: _________________________________
Xxxxx X. Xxxxxx, Joint Tenant
By: _________________________________
Xxxxxxxx X. Xxxxxx, Joint Tenant
---------------------------------------
Xxxxxx X. Xxxxx
/s/ Signature Illegible
---------------------------------------
Xxxx X. Xxxx
---------------------------------------
Xxxxxx X. Xxxxxxx
---------------------------------------
Xxxxxxxxx X. Xxxxxxx
---------------------------------------
Xxxxxxx Xxxxxx
/s/ Xxxx Xxxxxxx
---------------------------------------
Xxxx Xxxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxxxx
/s/ Signature Illegible
---------------------------------------
Xxxx X. Xxxxxxxxx
/s/ Signature Illegible
---------------------------------------
Xxxxx Xxxxx
---------------------------------------
X.X. Xxxx
/s/ Xxxxx Xxxxxxx
---------------------------------------
Xxxxx Xxxxxxx
Xxx Xxxxxxx and Xxxx Xxxxxx Xxxxxxx,
Joint Tenants With Rights Of Survivorship
By: /s/ Signature Illegible 6/26/97
_________________________________
Xxx Xxxxxxx, Joint Tenant
By: /s/ Xxxx Xxxxxx Xxxxxxx
_________________________________
Xxxx Xxxxxx Xxxxxxx, Joint Tenant
---------------------------------------
M. Xxxx Xxxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxx
---------------------------------------
Xxxxxxx Xxxxxxx
PACIFIC HORIZON PARTNERS II, L.P.
BY: _________________________________
Name: ___________________________
Title: ___________________________
/s/ Xxxxxx Xxxxxxx Xxxxxx
---------------------------------------
Xxxxxx Xxxxxxx Xxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxxx
---------------------------------------
Xxxxxxx Xxxxx
---------------------------------------
Xxxxxx X. XxXxxxxx
Xxxx X. Xxxxxxx and Xxxxxx X. Xxxxxxx Xxxxxxx,
Joint Tenants With Rights Of Survivorship
By: /s/ Signature Illegible
_________________________________
Xxxx X. Xxxxxxx, Joint Tenant
By: /s/ Xxxxxx X. Xxxxxxx Xxxxxxx
_________________________________
Xxxxxx X. Xxxxxxx Xxxxxxx, Joint Tenant
ANVERS L.P.
By: /s/ FSIP, LLC
_________________________________
FSIP, LLC, General Partner
By: /s/ Signature Illegible
---------------------------------
Name: Xxxxxxx Xxxxxxxx
___________________________
Title: Senior Managing Director
___________________________
The Global Health Sciences Fund
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
____________________________________
Title: Treasurer
___________________________________
MINIMED, INC.
By: /s/ Signature Illegible
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
UBS Partners LLC
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
____________________________________
Title:
___________________________________
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxx
____________________________________
Title: Vice President/Treasurer
___________________________________
