REGISTRATION RIGHTS AGREEMENT
This
REGISTRATION RIGHTS AGREEMENT (this “Agreement”)
is
dated as of October 15, 2008 and delivered by XTL Biopharmaceuticals Ltd.,
a
public company limited by shares organized under the laws of Israel (the
“Company”)
and
XTL Development, Inc., an indirect subsidiary of the Company (“XTL
Development”),
to
Quogue Bioventures LLC, a limited liability company formed under the laws of
the
State of Delaware (“Quogue”).
This
Agreement is effective as of January 15, 2007 (the “Effective
Date”).
WHEREAS,
the Company, XTL Development, Xxxxx Xxxxxxxx and Xxxxxxx Xxxxxxxx entered into
that certain binding term sheet, dated as of January 15, 2007 (the “Date
of Grant”),
setting forth in summary terms the compensation payable by the Company to Xxxxx
Xxxxxxxx and Xxxxxxx Xxxxxxxx, or their designees, for certain services provided
by them to the Company (the “Term
Sheet”);
WHEREAS,
the Company, and Quogue and Antecip Bioventures LLC (“Antecip”), as designees of
Xxxxx Xxxxxxxx and Xxxxxxx Xxxxxxxx, respectively, have entered into an
Agreement (the “Services
Agreement”),
dated
as of the date hereof, more fully setting forth the terms and conditions of
the
aforementioned compensation payable by the Company;
WHEREAS,
pursuant to the Services Agreement, the Company is granting to Quogue, as Xxxxx
Xxxxxxxx’x designee, certain stock appreciation rights (individually, a
“SAR”
and
collectively, the “SARs”);
WHEREAS,
the Company and Quogue agree that Quogue shall have certain registration rights
in the event the Company issues any ordinary shares of the Company to Quogue
as
payment upon Quogue’s exercise of such SARs, and the Company and Quogue desire
to more fully set forth the terms and conditions of such registration
rights;
NOW,
THEREFORE, the parties to this Agreement, intending to be legally bound hereby,
agree as follows:
1. Certain
Definitions.
As
used
in this Agreement, the following terms shall have the following
meanings:
“Affiliate”
means,
with respect to any person, any other person which directly or indirectly
controls, is controlled by, or is under common control with, such
person.
“Business
Day”
means
a
day, other than a Friday, Saturday or Sunday, on which banks in Tel Aviv, Israel
and New York City are open for the general transaction of business. For purposes
of Section 2(c) hereof, Business Day shall mean any day from Monday through
Friday.
“Holder”
shall
mean Quogue and any Affiliate or permitted transferee of Quogue who is a
subsequent holder of any Registrable Securities.
“Exercise
Date”
shall
have the meaning assigned to it in the Stock Appreciation Rights
Agreement.
“Exercise
Shares”
means
any Ordinary Shares issued to Holder upon Holder’s exercise of its SARs from
time to time pursuant to the SARS Agreement.
“Ordinary
Shares”
shall
mean the Company’s ordinary shares, par value NIS 0.02 per share, and any
securities into which such shares may hereinafter be reclassified.
“Parallel
Registration Rights Agreement”
shall
mean the registration rights agreement, dated as of the date hereof, by and
between the Company and Antecip.
“Prospectus”
shall
mean (i) the prospectus included in any Registration Statement, as amended
or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Registrable Securities covered by such
Registration Statement and by all other amendments and supplements to the
prospectus, including post-effective amendments and all material incorporated
by
reference in such prospectus, and (ii) any “free writing prospectus” as defined
in Rule 405 under the 1933 Act.
“Register,”
“registered”
and
“registration”
refer
to a registration made by preparing and filing a Registration Statement or
similar document in compliance with the 1933 Act (as defined below), and the
declaration or ordering of effectiveness of such Registration Statement or
document.
“Registrable
Securities”
shall
mean (i) the Exercise Shares, and (ii) any other securities issued or issuable
with respect to or in exchange for Exercise Shares; provided, that, a security
shall cease to be a Registrable Security upon (A) sale pursuant to a
Registration Statement or Rule 144 under the 1933 Act, or (B) such security
becoming eligible for sale by the Holder pursuant to Rule 144(b)(1) without
restriction.
“Registration
Statement”
shall
mean any registration statement of the Company filed under the 1933 Act that
covers the resale of any of the Registrable Securities pursuant to the
provisions of this Agreement, amendments and supplements to such Registration
Statement, including post-effective amendments, all exhibits and all material
incorporated by reference in such Registration Statement.
“SEC”
means
the U.S. Securities and Exchange Commission.
“SARS
Agreement”
means
that certain Stock Appreciation Rights Agreement, dated as of the date hereof,
by and between the Company and Holder.
“1933
Act”
means
the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
“1934
Act”
means
the Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.
2. Registration.
(a) Registration
Statements.
In the
event the Company pays any portion of the Exercise Amount (as defined in the
SARS Agreement ) in the form of Exercise Shares which are not registered under
the Securities Act, the Company shall prepare and file with the SEC, no later
than the Filing Deadline, a Registration Statement covering the resale of the
Registrable Securities. The “Filing
Deadline”
shall
mean the fifteenth (15th) calendar day after the corresponding Exercise Date
if
the Company is then eligible to utilize a registration statement for such resale
on Form F-3 or Form S-3, as applicable (in which event the registration
statement shall be on Form F-3 or Form S-3, as applicable), or the thirtieth
(30th) calendar day after the corresponding Exercise Date if the Company is
then
required to utilize a registration statement for such resale on Form F-1 or
Form
S-1, as applicable (in which event the registration statement shall be on Form
F-1 or Form S-1, as applicable). Such Registration Statement shall include
the
plan of distribution attached hereto as Exhibit
A,
subject
to any SEC comments. Such Registration Statement also shall cover, to the extent
allowable under the 1933 Act and the rules promulgated thereunder (including
Rule 416), such indeterminate number of additional Ordinary Shares resulting
from stock splits, stock dividends or similar transactions with respect to
the
Registrable Securities. Except for certain Ordinary Shares for Antecip and/or
its Affiliates which the Company may be required to register pursuant to the
Parallel Registration Rights Agreement, such Registration Statement shall not
include any Ordinary Shares or other securities for the account of any other
holder without the prior written consent of the Holder. The Registration
Statement (and each amendment or supplement thereto, and each request for
acceleration of effectiveness thereof) shall be provided in accordance with
Section 3(c) to the Holder and its legal counsel prior to its filing or other
submission.
2
(b) Expenses.
The
Company will pay all expenses associated with the registration of any
Registrable Securities hereunder, including filing and printing fees, the
Company’s legal counsel and accounting fees and expenses, costs associated with
clearing the Registrable Securities for sale under applicable state securities
laws and listing fees. The Company will also bear the expense of one counsel
to
the Holder in connection with the registration of any Registrable Securities
hereunder, provided that the maximum aggregate amount payable by the Company
with respect to such counsel and with respect to Quogue’s counsel pursuant to
Section 2(b) of the Parallel Registration Rights Agreement shall not exceed
$15,000.
(c) Effectiveness.
The
Company shall use commercially reasonable efforts to have an applicable
Registration Statement declared effective as soon as practicable. The Company
shall notify the Holder by facsimile or electronic mail as promptly as
practicable, and in any event, within twenty-four (24) hours, after any
Registration Statement is declared effective and shall promptly thereafter
provide the Holder with copies of any related Prospectus to be used in
connection with the sale or other disposition of the securities covered thereby.
If (A) a Registration Statement covering the Registrable Securities is not
declared effective by the SEC prior to the earlier of (x) five (5) Business
Days
after the SEC shall have informed the Company that no review of such
Registration Statement will be made or that the SEC has no further comments
on
such Registration Statement, or (y) the 90th
day
after the Exercise Date, or (B) after a Registration Statement has been declared
effective by the SEC, the Holder is not permitted to utilize the Prospectus
therein to resell such Registrable Securities for ten consecutive Business
Days
or in any individual case an aggregate of fifteen Business Days during any
12-month period (which need not be consecutive Business Days) for any reason
(including without limitation by reason of a stop order, or the Company’s
failure to update the Registration Statement) (any such failure or breach being
referred to as an “Event,”
and
for purposes of clause (A)(x) the date on which such five Business Day period is
exceeded, or for purposes of clause (A)(y) the date on which such 90-day period
is exceeded, or for purposes of clause (B) the date on which such ten or fifteen
Business Day period is exceeded, being referred to as an “Event
Date”),
then
the Company will pay to the Holder, as liquidated damages and not as a penalty,
an amount equal to 1.0% (or the highest monthly rate permitted by the laws
of
the State of New York, if lower) of the Exercise Amount corresponding to the
number of Registrable Securities registered or to be registered, for each thirty
(30) day period (or pro rata for any portion thereof) following the Event Date
(the “Blackout
Period”).
The
amounts payable as liquidated damages pursuant to this paragraph shall be paid
monthly within three (3) Business Days of the last day of each month following
the commencement of the Blackout Period until the termination of the Blackout
Period. The Company shall make such payments to the Holder in
cash.
3
3. Company
Obligations.
The
Company will use commercially reasonable efforts to effect the registration
of
the Registrable Securities from time to time in accordance with the terms
hereof, and pursuant thereto the Company will, as expeditiously as
possible:
(a) use
commercially reasonable efforts to cause each Registration Statement required
to
be filed hereunder to become effective and to remain continuously effective
for
a period that will terminate upon the earlier of (i) the date on which all
Registrable Securities covered by such Registration Statement as amended from
time to time, have been sold, (ii) the date on which all Registrable Securities
covered by such Registration Statement may be sold without restriction pursuant
to Rule 144(b)(1), or (iii) two years from the date of effectiveness of such
Registration Statement (the “Effectiveness
Period”),
and
advise the Holder in writing when the Effectiveness Period has
expired;
(b) prepare
and file with the SEC such amendments and post-effective amendments to each
applicable Registration Statement and Prospectus as may be necessary to keep
such Registration Statement effective for the Effectiveness Period and to comply
with the provisions of the 1933 Act and the 1934 Act with respect to the
distribution of all of the Registrable Securities covered thereby;
(c) provide
copies to and permit counsel designated by the Holder to review each applicable
Registration Statement and all amendments and supplements thereto no fewer
than
five (5) days prior to their filing with the SEC and not file any document
to
which such counsel reasonably objects;
(d) furnish
to the Holder and its legal counsel (i) promptly after the same is prepared
and
publicly distributed, filed with the SEC, or received by the Company (but not
later than two (2) Business Days after the filing date, receipt date or sending
date, as the case may be) one (1) copy of each applicable Registration Statement
and any amendment thereto, each preliminary prospectus and Prospectus and each
amendment or supplement thereto, and each letter written by or on behalf of
the
Company to the SEC or the staff of the SEC, and each item of correspondence
from
the SEC or the staff of the SEC, in each case relating to such Registration
Statement (other than any portion of any thereof which contains information
for
which the Company has sought confidential treatment), and (ii) such number
of
copies of a Prospectus, including a preliminary prospectus, and all amendments
and supplements thereto and such other documents as the Holder may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by the Holder that are covered by the related Registration
Statement;
(e) use
commercially reasonable efforts to (i) prevent the issuance of any stop order
or
other suspension of effectiveness and, (ii) if such order is issued, obtain
the
withdrawal of any such order at the earliest possible moment;
4
(f) prior
to
any public offering of Registrable Securities, use commercially reasonable
efforts to register or qualify or cooperate with the Holder and its counsel
in
connection with the registration or qualification of such Registrable Securities
for offer and sale under the securities or blue sky laws of such jurisdictions
requested by the Holder and do any and all other commercially reasonable acts
or
things necessary or advisable to enable the distribution in such jurisdictions
of the Registrable Securities covered by the Registration Statement;
provided, however, that the Company shall not be required in connection
therewith or as a condition thereto to (i) qualify to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
Section 3(f), (ii) subject itself to general taxation in any jurisdiction where
it would not otherwise be so subject but for this Section 3(f), or (iii) file
a
general consent to service of process in any such jurisdiction;
(g) use
commercially reasonable efforts to cause all Registrable Securities covered
by a
Registration Statement to be listed on each securities exchange, interdealer
quotation system or other market on which similar securities issued by the
Company are then listed;
(h) immediately
notify the Holder, at any time prior to the end of the Effectiveness Period,
upon discovery that, or upon the happening of any event as a result of which,
an
applicable Prospectus 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 light of the circumstances then
existing, and promptly prepare, file with the SEC and furnish to the Holder
a
supplement to or an amendment of such Prospectus as may be necessary so that
such Prospectus shall not include an untrue statement of a material fact or
omit
to state a material fact required to be stated therein or necessary to make
the
statements therein not misleading in light of the circumstances then existing;
and
(i) otherwise
use commercially reasonable efforts to comply with all applicable rules and
regulations of the SEC under the 1933 Act and the 1934 Act, including, without
limitation, Rule 172 under the 1933 Act, file any final Prospectus, including
any supplement or amendment thereof, with the SEC pursuant to Rule 424 under
the
1933 Act, promptly inform the Holder in writing if, at any time during the
Effectiveness Period, the Company does not satisfy the conditions specified
in
Rule 172 and, as a result thereof, the Holder is required to deliver a
Prospectus in connection with any disposition of Registrable Securities and
take
such other actions as may be reasonably necessary to facilitate the registration
of the Registrable Securities hereunder.
(j) with
a
view to making available to the Holder the benefits of Rule 144 (or its
successor rule) and any other rule or regulation of the SEC that may at any
time
permit the Holder to sell shares of Ordinary Shares to the public without
registration, the Company covenants and agrees to: (i) make and keep public
information available, as those terms are understood and defined in Rule 144,
at
all times following the date hereof; (ii) file with the SEC in a timely manner
all reports and other documents required of the Company under the 1933 Act
and
1934 Act; and (iii) furnish to the Holder upon request, as long as the Holder
owns any Registrable Securities, (A) a written statement by the Company that
it
has complied with the reporting requirements of the 1934 Act, (B) a copy of
the
Company’s most recent annual report, quarterly report or such other report or
document filed by the Company with the SEC, and (C) such other information
as
may be reasonably requested in order to avail the Holder of any rule or
regulation of the SEC that permits the selling of any such Registrable
Securities without registration.
5
4. Information.
The
Company shall not disclose material nonpublic information to the Holder, or
to
advisors to or representatives of the Holder, unless prior to disclosure of
such
information the Company identifies such information as being material nonpublic
information and provides the Holder, such advisors and representatives with
the
opportunity to accept or refuse to accept such material nonpublic information
for review and the Holder (if desirous of obtaining such information) enters
into an appropriate confidentiality agreement with the Company with respect
thereto.
5. Obligations
of Holder.
(a) The
Holder shall promptly furnish in writing to the Company such information
regarding itself, the Registrable Securities held by it and the intended method
of disposition of the Registrable Securities held by it, as shall be reasonably
required to effect the registration of such Registrable Securities and shall
execute such documents in connection with such registration as the Company
may
reasonably request.
(b) The
Holder, by its acceptance of any Registrable Securities agrees to cooperate
with
the Company as reasonably requested by the Company in connection with the
preparation and filing of a corresponding Registration Statement
hereunder.
(c) The
Holder agrees that, upon receipt of any notice from the Company of either (i)
the suspension of the effectiveness of the Registration Statement or (ii) the
happening of an Event pursuant to Section 2(c) hereof, the Holder will
immediately discontinue disposition of Registrable Securities pursuant to the
Registration Statement covering such Registrable Securities, until the Holder’s
receipt of the supplemented or amended prospectus filed with the SEC and until
and related post-effective amendment is declared effective by the SEC and notice
of such effectiveness shall have been promptly provided to the Holder by the
Company.
6. Indemnification.
(a) The
Company will indemnify and hold harmless the Holder and its officers, directors,
members, employees and agents, successors and assigns, and each other person,
if
any, who controls the Holder within the meaning of the 1933 Act, against any
losses, claims, damages or liabilities, joint or several, to which they may
become subject under the 1933 Act 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, any preliminary Prospectus or final
Prospectus, or any amendment or supplement thereof; (ii) any blue sky
application or other document executed by the Company specifically for that
purpose or based upon written information furnished by the Company filed in
any
state or other jurisdiction in order to qualify any or all of the Registrable
Securities under the securities laws thereof (any such application, document
or
information herein called a “Blue
Sky Application”);
(iii)
the omission or alleged omission to state therein a material fact required
to be
stated therein or necessary to make the statements therein not misleading;
(iv)
any violation by the Company or its agents of any rule or regulation promulgated
under the 1933 Act and the 1934 Act applicable to the Company or its agents
and
relating to action or inaction required of the Company in connection with such
registration; (v) any material violation of this Agreement; or (vi) any failure
to register or qualify the Registrable Securities included in any such
Registration in any state where the Company or its agents has affirmatively
undertaken or agreed in writing that the Company will undertake such
registration or qualification on the Holder’s behalf and will reimburse the
Holder, and each such officer, director or member and each such controlling
person for any legal or other expenses, including reasonable attorneys’ fees,
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided,
however,
that
the Company will not be liable in any such case if and to the extent that any
such loss, claim, damage or liability arises out of or is based upon an untrue
statement or omission so made in conformity with information furnished by the
Holder or any such controlling person in writing specifically for use in such
Registration Statement or Prospectus.
6
(b) The
Holder agrees, severally but not jointly, to indemnify and hold harmless, to
the
fullest extent permitted by law, the Company, its directors, officers,
employees, stockholders and each person who controls the Company (within the
meaning of the 0000 Xxx) against any losses, claims, damages, liabilities and
expense (including reasonable attorney fees) resulting from any untrue statement
of a material fact or any omission of a material fact required to be stated
in
the Registration Statement or Prospectus or preliminary Prospectus or amendment
or supplement thereto or necessary to make the statements therein not
misleading, to the extent, but only to the extent that such untrue statement
or
omission is contained in any information furnished in writing by the Holder
to
the Company specifically for inclusion in such Registration Statement or
Prospectus or amendment or supplement thereto. In no event shall the liability
of the Holder be greater in amount than the dollar amount of the proceeds (net
of all expense paid by the Holder in connection with any claim relating to
this
Section 6 and the amount of any damages the Holder has otherwise been required
to pay by reason of such untrue statement or omission) received by the Holder
upon the sale of the Registrable Securities included in the Registration
Statement giving rise to such indemnification obligation.
(c) Any
person entitled to indemnification hereunder shall (i) give prompt notice to
the
indemnifying party of any claim with respect to which it seeks indemnification
and (ii) permit such indemnifying party to assume the defense of such claim
with
counsel reasonably satisfactory to the indemnified party; provided
that any
person entitled to indemnification hereunder shall have the right to employ
separate legal counsel and to participate in the defense of such claim, but
the
fees and expenses of such legal counsel shall be at the expense of such person
unless (x) the indemnifying party has agreed to pay such fees or expenses,
or
(y) the indemnifying party shall have failed to assume the defense of such
claim
and employ counsel reasonably satisfactory to such person or (z) in the
reasonable judgment of any such person, based upon written advice of its legal
counsel, a conflict of interest exists between such person and the indemnifying
party with respect to such claims (in which case, if the person notifies the
indemnifying party in writing that such person elects to employ separate counsel
at the expense of the indemnifying party, the indemnifying party shall not
have
the right to assume the defense of such claim on behalf of such person); and
provided,
further,
that
the failure of any indemnified party to give notice as provided herein shall
not
relieve the indemnifying party of its obligations hereunder, except to the
extent that such failure to give notice shall materially adversely affect the
indemnifying party in the defense of any such claim or litigation. It is
understood that the indemnifying party shall not, in connection with any
proceeding in the same jurisdiction, be liable for fees or expenses of more
than
one separate firm of attorneys at any time for all such indemnified parties.
No
indemnifying party will, except with the consent of the indemnified party,
consent to entry of any judgment or enter into any settlement that does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to such indemnified party of a release from all liability in respect of such
claim or litigation.
7
(d) If
for
any reason the indemnification provided for in the preceding paragraphs (a)
and
(b) is unavailable to an indemnified party or insufficient to hold it harmless,
other than as expressly specified therein, then the indemnifying party shall
contribute to the amount paid or payable by the indemnified party as a result
of
such loss, claim, damage or liability in such proportion as is appropriate
to
reflect the relative fault of the indemnified party and the indemnifying party,
as well as any other relevant equitable considerations. No person guilty of
fraudulent misrepresentation within the meaning of Section 11(f) of the 1933
Act
shall be entitled to contribution from any person not guilty of such fraudulent
misrepresentation. In no event shall the contribution obligation of the Holder
be greater in amount than the dollar amount of the proceeds (net of all expenses
paid by such holder in connection with any claim relating to this Section 6
and
the amount of any damages such holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission) received by it upon the sale of the Registrable Securities giving
rise
to such contribution obligation.
7. Assignment
and Transfers.
Subject
to the 1933 Act and any other applicable securities laws, the rights and
interests of the Holder under this Agreement may be assigned or transferred
by
the Holder, including, without limitation, by will or by the laws of descent
and
distribution, without the necessity to obtain the consent of the Company, so
long as such assignment or transfer is in connection with the transfer of
Registrable Securities (or the SARs underlying such Registrable Securities)
to
the applicable assignee. This Agreement may not be assigned by the Company
without the prior written consent of the Holder except to any affiliate of
the
Company, or in connection with the acquisition (whether by merger,
consolidation, sale or otherwise) of the Company or all or substantially all
of
the Company’s assets by a third-party.
8. Amendments;
Waiver.
No
modification to any provision of this Agreement shall be binding unless in
writing and signed by both parties. No waiver of any rights under this Agreement
will be effective unless in writing signed by the party to be
charged.
8
9. Applicable
Law; Venue.
The
validity, construction, interpretation and effect of this Agreement shall be
governed by and construed in accordance with the laws of the State of New York,
USA, without giving effect to the conflicts of laws provisions thereof. The
Holder and the Company hereby irrevocably and unconditionally consent to submit
to the exclusive jurisdiction of the courts of the State of New York, USA and
of
the United States of America located in the State of New York, USA for any
actions, suits or proceedings arising out of or relating to this Agreement.
The
Holder and the Company hereby irrevocably and unconditionally waive any
objection to the laying of venue of any action, suit or proceeding arising
out
of this Agreement, in the courts of the State of New York, USA or the United
States of America located in the State of New York, USA and hereby further
irrevocably and unconditionally waive and agree not to plead or claim in any
such court that any such action, suit or proceeding brought in any such court
has been brought in an inconvenient forum. In the event of any legal proceedings
brought by the Company or the Holder in connection with the matters contemplated
under this Agreement, the non-prevailing party shall reimburse the prevailing
party for all legal fees reasonably incurred by such prevailing party in
connection with the relevant dispute(s) promptly after the issuance of any
final
judgment with respect to such dispute(s).
10. Notices.
All
notices and other communications under this Agreement shall be in writing and
shall be given by personal or courier delivery, facsimile, electronic
transmission or certified mail, return receipt requested, and shall be deemed
to
have been duly given upon receipt if personally delivered or delivered by
courier, on the date of transmission if transmitted by facsimile or other
electronic means, or three days after mailing if mailed via first class mail,
to
the addresses of the Company and Holder set forth below:
| (a) |
if
to the Company, to:
|
000
Xxxxxxxxx Xxxxxxxxx, Xxxxx X
Xxx
Xxxx,
XX 00000
Attention:
Xxx Xxxxxxx
Facsimile:
(000) 000-0000
with
a
copy to:
Xxxxxx
& Bird LLP
00
Xxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxx X. XxXxxxxxx, Esq.
Facsimile:
(000) 000-0000
and:
Xxxxxx
& Co. – Law Offices
Xx
Xxxxx,
00xx
Xxxxx
00
Xxxx
Xxxxxx Silver Road
Ramat
Gan, Israel 52506
Attn:
Xxxxx Xxxxxx
Facsimile:
+ 000-0-0000000
9
| (b) |
if
to the Holder, to:
|
Quogue
Bioventures LLC
0000
Xxxxxx xx xxx Xxxxxxxx
00xx
Xxxxx
Xxx
Xxxx,
XX 00000
Attention:
Xxxxx Xxxxxxxx
Facsimile:
(000) 000-0000
with
a
copy to:
Xxxxxx,
Xxxxx & Xxxxxxx LLP
000
Xxxx
Xxxxxx
Xxx
Xxxx,
XX 00000
Attention:
Xxxx Wider, Esq.
Facsimile:
(000)
000-0000
Any
party
may change such party’s address for notices by notice duly given pursuant to
this Section 10.
11. Validity.
If
any
provision of this Agreement is determined to be invalid in whole or in part
for
any reason, such unenforceable or invalid provision shall not affect the
legality, enforceability or validity of the rest of this Agreement. If any
provision is stricken in accordance with the previous sentence, then the
stricken provision shall be replaced with a legal, enforceable and valid
provision that is as similar in tenor to the stricken provision as is legally
possible. The provisions of this Agreement are intended solely for the benefit
of the Company and the Holder, and their respective permitted
assigns.
12. Further
Assurances.
The
parties shall execute and deliver all such further instruments and documents
and
take all such other actions as may reasonably be required to carry out the
transactions contemplated hereby and to evidence the fulfillment of the
agreements herein contained.
13. Entire
Agreement.
This
Agreement, together with the Services Agreement and the SARS Agreement,
constitutes and contains the entire agreement and understanding between the
parties with respect to the subject matter hereof and supersedes any prior
or
contemporaneous oral or written arrangements or understandings, including,
without limitation, the Term Sheet. Each party acknowledges and agrees that
they
have not made any representations, warranties or agreements of any kind
regarding the subject matter hereof, except as expressly set forth in this
Agreement, the Services Agreement or the SARS Agreement.
[Signature
Page Follows]
10
IN
WITNESS WHEREOF, the parties have executed this Registration Rights Agreement
as
of the date first written above.
|
By:
|
/s/
Xxx Xxxxxxx
|
|
Name:
Xxx Xxxxxxx
|
|
|
Title:
Chief Executive Officer
|
|
|
QUOGUE
BIOVENTURES LLC
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By:
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/s/
Xxxxx Xxxxxxxx
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Name:
Xxxxx Xxxxxxxx
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Title:
President
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11
EXHIBIT
A
PLAN
OF DISTRIBUTION
The
selling stockholders, which as used herein includes donees, pledgees,
transferees or other successors-in-interest selling ordinary shares or interests
in ordinary shares received after the date of this prospectus from a selling
stockholder as a gift, pledge, partnership distribution or other transfer,
may,
from time to time, sell, transfer or otherwise dispose of any or all of their
ordinary shares or interests in ordinary shares on any stock exchange, market
or
trading facility on which the shares are traded or in private transactions.
These dispositions may be at fixed prices, at prevailing market prices at the
time of sale, at prices related to the prevailing market price, at varying
prices determined at the time of sale, or at negotiated prices. To the extent
any of the selling stockholders gift, pledge or otherwise transfer the shares
offered hereby, such transferees may offer and sell the shares from time to
time
under this prospectus, provided that this prospectus has been supplemented
under
Rule 424(b)(3) or other applicable provision of the 1933 Act to include the
name
of such transferee in the list of selling stockholders under this prospectus,
unless there is an applicable exception under the 1933 Act that does not require
the filing of a prospectus supplement.
The
selling stockholders may use any
one or more of the following methods when disposing of shares or interests
therein:
-
ordinary brokerage transactions and
transactions in which the broker-dealer solicits purchasers;
-
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;
-
privately negotiated transactions;
-
short
sales effected after the date the registration statement of which this
prospectus is a part is declared effective by the SEC;
-
through
the writing or settlement of options or other hedging transactions, whether
through an options exchange or otherwise;
-
broker-dealers may agree with the selling stockholders to sell a specified
number of such shares at a stipulated price per share; and
-
a
combination of any such methods of sale.
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The
selling stockholders may, from time to time, pledge or grant a security interest
in some or all of the ordinary shares owned by them and, if they default in
the
performance of their secured obligations, the pledgees or secured parties may
offer and sell the ordinary shares, from time to time, under this prospectus,
or
under an amendment to this prospectus under Rule 424(b)(3) or other applicable
provision of the 1933 Act amending the list of selling stockholders to include
the pledgee, transferee or other successors in interest as selling stockholders
under this prospectus.
In
connection with the sale of our ordinary shares or interests therein, 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
ordinary shares in the course of hedging the positions they assume. The selling
stockholders may also sell ordinary shares short and deliver these securities
to
close out their short positions, or loan or pledge the ordinary shares to
broker-dealers that in turn may sell these securities. The selling stockholders
may also enter into option or other transactions with broker-dealers or other
financial institutions or the creation of one or more derivative securities
which require the delivery to such broker-dealer or other financial institution
of shares offered by this prospectus, which shares such broker-dealer or other
financial institution may resell pursuant to this prospectus (as supplemented
or
amended to reflect such transaction).
The
aggregate proceeds to the selling stockholders from the sale of the ordinary
shares offered by them will be the purchase price of the ordinary shares less
discounts or commissions, if any. Each of the selling stockholders reserves
the
right to accept and, together with their agents from time to time, to reject,
in
whole or in part, any proposed purchase of ordinary shares to be made directly
or through agents. We will not receive any of the proceeds from this
offering.
The
selling stockholders also may resell all or a portion of the ordinary shares
in
open market transactions in reliance upon Rule 144 under the 1933 Act, provided
that they meet the criteria and conform to the requirements of that
rule.
The
selling stockholders and any underwriters, broker-dealers or agents that
participate in the sale of the ordinary shares or interests therein may be
"underwriters" within the meaning of Section 2(11) of the 1933 Act. Specifically,
the selling stockholders who are registered broker-dealers are deemed to be
"underwriters" within the meaning of the 1933
Act.
In
addition, selling stockholders who are affiliates of registered broker-dealers
may be deemed to be “underwriters” within the meaning of the 1933
Act
if such
selling stockholder (i) did not acquire the ordinary shares in the ordinary
course of business or (ii) had any agreement or understanding, directly or
indirectly, with any person to distribute the ordinary shares. In such event,
any commissions received by such broker-dealers or agents and any profit on
the
resale of the ordinary shares purchased by them may be deemed to be underwriting
commissions or discounts under the 1933
Act,
and
such selling stockholders may be subject to certain additional regulations
and
statutory liabilities under the 1933
Act
and 1934
Act. To our knowledge and based upon information we received from the selling
stockholders, (i) each selling stockholder that is a registered
broker-dealer or affiliated with a registered broker-dealer acquired the
ordinary shares in the ordinary course of business, (ii) such selling
stockholder did not have any agreement or understanding, directly or indirectly,
with any person to distribute the shares of common stock, and (iii) no such
selling stockholder received any securities as underwriting compensation. We
are
also not aware of any underwriting plan or agreement, underwriters' or dealers'
compensation, or passive market making or stabilizing transactions involving
the
purchase or distribution of these securities.
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Any
discounts, commissions, concessions or profit they earn on any resale of the
ordinary shares may be underwriting discounts and commissions under the 1933
Act. Selling stockholders who are "underwriters" within the meaning of Section
2(11) of the 1933 Act will be subject to the prospectus delivery requirements
of
the 1933 Act.
To
the
extent required, the ordinary shares to be sold, the names of the selling
stockholders, the respective purchase prices and public offering prices, the
names of any agents, dealer or underwriter, any applicable commissions or
discounts with respect to a particular offer will be set forth in an
accompanying prospectus supplement or, a post-effective amendment to the
registration statement that includes this prospectus, or, if appropriate, a
filing pursuant to the 1934 Act.
In
order
to comply with the securities laws of some states, if applicable, the ordinary
shares may be sold in these jurisdictions only through registered or licensed
brokers or dealers. In addition, in some states the ordinary shares may not
be
sold unless it has been registered or qualified for sale or an exemption from
registration or qualification requirements is available and is complied
with.
We
have
advised the selling stockholders that the anti-manipulation rules of Regulation
M under the 1934 Act may apply to sales of ordinary shares in the market and
to
the activities of the selling stockholders and their affiliates. In addition,
to
the extent applicable we will make copies of this prospectus (as it may be
supplemented or amended from time to time) available to the selling stockholders
for the purpose of satisfying the prospectus delivery requirements of the 1933
Act. The selling stockholders may indemnify any broker-dealer that participates
in transactions involving the sale of the ordinary shares against certain
liabilities, including liabilities arising under the 1933 Act.
We
have
agreed to indemnify the selling stockholders against liabilities, including
liabilities under the 1933 Act and state securities laws, relating to the
registration of the ordinary shares offered by this prospectus. The selling
stockholders have agreed to indemnify us in certain circumstances against
certain liabilities, including liabilities under the 1933 Act.
We
have
agreed with the selling stockholders to keep the registration statement of
which
this prospectus constitutes a part effective until the earlier of (1) such
time
as all of the ordinary shares covered by this prospectus have been disposed
of
pursuant to and in accordance with the registration statement, (2) the date
on
which the ordinary shares may be sold pursuant to Rule 144(k) of the 1933 Act,
or (3) the date that is two years from the date of effectiveness of the
registration statement.
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