Execution Copy
REGISTRATION RIGHTS AGREEMENT
Dated as of August 30, 2006
LORUS THERAPEUTICS INC.
and
HIGH TECH BETEILIGUNGEN GMBH & CO. KG
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TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS................................................................................2
1.1 Defined Terms..............................................................................2
1.2 General Interpretive Principles............................................................5
ARTICLE 2 REGISTRATION RIGHTS........................................................................5
2.1 Registration Rights........................................................................5
2.2 Number of Demand Qualifications............................................................6
2.3 Exceptions.................................................................................7
ARTICLE 3 PIGGY-BACK RIGHTS..........................................................................8
3.1 Piggyback Registrations....................................................................8
ARTICLE 4 OBLIGATIONS AND COVENANTS OF THE PARTIES..................................................11
4.1 Registration Procedures...................................................................11
4.2 Information Regarding the Purchaser.......................................................16
4.3 Discontinuance of Distribution............................................................16
4.4 Eligibility for use of Short-Form Prospectus and Form F-3.................................17
4.5 Compliance with Securities Laws...........................................................17
4.6 Purchaser Information.....................................................................17
ARTICLE 5 EXPENSES..................................................................................17
5.1 Registration Expenses.....................................................................17
ARTICLE 6 INDEMNIFICATION...........................................................................19
6.1 Indemnification by the Company............................................................19
6.2 Conduct of Indemnification Proceedings....................................................20
6.3 Contribution..............................................................................21
ARTICLE 7 MISCELLANEOUS.............................................................................22
7.1 Rules 144 and 144A........................................................................22
7.2 Free Writing Prospectuses.................................................................23
7.3 No Inconsistent Agreements; Additional Rights.............................................23
7.4 Term and Termination......................................................................23
7.5 Fees and Expenses.........................................................................23
7.6 Entire Agreement..........................................................................23
7.7 Notices...................................................................................23
7.8 Amendments; Waivers.......................................................................24
7.9 Successors and Assigns....................................................................24
7.10 No Third-Party Beneficiaries..............................................................24
7.11 Governing Law.............................................................................24
7.12 Execution.................................................................................24
7.13 Severability..............................................................................25
7.14 Construction..............................................................................25
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is dated as of
August 30, 2006
BETWEEN LORUS THERAPEUTICS INC., a Canadian corporation (the "Company")
AND HIGH TECH BETEILIGUNGEN GMBH & CO. KG, a German limited partnership,
herein represented by CONPHARM ANSTALT, a Liechtenstein corporation (the
"Purchaser")
WHEREAS, the Company and the Purchaser have entered into the Share
Purchase Agreement (as defined below) pursuant to and subject to the terms and
conditions of which, the Purchaser has agreed to purchase from the Company, and
the Company has agreed to issue and sell to the Purchaser, Purchased Shares (as
defined in the Share Purchase Agreement).
AND WHEREAS, as an inducement to the Purchaser for entering into the
Share Purchase Agreement, the Purchaser has required that the Company agree, and
the Company has agreed, to provide the rights set forth in this Agreement.
AND WHEREAS, the consummation of the Closing (as defined in the Share
Purchase Agreement) is conditional upon, among other things, the execution and
delivery of this Agreement.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained in
this Agreement, and for other good and valuable consideration the receipt and
adequacy of which are hereby acknowledged, the Company and the Purchaser agree
as follows:
ARTICLE 1
DEFINITIONS
1.1 Defined Terms. Capitalized terms used but not defined in this Agreement
shall have the meanings assigned to such terms in that certain share purchase
agreement, dated as of July 13, 2006 (the "Share Purchase Agreement"), between
the Company and the Purchaser. As used in this Agreement, the following terms
shall have the following meanings:
"Canadian Prospectus" means a short form prospectus prepared and filed
in accordance with NI 44-101 in the English and/or French language, as
applicable, including all amendments and supplements thereto and all documents
and information incorporated therein by reference.
"Canadian securities regulatory authorities" has the meaning attributed
to such term in NI 14-101.
"Company Public Sale" has the meaning set forth in Section 3.1(a).
"Canadian Securities Administrators" means the CSA as defined in NI
14-101.
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"Lock-Up Period" has the meaning set forth in Section 2.3(b)(ii).
"Loss" has the meaning set forth in Section 6.1.
"MRRS" means National Policy 43-201 -- Mutual Reliance Review System for
Prospectus and Annual Information Forms of the Canadian Securities
Administrators, as such policy may be amended or supplemented from time to time,
or any similar instrument, rule or regulation hereafter adopted by the Canadian
Securities Administrators having substantially the same effect as such
instrument.
"MRRS Decision Document" means a decision document issued by the
principal regulator pursuant to MRRS.
"NASD" means the National Association of Securities Dealers, Inc.
"NI 44-101" means National Instrument 44-101 - Short-Form Prospectus
Distributions, of the Canadian Securities Administrators, as such instrument may
be amended or supplemented from time to time, or any similar instrument, rule or
regulation hereafter adopted by the Canadian Securities Administrators having
substantially the same effect as such instrument.
"NI 45-102" means National Instrument 45-102 - Resale of Securities, of
the Canadian Securities Administrators, as such instrument may be amended or
supplemented or replaced from time to time, or any similar instrument, rule or
regulation hereafter adopted by the Canadian Securities Administrators having
substantially the same effect as such instrument.
"Piggyback Registration" has the meaning set forth in Section 3.1(a).
"Preliminary Canadian Prospectus" means a preliminary short form
prospectus prepared and filed in accordance with NI 44-101 in the English and/or
French language, as applicable, including all amendments and supplements thereto
and all documents and information incorporated therein by reference.
"Qualifying Provinces" means, collectively, each of the provinces of
Canada.
"Register" means:
(a) in the case of a registration under the United States Securities
Act of the Company's securities for offer and sale, or resale,
to the public in the United States under a Registration
Statement, preparing and filing a registration statement in
compliance with the United States Securities Act and the
automatic effectiveness or the use of commercially reasonable
efforts to cause such Registration Statement to become effective
under the United States Securities Act; and
(b) in the case of the qualification with the applicable Canadian
securities regulatory authorities of the Company's securities
for distribution in any Qualifying Province, preparing and
filing a Canadian Preliminary Prospectus, and as soon as
practicable thereafter, a Canadian Prospectus under Canadian
Securities Legislation and in respect of each, the use of
commercially reasonable efforts to obtain an MRRS Decision
Document.
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The term "Registration" shall have a correlative meaning.
"Registrable Securities" means the Purchased Shares issued to the
Purchaser pursuant to the Share Purchase Agreement or upon the conversion,
exchange or exercise of or as a dividend with respect to such shares and any
securities that may be issued or distributed or be issuable in respect of the
Purchased Shares by way of conversion, dividend, stock split or other
distribution, merger, consolidation, exchange, recapitalization or
reclassification or similar transaction; provided that any such Registrable
Securities shall cease to be Registrable Securities upon the earliest to occur
of:
(a) the first day that the Purchaser no longer owns any Registrable
Securities;
(b) in respect of a Registration under the United States Securities
Act, the first day on which the Purchaser may sell all of the
Registrable Securities owned by the Purchaser in one transaction
pursuant to Rule 144;
(c) in respect of a Registration in Canada, the first day on which
the Purchaser owns less than 10% of the number of Common Shares
then outstanding; and
(d) June 30, 2012.
"Registration Expenses" has the meaning set forth in Section 5.1.
"Registration Period" means:
(e) in respect of a Registration under the United States Securities
Act, the period commencing on the Closing Date and ending on the
earliest to occur of:
(i) the first day that the Purchaser no longer owns any
Registrable Securities;
(ii) the first day on which the Purchaser may sell all of the
Registrable Securities owned by the Purchaser in one
transaction pursuant to Rule 144; and
(iii) June 30, 2012; and
(f) in respect of a Registration in Canada, the period commencing on
the Closing Date and ending on the earliest to occur of:
(i) the first day that the Purchaser no longer owns any
Registrable Securities;
(ii) the first day on which the Purchaser owns less than 10%
of the number of Common Shares then outstanding; and
(iii) June 30, 2012.
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"Registration Statement" means any registration statement on Form F-3,
or any successor form thereto, of the Company filed with, or to be filed with,
the SEC under the United States Securities Act, including the related U.S.
Prospectus, amendments and supplements to such registration statement, including
post-effective amendments, and all exhibits and all material incorporated by
reference in such registration statement.
"Securities Regulators" means the SEC and the Canadian securities
regulatory authorities.
"Shelf Registration Statement" means a Registration Statement filed in
respect of an offering to be made on a continuous or delayed basis pursuant to
Rule 415 under the United States Securities Act (or any successor or similar
rule that may be adopted by the SEC) covering the resale of Registrable
Securities.
"Shelf Supplement" means, in respect of a Registration under the United
States Securities Act, a supplement to the U.S. Prospectus contained in the
Shelf Registration Statement for purposes of including pricing and other
necessary information in connection with any resale of Registrable Securities.
"Specified Province(s)" has the meaning set forth in Section 2.1(a).
"supplement" shall include any Shelf Supplement.
"Underwritten Offering" means a Registration in which securities of the
Company are sold to an underwriter or underwriters on a firm commitment basis
for distribution to the public.
"U.S. Prospectus" means the prospectus included in any Registration
Statement, all amendments and supplements to such prospectus, including
post-effective amendments, and all material incorporated by reference in such
prospectus.
1.2 General Interpretive Principles.
(a) Headings: The division of this Agreement into Articles and
Sections and the insertion of headings are for convenience of
reference only and shall not affect the construction or
interpretation of this Agreement.
(b) Articles; Sections: The terms "this Agreement", "hereof",
"hereunder" "hereto" and similar expressions refer to this
Agreement and not to any particular Article, Section or other
portion hereof and include any agreement supplemental hereto.
Unless something in the subject matter or context is
inconsistent therewith, references herein to Articles, Sections
and clauses are to Articles, Sections and clauses of this
Agreement.
(c) Number; Gender: Words, including defined terms, importing the
singular number only shall include the plural and vice versa,
and words, including defined terms, importing gender include all
genders.
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(d) Extended Meaning: The word "include(s)" means "include(s),
without limitation", and the word "including" means "including,
but not limited to" or "including, without restricting the
generality of the foregoing", as the context requires.
(e) Reference to Agreements and Enactments: Reference herein to any
agreement, instrument, licence or other document shall be deemed
to include reference to such agreement, instrument, licence or
other document as the same may from time to time be amended,
modified, supplemented or restated in accordance with the
provisions of this Agreement; and reference herein to any
enactment shall be deemed to include reference to such enactment
as re-enacted, amended or extended from time to time and to any
successor enactment.
ARTICLE 2
REGISTRATION RIGHTS
2.1 Registration Rights. If the Company receives a written
request from the Purchaser that the Company file a Canadian Prospectus under
Canadian Securities Legislation or a Registration Statement under the United
States Securities Act to Register the resale of all or part of the Registrable
Securities held by the Purchaser, the Company shall, subject to the limitations
of Sections 2.2 and 2.3:
(a) as soon as practicable and in any event within 90 days (or four
weeks in the case of a demand for Registration in Canada prior
to the date that is four months from the Closing Date) after the
Company's receipt of such written request, prepare and file in
those Qualifying Provinces specified by the Purchaser (the
"Specified Province(s)") or in the United States, as the case
may be, a Canadian Prospectus or Registration Statement, as
applicable, in order to Register that number of Registrable
Securities specified by the Purchaser in the request;
(b) use its commercially reasonable efforts to resolve any
regulatory comments and satisfy any regulatory deficiencies in
respect of the Preliminary Canadian Prospectus or Registration
Statement, as applicable, and, as soon as reasonably practicable
after such comments or deficiencies have been resolved or
satisfied, prepare and file, and use its commercially reasonable
efforts to (i) in Canada, obtain an MRRS Decision Document (or
an equivalent document) for the Specified Province(s) for the
(final) Canadian Prospectus or (ii) in the United States, cause
the Registration Statement to become effective under the United
States Securities Act, and will, subject to the provisions of
Article 3, take all other steps and proceedings necessary in
order to Register the resale of the Registrable Securities in
the Specified Province(s) or the United States, as the case may
be, as soon as practicable;
(c) ensure that (i) in the case of the Canadian Prospectus, the
Canadian Prospectus contains the disclosure required by, and
conforms in all material respects to the requirements of, the
applicable provisions of Canadian Securities Legislation; and
(ii) in the case of the Registration Statement, the Registration
Statement contains the disclosure required by, and conforms in
all material respects, to the requirements of, the applicable
provisions of the United States Securities Act;
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(d) prepare and file as soon as practicable with the securities
regulatory authorities in the Specified Province(s) or the
United States, as the case may be, any amendments and
supplements to the Canadian Prospectus or the Registration
Statement that may be necessary to comply with applicable
Canadian Securities Legislation or the United States Securities
Laws, as the case may be; and
(e) in the case of an Underwritten Offering, enter into and perform
its obligations under an underwriting agreement, in usual and
customary form, with the underwriters of such offering.
Subject to the provisions of Section 5.1, a request pursuant to Section 2.1 may
be withdrawn by written notice to the Company by the Purchaser.
2.2 Number of Demand Qualifications.The Company is only obligated to file an
aggregate of five Canadian Prospectuses and Registration Statements under
Section 2.1 and shall not be obligated to effect more than two Registrations in
any one calendar year, but no filing pursuant to Section 2.1 shall be deemed to
be a filing for purposes of this Article 2 until:
(a) the Company has in Canada, secured an MRRS Decision Document (or
an equivalent document) for the Specified Province(s) for the
Canadian Prospectus; or
(b) in the United States, the Registration Statement has become
effective
unless such document has not been secured or become effective due solely to the
fault of, or (except as a result of any postponement of any filing pursuant to
Section 2.3) because the filing is withdrawn at the written request of, the
Purchaser. For greater certainty, any request by the Purchaser to file a
Canadian Prospectus or Registration Statement, which is subsequently abandoned
or withdrawn by the Purchaser, shall count as one of the five Canadian
Prospectuses and Registration Statements the Company is obligated to file
hereunder.
2.3 Exceptions.If the Company is requested to file a Canadian Prospectus or
Registration Statement pursuant to Section 2.1:
(a) the Company is not obligated to effect the filing of such
Canadian Prospectus or Registration Statement if the number of
Registrable Securities to be Registered comprises less than 1%
of the issued and outstanding Common Shares at the time of
delivery of the notice;
(b) the Company is not obligated to effect the filing of such
Canadian Prospectus or Registration Statement:
(i) for a period of up to 90 days after the date of a
request for Registration pursuant to Section 2.1 if:
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(A) at the time of such request, the Company is
engaged, or has fixed plans to engage within 60
days after the date of such request, in an
Underwritten Offering in which the Purchaser is
entitled to include Registrable Securities
pursuant to Section 3.1; or
(B) at the time of such request, the Company is
currently engaged in an offer or exchange offer
and the filing of a Canadian Prospectus or
Registration Statement would cause a violation
of applicable Canadian Securities Legislation or
the United States Securities Act;
(ii) during the 90-day period following the closing by the
Company of an Underwritten Offering in which the
Purchaser was entitled (subject to underwriter cutbacks)
to include Registrable Securities pursuant to Section
3.1 (or for such shorter period as the lead
underwriter(s) of such public offering may have
requested) (the "Lock-Up Period"), if the lead
underwriter(s) of such public offering has advised the
Company that the stand-off pursuant to this clause (ii),
including the length thereof, is reasonable and
customary under the circumstances and has requested such
stand-off;
(iii) if the Company has already effected the filing of a
Canadian Prospectus or Registration Statement pursuant
to Section 2.1 within the previous 90 days and such
Canadian Prospectus or Registration Statement has not
been withdrawn or such prior offering otherwise
terminated; or
(iv) if the Company has a Shelf Registration Statement that
has been declared effective under the United States
Securities Act at the time it receives a written notice
from the Purchaser exercising its demand rights pursuant
to Section 2.1;
(c) the Company may defer such filing for up to 90 days after the
delivery by the Company to the Purchaser of a certificate signed
by the Chief Executive Officer of the Company stating that in
the good faith judgment of the board of directors of the Company
it would be detrimental to the Company and its shareholders for
a Canadian Prospectus or Registration Statement to be filed and
it is essential to defer the filing of such Canadian Prospectus
or Registration Statement; provided that the Company may not use
this right more than twice in any one calendar year;
(d) the Company shall keep a Shelf Registration Statement effective
for the period specified by the Purchaser; provided that such
period ends on or prior to the date on which the Registration
Period ends.
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provided that (1) the Company shall give prompt written notice to the Purchaser
at such time as the reason for any postponement of the filing of a Canadian
Prospectus or Registration Statement pursuant to clause (i) of this Section
2.3(b), or Section 2.3(c), no longer exists, or any Lock-Up Period has been
terminated, at which point the relevant postponement shall terminate, (2) any
stand-off period pursuant to Section 2.3(b)(ii) may be terminated by the
relevant lead underwriter(s), such consent to termination not to be unreasonably
withheld, and upon any such termination the postponement of the filing of a
Canadian Prospectus or Registration Statement pursuant to Section 2.3(b)(ii)
shall terminate, and (3) if the Company postpones the filing of any Canadian
Prospectus or Registration Statement pursuant to Section 2.3(b) or (c) and the
Purchaser withdraws its related request pursuant to Section 2.1, the Purchaser
will not have any obligation pursuant to Section 5.1 in connection with such
aborted filing.
ARTICLE 3
PIGGY-BACK RIGHTS
3.1 Piggyback Registrations.
(a) Participation. If the Company at any time proposes to Register
any offering of its securities under the United States
Securities Act or Canadian Securities Legislation, for its own
account or for the account of any other Persons, on a form or in
a manner that would permit the inclusion of the Registrable
Securities for offer and sale in an Underwritten Offering to the
public under the United States Securities Act or Canadian
Securities Legislation (other than (i) a Registration under the
United States Securities Act on Form X-0, X-0, X-00 xx X-0 or
any successor form to such Forms or (ii) a Registration of
securities solely relating to an offering and sale to employees
or directors of the Company pursuant to any employee stock plan
or other employee benefit plan arrangement) (a "Company Public
Sale"), then, as soon as practicable but in no event less than,
(i) in respect of a Company Public Sale in Canada five (5)
Trading Days prior to the proposed date of filing the
Preliminary Canadian Prospectus, except that in the case
of a "bought deal" as contemplated by NI 44-101 the
Company shall give such notice to the Purchaser as
promptly as practicable but not later than four (4)
Trading Days prior to the proposed date of filing the
Canadian Preliminary Prospectus, and
(ii) in respect of a Company Public Sale Registered under the
United States Securities Act, five (5) Trading Days
prior to the proposed date of filing the Registration
Statement,
the Company shall give written notice of such proposed filing to
the Purchaser. Such notice shall offer the Purchaser the
opportunity to include in such Company Public Sale under a
Registration Statement or Canadian Prospectus (as the case may
be) such number of Registrable Securities as the Purchaser may
request in writing (a "Piggyback Registration"). The Company is
under no obligation to complete any offering of its securities
it proposes to make pursuant to this Section 3.1 and will incur
no liability to the Purchaser for its failure to do so.
(b) Inclusion of Registrable Securities in Company Public Sale.
Subject to Section 3.1(c), the Company shall include in such
Company Public Sale all such Registrable Securities which are
requested to be included therein within 15 days after the
receipt by the Purchaser of any such notice; provided that if at
any time after giving written notice of its intention to
Register any securities and prior to:
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(i) the effective date of the applicable Registration
Statement (in the case of a Registration under the
United States Securities Act); or
(ii) an MRRS Decision Document being issued for the Canadian
Prospectus (in the case of a Registration pursuant to
Canadian Securities Legislation)
filed in connection with such Registration, the Company shall
determine for any reason not to Register or to delay
Registration of such securities, the Company may, at its
election, give written notice of such determination to the
Purchaser and, thereupon:
(iii) in the case of a determination not to Register, shall be
relieved of its obligation to include any Registrable
Securities in such Underwritten Offering (but not from
its obligation to pay the Registration Expenses in
connection therewith); and
(iv) in the case of a determination to delay Registering,
shall be permitted to delay including any Registrable
Securities in such Underwritten Offering, for the same
period as the delay in Registering such other
securities.
If the Purchaser requests a Piggyback Registration pursuant to
Section 3.1(a), then the Purchaser must, and the Company shall
make such arrangements with the managing underwriter or
underwriters so that the Purchaser may, participate in such
Underwritten Offering. The Purchaser shall be permitted to
withdraw all or part of its Registrable Securities from a
Piggyback Registration at any time prior to the effective date
thereof.
(c) Priority of Piggyback Registration. If the managing underwriter
or underwriters of any proposed Underwritten Offering of
Registrable Securities included in a Piggyback Registration
informs the Company and the Purchaser in writing that, in its or
their opinion, the number of securities which the Purchaser and
any other Persons intend to include in such offering exceeds the
number which can be sold in such offering without being likely
to have a significant adverse effect on the price, timing or
distribution of the securities offered or the market for the
securities offered, then the securities to be included in such
Registration shall be:
(i) first, 100% of the securities that the Company or
(subject to Section 7.3) any Person (other than the
Purchaser) exercising a contractual right to demand
Registration, as the case may be, proposes to sell; and
(ii) second, and only if all the securities referred to in
Section 3.1(c)(i) have been included, the number of
Registrable Securities that, in the opinion of such
managing underwriter or underwriters, can be sold
without having such adverse effect; and
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(iii) third, and only if all of the Registrable Securities
referred to in Sections 3.1(c)(i) and 3.1(c)(ii) have
been included in such Registration, any other securities
eligible for inclusion in such Registration.
(d) Obligation to Register Registrable Securities. To the extent
that any Registrable Securities are included and sold in a
Company Public Sale, the Company's continuing obligations to
Register that number of securities included in the Company
Public Sale shall forthwith cease upon the closing of the
Company Public Sale; provided that all of the Company's
obligations under Article 2 and Section 3.1 in respect of the
Registrable Shares that were not included and sold in such
Company Public Sale shall remain in full force and effect and
shall not be deemed to have been satisfied or to have ceased as
a result of such Company Public Sale.
(e) Underwriting Agreement. The Purchaser shall be party to the
underwriting agreement between the Company and such
underwriters, which underwriting agreement shall (i) contain
such representations and warranties by, and the other agreements
on the part of, the Company to and for the benefit of the
Purchaser as are customarily made by issuers to selling
stockholders in secondary underwritten public offerings and (ii)
provide that any or all of the conditions precedent to the
obligations of such underwriters under such underwriting
agreement also shall be conditions precedent to the obligations
of the Purchaser. The Purchaser shall not be required to make
any representations or warranties to or agreements with the
Company or the underwriters, except that such Purchaser shall be
required, upon request, to provide representations, warranties
or agreements regarding the Purchaser, the Purchaser's
Registrable Securities and the Purchaser's intended method of
distribution of the Registrable Securities or any other
representations or information required by law or required to be
included in a Registration Statement.
(f) Participation in Underwritten Registrations. The Purchaser may
not participate in any Underwritten Offering hereunder unless
the Purchaser (i) agrees to sell its applicable Registrable
Securities on the basis provided in any underwriting
arrangements approved by the Company and (ii) completes and
executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the
terms of such underwriting arrangements.
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ARTICLE 4
OBLIGATIONS AND COVENANTS OF THE PARTIES
4.1 Registration Xxxxxxxxxx.Xx connection with the Company's Registration
obligations under Article 2 and Article 3, the Company will use commercially
reasonable efforts to effect such Registration to permit the sale of such
Registrable Securities in accordance with the intended method or methods of
distribution thereof as expeditiously as reasonably practicable, and in
connection therewith the Company will:
(a) prepare the required Registration Statement or Canadian
Prospectus (as the case may be) including all exhibits and
financial statements required under the United States
Securities Act or Canadian Securities Legislation to be filed
therewith, and before filing a Registration Statement, U.S.
Prospectus or Canadian Prospectus (as the case may be), or any
amendments or supplements thereto, and (x) furnish to the
Purchaser copies of all documents prepared to be filed, which
documents will be subject to the review of the Purchaser and
its counsel, acting reasonably and (y) except in the case of a
Registration under Section 3.1, not file any Registration
Statement, U.S. Prospectus, or Canadian Prospectus or
amendments or supplements thereto to which the Purchaser or
the underwriters, if any, shall reasonably object; provided
that notwithstanding any other term of this Agreement, if the
Purchaser or the underwriters, if any, do so reasonably
object, the Company shall not be deemed to be in breach of any
of its obligations hereunder;
(b) as soon as reasonably practicable file with the SEC or the
Canadian Securities Administrators in each applicable
Qualifying Province (as the case may be) a Registration
Statement or Canadian Prospectus, respectively, relating to
the Registrable Securities including all exhibits and
financial statements required by the SEC or such Canadian
Securities Administrators (as the case may be) to be filed
therewith, and use commercially reasonable efforts to cause
such Registration Statement to become effective under the
United States Securities Act or an MRRS Decision Document to
be issued for such Canadian Prospectus;
(c) prepare and file with the SEC or the Canadian Securities
Administrators in each applicable Qualifying Province such
amendments and post-effective amendments to any Registration
Statement or Canadian Prospectus (as the case may be) and
supplements (including Shelf Supplements) to the U.S.
Prospectus or Canadian Prospectus (as the case may be) as may
be reasonably requested by the Purchaser or necessary to keep
such Registration effective for the period of time required by
this Agreement and, if applicable, to include the Registrable
Securities in an Underwritten Offering pursuant to Section
3.1, and comply with provisions of applicable Securities Laws
with respect to the sale or other disposition of all
securities covered by such Registration Statement or Canadian
Prospectus (as the case may be) during such period in
accordance with the intended method or methods of disposition
by the Purchaser set forth in such Registration Statement or
Canadian Prospectus (as the case may be);
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(d) notify the Purchaser and (if requested) confirm such advice in
writing and provide copies of the relevant documents to the
Purchaser, as soon as reasonably practicable after notice
thereof is received by or on behalf of the Company
(i) when
(A) the applicable Registration Statement or any
amendment thereto has been filed, becomes
effective, and when the applicable U.S.
Prospectus or any amendment or supplement to
such U.S. Prospectus has been filed, and/or
(B) the applicable Canadian Preliminary
Prospectus or Canadian Prospectus or any
amendment or supplement thereto has been
filed or an MRRS Decision Document issued
therefor,
(ii) of any written comments by the Securities Regulators
or any request by the Securities Regulators or any
other Governmental Authority for amendments or
supplements to any Registration Statement (or the
related U.S. Prospectus), any Canadian Preliminary
Prospectus or any Canadian Prospectus or for
additional information,
(iii) of the issuance by the Securities Regulators of any
stop order or cease trade order suspending the
effectiveness of any Registration Statement or
Canadian Prospectus or any order by the Securities
Regulators or any other Governmental Authority
preventing or suspending the use of any preliminary
or final U.S. Prospectus, Preliminary Canadian
Prospectus or Canadian Prospectus or the initiation
or threatening of any proceedings for such purposes,
and
(iv) of the receipt by the Company of any notification
with respect to the suspension of the qualification
of the Registrable Securities for offering or sale in
any jurisdiction or the initiation or threatening of
any proceeding for such purpose;
(e) promptly notify the Purchaser when the Company becomes aware
of the happening of any event as a result of which
(i) the applicable Preliminary Canadian Prospectus or
Canadian Prospectus contains any misrepresentation
(as defined in Canadian Securities Legislation) or
fails to constitute full, true and plain disclosure
of all material facts regarding the Registrable
Securities or,
(ii) the applicable Registration Statement or the U.S.
Prospectus included in such Registration Statement
(as then in effect), contains any untrue statement of
a material fact or omits to state a material fact
necessary to make the statements therein (in the case
of the U.S. Prospectus, in light of the circumstances
under which they were made), not misleading, or
Page 20 of 34
if for any other reason it shall be necessary during
such time period to amend or supplement such
Registration Statement, U.S. Prospectus, Preliminary
Canadian Prospectus or Canadian Prospectus in order
to comply with the United States Securities Laws or
Canadian Securities Legislation, as applicable, and,
in each case as promptly as reasonably practicable
thereafter, prepare and file with the Securities
Regulators, and furnish without charge to the selling
Purchaser an amendment or supplement to such
Registration Statement, U.S. Prospectus, Preliminary
Canadian Prospectus or Canadian Prospectus which will
correct such misstatement or omission or effect such
compliance;
(f) use commercially reasonable efforts to prevent or obtain the
withdrawal of any stop order, cease trade order or other order
suspending the use of any preliminary or final U.S.
Prospectus, Preliminary Canadian Prospectus or Canadian
Prospectus or suspending the qualification of Registrable
Securities covered by a Registration Statement, Preliminary
Canadian Prospectus or Canadian Prospectus;
(g) promptly incorporate in a U.S. Prospectus supplement or
post-effective amendment to a Registration Statement, or in an
amendment or supplement to a Preliminary Canadian Prospectus
or Canadian Prospectus, such information as the managing
underwriter or underwriters, if any, and the Purchaser agree
should be included therein relating to the plan of
distribution with respect to such Registrable Securities; and
make all required filings of such U.S. Prospectus supplement
or post-effective amendment, or amendment or supplement to
such Preliminary Canadian Prospectus or Canadian Prospectus,
as soon as reasonably practicable after being notified of the
matters to be incorporated in such U.S. Prospectus supplement
or post-effective amendment or amendment or supplement to such
Preliminary Canadian Prospectus or Canadian Prospectus;
(h) furnish to the Purchaser without charge, as many conformed
copies as the Purchaser may reasonably request of the
applicable Registration Statement, Preliminary Canadian
Prospectus or Canadian Prospectus (as the case may be) and any
supplement, amendment or post-effective amendment thereto,
including financial statements and schedules, all documents
incorporated therein by reference and all exhibits (including
those incorporated by reference);
(i) deliver to the Purchaser without charge, as many copies of the
applicable U.S. Prospectus (including each preliminary
prospectus), Preliminary Canadian Prospectus and Canadian
Prospectus (as the case may be) and any amendment or
supplement thereto as the Purchaser may reasonably request (it
being understood that the Company consents to the use of such
U.S. Prospectus, Preliminary Canadian Prospectus and Canadian
Prospectus (as the case may be) or any amendment or supplement
thereto by the Purchaser in connection with the offering and
sale of the Registrable Securities covered by such U.S.
Prospectus, Preliminary Canadian Prospectus and Canadian
Prospectus (as the case may be) or any amendment or supplement
thereto) and such other documents as the Purchaser may
reasonably request in order to facilitate the disposition of
the Registrable Securities by the Purchaser;
Page 21 of 34
(j) on or prior to the date on which the applicable Registration
Statement becomes effective under the United States Securities
Act, use commercially reasonable efforts to register or
qualify, and cooperate with the Purchaser 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 each state and other jurisdiction of the
United States as the Purchaser or its counsel reasonably
request in writing and do any and all other acts or things
reasonably necessary or advisable to keep such Registration in
effect, provided that the Company will not be required to
(i) qualify generally to do business in any jurisdiction
where it is not then so qualified,
(ii) become subject to the securities laws of any
jurisdiction other than the United States, the
various states of the United States, Canada or the
Qualifying Provinces, or
(iii) take any action which would subject it to taxation or
general service of process in any such jurisdiction
where it is not then so subject;
(k) use commercially reasonable efforts to cause the Registrable
Securities covered by any Registration Statement, Preliminary
Canadian Prospectus or Canadian Prospectus, as applicable to
be registered with or approved by such other Governmental
Authorities as may be necessary to enable the Purchaser to
consummate the disposition of such Registrable Securities;
(l) enter into such customary agreements (including, without
limitation, indemnification agreements, and in the case of
Underwritten Offerings, underwriting agreements) and take all
such other actions as the Purchaser or the underwriters, if
any, reasonably request in order to expedite or facilitate the
registration and disposition of such Registrable Securities;
(m) obtain for delivery to the Purchaser and to the underwriters,
if any, an opinion or opinions (including, as applicable, any
French translation opinion for any Preliminary Canadian
Prospectus or Canadian Prospectus) from counsel for the
Company dated the effective date of the Registration Statement
or, in the event of an Underwritten Offering, the date of the
closing under the underwriting agreement, addressed or
confirmed to the Purchaser and underwriters, in customary
form, scope and substance, which opinions shall be reasonably
satisfactory to the Purchaser or underwriters, as the case may
be, and their respective counsel;
(n) in the case of an Underwritten Offering, provide copies to the
Purchaser included in such Underwritten Offering, of the
"comfort letter" from, and delivered to the Company and the
underwriters, if any, by the Company's independent certified
public accountants, in customary form and covering such
matters of the type customarily covered by "comfort letters"
as the Company and the underwriters, if
Page 22 of 34
any, reasonably request, dated the date of execution of the
underwriting agreement and brought down to the closing under
the underwriting agreement;
(o) cooperate with each seller of Registrable Securities and each
underwriter, if any, participating in the disposition of such
Registrable Securities and their respective counsel in
connection with any filings required to be made with the NASD
or other regulatory body;
(p) use commercially reasonable efforts to comply with all
applicable securities laws and make available to its security
holders, as soon as reasonably practicable an earnings
statement satisfying the provisions of Section 11(a) of the
United States Securities Act and the rules and regulations
promulgated thereunder;
(q) provide and cause to be maintained a transfer agent and
registrar for all Registrable Securities covered by the
applicable Registration Statement, Preliminary Canadian
Prospectus or Canadian Prospectus, as the case may be, from
and after a date not later than the effective date of such
Registration Statement, or the date an MRRS Decision Document
is issued for the Canadian Prospectus, as the case may be;
(r) cause all Registrable Securities covered by the Registration
Statement, Preliminary Canadian Prospectus or Canadian
Prospectus, as the case may be, to be listed on each
securities exchange on which any of the Company's securities
are then listed or quoted and on each inter-dealer quotation
system on which any of the Company's securities are then
quoted; and
(s) make available upon reasonable notice at reasonable times and
for reasonable periods for inspection by
(i) a representative appointed by the Purchaser covered
by the applicable Registration Statement, Preliminary
Canadian Prospectus or Canadian Prospectus, as the
case may be,
(ii) any underwriter or agent participating in any
disposition to be effected pursuant to such
Registration Statement, Preliminary Canadian
Prospectus or Canadian Prospectus, as the case may
be, and
(iii) by any attorney, lawyer, accountant or other agent
retained by the Purchaser or any such underwriter or
agent,
all pertinent financial and other records, pertinent corporate
documents and properties of the Company, and cause all of the
Company's officers, directors and employees and the
independent public accountants who have certified its
financial statements to make themselves available to discuss
the business of the Company and to supply all information
reasonably requested by any such Person in connection with
such Registration Statement, Preliminary Canadian Prospectus
or Canadian Prospectus (as the case may be) as shall be
necessary to enable them to exercise their due diligence
responsibility; provided that any such Person gaining
Page 23 of 34
access to information regarding the Company pursuant
to this Section 4.1 shall agree to hold in strict
confidence and shall not make any disclosure or use
any information regarding the Company which the
Company determines in good faith to be confidential,
and of which determination such Person is notified,
unless (w) the release of such information is
requested or required (by deposition, interrogatory,
requests for information or documents by a
governmental entity, subpoena or similar process),
(x) such information is or becomes publicly known
without a breach of this or any other agreement of
which such Person has knowledge, (y) such information
is or becomes available to such Person on a
non-confidential basis from a source other than the
Company or (z) such information is independently
developed by such Person.
4.2 Information Regarding the Purchaser.
The Company may require the Purchaser to furnish to the Company such
information regarding the distribution of the Registrable Securities and such
other information relating to the Purchaser and its ownership of Registrable
Securities as the Company may from time to time reasonably request in writing to
enable the Company to comply with its obligations hereunder. The Purchaser
agrees to furnish such information to the Company and to cooperate with the
Company as reasonably necessary to enable the Company to comply with the
provisions of this Agreement. The Company shall assume and shall not be deemed
to assume any liability for any information provided to it by the Purchaser.
4.3 Discontinuance of Distribution.
The Purchaser agrees by acquisition of such Registrable Securities
that, upon receipt of any notice from the Company of the happening of any event
of the kind described in Section 4.1(e), the Purchaser will forthwith
discontinue disposition of Registrable Securities pursuant to such Registration
Statement, Preliminary Canadian Prospectus or Canadian Prospectus, as the case
may be, until the Purchaser's receipt of the copies of the supplemented or
amended U.S. Prospectus, Preliminary Canadian Prospectus or Canadian Prospectus,
as the case may be, contemplated by Section 4.1(e), or until the Purchaser is
advised in writing by the Company that the use of the U.S. Prospectus,
Preliminary Canadian Prospectus or Canadian Prospectus, as the case may be, may
be resumed, and if so directed by the Company, the Purchaser will deliver to the
Company (at the Company's expense) all copies, other than permanent file copies
then in the Purchaser's possession, of the U.S. Prospectus, Preliminary Canadian
Prospectus or Canadian Prospectus, as the case may be, covering such Registrable
Securities current at the time of receipt of such notice.
4.4 Eligibility for use of Short-Form Prospectus and Form F-3.
The Company covenants that it shall, during the Registration Period,
use commercially reasonable efforts to maintain its eligibility to file:
(a) a prospectus in Canada in the form of a short form prospectus
pursuant to NI 44-101, and
Page 24 of 34
(b) a registration statement on Form F-3, or successor form
thereto, under the United States Securities Act for purposes
of registering securities to be offered and sold, including on
a delayed or continuous basis, for the account of any person
other than the issuer.
4.5 Compliance with Securities Laws.
The Purchaser will comply with all Applicable Laws in connection with
its resale of the Registrable Securities and the exercise of any of its rights
and obligations hereunder.
4.6 Purchaser Information.
The Purchaser covenants that any information it provides in writing to
the Company for the express purpose of inclusion in
(a) any Registration Statement under which Registrable Securities
are Registered under the United States Securities Act
(including any final, preliminary or summary U.S. Prospectus
contained therein or any amendment thereof or supplement
thereto), or
(b) any Preliminary Canadian Prospectus, Canadian Prospectus or
any amendment or supplement thereto,
shall not contain any untrue statement of a material fact or any omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein (in the case of a U.S. Prospectus, in light of the
circumstances under which they were made) not misleading or, in the case of a
Preliminary Canadian Prospectus or Canadian Prospectus, that such information
provides full, true and plain disclosure of all material facts.
ARTICLE 5
EXPENSES
5.1 Registration Expenses.
The expenses incident to the Company's performance of or compliance
with Article 2, Article 3 and Article 4 of this Agreement will be paid by the
Company, consisting of those expenses as set forth below:
(a) all registration and filing fees, and any other fees and
expenses associated with filings required to be made with the
Securities Regulators or the NASD,
(b) all fees and expenses in connection with compliance with state
securities or "Blue Sky" laws,
(c) all printing, duplicating, word processing, messenger,
telephone, facsimile and delivery expenses (including expenses
of printing prospectuses or similar documents),
Page 25 of 34
(d) all fees and disbursements of counsel for the Company and of
all independent certified public accountants of the Company
(including the expenses of any opinions, audit and "comfort
letters" required by or incident to such performance),
(e) United States Securities Act liability insurance or similar
insurance if the Company so desires or the underwriters, if
any, so require in accordance with then-customary underwriting
practice,
(f) all fees and expenses incurred in connection with the listing
of the Registrable Securities on any securities exchange or
quotation of the Registrable Securities on any inter-dealer
quotation system,
(g) all applicable rating agency fees with respect to the
Registrable Securities,
(h) any reasonable fees and disbursements of underwriters, if any,
customarily paid by issuers of securities and, for greater
certainty, shall not include the fees and disbursements of any
underwriters separately engaged by the Purchaser,
(i) all fees and expenses of any special experts or other Persons
retained by the Company in connection with any Registration,
and
(j) all of the Company's internal expenses (including all salaries
and expenses of its officers and employees performing legal or
accounting duties).
All such expenses are referred to herein as "Registration Expenses." The Company
shall not be required to pay any fees and disbursements to underwriters not
customarily paid by the issuers of securities in a secondary offering, including
underwriting discounts and commissions and transfer taxes, if any, attributable
solely to the sale of Registrable Securities.
ARTICLE 6
INDEMNIFICATION
6.1 Indemnification by the Company.
The Company agrees to indemnify and hold harmless, to the full extent
permitted by law, the Purchaser, its directors, officers and employees and each
Person who controls (within the meaning of the United States Securities Act or
the Exchange Act) such Persons from and against any and all losses, penalties,
judgments, suits, costs, claims, damages, liabilities (or actions or proceedings
in respect thereof, whether or not such indemnified party is a party thereto)
and expenses, joint or several (including reasonable costs of investigation and
legal expenses) (each, a "Loss" and collectively "Losses") arising out of or
based upon
(a) any untrue or alleged untrue statement of a material fact
contained or incorporated by reference in
(i) any Registration Statement under which such
Registrable Securities were Registered under the
United States Securities Act (including any final,
Page 26 of 34
preliminary or summary U.S. Prospectus contained
therein or any amendment thereof or supplement
thereto or any documents incorporated by reference
therein), or
(ii) any Preliminary Canadian Prospectus, Canadian
Prospectus or any amendment or supplement thereto or
any material incorporated by reference therein, or
(b) any omission or alleged omission to state in a Registration
Statement or U.S. Prospectus a material fact required to be
stated therein (in the case of the U.S. Prospectus) or
necessary to make the statements therein in light of the
circumstances under which they were made not misleading or in
a Preliminary Canadian Prospectus or Canadian Prospectus to
provide full, true and plain disclosure of all material facts,
or
(c) any violation or alleged violation by the Company of any
Applicable Law relating to any action or inaction in
connection with any Registration or disclosure document or
other document or information incorporated by reference
therein and used in connection with such Registration;
provided that the Company shall not be liable to any particular indemnified
party (x) to the extent that any such Loss arises solely as a result of an
untrue statement or alleged untrue statement or omission or alleged omission
made in any such Registration Statement, Preliminary Canadian Prospectus or
Canadian Prospectus in reliance upon and in conformity with written information
furnished to the Company by such indemnified party expressly for use in the
preparation thereof or (y) to the extent that any such Loss arises solely as a
result of an untrue statement or omission in a preliminary U.S. Prospectus or
Preliminary Canadian Prospectus relating to Registrable Securities, if a U.S.
Prospectus or Canadian Prospectus, respectively, (as then amended or
supplemented) that would have cured the defect was furnished to the indemnified
party from whom the Person asserting the claim giving rise to such Loss
purchased Registrable Securities at least one day prior to the sale (which may
include a contract of sale) of the Registrable Securities to such Person and a
copy of such U.S. Prospectus or Canadian Prospectus, as applicable, (as amended
and supplemented) was not sent or given by or on behalf of such indemnified
party to such Person at or prior to the sale (which may include a contract of
sale) of the Registrable Securities to such Person. This indemnity shall be in
addition to any liability the Company may otherwise have. Such indemnity shall
remain in full force and effect regardless of any investigation made by or on
behalf of the Purchaser or any indemnified party and shall survive the transfer
of such securities by the Purchaser. The Company will also indemnify
underwriters, selling brokers, dealer managers and similar securities industry
professionals participating in the distribution, their officers and directors
and each Person who controls such Persons (within the meaning of the United
States Securities Act and the Exchange Act) to the same extent as provided above
with respect to the indemnification of the indemnified parties.
6.2 Conduct of Indemnification Proceedings.
Any Person entitled to indemnification hereunder xxxx
Xxxx 27of 34
(a) give prompt written notice to the indemnifying party of any
claim with respect to which it seeks indemnification, provided
that any delay or failure to so notify the indemnifying party
shall relieve the indemnifying party of its obligations
hereunder only to the extent, if at all, that it is actually
and materially prejudiced by reason of such delay or failure,
and
(b) permit such indemnifying party to assume the defence of such
claim with counsel reasonably satisfactory to the indemnified
party; provided that any Person entitled to indemnification
hereunder shall have the right to select and employ separate
counsel and to participate in the defence of such claim, but
the fees and expenses of such counsel shall be at the expense
of such Person unless
(i) the indemnifying party has agreed in writing to pay
such fees or expenses,
(ii) the indemnifying party shall have failed to assume
the defence of such claim within a reasonable time
after receipt of notice of such claim from the Person
entitled to indemnification hereunder and employ
counsel reasonably satisfactory to such Person,
(iii) the indemnified party has reasonably concluded (based
upon advice of its counsel) that there may be legal
defences available to it or other indemnified parties
that are different from or in addition to those
available to the indemnifying party, or
(iv) in the reasonable judgment of any such Person (based
upon advice of its counsel) a conflict of interest
may exist 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 defence of such claim on behalf of such Person).
If the indemnifying party assumes the defence, the
indemnifying party shall not have the right to settle such
action without the consent of the indemnified party. No
indemnifying party shall consent to entry of any judgment or
enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or
plaintiff to such indemnified party of an unconditional
release from all liability in respect to such claim or
litigation. If such defence is not assumed by the indemnifying
party, the indemnifying party will not be subject to any
liability for any settlement made without its prior written
consent, but such consent may not be unreasonably withheld. It
is understood that the indemnifying party or parties shall
not, in connection with any proceeding or related proceedings
in the same jurisdiction, be liable for the reasonable fees,
disbursements or other charges of more than one separate firm
admitted to practice in such jurisdiction at any one time from
such indemnified party or parties unless (x) the employment of
more than one counsel has been authorized in writing by the
indemnifying party or parties, (y) an indemnified party has
Page 28 of 34
reasonably concluded (based on the advice of counsel) that
there may be legal defences available to it that are different
from or in addition to those available to the other
indemnified parties or (z) a conflict or potential conflict
exists or may exist (based upon advice of counsel to an
indemnified party) between such indemnified party and the
other indemnified parties, in each of which cases the
indemnifying party shall be obligated to pay the reasonable
fees and expenses of such additional counsel or counsels.
6.3 Contribution.
If for any reason the indemnification provided for in Section 6.1 is
unavailable to an indemnified party or insufficient in respect of any Losses
referred to therein, then the indemnifying party shall contribute to the amount
paid or payable by the indemnified party as a result of such Loss
(a) in such proportion as is appropriate to reflect the relative
benefits received by the indemnifying party on the one hand
and the indemnified party or parties on the other hand; or
(b) if the allocation provided by clause (a) of this Section 6.3
is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred
to in clause (a) of this Section 6.3 but also the relative
fault of the indemnifying party on the one hand and the
indemnified party or parties on the other hand in connection
with the acts, statements or omissions that resulted in such
losses, as well as any other relevant equitable
considerations.
In connection with any Registration Statement, U.S. Prospectus, Preliminary
Canadian Prospectus or Canadian Prospectus (as the case may be) filed with the
applicable Securities Regulators by the Company, (x) the relative benefits
received by the indemnifying party on the one hand and the indemnified party on
the other hand shall be deemed to be in the same respective proportions as the
net proceeds from the offering of any securities registered thereunder (before
deducting expenses) received by the indemnifying party and the net proceeds from
the offering of any Registrable Securities (before deducting expenses) received
by the indemnified party, bear to the aggregate public offering price of the
securities registered thereunder; and (y) the relative fault of the indemnifying
party on the one hand and the indemnified party on the other hand shall be
determined by reference to, among other things, whether any untrue or alleged
untrue statement of a material fact or the omission or alleged 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 hereto agree that it would not be just or equitable if contribution
pursuant to this Section 6.3 were determined by pro rata allocation or by any
other method of allocation that does not take account of the equitable
considerations referred to in this Section 6.3. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the United States
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation. The amount paid or payable by an
indemnified party as a result of the Losses referred to in Section 6.1 shall be
deemed to include, subject to the limitations set forth above, any legal or
other
Page 29 of 34
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. If indemnification is
available under Section 6.1, the indemnifying parties shall indemnify each
indemnified party to the full extent provided in Section 6.1 without regard to
the relative fault of said indemnifying parties or indemnified party. The
remedies provided for in this Section 6.3 are not exclusive and shall not limit
any rights or remedies which may otherwise be available to any indemnified party
at law or in equity.
ARTICLE 7
MISCELLANEOUS
7.1 Rules 144 and 144A.
The Company covenants that it will file the reports required to be
filed by it under the United States Securities Act and the Exchange Act and the
rules and regulations adopted by the SEC thereunder. If the Company is not
required to file such reports, it will, upon the request of the Purchaser, make
publicly available such necessary information for so long as necessary to permit
sales pursuant to Rules 144, 144A or Regulation S under the United States
Securities Act, and it will take such further action as the Purchaser may
reasonably request, all to the extent required from time to time to enable the
Purchaser to sell Registrable Securities without Registration under the United
States Securities Act within the limitation of the exemptions provided by (i)
Rules 144, 144A or Regulation S under the United States Securities Act, as such
Rules may be amended from time to time, or (ii) any similar rule or regulation
hereafter adopted by the SEC. Upon the request of the Purchaser, the Company
will deliver to the Purchaser a written statement as to whether it has complied
with such requirements and, if not, the specifics thereof.
7.2 Free Writing Prospectuses.
The Purchaser agrees that it will not use any "free writing
prospectuses" (as such term is defined in Rule 405 of the United States
Securities Act) in connection with the offer or sale by it of Registrable
Securities pursuant to a Registration Statement.
7.3 No Inconsistent Agreements; Additional Rights.
The Company will not hereafter enter into, and is not currently a party
to, any agreement with respect to its securities which is inconsistent with the
rights granted to the Purchaser by this Agreement.
7.4 Term and Termination.
This Agreement shall take effect from and after the Closing Date and
shall terminate upon the later of the expiration of the Registration Period in
Canada or the United States, except for the provisions of Article 6, which shall
survive any such termination.
7.5 Fees and Expenses.
The Company shall pay the fees and expenses of its advisers, counsel,
accountants and other experts, if any, and of Purchaser Counsel incident to the
negotiation, preparation, execution
Page 30 of 34
and delivery of this Agreement. The fees and expenses that the Company is
obligated to pay pursuant to this Section 7.5 shall be in addition to all such
fees and expenses the Company is obligated to pay pursuant to the terms of
Article 5, Article 6 and any other Transaction Document.
7.6 Entire Agreement.
The Transaction Documents, together with the schedules thereto, contain
the entire understanding of the Parties with respect to the subject matter
hereof and supersede all prior agreements and understandings, oral or written,
with respect to such matters, including, without limitation the non-binding term
sheet between the Parties dated as of June 13, 2006.
7.7 Notices.
Any and all notices or other communications or deliveries required or
permitted to be provided hereunder shall be in writing and shall be deemed given
and effective on the earliest of
(a) the date of transmission, if such notice or communication is
delivered via facsimile or via internet at the facsimile
number or internet address respectively set out on the
signature pages attached hereto prior to 5:30 p.m. (Toronto
time) on a Trading Day,
(b) the next Trading Day after the date of transmission, if such
notice or communication is delivered via facsimile or via
internet at the facsimile number or internet address
respectively set out on the signature pages attached hereto on
a day that is not a Trading Day or later than 5:30 p.m.
(Toronto time) on any Trading Day,
(c) the 2nd Trading Day following the date of mailing, if sent by
an internationally recognized overnight courier service, or
(d) upon actual receipt by the Party to whom such notice is
required to be given.
The address for such notices and communications shall be as set out on the
signature pages attached hereto.
7.8 Amendments; Waivers.
No provision of this Agreement may be waived or amended except in a
written instrument signed, in the case of an amendment, by the Company and the
Purchaser or, in the case of a waiver, by the Party against whom enforcement of
any such waiver is sought. No waiver of any default with respect to any
provision, condition or requirement of this Agreement shall be deemed to be a
continuing waiver in the future or a waiver of any subsequent default or a
waiver of any other provision, condition or requirement hereof, nor shall any
delay or omission of either Party to exercise any right hereunder in any manner
impair the exercise of any such right.
Page 31 of 34
7.9 Successors and Assigns.
This Agreement shall be binding upon and inure to the benefit of the
Parties and their successors and permitted assigns. Neither Party may assign
this Agreement or any rights or obligations hereunder without the prior written
consent of the other Party.
7.10 No Third-Party Beneficiaries.
This Agreement is intended for the benefit of the Parties and their
respective successors and permitted assigns and is not for the benefit of, nor
may any provision hereof be enforced by, any other Person.
7.11 Governing Law.
This Agreement shall be governed by, and construed in accordance with,
the laws of the Province of Ontario and the laws of Canada applicable therein.
7.12 Execution.
This Agreement may be executed in two or more counterparts, all of
which when taken together shall be considered one and the same agreement and
shall become effective when counterparts have been signed by each Party and
delivered to the other Party, it being understood that both Parties need not
sign the same counterpart. In the event that any signature is delivered by
facsimile transmission, such signature shall create a valid and binding
obligation of the Party executing (or on whose behalf such signature is
executed) with the same force and effect as if such facsimile signature page
were an original thereof.
7.13 Severability.
If any provision of this Agreement is held to be invalid or
unenforceable in any respect, the validity and enforceability of the remaining
terms and provisions of this Agreement shall not in any way be affected or
impaired thereby and the Parties shall attempt to agree upon a valid and
enforceable provision that is a reasonable substitute therefor, and upon so
agreeing, shall incorporate such substitute provision in this Agreement.
7.14 Construction.
The Parties confirm that each of them together with the Company Counsel
and Purchaser Counsel, as applicable, has reviewed and had an opportunity to
revise the Transaction Documents and, therefore, the provisions of this
Agreement express the Parties' mutual intent and the rule of construction to the
effect that any ambiguities are to be resolved against the drafting Party shall
not be employed in the interpretation of the Transaction Documents or any
amendments hereto and no rule of strict construction shall be applied against
either Party.
(Signature Pages Follow)
Page 32 of 34
IN WITNESS WHEREOF, the Parties have caused this Registration Rights
Agreement to be duly executed by their respective authorized signatories as of
the date first indicated on the first page hereof.
LORUS THERAPEUTICS INC.
Per: /s/ Xxx Xxxxxx
-------------------------------------
Name: Xxx Xxxxxx
Title: Chief Executive Officer
Per: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chief Operating Officer
Address for Notice:
0 Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Xxx Xxxxxx, CEO
Telephone: x(000) 000-0000 Ext. 340
Telecopy: x(000) 000-0000
E-mail: xxxxxxxx@xxxxxxxxxx.xxx
and
Attention: Xxxxxx X. Xxxxx, COO
Telephone: x(000) 000-0000 Ext. 379
Telecopy: x(000) 000-0000
E-mail: xxxxxxx@xxxxxxxxxx.xxx
HIGH TECH BETEILIGUNGEN GMBH &
XX.XX represented by CONPHARM ANSTALT
Per: /s/ Xxxxx Xxxxxx
-------------------------------------
Name: Xxxxx Xxxxxx
Title: Managing Director
Page 33 of 34
Address for Notice:
ConPharm Anstalt
Xxxxxxxxx 10
FL 9492 Eschen
Principality of Liechtenstein
Attention: Xxxxx Xxxxxx,
Managing Director
Telephone: x000 00 00 000
Telecopy: x000 000 0000
E-mail: xxxxxxx@XxxxXxxx-xx.xxx
With copy to:
High Tech Beteiligungen GmbH & Co. KG
Xxxxxxxxxxxx 00
X 00000 Xxxxxxxxxx
Xxxxxxx
Attention: Xxxxx Xxxxxx,
Managing Partner
Telephone: x00 000 00 000 000
Telecopy: x00 000 00 000 000
E-mail: xxxxxxx@XxxxXxxx-xx.xxx
Page 34 of 34
