Exhibit 10.33
INVESTOR RIGHTS AGREEMENT
THIS INVESTOR RIGHTS AGREEMENT (this "Agreement") is made as of the 25th
day of October, 2001, by and between Polar Molecular Corporation, a Delaware
corporation ("PMC"), and Affiliated Investments, L.L.C., a Michigan limited
liability company (the "Investor").
RECITALS
WHEREAS, PMC and the Investor have entered into a Purchase Agreement (the
"Purchase Agreement") of even date herewith whereby the Investor will loan PMC
$600,000 in exchange for a Promissory Note (the "Note") in the principal amount
of $600,000 and 555,556 shares of unregistered common stock par value $0.0001 of
PMC (the "Common Stock"); and
WHEREAS, the Company is a party to that certain Investor Rights Agreement
(the "Prior Rights Agreement") dated as of January 30, 2001 whereby the Company
granted registration rights to certain investors; and
WHEREAS, the Prior Rights Agreement prohibits the Company from granting any
new registration rights that will (i) reduce the amount of securities that may
be registered under the Prior Rights Agreement or (ii) allow a demand for
registration of securities; and
WHEREAS, as a condition to the Purchase Agreement PMC agreed to grant the
Investor certain registration rights for all of the shares of Common Stock owned
by the Investor or which the Investor is entitled to acquire as of the date
hereof and PMC and the Investor hereby agree that this Agreement shall govern
the rights of the Investor to cause PMC to register shares of Common Stock
issued.
AGREEMENT
NOW THEREFORE, in consideration of the foregoing, PMC and the Investor
hereby agree as follows:
1. Registration Rights. PMC covenants and agrees as follows:
1.1 Definitions. For purposes of this Section 1:
(a) The term "Act" means the Securities Act of 1933, as amended.
(b) The term "Form S-3" means such form under the Act as in effect on
the date hereof or any registration form under the Act subsequently adopted
by the SEC that permits inclusion or incorporation of substantial
information by reference to other documents filed by PMC with the SEC.
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(c) The term "Holder" means any person, owning or having the right to
acquire Registrable Securities or any assignee thereof in accordance with
Section 1.09 hereof.
(d) The term "Initial Offering" means PMC's next firm commitment
underwritten public offering of its Common Stock under the Act.
(e) The term "1934 Act" means the Securities Exchange Act of 1934, as
amended.
(f) The term "register," "registered," and "registration" refer to a
registration effected by preparing and filing a registration statement or
similar document in compliance with the Act, and the declaration or
ordering of effectiveness of such registration statement or document.
(g) The term "Registrable Securities" means (i) shares of the Common
Stock issued pursuant to the Purchase Agreement; (ii) shares of Common
Stock owned by the Investor or which the Investor is entitled to acquire as
of the date hereof, other than pursuant to the Purchase Agreement; and
(iii) any Common Stock of PMC issued as (or issuable upon the conversion or
exercise of any warrant, right or other security that is issued as) a
dividend or other distribution with respect to, or in exchange for, or in
replacement of, the shares referenced in (i) or (ii) above, excluding in
all cases, however, any Registrable Securities sold by a person in a
transaction in which his rights under this Section 1 are not assigned.
(h) The number of shares of "Registrable Securities" outstanding shall
be determined by the number of shares of Common Stock outstanding that are,
and the number of shares of Common Stock issuable pursuant to then
exercisable or convertible securities that are, Registrable Securities.
(i) The term "SEC" shall mean the Securities and Exchange Commission.
1.2 Company Registration.
(a) If (but without any obligation to do so) PMC proposes to register
(including for this purpose a registration effected by PMC for stockholders
other than the Holders) any of its stock or other securities under the Act
in connection with the public offering of such securities (other than a
registration relating solely to the sale of securities to participants in a
Company stock plan, a registration relating to a corporate reorganization
or other transaction under Rule 145 of the Act, a registration on any form
that does not include substantially the same information as would be
required to be included in a registration statement covering the sale of
the Registrable Securities, or a registration in which the only Common
Stock being registered is Common Stock issuable upon conversion of debt
securities that are also being registered), PMC shall, at such time,
promptly give each Holder written notice of such registration. Upon the
written request of each Holder given within twenty (20) days after mailing
of such notice by
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PMC in accordance with Section 2.5, PMC shall, subject to the provisions of
Section 1.2(c), use all reasonable efforts to cause to be registered under
the Act all of the Registrable Securities that each such Holder has
requested to be registered; provided, however, that the Registrable
Securities will be excluded from such registration to the extent that the
inclusion of such Registrable Securities would otherwise reduce the amount
of securities offered for sale pursuant to the Prior Rights Agreement.
(b) Right to Terminate Registration. PMC shall have the right to
terminate or withdraw any registration initiated by it under this Section
1.2 prior to the effectiveness of such registration whether or not any
Holder has elected to include securities in such registration. The expenses
of such withdrawn registration shall be borne by PMC in accordance with
Section 1.5 hereof.
(c) Underwriting Requirements. In connection with any offering
involving an underwriting of shares of PMC's capital stock, PMC shall not
be required under this Section 1.2 to include any of the Holders'
securities in such underwriting unless they accept the terms of the
underwriting as agreed upon between PMC and the underwriters selected by it
(unless the terms of such underwriting purport to alter the priority status
of the registration rights of the Holders of Registrable Securities) and
enter into an underwriting agreement in customary form with an underwriter
or underwriters selected by PMC, and then only in such quantity as the
underwriters determine in their sole discretion will not jeopardize the
success of the offering by PMC. If the total amount of securities,
including securities offered pursuant to the Prior Rights Agreement (the
"Prior Securities") and Registrable Securities, requested by stockholders
to be included in such offering exceeds the amount of securities sold other
than by PMC that the underwriters determine in their sole discretion is
compatible with the success of the offering, then PMC shall be required to
(i) exclude all shares of capital stock other than the Prior Securities,
Registrable Securities and shares to be sold by PMC for its own account,
and (ii) include in the offering only that number of Prior Securities and
Registrable Securities that the underwriters determine in their sole
discretion will not jeopardize the success of the offering (the securities
so included to be apportioned first to all Prior Securities offered for
sale under the Prior Rights Agreement and then pro rata among the selling
Holders according to the total amount of securities entitled to be included
therein owned by each selling Holder or in such other proportions as shall
mutually be agreed to by such selling Holders). For purposes of the
preceding parenthetical concerning apportionment, for any selling
stockholder that is a Holder of Registrable Securities and that is a
partnership or corporation, the partners, retired partners and stockholders
of such Holder, or the estates and family members of any such partners and
retired partners and any trusts for the benefit of any of the foregoing
persons shall be deemed to be a single "selling Holder," and any pro rata
reduction with respect to such "selling Holder" shall be based upon the
aggregate amount of Registrable Securities owned by all such related
entities and individuals. Notwithstanding the foregoing, in no event will
any Registrable Securities be excluded from an offering unless all other
shares of capital stock of any kind (other than the Prior Securities and
those to be sold by PMC for its own account) are first excluded; it being
understood and agreed that the registration rights granted to the
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Holders of Registrable Securities pursuant to this Agreement will not in
any event reduce the amount of Prior Securities offered for sale pursuant
to the Prior Rights Agreement.
1.3 Obligations of PMC. Whenever required under this Section 1 to effect
the registration of any Registrable Securities, PMC shall, as expeditiously as
reasonably possible:
(a) prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use best efforts to cause such
registration statement to become effective, and, upon the request of the
Holders of a majority of the Registrable Securities registered thereunder,
keep such registration statement effective for a period of up to one
hundred eighty (180) days or, if earlier, until the distribution
contemplated in the Registration Statement has been completed;
(b) prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of
the Act with respect to the disposition of all securities covered by such
registration statement;
(c) furnish to the Holders such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of
the Act, and such other documents as they may reasonably request in order
to facilitate the disposition of Registrable Securities owned by them;
(d) use best efforts to register and qualify the securities covered by
such registration statement under such other securities or Blue Sky laws of
such jurisdictions as shall be reasonably requested by the Holders,
provided that PMC shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions;
(e) in the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering;
(f) notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Act or the happening of any event as a
result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading in the light of the circumstances
then existing;
(g) cause all such Registrable Securities registered pursuant
hereunder to be listed on each securities exchange on which similar
securities issued by PMC are then listed; and
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(h) provide a transfer agent and registrar for all Registrable
Securities registered pursuant hereunder and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of
such registration.
1.4 Information from Holder. It shall be a condition precedent to the
obligations of PMC to take any action pursuant to this Section 1 with respect to
the Registrable Securities of any selling Holder that such Holder shall furnish
to PMC such information regarding itself, the Registrable Securities held by it,
and the intended method of disposition of such securities as shall be required
to effect the registration of such Holder's Registrable Securities.
1.5 Expenses of Registration. All expenses other than underwriting
discounts and commissions incurred in connection with registrations, filings or
qualifications pursuant to Sections 1.2, including (without limitation) all
registration, filing and qualification fees, printers' and accounting fees, fees
and disbursements of counsel for PMC and the reasonable fees and disbursements
of one counsel for the selling Holders shall be borne by PMC.
1.6 Delay of Registration. No Holder shall have any right to obtain or seek
an injunction restraining or otherwise delaying any such registration as the
result of any controversy that might arise with respect to the interpretation or
implementation of this Section 1.
1.7 Indemnification. In the event any Registrable Securities are included
in a registration statement under this Section 1:
(a) To the extent permitted by law, PMC will indemnify and hold
harmless each Holder, the partners or officers, directors and stockholders
of each Holder, legal counsel and accountants for each Holder, any
underwriter (as defined in the Act) for such Holder and each person, if
any, who controls such Holder or underwriter within the meaning of the Act
or the 1934 Act, against any losses, claims, damages or liabilities (joint
or several) to which they may become subject under the Act, the 1934 Act or
any state securities laws, insofar as such losses, claims, damages, or
liabilities (or actions in respect thereof) arise out of or are based upon
any of the following statements, omissions or violations (collectively a
"Violation"): (i) any untrue statement or alleged untrue statement of a
material fact contained in such registration statement, including any
preliminary prospectus or final prospectus contained therein or any
amendments or supplements thereto, (ii) the omission or alleged omission to
state therein a material fact required to be stated therein, or necessary
to make the statements therein not misleading, or (iii) any violation or
alleged violation by PMC of the Act, the 1934 Act, any state securities
laws or any rule or regulation promulgated under the Act, the 1934 Act or
any state securities laws; and PMC will reimburse each such Holder,
underwriter or controlling person for any legal or other expenses
reasonably incurred by them in connection with investigating or defending
any such loss, claim, damage, liability or action; provided, however, that
the indemnity agreement contained in this subsection 1.7(a) shall not apply
to amounts paid in settlement of any such loss, claim, damage, liability or
action if such settlement is effected without the consent of PMC (which
consent shall not be unreasonably withheld), nor shall PMC be liable in any
such case for any such loss, claim, damage, liability or action to the
extent that it arises out of
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or is based upon a Violation that occurs in reliance upon and in conformity
with written information furnished expressly for use in connection with
such registration by any such Holder, underwriter or controlling person;
provided further, however, that the foregoing indemnity agreement with
respect to any preliminary prospectus shall not inure to the benefit of any
Holder or underwriter, or any person controlling such Holder or
underwriter, from whom the person asserting any such losses, claims,
damages or liabilities purchased shares in the offering, if a copy of the
prospectus (as then amended or supplemented if PMC shall have furnished any
amendments or supplements thereto) was not sent or given by or on behalf of
such Holder or underwriter to such person, if required by law so to have
been delivered, at or prior to the written confirmation of the sale of the
shares to such person, and if the prospectus (as so amended or
supplemented) would have cured the defect giving rise to such loss, claim,
damage or liability.
(b) To the extent permitted by law, each selling Holder will indemnify
and hold harmless PMC, each of its directors, each of its officers who has
signed the registration statement, each person, if any, who controls PMC
within the meaning of the Act, legal counsel and accountants for PMC, any
underwriter, any other Holder selling securities in such registration
statement and any controlling person of any such underwriter or other
Holder, against any losses, claims, damages or liabilities (joint or
several) to which any of the foregoing persons may become subject, under
the Act, the 1934 Act or any state securities laws, insofar as such losses,
claims, damages or liabilities (or actions in respect thereto) arise out of
or are based upon any Violation, in each case to the extent (and only to
the extent) that such Violation occurs in reliance upon and in conformity
with written information furnished by such Holder expressly for use in
connection with such registration; and each such Holder will reimburse any
person intended to be indemnified pursuant to this subsection 1.7(b), for
any legal or other expenses reasonably incurred by such person in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the indemnity agreement
contained in this subsection 1.7(b) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Holder (which consent
shall not be unreasonably withheld), provided that in no event shall any
indemnity under this subsection 1.7(b) exceed the gross proceeds from the
offering received by such Holder.
(c) Promptly after receipt by an indemnified party under this Section
1.7 of notice of the commencement of any action (including any governmental
action), such indemnified party will, if a claim in respect thereof is to
be made against any indemnifying party under this Section 1.7, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the
extent the indemnifying party so desires, jointly with any other
indemnifying party similarly noticed, to assume the defense thereof with
counsel mutually satisfactory to the parties; provided, however, that an
indemnified party (together with all other indemnified parties that may be
represented without conflict by one counsel) shall have the right to retain
one separate counsel, with the fees and expenses to be paid by the
indemnifying party, if representation of such indemnified party by the
counsel retained by the indemnifying party would be inappropriate due to
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actual or potential differing interests between such indemnified party and
any other party represented by such counsel in such proceeding. The failure
to deliver written notice to the indemnifying party within a reasonable
time of the commencement of any such action, if prejudicial to its ability
to defend such action, shall relieve such indemnifying party of any
liability to the indemnified party under this Section 1.7, but the omission
so to deliver written notice to the indemnifying party will not relieve it
of any liability that it may have to any indemnified party otherwise than
under this Section 1.7.
(d) If the indemnification provided for in this Section 1.7 is held by
a court of competent jurisdiction to be unavailable to an indemnified party
with respect to any loss, liability, claim, damage or expense referred to
herein, then the indemnifying party, in lieu of indemnifying such
indemnified party hereunder, shall contribute to the amount paid or payable
by such indemnified party as a result of such loss, liability, claim,
damage or expense in such proportion as is appropriate to reflect the
relative fault of the indemnifying party on the one hand and of the
indemnified party on the other in connection with the statements or
omissions that resulted in such loss, liability, claim, damage or expense,
as well as any other relevant equitable considerations. The relative fault
of the indemnifying party and of the indemnified party shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact
relates to information supplied by the indemnifying party or by the
indemnified party and the parties' relative intent, knowledge, access to
information, and opportunity to correct or prevent such statement or
omission.
(e) Notwithstanding the foregoing, to the extent that the provisions
on indemnification and contribution contained in the underwriting agreement
entered into in connection with the underwritten public offering are in
conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control.
(f) The obligations of PMC and Holders under this Section 1.7 shall
survive the completion of any offering of Registrable Securities in a
registration statement under this Section 1, and otherwise.
1.8 Reports Under Securities Exchange Act of 1934. With a view to making
available to the Holders the benefits of Rule 144 promulgated under the Act and
any other rule or regulation of the SEC that may at any time permit a Holder to
sell securities of PMC to the public without registration or pursuant to a
registration on Form X-0, XXX agrees to:
(a) make and keep public information available, as those terms are
understood and defined in SEC Rule 144, at all times after the effective
date of the Initial Offering;
(b) file with the SEC in a timely manner all reports and other
documents required of PMC under the Act and the 1934 Act; and
(c) furnish to any Holder, so long as the Holder owns any Registrable
Securities, forthwith upon request (i) a written statement by PMC that it
has complied
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with the reporting requirements of SEC Rule 144 (at any time after ninety
(90) days after the effective date of the first registration statement
filed by PMC), the Act and the 1934 Act (at any time after it has become
subject to such reporting requirements), or that it qualifies as a
registrant whose securities may be resold pursuant to Form S-3 (at any time
after it so qualifies), (ii) a copy of the most recent annual or quarterly
report of PMC and such other reports and documents so filed by PMC, and
(iii) such other information as may be reasonably requested in availing any
Holder of any rule or regulation of the SEC that permits the selling of any
such securities without registration or pursuant to such form.
1.9 Assignment of Registration Rights. The rights to cause PMC to register
Registrable Securities pursuant to this Section 1 may be assigned (but only with
all related obligations) by a Holder to a transferee or assignee of such
securities that (i) is a subsidiary, parent, partner, limited partner, retired
partner or stockholder of a Holder, (ii) is a Holder's family member or trust
for the benefit of an individual Holder, or (iii) after such assignment or
transfer, holds at least 25,000 shares of Registrable Securities (subject to
appropriate adjustment for stock splits, stock dividends, combinations and other
recapitalizations), provided: (a) PMC is, within a reasonable time after such
transfer, furnished with written notice of the name and address of such
transferee or assignee and the securities with respect to which such
registration rights are being assigned; (b) such transferee or assignee agrees
in writing to be bound by and subject to the terms and conditions of this
Agreement, including without limitation the provisions of Section 1.10 below;
and (c) such assignment shall be effective only if immediately following such
transfer the further disposition of such securities by the transferee or
assignee is restricted under the Act.
1.10 Limitations on Subsequent Registration Rights. From and after the date
of this Agreement, PMC shall not, without the prior written consent of the
Holders of two-thirds of the Registrable Securities, enter into any agreement
with any holder or prospective holder of any securities of PMC that would allow
such holder or prospective holder (a) to include such securities in any
registration filed under Section 1.2 hereof, unless under the terms of such
agreement, such holder or prospective holder may include such securities in any
such registration only to the extent that the inclusion of such securities will
not reduce the amount of the Registrable Securities of the Holders that are
included or (b) to demand registration of their securities.
1.11 "Market Stand-Off' Agreement. Each Holder hereby agrees that it will
not, without the prior written consent of the managing underwriter, during the
period commencing on the date of the final prospectus relating to PMC's initial
public offering and ending on the date specified by PMC and the managing
underwriter (such period not to exceed one hundred eighty (180) days) (i) lend,
offer, pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase, or otherwise transfer or dispose of, directly or indirectly, any
shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock (whether such shares or any such securities are
then owned by the Holder or are thereafter acquired), or (ii) enter into any
swap or other arrangement that transfers to another, in whole or in part, any of
the economic consequences of ownership of the Common Stock, whether any such
transaction
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described in clause (i) or (ii) above is to be settled by delivery of Common
Stock or such other securities, in cash or otherwise. The foregoing provisions
of this Section 1.11 shall apply only to PMC's initial public offering of equity
securities, shall not apply to the sale of any shares to an underwriter pursuant
to an underwriting agreement, and shall only be applicable to the Holders if all
officers and directors and greater than five percent (5%) stockholders of PMC
enter into similar agreements. The underwriters in connection with PMC's initial
public offering are intended third party beneficiaries of this Section 1.11 and
shall have the right, power and authority to enforce the provisions hereof as
though they were a party hereto.
In order to enforce the foregoing covenant, PMC may impose stop-transfer
instructions with respect to the Registrable Securities of each Holder (and the
shares or securities of every other person subject to the foregoing restriction)
until the end of such period.
1.12 Termination of Registration Rights. No Holder shall be entitled to
exercise any right provided for in this Section 1 after five (5) years following
the consummation of the Initial Offering or, as to any Holder, such earlier time
at which all Registrable Securities held by such Holder (and any affiliate of
the Holder with whom such Holder must aggregate its sales under Rule 144) can be
sold in any three (3)-month period without registration in compliance with Rule
144 of the Act.
2. Miscellaneous.
2.1 Successors and Assigns. Except as otherwise provided herein, the terms
and conditions of this Agreement shall inure to the benefit of and be binding
upon the respective successors and assigns of the parties (including transferees
of any shares of Registrable Securities). Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the parties hereto or
their respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
2.2 Governing Law. This Agreement shall be governed by and construed under
the laws of the State of Colorado as applied to agreements among Colorado
residents entered into and to be performed entirely within Colorado.
2.3 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
2.4 Titles and Subtitles. The titles and subtitles used in this Agreement
are used for convenience only and are not to be considered in construing or
interpreting this Agreement.
2.5 Notices. Unless otherwise provided, any notice required or permitted
under this Agreement shall be given in writing and shall be deemed effectively
given upon personal delivery to the party to be notified or upon delivery by
confirmed facsimile transmission, nationally recognized overnight courier
service, or upon deposit with the United States Post Office, by registered or
certified mail, postage prepaid and addressed to the party to be notified at
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the address indicated for such party on the signature page hereof, or at such
other address as such party may designate by ten (10) days' advance written
notice to the other parties.
2.6 Expenses. If any action at law or in equity is necessary to enforce or
interpret the terms of this Agreement, the prevailing party shall be entitled to
reasonable attorneys' fees, costs and necessary disbursements in addition to any
other relief to which such party may be entitled.
2.7 Entire Agreement: Amendments and Waivers. This Agreement (including the
Exhibits hereto, if any) constitutes the full and entire understanding and
agreement among the parties with regard to the subjects hereof and thereof. Any
term of this Agreement may be amended and the observance of any term of this
Agreement may be waived (either generally or in a particular instance and either
retroactively or prospectively), only with the written consent of PMC and the
holders of two-thirds of the Registrable Securities. Any amendment or waiver
effected in accordance with this paragraph shall be binding upon each holder of
any Registrable Securities, each future holder of all such Registrable
Securities, and PMC.
2.8 Severability. If one or more provisions of this Agreement are held to
be unenforceable under applicable law, such provision shall be excluded from
this Agreement and the balance of the Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
2.9 Aggregation of Stock. All shares of Registrable Securities held or
acquired by affiliated entities or persons shall be aggregated together for the
purpose of determining the availability of any rights under this Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
effective as of the date first written above.
PMC:
POLAR MOLECULAR CORPORATION
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Xxxx X. Xxxxxx, President
INVESTOR:
AFFILIATED INVESTMENTS, L.L.C.
By: /s/ Xxxxx Xxxxxx
-----------------------------------
Its: President
