REGISTRATION RIGHTS AGREEMENT
Exhibit
(d)(1)(D)
REGISTRATION RIGHTS AGREEMENT (this
“Agreement”) dated as of
[ ],
2009, by and among EPIX Pharmaceuticals, Inc., a Delaware
corporation (the “Company”), and
the holders listed on Schedule I
hereto (each a “Stockholder” and,
collectively, the “Stockholders”) of the
Company’s common stock, par value $0.01 per share (the
“Common Stock”).
RECITALS
WHEREAS, the Stockholders own shares of Common Stock that were
distributed to the Stockholders pursuant to an exchange (the
“Exchange”) under Section 3(a)(9)
of the Securities Act (as defined below) for the Company’s
3.00% Convertible Senior Notes due June 15,
2024; and
WHEREAS, the Company, pursuant to the Exchange, agreed to
provide registration rights to any requesting Stockholders who
may be deemed affiliates (as defined under
Rule 144) of the Company.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises and
obligations contained herein, the parties agree as follows:
1. CERTAIN DEFINITIONS. As used in
this Agreement, the following terms will have the following
respective meanings:
“Agreement” is defined in the Preamble.
“Business Day” means any day that is not
a Saturday, a Sunday or a day on which banks in the State of New
York are generally closed for business.
“Commission” means the Securities and
Exchange Commission, or any other federal agency at the time
administering the Securities Act or the Exchange Act.
“Common Stock” means the common stock,
par value $0.01 per share, of the Company and any stock into
which such Common Stock may hereafter be converted or changed
(including by way of recapitalization, merger, consolidation,
other reorganization or otherwise).
“Company” is defined in the Preamble.
“Covered Person” is defined in
Section 5.1 of this Agreement.
“Demand Registration Statement” is
defined in Section 2.2 of this Agreement.
“Effective Date” means the date the
Registration Statement has been declared effective by the
Commission.
“Exchange” is defined in the Recitals.
“Exchange Act” means the Securities
Exchange Act of 1934, and any successor to such statute, and the
rules and regulations of the Commission issued under such Act,
as they each may, from time to time, be amended and in effect.
“Holder” means any Person holding
Registrable Shares (including, without limitation, if received
pursuant to a transfer) who may be deemed an affiliate (as
defined under Rule 144) of the Company.
“Person” means any individual,
partnership, corporation, company, association, trust, joint
venture, limited liability company, unincorporated organization,
entity or division, or any government, governmental department
or agency or political subdivision thereof.
“Register,” “registered,” and
“registration” refer to a registration
effected by preparing and filing a registration statement or
similar document in compliance with the Securities Act and the
automatic effectiveness or the declaration or ordering of
effectiveness of such Registration Statement or similar document.
“Registrable Shares” means any
(i) Common Stock issued to the Stockholders pursuant to the
Exchange, (ii) any other restricted shares of Common Stock
held by the Stockholders on the date hereof and
(iii) capital stock of the Company issued or issuable, with
respect to such shares of Common Stock as a result of any stock
split, stock dividend, recapitalization, exchange or similar
event or otherwise.
“Registration Expenses” means all
expenses incurred by the Company in complying with
Section 2 hereof, including, without limitation, all
registration and filing fees, listing fees, all fees and
expenses of complying with securities or blue sky laws, all
printing expenses, fees and disbursements of counsel for the
Company and its independent public accountants.
“Registration Statement” means a
registration statement filed by the Company with the Commission
under the Securities Act covering the Registrable Shares.
“Required Holders” means the holders of
at least a majority of the Registrable Shares.
“Rule 144” means Rule 144
under the Securities Act, and any successor rule or regulation
thereto, and in the case of any referenced section of such rule,
any successor section thereto, collectively and as from time to
time amended and in effect.
“Rule 415” means Rule 415
under the Securities Act, and any successor rule or regulation
thereto, and in the case of any referenced section of such rule,
any successor section thereto, collectively and as from time to
time amended and in effect.
“Rule 415 Offering” is defined in
Section 2.1 of this Agreement.
“Securities Act” means the Securities
Act of 1933, and any successor to such statute, and the rules
and regulations of the Commission issued under such Act, as they
each may, from time to time, be amended and in effect.
“Selling Holder” means any Holder on
whose behalf Registrable Shares are registered pursuant to
Section 2 hereof.
“Stockholders” is defined in the
Preamble.
“Termination Date” means the date on
which Registrable Shares cease to be Registrable Shares and
cease to have the rights accorded to such shares under this
Agreement in accordance with Section 4.3.
“Trading Day” means any day on which the
Common Stock is traded on the principal securities exchange or
other securities market on which the Common Stock is then traded.
“Underwriters” means the underwriters,
if any, of the offering being registered under the 1933 Act.
“Underwritten Offering” means a sale of
securities of the Company to an Underwriter or Underwriters for
reoffering to the public.
| 2. | REQUIRED REGISTRATION. |
2.1. Shelf Registration.
2.1.1 At any time or from time to time after the
consummation of the Exchange, any Holder of shares of Common
Stock issued pursuant to the Exchange may by written notice to
the Company, request that the Company file a Registration
Statement providing for the resale of all or part of such
Holder’s Registrable Shares in an offering to be made on a
continuous or delayed basis pursuant to Rule 415 (a
“Rule 415 Offering”).
2.1.2 Promptly after receipt of notice requesting
registration pursuant to Section 2.1.1, the Company
will give written notice of such requested registration to all
other Holders of Registrable Shares, if any. Subject
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to the terms and conditions set forth herein, the Company will
prepare and file with the Commission no later than the
applicable Filing Deadline (as defined below) a Registration
Statement for the resale of the Registrable Shares that the
Company has been requested to register by the Holders requesting
such registration and all other Registrable Shares that the
Company has been requested to register by other Holders, so long
as written notice is delivered to the Company not later than
five (5) Business Days prior to the effectiveness of the
Registration Statement.
2.2. Underwritten Demand Registrations.
2.2.1 If at any time the Company is not able to
register the Registrable Shares of any Holder for resale on a
continuous or delayed basis, any Holder or Holders of at least
40% of the Registrable Shares (the “Initiating
Holder”) may by written notice to the Company,
request that the Company file a Registration Statement (a
“Demand Registration Statement”) for the
offering of Registrable Shares in the form of a firm commitment
Underwritten Offering; and such Initiating Holder may require
that all Persons (including other Holders) participating in such
registration sell their Registrable Shares to the Underwriters
at the same price and on the same terms of underwriting
applicable to the Initiating Holder. If any Demand Registration
Statement involves an Underwritten Offering, the sole or
managing Underwriters and any additional investment bankers and
managers to be used in connection with such registration shall
be selected by the Initiating Holder (so long as such
Underwriter is not affiliated with any such Initiating Holder)
for which registration was requested in the request for a Demand
Registration Statement, subject to the approval of the Company
(such approval not to be unreasonably withheld or delayed).
2.2.2 Promptly after receipt of notice requesting
registration pursuant to Section 2.2.1, the Company
will give written notice of such requested registration to all
other Holders of Registrable Shares, if any. Subject to the
terms and conditions set forth herein, the Company will use its
reasonable best efforts to effect the registration under the
Securities Act of the Registrable Shares that the Company has
been requested to register by the Holders requesting such
registration and all other Registrable Shares that the Company
has been requested to register by other Holders, so long as
written notice is delivered to the Company not later than five
(5) Business Days prior to the effectiveness of the
Registration Statement.
2.2.3 If the sole or lead managing Underwriter, as
the case may be, of an Underwritten Offering shall advise the
Company in writing (with a copy to each Holder requesting
registration) on or before the date five (5) days prior to
the date then scheduled for such offering that, in its opinion,
the amount of Registrable Shares, if any, requested to be
included in such Demand Registration Statement exceeds the
number which can be sold in such offering within a price range
acceptable to the Holders of at least a majority of the
Registrable Shares being included on such Registration Statement
(the “Required Holders”) (such writing to state
the basis of such opinion and the approximate number of
Registrable Shares which may be included in such offering), the
Company shall include in such Demand Registration Statement, to
the extent of the number which the Company is so advised may be
included in such offering without such effect, the Registrable
Securities requested to be included in the Demand Registration
Statement by the Holders allocated pro rata among the Holders
based on the number of Registrable Shares held by each Holder.
In the event the Company shall not, by virtue of this
Section 2.2.3, include in any Demand Registration Statement
all of the Registrable Shares of any Holder requesting to be
included in such Demand Registration Statement, such Holder may,
upon written notice to the Company given within five
(5) days of the time such Holder first is notified of such
matter, reduce the amount of Registrable Shares it desires to
have included in such Demand Registration Statement, whereupon
only the Registrable Shares, if any, it desires to have included
will be so included and the Holders not so reducing shall be
entitled to a corresponding increase in the amount of
Registrable Shares to be included in such Demand Registration
Statement.
2.2.4 If requested by the sole or lead managing
Underwriter for any Underwritten Offering effected pursuant to a
Demand Registration Statement the Company shall enter into a
customary underwriting agreement with the Underwriters for such
offering, such agreement to be reasonably satisfactory in
substance and form to the Required Holders of the registration.
2.2.5 The Holders of Registrable Shares to be
distributed by Underwriters in an Underwritten Offering
contemplated by Section 2.2.1 shall be parties to the
underwriting agreement between the Company and such
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Underwriters and may, at such Holders’ option, require that
any or all of the conditions precedent to the obligations of
such Underwriters under such underwriting agreement be
conditions precedent to the obligations of such Holders of
Registrable Shares. No Holder shall be required to make any
representations or warranties to, or agreements with, the
Company or the Underwriters other than representations,
warranties or agreements regarding such Holder, such
Holder’s Registrable Shares and such Holder’s intended
method of disposition.
2.2.6 Notwithstanding anything herein to the
contrary, no Person may participate in any Underwritten Offering
hereunder unless such Person (i) agrees to sell its
securities on the same terms and conditions provided in any
underwritten arrangements approved by the Persons entitled
hereunder to approve such arrangement and (ii) accurately
completes and executes in a timely manner all questionnaires,
powers of attorney, indemnities, custody agreements,
underwriting agreements and other documents customary for such
an offering and reasonably required under the terms of such
underwriting arrangements.
2.3. Limitations.
2.3.1 The Company shall not be required to file more
than two (2) Registration Statements in any twelve
(12) month period pursuant to Section 2.
2.3.2 The Stockholders shall not be entitled to
request the filing of a Registration Statement less than ninety
(90) days following the date of effectiveness of any prior
Registration Statement filed hereunder.
2.3.3 The Company shall not be required to file a
Registration Statement pursuant to Section 2 unless
the number of shares to be included in the Registration
Statement shall equal at least two percent (2%) of the then
outstanding Common Stock.
2.3.4 Neither the Company nor any Person other than a
Holder shall have the right to include any shares in a
Registration Statement filed pursuant to this
Section 2.
2.4. A registration request delivered by a Holder
pursuant to Section 2.1 or 2.2 may be withdrawn prior to
the filing of the applicable Registration Statement by the
written request of Holders of at least a majority of the
Registrable Shares being included on such Registration Statement
(the “Required Holders”) (a “Withdrawn
Request”) and a Registration Statement may be withdrawn
prior to the effectiveness thereof by the Required Holders of
the registration (a “Withdrawn Registration”)
and such withdrawals shall be treated as a Registration
Statement which shall have been effected pursuant to this
Section 2, unless the Required Holders of such registration
reimburse the Company for its reasonable out-of-pocket
Registration Expenses relating to the preparation and filing of
such Registration Statement (to the extent actually incurred);
provided, however, that if a Withdrawn Request or
Withdrawn Registration is made because of a material adverse
change in the business or financial condition of the Company,
then such withdrawal shall not be treated as a Registration
Statement effected pursuant to this Section 2 (and shall
not be counted toward the number of Registration Statements to
which such Holders are entitled), and the Company shall pay all
Registration Expenses in connection therewith. Any Holder
requesting inclusion in a Registration may, at any time prior to
the effective date of the Registration Statement (and for any
reason), revoke such request by delivering written notice to the
Company revoking such requested inclusion.
| 3. | REGISTRATION PROCEDURES. If and whenever the Company is required by the provisions of this Agreement to use its reasonable best efforts to effect the registration of any of the Registrable Shares under the Securities Act, the Company and the Selling Holders will take the actions described below in this Section 3. |
3.1. Registration Statement.
3.1.1 In the case of any Registration Statement
requested pursuant to Section 2, the Company will
prepare and file such Registration Statement within thirty
(30) days after receipt of a request from a Stockholder
(the “Filing Deadline”) and undertake
reasonable best efforts to have such Registration Statement
declared effective no later than ninety (90) days
thereafter (the “Effectiveness Deadline”);
provided, that, during any periods that the
Company is unable to meet its obligations hereunder with respect
to a Demand Registration Statement because any Holder fails to
comply with its obligations under Section 2.2, all
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obligations of the Company hereunder, the performance of which
depends upon such Holder complying with its obligations set
forth in Section 2.2 shall be suspended, and all
related time periods shall be tolled until such Holder complies
with such obligations.
3.1.2 The Company shall undertake reasonable best
efforts to file the Registration Statement on
Form S-3.
In the event that
Form S-3
is not available for the registration of the resale of
Registrable Shares hereunder, the Company shall undertake
reasonable best efforts to (i) register the resale of the
Registrable Shares on another appropriate form reasonably
acceptable to the Holders and (ii) undertake to register
the Registrable Shares on
Form S-3
as soon as such form is available, provided that the Company
shall maintain the effectiveness of the Registration Statement
then in effect until such time as a Registration Statement on
Form S-3
covering the Registrable Securities has been declared effective
by the Commission.
3.1.3 By 9:30 a.m. New York time on the
Business Day following the Effective Date, the Company shall
file with the Commission in accordance with Rule 424 under
the Securities Act the final prospectus to be used in connection
with sales pursuant to such Registration Statement.
The Required Holders shall have the right to select one legal
counsel to review and oversee any registration pursuant to this
Agreement (“Legal Counsel”), which shall be
Xxxxxxx Xxxx & Xxxxx LLP or such other counsel as
thereafter designated by the Required Holders. The Company and
Legal Counsel shall reasonably cooperate with each other in
performing the Company’s obligations under this Agreement.
The Company shall also reimburse the Stockholders for the fees
and disbursements of Legal Counsel in connection with
registration, filing or qualification pursuant to
Sections 2 and 3 of this Agreement which amount shall be
limited to $20,000 for each such Registration Statement.
3.1.4 The Company shall (A) permit the Holders
and Legal Counsel to review and comment upon (i) a
Registration Statement at least three (3) Business Days
prior to its filing with the Commission and (ii) all
amendments and supplements to all Registration Statements
(except for Annual Reports on
Form 10-K,
Quarterly Reports on
Form 10-Q,
Current Reports on
Form 8-K,
and any similar or successor reports) within a reasonable time
prior to their filing with the Commission, and (B) not file
any Registration Statement or amendment or supplement thereto in
a form to which a Holder or Legal Counsel reasonably objects;
provided, that, during any periods that the
Company is unable to meet its obligations hereunder with respect
to the registration of Registrable Securities because any Holder
or Legal Counsel objects to the form of such Registration
Statement or amendment or supplement thereto, all obligations of
the Company hereunder, the performance of which depends upon
resolving such objection as provided in this
Section 3.1.4 shall be suspended, and all related
time periods shall be tolled until such objection is resolved by
the Company and such Holder or Legal Counsel, as applicable;
provided, further, that if such objection relates
solely to disclosure to be included in a Registration Statement
related to a specific Holder or Holders, the Company shall file
the Registration Statement with respect to all other Holders
within the applicable time period if such objection remains
unresolved. The Company shall furnish to the Holders and Legal
Counsel, without charge, copies of any correspondence from the
Commission or the staff of the Commission to the Company or its
representatives relating to any Registration Statement.
3.1.5 The Company shall use its reasonable best
efforts to prevent the issuance of any stop order or other
suspension of effectiveness of a Registration Statement, or the
suspension of the qualification of any of the Registrable Shares
for sale in any jurisdiction and, if such an order or suspension
is issued, to obtain the withdrawal of such order or suspension
at the earliest possible moment and to notify each Holder who
holds Registrable Shares being sold of the issuance of such
order and the resolution thereof or its receipt of actual notice
of the initiation or threat of any proceeding for such purpose.
3.1.6 The Company shall cooperate with the Holders
who hold Registrable Shares being offered and, to the extent
applicable, facilitate the timely preparation and delivery of
certificates (not bearing any restrictive legend) representing
the Registrable Shares to be offered pursuant to a Registration
Statement and enable such certificates to be in such
denominations or amounts, as the case may be, as the Holders may
reasonably request and registered in such names as the Holders
may request.
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3.1.7 Neither the Company nor any subsidiary or
affiliate thereof shall identify any Holder as an underwriter in
any public disclosure or filing with the Commission or any
securities exchange or other securities market without such
Holder’s written consent and any Holder being deemed an
underwriter by the Commission shall not relieve the Company of
any obligations it has under this Agreement, other than those
under Section 2.1.
3.2. Amendments and Supplements.
3.2.1 In the case of a Registration Statement filed
pursuant to Section 2, the Company will use its
reasonable best efforts to prepare and file with the Commission
any amendments and supplements to the Registration Statement and
the prospectus included in the Registration Statement as may be
necessary to keep the Registration Statement effective until the
earlier of (i) the time that the Registrable Shares covered
by such Registration Statement have been disposed of pursuant
thereto and (ii) with respect to any Holder, the time that
all such Registrable Shares of such Holder covered by the
Registration Statement can be sold without restriction or
limitation pursuant to Rule 144 and without the requirement
to be in compliance with Rule 144(c)(1) (or any successor
thereto) promulgated under the Securities Act.
3.2.2 The Company will use reasonable best efforts to
file any post-effective amendments to any Registration Statement
filed for an offering to be made on a continuous basis pursuant
to Rule 415, and any supplements to the prospectus included
within any such Registration Statement, as may be reasonably
requested by any Selling Holder to reflect any change in the
plan of distribution with respect to Registrable Shares included
in any such Registration Statement.
3.3. Copies of Prospectus. The
Company will furnish to each Selling Holder such reasonable
number of copies of the prospectus, including a preliminary
prospectus, in conformity with the requirements of the
Securities Act, and such other documents as the Selling Holders
may reasonably request in order to facilitate the public sale or
other disposition of the Registrable Shares owned by the Selling
Holders.
3.4. Blue Sky Qualification. The
Company will use its reasonable best efforts to register or
qualify the Registrable Shares covered by a Registration
Statement under the securities or blue sky laws of all
applicable jurisdictions in the United States, and do any and
all other acts and things that may be necessary or desirable to
enable the Selling Holder to consummate the public sale or other
disposition in such jurisdictions of the Registrable Shares
covered by the Registration Statement; provided,
however, that the Company will not be obligated to file
any general consent to service of process or to qualify as a
foreign corporation in any jurisdiction in which it is not so
qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it would not otherwise be
so subject.
3.5. Listing. The Company will use
its reasonable best efforts to cause all Registrable Shares
covered by the Registration Statement to be listed on each
securities exchange or other securities market, if any, on which
the Common Stock is then listed.
3.6. Notice of Prospectus
Defects. The Company will promptly notify the
Selling Holders of the happening of any event, as a result of
which the prospectus included or to be included in the
Registration Statement 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. In
addition, the Company will promptly notify the Selling Holders
of any stop orders issued by the Commission with respect to the
Registration Statement. Upon receipt of any such notification,
the Selling Holders will immediately cease making offers of
Registrable Shares and, in the case of an event described in the
first sentence of this Section 3.6, return all
prospectuses to the Company (other than a limited number of
copies retained for file purposes).
3.7. Delay of Registration and Suspension of
Offering. If at any time during the period
beginning on the date of this Agreement until the Termination
Date, the board of directors of the Company determines in the
exercise of reasonable good faith judgment that the filing of a
registration statement or the distribution under an effective
Registration Statement hereunder would require disclosure of any
financing, acquisition, corporate reorganization or other
transaction or development involving the Company or any of its
subsidiaries that is or would be material to the Company and
that, in the reasonable good faith business judgment of the
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board of directors, such disclosure would not at that time be in
the best interests of the Company, then the Company may direct
that a request for registration hereunder be delayed or that use
of the prospectus contained in a Registration Statement be
suspended, as applicable. The Company will notify all Holders
requesting the registration or all Selling Holders and the
underwriters, if any, as the case may be, of the delay or
suspension. In the case of notice suspending an effective
Registration Statement, each Selling Holder will immediately
discontinue any sales of Registrable Shares pursuant to such
Registration Statement until such Selling Holder has received
copies of a supplemented or amended prospectus or until such
Selling Holder is advised in writing by the Company that the
then-current prospectus may be used and has received copies of
any additional or supplemental filings that are incorporated or
deemed incorporated by reference in such prospectus.
The Company may not exercise the rights provided by
Section 3.7 to effect a delay or suspension for more
than ninety (90) days in any three hundred sixty
(360) day period, whether or not consecutive (an
“Allowable Grace Period”).
| 4. | CERTAIN OTHER PROVISIONS. |
4.1. Grant of Other Rights. The
Company may grant registration rights to other persons without
the prior consent of the Stockholders; provided,
that, no such grant will conflict with any of the
provisions of this Agreement. Neither the Company, nor any of
its security holders (other than the holders of Registrable
Shares in such capacity) shall have the right to include any
securities of the Company in any Registration Statement other
than Registrable Shares.
4.2. Additional Procedures. Each
Selling Holder will furnish to the Company such information
regarding such Selling Holder and the distribution proposed by
such Selling Holder as the Company may request in writing and as
will be required in connection with any registration,
qualification or compliance referred to in Section 3.
4.3. Termination of Status as Registrable
Shares. Registrable Shares will cease to be
Registrable Shares and cease to have the rights accorded to such
shares under this Agreement upon the earliest to occur of the
following events: (i) such shares shall have been disposed
of pursuant to an effective Registration Statement under the
Securities Act, (ii) such shares shall have been
transferred pursuant to a transaction under Rule 144 or
(iii) such shares shall have become eligible for sale
without restriction or limitation pursuant to Rule 144 and
without the requirement to be in compliance with
Rule 144(c)(1) (or any successor thereto) promulgated under
the Securities Act.
4.4. The rights under this Agreement shall be
automatically assignable by a Stockholder to any transferee that
acquires a number of Registrable Shares equal to at least one
percent (1%) of the Registrable Shares then outstanding if:
(i) the Stockholder agrees in writing with the transferee
or assignee to assign such rights, and a copy of such agreement
is furnished to the Company within a reasonable time after such
assignment; (ii) the Company is, within a reasonable time
after such transfer or assignment, furnished with written notice
of (a) the name and address of such transferee or assignee,
and (b) the securities with respect to which such
registration rights are being transferred or assigned;
(iii) immediately following such transfer or assignment the
further disposition of such securities by the transferee or
assignee is restricted under the Securities Act or applicable
state securities laws; and (iv) at or before the time the
Company receives the written notice contemplated by
clause (ii) of this sentence the transferee or assignee
delivers to the Company a written instrument by which such
transferee or assignee agrees to be bound by the obligations
imposed upon Stockholders under this Agreement to the same
extent as if such transferee or assignee were a Stockholder
under this Agreement.
| 5. | INDEMNIFICATION. |
5.1. Company Indemnification. In
the event of any registration of any of the Registrable Shares
under the Securities Act pursuant to this Agreement, then to the
extent permitted by law, the Company will indemnify and hold
harmless each Selling Holder, its directors and officers and
each other Person, if any, who controls such Selling Holder
within the meaning of the Securities Act or the Exchange Act
(each such Person
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being a “Covered Person”) against any
losses, claims, damages or liabilities, joint or several, to
which such Covered Person may become subject under the
Securities Act, the Exchange Act, state securities laws or
otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are
based upon (i) any violation of securities laws by the
Company, (ii) any untrue statement or alleged untrue
statement of any material fact contained in any Registration
Statement (or any amendment thereto) under which such
Registrable Shares were registered under the Securities Act, as
of the effective date of any such Registration Statement (or any
amendment thereto), or the omission or alleged omission
therefrom of a material fact required to be stated therein or
necessary in order to make the statements therein not
misleading, as of the effective date of any such Registration
Statement (or any amendment thereto), or (iii) solely
during the period that the Company is required to keep a
prospectus current in accordance with Section 3.2,
any untrue statement or alleged untrue statement of any material
fact contained in any preliminary or final prospectus (or any
amendment or supplement thereto), at the time of sale of
securities thereunder, that was filed in connection with a
Registration Statement under which such Registrable Shares were
registered under the Securities Act, or the omission or alleged
omission therefrom of a material fact necessary in order to make
the statements therein, in light of the circumstances under
which they were made, not misleading, at the time of sale of
securities thereunder; and the Company will reimburse such
Covered Person for any legal or any other expenses reasonably
incurred by such Covered Person, as they are incurred, in
connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however,
that the Company will not be liable to any Covered Person in any
such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any untrue statement or
alleged untrue statement or omission or alleged omission made in
such Registration Statement or prospectus, or any amendment or
supplement thereto, in reliance upon and in conformity with
information furnished to the Company, in writing, by or on
behalf of such Covered Person specifically for use in the
preparation thereof.
5.2. Selling Holder
Indemnification. In the event of any registration
of any of the Registrable Shares under the Securities Act
pursuant to this Agreement, then to the extent permitted by law,
each Selling Holder will indemnify and hold harmless the
Company, each of its directors and officers and each Person
(other than such Selling Holder), if any, who controls the
Company within the meaning of the Securities Act or the Exchange
Act, against any losses, claims, damages or liabilities, joint
or several, to which the Company, such directors and officers or
controlling persons may become subject under the Securities Act,
Exchange Act, state securities laws or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon (i) any
untrue statement or alleged untrue statement of any material
fact contained in any Registration Statement (or any amendment
thereto) under which such Registrable Shares were registered
under the Securities Act, as of the effective date of any such
Registration Statement (or any amendment thereto), or the
omission or alleged omission therefrom of a material fact
required to be stated therein or necessary in order to make the
statements therein not misleading, as of the effective date of
any such Registration Statement (or any amendment thereto) or
(ii) solely during the period that the Company is required
to keep a prospectus current in accordance with
Section 3.2, any untrue statement or alleged untrue
statement of any material fact contained in any preliminary or
final prospectus (or any amendment or supplement thereto), at
the time of sale of securities thereunder, that was filed in
connection with a Registration Statement under which such
Registrable Shares were registered under the Securities Act, or
the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading, at
the time of sale of securities thereunder, and each Selling
Holder will reimburse the Company, such directors and officers
or controlling persons for any legal or any other expenses
reasonably incurred by the Company, such directors and officers
or controlling persons, as they are incurred, in connection with
investigating or defending any such loss, claim, damage,
liability or action, if the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance
upon and in conformity with information furnished in writing to
the Company by or on behalf of such Selling Holder, specifically
for use in connection with the preparation of such Registration
Statement or prospectus, or any amendment or supplement thereto;
provided, however, that the
obligations of such Selling Holder hereunder will be limited to
an amount equal to the net proceeds to such Selling Holder from
the disposition of Registrable Shares pursuant to such
registration.
8
5.3. Notice of Claims,
etc. Promptly after receipt by an indemnified
party of notice of the commencement of any action or proceeding
involving a claim of the type referred to in the foregoing
provisions of this Section 5, such indemnified party
will, if a claim in respect thereof is to be made against any
indemnifying party, give written notice to each such
indemnifying party of the commencement of such action;
provided, however, that the failure of any
indemnified party to give such notice will not relieve such
indemnifying party of its obligations under this
Section 5, except to the extent that such
indemnifying party is materially prejudiced by such failure. In
case any such action is brought against an indemnified party,
each indemnifying party will be entitled to participate in and
to assume the defense thereof, jointly with any other
indemnifying party similarly notified, to the extent that it may
wish, with counsel reasonably satisfactory to such indemnified
party, and (subject to the following sentence) after notice from
an indemnifying party to such indemnified party of its election
so to assume the defense thereof, such indemnifying party will
not be liable to such indemnified party for any legal or other
expenses subsequently incurred by the latter in connection with
the defense thereof. The indemnified party may participate in
such defense at such party’s expense; provided,
however, that the indemnifying party will pay such
expense if representation of such indemnified party by the
counsel retained by the indemnifying party would be
inappropriate due to actual or potential conflict of interests
between the indemnified party and any other party represented by
such counsel in such proceeding; provided,
further, that in no event will the indemnifying party be
required to pay the expenses of more than one law firm as
counsel for all indemnified parties pursuant to this sentence,
plus one local counsel in each relevant jurisdiction if
necessary. If, within thirty (30) days after receipt of the
notice, such indemnifying party has not elected to assume the
defense of the action, such indemnifying party will be
responsible for any legal or other expenses reasonably incurred
by such indemnified party in connection with the investigation
and defense of the action, suit, investigation, inquiry or
proceeding. An indemnifying party may, in the defense of any
such claim or litigation, consent to the entry of a judgment or
enter into a settlement without the consent of the indemnified
party only if such judgment or settlement contains an
unconditional release of the indemnified party in respect of
such claims or litigation, contains no admission of culpability
and involves only the payment of monetary damages, which such
indemnifying party is able to pay. No indemnified party will
consent to entry of any judgment or settle such claim or
litigation without the prior written consent of the indemnifying
party, which may not be unreasonably withheld. The indemnified
party shall cooperate reasonably with the indemnifying party in
connection with any negotiation or defense of any such action or
claim by the indemnifying party and shall furnish to the
indemnifying party all information reasonably available to the
indemnified party which relates to such action or claim. The
indemnifying party shall keep the indemnified party fully
apprised at all times as to the status of the defense or any
settlement negotiations with respect thereto.
The indemnification required by this Section 5 shall be
made by periodic payments of the amount thereof during the
course of the investigation or defense, as and when bills are
received or indemnified losses, claims, damages or liabilities
are incurred.
The indemnity agreements contained herein shall be in addition
to (i) any cause of action or similar right of the
indemnified party against the indemnifying party or others, and
(ii) any liabilities the indemnifying party may be subject
to pursuant to the law.
5.4. Contribution. If the
indemnification provided for in Sections 5.1 or
5.2 hereof is unavailable to a party that would have been
an indemnified party under any such Section in respect of any
losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) referred to therein, then each
party that would have been an indemnifying party thereunder
will, in lieu of indemnifying such indemnified party, contribute
to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) in such proportion as
is appropriate to reflect the relative fault of such
indemnifying party on the one hand and such indemnified party on
the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof); provided,
however, that the obligations of any Selling
Holder hereunder will be limited to an amount equal to the net
proceeds to such Selling Holder from the disposition of
Registrable Shares pursuant to such registration. The relative
fault will be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material
fact or the omission or
9
alleged omission to state a material fact relates to information
supplied by such indemnifying party or such indemnified party
and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement
or omission. The parties agree that it would not be just and
equitable if contribution pursuant to this
Section 5.4 were determined by pro rata allocation
or by any other method of allocation that does not take account
of the equitable considerations referred to in the preceding
sentence. The amount paid or payable by a contributing party as
a result of the losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) referred to in this
Section 5.4 will include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. No Person
guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) will be entitled to
contribution from any Person who was not guilty of such
fraudulent misrepresentation.
| 6. | MISCELLANEOUS. |
6.1. Governing Law. This Agreement,
the rights of the parties and all claims, actions, causes of
action, suits, litigation, controversies, hearings, charges,
complaints or proceedings arising in whole or in part under or
in connection herewith, will be governed by and construed in
accordance with the domestic substantive laws of the State of
New York, without giving effect to any choice or conflict of law
provision or rule that would cause the application of the laws
of any other jurisdiction. Each party hereby irrevocably submits
to the exclusive jurisdiction of the state and federal courts
sitting in The City of New York, Borough of Manhattan, for the
adjudication of any dispute hereunder or in connection herewith
or with any transaction contemplated hereby or discussed herein,
and hereby irrevocably waives, and agrees not to assert in any
suit, action or proceeding, any claim that it is not personally
subject to the jurisdiction of any such court, that such suit,
action or proceeding is brought in an inconvenient forum or that
the venue of such suit, action or proceeding is improper. Each
party hereby irrevocably waives personal service of process and
consents to process being served in any such suit, action or
proceeding by mailing a copy thereof to such party at the
address for such notices to it under this Agreement and agrees
that such service shall constitute good and sufficient service
of process and notice thereof. Nothing contained herein shall be
deemed to limit in any way any right to serve process in any
manner permitted by law. EACH PARTY HEREBY IRREVOCABLY WAIVES
ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL
FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION
HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION
CONTEMPLATED HEREBY.
6.2. Entire Agreement; Amendment and
Waiver. This Agreement, together with any
documents, instruments and certificates explicitly referred to
herein, constitutes the entire agreement among the parties
hereto with respect to the subject matter hereof and supersedes
any and all prior discussions, negotiations, proposals,
undertakings, understandings and agreements, whether written or
oral, with respect thereto. Any term of this Agreement may be
amended or terminated and the observance of any term of this
Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively) with the
written consent of the Company and the Stockholders. Any such
amendment, termination or waiver will be binding on all Holders.
6.3. Notices. All notices,
requests, demands, claims and other communications required or
permitted to be delivered, given or otherwise provided under
this Agreement must be in writing and must be delivered, given
or otherwise provided:
(a) by hand (in which case, it will be effective upon
delivery);
(b) by facsimile (in which case, it will be effective upon
receipt of confirmation of good transmission); or
(c) by overnight delivery by a nationally recognized
courier service (in which case, it will be effective on the
Business Day after being deposited with such courier service);
10
in each case, to the address (or facsimile number) listed below:
If to the Company, to it at:
EPIX Pharmaceuticals, Inc.
0 Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Chief Financial Officer
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
0 Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Chief Financial Officer
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
and a copy (which shall not constitute notice) to:
Xxxxxxx Procter LLP
Exchange Place
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxxxx X. Xxxx, Esq.
Exchange Place
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxxxx X. Xxxx, Esq.
If to the Stockholders, to the address set forth on the
signature pages to this Agreement, with a copy to the
Stockholders’ counsel:
Xxxxxxx Xxxx & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
Each of the parties to this Agreement may specify different
address or facsimile number by giving notice in accordance with
this Section 6.3 to each of the other parties hereto.
6.4. Binding Effect; Succession and Assignment; No
Third-Party Beneficiary. This Agreement will be
binding upon and inure to the benefit of the successors and
assigns of the respective parties hereto. Except as expressly
provided herein, this Agreement is for the sole benefit of the
parties and their permitted successors and assignees and nothing
herein expressed or implied will give or be construed to give
any Person, other than the parties and such successors and
assignees, any legal or equitable rights hereunder.
6.5. Severability. If any provision
of this Agreement is found by any court of competent
jurisdiction to be invalid or unenforceable, the provision that
would otherwise be prohibited, invalid or unenforceable shall be
deemed amended to apply to the broadest extent that it would be
valid and enforceable, and the invalidity or unenforceability of
such provision shall not affect the validity of the remaining
provisions of this Agreement so long as this Agreement as so
modified continues to express, without material change, the
original intentions of the parties as to the subject matter
hereof and the prohibited nature, invalidity or unenforceability
of the provision(s) in question does not substantially impair
the respective expectations or reciprocal obligations of the
parties or the practical realization of the benefits that would
otherwise be conferred upon the parties. The parties will
endeavor in good faith negotiations to replace the prohibited,
invalid or unenforceable provision(s) with a valid provision(s),
the effect of which comes as close as possible to that of the
prohibited, invalid or unenforceable provision(s).
6.6. Headings. The headings
contained in this Agreement are for convenience purposes only
and will not in any way affect the meaning or interpretation
hereof.
6.7. Counterparts. This Agreement
may be executed in any number of counterparts, each of which
will be deemed an original, but all of which together will
constitute but one and the same instrument.
11
6.8. Holders. The obligations of
each Holder hereunder are several and not joint with the
obligations of any other Holder, and no provision of this
Agreement is intended to confer any obligations on any Holder
vis-à-vis any other Holder. Nothing contained herein, and
no action taken by any Holder pursuant hereto, shall be deemed
to constitute the Holder as a partnership, an association, a
joint venture or any other kind of entity, or create a
presumption that the Holders are in any way acting in concert or
as a group with respect to such obligations or the transactions
contemplated herein.
[Signature page follows]
12
IN WITNESS WHEREOF, the parties have caused this Registration
Rights Agreement to be executed by their duly authorized
representative as of the date first above written.
| THE COMPANY: | EPIX PHARMACEUTICALS, INC. | |||
| By: | ||||
| Name: | ||||
| Title: | ||||
| STOCKHOLDERS: | ||||
| Name of Holder: | ||||
| Signatory: | ||||
| Title: | ||||
| Address For Notice: | ||||
13
Schedule I
Stockholders
To Come.
