EXHIBIT 4.2
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and
entered into as of the 15th day of October, 1998, by and among CTL
ImmunoTherapies Corp., an Ontario corporation (the "Company"), Medical Research
Group, LLC, a limited liability company, XxXxxx Xxxxxx Advisory Inc., an Ontario
corporation, and Xxxxxx X. Xxxx (said parties other than the Company being
referred to collectively as the "Purchasers").
RECITALS
A. The Company and the Purchasers have entered into a Line of
Credit Agreement concurrently with the execution and delivery of this Agreement
(the "Credit Agreement") pursuant to which the Purchasers have agreed to make
available to the Company a line of credit aggregating $3 million. The
indebtedness under the Credit Agreement is convertible into Series A Preferred
Shares ("Preferred Shares") and, under certain circumstances, into Class A
Voting Common Shares of the Company ("Common Shares"). The Preferred Shares are
themselves convertible into Common Shares.
B. The parties now desire to enter into this Agreement to
provide, with respect to the Common Shares issuable upon conversion of the
indebtedness under the Credit Agreement and/or upon conversion of the Preferred
Shares, certain rights with respect to registration under the U. S. Securities
Act of 1933 or qualification under the analogous provisions of Canadian Law, all
on the terms and subject to the conditions set forth in this Agreement.
1.
AGREEMENT
NOW, THEREFORE, based on the preceding facts, and in consideration of
the mutual covenants set forth below, the parties to this Agreement agree as
follows:
1. DEFINITIONS. For the purposes of this Agreement, the following
words shall have the meanings set forth below:
"Canadian Law" means the statutes, regulations and policy
statements relating to the public distribution of securities in each of the
provinces of Canada in force from time to time;
"Commission" means the Securities and Exchange Commission or
any other federal agency at the time administering the Securities Act.
"Common Shares" shall have the meaning set forth in Paragraph
A of the Recitals.
"Company's Notice" shall have the meaning set forth in Section
2 hereof.
"Control Block" shall have the meaning specified under
Canadian Law.
"Credit Agreement" shall have the meaning set forth in
Paragraph A of the Recitals.
"Initial Public Offering" means the first sale of Common
Shares to the public which is effected pursuant to a registration statement
filed with and declared effective by the U.S. Securities and Exchange Commission
under the Securities Act of 1933 or pursuant to the qualifications of the Common
Shares under the analogous procedures under Canadian Law.
"Initiating Holders" means the holders of Registrable
Securities initially requesting registration of Registrable Securities pursuant
to Section 2 of this Agreement or, if Exhibit A is applicable, Section 1
thereof.
"Prospective Sellers" shall have the meaning set forth in
Section 7(a)(ii) hereof.
"Credit Agreement" shall have the meaning set forth in
Paragraph A of the Recitals.
"Piggyback Notice" shall have the meaning set forth in Section
4 hereof.
"Preferred Shares" shall have the meaning set forth in
Paragraph A of the Recitals and shall include shares issued with respect to any
such shares.
"Qualified Shares" shall have the meaning set forth in Section
1 of Exhibit A.
The terms "register," "registered" and "registration" refer to
a registration effected by preparing and filing a registration statement in
compliance with the Securities Act and applicable rules and regulations
thereunder, and the declaration or ordering of the
2.
effectiveness of such registration statement.
"Registrable Securities" means (i) any Common Shares issued or
issuable upon conversion of the Preferred Shares, (ii) any Common Shares issued
or issuable with respect to the Common Shares referred in clause (i) of this
paragraph by reason of a stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization. The number of shares of "Registrable Securities then
outstanding" shall be determined by the number of Common Shares outstanding
which are Registrable Securities and the number of Common Shares issuable
pursuant to then exercisable or convertible securities (including without
limitation the Promissory Notes delivered pursuant to the Credit Agreement and
the Preferred Shares) which are exercisable for or convertible into Registrable
Securities.
"Requesting Holders" shall have the meaning set forth in
Section 2 of this Agreement.
"Securities Act" means the Securities Act of 1933, as amended.
Other Terms. Unless the context otherwise requires, all capitalized
terms not defined in this Agreement shall have the respective meanings accorded
to them in the Credit Agreement.
2. REQUIRED REGISTRATIONS.
(a) DEMAND REGISTRATION. If, at any time after the
Company has completed an Initial Public Offering, Initiating Holders holding at
least a majority of the Registrable Securities then outstanding propose to
dispose of Common Shares having an aggregate price to the public (net of any
underwriters' discounts and commissions) of at least U.S.$5,000,000, then such
holders may request the Company in writing to effect such registration, stating
the form of registration statement under the Securities Act to be used, the
number of shares of Registrable Securities to be disposed of and the intended
method of disposition of such shares. If the Company's Initial Public Offering
occurred primarily in Canada under Canadian Law, then, in lieu of registration
under the U. S. Securities Act, the Common Shares shall be qualified under the
analogous provisions of Canadian Law in accordance with Exhibit A hereto. In
such event, all references herein to "register", "registered" and "registration"
shall refer to the qualification of securities for sale to the public in all
provinces of Canada by filing a prospectus in accordance with Canadian Law
mutatis mutandis.
(b) Upon receipt of the request of the Initiating Holders
pursuant to Section 2(a) above, the Company shall give prompt written notice
thereof to all other holders of Registrable Securities. Subject to the
provisions of this Subsection (b) and Section 3 below, the Company shall use its
best efforts promptly to effect the registration under the Securities Act of all
shares of Registrable Securities specified in the requests of the Initiating
Holders and the requests (stating the number of shares of Registrable Securities
to be disposed of and the intended method of disposition of such shares) of
other holders of shares of Registrable Securities ("Requesting Holders") given
within 30 days after receipt of such notice from the Company.
3. LIMITATIONS ON REQUIRED REGISTRATIONS.
3.
(a) The Company shall not be required to prepare and file
more than two (2) registration statements, which actually become or are declared
effective at the request of holders of Registrable Securities pursuant to
Section 2(a) hereof.
(b) Only Common Shares may be included in a registration,
and, whenever a registration requested by the holders of Registrable Securities
is for a firmly underwritten offering, if the underwriters determine, in their
sole discretion, that the number of Common Shares so included which are to be
sold by the holders of Registrable Securities is limited due to market
conditions, the holders (including both the Initiating Holders and the
Requesting Holders) of Registrable Securities proposing to sell their shares in
such underwriting and registration shall share pro rata in the available portion
of the registration in question, such sharing to be based upon the number of
shares of Registrable Securities then held by such holders, respectively. If any
holder of Registrable Securities disapproves of the terms of the underwriting,
such holder may elect to withdraw therefrom by written notice to the Company,
the underwriter and the Initiating Holders. The Registrable Securities so
withdrawn shall also be withdrawn from registration; provided, however, that, if
by the withdrawal of such Registrable Securities a greater number of shares of
Registrable Securities held by other holders of Registrable Securities may be
included in such registration (up to the maximum of any limitation imposed by
the underwriters), then the Company shall offer to all holders of Registrable
Securities who have included Registrable Securities in the registration the
right to include additional Registrable Securities in the same proportion used
in determining the limitation imposed by the provisions of this Section 3(b).
(c) The Company shall not be required to prepare and file
a registration statement pursuant to Section 2 hereof which would become
effective within 180 days following the effective date of a registration
statement filed by the Company with the Commission pertaining to an underwritten
public offering of securities for cash for the account of the Company or if the
Initiating Holders' request for registration is received by the Company
subsequent to such time as the Company in good faith gives written notice to the
holders of Registrable Securities that the Company is commencing to prepare a
Company-initiated registration statement and the Company is actively employing
in good faith all reasonable efforts to cause such registration statement to
become effective.
(d) The Company shall be entitled to postpone for a
reasonable period of time (but not exceeding 60 days) the filing of any
registration statement (or prospectus, as the case may be) otherwise required to
be prepared and filed by it hereunder if the Company determines, in its
reasonable judgment, that such registration and offering would have a material
and adverse impact on any financing, acquisition, reorganization or other
material transaction involving the Company or would require premature
disclosures thereof and the Company promptly gives the Initiating Holders and
Requesting Holders written notice of such determination, containing a general
statement of the reasons for such postponement and an approximation of the
anticipated delay.
4. COMPANY REGISTRATION. If (but without any obligation to do so)
the Company at any time proposes to register any of its securities for sale for
its own account or for the account of any other person (other than a
registration relating either to the sale of securities to employees of the
Company pursuant to a stock option, stock purchase or similar plan or a Rule 145
4.
transaction, or a registration on any form which does not include substantially
the same information as would be required to be included in a registration
statement covering the sale of Registrable Securities), it shall each such time
give written notice (the "Company's Notice"), at its expense, to all holders of
Registrable Securities of its intention to do so at least 15 days prior to the
filing of a registration statement with respect to such registration with the
Commission. If any holder of Registrable Securities desires to dispose of all or
part of such stock, it may request registration thereof in connection with the
Company's registration by delivering to the Company, within ten (10) days after
receipt of the Company's Notice, written notice of such request (the "Piggyback
Notice") stating the number of shares of Registrable Securities to be disposed
of and the intended method of disposition of such shares by such holder or
holders. The Company shall use its best efforts to cause all shares of
Registrable Securities specified in the Piggyback Notice to be registered under
the Securities Act so as to permit the sale or other disposition (in accordance
with the intended methods thereof as aforesaid) by such holder or holders of the
shares so registered, subject, however, to the limitations set forth in Section
5 hereof.
5. LIMITATIONS ON COMPANY REGISTRATION.
(a) If the registration of which the Company gives notice
pursuant to Section 4 above is for the purpose of permitting a disposition of
securities by the Company pursuant to a firm commitment underwritten offering,
the notice shall so state, and the Company shall have the right to limit the
aggregate size of the offering or the number of shares to be included therein by
stockholders of the Company if requested to do so in good faith by the Board of
Directors of the Company and only securities which are to be included in the
underwriting may be included in the registration.
(b) Whenever the number of shares which may be registered
pursuant to Section 4 is limited by the provisions of Section 5(a) above, the
Company shall have priority as to sales over the holders of Registrable
Securities and each holder hereby agrees that it shall withdraw its securities
from such registration to the extent necessary to allow the Company to include
all the shares which the Company desires to sell for its own account to be
included within such registration. The holders of Registrable Securities given
rights by Section 4 above shall share pro rata (as a single class) in the
available portion of the registration in question, such sharing to be based upon
the number of shares of such stock then held by each of such holders,
respectively.
6. DESIGNATION OF UNDERWRITER. In the case of any registration
initiated by the holders of Registrable Securities pursuant to the provisions of
Section 2 hereof which is proposed to be effected pursuant to a firm commitment
underwriting, the Company shall have the right to designate the managing
underwriter (which underwriter shall be reasonably acceptable to the holders of
a majority of the Registrable Securities participating in the transaction), and
all holders of Registrable Securities participating in the registration shall
sell their shares only pursuant to such underwriting.
7. REGISTRATION PROCEDURES.
(a) Subject to Section 7(b), if and when the Company is
required by the provisions of this Agreement to use its best efforts to effect
the registration of shares of
5.
Registrable Securities, the Company shall:
(i) prepare and file with the Commission a
registration statement with respect to such shares and use its best efforts to
cause such registration statement to become and remain effective for up to 120
days as provided herein;
(ii) prepare and file with the Commission such
amendments and supplements to such registration statement and the prospectuses
used in connection therewith as may be necessary to keep such registration
statement effective and current and to comply with the provisions of the
Securities Act with respect to the sale or other disposition of all shares
covered by such registration statement, including such amendments and
supplements as may be necessary to reflect the intended method of disposition
from time to time of the holder or holders of such shares who have requested
that any of their shares be sold or otherwise disposed of in connection with the
registration (the "Prospective Sellers");
(iii) furnish to each Prospective Seller such
number of copies of each prospectus, including preliminary prospectuses, in
conformity with the requirements of the Securities Act, and such other
documents, as the Prospective Seller may reasonably request in order to
facilitate the public sale or other disposition of the shares owned by it;
(iv) use its best efforts to register or qualify
the shares covered by such registration statement under such other securities or
blue sky or other applicable laws of such jurisdictions as each Prospective
Seller shall reasonably request to enable such seller to consummate the public
sale or other disposition of the shares owned by such seller; provided that, the
Company shall not be required in connection therewith to qualify to do business
or to file a general consent to service of process in any such jurisdiction;
(v) cause all such shares to be listed on each
securities exchange on which similar securities issued by the Company are then
listed;
(vi) provide a transfer agent and registrar for
all such shares not later than the effective date of such registration
statement;
(vii) enter into such customary agreements
(including an underwriting agreement) and take all such other customary actions
as the holders of a majority of the shares being sold reasonably request in
order to expedite or facilitate the disposition of such shares; and
(viii) make available for inspection by any
Prospective Seller, any underwriter participating in any disposition pursuant to
such registration statement, and any attorney, accountant or other agent
retained by any such seller or underwriter, all financial and other records,
pertinent corporate documents and properties of the Company, and cause the
Company's officers, directors and employees to supply all information reasonably
requested by any such seller, underwriter, attorney, accountant or agent in
connection with the preparation of such registration statement; and
(ix) furnish to the Initiating and Requesting
Holders and the underwriters, if any, (i) an opinion of counsel for the Company
and (ii) a "comfort" letter signed by the auditors who have certified the
Company's financial statements included in such
6.
registration statement, each covering substantially the same matters with
respect to such registration statement as are customarily covered in opinions of
issuer's counsel and in accountants comfort letters delivered to the
underwriters in underwritten public offerings of Securities A.
(b) If any registration is required by the provisions of
this Agreement to be made under Canadian Law, the Company shall comply with the
provisions of Exhibit A.
(c) Each Prospective Seller of such shares shall furnish
to the Company such information as the Company may reasonably require from the
Prospective Seller for inclusion in the registration statement (and the
prospectus included therein).
(d) The Prospective Sellers shall not (until further
notice) effect sales of the shares covered by the registration statement after
receipt of written notice from the Company to suspend sales to permit the
Company to correct or update a registration statement or prospectus.
8. EXPENSES OF REGISTRATION.
(a) All registration and filing fees, printing expenses,
expenses of compliance with blue sky laws, fees and disbursements of counsel for
the Company and expenses of any audits other professional opinions incidental to
or required by any registration pursuant to Sections 2 or 4 hereof
("Registration Expenses") shall be borne by the Company; provided, however, that
the Company shall be required to bear the Registration Expenses for a maximum of
three (3), or, if the Initial Public Offering was completed under Canadian Law,
the Company shall be required to bear the Registration Expenses for a maximum of
three prospectuses filed under Canadian Law.
(b) Notwithstanding the foregoing, the Company shall not
be required to pay for any expenses of any registration proceeding begun
pursuant to Section 2(a) if the registration request is subsequently withdrawn
at the request of the holders of a majority of the Registrable Securities to be
registered (in which case all participating holders shall bear such expenses);
provided, however, that if at the time of such withdrawal the holders have
learned of a material adverse change in the condition, business or prospects of
the Company from that known to the Initiating Holders at the time of their
request, then the holders shall not be required to pay any of such expenses.
9. INDEMNIFICATION.
(a) To the extent permitted by law, in the event of any
registration or qualification of any of its securities under the Securities Act
or Canadian Law, as applicable, pursuant to this Agreement, the Company shall
indemnify and hold harmless each holder requesting or joining in a registration
or qualification of such securities, each underwriter (as defined in the
Securities Act or Canadian Law, as applicable) and each controlling person of
any holder or underwriter, if any, (within the meaning of the Securities Act) or
Canadian Law, as applicable, and each person or company who signs any prospectus
or amendment thereto in accordance with Canadian Law against any losses, claims,
damages or liabilities, joint or several (or actions in respect thereof), to
which such holder, underwriter, controlling person or signatory may be subject
under the Securities Act or Canadian Law, as applicable, under any other statute
7.
or at common law, 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 under which such securities were registered under the
Securities Act, any preliminary prospectus or final prospectus filed under
Canadian Law or contained in any filed registration statement, or any summary
prospectus issued in connection with any securities being registered, or any
amendment or supplement thereto, or any other document, or (ii) any omission (or
alleged omission) to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading or (iii) any
violation by the Company of the Securities Act, Canadian Law or any Blue Sky
law, or any rule or regulation promulgated under the Securities Act, Canadian
Law or any Blue Sky law, or any other law, applicable to the Company in
connection with any such registration, qualification or compliance ((i), (ii)
and (iii) are each referred to hereafter as a "Violation"), and shall reimburse
each such holder, underwriter, controlling person or signatory for any legal or
other expenses reasonably incurred by such holder, underwriter, controlling
person or signatory in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the Company shall
not be liable to any holder, underwriter, controlling person or signatory in any
such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon any such untrue statement or omission made in such
registration statement, preliminary prospectus, summary prospectus, prospectus,
or amendment or supplement thereto, or any other document, in reliance upon and
in conformity with written information furnished to the Company by such holder,
underwriter, controlling person or signatory, respectively, specifically for use
therein.
(b) To the extent permitted by law, in the event of any
registration of any of its securities under the Securities Act or Canadian Law,
as applicable, pursuant to this Agreement, each holder requesting or joining in
a registration of such securities shall indemnify and hold harmless the Company,
each underwriter (as defined in the Securities Act or Canadian Law, as
applicable) and each controlling person of the Company or underwriter, if any,
(within the meaning of the Securities Act) or Canadian Law, as applicable, and
each person or company who signs any prospectus or amendment thereto in
accordance with Canadian Law against any losses, claims, damages or liabilities,
joint or several (or actions in respect thereof), to which the Company,
underwriter, controlling person or signatory may be subject under the Securities
Act or Canadian Law, under any other statute or at common law, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any Violation, in each case to the extent (and only to the
extent) that such Violation occurs in reliance upon written information
furnished by the holder expressly for use in connection with such registration,
and shall reimburse the Company, underwriter, controlling person or signatory
for any legal or other expenses reasonably incurred by the Company, underwriter,
controlling person or signatory in connection with investigating or defending
any such loss, claim, damage, liability or action; provided, however, that the
holder shall not be liable to the Company, underwriter, controlling person or
signatory in any such case to the extent that any such loss, claim, damage or
liability exceeds the gross proceeds from the offering received by such holder
from the underwriters. The indemnity provided for herein shall remain in full
force and effect regardless of any investigation made by or on behalf of the
Company, underwriter, controlling person or signatory.
(c) If the indemnification provided for in Section 9(a)
or 9(b) above is
8.
unavailable to an indemnified party in respect of any losses, claims, damages or
liabilities referred to therein, then the indemnifying party in lieu of
indemnifying such indemnified party thereunder shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities, in such proportion as is appropriate to reflect the
relative fault of the indemnifying party on the one hand and of the indemnified
party on the other in connection with the statements or omissions which resulted
in such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative fault of the indemnifying party and of
the indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
indemnifying party, or by the 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 9(c) were determined by pro
rata allocation or by any other method of allocation which does not take into
account the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages and liabilities or actions in respect thereof referred
to in the immediately preceding paragraph shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 9(c), no holder
shall be required to contribute any amount in excess of the amount by which the
total price at which the Registrable Securities sold by it exceeds the amount of
any damages which such holder has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentations (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
(d) Promptly after receipt by an indemnified party under
Section 9(a) or 9(b) above of notice of the commencement of any action, such
indemnified party shall notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such Sections or to the extent that it has not been
prejudiced as a proximate result of such failure. In case any such action shall
be brought against any indemnified party, and it shall notify the indemnifying
party of the commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, to assume the defense
thereof, with counsel satisfactory to such indemnified party; provided, however,
that if the defendants in any such action include both the indemnified party and
the indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses (in which case the
indemnifying party shall not have the right to direct the defense of such action
on behalf of the indemnified party or parties). Upon the permitted assumption by
the indemnifying party of the defense of such action, and approval by the
indemnified party of counsel, the indemnifying party shall not be liable to such
indemnified party under this Section 9 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless
9.
(i) the indemnified party shall have employed separate counsel in connection
with the assertion of legal defenses in accordance with the proviso to the next
preceding sentence, (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time, (iii) the indemnifying party and its counsel do not actively
and vigorously pursue the defense of such action or (iv) the indemnifying party
has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party.
10. RIGHTS WHICH MAY BE GRANTED TO OTHER PERSONS. The Company
shall not grant any person registration rights which shall in any way whatsoever
impair the priority of the registration rights granted to the Purchasers in this
Agreement.
11. RULE 144 REQUIREMENTS. Immediately after the date on which a
registration statement filed by the Company under the Securities Act becomes
effective, the Company shall undertake to make and keep publicly available, and
available to the holders of Registrable Securities, such information as is
necessary to enable the holders of Registrable Securities to make sales of such
stock pursuant to Rule 144 of the Commission under the Securities Act. The
Company shall furnish to any such holder, upon request, a written statement
executed by the Company as to the steps it has taken to comply with the current
public information requirements of Rule 144.
12. STAND-STILL PERIOD. If the Company files a registration
statement in connection with any offering to which this Agreement applies, the
holders of the Preferred Shares and any in accordance with the Securities Act
(or prospectus under Canadian Law) Common Shares issued upon conversion of the
Preferred Shares and/or conversion of the indebtedness under the Credit
Agreement shall not effect any sale or distribution of any shares (except
pursuant to such registration statement) of the capital stock of the Company,
whether now owned or hereafter acquired, during the period requested by the
underwriters commencing with the effective date of such registration statement
or prospectus and ending on the close of business on a date which is not more
than one hundred and eighty (180) days thereafter or such time as the
registration statement or prospectus is withdrawn, whichever is earlier. In
order to enforce the foregoing covenant, the Company may impose stop-transfer
instructions with respect to the Registrable Securities of such holders until
the end of such period.
13. ASSIGNMENT. The rights to cause the Company to register
Registrable Securities pursuant to this Agreement may be assigned (but only with
all related obligations) by the Purchasers to a transferee or assignee (other
than a competitor of the Company) of such securities who, after such assignment
or transfer, holds at least 100,000 Common Shares issued or issuable upon
conversion of Preferred Shares or conversion of the indebtedness under the
Credit Agreement (subject to appropriate adjustment for stock splits, stock
dividends, combinations and other recapitalizations), provided the Company is,
within a reasonable time after such transfer, furnished with written notice of
the name and address of such transferee or assignee and the securities with
respect to which such registration rights are being assigned.
14. MISCELLANEOUS.
(a) SUCCESSORS AND ASSIGNS. Except as otherwise expressly
provided herein,
10.
the terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors of the parties but neither party will
have the right to assign its rights under this Agreement to any other person or
entity without the prior written consent of the other party, which consent can
be withheld for any reason or without reason. Nothing in this Agreement, express
or implied, is intended to confer upon any party other than the parties hereto
or their respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
(b) JOINT AND SEVERAL OBLIGATIONS OF PURCHASERS. The
obligations of the Purchasers under this Agreement are several and not joint.
(c) GOVERNING LAW. This Agreement shall be governed by
and construed under the laws of the State of California as applied to agreements
among California residents entered into and to be performed entirely within
California.
(d) COUNTERPARTS. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
(e) TITLES AND SUBTITLES. The titles and subtitles used
in this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
(f) NOTICES. Unless otherwise provided herein, any notice
required or permitted under this Agreement shall be given in writing and shall
be deemed effectively given upon personal delivery to the party to be notified
or three (3) days after deposit in the United States mail, by registered or
certified mail, postage prepaid and addressed to the party to be notified at the
address indicated for such party on the signature page hereof, or at such other
address as such party may designate by ten (10) days' advance written notice to
the other parties.
(g) SEVERABILITY. If one or more provisions of this
Agreement are held to be unenforceable under applicable law, such provision
shall be excluded from this Agreement and the balance of the Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
(h) ENTIRE AGREEMENT. This Agreement and the other
agreements referred to herein constitute the entire understanding and agreement
between the parties with regard to the specific subject matter hereof and no
party shall be liable or bound by any representation, warranty, covenant or
agreement except as specifically set forth herein. Any previous agreement
(whether written, oral or implied) among the parties relative to the specific
subject matter hereof is superseded by this Agreement.
(i) AMENDMENTS AND WAIVERS. Neither this Agreement nor
any term hereof may be changed, waived, discharged or terminated orally or in
writing, except that any term of this Agreement may be amended and the
observance of any such term may be waived (either generally or in a particular
instance and either retroactively or prospectively) only with the written
consent of the Company and the holders of at least a majority of the Registrable
Securities then in existence; provided, however, that no such amendment or
waiver shall affect
11.
the provisions of this Section, no such waiver shall extend to or affect any
other obligation not expressly waived.
(j) SPECIFIC PERFORMANCE. The parties hereto agree that
the capital stock of the Company cannot be purchased or sold in the open market
and that, for these reasons, among others, the parties will be irreparably
damaged in the event that this Agreement is not specifically enforceable.
Accordingly, in the event of any controversy concerning the capital stock which
is the subject of this Agreement, or any right or obligation to register such
securities, such right or obligation shall be enforceable in a court of equity
by specific performance. The rights granted in this Section shall be cumulative
and not exclusive, and shall be in addition to any and all other rights which
the parties hereto may have hereunder, at law or in equity.
12.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above-written.
"COMPANY" CTL IMMUNOTHERAPIES CORP.,
an Ontario corporation
By: /s/ Xxxx Xxxxxx
-------------------------------------
Xxxx Xxxxxx,
Chief Executive Officer
By: /s/ Xxxxx Xxxxxxxx
-------------------------------------
Xxxxx Xxxxxxxx,
President and Chief Operating Officer
Address: One First Canadian Place
Suite 5100
One First Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx X0X0X0
"PURCHASERS"
MEDICAL RESEARCH GROUP, LLC, a
Delaware limited liability company
By: AEM MINIMED CORP., its Manager
By: /s/ Xxxxxx X. Xxxx
-------------------------------- By: /s/ Xxxxxx X. Xxxx
Xxxxxx X. Xxxx, ----------------------------------
President XXXXXX X. XXXX
Address: 00000 Xxx Xxxxxxxx Xxxx Address: 00000 Xxx Xxxxxxxx Xxxx
Xxxxxx, XX 00000 Xxxxxx, XX 00000
XXXXXX XXXXXX ADVISORY, INC.,
a Delaware limited partnership
By: /s/ Xxxxx Xxxxxxxx
----------------------------------
Xxxxx Xxxxxxxx,
President
By: /s/ London Xxxx
----------------------------------
London Xxxx,
Chairman
[SIGNATURE PAGE TO AGREEMENT]
EXHIBIT A
This Exhibit A applies to the qualification for sale to the public of
Registrable Securities in accordance with Canadian Law pursuant to the
Registration Rights Agreement which is attached.
1. PROSPECTUS CLEARANCE.
In the event of a request made pursuant to Section 2(a) of the
Registration Rights Agreement to which this Exhibit A applies, the Company shall
promptly do all things necessary to qualify the Registrable Securities specified
in the notice of the Initiating Holders and the Requesting Holders (the
"Qualified Shares") for distribution or distribution to the public in all
provinces of Canada. In order to comply with its obligations under this Section
1, the Company shall as expeditiously as practicable:
(a) prepare and file under the applicable laws of each of
the provinces of Canada, a preliminary prospectus (in English and French
languages, as appropriate) and such other documents as may be required pursuant
to all applicable laws and policy statements to qualify the Qualified Shares for
distribution or distribution to the public;
(b) as soon as possible after any comments of appropriate
securities commissions and regulatory authorities on the preliminary prospectus
are satisfied and in any event, no later than sixty (60) days thereafter,
prepare and file under the applicable laws of each of the provinces of Canada a
final prospectus (in the English and French languages, as appropriate) and take
all other steps and proceedings as may be required in order to fully qualify the
Qualified Shares for distribution or distribution to the public, as those terms
are defined in applicable securities legislation, in each of the provinces of
Canada by persons qualified pursuant to the relevant provisions of applicable
securities legislation to distribute or distribute such Qualified Shares to the
public;
(c) use its best efforts to obtain receipt and clearance
therefore without delay, keeping the Initiating Holders and the Requesting
Holders advised as to the initiation, progress and completion of the
qualification procedure;
(d) prepare and file with the appropriate securities
commissions such information, reports and amendments and supplements to the
prospectus as may be necessary to keep it in good standing as a reporting issuer
under Canadian Law;
(e) furnish to the Initiating and Requesting Holders such
number of copies of any prospectus, including a preliminary prospectus, prepared
in conformity with the requirements of the applicable securities legislation,
and such other documents as any such Holder may reasonably request, in order to
facilitate the public distribution or other disposition of the Qualified Shares;
(f) furnish to the Initiating and Requesting Holders and
the underwriters, if any, (i) an opinion of counsel for the Company, and (ii) a
"comfort" letter signed by the auditors who have certified the Company's
financial statements included in such prospectus, each covering substantially
the same matters with respect to such prospectus as are customarily covered in
A-1.
opinions of issuer's counsel and in accountant's comfort letters delivered to
the underwriters in underwritten public offerings of securities;
(g) provide and cause to be maintained a transfer agent
and registrar for its common shares from and after a date not later than the
effective date of the (final) prospectus;
(h) use its best efforts to list its common shares on
either the Toronto or Montreal stock exchanges;
(i) enter into customary agreements (including if the
method of distribution is by means of an underwriting, an underwriting agreement
in customary form) and take such other actions as are reasonably required in
order to expedite or facilitate the disposition of the Qualified Shares.
A-2.
AMENDMENT TO REGISTRATION RIGHTS AGREEMENT
This Amendment to Registration Rights Agreement (this "Amendment")
amends the Registration Rights Agreement dated as of October 15, 1998 entered
into by the parties to this Amendment (the "Registration Rights Agreement").
Since the date of the Registration Rights Agreement, Medical Research
Group, Inc. ("MRG"), successor to the business and assets of Medical Research
Group, LLC, has assigned to Xxxxxx X. Xxxx ("Xxxx") all of its rights arising
under and pursuant to the Credit Agreement entered into as of October 15, 1998,
as amended by the Amendment and Supplement to Line of Credit Agreement also
dated as of October 15, 1998 (collectively the "Credit Agreement") and the
related Promissory Note and General Security Agreement entered into pursuant to
the Credit Agreement. The purpose of this Amendment is to amend the Registration
Rights Agreement to reflect the assignment of the rights of MRG to Xxxx and the
assumption of the obligations of MRG by Xxxx under the Registration Rights
Agreement.
The Registration Rights Agreement is hereby amended as follows:
(a) All references to the "Purchasers" shall be deemed to refer to
Xxxx and XxXxxx Xxxxxx and not to include MRG.
(b) All references to the Credit Agreement shall be deemed to
refer to the Credit Agreement as amended by the Amendment to Loan Documents
dated as of March ___, 2000 among the parties to this Amendment.
(c) MRG shall have no further rights or obligations under the
Registration Rights Agreement, and this Amendment shall serve as a novation of
the Registration Rights Agreement among CTL, Xxxx and XxXxxx Xxxxxx.
Except as amended by this Amendment the Registration Rights Agreement
shall remain in full force and effect.
CTL IMMUNOTHERAPIES CORP. XXXXXX XXXXXX ADVISORY, INC.
By: /s/ Xxxx Xxxxxx By: /s/ Xxxxxx Xxxx
------------------------------------ --------------------------------
Xxxx Xxxxxx, Chief Executive Officer Xxxxxx Xxxx, Chairman
MEDICAL RESEARCH GROUP, INC.
By: /s/ Xxxxxx X. Xxxxx /s/ Xxxxxx X. Xxxx
------------------------------------ --------------------------------
Xxxxxx X. Xxxxx, President Xxxxxx X. Xxxx
1.
