EXHIBIT 10.82
REGISTRATION RIGHTS AGREEMENT
Registration Rights Agreement (the "Agreement") dated as of January 18,
1996, between Interneuron Pharmaceuticals, Inc. a Delaware corporation, (the
"Corporation"), and each of the stockholders listed on the signature page hereto
(the "Stockholders").
WHEREAS, pursuant to an Offer to Purchase for Stock shares of Common
Stock of CPEC, Inc. formerly held by the Stockholders (the "CPEC Stock"), dated
December 27, 1995 (the "Offer") as amended on January 9, 1996 (the "Amended
Offer"), the Corporation has purchased the CPEC Stock owned by the undersigned
for a purchase price consisting of shares (the "Shares") of the Corporation's
Common Stock, $.001 par value ("IPI Common Stock") and has agreed to grant the
Stockholders certain registration rights relating to the resale of the Shares;
The Corporation and the Purchaser hereby agree as follows:
SECTION 1
REGISTRATION RIGHTS
(a) For purposes of this Agreement, the following definitions shall
apply:
(i) The terms "register", "registered", and "registration"
refer to a registration under the Securities Act of 1933, as amended (the "Act")
effected by preparing and filing a registration statement (the "Registration
Statement") or similar document in compliance with the Act or an amendment
thereto, and the declaration or ordering of effectiveness of such registration
statement, document or amendment thereto.
(ii) The term "Registrable Securities" means the Shares, any
Penalty Shares, and, if the undersigned's shares of CPEC Stock were tendered
pursuant to the Amended Offer, any shares of IPI Common Stock previously issued
to the Stockholders by the Corporation in connection with the Acquisition
Agreement, and any securities of the Corporation or securities of any successor
corporation issued as, or issuable upon the conversion or exercise of any
warrant, right or other security that is issued as, a dividend or other
distribution with respect to, or in exchange for or in replacement of, the
Shares.
(iii) The term "Market Price" shall mean the average of the
last sales prices of the Common Stock during the five trading days ending on the
day immediately preceding the date on which Registrable Securities are first
registered.
(iv) The term "Acquisition Agreement" means the acquisition
agreement dated as of May 13, 1994 between the Corporation, Intercardia, Inc.,
CPEC, Inc., Myocor, Inc. and the Stockholders.
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(b) (i) Subject to the provisions of Subsection (b)(ii) hereof, the
Corporation shall file a Registration Statement on Form S-3 covering the resale
of all the Registrable Securities provided, that if the registration statement
has not been declared effective by the SEC on or prior to April 1, 1996 (the
"Obligation Date") (except if the provisions of Subsection (b)(ii) are
applicable), the Corporation's sole liability to the Stockholders shall be to
issue to the Stockholders shares of IPI Common Stock (the "Penalty Shares") as
follows: (i) an aggregate (assuming and the Stockholders continue to hold all of
the Shares) of 5,000 Penalty Shares (or .219915552 shares for each share of CPEC
stock tendered) for the first two 30-day periods; (ii) an aggregate of 7,500
Penalty Shares (or .329873328 shares for each share of CPEC stock tendered) for
the next four 30-day periods; and (iii) an aggregate of 10,000 Penalty Shares
(or .4398311048 shares for each share of CPEC stock tendered) for the next six
30-day periods, after the Obligation Date that the Registration Statement is not
declared effective, on a pro rata basis for any partial period, up to a maximum
aggregate of 100,000 Penalty Shares or 4.398311048 shares for each share of CPEC
stock tendered), PROVIDED, HOWEVER that no fractional shares of IPI Common Stock
will be issued and Stockholders will be paid in cash in lieu of any fractional
shares based on the Market Price of any fractional share that would otherwise be
issuable.
(ii) The Corporation shall not be obligated to effect a
registration under Subsection (b)(i) hereof (A) if all of the Registrable
Securities held by Stockholders which are intended to be covered by the
registration are included in an effective registration statement; (B) within 120
days after the effective date of any other Registration Statement as to which
Stockholders were given piggy-back rights pursuant to subsection (c) hereof and
in which Stockholders were able to register and sell at least eighty percent
(80%) of the Registrable Securities requested by Stockholders to be included in
such registration, PROVIDED HOWEVER that in such event Interneuron will effect a
registration covering the Registrable Securities within six months after such
registration; (C) if the Corporation is engaged in, has plans to engage in (as
evidenced by a resolution of the Board of Directors of the Corporation and the
Corporation's good faith efforts towards preparation for such offering) or has
become party to a letter of intent contemplating a public offering of Common
Stock for its own account or for the account of any security holder through one
or more underwriters (unless the underwriters agree to include the Registrable
Securities in such underwritten offering on the same terms and conditions as the
other securities being sold in such offering in which case the Stockholders will
agree to include the Registrable Securities in such offering on such terms and
conditions) through the period ending 90 days after the closing of such public
offering; or (D) if precluded by agreements entered into prior to the date of
this agreement.
(c) If at any time after the Obligation Date and until such time as
Stockholders are free to sell the Registrable Securities without volume
limitations pursuant to Rule 144 under the Act (including for this purpose a
registration effected by the Corporation for shareholders other than the
Stockholders) the Corporation proposes to register any of its Common Stock or
other securities under the Act in connection with a public offering of such
securities (other than a registration on Form X-0, Xxxx X-0 or other limited
purpose form) and the Registrable Securities have not theretofore been included
in a registration statement under Subsection (b) which remains effective, the
Corporation shall, at such time, promptly give the Stockholders written notice
of such registration. Upon the written request of the Stockholders given within
ten (10) days after receipt of such notice by the Stockholders, the Corporation
shall use its best efforts to
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cause to be registered for resale under the Act all of the Registrable
Securities that the Stockholders has requested to be registered on the same
terms and conditions as the securities being sold in such offering, subject to
rights held by third parties under contracts existing prior to the date of this
agreement. The Corporation shall have no obligation under this Subsection (c) to
the extent that, with respect to a public offering registration, any underwriter
of such public offering reasonably requests that the Registrable Securities or a
portion thereof be excluded therefrom.
(d) Whenever required under this Section 1 to effect the registration
of any Registrable Securities, the Corporation shall, as expeditiously as
reasonably possible:
(i) Prepare and file with the SEC a registration statement
with respect to such Registrable Securities and use its best efforts to cause
such registration to become effective as soon as practicable and, upon the
request of the Stockholders, keep such registration statement effective for so
long as Stockholders desires to dispose of the securities covered by such
registration statement (but not after Stockholders are free to sell all of such
securities without volume limitations under Rule 144 under the Act).
(ii) Prepare and file with the SEC such amendments and
supplements to such registration statements and the prospectus used in
connection with such registration statement as may be necessary to comply with
the provisions of the Act with respect to the disposition of all securities
covered by such registration statement.
(iii) Furnish to the Stockholders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Act, and such other documents as the Stockholders may
reasonably request in order to facilitate the disposition of Registrable
Securities owned by Stockholders.
(iv) Use its best efforts to register and qualify the
securities covered by such registration statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably requested by
Stockholders, provided that the Corporation shall not be required in connection
therewith or as a condition thereto to qualify to do business or to file a
general consent to service and process in any such states or jurisdictions.
(v) Notify Stockholders of 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 material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing and promptly
file such amendments or supplements as may be required so that the Prospectus
does not include an untrue statement of material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing.
(e) Each Stockholder will furnish to the Corporation in connection with
any registration under this Section 1 such information regarding itself, the
Registrable Securities and other securities of the Corporation held by it, and
the intended method of disposition of such
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securities as shall be required to effect the registration of the Registrable
Securities held by such Stockholder.
(f) (i) The Corporation shall indemnify, defend and hold harmless each
holder of Registrable Securities which are included in a registration statement
pursuant to the provisions of Subsections (b) or (c) from and against any and
all claims, suits, demands, causes of action, losses, damages, liabilities,
costs or expenses ("Liabilities") to which any of them may become subject under
the Act or otherwise, arising from or relating to (A) any untrue statement or
alleged untrue statement of any material fact contained in such registration
statement, any prospectus contained therein or any amendment or supplement
thereto, or (B) the 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 in which they were made, not misleading; PROVIDED,
HOWEVER, that the Corporation shall not be liable in any such case to the extent
that any such Liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission so made in conformity
with written information furnished by or on behalf of such person specifically
for use in the preparation thereof.
(ii) Each holder of Registrable Securities included in a
registration pursuant to the provisions of Subsection (b) or (c) shall
indemnify, defend, and hold harmless the Corporation, its directors, officers
and controlling persons with respect to, any and all Liabilities to which any of
them may become subject under the Act or otherwise, arising from or relating to
(A) any untrue statement or alleged untrue statement of any material fact
contained in such registration statement, any prospectus contained therein or
any amendment or supplement thereto, or (B) the 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 in which they were made,
not misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission was
so made in reliance upon and in conformity with written information furnished by
or on behalf of such holder specifically for use in the preparation thereof.
(iii) Promptly after receipt by an indemnified party pursuant
to the provisions of Subsection (f) (i) or (f) (ii) of notice of the
commencement of any action involving the subject matter of the foregoing
indemnity provisions, such indemnified party shall, if a claim thereof is to be
made against the indemnifying party pursuant to the provisions of Subsection
(f)(i) or (f)(ii), promptly notify the indemnifying party of the commencement
thereof; PROVIDED, HOWEVER, that the failure to so notify the indemnifying party
shall not relieve it from its indemnification obligations hereunder except to
the extent that the indemnifying party is materially prejudiced by such failure.
If such action is brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying party shall
have the right to participate in, and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party; PROVIDED, HOWEVER,
if the defendants in any action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses different from or in addition to those
available to the indemnifying party, or if there is conflict of interest which
would prevent counsel for the indemnifying party from also representing the
indemnified party, the indemnified party shall have the right to select separate
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counsel to participate in the defense of such action on behalf of such
indemnified party. After notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the indemnifying party
shall not be liable to such indemnified party pursuant to Subsection (f) (i) or
(f) (ii) for any expense of counsel subsequently incurred by such indemnified
party in connection with the defense thereof other than reasonable costs of
investigation, unless (A) the indemnified party shall have employed counsel in
accordance with the provisions of the preceding sentence, or (B) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after the notice of the commencement of the action. An indemnifying party shall
not be responsible for amounts paid in settlement without its consent, provided
that its consent may not be unreasonably withheld.
(g) (i) With respect to the inclusion of Registrable Securities in a
registration statement pursuant to subsections (b) or (c), all fees, costs and
expenses of and incidental to such registration, inclusion and public offering
shall be borne by the Corporation; PROVIDED, HOWEVER, that any securityholders
participating in such registration shall bear their pro rata share of the
underwriting discounts and commissions, if any.
(ii) The fees, costs and expenses of registration to be borne
by the Corporation as in this Subsection (g) shall include, without limitation,
all registration, filing and NASD fees, printing expenses, fees and
disbursements of counsel and accountants for the Corporation, and all legal fees
and disbursements and other expenses of complying with state securities or Blue
Sky laws of any jurisdiction or jurisdictions in which securities to be offered
are to be registered and qualified. Fees and disbursements of counsel and
accountants for the selling securityholders shall, however, be borne by the
respective selling securityholder.
SECTION 2
MISCELLANEOUS
2.1 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
2.2 SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of and be binding upon
the successors and assigns of the parties.
2.3 ENTIRE AGREEMENT; AMENDMENT. This Agreement constitutes the full
and entire understanding and agreement between the parties with regard to the
subjects hereof. Neither this Agreement nor any term hereof may be amended,
waived, discharged or terminated except by a written instrument signed by the
Corporation and the Stockholders.
2.4 NOTICES, ETC. All notices and other communications required or
permitted hereunder shall be mailed by first-class mail, postage prepaid, or
delivered either by hand or by messenger, addressed (a) if to the Stockholders,
as indicated below the Stockholder's signature, or at such other address as the
Stockholder shall have furnished to the Corporation in writing, or (b) if to the
Corporation, at its address set forth below or at such other address as the
Corporation
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shall have furnished to the Stockholders and each such other holder in writing.
All such notices or communications shall be deemed given when actually delivered
by hand, messenger, facsimile or courier service or, if mailed, three days after
deposit in the U.S. mail.
2.5 DELAYS OR OMISSIONS. No delay or omission to exercise any right,
power or remedy accruing to any party to this Agreement (including any holder of
Shares), upon any breach or default of another party under this Agreement, shall
impair any such right, power or remedy of such party nor shall it be construed
to be a waiver of any such breach or default, or an acquiescence therein, or of
or in any similar breach or default thereafter occurring; nor shall any waiver
of any single breach or default be deemed a waiver of any other breach or
default theretofore or thereafter occurring. All remedies, either under this
Agreement or by law or otherwise afforded to any party, shall be cumulative and
not alternative.
2.6 SEVERABILITY. In case any provision of the Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
2.7 TITLES AND SUBTITLES. The titles of the Sections and subsections of
this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
2.8 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized officers as of the day and year
first written above.
INTERNEURON PHARMACEUTICALS, INC.
By: /S/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx, M.D.
Title: President and Chief Executive Officer
Address: One Ledgemont Center
00 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
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THE STOCKHOLDERS:
/S/ XXXXXX XXXXXXXX
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Name: Xxxxxx Xxxxxxxx
Address:
/S/ XXXXXX XXXXX
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Name: Xxxxxx Xxxxx
Address:
Savacor Trust
By: /S/ XXXXXX XXXXXXXX, TRUSTEE
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Name: Xxxxxx Xxxxxxxx, Trustee
Address:
/S/ XXXXXXXXX XXX XXXXXXX
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Name: Xxxxxxxxx Xxx Xxxxxxx
Address:
/S/ XXXXXX XXXXXXX
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Name: Xxxxxx Xxxxxxx
Address:
/S/ XXXXXXX XXXXXXX
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Name: Xxxxxxx Xxxxxxx
Address:
/S/ W. XXXXX XXXXXXXXX
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Name: W. Xxxxx Xxxxxxxxx
Address:
/S/ XXXXX XXXXXXX
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Name: Xxxxx Xxxxxxx
Address:
/S/ XXXXXXX XXXX
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Name: Xxxxxxx Xxxx
Address:
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/S/ XXXXX XXXXXXXXX
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Name: Xxxxx Xxxxxxxxx
Address:
/S/ XXXXX XXXXXX
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Name: Xxxxx Xxxxxx
Address:
/S/ XXX XXXXXXXX
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Name: Xxx Xxxxxxxx
Address:
/S/ XXXX XXXXXXXX
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Name: Xxxx Xxxxxxxx
Address:
/S/ J. DAVID PORT
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Name: J. David Port
Address:
/S/ XXXXXXX XXXXXXX
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Name: Xxxxxxx Xxxxxxx
Address:
/S/ XXXX XXX XXXXXXX
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Name: Xxxx Xxx Xxxxxxx
Address:
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