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EXHIBIT 10.2
REGISTRATION RIGHTS AGREEMENT
October 7, 1999
To the several persons named
at the end hereof (each a
"Seller" and collectively,
the "Sellers")
Dear Sirs:
In connection with the issuance to you of shares of common stock, $.01
par value ("Common Stock"), of United Therapeutics Corporation, a Delaware
corporation ("the Company"), pursuant to the Agreement and Plan of Merger dated
as of October 7, 1999 among the Company, SynQuest Acquisition, Inc., an
Illinois corporation and wholly owned subsidiary of the Company, SynQuest,
Inc., an Illinois Corporation ("SynQuest") and the stockholders of SynQuest
(the "Stockholders") named therein (the "Merger Agreement"), the Company hereby
covenants and agrees with each of you, and with each subsequent holder of
Restricted Stock (as such term is defined herein), as follows:
1. Certain Definitions. As used herein, the following terms shall
have the following respective meanings:
"Commission" shall mean the Securities and Exchange
Commission, or any other federal agency at the time administering the
Securities Act.
"Common Shares" shall mean the 101,251 shares of Common Stock
issued and sold to Sellers pursuant to the Purchase Agreement.
"Common Stock" shall mean the Common Stock issued to the
Stockholders pursuant to the Merger Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934
or any similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
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"Public Sale" shall mean any sale of Common Stock to the
public pursuant to an offering registered under the Securities Act or to the
public pursuant to the provisions of Xxxx 144 (or any successor or similar
rule) adopted under the Securities Act.
"Registration Expenses" shall mean the expenses so described
in Section 6 hereof.
"Restricted Stock" shall mean, subject to the provisions of
Section 8 hereof, (i) the Common Shares and (ii) any securities issued as a
dividend or other distribution with respect to or in exchange for or in
replacement of such Common Shares, the certificates for which are required by
the provisions of this Agreement and applicable law to bear the legend set
forth in the Section.
"Securities Act" shall mean the Securities Act of 1933 or any
similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Selling Expenses" shall mean the expenses so described in
Section 6 hereof.
2. Restrictive Legend and Lock-Up Agreement.
a. Restrictive Legend. Each certificate representing
the Common Shares and, other than in a Public Sale or as otherwise provided in
Section 3 hereof, each certificate issued upon exchange or transfer of any
Common Shares, shall be stamped or otherwise imprinted with a legend
substantially in the following form:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
ANYSTATE SECURITIES LAWS. NEITHER THE SECURITIES EVIDENCED BY
THIS CERTIFICATE, NOR ANY INTEREST THEREIN, MAY BE OFFERED,
SOLD, TRANSFERRED, ENCUMBERED OR OTHERWISE DISPOSED OF UNLESS
EITHER (I) THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER
SAID ACT AND THE LAWS RELATING THERETO OR (II) THE ISSUER HAS
RECEIVED AN OPINION OF COUNSEL,REASONABLY SATISFACTORY IN FORM
AND SUBSTANCE TO THE ISSUER, STATING THAT SUCH REGISTRATION IS
NOT REQUIRED."
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b. Lock-Up Agreement. Simultaneously with the execution
of this Agreement, each seller shall execute the lock-up agreement attached to
this Agreement as required by the Company's underwriters as a condition to the
Company's initial public offering
3. Notice of Proposed Transfer. Prior to any proposed transfer of
any Restricted Stock (other than under the circumstances described in Section 4
hereof), the holder thereof shall give written notice to the Company of its
intention to effect such transfer. Each such notice shall describe the manner
of the proposed transfer and, if requested by the Company, shall be accompanied
by an opinion of counsel reasonably satisfactory to the Company to the effect
that the proposed transfer of such Restricted Stock may be effected without
registration under the Securities Act, whereupon the holder of such Restricted
Stock shall be entitled to transfer such Restricted Stock in accordance with
the terms of its notice; provided, however, that in the case of any Buyer that
is a partnership, no such opinion or other documentation shall be required if
such notice shall cover a transfer by such partnership to its partners and
provided, further, however, that the shares so transferred shall remain subject
to this Agreement. Each certificate representing the Restricted Stock
transferred as above provided shall bear the legend set forth in Section 2,
unless (i) such transfer is in accordance with the provisions of Rule 144 (or
any other rule permitting public sale without registration under the Securities
Act) and is not made by an affiliate of the Company or (ii) the opinion of
counsel referred to above is to the further effect that the transferee and any
subsequent transferee (other than an affiliate of the Company) would be
entitled to transfer such securities without registration under the Securities
Act.
The foregoing restrictions on transferability of Restricted Stock
shall terminate as to any particular shares of Restricted Stock when such
shares shall have been effectively registered under the Securities Act and sold
or otherwise disposed of in accordance with the intended method of disposition
by the seller or the sellers thereof set forth in the registration statement
concerning such shares. Whenever a holder of Restricted Stock is able to
demonstrate to the Company (and its counsel) that the provisions of Rule 144(k)
of the Securities Act are available to such holder without limitation, such
holder of Restricted Stock shall be entitled to receive from the Company,
without expense, a new certificate not bearing the restrictive legend set forth
in Section 2 in exchange for the surrender of the existing certificate, which
shall be marked canceled by the Company.
4. Incidental Registration. If the Company at any time proposes to
register any of its Common Stock under the Securities Act for sale to the
public, whether for its own account or for the account of other security
holders or both (except with respect to registration statements on Form S-4 or
S-8 or another form not available for registering the Restricted Stock for sale
to the public), it will give written notice at such time to all holders of
outstanding Restricted Stock of its intention to do so. Upon the written
request of any such holder, given within 20 days after receipt of
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any such notice by the Company, to register any of its Restricted Stock (which
request shall state the intended method of disposition thereof), the Company
will use its best efforts to cause the Restricted Stock as to which
registration shall have been so requested to be included in the securities to
be covered by the registration statement proposed to be filed by the Company,
all to the extent
requisite to permit the sale or other disposition by the holder in accordance
with its written request) of such Restricted Stock. In the event that any
registration pursuant to this Section 4 shall be, in whole or in part, an
underwritten public offering of Common Stock, the Company shall specify that
either (i) such Restricted Stock is to be included in the underwriting on the
same terms and conditions as the shares of Common Stock otherwise being sold
through underwriters under such registration, or (ii) such Restricted Stock is
to be sold in the open marker without any underwriting, on terms and conditions
comparable to those normally applicable to offerings of common stock in
reasonably similar circumstances. In any such underwritten public offering of
Common Stock, if, in the opinion of the managing underwriter, the Restricted
Stock so requested to be registered would adversely affect the marketing of
such Common Stock, the Company shall include in such registration, to the
extent of the number which the Company is advised can be sold in such offering,
(x) first, securities proposed by the Company to be sold for its own account,
(y) second, Restricted Stock requested to be included in such registration by
the holder or holders thereof and other securities of the Company requested to
be included in such registration pursuant to registration rights granted by the
Company to the holders of such securities prior to the date hereof, pro rata
among the requesting holders of Restricted Stock and such other securities
based upon the number of shares of Restricted Stock and such other Securities
requested to be registered, and (z) third, other securities of the Company
requested to be included in such registration (other than as described in
clause (y) above).
5. Registration Procedures. If and whenever the Company is required
by the provisions of Section 4 hereof to use its reasonable best efforts to
effect the registration of any of the Restricted Stock under the Securities
Act, the Company will, as expeditiously as possible:
a. prepare (and afford counsel for the selling holders
reasonable opportunity to review and comment thereon) and file with the
Commission a registration statement with respect to such securities and use its
best efforts to cause such registration statement to become and remain
effective for the period of the distribution contemplated thereby (determined
as hereinafter provided);
b. prepare (and afford counsel for the selling holders
reasonable opportunity to review and comment thereon) and file with the
Commission such amendments and supplements to such registration statement and
the prospectus
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used in connection therewith as may be necessary to keep such registration
statement effective for the period specified in paragraph 5(a) above and as
shall comply with the provisions of the Securities Act with respect to the
disposition of all Restricted Stock covered by such registration statement for
such period;
c. furnish to each seller and to each underwriter such
number of copies of the registration statement and the prospectus included
therein (including each preliminary prospectus) as such persons may reasonably
request in order to facilitate the public sale or other disposition of the
Restricted Stock covered by such registration statement;
d. use its best efforts to register or qualify the
Registered Stock covered by such registration statement under the securities or
blue sky laws of such jurisdictions as the sellers of Restricted Stock or, in
the case of an underwritten public offering, the managing underwriter, shall
reasonably request, and use its best efforts to list all Restricted Stock
covered by such registration statement on any securities exchange on which any
other securities exchange on which any other securities of the same class as
the Restricted Stock are then listed;
e. immediately notify each seller under such
registration statement and each underwriter, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act, of the
happening of any even as a result of which the prospectus contained in such
registration statement, as then in effect, 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 now misleading in the light of the
circumstances then exiting;
f. use its best efforts (if the offering is
underwritten) to furnish, at the request of any seller, on the date that
Restricted Stock is delivered to the underwriters for sale pursuant to such
registration: (i) an opinion dated such date of counsel representing the
Company for the purposes of such registration, addressed to the underwriters
and to such seller, stating that such registration statement has become
effective under the Securities Act and that (A) to the knowledge of such
counsel, no stop order suspending the effectiveness thereof has been issued and
no proceedings for that purpose have been instituted or are pending or
contemplated under the Securities Act, (B) the registration statement, the
related prospectus, and each amendment or supplement thereof, comply as to form
in all material respects with the requirements of the Securities Act and the
applicable rules and regulations of the Commission thereunder (except that such
counsel need express no opinion as to financial statements contained therein or
any information provided by the underwriters or the sellers) and (C) to such
other effects as may reasonably be requested by counsel for the underwriters,
and (ii) a letter dated such date from the independent public accountants
retained by the Company, addressed to the underwriters and to such seller,
stating that they are independent public accountants within the meaning of the
Securities Act and that,
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in the opinion of such accountants, the financial statements of the Company
included in the registration statement or the prospectus, or any amendment or
supplement thereof, comply as to form in all material respects with the
applicable accounting requirements of the Securities Act, and such letter shall
additionally
cover such other financial matters (including information as to the period
ending no more than five business days prior to the date of such letter) with
respect to the registration in respect of which such letter is being given as
such underwriters or seller may reasonably request; and
g. make available for inspection by each seller, any
underwriter participating in any distribution pursuant to such registration
statement, and any attorney, accountant or other agent retained by 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 such registration
statement and permit such seller, attorney, accountant or agent to participate
in the preparation of such registration statement.
For purposes of paragraphs (a) and (b) above, the period of distribution of
Restricted Stock in a firm commitment underwritten public offering shall be
deemed to extend until each underwriter has completed the distribution of all
securities purchased by it, and the period of distribution of Restricted Stock
in any other registration shall be deemed to extend until the earlier of the
sale of all Restricted Stock covered thereby or six months after the effective
date thereof.
In connection with each registration hereunder, the selling holders of
Restricted Stock will furnish to the Company in writing such information with
respect to themselves and the proposed distribution by them as shall be
reasonably necessary in order to assure compliance with federal and applicable
state securities laws.
In connection with each registration pursuant to Section 4 hereof
covering an underwritten public offering, the company agrees to enter into a
written agreement with the managing underwriter selected in the manner herein
provided in such form and containing such provisions as are customary in the
securities business for such an arrangement between underwriters and companies
of the Company's size and investment stature, provided that such agreement
shall not contain any such provision applicable to the Company which is
inconsistent with the provisions hereof and provided, further, that the time
and place of the closing under said agreement shall be as mutually agreed upon
among the Company and such underwriter.
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6. Expenses. All expenses incurred by the Company in complying with
Section 4 hereof, including, without limitation, all registration and filing
fees, printing expenses, fees and disbursements of counsel and independent
public accountants for the Company, fees of the National Association of
Securities Dealers, Inc. or any successor thereto, transfer taxes, fees or
transfer agents and
registrars, and costs of insurance, but excluding any Selling Expenses, are
herein called "Registration Expenses". All underwriting discounts and selling
commissions applicable to the sale of Restricted Stock are herein called
"Selling Expenses".
The Company will pay all Registration Expenses in connection with each
registration statement filed pursuant to Section 4 hereof. All Selling Expenses
in connection with any registration statement filed pursuant to Section 4
hereof shall be borne by the participating sellers in proportion to the number
of shares sold by each, or by such persons other than the Company (except to
the extent the Company shall be a seller) as they may agree.
7. Representations and Warranties of the Company. The Company
represents and warrants to you as follows:
a. The execution, delivery and performance of this
Agreement by the Company have been duly authorized by all requisite corporate
action and will not violate any provision of law, any order of any court or
other agency of government, the Certificate of Incorporation or By-laws of the
Company, or any provision of any indenture, agreement or other instrument to
which it or any of its properties or assets is bound, or conflict with, result
in a breach of or constitute (with due notice or lapse of time or both) a
default under any such indenture, agreement or other instrument, or result in
the creation or imposition of any lien, charge or encumbrance of any nature
whatsoever upon any of the properties or assets of the Company.
b. This Agreement has been duly executed and delivered
by the Company and constitutes the legal, valid and binding obligation of the
Company, enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium and other similar laws from
time to time in effect affecting the enforcement of creditors rights generally
and to general equitable principles.
8. Rule 144 Reporting. The Company agrees with you as follows:
a. The Company shall make and keep public information
available, as those terms are understood and defined in Rule 144 under the
Securities Act (or any successor act, regulation or rule thereto), at all times
from and after the date it is first required to do so.
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b. The Company shall file with the Commission in a
timely manner all reports and other documents as the Commission may prescribe
under Section 13(a) or 15(d) of the Exchange Act (or any successor act,
regulation or rule thereto) at any time after the Company has become subject to
such reporting requirements of the Exchange Act.
c. The Company shall furnish to such holder of
Restricted Stock forthwith upon request (i) a written statement by the Company
as to its compliance with the reporting requirements of Rule 144 (at any time
from and after the date it first becomes subject to such reporting
requirements), and of the Securities Act and the Exchange Act (at any time
after it has become subject to such reporting requirements), (ii) a copy of the
most recent annual or quarterly report of the Company, and (iii) such other
reports and documents so filed as a holder may reasonably request to avail
itself of any rule or regulation of the Commission allowing a holder of
Restricted Stock to sell any such securities without registration.
9. Miscellaneous.
a. All covenants and agreements contained in this
Agreement by or on behalf of any of the parties hereto shall bind and inure to
the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not. Without limiting the generality of the foregoing,
the registration rights conferred herein on the holders of Restricted Stock
shall inure to the benefit of any and all subsequent holders from time to time
of the Restricted Stock for so long as the certificates representing the
Restricted Stock shall be required to bear the legend specified in Section 2
hereof.
b. This Agreement shall be governed by and construed in
accordance with the law of the State of Delaware.
c. No change, modification, extension, termination or
waiver of this Agreement, or any of the provisions herein contained, shall be
valid unless made in writing and signed by duly authorized representatives of
the parties
d. If any provision of this Agreement is found to be
invalid or unenforceable in any jurisdiction, it shall be ineffective to the
extent of such invalidity or unenforceability in such jurisdiction, without
rendering invalid or unenforceable the remaining provisions hereof and without
affecting the validity or unenforceability of any of the terms of this
Agreement in any other jurisdiction. The parties agree to renegotiate in good
faith any term held invalid and be bound by the mutually agreed substitute
provision.
Please indicate your acceptance of the forgoing by signing and
returning the enclosed counterpart of this letter, whereupon this letter
(herein
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sometimes called "this Agreement") shall be a binding agreement between the
Company any you.
Very truly yours,
UNITED THERAPEUTICS CORPORATION
By: /s/ Xxxxxxx Xxxxxxxxx
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Xxxxxxx Xxxxxxxxx, CEO
AGREED TO AND ACCEPTED as of the date first above written:
/s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx, Ph.D.
/s/ Xxxx Xxxxxxxx
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Xxxx Xxxxxxxx, Ph.D.
/s/ Xxxxx Xxx
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Xxxxx Xxx, Ph.D.
/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx, Esq.
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/s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx
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