Execution Copy
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and entered
into as of December 9, 2004, by and among V.I. Technologies, Inc., a Delaware
corporation (the "Company"), and the investors signatory hereto (each a
"Purchaser" and collectively, the "Purchasers").
This Agreement is made pursuant to the Securities Purchase Agreement, dated
as of the date hereof among the Company and the Purchasers (the "Purchase
Agreement").
The Company and the Purchasers hereby agree as follows:
1. Definitions. Capitalized terms used and not otherwise defined herein
that are defined in the Purchase Agreement shall have the meanings given such
terms in the Purchase Agreement. As used in this Agreement, the following terms
shall have the following meanings:
"Business Day" means any day except Saturday, Sunday and any day which
shall be a federal legal holiday or a day on which banking institutions in the
State of New York are authorized or required by law or other governmental action
to close.
"Effectiveness Date" means the earlier of (a) the 90th calendar day
following the Filing Date and (b) the fifth (5th) Business Day following the
date on which the Company is notified by the Commission that the Registration
Statement will not be reviewed or is no longer subject to further review and
comments.
"Effectiveness Period" shall have the meaning set forth in Section 2(a).
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Filing Date" means the 30th calendar day following the Closing Date.
"Holder" or "Holders" means the holder or holders, as the case may be, from
time to time of Registrable Securities.
"Indemnified Party" shall have the meaning set forth in Section 5(c).
"Indemnifying Party" shall have the meaning set forth in Section 5(c).
"Losses" shall have the meaning set forth in Section 5(a).
REGISTRATION RIGHTS AGREEMENT 1
"Proceeding" means an action, claim, suit, investigation or proceeding
(including, without limitation, an investigation or partial proceeding, such as
a deposition), whether commenced or threatened.
"Prospectus" means the prospectus included in the Registration Statement
(including, without limitation, a prospectus that includes any information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under the Securities Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Registrable Securities covered by the
Registration Statement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
"Registrable Securities" means the shares of Common Stock and the Warrant
Shares issued in connection with the transactions contemplated by the Purchase
Agreement, together with any Securities issued or issuable upon any stock split,
dividend or other distribution, recapitalization or similar event with respect
to the foregoing.
"Registration Statement" means the registration statement required to be
filed hereunder, including the Prospectus, amendments and supplements to the
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 in the Registration Statement.
"Rule 415" means Rule 415 promulgated by the Commission pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission having substantially the
same effect as such Rule.
"Rule 424" means Rule 424 promulgated by the Commission pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission having substantially the
same effect as such Rule.
"Securities Act" means the Securities Act of 1933, as amended.
2. Registration.
(a) On or prior to the Filing Date, the Company shall prepare and file
with the Commission the Registration Statement covering the resale of all
of the Registrable Securities sold in the Closing for an offering to be
made on a continuous basis pursuant to Rule 415, or if Rule 415 is not
available for offers or sales of the Registrable Securities, for such other
means of distribution of Registrable Securities as the Holders may specify.
The Registration Statement required hereunder shall be on Form S-3 (except
if the Company is not then eligible to register for resale the Registrable
Securities on Form S-3, in which case the Registration shall be on another
appropriate form in accordance herewith). The Registration Statement
required hereunder shall contain (except if
REGISTRATION RIGHTS AGREEMENT 2
otherwise directed by the Holders) the "Plan of Distribution" attached
hereto as Annex A. The Company shall use its commercially reasonable
efforts to cause the Registration Statement to be declared effective under
the Securities Act as promptly as possible after the filing thereof, but in
any event not later than the Effectiveness Date, and shall use its
commercially reasonable efforts to keep such Registration Statement
continuously effective under the Securities Act (including the filing of
any necessary amendments, post-effective amendments and supplements) until
the date which is two years after the Closing Date or such later date when
all Registrable Securities covered by the Registration Statement (a) have
been sold pursuant to the Registration Statement or an exemption from the
registration requirements of the Securities Act or (b) may be sold without
volume restrictions pursuant to Rule 144(k) promulgated under the
Securities Act, as determined by the counsel to the Company pursuant to a
written opinion letter to such effect, addressed to the Company's transfer
agent (the "Effectiveness Period").
(b) If: (i) the Registration Statement is not filed on or prior to the
Filing Date, provided, however, that if a Holder fails to provide the
Company with any information that is required to be provided in the
Registration Statement with respect to such Holder, then the Filing Date
shall be extended until five (5) Business Days following the date of
receipt by the Company of such required information, or (ii) the Company
fails to file with the Commission a request for acceleration in accordance
with Rule 461 promulgated under the Securities Act, within five (5)
Business Days of the date that the Company is notified (orally or in
writing, whichever is earlier) by the Commission that the Registration
Statement will not be "reviewed," or is not subject to further review, or
(iii) the Registration Statement filed or required to be filed hereunder is
not declared effective by the Commission on or before the Effectiveness
Date, or (iv) after the Registration Statement is first declared effective
by the Commission, it ceases for any reason to remain continuously
effective as to all Registrable Securities for which it is required to be
effective, or the Holders are not permitted to utilize the Prospectus
therein to resell such Registrable Securities, for in any such cases ten
(10) Business Days (which need not be consecutive days) in the aggregate
during any 12-month period (any such failure or breach being referred to as
an "Event," and for purposes of clauses (i) and (iii) the date on which
such Event occurs, or for purposes of clause (ii) the date on which such
five (5) Business Day period is exceeded, or for purposes of clause (iv)
the date on which such ten (10) Business Day period is exceeded, being
referred to as an "Event Date"), then in addition to any other rights the
Holders may have hereunder or under applicable law: (x) on each such Event
Date the Company shall pay to each Holder an amount in cash, as liquidated
damages and not as a penalty, equal to 1.5% of the aggregate purchase price
paid by such Holder pursuant to the Purchase Agreement for any Registrable
Securities then held by such Holder and not then transferable pursuant to
the Registration Statement; and (y) on each monthly anniversary of each
such Event Date (if the applicable Event shall not have been cured by such
date) until the applicable Event is cured, the Company shall pay to each
Holder an amount in cash, as liquidated damages and not as a penalty, equal
to 1.5% of the aggregate purchase price paid by such Holder pursuant to the
Purchase Agreement for any Registrable Securities then held by such Holder
and not then transferable pursuant to the Registration Statement. If the
Company
REGISTRATION RIGHTS AGREEMENT 3
fails to pay any liquidated damages pursuant to this Section in full within
seven days after the date payable, the Company will pay interest thereon at
a rate of 15% per annum (or such lesser maximum amount that is permitted to
be paid by applicable law) to the Holder, accruing daily from the date such
liquidated damages are due until such amounts, plus all such interest
thereon, are paid in full. The parties hereto agree that the liquidated
damages provided for in this section constitute a reasonable estimate of
the damages that may be incurred by the Purchasers by reason of the failure
of the Company to file or cause to be declared effective the Registration
Statement, or by reason of inability to offer and sell Registrable
Securities pursuant to the Registration Statement, in accordance to the
provisions hereof.
3. Registration Procedures
In connection with the Company's registration obligations hereunder, the Company
shall:
(a) Not less than three (3) Business Days prior to the filing of the
Registration Statement or any related Prospectus or any amendment or
supplement thereto, the Company shall (i) furnish to the Holders copies of
all such documents proposed to be filed (including documents incorporated
or deemed incorporated by reference to the extent requested by such Person)
which documents will be subject to the review of such Holders, and (ii)
cause its officers and directors, counsel and independent certified public
accountants to respond to such inquiries as shall be necessary, in the
reasonable opinion of respective legal counsel to conduct a reasonable
investigation within the meaning of the Securities Act. The Company shall
not file the Registration Statement or any such Prospectus or any
amendments or supplements thereto to which the Holders of a majority of the
Registrable Securities shall reasonably object in good faith.
(b) (i) Prepare and file with the Commission such amendments,
including post-effective amendments, to the Registration Statement and the
Prospectus used in connection therewith as may be necessary to keep the
Registration Statement continuously effective as to the Registrable
Securities for the Effectiveness Period; (ii) cause the related Prospectus
to be amended or supplemented by any required Prospectus supplement, and as
so supplemented or amended to be filed pursuant to Rule 424; (iii) respond
as promptly as reasonably possible to any comments received from the
Commission with respect to the Registration Statement or any amendment
thereto; and (iv) comply in all material respects with the provisions of
the Securities Act and the Exchange Act with respect to the disposition of
all Registrable Securities covered by the Registration Statement in
accordance with the intended methods of disposition by the Holders thereof
set forth in the Registration Statement as so amended or in such Prospectus
as so supplemented.
(c) Notify the Holders of Registrable Securities to be sold as
promptly as reasonably possible (and, in the case of (i)(A) below, not less
than two (2) Business Days prior to such filing) and (if requested by any
such Person) confirm such notice in writing promptly following the day (i)
(A) when a Prospectus or any Prospectus supplement or
REGISTRATION RIGHTS AGREEMENT 4
post-effective amendment to the Registration Statement is proposed to be
filed; (B) when the Commission notifies the Company whether there will be a
"review" of the Registration Statement and whenever the Commission comments
in writing on the Registration Statement (the Company shall upon request
provide true and complete copies thereof and all written responses thereto
to each of the Holders); and (C) with respect to the Registration Statement
or any post-effective amendment, when the same has become effective; (ii)
of any request by the Commission or any other Federal or state governmental
authority during the period of effectiveness of the Registration Statement
for amendments or supplements to the Registration Statement or Prospectus
or for additional information; (iii) of the issuance by the Commission or
any other federal or state governmental authority of any stop order
suspending the effectiveness of the Registration Statement covering any or
all of the Registrable Securities or the initiation of any Proceedings for
that purpose; (iv) 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 Registrable Securities for sale in any
jurisdiction, or the initiation or threatening of any Proceeding for such
purpose, and (v) of the occurrence of any event or passage of time that
makes the financial statements included in the Registration Statement
ineligible for inclusion therein or any statement made in the Registration
Statement or Prospectus or any document incorporated or deemed to be
incorporated therein by reference untrue in any material respect or that
requires any revisions to the Registration Statement, Prospectus or other
documents so that, in the case of the Registration Statement or the
Prospectus, as the case may be, 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, in light of the
circumstances under which they were made, not misleading.
(d) Use its commercially reasonable efforts to avoid the issuance of,
or, if issued, obtain the withdrawal of (i) any order suspending the
effectiveness of the Registration Statement, or (ii) any suspension of the
qualification (or exemption from qualification) of any of the Registrable
Securities for sale in any jurisdiction, at the earliest practicable
moment.
(e) To the extent requested by such Holders, furnish to each Holder,
without charge, at least one conformed copy of the Registration Statement
and each amendment thereto, including financial statements and schedules,
all documents incorporated or deemed to be incorporated therein by
reference, and all exhibits (including those previously furnished or
incorporated by reference) promptly after the filing of such documents with
the Commission.
(f) Promptly deliver to each Holder, 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 in
connection with resales by the Holder of Registrable Securities. The
Company hereby consents to the use of such Prospectus and each amendment or
supplement thereto by each of the selling Holders in connection with the
offering and sale of the Registrable Securities covered by such
REGISTRATION RIGHTS AGREEMENT 5
Prospectus and any amendment or supplement thereto, except after the giving
of any notice pursuant to Section 3(b).
(g) Use its commercially reasonable efforts to register or qualify or
cooperate with the selling Holders in connection with the registration or
qualification (or exemption from the Registration or qualification) of such
Registrable Securities for the resale by the Holder under the securities or
Blue Sky laws of such jurisdictions within the United States as any Holder
reasonably requests in writing, to keep each of the registration or
qualification (or exemption therefrom) effective during the Effectiveness
Period and to do any and all other acts or things reasonably necessary to
enable the disposition in such jurisdictions of the Registrable Securities
covered by the Registration Statement; provided, that the Company shall not
be required to qualify generally to do business in any jurisdiction where
it is not then so qualified, subject the Company to any material tax in any
such jurisdiction where it is not then so subject or file a general consent
to service of process in any such jurisdiction.
(h) If requested by the Holders, cooperate with the Holders to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be delivered to a transferee pursuant to the
Registration Statement, which certificates shall be free, to the extent
permitted by the Purchase Agreement, of all restrictive legends, and to
enable such Registrable Securities to be in such denominations and
registered in such names as any such Holders may request.
(i) Upon the occurrence of any event contemplated by Section 3(c)(v),
as promptly as reasonably possible, prepare a supplement or amendment,
including a post-effective amendment, to the 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, neither the Registration
Statement nor such Prospectus will 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.
REGISTRATION RIGHTS AGREEMENT 6
(j) Use commercially reasonable efforts to make available to its
security holders no later than the Availability Date (as defined below), an
earning statement covering a period of at least twelve (12) months,
beginning after the effective date of the Registration Statement, which
earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act, including Rule 158 promulgated thereunder. For the purpose
of this subsection, "Availability Date" shall mean the 45th day following
the end of the fourth fiscal quarter after the fiscal quarter that includes
the effective date of the 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.
(k) Comply with all applicable rules and regulations of the Commission
and use its commercially reasonable efforts to cause all Registrable
Securities to be listed for trading on the Nasdaq National Market System.
The Company may require each selling Holder to furnish to the Company a
certified statement as to the number of shares of Common Stock beneficially
owned by such Holder and, if required by the Commission, the person thereof that
has voting and dispositive control over the Shares.
4. Registration Expenses. All fees and expenses incident to the performance
of or compliance with this Agreement by the Company shall be borne by the
Company whether or not any Registrable Securities are sold pursuant to the
Registration Statement. The fees and expenses referred to in the foregoing
sentence shall include, without limitation, (i) all registration and filing fees
(including, without limitation, fees and expenses (A) with respect to filings
required to be made with the Trading Market on which the Common Stock is then
listed for trading, and (B) in compliance with applicable state securities or
Blue Sky laws), (ii) printing expenses (including, without limitation, expenses
of printing certificates for Registrable Securities and of printing prospectuses
if the printing of prospectuses is reasonably requested by the Holders of a
majority of the Registrable Securities included in the Registration Statement),
(iii) messenger, telephone and delivery expenses, (iv) fees and disbursements of
counsel for the Company, (v) Securities Act liability insurance, if the Company
so desires such insurance, and (vi) fees and expenses of all other Persons
retained by the Company in connection with the consummation of the transactions
contemplated by this Agreement. In addition, the Company shall be responsible
for all of its internal expenses incurred in connection with the consummation of
the transactions contemplated by this Agreement (including, without limitation,
all salaries and expenses of its officers and employees performing legal or
accounting duties), the expense of any annual audit and the fees and expenses
incurred in connection with the listing of the Registrable Securities on any
securities exchange as required hereunder.
5. Indemnification
(a) Indemnification by the Company. The Company shall, notwithstanding
any termination of this Agreement, indemnify and hold harmless each Holder,
the officers, directors, agents and employees of each of them, each Person
who controls any
REGISTRATION RIGHTS AGREEMENT 7
such Holder (within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act) and the officers, directors, agents and
employees of each such controlling Person, to the fullest extent permitted
by applicable law, from and against any and all losses, claims, damages,
liabilities, costs (including, without limitation, reasonable attorneys'
fees) and expenses (collectively, "Losses"), as incurred, to the extent
arising out of or relating to any untrue or alleged untrue statement of a
material fact contained in the Registration Statement, any Prospectus or
any form of prospectus or in any amendment or supplement thereto or in any
preliminary prospectus, or arising out of or relating to any omission or
alleged omission of a material fact required to be stated therein or
necessary to make the statements therein (in the case of any Prospectus or
form of prospectus or supplement thereto, in light of the circumstances
under which they were made) not misleading, except to the extent, but only
to the extent, that (1) such untrue statements or omissions are based
solely upon information regarding such Holder furnished in writing to the
Company by such Holder expressly for use therein, or to the extent that
such information relates to such Holder or such Holder's proposed method of
distribution of Registrable Securities as set forth in Annex A hereto or
any changes to Annex A hereto that are expressly approved in writing by
such Holder expressly for use in the Registration Statement, such
Prospectus or such form of Prospectus or in any amendment or supplement
thereto or (2) in the case of an occurrence of an event of the type
specified in Section 3(c)(ii)-(v), the use by such Holder of an outdated or
defective Prospectus after the Company has notified such Holder in writing
that the Prospectus is outdated or defective and prior to the receipt by
such Holder of the Advice contemplated in Section 6(c). The Company shall
notify the Holders promptly of the institution, threat or assertion of any
Proceeding of which the Company is aware in connection with the
transactions contemplated by this Agreement.
(b) Indemnification by Holders. Each Holder shall, severally and not
jointly, indemnify and hold harmless the Company, its directors, officers,
agents and employees, each Person who controls the Company (within the
meaning of Section 15 of the Securities Act and Section 20 of the Exchange
Act), and the directors, officers, agents or employees of such controlling
Persons, to the fullest extent permitted by applicable law, from and
against all Losses, as incurred, to the extent arising out of or based
upon: (x) such Holder's failure to comply with the prospectus delivery
requirements of the Securities Act or (y) any untrue or alleged untrue
statement of a material fact contained in the Registration Statement, any
Prospectus, or any form of prospectus, or in any amendment or supplement
thereto or in any preliminary prospectus, or arising out of or relating to
any omission or alleged omission of a material fact required to be stated
therein or necessary to make the statements therein not misleading (i) to
the extent, but only to the extent, that such untrue statement or omission
is contained in any information so furnished in writing by such Holder to
the Company specifically for inclusion in the Registration Statement or
such Prospectus or (ii) to the extent that (1) such untrue statements or
omissions are based solely upon information regarding such Holder furnished
in writing to the Company by such Holder expressly for use therein, or to
the extent that such information relates to such Holder or such Holder's
proposed method of distribution of Registrable Securities as set forth in
Annex A hereto or any changes to
REGISTRATION RIGHTS AGREEMENT 8
Annex A hereto that are expressly approved in writing by such Holder
expressly for use in the Registration Statement, such Prospectus or such
form of Prospectus or in any amendment or supplement thereto, or (2) in the
case of an occurrence of an event of the type specified in Section
3(c)(ii)-(v), the use by such Holder of an outdated or defective Prospectus
after the Company has notified such Holder in writing that the Prospectus
is outdated or defective and prior to the receipt by such Holder of the
Advice contemplated in Section 6(c). In no event shall the liability of any
selling Holder hereunder be greater in amount than the dollar amount of the
net proceeds received by such Holder upon the sale of the Registrable
Securities covered by the Registration Statement giving rise to such
indemnification obligation.
(c) Conduct of Indemnification Proceedings. If any Proceeding shall be
brought or asserted against any Person entitled to indemnity hereunder (an
"Indemnified Party"), such Indemnified Party shall promptly notify the
Person from whom indemnity is sought (the "Indemnifying Party") in writing,
and the Indemnifying Party shall have the right to assume the defense
thereof, including the employment of counsel reasonably satisfactory to the
Indemnified Party and the payment of all fees and expenses incurred in
connection with defense thereof; provided, that the failure of any
Indemnified Party to give such notice shall not relieve the Indemnifying
Party of its obligations or liabilities pursuant to this Agreement, except
(and only) to the extent that it shall be finally determined by a court of
competent jurisdiction (which determination is not subject to appeal or
further review) that such failure shall have prejudiced the Indemnifying
Party.
An Indemnified Party shall have the right to employ separate counsel
in any such Proceeding and to participate in the defense thereof, but the
fees and expenses of such counsel shall be at the expense of such
Indemnified Party or Parties unless: (1) the Indemnifying Party has agreed
in writing to pay such fees and expenses; (2) the Indemnifying Party shall
have failed promptly to assume the defense of such Proceeding and to employ
counsel reasonably satisfactory to such Indemnified Party in any such
Proceeding; or (3) the named parties to any such Proceeding (including any
impleaded parties) include both such Indemnified Party and the Indemnifying
Party, and such Indemnified Party shall have been advised by counsel that a
conflict of interest is likely to exist if the same counsel were to
represent such Indemnified Party and the Indemnifying Party (in which case,
if such Indemnified Party notifies the Indemnifying Party in writing that
it elects to employ separate counsel at the expense of the Indemnifying
Party, the Indemnifying Party shall not have the right to assume the
defense thereof and the reasonable fees and expenses of one separate
counsel shall be at the expense of the Indemnifying Party). The
Indemnifying Party shall not be liable for any settlement of any such
Proceeding effected without its written consent. No Indemnifying Party
shall, without the prior written consent of the Indemnified Party, effect
any settlement of any pending Proceeding in respect of which any
Indemnified Party is a 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.
REGISTRATION RIGHTS AGREEMENT 9
All reasonable fees and expenses of the Indemnified Party (including
reasonable fees and expenses to the extent incurred in connection with
investigating or preparing to defend such Proceeding in a manner not
inconsistent with this Section) shall be paid to the Indemnified Party, as
incurred, within ten Business Days of written notice thereof to the
Indemnifying Party; provided, that the Indemnified Party shall promptly
reimburse the Indemnifying Party for that portion of such fees and expenses
applicable to such actions for which such Indemnified Party is not entitled
to indemnification hereunder, determined based upon the relative faults of
the parties.
(d) Contribution. If a claim for indemnification under Section 5(a) or
5(b) is unavailable to an Indemnified Party (by reason of public policy or
otherwise), 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, in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party and
Indemnified Party in connection with the actions, statements or omissions
that resulted in such Losses as well as any other relevant equitable
considerations. The relative fault of such Indemnifying Party and
Indemnified Party shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission of a material
fact, has been taken or made by, or relates to information supplied by,
such Indemnifying Party or Indemnified Party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such action, statement or omission. The amount paid or payable by a
party as a result of any Losses shall be deemed to include, subject to the
limitations set forth in Section 5(c), any reasonable attorneys' or other
reasonable fees or expenses incurred by such party in connection with any
Proceeding to the extent such party would have been indemnified for such
fees or expenses if the indemnification provided for in this Section was
available to such party in accordance with its terms.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 5(d) were determined by pro rata
allocation or by any other method of allocation that does not take into
account the equitable considerations referred to in the immediately
preceding paragraph. Notwithstanding the provisions of this Section 5(d),
no Holder shall be required to contribute, in the aggregate, any amount in
excess of the amount by which the proceeds actually received by such Holder
from the sale of the Registrable Securities subject to the Proceeding
exceeds the amount of any damages that such Holder has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission, except in the case of fraud by such Holder.
The indemnity and contribution agreements contained in this Section are in
addition to any liability that the Indemnifying Parties may have to the
Indemnified Parties.
6. Miscellaneous
(a) No Piggyback on Registrations. The Company may not include
securities of the Company in the Registration Statement other than the
Registrable Securities, and
REGISTRATION RIGHTS AGREEMENT 10
the Company may not after the date hereof enter into any agreement
providing any such right to any of its security holders. The Company shall
use its reasonable best efforts to obtain waivers of piggyback registration
rights from existing security holders that have such rights and would
otherwise be entitled to exercise them with respect to the Registration
Statement. Except as set forth in the SEC Reports, no Person has any right
to cause the Company to effect the registration under the Securities Act of
any securities of the Company. The Company shall not file any other
registration statement until after the Effectiveness Date, except for the
Registration Statement on Form S-4 to be filed with the Commission with
respect to the shares of Common Stock to be issued in connection with the
Panacos Merger Agreement, the Registration Statement on Form S-3 to be
filed with the Commission with respect to the resale of shares of Common
Stock to be issued to certain stockholders of Panacos, pursuant to Section
5.17 of the Panacos Merger Agreement, and a Registration Statement on Form
S-2 to be filed with the Commission in connection with the shareholder
rights offering described in Section 4.16 of the Purchase Agreement.
(b) Compliance. Each Holder covenants and agrees that it will comply
with the prospectus delivery requirements of the Securities Act as
applicable to it in connection with sales of Registrable Securities
pursuant to the Registration Statement.
(c) Discontinued Disposition. Each Holder agrees by its acquisition of
such Registrable Securities that, upon receipt of a notice from the Company
of the occurrence of any event of the kind described in Section 3(c), such
Holder will forthwith discontinue disposition of such Registrable
Securities under the Registration Statement until such Holder's receipt of
the copies of the supplemented Prospectus and/or amended Registration
Statement 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 or Registration Statement. In the event of a discontinued
disposition under this Section 6(c), the Company will use its commercially
reasonable efforts to provide copies of the supplemented Prospectus and/or
amended Registration Statement or the Advice as soon as possible in order
to enable each Holder to resume dispositions of the Registrable Securities.
The Company may provide appropriate stop orders to enforce the provisions
of this paragraph.
(d) Piggy-Back Registrations. If at any time during the Effectiveness
Period there is not an effective Registration Statement covering all of the
Registrable Securities and the Company shall determine to prepare and file
with the Commission a registration statement relating to an offering for
its own account or the account of others under the Securities Act of any of
its equity securities, other than on Form S-4 or Form S-8 (each as
promulgated under the Securities Act) or their then equivalents relating to
equity securities to be issued solely in connection with any acquisition of
any entity or business or equity securities issuable in connection with
stock option or other employee benefit plans, then the Company shall send
to each Holder a written notice of such determination and, if within ten
(10) days after the date of such notice, any such Holder shall so request
REGISTRATION RIGHTS AGREEMENT 11
in writing, the Company shall include in such registration statement all or
any part of such Registrable Securities such Holder requests to be
registered, subject to customary underwriter cutbacks applicable to all
holders of registration rights.
(e) 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, unless the same shall be in writing and signed by
the Company and each Holder of the then outstanding Registrable Securities.
(f) Lock-up. Until the Purchasers beneficially own less than 5% (on a
fully-diluted basis) of the outstanding Common Stock and securities
convertible or exchangeable into Common Stock (including the Warrant
Shares), if the Company delivers to the Purchasers a certificate signed by
an officer of the Company stating that the managing underwriter of a
registered public offering of equity securities of the Company, all of
which relates to securities to be sold on a primary basis by the Company
(the "Offering"), has requested that the Purchasers refrain from selling or
otherwise transferring or disposing of any Registrable Securities then held
by the Purchasers for a specified period of time during the Offering, the
Purchasers shall refrain from selling or otherwise transferring or
disposing of any Registrable Securities then held by the Purchasers
beginning on the later of (i) the 10th Business Day after receipt of such
certificate from the Company and (ii) the commencement of the Offering
(which shall be the effective date of the registration statement for such
Offering) and ending following a specified period of time that is customary
under the circumstances (not to exceed ninety (90) days); provided,
however, that no holder of Registrable Securities shall be restrained from
selling or otherwise transferring or disposing of Registrable Securities
under this Section 6(f) unless the directors and officers of the Company,
and all holders of 5% or more (on a fully diluted basis) of the outstanding
Common Stock and securities convertible or exchangeable into Common Stock,
are also so restrained.
(g) Suspension of Trading. At any time after the Registrable
Securities are covered by an effective Registration Statement, the Company
may deliver to the Holders of such Registrable Securities a certificate
(the "Suspension Certificate") approved by the Chief Executive Officer of
the Company and signed by an officer of the Company stating that the
effectiveness of and sales of Registrable Securities under the Registration
Statement would:
(i) materially interfere with any transaction that would require the
Company to prepare financial statements under the Securities Act that the
Company would otherwise not be required to prepare in order to comply with
its obligations under the Exchange Act, or
(ii) require public disclosure of any transaction of the type
discussed in Section 6(g)(i) prior to the time such disclosure might
otherwise be required.
REGISTRATION RIGHTS AGREEMENT 12
Beginning ten (10) Business Days after the receipt of a Suspension
Certificate by Holders of Registrable Securities, the Company may, in its
discretion, require such Holders of Registrable Securities to refrain from
selling or otherwise transferring or disposing of any Registrable
Securities or other Company securities then held by such Holders for a
specified period of time that is customary under the circumstances (not to
exceed thirty (30) days). Notwithstanding the foregoing sentence, the
Company shall be permitted to cause Holders of Registrable Securities to so
refrain from selling or otherwise transferring or disposing of any
Registrable Securities or other securities of the Company on only one
occasion during each twelve (12) consecutive month period that the
Registration Statement remains effective. The Company may impose stop
transfer instructions to enforce any required agreement of the Holders
under this Section 6(g). If the Holders of Registrable Securities are
restrained from selling or otherwise transferring or disposing of
Registrable Securities under this Section 6(g) for a period that exceeds 30
consecutive days, or exceeds an aggregate of sixty (60) days (whether or
not consecutive) in any 365 day period, the Company shall pay to each
Holder an amount in cash, as liquidated damages and not as a penalty, equal
to 1.5% of the aggregate purchase price paid pursuant to the Purchase
Agreement for any Registrable Securities then held by such Holder, for each
thirty (30) day period during which the Holders of Registrable Securities
are so restrained.
(h) Notices. Any and all notices or other communications or deliveries
required or permitted to be provided hereunder shall be in writing and
shall be deemed given and effective on the earliest of (i) the date of
transmission, if such notice or communication is delivered via facsimile at
the facsimile number provided for below prior to 6:30 p.m. (New York City
time) on a Business Day, (ii) the Business Day after the date of
transmission, if such notice or communication is delivered via facsimile at
the facsimile number provided for below later than 6:30 p.m. (New York City
time) on any date and earlier than 11:59 p.m. (New York City time) on such
date, (iii) the Business Day following the date of mailing, if sent by
nationally recognized overnight courier service, or (iv) upon actual
receipt by the party to whom such notice is required to be given. The
address for such notices and communications shall be delivered and
addressed as set forth in the Purchase Agreement.
(i) 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 Holder. Each Holder may
assign their respective rights hereunder in the manner and to the Persons
as permitted under the Purchase Agreement.
(j) Counterparts. This Agreement may be executed in any number of
counterparts, 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
Agreement. In the event that any signature is delivered by facsimile
transmission, such signature shall create a valid binding obligation of the
party executing (or on whose behalf such signature is executed)
REGISTRATION RIGHTS AGREEMENT 13
the same with the same force and effect as if such facsimile signature were
the original thereof.
(k) Governing Law. All questions concerning the construction,
validity, enforcement and interpretation of this Agreement shall be
governed by and construed and enforced in accordance with the internal laws
of the Commonwealth of Massachusetts, without regard to the principles of
conflicts of law thereof.
(l) Cumulative Remedies. The remedies provided herein are cumulative
and not exclusive of any remedies provided by law.
(m) Severability. 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 commercially reasonable 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.
(n) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(o) Independent Nature of Purchasers' Obligations and Rights. The
obligations of each Purchaser hereunder are several and not joint with the
obligations of any other Purchaser hereunder, and no Purchaser shall be
responsible in any way for the performance of the obligations of any other
Purchaser hereunder. Nothing contained herein or in any other agreement or
document delivered at any closing, and no action taken by any Purchaser
pursuant hereto or thereto, shall be deemed to constitute the Purchasers as
a partnership, an association, a joint venture or any other kind of entity,
or create a presumption that the Purchasers are in any way acting in
concert with respect to such obligations or the transactions contemplated
by this Agreement. Each Purchaser shall be entitled to protect and enforce
its rights, including without limitation the rights arising out of this
Agreement, and it shall not be necessary for any other Purchaser to be
joined as an additional party in any proceeding for such purpose.
*************************
REGISTRATION RIGHTS AGREEMENT 14
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
V.I. TECHNOLOGIES, INC.
By: /s/ Xxxx X. Xxxx
------------------------------------
Name: Xxxx X. Xxxx
Title: President and CEO
BIOMEDICAL VALUE FUND, L.P.
By: /s/ Xxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
Title: Managing Director
BIOMEDICAL OFFSHORE VALUE FUND, LTD.
By: /s/ Xxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
Title: Managing Director
A.M. XXXXXX LIFE SCIENCE
VENTURES I, L.P.
By: AMP&A MANAGEMENT, LLC,
as General Partner
By: A.M. XXXXXX & ASSOCIATES, LLC,
as Managing Member
By: /s/ Ford S. Worthy
------------------------------------
Name: Ford S. Worthy
Title: Partner and CFO
AMPERSAND 1999 COMPANION FUND LIMITED
PARTNERSHIP
By: AMP-99 MANAGEMENT
COMPANY LIMITED LIABILITY COMPANY,
as General Partner
By: /s/ Xxxxxxx X. Xxx
------------------------------------
Name: Xxxxxxx X. Xxx
Title: Managing Member
REGISTRATION RIGHTS AGREEMENT
AMPERSAND 1999 LIMITED PARTNERSHIP
By: AMP-99 MANAGEMENT
COMPANY LIMITED LIABILITY COMPANY,
as General Partner
By: /s/ Xxxxxxx X. Xxx,
------------------------------------
Name: Xxxxxxx X. Xxx
Title: Managing Member
XXXXXX XXXXX INVESTMENT TRUST
By: /s/ Xxxxxx Xxxxx
------------------------------------
Name: Xxxxxx Xxxxx
Title: Trustee
LAKEVIEW DIRECT INVESTMENTS, L.P.
By: LAKE VIEW CAPITAL MANAGEMENT, LLC,
as General Partner
By: /s/ Xxxxxx Xxxxx,
------------------------------------
Name: Xxxxxx Xxxxx
Title: Managing Member
WHI GROWTH FUND, L.P.
By: XXXXXXX XXXXXX INVESTORS, INC.,
as general partner
By: /s/ Xxxx X. Xxxxxx,
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Chief Executive Officer
REGISTRATION RIGHTS AGREEMENT 16
PANACEA FUND, LLC
By: XXXXXXX XXXXXX INVESTORS, INC.,
as Manager
By: /s/ Xxxx X. Xxxxxx,
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Chief Executive Officer
NEXT CHAPTER HOLDINGS, L.P.
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: President and Corporate
General Partner
REGISTRATION RIGHTS AGREEMENT 17
ANNEX A
Plan of Distribution
The shares covered by this prospectus may be offered and sold from time to
time by the selling stockholders. The term "selling stockholder" includes
pledgees, donees, transferees or other successors in interest selling shares
received after the date of this prospectus from each selling stockholder as a
pledge, gift, partnership distribution or other non-sale related transfer. The
number of shares beneficially owned by a selling stockholder will decrease as
and when it effects any such transfers. The plan of distribution for the selling
stockholders' shares sold hereunder will otherwise remain unchanged, except that
the transferees, pledgees, donees or other successors will be selling
stockholders hereunder. To the extent required, we may amend and supplement this
prospectus from time to time to describe a specific plan of distribution.
The selling stockholders will act independently of us in making decisions
with respect to the timing, manner and size of each sale. The selling
stockholders may make these sales at prices and under terms then prevailing or
at prices related to the then current market price. The selling stockholders may
also make sales in negotiated transactions. The selling stockholders may offer
their shares from time to time pursuant to one or more of the following methods:
- ordinary brokerage transactions and transactions in which the
broker-dealer solicits purchasers;
- one or more block trades in which the broker-dealer will attempt
to sell the shares as agent but may position and resell a portion
of the block as principal to facilitate the transaction;
- purchases by a broker-dealer as principal and resale by the
broker-dealer for its account;
- an exchange distribution in accordance with the rules of the
applicable exchange;
- public or privately negotiated transactions;
- on the Nasdaq National Market (or through the facilities of any
national securities exchange or U.S. inter-dealer quotation
system of a registered national securities association, on which
the shares are then listed, admitted to unlisted trading
privileges or included for quotation);
- through underwriters, brokers or dealers (who may act as agents
or principals) or directly to one or more purchasers;
- a combination of any such methods of sale; and
- any other method permitted pursuant to applicable law.
REGISTRATION RIGHTS AGREEMENT A-1
In connection with distributions of the shares or otherwise, the selling
stockholders may:
- enter into hedging transactions with broker-dealers or other
financial institutions, which may in turn engage in short sales
of the shares in the course of hedging the positions they assume;
- sell the shares short and redeliver the shares to close out such
short positions;
- enter into option or other transactions with broker-dealers or
other financial institutions which require the delivery to them
of shares offered by this prospectus, which they may in turn
resell; and
- pledge shares to a broker-dealer or other financial institution,
which, upon a default, they may in turn resell.
In addition to the foregoing methods, the selling stockholders may offer
their shares from time to time in transactions involving principals or brokers
not otherwise contemplated above, in a combination of such methods or described
above or any other lawful methods. The selling stockholders may also transfer,
donate or assign their shares to lenders, family members and others and each of
such persons will be deemed to be a selling stockholder for purposes of this
prospectus. The selling stockholders or their successors in interest may from
time to time pledge or grant a security interest in some or all of the shares of
common stock, and if the selling stockholders default in the performance of
their secured obligations, the pledgees or secured parties may offer and sell
the shares of common stock from to time under this prospectus; provided however
in the event of a pledge or then default on a secured obligation by the selling
stockholder, in order for the shares to be sold under this registration
statement, unless permitted by law, we must distribute a prospectus supplement
and/or amendment to this registration statement amending the list of selling
stockholders to include the pledgee, secured party or other successors in
interest of the selling stockholder under this prospectus.
The selling stockholders may also sell their shares pursuant to Rule 144
under the Securities Act, which permits limited resale of shares purchased in a
private placement subject to the satisfaction of certain conditions, including,
among other things, the availability of certain current public information
concerning the issuer, the resale occurring following the required holding
period under Rule 144 and the number of shares being sold during any three-month
period not exceeding certain limitations.
Sales through brokers may be made by any method of trading authorized by
any stock exchange or market on which the shares may be listed or quoted,
including block trading in negotiated transactions. Without limiting the
foregoing, such brokers may act as dealers by purchasing any or all of the
shares covered by this prospectus, either as agents for others or as principals
for their own accounts, and reselling such shares pursuant to this prospectus.
The selling stockholders may effect such transactions directly, or indirectly
through underwriters, broker-dealers or agents acting on their behalf. In
effecting sales, broker-dealers or agents engaged by the selling stockholders
may arrange for other broker-dealers to participate. Broker-dealers or agents
may receive commissions, discounts or concessions from the selling
REGISTRATION RIGHTS AGREEMENT A-2
stockholders, in amounts to be negotiated immediately prior to the sale (which
compensation as to a particular broker-dealer might be in excess of customary
commissions for routine market transactions).
In offering the shares covered by this prospectus, the selling
stockholders, and any broker-dealers and any other participating broker-dealers
who execute sales for the selling stockholders, may be deemed to be
"underwriters" within the meaning of the Securities Act in connection with these
sales. Any profits realized by the selling stockholders and the compensation of
such broker-dealers may be deemed to be underwriting discounts and commissions.
The Company is required to pay all fees and expenses incident to the
registration of the shares.
The Company has agreed to indemnify the selling stockholders against
certain losses, claims, damages and liabilities, including liabilities under the
Securities Act.
REGISTRATION RIGHTS AGREEMENT A-3
