EXHIBIT 10.11
CONFIDENTIAL
REGISTRATION RIGHTS AGREEMENT
Effective October 24, 1997, SCRIPTGEN Pharmaceuticals, Inc., a Delaware
corporation ("the "Company"), and Hoechst Xxxxxx Xxxxxxx, a French corporation
("HMR"), hereby act and agree as follows:
1. Definitions. As used herein:
(a) The terms "register", "registered", and "registration" refer to
a registration effected by preparing and filing a registration statement or
similar document in compliance with the 1933 Act and the automatic effectiveness
or the declaration or ordering of effectiveness of such registration statement
or document.
(b) The term "Registrable Securities" means the shares of Common
Stock of the Company beneficially owned by HMR as of the date hereof and any
additional shares of Common Stock of the Company issued in respect thereof as a
result of any stock split, stock dividend, combination or recapitalization but
shall not include any shares of capital stock which (i) have been effectively
registered under the 1933 Act and disposed of in accordance with a registration
statement covering such securities, (ii) have been distributed to the public
pursuant to Rule 144 or (iii) have been transferred or disposed of in a
transaction as to which the registration rights granted hereunder have not or
may not be transferred.
(c) The term "Holder" means HMR and any transferee of Registrable
Securities from a Holder provided such transfer complies with Section 8 of this
Agreement.
(d) The terms "Form S-1", "Form S-2", "Form S-3", "Form S-4 and
"Form S-8" mean such respective forms under the 1933 Act as in effect on the
date hereof or any successor registration forms to Form X-0, Xxxx X-0 and Form
S-8, respectively, under the 1933 Act subsequently adopted by the SEC.
(e) The term "1933 Act" shall mean the Securities Act of 1933, as
amended.
(f) The term "1934 Act" shall mean the Securities Exchange Act of
1934, as amended.
(g) The term "SEC" shall mean the Securities and Exchange
Commission.
(h) The term "Violation" shall have the meaning given in Section
6(a).
(i) The term "Non-Qualifying Registration" shall mean a registration
on Form X-0, Xxxx X-0 or Form S-3 relating solely to the offer and sale by the
Company of non-convertible investment grade securities or investment grade
asset-backed securities, securities issuable upon the exercise of outstanding
rights granted by the Company and securities issuable pursuant to a dividend or
interest reinvestment plan; a registration on Form S-8; or a registration on
Form S-4.
(j) The term "Rule 144" shall mean Rule 144 promulgated by the SEC
under the 1933 Act or any subsequent rule pertaining to the disposition of
securities without registration.
2. Piggyback Registration Rights. (a) If the Company proposes to register
any of its securities under the 1933 Act at any time after six months from the
date hereof (other than a Non-Qualifying Registration) in connection with a
public offering of such securities solely for cash, the Company shall, at each
such time, promptly give written notice of such registration to each Holder.
Upon the written request of any Holder given within 15 days after mailing of
such notice by the Company, the Company shall, subject to the provisions of this
Section 2, use its best efforts to include in such registration all of the
Registrable Securities that each such Holder has requested to be registered. The
Company shall be under no obligation to complete any offering of its securities
it proposes to make under this Section 2 and shall incur no liability to any
Holder for its failure to do so. Holders shall be permitted to withdraw all or
any part of the Registrable Securities of such Holders from any registration
under this Section 2 at any time prior to the effective date of such
registration.
(b) In connection with any registration covered by Section 2
involving any underwriting of securities, the Company shall not be required to
include any Holder's Registrable Securities in such registration unless such
Holder accepts the terms of the underwriting as agreed upon between the Company
(or other persons who have the right to agree upon the underwriting terms
relating to such offering) and the underwriters selected by the Company (or
other persons who have the right to select such underwriter). Notwithstanding
any other provision of this Section 2, if the underwriter of such registration
advises the Company in writing with a copy to the Holders that marketing factors
require a limitation of the number of shares of Common Stock to be underwritten,
the Company shall so advise all Holders, and the number of shares of Common
Stock including Registrable Securities that may be included in such registration
shall be apportioned pro rata based on the number of shares requested to be
included in such registration by the Holders and by all other holders of shares
of Common Stock participating in such registration (other than the Company).
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3. Registration Mechanics. (a) Whenever required under this Agreement to
effect the registration of any Registrable Securities, the Company shall, as
expeditiously as reasonably possible:
(i) Furnish to counsel selected by the Holders of a majority of the
Registrable Securities covered by such registration statement copies of
all such documents proposal to be filed at a reasonable time prior to the
filing of such registration statement, the prospectus used in connection
with such registration statement, or any amendment or supplement thereto.
(ii) 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 1933 Act with respect to the disposition of all
securities covered by such registration statement.
(iii) Furnish to the Holders whose Registrable Securities are
covered by such registration such numbers of copies of the prospectus,
conformed copies of the registration statement (including amendments or
supplements thereto and, in each case, all exhibits and all documents
incorporated by reference), and such other documents as they may
reasonably request in order to facilitate the disposition of Registrable
Securities owned by them.
(iv) Use its best efforts to register and qualify the securities
covered by such registration statement under such blue sky or other state
securities laws as shall be reasonably requested by the Holders whose
Registrable Securities are covered by such registration statement,
provided that the Company shall not be required in connection therewith or
as a condition thereto to qualify to do business or subject itself to
taxation or to file a general consent to service of process in any such
states.
(v) Notify each Holder of Registrable Securities covered by such
registration statement any time when a prospectus relating thereto is
required to be delivered under the 1933 Act upon discovery that, or upon
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.
(b). In connection with any offering of Registrable Securities to be
registered pursuant to Section 2, each Holder of Registrable Securities included
or to be included in such registration shall:
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(i) Enter into and perform its obligations under any underwriting
agreement to which it is a party.
(ii) Upon receipt of any notice from the Company of the happening of
any event of the kind described in subdivision (v) of subsection (a)
above, forthwith discontinue its disposition of Registrable Securities
pursuant to the registration statement relating thereto until its receipt
of the copies of the supplemented or amended prospectus and, if so
directed by the Company, deliver to the Company all copies then in its
possession of the prospectus relating to such Registrable Securities
current at the time of receipt of such notice.
(iii) At the end of any period during which the Company is obligated
to keep any registration statement current and effective, discontinue
sales of shares pursuant to such registration statement upon receipt of
notice from the Company of its intention to remove from registration the
shares covered by such registration statement which remain unsold, and
notify the Company of the number of shares registered which remain unsold
promptly after receipt of such notice from the Company.
4. Cooperation. It shall be a condition precedent to the obligations of
the Company to take any action pursuant to this Agreement with respect to the
Registrable Securities of any selling Holder that such Holder shall furnish to
the Company all such information and materials and shall take all such action as
may be reasonably required in order to permit the Company to comply with the
applicable requests of the 1933 Act and the SEC and to obtain any desired
acceleration of the effective date of such registration statement. The failure
of any prospective selling Holder of Registrable Securities to furnish any
information or materials or to take any action in accordance with this Section 4
shall not affect the obligations of the Company under this Agreement to any
remaining selling Holders who furnish such information and materials and who
take such action unless, in the reasonable opinion of counsel to the Company or
the underwriters, such failure impairs or may impair the viability of the
offering or the legality of the registration statement or the underlying
offering.
5. Expenses. Selling Holders shall bear a pro rata portion of all expenses
incurred in connection with each of the registrations, filings or qualifications
pursuant to Section 2, including without limitation all registration, printing
and accounting fees and fees and disbursements of counsel to the Company, based
upon the respective market values of the securities to be sold by the Company,
selling Holders and any other persons participating in such offering, except
that underwriting discounts and commissions relating to the Registrable
Securities and the fees and disbursements of counsel and accountants for the
selling Holders shall be borne and paid by the selling Holders.
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6. Indemnification.
In the event any Registrable Securities are included in a registration
statement under this Agreement:
(a) To the fullest extent permitted by law, the Company will and
hereby does indemnify and hold harmless each selling Holder, the officers,
directors, shareholders and partners of such Holder and each person, if any, who
controls such Holder within the meaning of the 1933 Act or the 1934 Act against
any losses, claims, damages or liabilities (joint or several) to which they may
become subject under the 1933 Act, the 1934 Act or other federal or state law or
common law, 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 (each a "Violation"): (i) any untrue
statement or alleged untrue statement of a material fact contained in such
registration statement, or 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 (including in any prospectus or preliminary prospectus
included therein), unless such untrue statement or alleged untrue statement or
omission or alleged omission was contained in or omitted from a preliminary
prospectus and corrected in a final or amended prospectus and the seller failed
to deliver a copy of the final or amended prospectus at or prior to the
confirmation of the same of the registered securities to the persons asserting
any such loss, claim, damage or liability in the case where such delivery is
required by the 1933 Act, or (ii) any other violation by the Company of the 1933
Act or any other securities law or any rule or regulation promulgated
thereunder. The Company will reimburse each such selling Holder, officer,
director, partner, agent, employee, 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.
The indemnity agreement contained in this Section 6(a) shall not apply to
amounts paid in settlement of any loss, claim, damage, liability or action if
such settlement is effected without the consent of the Company, nor shall the
Company be liable to a Holder in any such case for any such loss, claim, damage,
liability or action to the extent that it arises out of or is based upon a
Violation which occurs in reliance upon and in conformity with written
information furnished expressly for inclusion in such registration by or on
behalf of such Holder or controlling person.
(b) To the fullest extent permitted by law, each selling Holder will
and hereby does indemnify and hold harmless the Company, each of its directors,
each of its officers who sign the registration statement, each person, if any,
who controls the Company within the meaning of the 1933 Act, each agent and any
other selling Holder selling securities in such registration statement and any
of its directors, officers or partners or any person who controls such selling
Holder, against any losses, claims, damages or liabilities (joint or several) to
which they may become subject under the 1933 Act, the 1934 Act or other federal
or state or common law,
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insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any Violation, in each case to the
extent (and only to the extent) that such Violation occurs in reliance upon and
in conformity with written information furnished by or on behalf of such Holder
expressly for inclusion in such registration statement; and each such selling
Holder will reimburse any legal or other expenses reasonably incurred by (i) the
Company or any such director, officer, agent, controlling person of the Company,
or (ii) other selling Holder, officer, director, partner or controlling person
in connection with investigating or defending any such loss, claim, damage,
liability or action. The indemnity agreement contained in this Section 6(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
selling Holder nor, in the case of a sale directly by the Company of its
securities (including a sale of such securities through any underwriter retained
by the Company to engage in a distribution solely on behalf of the Company)
shall the selling Holder be liable to the Company in any case in which such
untrue statement or alleged untrue statement or omission or alleged omission was
contained in a preliminary prospectus and corrected in a final or amended
prospectus, and the Company failed to deliver a copy of the final or amended
prospectus at or prior to the confirmation of the sale of the securities to the
person asserting any such loss, claim, damage or liability in any case where
such delivery is required by the 1993 Act.
(c) Each indemnified party or parties shall give reasonably prompt
notice to each indemnifying party or parties of any action or proceeding
commenced against it in respect of which indemnity may be sought hereunder, but
failure so to notify an indemnifying party or parties shall not relieve it or
them from any liability which it or they may have under this Section 6, except
to the extent that the indemnifying party is materially prejudiced by such
failure to give notice. If the indemnifying party or parties so elects within a
reasonable time after receipt of such notice, the indemnifying party or parties
may assume the defense of such action or proceeding at such indemnifying party's
or parties' expense with counsel chosen by the indemnifying party or parties and
approved by the indemnified party defendant in such action or proceeding, which
approval shall not be unreasonably withheld; provided, however, that if such
indemnified party or parties determine in good faith that a conflict of interest
exists and that therefore it is advisable for such indemnified party or parties
to be represented by separate counsel or that, upon advice of counsel, there may
be legal defenses available to it or them which are different from or in
addition to those available to the indemnifying party, then the indemnifying
party or parties shall not be entitled to assume such defense and the
indemnified party or parties shall be entitled to separate counsel at the
indemnifying party's or parties' expense. If an indemnifying party or parties is
not so entitled to assume the defense of such action or does not assume such
defense, after having received the notice referred to in the first sentence of
this subsection, the indemnifying party or parties will pay the reasonable fees
and expenses of counsel for the indemnified party or parties. Notwithstanding
the foregoing, the indemnifying party shall not be obligated
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to pay the reasonable fees and expenses of more than one counsel for the
indemnified parties with respect to any claim, unless in the reasonable judgment
of counsel to any indemnified party, expressed in a writing delivered to the
indemnifying party, a conflict of interest may exist between such indemnified
party and any other indemnified party with respect to such claim, in which event
the indemnifying party shall be obligated to pay the reasonable fees and
expenses of such additional counsel or counsels (which shall be limited to one
counsel per indemnified party). If an indemnifying party is entitled to assume,
and assumes, the defense of such action or proceeding in accordance with this
paragraph, such indemnifying party or parties shall not, except as otherwise
provided in this subsection (c), be liable for any fees and expenses of counsel
for the indemnified parties incurred thereafter in connection with such action
or proceeding.
(d) If the indemnification provided for in this Section 6 is
unavailable to a party that would have been an indemnified party under this
Section 6 in respect of any claims referred to herein, then each party that
would have been an indemnifying party hereunder shall, in lieu of indemnifying
such indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such claims in such proportion as is
appropriate to reflect the relative fault of the indemnifying party or parties
on the one hand and such indemnified party on the other in connection with the
action, statement or omission which resulted in such claims, as well as any
other relevant equitable considerations. The relative fault shall be determined
by reference to, among other things, whether the untrue or alleged omission to
state a material fact relates to information supplied by the indemnifying party
or such indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and each selling Holder of registered securities agrees that it
would not be just and equitable if contribution pursuant to this subsection were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to above in this
subsection. The amount paid or payable by an indemnified party as a result of
the claims referred to above in this subsection shall include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigation or defending any such action or claim.
(e) Without the prior written consent of the indemnified party, no
indemnifying party shall consent to entry or 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 a release of all
liability in respect of such claim.
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(f) No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 0000 Xxx) shall be entitled to contribution from
any person who was not guilty of fraudulent misrepresentation within the meaning
of such Section 11(f).
(g) Notwithstanding the foregoing provisions of this Section 6, to
the extent that the provisions on indemnification contained in the underwriting
agreement entered into in connection with an underwritten public offering are in
conflict with the foregoing provisions, the provisions in the underwriting
agreement shall be controlling.
7. Availability of Rule 144. With a view to making available to the
Holders the benefits of Rule 144 promulgated under the 1933 Act and any other
rule or regulation of the SEC that may at any time permit a Holder to sell
securities of the Company to the public without registration, the Company agrees
to use its best efforts:
(a) to make and keep public information available, as those terms
are understood and defined in Rule 144, at all times after ninety (90) days from
the date hereof;
(b) to file with the SEC in a timely manner all reports and other
documents required of the Company under the 1933 Act and (at any time after it
has become subject to the reporting requirements thereof) the 1934 Act; and
(c) to furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request (i) a written statement by the
Company as to its compliance with the reporting requirements of Rule 144 (at any
time after ninety days from the date hereof), the 1933 Act and the 1934 Act (at
any time after it has become subject to such reporting requirements) or as to
its qualification 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 the Company and such other reports and documents
so filed by the Company, and (iii) such other information as may be reasonably
requested in availing the Holder of any rule or regulation of the SEC which
permits the selling of any such securities without registration or pursuant to
such form.
8. Transfer of Registration Rights. The registration rights of a Holder
under this Agreement may be transferred to any transferee who acquires 50% or
more shares of the Registrable Securities as of the date of this Agreement
(adjusted for any stock splits, stock dividends, contributions or receipt
obligations), provided that (i) the Company is given written notice by the
transferor at the time of such transfer stating the name and address of the
transferee and identifying the securities with respect to which the rights under
this Agreement are being assigned and (ii) the
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transferee agrees in writing to acquire and hold such securities subject to the
provisions of this Agreement.
9. "Market Stand-Off" Agreement. Each holder of Registrable Securities
hereby agrees that, during the period of duration (not to extend more than 7
days prior to, and beyond 180 days after, the effectiveness of the registration
statement described below) specified by the Company and an underwriter of Common
Stock or other securities of the Company, following the filing date of a
registration statement of the Company filed under the 1933 Act, it shall not, to
the extent requested by the Company and such underwriter, sell or otherwise
transfer or dispose of (other than to donees who agree to be similarly bound)
any Common Stock of the Company held by it at any time during such period except
Common Stock included in such registration, provided that all officers and
directors of the Company and all persons, if any, exercising registration rights
with respect to such registration (whether or not pursuant to this Agreement)
enter into similar agreements.
In order to enforce the foregoing covenant, the Company may impose
stop-transfer instructions with respect to the securities of each Holder (and
the shares or securities of every other person subject to the foregoing
restriction) until the end of such period.
10. Amendment of Registration Rights. Any provision of this Agreement may
be amended and the observance thereof may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with the
written consent of the Company and the holders of a majority of the Registrable
Securities then outstanding. Any amendment or waiver effected in accordance with
this Section shall be binding upon each holder of Registrable Securities then
outstanding, each future holder of all such securities and the Company.
11. Termination of Registration Rights. No Holder shall be entitled to
exercise any right provided for in, and the Company shall have no obligation
pursuant to, this Agreement at such time as the Holder's Registrable Securities
may be sold in the public trading markets pursuant to Rule 144.
12. Miscellaneous. (a) All notices, requests, demands and other
communications which are required to be or may be given under this Agreement
shall be in writing and shall be deemed to have been duly given when delivered
in person or upon receipt when transmitted by telecopy or telex or after
dispatch by certified or registered first class mail, postage prepaid, return
receipt requested, or Federal Express, to the party to whom the same is so given
or made:
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If to SCRIPTGEN:
SCRIPTGEN Pharmaceuticals, Inc.
000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: President
If to HMR:
Hoechst Xxxxxx Xxxxxxx
000, Xxxxx xx Xxxxx
00000 Xxxxxxxxxxx Xxxxx
XXXXXX
Attn: General Counsel
or to such other person at such other place as either shall designate to the
other in writing.
(b) This Agreement constitutes the entire agreement between the
parties hereto and supersedes all prior agreements, representations, warranties,
statements, promises and understandings, whether written or oral, with respect
to the subject matter thereof, and cannot be changed or terminated orally. No
party hereto shall be bound by or charged with any written or oral agreements,
representations, warranties, statements, promises, or understandings not
specifically set forth in this Agreement.
(c) The section and other headings contained in this Agreement are
for reference purposes only and shall not be deemed to be part of this Agreement
or to affect the meaning or interpretation of this Agreement.
(d) 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 Agreement.
(e) All questions concerning the construction, validity and
interpretation of this Agreement and the schedule hereto will be governed by the
laws of the State of Delaware without regard to conflicts of laws principles.
(f) If any term or provision of this Agreement shall to any extent
be invalid or unenforceable, the remainder of this Agreement shall not be
affected thereby, and each term and provision of this Agreement shall be valid
and enforceable to the fullest extent permitted by law.
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(g) This Agreement may be executed in any number of counterparts,
each of which, when executed, shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument.
(h) This Agreement shall be binding on and shall inure to the
benefit of the parties hereto and their respective successors and permitted
assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Registration
Rights Agreement to be duly executed and signed as of the day and year first
above written.
SCRIPTGEN PHARMACEUTICALS, INC.
By /s/ [ILLEGIBLE]
-----------------------------
Its OCTOBER 24, 1997
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HOECHST XXXXXX XXXXXXX
By /s/ [ILLEGIBLE]
-----------------------------
Its October 24, 1997
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