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Exhibit 4.2
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made
and entered into as of this 20th day of September, 1999 by and between InKine
Pharmaceutical Company, Inc., a New York corporation (the "Company"), and the
"Investors" named in that Purchase Agreement of even date herewith by and
between the Company and the Investors (the "Purchase Agreement").
The parties hereby agree as follows:
1. Certain Definitions
As used in this Agreement, the following terms shall have the
following meanings:
"Additional Registrable Securities" shall mean the shares of
Common Stock, if any, issued to the Investors pursuant to Section 7.1 of the
Purchase Agreement.
"Common Stock" shall mean the Company's Common Stock, par
value $0.0001 per share.
"Investors" shall mean the purchasers identified in the
Purchase Agreement and any affiliate of any Investor who is a subsequent holder
of any Warrants, Registrable Securities or Additional Registrable Securities.
"Prospectus" shall mean the prospectus included in any
Registration Statement, as amended or supplemented by any prospectus supplement,
with respect to the terms of the offering of any portion of the Registrable
Securities or Additional Registrable Securities covered by such Registration
Statement and by all other amendments and supplements to the prospectus,
including post-effective amendments and all material incorporated by reference
in such prospectus.
"Register," "registered" and "registration" refer to a
registration made by preparing and filing a registration statement or similar
document in compliance with the 1933 Act (as defined below), and the declaration
or ordering of effectiveness of such registration statement or document.
"Registrable Securities" shall mean the shares of Common Stock
issued and issuable to the Investors pursuant to the Purchase Agreement (other
than additional shares of Common Stock issuable pursuant to Section 7.1 of the
Purchase Agreement) and issuable upon the exercise of the Warrants.
"Registration Statement" shall mean any registration statement
of the Company filed under the 1933 Act that covers the resale of any of the
Registrable Securities or
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Additional Registrable Securities pursuant to the provisions of this Agreement,
amendments and supplements to such Registration Statement, including
post-effective amendments, all exhibits and all material incorporated by
reference in such Registration Statement.
"SEC" means the U.S. Securities and Exchange Commission.
"1933 Act" means the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder.
"1934 Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"Warrants" mean the warrants to purchase shares of Common
Stock issued to the Investors pursuant to the Purchase Agreement, the form of
which is attached to the Purchase Agreement as Exhibit A.
2. Registration.
(a) Registration Statements.
(i) Registrable Securities. Promptly
following the closing of the purchase and sale of Common Stock and Warrants
contemplated by the Purchase Agreement (the "Closing Date") (but no later than
thirty (30) days after the Closing Date), the Company shall prepare and file
with the SEC one Registration Statement on Form S-3 (or, if Form S-3 is not then
available to the Company, on such form of registration statement as is then
available to effect a registration for resale of the Registrable Securities,
subject to the Investors' consent) covering the resale of the Registrable
Securities in an amount equal to the number of shares of Common Stock issued to
the Investors on the Closing Date plus the number of shares of Common Stock
necessary to permit the exercise in full of the Warrants. Such Registration
Statement also shall cover, to the extent allowable under the 1933 Act
(including Rule 416), such indeterminate number of additional shares of Common
Stock resulting from stock splits, stock dividends or similar transactions with
respect to the Registrable Securities. The Company shall use its best efforts to
obtain from each person who now has piggyback registration rights a waiver of
those rights with respect to the Registration Statement. No securities shall be
included in the Registration Statement without the consent of each Investor
other than the Registrable Securities and the securities subject to piggyback
registration rights on the date hereof for which the Company could not obtain
waivers. The Registration Statement (and each amendment or supplement thereto,
and each request for acceleration of effectiveness thereof) shall be provided in
accordance with Sections 3(b) and (c) to the Investors and their counsel prior
to its filing or other submission.
(ii) Additional Registrable Securities. Upon
the written demand of any Investor, provided that such demand is within thirty
(30) days following the issuance of any additional shares of Common Stock to
such Investor pursuant to Section 7.1 of the Purchase Agreement, the Company
shall prepare and file with the SEC one Registration Statement on Form S-3 (or,
if Form S-3 is not then available to the Company, on such form of
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registration statement as is then available to effect a registration for resale
of the Additional Registrable Securities, subject to the Investor's consent)
covering the resale of the Additional Registrable Securities in an amount equal
to the number of shares of Common Stock issued to and designated in the demand
by such Investor. Such Registration Statement also shall cover, to the extent
allowable under the 1933 Act (including Rule 416), such indeterminate number of
additional shares of Common Stock resulting from stock splits, stock dividends
or similar transactions with respect to the Additional Registrable Securities.
The Company shall use its best efforts to obtain from each person who now has
piggyback registration rights a waiver of those rights with respect to the
Registration Statement. No securities shall be included in the Registration
Statement without the consent of the Investor other than the Registrable
Securities and Additional Registrable Securities and the securities subject to
piggyback registration rights on the date hereof for which the Company could not
obtain waivers. The Registration Statement (and each amendment or supplement
thereto, and each request for acceleration of effectiveness thereof) shall be
provided in accordance with Sections 3(b) and (c) to the Investor and its
counsel prior to its filing or other submission.
(b) Expenses. The Company will pay all its expenses
associated with each registration, and the Investors will pay all their expenses
subject to the reimbursement provided for in the Purchase Agreement (and to the
extent funds have been returned to the Company, in respect thereof, the Company
will pay them over subject to receipt of appropriate documentation). In no event
will the Company reimburse Investors for discounts, commissions, fees of
underwriters, selling brokers, dealer managers or similar securities industry
professionals.
(c) Effectiveness.
(i) The Company shall use its best efforts
to have each Registration Statement declared effective as soon as practicable.
If (A) the Registration Statement covering Registrable Securities is not
declared effective by the SEC within three (3) months following the Closing
Date, or the Registration Statement covering Additional Registrable Securities
is not declared effective by the SEC within three (3) months following the
demand of an Investor relating to the Additional Registrable Securities covered
thereby, or with respect to either Registration Statement which is subject to
full review by the SEC staff, within four (4) months following the Closing Date
or demand, as the case may be (each, a "Registration Date"), (B) after a
Registration Statement has been declared effective by the SEC, sales cannot be
made pursuant to such Registration Statement (by reason of a stop order, or the
Company's failure to update the Registration Statement) but except as excused
pursuant to subparagraph (ii) below, or (C) the Common Stock generally or the
Registrable Securities specifically is not listed or included for quotation on
the Nasdaq National Market System, the Nasdaq Small Cap Market, the New York
Stock Exchange or the American Stock Exchange, then the Company will make
pro-rata payments to each Investor, as liquidated damages and not as a penalty,
in an amount equal to 2% of the aggregate amount paid by such Investor on the
Closing Date to the Company for shares of Common Stock still held by such
Investor for any month or pro rata for any portion thereof following the
Registration Date during which any of the events described in (A) or (B) or (C)
above occurs and is continuing (the "Blackout Period"). The Blackout Period
shall terminate upon (x) the effectiveness of the applicable Registration
Statement in the case of (A) and (B) above; (y) listing or inclusion of the
Common Stock on the Nasdaq National Market System, the
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Nasdaq Small Cap Market, the New York Stock Exchange or the American Stock
Exchange in the case of (C) above; and (z) in the case of the events described
in (A) or (B) above, the earlier termination of the Registration Period (as
defined in Section 3(a) below). The amounts payable as liquidated damages
pursuant to this paragraph shall be payable, at the option of the Company, in
lawful money of the United States or in shares of Common Stock at the Market
Price (as that term is defined in the Purchase Agreement), and amounts payable
as liquidated damages shall be paid monthly within two (2) business days of the
last day of each month following the commencement of the Blackout Period until
the termination of the Blackout Period. Amounts payable as liquidated damages
hereunder shall cease when an Investor no longer holds Warrants or Registrable
Securities, or Additional Registrable Securities, as applicable. Notwithstanding
the above, if after twelve (12) months, the Company in good faith determines
that it is unable to remedy the events set forth in (A), (B) or (C), the Company
may notify the Investors that the liquidated damages will cease to accrue and,
at the Investor's election, the Company shall redeem, in whole or in part, as
instructed by the Investor, the shares of Common Stock and Warrants held by such
Investor for an amount equal to 120% of the amount originally invested by such
Investor. If an Investor does not elect to have its Common Stock and Warrants so
redeemed, the Company shall use reasonable efforts to remedy the events set
forth in (A), (B) and (C), but the Investor will no longer be entitled to
further liquidated damages pursuant to this Agreement.
(ii) For not more than twenty (20)
consecutive trading days or for a total of not more than thirty (30) trading
days in any twelve (12) month period, the Company may delay the disclosure of
material non-public information concerning the Company and terminate or suspend
effectiveness of any registration contemplated by this Section containing such
information, if disclosure of such information at the time is not, in the good
faith opinion of the Company, in the best interests of the Company (an "Allowed
Delay"); provided, that the Company shall promptly (a) notify the Investors in
writing of the existence of (but in no event, without the prior written consent
of an Investor, shall the Company disclose to such Investor any of the facts or
circumstances regarding) material non-public information giving rise to an
Allowed Delay, and (b) advise the Investors in writing to cease all sales under
the Registration Statement until the end of the Allowed Delay. The duration of
the Restricted Period as provided in the Purchase Agreement will be extended by
the number of days of any and all Allowed Delays.
(d) Underwritten Offering. If any offering pursuant
to a Registration Statement pursuant to Section 2(a) hereof involves an
underwritten offering, the Company shall have the right to select an investment
banker and manager to administer the offering, which investment banker or
manager shall be reasonably satisfactory to the Investors.
3. Company Obligations. The Company will use its best efforts
to effect the registration of the Registrable Securities and Additional
Registrable Securities in accordance with the terms hereof, and pursuant thereto
the Company will, as expeditiously as possible:
(a) use its best efforts to cause such Registration
Statement to become effective and to remain continuously effective for a period
that will terminate upon the earlier of the date on which all Registrable
Securities or Additional Registrable Securities, as the case may
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be, covered by such Registration Statement, as amended from time to time, have
been sold or are eligible for sale under Rule 144(k) promulgated under the 1933
Act (the "Registration Period");
(b) prepare and file with the SEC such amendments and
post-effective amendments to the Registration Statement and the Prospectus as
may be necessary to keep the Registration Statement effective for the period
specified in Section 3(a) and to comply with the provisions of the 1933 Act and
the 1934 Act with respect to the distribution of all Registrable Securities and
Additional Registrable Securities; provided that, at least three (3) days prior
to the filing of a Registration Statement or Prospectus, or any amendments or
supplements thereto, the Company will furnish to the Investors copies of all
documents proposed to be filed, which documents will be subject to the comments
of the Investors;
(c) permit one counsel designated by the Investors to
review each Registration Statement and all amendments and supplements thereto no
fewer than five (5) days prior to their filing with the SEC and not file any
document to which such counsel reasonably objects in a timely manner;
(d) furnish by courier, pursuant to the notice
requirements of Section 10.4 of the Purchase Agreement, to the Investors and
their legal counsel (i) promptly after the same is prepared and publicly
distributed, filed with the SEC, or received by the Company, one copy of any
Registration Statement and any amendment thereto, including financial statements
and schedules, each preliminary prospectus and Prospectus and each amendment or
supplement thereto, and each letter written by or on behalf of the Company to
the SEC or the staff of the SEC, and each item of correspondence from the SEC or
the staff of the SEC, in each case relating to such Registration Statement
(other than any portion of any thereof which contains information for which the
Company has sought confidential treatment), and (ii) such number of copies of a
Prospectus, including a preliminary prospectus, and all amendments and
supplements thereto and such other documents as each Investor may reasonably
request in order to facilitate the disposition of the Registrable Securities and
Additional Registrable Securities owned by such Investor;
(e) in the event the Company selects an underwriter
for the offering, the Company shall enter into and perform its reasonable
obligations under an underwriting agreement, in usual and customary form,
including, without limitation, customary indemnification and contribution
obligations, with the underwriter of such offering;
(f) if required by the underwriter, at the request of
the Investors, the Company shall furnish, on the date that Registrable
Securities or Additional Registrable Securities, as applicable, are delivered to
an underwriter, if any, for sale in connection with the Registration Statement
(i) an opinion, dated as of such date, from counsel representing the Company for
purposes of such Registration Statement, in form, scope and substance as is
customarily given in an underwritten public offering, addressed to the
underwriter and the Investors and (ii) a letter, dated such date, from the
Company's independent certified public accountants in form and substance as is
customarily given by independent certified public accountants to underwriters in
an underwritten public offering, addressed to the underwriter and the Investors;
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(g) make effort to prevent the issuance of any stop
order or other suspension of effectiveness and, if such order is issued, obtain
the withdrawal of any such order at the earliest possible moment (except as
allowed under Section 2(c)(ii) hereof);
(h) use its reasonable best efforts to register or
qualify or cooperate with the Investors and their counsel in connection with the
registration or qualification of such Registrable Securities or Additional
Registrable Securities, as applicable, for offer and sale under the securities
or blue sky laws of such jurisdictions as the Investors reasonably request in
writing and do any and all other reasonable acts or things necessary or
advisable to enable the distribution in such jurisdictions of the Registrable
Securities or Additional Registrable Securities covered by the Registration
Statement;
(i) cause all Registrable Securities or Additional
Registrable Securities covered by a Registration Statement to be listed on each
securities exchange, interdealer quotation system or other market on which
similar securities issued by the Company are then listed;
(j) immediately notify the Investors, at any time
when a Prospectus relating to the Registrable Securities or Additional
Registrable Securities is required to be delivered under the Securities Act,
upon discovery that, or upon the happening of any event as a result of which,
the Prospectus included in such Registration Statement, as then in effect,
includes an untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading in the light of the circumstances then existing, and subject to
Section 2(c)(ii), at the request of any such holder, promptly prepare and
furnish to such holder a reasonable number of copies of a supplement to or an
amendment of such Prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such Registrable Securities or Additional
Registrable Securities, as applicable, such Prospectus shall not include an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading in
the light of the circumstances then existing; and
(k) otherwise use its best efforts to comply with all
applicable rules and regulations of the SEC under the 1933 Act and the 1934 Act,
take such other actions as may be reasonably necessary to facilitate the
registration of the Registrable Securities and Additional Registrable
Securities, if applicable, hereunder; and make available to its security
holders, as soon as reasonably practicable, but not later than the Availability
Date (as defined below), an earnings statement covering a period of at least
twelve months, beginning after the effective date of each Registration
Statement, which earnings statement shall satisfy the provisions of Section
11(a) of the 1933 Act (for the purpose of this subsection 3(k), "Availability
Date" means the 45th day following the end of the fourth fiscal quarter that
includes the effective date of such Registration Statement, except that, if such
fourth fiscal quarter is the last quarter of the Company's fiscal year,
"Availability Date" means the 90th day after the end of such fourth fiscal
quarter).
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4. Obligations of the Investors.
(a) It shall be a condition precedent to the
obligations of the Company to complete the registration pursuant to this
Agreement with respect to the Registrable Securities or Additional Registrable
Securities, as applicable, that each Investor shall furnish in writing to the
Company such information regarding itself, the Registrable Securities or
Additional Registrable Securities, as applicable, held by it and the intended
method of disposition of the Registrable Securities or Additional Registrable
Securities, as applicable, held by it, and any other information as shall be
reasonably required to effect the registration of such Registrable Securities or
Additional Registrable Securities, as applicable, and shall execute such
documents in connection with such registration as the Company may reasonably
request. At least ten (10) business days prior to the first anticipated filing
date of any Registration Statement, the Company shall notify each Investor of
the information the Company requires from such Investor if such Investor elects
to have any of the Registrable Securities or Additional Registrable Securities
included in the Registration Statement. An Investor shall provide such
information to the Company at least five (5) business days prior to the first
anticipated filing date of such Registration Statement if such Investor elects
to have any of the Registrable Securities or Additional Registrable Securities
included in the Registration Statement.
(b) Each Investor, by its acceptance of the
Registrable Securities and Additional Registrable Securities, if any, agrees to
cooperate with the Company as reasonably requested by the Company in connection
with the preparation and filing of a Registration Statement hereunder, unless
such Investor has notified the Company in writing of its election to exclude all
of its Registrable Securities or Additional Registrable Securities, as
applicable, from the Registration Statement, in which case the Investor shall be
deemed to have waived its rights to have Registrable Securities or Additional
Registrable Securities, as the case may be, registered under this Agreement,
unless the Investor reasonably believes sales of its securities under such
Registration Statement may violate federal securities laws.
(c) In the event the Company determines to engage the
services of an underwriter, each Investor agrees to enter into and perform its
obligations under an underwriting agreement, in usual and customary form,
including, without limitation, customary indemnification and contribution
obligations, with the managing underwriter of such offering and take such other
actions as are reasonably required in order to expedite or facilitate the
dispositions of the Registrable Securities or Additional Registrable Securities,
as applicable.
(d) Each Investor agrees that, upon receipt of any
notice from the Company of the happening of any event rendering a Registration
Statement no longer effective, such Investor will immediately discontinue
disposition of Registrable Securities or Additional Registrable Securities
pursuant to the Registration Statement covering such Registrable Securities or
Additional Registrable Securities, until the Investor's receipt of the copies of
the supplemented or amended prospectus filed with the SEC and declared effective
and, if so directed by the Company, the Investor shall deliver to the Company
(at the expense of the Company) or destroy (and deliver to the Company a
certificate of destruction) all copies in the Investor's possession of the
prospectus covering the Registrable Securities or Additional Registrable
Securities, as applicable, current at the time of receipt of such notice.
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(e) No Investor may participate in any underwritten
registration hereunder unless it (i) agrees to sell the Registrable Securities
or Additional Registrable Securities, as applicable, on the basis provided in
any underwriting arrangements in usual and customary form entered into by the
Company, (ii) completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents reasonably required
under the terms of such underwriting arrangements, and (iii) agrees to pay its
pro rata share of all underwriting discounts and commissions and any expenses in
excess of those payable by the Company pursuant to the terms of this Agreement.
5. Indemnification.
(a) Indemnification by Company. The Company agrees to
indemnify and hold harmless, to the fullest extent permitted by law the
Investors, each of their officers, directors, partners and employees and each
person who controls the Investors (within the meaning of the ▇▇▇▇ ▇▇▇) against
all losses, claims, damages, liabilities, costs (including, without limitation,
reasonable attorney's fees) and expenses imposed on such person caused by (i)
any untrue or alleged untrue statement of a material fact contained in any
Registration Statement, Prospectus or any preliminary prospectus or any
amendment or supplement thereto or any omission or alleged omission to state
therein 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, except insofar as the same are based entirely upon any information
furnished in writing to the Company by such Investors, expressly for use
therein, or (ii) any violation by the Company of any federal, state or common
law, rule or regulation applicable to the Company in connection with any
Registration Statement, Prospectus or any preliminary prospectus, or any
amendment or supplement thereto, provided that such violation was not caused by
the negligence or willful misconduct of the Investor and shall reimburse in
accordance with subparagraph (c) below, each of the foregoing persons for any
legal and any other expenses reasonably incurred in connection with
investigating or defending any such claims. The foregoing is subject to the
condition that, insofar as the foregoing indemnities relate to any untrue
statement, alleged untrue statement, omission or alleged omission made in any
preliminary prospectus or Prospectus that is eliminated or remedied in any
Prospectus or amendment or supplement thereto, the above indemnity obligations
of the Company shall not inure to the benefit of any indemnified party if a copy
of such corrected Prospectus or amendment or supplement thereto had been made
available to such indemnified party and was not sent or given by such
indemnified party at or prior to the time such action was required of such
indemnified party by the 1933 Act and if delivery of such Prospectus or
amendment or supplement thereto would have eliminated (or been a sufficient
defense to) any liability of such indemnified party with respect to such
statement or omission. Indemnity under this Section 5(a) shall remain in full
force and effect regardless of any investigation made by or on behalf of any
indemnified party and shall survive the permitted transfer of the Registrable
Securities and Additional Registrable Securities.
(b) Indemnification by Holder. In connection with any
registration pursuant to the terms of this Agreement, each Investor will furnish
to the Company in writing such information as the Company reasonably requests
concerning the holders of Registrable
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Securities and Additional Registrable Securities or the proposed manner of
distribution for use in connection with any Registration Statement or Prospectus
and agrees, severally but not jointly, to indemnify and hold harmless, to the
fullest extent permitted by law, the Company, its directors, officers,
employees, stockholders and each person who controls the Company (within the
meaning of the ▇▇▇▇ ▇▇▇) against all losses, claims, damages, liabilities, costs
(including, without limitation, reasonable attorney's fees) and expenses imposed
on such person caused by (i) any untrue or alleged untrue statement of a
material fact contained in any Registration Statement, Prospectus or any
preliminary prospectus or amendment or supplement thereto or any omission or
alleged omission to state therein 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, to the extent, but only to the extent that
such untrue statement or omission is contained in any information furnished in
writing by such Investor to the Company specifically for inclusion in such
Registration Statement or Prospectus or amendment or supplement thereto and that
such information was substantially relied upon by the Company in preparation of
any Registration Statement or Prospectus or any amendment or supplement thereto;
or (ii) any violation by the Investor of any federal, state or common law, rule
or regulation applicable to the Investor in connection with the Registration
Statement, Prospectus or any preliminary prospectus or any amendment or
supplement thereto, provided that such violation was not caused by the
negligence or willful misconduct of the Company, and shall reimburse in
accordance with subparagraph (c) below, each of the foregoing persons for any
legal and other expenses reasonably incurred in connection with investigating or
defending such claims. In no event shall the liability of an Investor be greater
in amount than the dollar amount of the proceeds (net of all expense paid by
such Investor and the amount of any damages such holder has otherwise been
required to pay by reason of such untrue statement or omission) received by such
Investor upon the sale of the Registrable Securities or Additional Registrable
Securities included in the Registration Statement giving rise to such
indemnification obligation.
(c) Conduct of Indemnification Proceedings. Any
person entitled to indemnification hereunder shall (i) give prompt notice to the
indemnifying party of any claim with respect to which it seeks indemnification
and (ii) permit such indemnifying party to assume the defense of such claim with
counsel reasonably satisfactory to the indemnified party; provided that any
person entitled to indemnification hereunder shall have the right to employ
separate counsel and to participate in the defense of such claim, but the fees
and expenses of such counsel shall be at the expense of such person unless (a)
the indemnifying party has agreed to pay such fees or expenses, or (b) the
indemnifying party shall have failed to assume the defense of such claim and
employ counsel reasonably satisfactory to such person or (c) in the reasonable
judgment of any such person, based upon written advice of its counsel, a
conflict of interest exists between such person and the indemnifying party with
respect to such claims (in which case, if the person notifies the indemnifying
party in writing that such person elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such claim on behalf of such person); and
provided, further, that the failure of any indemnified party to give notice as
provided herein shall not relieve the indemnifying party of its obligations
hereunder, except to the extent that such failure to give notice shall
materially adversely affect the indemnifying party in the defense of any such
claim or litigation. It is understood that the indemnifying party shall not, in
connection with any proceeding in the same jurisdiction, be liable for fees or
expenses of more than one separate firm
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of attorneys at any time for all such indemnified parties. No indemnifying party
will, except with the consent of the indemnified party, consent to entry of any
judgment or enter into any settlement that does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such indemnified party
of a release from all liability in respect of such claim or litigation.
(d) Contribution. If for any reason the
indemnification provided for in the preceding paragraphs (a) and (b) is
unavailable to an indemnified party or insufficient to hold it harmless, other
than as expressly specified therein, then the indemnifying party shall
contribute to the amount paid or payable by the indemnified party as a result of
such loss, claim, damage or liability in such proportion as is appropriate to
reflect the relative fault of the indemnified party and the indemnifying party,
as well as any other relevant equitable considerations. No person guilty of
fraudulent misrepresentation within the meaning of Section 11(f) of the 1933 Act
shall be entitled to contribution from any person not guilty of such fraudulent
misrepresentation. In no event shall the contribution obligation of a holder of
Registrable Securities or Additional Registrable Securities be greater in amount
than the dollar amount of the proceeds (net of all expenses paid by such holder
and the amount of any damages such holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission) received by it upon the sale of the Registrable Securities or
Additional Registrable Securities giving rise to such contribution obligation.
6. Miscellaneous.
(a) Amendments and Waivers. This Agreement may be
amended only by a writing signed by the parties hereto. The Company may take any
action herein prohibited, or omit to perform any act herein required to be
performed by it, only if the Company shall have obtained the written consent to
such amendment, action or omission to act, of each Investor.
(b) Notices. All notices and other communications
provided for or permitted hereunder shall be made as set forth in Section 10.4
of the Purchase Agreement.
(c) Assignments and Transfers by Investors. This
Agreement and all the rights and obligations of the Investors hereunder may not
be assigned or transferred to any transferee or assignee except to an affiliate
of an Investor who is a subsequent holder of any Warrants, Registrable
Securities or Additional Registrable Securities.
(d) Assignments and Transfers by the Company. This
Agreement may not be assigned by the Company without the prior written consent
of each Investor then holding Registrable Securities, except that without the
prior written consent of the Investors, but after notice duly given, the Company
shall assign its rights and delegate its duties hereunder to any
successor-in-interest corporation, and such successor-in-interest shall assume
such rights and duties, in the event of a merger or consolidation of the Company
with or into another corporation or the sale of all or substantially all of the
Company's assets.
(e) Benefits of the Agreement. The terms and
conditions of this Agreement shall inure to the benefit of and be binding upon
the respective permitted successors
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and assigns of the parties. Nothing in this Agreement, express or implied, is
intended to confer upon any party other than the parties hereto or their
respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
(f) Counterparts. 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.
(g) Titles and Subtitles. The titles and subtitles
used in this Agreement are used for convenience only and are not to be
considered in construing or interpreting this Agreement.
(h) Severability. If one or more provisions of this
Agreement are held to be unenforceable under applicable law, such provision
shall be excluded from this Agreement and the balance of this Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms to the fullest extent permitted by law.
(i) Further Assurances. The parties shall execute and
deliver all such further instruments and documents and take all such other
actions as may reasonably be required to carry out the transactions contemplated
hereby and to evidence the fulfillment of the agreements herein contained.
(j) Entire Agreement. This Agreement is intended by
the parties as a final expression of their agreement and intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
(k) Applicable Law. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of New York without
regard to principles of conflicts of law.
7. Consent of Investors. In the event the Company is
required to obtain the consent or approval of the Investors pursuant to the
terms of this Agreement, such consent or approval shall be deemed given by the
Investors upon the Investors owning a majority of the Securities acquired under
the Purchase Agreement giving the Company such consent or approval.
12
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
The Company: INKINE PHARMACEUTICAL
COMPANY, INC.
By: /s/ ▇▇▇▇▇▇ Apple
Name: ▇▇▇▇▇▇ Apple
Title: CFO
The Investors:
By:_________________________
Name:
Title:
By:_________________________
Name:
Title:
13
The Investor: The Tail Wind Fund Ltd.
(Print full name here)
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: V.P., Treasurer & Director
The Tail Wind Fund Ltd.
MeesPierson (Bahamas) Ltd.
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇., Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Title: Auth. Sig.
Tel: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
Aggregate Purchase Price: $2 million
Number of Shares of Common Stock: 1,538,461
Number of Warrants: 507 692 (equal to 33% of total number of Shares)
Effective per share Purchase Price of Shares: $1.30
Exercise price of Warrants: $1.78 (equal to 110% of Market Price)
Address for Notice: as above
Please copy all correspondence to: _______________________________
▇▇▇▇▇ ▇▇▇▇▇, ESQ. _______________________________
THE TAIL WIND FUND LTD. _______________________________
c/o EASI _______________________________
▇▇▇ ▇▇▇▇▇, ▇▇. ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ _______________________________
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇.▇▇ _______________________________
TEL: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇ FAX 7657 _______________________________
Jurisdiction of organization: _______________________________
with a copy to:
▇▇▇▇▇ ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: 202/▇▇▇-▇▇▇▇
Facsimile: 202/508-6200
14
The Investor: Resonance Limited
Resonance Limited
By: /s/ ▇. ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
Name:
Title: Pres.
By:
Name:
Title:
Aggregate Purchase Price: $500,000
Number of Shares of Common Stock: 384,615
Number of Warrants: 126,923 (equal to 33% of total number of Shares)
Effective per share Purchase Price of Shares: $1.30
Exercise price of Warrants: $1.78 (equal to 110% of Market Price)
Address for Notice:
Resonance Limited
c/o Peregrine Corporate Service, Ltd.
Burleigh Manor
Peel Road
▇▇▇▇▇▇▇, Isle of ▇▇▇▇
▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Jurisdiction of organization: Isle of ▇▇▇▇
With a copy to:
▇▇▇▇▇ ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: 202/▇▇▇-▇▇▇▇
Facsimile: 202/508-6200
15
The Investor: Oxford Bioscience Partners II L.P.
Oxford Bioscience Partners II L.P.
By: OBP Management II L.P.
Name: OBP Management II L.P.
Title:
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: General Partner
Aggregate Purchase Price: $285,810.20
Number of Shares of Common Stock: 219,854
Number of Warrants: 72,552 (equal to 33% of total number of Shares)
Effective per share Purchase Price of Shares: $1.30
Exercise price of Warrants: $1.78 (equal to 110% of Market Price)
Address for Notice:
Oxford Bioscience Partners II L.P.
▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
__________________________________
__________________________________
__________________________________
Jurisdiction of organization: Delaware
With a copy to:
▇▇▇▇▇ ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: 202/▇▇▇-▇▇▇▇
Facsimile: 202/508-6200
16
The Investor: Oxford Bioscience Partners (Bermuda) II
Limited Partnership
Oxford Bioscience Partners (Bermuda) II
Limited Partnership
By: OBP Management II (Bermuda)
Limited Partnership
Name:
Title:
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: General Partner
Aggregate Purchase Price: $214,189.30
Number of Shares of Common Stock: 164,761
Number of Warrants: 54,371 (equal to 33% of total number of Shares)
Effective per share Purchase Price of Shares: $1.30
Exercise price of Warrants: $1.78 (equal to 110% of Market Price)
Address for Notice:
Oxford Bioscience Partners (Bermuda)
II Limited Partnership
c/o Westbroke Ltd.
Richmond House 12
Par-La Ville Road, P.O. Box HM1022
Hamilton, Bermuda
Jurisdiction of organization: Bermuda
with a copy to:
▇▇▇▇▇ ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: 202/▇▇▇-▇▇▇▇
Facsimile: 202/508-6200
