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EXHIBIT 4.11
REGISTRATION RIGHTS AGREEMENT
July 22, 1994
Agreement dated this 22nd day of July, 1994, by and between Intracel
Corporation, a Massachusetts corporation (the "Company") and each of the several
Purchasers of shares of the Convertible Preferred Stock, Series A, of the
Company (the "Investors") named herein
WHEREAS: Each Investor has purchased or may purchase from the Company shares
of the Company's Series A Preferred Stock and a Warrant to purchase
shares of the Company's Common Stock pursuant to the Purchase
Agreement, and
WHEREAS: As a condition to such purchase, the Company has agreed to grant to
each Investor registration rights with respect to certain securities
of the Company held by such Investor.
AGREEMENT
NOW, THEREFORE, it is agreed as follows:
1. Certain Definitions. As used in this Agreement, the following terms
shall have the following respective meanings:
"Commission" shall mean the Securities and Exchange Commission, or
any other federal agency at the time administering the Securities Act.
"Common Stock" shall mean the Common Stock, no par value per share, of
the Company, as constituted as of the date of this Agreement.
"Company" shall mean Intracel Corporation, a Massachusetts
corporation.
"Conversion Shares" shall mean shares of Common Stock issued upon
conversion of shares of the Series A Preferred Stock issued pursuant to
the terms of the Purchase Agreement.
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"Dividend Shares" shall mean shares of Series A Preferred Stock issued
in lieu of cash dividends on shares of the Series A Preferred Stock.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any similar federal statute, and the rules and regulations of
the Commission thereunder, all as the same shall be in effect at the time.
"Purchase Agreement" shall mean the Convertible Preferred Stock
Purchase Agreement, of even date herewith.
"Registration Expenses" shall mean the expenses so described in
Section 7.
"Registerable Stock" shall mean the Conversion Shares and the Warrant
Shares, but only so long as such shares continue to be Restricted Stock.
Any such shares shall continue to be Restricted Stock until such time as
such shares (i) have been disposed of in accordance with a Registration
Statement which has become effective under the Securities Act or (ii) have
been publicly sold in compliance with Rule 144 (or any similar provision
then in force) under the Securities Act.
"Restricted Stock" shall mean securities of the sort described in Rule
144(a)(3) promulgated pursuant to the Securities Act.
"Securities Act" shall mean the Securities Act of 1933, as amended, or
any similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"Series A Preferred Stock" shall mean the Company's Series A Preferred
Stock, no par value per share.
"Selling Expenses" shall mean the expenses so described in Section 7.
"Warrant Shares" shall mean shares of Common Stock issued upon
exercise of the Warrants.
"Warrants" shall mean the warrants granted to the holders of the
Series A Preferred Stock to purchase shares of Common Stock.
2. Restrictive Legend. Each certificate representing Preferred Shares,
Warrant Shares or Conversion Shares shall, except as otherwise provided in this
Section 2, be stamped or otherwise imprinted with a legend substantially in the
following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 AND MAY NOT BE TRANSFERRED OR
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OTHERWISE DISPOSED OF UNLESS IT HAS BEEN REGISTERED UNDER THAT ACT OR
AN EXEMPTION FROM REGISTRATION IS AVAILABLE"
A certificate shall not bear such legend if in the opinion of counsel
satisfactory to the Company, which opinion shall be addressed to each holder
of Series A Preferred Stock, the securities may be publicly sold without
registration under the Securities Act.
3. Required Registration. (a) At any time beginning six months after a
registration statement covering an initial public offering of securities of the
Company under the Securities Act shall have become effective, the holder or
holders of Registerable Stock constituting at least 51% of the total shares of
Registerable Stock then outstanding may request the Company to register under
the Securities Act all or any portion of the shares of Registerable Stock held
by such requesting holder or holders for sale in the manner specified in such
notice. In addition, at any time following the second anniversary of the date of
this Agreement, if a registration statement on Form S-1 or any successor thereto
has not yet become effective, the holder or holders of Registerable Stock
constituting at least 51% of the total shares of Registerable Stock then
outstanding may request the Company to register under the Securities Act all or
any portion of the shares of Registerable Stock held by such requesting holder
or holders for sale in the manner specified in such notice. Notwithstanding
anything to the contrary contained herein, no request may be made under this
Section 3 within 120 days after the effective date of a registration statement
filed by the Company covering a firm commitment underwritten public offering in
which the holders of Registerable Stock shall have been entitled to join
pursuant to Sections 4 or 5 provided that there shall have been effectively
registered all shares of Registerable Stock as to which registration shall have
been requested.
(b) Following receipt of any notice under this Section 3, the Company
shall notify all holders of Registerable Stock from whom notice has not been
received and shall use its best efforts to register under the Securities Act,
for public sale in accordance with the method of disposition specified in such
notice from requesting holders, the number of shares of Registerable Stock
specified in such notice (and in all notices received by the Company from other
holders within 15 days after the giving of such notice by the Company). The
Company shall be obligated to register Registerable Stock pursuant to this
Section 3 on two occasions only and shall use its best efforts to cause each
such Registration Statement to become effective whether or not all shares
requested to be registered can be included. However, the Company's obligation as
to any required registration hereunder shall be deemed satisfied only if that
registration statement has become effective, has remained effective for a period
of 120 days (or such shorter period in which all securities registered have been
sold) and includes all shares of Registerable Stock specified in notices
received as aforesaid, for sale in accordance with the method of disposition
specified by the requesting holders, shall have become effective and, if such
method of disposition is a firm commitment underwritten public offering, all
such shares shall have been sold pursuant thereto.
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(c) The Company shall be entitled to include in any registration
statement referred to in this SECTION 3, for sale in accordance with the method
of disposition specified by the requesting holders, shares of Common Stock to be
sold by the Company for its own account or for sale by others, except as and to
the extent that, in the opinion of the managing underwriter (if such method of
disposition shall be an underwritten public offering), such inclusion would
adversely affect the marketing of the Registerable Stock to be sold (including
the price at which such securities can be sold) or reduce the number of shares
of Registerable Stock otherwise able to be included in the Registration
Statement. Except for registration statements on Form S-8 or any successor
thereto, the Company will not file with the Commission any other registration
statement with respect to its Common Stock, whether for its own account or that
of other stockholders, from the date of receipt of a notice from requesting
holders pursuant to this SECTION 3 until the completion of the distribution of
the shares covered by such registration.
4. INCIDENTAL REGISTRATION. (a) If the Company at any time (other than
pursuant to SECTION 3 or SECTION 5) proposes to register any of its securities
under the Securities Act for sale to the public, whether for its own account or
for the account of other security holders or both (except with respect to
registration statements on Forms X-0, X-0 or another form not available for
registering the Registerable Stock for sale to the public), each such time it
will give written notice to all holders of outstanding Registerable Stock of its
intention to do so. Upon the written request of any such holder, received by the
Company within 15 days after the giving of any such notice by the Company to
register any of its Registerable Stock (which request shall state the intended
method of disposition thereof), the Company will cause the Registerable Stock as
to which registration shall have been so requested to be included in the
securities to be covered by the registration statement proposed to be filed by
the Company, all to the extent requisite to permit the sale or other disposition
by the holder (in accordance with its written request) of such Registerable
Stock so registered. The Company shall be obligated to each Investor to register
Registerable Stock of that Investor pursuant to this SECTION 4 on one occasion
only; PROVIDED, HOWEVER, that such obligation shall be deemed satisfied as to
any Investor only when a registration statement covering all shares of
Registerable Stock specified in notices from that Investor received as
aforesaid, for sale in accordance with the method of disposition specified by
the requesting holders, shall have become and shall have remained effective as
provided in this Agreement and, if such method of disposition is a firm
commitment underwritten public offering, all such shares shall have been sold
pursuant thereto.
(b) In the event that any registration pursuant to this SECTION 4
shall be, in whole or in part, an underwritten public offering of Common Stock,
the number of shares of Registerable Stock to be included in such an
underwriting may be reduced (pro rata among the requesting holders based upon
the number of shares of Registerable Stock owned by such holders) if and to the
extent that the managing underwriter shall be of the opinion that such inclusion
would adversely affect the marketing of the securities to be sold by the Company
therein (including the price at which such securities can be sold), PROVIDED,
HOWEVER, that
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such number of shares of Registerable Stock shall not be reduced if any shares
are to be included in such underwriting for the account of any person other
than the Company or requesting holders of Registerable Stock; and provided,
further, that in no event may less than twenty-five (25%) percent of the total
number of shares of Common Stock to be included in such underwriting be made
available for shares of Registerable Stock. Notwithstanding the foregoing
provisions, the Company may withdraw any registration statement referred to in
this Section 4 without thereby incurring any liability to the holders of
Registerable Stock.
5. Registration Procedures. If and whenever the Company is required by
the provisions of Sections 3 or 4 to effect the registration of any shares of
Registerable Stock under the Securities Act, the Company will, as expeditiously
as possible:
(a) prepare and file with the Commission a registration statement
(which, in the case of an underwritten public offering pursuant to Section
3, shall be on Form S-1 or other form of general applicability
satisfactory to the managing underwriter selected as therein provided)
with respect to such securities and use its best efforts to cause such
registration statement to become and remain effective for the period of
the distribution contemplated thereby (determined as hereinafter provided);
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective for the period specified in paragraph (a) above and
comply with the provisions of the Securities Act with respect to the
disposition of all Registerable Stock covered by such registration
statement in accordance with the sellers' intended method of disposition
as set forth in such registration statement for such period;
(c) furnish to each seller of Registerable Stock and to each
underwriter such number of copies of the registration statement and the
prospectus included therein (including each preliminary prospectus) as
such persons reasonably may request in order to facilitate the public sale
or other disposition of the Registerable Stock covered by such
registration statement;
(d) use its best efforts to register or qualify the Registerable
Stock covered by such registration statement under the securities or "blue
sky" laws of such jurisdictions as the sellers of Registerable Stock or,
in the case of an underwritten public offering, the managing underwriter
reasonably shall request; provided, however, that the Company shall not
for any such purpose be required to qualify generally to transact business
as a foreign corporation in any jurisdiction where it is not so qualified
or to consent to general service of process in any such jurisdiction;
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(e) use its best efforts to list the Registerable Stock covered by such
registration statement with any securities exchange on which the Common Stock
of the Company is then listed;
(f) in addition to its obligations under Section 5(b) hereof, immediately
notify each seller of Registerable Stock and each underwriter under such
registration statement, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, of the happening of any
event of which the Company has knowledge as a result of which the prospectus
contained in such registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing;
(g) if the offering is underwritten, at the request of any seller of
Registerable Stock to furnish on the date that Registerable Stock is delivered
to the underwriters for sale pursuant to such registration: (i) an opinion
dated such date of counsel representing the Company for the purposes of such
registration, addressed to the underwriters and to such seller, stating that
such registration statement has become effective under the Securities Act and
that (A) to the best knowledge of such counsel, no stop order suspending the
effectiveness thereof has been issued and no proceedings for that purpose have
been instituted or are pending or contemplated under the Securities Act, (B)
the registration statement, the related prospectus and each amendment or
supplement thereof comply as to form in all material respects with the
requirements of the Securities Act (except that such counsel need not express
any opinion as to financial statements or other financial data contained
therein) and (C) to such other effects as reasonably may be requested by
counsel for the underwriters or by such seller or its counsel and (ii) a letter
dated such date from the independent public accountants retained by the
Company, addressed to the underwriters and to such seller, stating that they
are independent public accountants within the meaning of the Securities Act and
that, in the opinion of such accountants, the financial statements of the
Company included in the registration statement or the prospectus, or any
amendment or supplement thereof, comply as to form in all material respects
with the applicable accounting requirements of the Securities Act, and such
letter shall additionally cover such other financial matters (including
information as to the period ending no more than five business days prior to
the date of such letter) with respect to such registration as such underwriters
reasonably may request; and
(h) make available for inspection by each seller of Registerable Stock,
by any underwriter participating in any distribution pursuant to such
registration statement, and by any attorney, accountant or other agent retained
by such seller or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the Company's
officers, directors and employees to supply all information reasonably
requested by any such seller,
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underwriter, attorney, accountant or agent in connection with such
registration statement.
For purposes of this Agreement, the period of distribution, if not
otherwise described in the Registration Statement of Registerable Stock in a
firm commitment underwritten public offering shall be deemed to extend until
each underwriter has completed the distribution of all securities purchased by
it, and the period of distribution of Registerable Stock in any other
registration shall be deemed to extend until the earlier of the sale of all
Registerable Stock covered thereby or 120 days after the effective date thereof.
In connection with each registration hereunder, the sellers of
Registerable Stock will furnish to the Company in writing such information with
respect to themselves and the proposed distribution by them as reasonably shall
be necessary in order to assure compliance with federal and applicable state
securities laws.
In connection with each registration pursuant to Sections 3 or 4 covering
an underwritten public offering, the Company and each seller agree to enter
into a written agreement with the managing underwriter selected in the manner
herein provided in such form and containing such provisions as are customary in
the securities business for such an arrangement between such underwriter and
companies of the Company's size and investment stature.
6. Expenses. All expenses incurred by the Company in complying with
Sections 3 or 4, including all registration and filing fees, printing expenses,
fees and disbursements of counsel and independent public accountants for the
Company, reasonable fees and expenses (including counsel fees) incurred in
connection with complying with state securities or "blue sky" laws, fees of the
National Association of Securities Dealers, Inc., transfer taxes, fees of
transfer agents and registrars, costs of insurance and reasonable fees and
disbursements of one counsel for the sellers of Registerable Stock, but
excluding any Selling Expenses, are called "Registration Expenses". "Selling
Expenses" shall include only such underwriting discounts and selling
commissions applicable to the sale of any Registerable Stock which would not
have been incurred in the absence of the registration and sale of the
Registerable Stock.
The Company will pay all Registration Expenses in connection with each
registration statement filed pursuant to Sections 3 and 4; provided, however,
that in connection with a registration statement filed under Section 4, the
Company shall not be obligated to pay fees and expenses (including counsel
fees) incurred in connection with complying with state securities laws in any
state in which the Company is not otherwise registering for sale any of the
shares the Company proposes to sell in the offering. All Selling Expenses in
connection with each registration statement filed pursuant to Sections 3 or 4
shall be borne by the participating sellers in proportion to the number of
shares sold by each, or by such participating sellers as they may agree.
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7. Indemnification and Contribution. (a) In the event of a registration of
any of the Registerable Stock under the Securities Act pursuant to Sections 3 or
4, the Company will indemnify and hold harmless each seller of such Registerable
Stock thereunder, each underwriter of such Registerable Stock thereunder and
each other person, if any, who controls such seller or underwriter within the
meaning of the Securities Act, against any losses, claims, damages or
liabilities, joint or several, to which such seller, underwriter or controlling
person may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any registration statement under which such
Registerable Stock was registered under the Securities Act pursuant to Sections
3 or 4, any preliminary prospectus or final prospectus contained therein, or any
amendment or supplement thereof, or arise out of or are based upon 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, and will
reimburse each such seller, each such underwriter and each such 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 Company will not be liable in any such case
if and to the extent that any such loss, claim, damage or liability arises out
of or is based upon an untrue statement or alleged untrue statement or omission
or alleged omission so made in conformity with information furnished by any
seller, underwriter or controlling person in writing specifically for use in
such registration statement or prospectus.
(b) In the event of a registration of any of the Registerable Stock under
the Securities Act pursuant to Sections 3 or 4, each seller of such Registerable
Stock thereunder, severally and not jointly, will indemnify and hold harmless
the Company, each person, if any, who controls the Company within the meaning of
the Securities Act, each officer of the Company who signs the registration
statement, each director of the Company, each underwriter and each person who
controls any underwriter within the meaning of the Securities Act, against all
losses, claims, damages or liabilities, joint or several, to which the Company
or such officer, director, underwriter or controlling person may become subject
under the Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact contained
in the registration statement under which such Registerable Stock was registered
under the Securities Act pursuant to Sections 3 or 4, any preliminary prospectus
or final prospectus contained therein, or any amendment or supplement thereof,
or arise out of or are based upon 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, and will reimburse the Company and each such
officer, director, underwriter and 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 such seller will be liable hereunder in any such case only if and to the
extent that any such loss, claim, damage or liability arises out of or is based
upon
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an untrue statement or alleged untrue statement or omission or alleged omission
made in reliance upon and in conformity with information pertaining to such
seller, as such, furnished in writing to the Company by such seller specifically
for use in such registration statement or prospectus; provided, further, that
the liability of each seller hereunder shall be limited to the proportion of any
such loss, claim, damage, liability or expenses which is equal to the proportion
that the public offering price of the shares sold by such seller under such
registration statement bears to the total public offering price of all
securities sold thereunder, but not in any event to exceed the proceeds received
by such seller from the sale of Registerable Stock covered by such registration
statement.
(c) Promptly after receipt by an indemnified party hereunder of notice of
the commencement of any action, such indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party hereunder, notify
the indemnifying party in writing thereof, but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
such indemnified party other than under this Section 8 and shall only relieve it
from any liability which it may have to such indemnified party under this
Section 8 if and to the extent the indemnifying party is prejudiced by such
omission. In case any such action shall be brought against any indemnified party
and it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate in and, to the extent it
shall wish, to assume and undertake the defense thereof with counsel reasonably
satisfactory to such indemnified party, and, after notice from the indemnifying
party to such indemnified party of its election so to assume and undertake the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under this Section 8 for any legal expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation and of liaison with counsel so selected; provided,
however, that, if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be defenses available to it which are different from or
additional to those available to the indemnifying party or if the interests of
the indemnified party reasonably may be considered by the indemnified party to
conflict with the interests of the indemnifying party, the indemnified party
shall have the right to select a separate counsel and to assume such legal
defenses and otherwise to participate in the defense of such action, with
reasonable expenses and fees of such separate counsel and other expenses related
to such participation to be reimbursed by the indemnifying party as incurred. No
indemnifying party, in defense of any such action, shall, except with the
consent of each indemnified party, consent to the entry of any judgment or enter
into any settlement (i) which does not include as an unconditional term thereof
the giving, by the claimant or plaintiff, to such indemnified party of a release
from all liability in respect to such action or (ii) which involves any relief
against the indemnified party other than the payment of money which is to be
paid in full by the indemnifying party.
(d) In order to provide for just and equitable contribution to joint
liability under the Securities Act in any case in which either (i) any holder
of Registerable Stock
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exercising rights under this Agreement, or any controlling person of any such
holder, makes a claim for indemnification pursuant to this Section 7, but it is
judicially determined (by the entry of a final judgment or decree by a court of
competent jurisdiction and the expiration of time to appeal or the denial of
the last right of appeal) that such indemnification may not be enforced in such
case notwithstanding the fact that this Section 7 provides for indemnification
in such case, or (ii) contribution under the Securities Act may be required on
the part of any such selling holder or any such controlling person in
circumstances for which indemnification is provided under this Section 7; then,
and in each such case, the Company and such holder will contribute to the
aggregate losses, claims, damages or liabilities to which they may be subject
(after contribution from others) in such proportion so that such holder is
responsible for the portion represented by the percentage that the public
offering price of its Registerable Stock offered by the registration statement
bears to the public offering price of all securities offered by such
registration statement, and the Company is responsible for the remaining
portion; provided, however, that, in any such case (A) no holder will be
required to contribute any amount in excess of the public offering price of all
such Registerable Stock sold by such holder pursuant to such registration
statement; and (B) no person or entity guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) will be entitled to
contribution from any person or entity who was not guilty of such fraudulent
misrepresentation.
8. Changes in Common Stock or Series A Preferred Stock. If, and as
often as there is any change in the Common Stock or the Series A Preferred
Stock by way of a stock split, stock dividend, combination or reclassification,
or through a merger, consolidation, reorganization or recapitalization, or by
any other means, appropriate adjustment shall be made in the provisions hereof
so that the rights and privileges granted hereby shall continue and respect to
the Common Stock or the Series A Preferred Stock as so changed.
9. Rule 144 Reporting. With a view to making available the benefits of
certain rules and regulations of the Commission which may at any time permit
the sale of the Registerable Stock to the public without registration, at all
times after 90 days after any registration statement covering a public offering
of securities of the Company under the Securities Act shall have become
effective (or the Company shall otherwise have become subject to the periodic
reporting requirements of the Exchange Act), the Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act:
(b) use its best efforts to file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act; and
(c) furnish to each holder of Registerable Stock forthwith upon
request a written statement by the Company as to its compliance with the
reporting
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requirements of such Rule 144 and of the Securities Act and the Exchange
Act, a copy of the most recent annual or quarterly report of the Company,
and such other reports and documents so filed by the Company as such holder
may reasonably request in availing itself of any rule or regulation of the
Commission allowing such holder to sell any Registerable Stock without
registration.
10. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents
and warrants to you as follows:
(a) The execution, delivery and performance of this Agreement by the
Company have been duly authorized by all requisite corporate action and
will not violate any provision of law, any order of any court or other
agency of government, the Articles of Organization or By-laws of the
Company or any provision of any indenture, agreement or other instrument to
which it or any or its properties or assets is bound, conflict with, result
in a breach of or constitute (with due notice or lapse of time or both) a
default under any such indenture, agreement or other instrument or result
in the creation or imposition of any lien, charge or encumbrance of any
nature whatsoever upon any of the properties or assets of the Company,
(b) This Agreement has been duly executed and delivered by the Company
and constitutes the legal, valid and binding obligation of the Company,
enforceable in accordance with its terms, subject to (i) applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance and
moratorium laws and other laws of general application affecting enforcement
of creditors' rights generally and (ii) the availability of equitable
remedies as such remedies may be limited by equitable principles of general
applicability (regardless of whether enforcement is sought in a proceeding
in equity or at law).
11. MISCELLANEOUS. (a) All covenants and agreements contained in this
Agreement by or on behalf of any of the parties hereto shall bind and inure to
the benefit of the respective successors and assigns of the parties hereto
(including transferees of any Registerable Stock), whether so expressed or not;
provided, however, that registration rights conferred herein on an Investor
shall only inure to the benefit of a transferee of Registerable Stock if (i)
there is transferred to a direct or indirect transferee of the Investor at least
40% of the total shares of Registerable Stock purchased by the Investor pursuant
to the Purchase Agreement or (ii) such transferee is a partner, shareholder or
affiliate of the Investor. The Company shall be notified of any transfers of
Registerable Stock at the time thereof.
(b) All notices, requests, consents and other communications hereunder
shall be in writing and shall be mailed by certified or registered mail,
return receipt requested, postage pre-paid, or telexed, in the case of
non-U.S. residents, addressed as follows:
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if to the Company or an Investor, at the address of such party set
forth in the Purchase Agreement;
if to any subsequent holder of Registerable Shares, to it at such
address as may have been furnished to the Company in writing by such
holder;
or, in any case, at such other address or addresses as shall have been
furnished in writing to the Company (in the case of a holder of Registerable
Stock) or to the holders of Registerable Stock (in the case of the Company) in
accordance with the provisions of this paragraph.
(c) This Agreement shall be governed by and construed in accordance
with the laws of the Commonwealth of Massachusetts (without giving effect to
its choice of law principles).
(d) The Company may not, without the prior written consent of the
holders of at least two-thirds of the then outstanding shares of Registerable
Stock, grant any rights to any persons to register shares of capital stock or
securities of the Company unless such rights are, by their terms, substantially
identical to the rights of the holders of Registerable Stock granted pursuant
to this Agreement.
(e) 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.
(f) The obligations of the Company to register shares of Registerable
Stock under Sections 3 or 4 shall terminate on July 1, 2001, unless such
obligations terminate earlier in accordance with the terms of this Agreement.
(g) If requested in writing by the underwriters for the initial
underwritten public offering of securities of the Company, each holder of
Registerable Stock who is a party to this Agreement or one of the several
separate agreements of even date herewith with other purchasers of Series A
Preferred Stock shall agree not to sell publicly any shares of Registerable
Stock or any other shares of Common Stock (other than shares of Registerable
Stock or other shares of Common Stock being registered in such offering),
without the consent of such underwriters, for a period of not more than 120
days following the effective date of the registration statement relating to
such initial public offering; provided, however, that the Company shall have
certified to each such holder that all persons entitled to registration rights
with respect to shares of Common Stock who are not parties to this Agreement,
all other persons selling shares of Common Stock in such offering and all
executive officers and directors of the Company shall also have agreed not to
sell publicly their Common Stock under the circumstances and pursuant to the
terms set forth in this Section 11(g).
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(h) Notwithstanding the provisions of Section 5(a), the Company's
obligation to file a registration statement, or cause such registration
statement to become and remain effective, shall be suspended for a period not
to exceed 30 days (and for periods not exceeding, in the aggregate, 60 days in
any 24-month period) if there exists at the time material non-public
information relating to the Company which, in the reasonable opinion of the
Company, should not be disclosed.
(i) If any provision of this Agreement shall be held to be illegal,
invalid or unenforceable, such illegality, invalidity or unenforceability shall
attach only to such provision and shall not in any manner affect or render
illegal, invalid or unenforceable any other provision of this Agreement, and
this Agreement shall be carried out as if any such illegal, invalid or
unenforceable provision were not contained herein.
(j) Except as otherwise provided herein, neither this Agreement nor
any provision hereof can be modified, changed, discharged or terminated except
by an instrument in writing signed by the party against whom the enforcement
of any modification, change, discharge or termination is sought or by the
written consent of the Company and the holders of at least two-thirds of the
then outstanding shares of Registerable Stock; provided, however, that no
modification or amendment shall be effective to reduce the percentage of the
shares of Registerable Stock the consent of the holders of which is required
under this Section 11(j).
-13-
14
IN WITNESS WHEREOF, the Company and the Purchasers have executed this
Agreement as of the day and year first above written.
INTRACEL CORPORATION
By:
-------------------------------------
Name: Xxxxx X. XxXxxxxx
Title: President and Chief Executive
Officer
PURCHASER
SECURITY INSURANCE COMPANY
OF HARTFORD
By:
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
Address: c/o Orion Capital Corporation
00 Xxxxxxxxxxx Xxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
15
IN WITNESS WHEREOF, the Company and the Purchasers have executed this
Agreement as of the day and year first above written.
INTRACEL CORPORATION
By:
--------------------------------------
Name: Xxxxx X. XxXxxxxx
Title: President and Chief Executive
Officer
PURCHASERS:
--------------------------------------
Name: Xxxxx Xxxxxxx, individually
Address: c/o Spectrum Asset Management
0 Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
--------------------------------------
Name: Xxxx Xxxx, individually
Address: c/o Spectrum Asset Management
0 Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
16
IN WITNESS WHEREOF, the Company and the Purchasers have executed this
Agreement as of the day and year first above written.
INTRACEL CORPORATION
By:
------------------------------------------
Name: Xxxxx X. XxXxxxxx
Title: President and Chief Executive
Officer
PURCHASER:
TD PARTNERS
By:
------------------------------------------
Name:
Title:
Address: 0 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
17
IN WITNESS WHEREOF, the Company and the Purchasers have executed this
Agreement as of the day and year first above written.
INTRACEL CORPORATION
By:
------------------------------------------
Name: Xxxxx X. XxXxxxxx
Title: President and Chief Executive
Officer
PURCHASER:
By:
------------------------------------------
Name: Xxxxxx Xxxxxxx, individually
Address: c/x Xxxxxxxxx Xxxxxx & Xxxxxxxx
000 Xxxxxxxx
Xxx Xxxx, XX 00000
18
IN WITNESS WHEREOF, the Company and the Purchasers have executed this
Agreement as of the day and year first above written.
INTRACEL CORPORATION
By:
------------------------------------------
Name: Xxxxx X. XxXxxxxx
Title: President and Chief Executive
Officer
PURCHASER:
TD PARTNERS
By:
------------------------------------------
Name: Xxxx Xxxxxx, individually
Address:
19
IN WITNESS WHEREOF, the Company and the Purchasers have executed this
Agreement as of the day and year first above written.
INTRACEL CORPORATION
By:
------------------------------------------
Name: Xxxxx X. XxXxxxxx
Title: President and Chief Executive
Officer
PURCHASER:
DUBLIND PARTNERS, INC.
By:
------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
Address: 0 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
20
IN WITNESS WHEREOF, the Company and the Purchasers have executed this
Agreement as of the day and year first above written.
INTRACEL CORPORATION
By:
--------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: President and Chief Executive
Officer
PURCHASER:
By:
--------------------------------------
Name: Xxxxxx X. Xxxx, individually
Address: c/x Xxxxxxx, Xxxxxxx & Xxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
