EXHIBIT 99.4
EXECUTION COPY
INVESTOR AND REGISTRATION RIGHTS AGREEMENT
This INVESTOR AND REGISTRATION RIGHTS AGREEMENT (this
"Agreement") is made and effective as of December 31, 2002 by and between
EntreMed, Inc., a Delaware corporation (the "Company"), and Celgene Corporation,
a Delaware corporation (the "Holder").
RECITALS:
A. Concurrently with the execution of this Agreement, the
Holder is agreeing to acquire from the Company shares of the Company's Preferred
Stock and a Warrant to purchase shares of Common Stock pursuant to the
Securities Purchase Agreement, of even date herewith (the "Securities Purchase
Agreement"); and
B. By entering into this Agreement, the Company wishes to
provide a further inducement to the Holder to enter into the Securities Purchase
Agreement and purchase the securities thereunder.
NOW, THEREFORE, in consideration of the foregoing, the parties
agree as follows:
1. Definitions. For purposes of this Agreement:
(a) "Common Stock" means shares of common stock, par value
$0.01, of the Company.
(b) "Exchange Act" means the Securities Exchange Act of
1934, as amended.
(c) "Form S-3" means such form under the Securities Act as
in effect on the date hereof or any registration form under the Securities Act
subsequently adopted by the SEC which permits inclusion or incorporation of
substantial information by reference to other documents filed by the Company
with the SEC.
(d) "Holder" means any Person owning or having the right to
acquire Registrable Securities, or any assignee thereof in accordance with
Section 11 hereof.
(e) "Person" means any individual, partnership, limited
liability company, joint venture, corporation, association, trust or any other
entity or organization.
(f) "Preferred Stock" means shares of the Series A
Convertible Preferred Stock, par value $1.00, of the Company.
(g) "Register," "registered," and "registration" refer to a
registration effected by preparing and filing a registration statement or
similar document in compliance with the Securities Act, and the declaration or
ordering of effectiveness of such registration statement or document.
(h) "Registrable Securities" means (1) any Common Stock
owned by the Holder, (2) any Common Stock directly or indirectly issuable or
issued upon exercise of the Warrant or conversion of any Preferred Stock, and
(3) any Common Stock issued as (or issuable upon the conversion or exercise of
any warrant, right or other security which is issued as) a dividend or other
distribution with respect to, or in exchange for or in replacement of, or upon
exercise or conversion of, such Warrant or Preferred Stock or such warrants,
rights or securities; provided, however, that any Registrable Securities sold by
the Holder in a transaction in which the Holder's rights under this Agreement
are not assigned pursuant to Section 11 below shall cease to be Registrable
Securities from and after the time of such sale.
(i) "SEC" means the Securities and Exchange Commission.
(j) "Securities Act" means the Securities Act of 1933, as
amended.
(k) "Violation" means any of the following statements,
omissions or violations: (i) any untrue statement or alleged untrue statement of
a material fact contained in a registration statement filed under or referred to
in this Agreement, including any preliminary prospectus or final prospectus
contained therein or any amendments or supplements thereto or any documents
filed under state securities or "blue sky" laws in connection therewith, (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 the Company of the Securities Act,
the Exchange Act, any state securities law or any rule or regulation promulgated
under the Securities Act, the Exchange Act or any state securities law arising
from, relating to or in connection with the offer and sale of Registrable
Securities pursuant to this Agreement.
(l) "Warrant" means the warrant to purchase an aggregate of
Six Million (6,000,000) shares of Common Stock dated as of the date hereof, as
amended from time to time.
2. Request for Registration.
(a) If at any time the Registration Statement (as defined
in the Purchase Agreement) is not effective, the Company shall receive a written
request from the Holder that the Company file a registration statement under the
Securities Act, then the Company shall, subject to the limitations of Section
2(b) below, file (as expeditiously as practicable, and in any event within sixty
(60) days of the receipt of such request) and use its best efforts to have
declared effective as thereafter as is practicable, a registration statement
under the Securities Act with respect to all Registrable Securities which the
Holder requests to be registered.
(b) Subject to Section 2(d) below, if the Holder intends to
distribute the Registrable Securities covered by its request pursuant to Section
2(a) hereof by means of an underwriting, it shall so advise the Company as a
part of its request made pursuant to this Section 2. The Holder shall select the
managing underwriter or underwriters in such underwriting, such underwriter(s)
to be reasonably acceptable to the Company. The Holder shall (together with the
Company as provided in Section 4(f)) enter into an underwriting agreement in
customary form with the underwriter or underwriters so selected for such
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underwriting by the Holder; provided, however, that the Holder (or any of its
Permitted Transferees) shall not be required to make any representations,
warranties or indemnities except as they relate to the Holder's ownership of
shares and authority to enter into the underwriting agreement and to the
Holder's intended method of distribution, and the liability of the Holder shall
be limited to an amount equal to the net proceeds from the offering received by
the Holder.
(c) The Company shall be obligated to effect only two (2)
registrations pursuant to this Section 2 (an offering which is not consummated
shall not be counted for this purpose); provided, however, that the Company
shall be obligated to effect as many registrations (but not more than three (3)
per year) as may be requested by the Holder in the event and so long as
registration pursuant to Form S-3 or any similar "short-form" registration
statement is available.
(d) Notwithstanding the foregoing, if the Company shall
furnish to the Holder a certificate signed by the President of the Company
stating that in the good faith judgment of the Board of Directors of the
Company, it would be seriously detrimental to the Company and its shareholders
for such registration statement to be filed by reason of a material pending
transaction and it is therefore essential to defer the filing of such
registration statement, the Company shall have the right to defer such filing
for a period of not more than ninety (90) days after receipt of the request of
the Holder; provided, however, that the Company may not utilize this right more
than once in any twelve (12) month period.
3. Company Registration. If (but without any obligation to do
so) the Company proposes to register (including for this purpose a registration
effected by the Company for shareholders other than the Holder) any of its stock
or other securities under the Securities Act in connection with the public
offering of such securities solely for cash (other than a registration on Form
S-8 (or similar or successor form) relating solely to the sale of securities to
participants in a Company stock plan or to other compensatory arrangements to
the extent includable on Form S-8 (or similar or successor form), or a
registration on Form S-4 (or similar or successor form)), the Company shall, at
such time, promptly give the Holder written notice of such registration. Upon
the written request of the Holder given within twenty (20) days after mailing of
such notice by the Company in accordance with Section 19, the Company shall,
subject to the provisions of Section 8, use its best efforts to cause to be
registered under the Securities Act all of the Registrable Securities that the
Holder has requested to be registered. The Company shall have no obligation
under this Section 3 to make any offering of its securities, or to complete an
offering of its securities that it proposes to make.
4. Obligations of the Company. Whenever required under this
Agreement to effect the registration of any Registrable Securities, the Company
shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement
with respect to such Registrable Securities and use its best efforts to cause
such registration statement to become effective, and, upon the request of the
Holder, keep such registration statement effective for up to one hundred eighty
(180) days or until the Holder has completed the distribution referred to in
such registration statement, whichever occurs first (but in any event for at
least any period required under the Securities Act); provided that before filing
such registration statement or any amendments thereto, the Company will furnish
to the Holder copies of all such documents proposed to be filed.
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(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 Securities Act with respect to the disposition of all
securities covered by such registration statement.
(c) Furnish to the Holder such number of copies of such
registration statement and of each amendment and supplement thereto (in each
case including all exhibits), such number of copies of the prospectus contained
in such registration statement (including each preliminary prospectus and any
summary prospectus) and any other prospectus filed under Rule 424 under the
Securities Act, in conformity with the requirements of the Securities Act, and
such other documents as the Holder may reasonably request in order to facilitate
the disposition of Registrable Securities owned by it.
(d) Use its best efforts to register and qualify the
securities covered by such registration statement for offer and sale under such
other securities or "blue sky" laws of such states or jurisdictions as shall be
reasonably requested by the Holder, provided that the Company shall not be
required in connection therewith or as a condition thereto (i) to qualify to do
business in any state or jurisdiction where it would not otherwise be required
to qualify but for the requirements of this clause (d), or (ii) to file a
general consent to service of process in any such state or jurisdiction.
(e) Use diligent efforts to cause all Registrable
Securities covered by such registration statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary
by virtue of the Company's business or operations to enable the seller or
sellers thereof to consummate the disposition of such Registrable Securities.
(f) In the event of any underwritten public offering,
cooperate with the managing underwriter in such customary marketing activities
(including, without limitation, any "roadshow") that the managing underwriter
may request, and enter into and perform its obligations under an underwriting
agreement, in usual and customary form, with the managing underwriter of such
offering.
(g) Notify the Holder at any time when a prospectus
relating to such registration statement is required to be delivered under the
Securities Act of the happening of any event of which it has knowledge 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.
(h) Notify the Holder and the Holder's underwriters, if
any, and confirm such advice in writing: (i) when the registration statement has
become effective, (ii) when any post-effective amendment to the registration
statement becomes effective and (iii) of any request by the SEC for any
amendment or supplement to the registration statement or prospectus or for
additional information.
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(i) Notify the Holder if at any time the SEC should
institute or threaten to institute any proceedings for the purpose of issuing,
or should issue, a stop order suspending the effectiveness of the Registration
Statement. Upon the occurrence of any of the events mentioned in the preceding
sentence, the Company will use its best efforts to prevent the issuance of any
such stop order or to obtain the withdrawal thereof as soon as possible. The
Company will promptly advise the Holder of any order or communication of any
public board or body addressed to the Company suspending or threatening to
suspend the qualification of any Registrable Securities for sale in any
jurisdiction.
(j) Furnish, at the request of the Holder, (i) on the date
that Registrable Securities are delivered to the underwriters for sale in
connection with a registration pursuant to this Agreement, if such securities
are being sold through underwriters, or, if such securities are not being sold
through underwriters, on the date that the registration statement with respect
to such securities becomes effective, an opinion, dated such date, of the
counsel representing the Company for the purposes of such registration, in form
and substance as is customarily given to underwriters in an underwritten public
offering, addressed to the underwriters, if any, and to the Holder requesting
registration of Registrable Securities and (ii) on the date that the
registration statement with respect to such securities becomes effective, a
"comfort" letter dated such date, from the independent certified public
accountants of the Company, in form and substance as is customarily given by
independent certified public accountants to underwriters in an underwritten
public offering, addressed to the underwriters, if any, and to the Holder, and,
if such securities are being sold through underwriters, a reaffirmation of such
letter on the date that such Registrable Securities are delivered to the
underwriters for sale.
(k) As soon as practicable after the effective date of the
registration statement, and in any event within sixteen (16) months thereafter,
have "made generally available to its security holders" (within the meaning of
Rule 158 under the Securities Act) an earning statement (which need not be
audited) covering a period of at least twelve (12) months beginning after the
effective date of the registration statement and otherwise complying with
Section 11(a) of the Securities Act.
5. Furnish Information. 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 the Holder that the Holder shall
furnish to the Company 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 the Holder's Registrable
Securities. If any registration statement or comparable statement under the
Securities Act refers to the Holder or any of its affiliates, by name or
otherwise, as the holder of any securities of the Company then, unless counsel
to the Company advises the Company that the Securities Act requires that such
reference be included in any such statement, each the Holder shall have the
right to require the deletion of such reference to itself and its affiliates.
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6. Expenses of Demand Registration. All expenses, other than
underwriting discounts and commissions relating to Registrable Securities,
incurred in connection with registrations, filings or qualifications pursuant to
Section 2, including without limitation all registration, filing and
qualification fees, printers' and accounting fees, fees and disbursements of
counsel for the Company, and the reasonable fees and disbursements of counsel
(selected by the Holder) for each registration for the Holder shall be borne by
the Company; provided, however, that such expenses shall not exceed $200,000 in
the aggregate.
7. Expenses of Company Registration. The Company shall bear
and pay all expenses incurred in connection with any registration, filing or
qualification of Registrable Securities with respect to the registrations
pursuant to Section 3 for the Holder, including without limitation all
registration, filing and qualification fees, printers' and accounting fees
relating or apportionable thereto and the fees and disbursements of counsel for
each registration for the Holder (selected by the Holder), but excluding
underwriting discounts and commissions relating to Registrable Securities.
8. Underwriting Requirements. In connection with any offering
initiated by the Company involving an underwriting of shares being issued by the
Company, the Company shall not be required under Section 3 to include the
Holder's securities in such underwriting unless the Holder accepts the terms of
the underwriting as agreed upon between the Company and the underwriters
selected by it, and then only in such quantity as will not, in the opinion of
the underwriters, exceed the largest number of securities requested to be
included in such offering which can be sold without having an adverse effect on
such offering by the Company; provided, however, that the Holder shall not be
required to make any representations, warranties or indemnities except as they
relate to the Holder's ownership of shares and authority to enter into the
underwriting agreement and to the Holder's intended method of distribution, and
the liability of the Holder shall be limited to an amount equal to the net
proceeds from the offering received by the Holder. If the total number of
securities, including Registrable Securities, requested by shareholders to be
included in such offering (or in any other offering in which the Holder shall
have the right to include Registrable Securities pursuant to Section 3) exceeds
the largest number of securities that the underwriters reasonably believe can be
sold without having an adverse effect on such offering, then the Company shall
be required to include in the offering only that number of such securities,
including Registrable Securities, which the underwriters believe will not have
an adverse effect on such offering, and the number of shares that may be
included in the underwriting shall be allocated as follows: (i) first, to the
Holder and (ii) thereafter, to the extent additional securities may be included
in such offering, to other selling shareholders, pro rata according to the total
number of securities entitled to be included therein owned by each such other
selling shareholder or in such other proportions as shall mutually be agreed to
by such other selling shareholders.
9. Indemnification. In the event any Registrable Securities
are included in a registration statement under this Agreement:
(a) To the extent permitted by law, the Company will
indemnify and hold harmless the Holder, its assigns, each of the Holder's
partners, each of the Holder's, and each of the Holder's partners', officers,
directors, partners, employees, agents, legal counsel, independent accountants
and affiliates, any underwriter (as defined in the Securities Act) for the
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Holder and each Person, if any, who controls the Holder or underwriter within
the meaning of the Securities Act or the Exchange Act against any losses,
claims, damages or liabilities (joint or several) to which they may become
subject under the Securities Act, the Exchange Act or other federal or state
law, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon a Violation; and, subject to the
restrictions set forth in Section 9(c), the Company will pay to each such
indemnified party promptly, as such expenses are incurred and are due and
payable, 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
Section 9(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 the Company (which consent shall not be unreasonably withheld), nor
shall the Company be liable in any such case to a particular indemnified party
for any such loss, claim, damage, liability or action (i) 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 use in connection
with such registration by such indemnified party; (ii) that is based on a
failure of such indemnified party to deliver or to cause to be delivered the
prospectus made available by the Company, if such prospectus was timely made
available by the Company pursuant to Section 4(c) hereof; or (iii) that is due
to the use by such indemnified party of an outdated or defective prospectus
after the Company has notified such Person in writing that the prospectus is
outdated or defective, if the untrue statement or omission of material fact
contained in the preliminary prospectus giving rise to the Violation was
corrected in the prospectus, as then amended or supplemented, and such
prospectus, as so amended or supplemented, was timely made available by the
Company pursuant to Section 4(c) hereof.
(b) To the extent permitted by law, the Holder will,
severally and not jointly, indemnify and hold harmless the Company, each of its
directors, officers, agents, employees and its legal counsel and independent
accountants, each Person, if any, who controls the Company within the meaning of
the Securities Act, any underwriter, 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 Securities Act, the Exchange Act or other federal or state law,
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 the Holder expressly for use
in connection with such registration; and the Holder will pay, as incurred, any
legal or other expenses reasonably incurred by any Person intended to be
indemnified pursuant to this Section 9(b), in connection with investigating or
defending any such loss, claim, damage, liability, or action; provided, however,
that the indemnity agreement contained in this Section 9(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; and provided further, that, in no event
shall the liability of the Holder under this Section 9(b) exceed the net
proceeds from the offering received by the Holder.
(c) Promptly after receipt by an indemnified party under
this Section 9 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 9, deliver to
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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, acting reasonably; provided, however, that an
indemnified party shall have the right to retain its own counsel, with the fees
and expenses to be paid by the indemnifying party, if such indemnified party has
been advised by counsel that representation of such indemnified party by the
counsel retained by the indemnifying party would be inappropriate due to actual
or potential differing interests between such indemnified party and any other
party represented by such counsel in such proceeding; provided further, however,
that the indemnifying party shall not be responsible for the fees and expenses
of more than one counsel for all indemnified parties. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action shall not relieve such indemnifying party of any
liability to the indemnified party under this Section 9 except if, and only to
the extent that, the indemnifying party is materially prejudiced thereby; and
such failure 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 9. An indemnifying party may settle any action or claim
under this Section 9 at any time without the consent of the indemnified party so
long as such settlement involves no cost or liability to the indemnified party
and includes an unconditional release of the indemnified party from all
liability with respect to such claim or action.
(d) The obligations of the Company and the Holder under
this Section 9 shall survive the completion of any offering of Registrable
Securities in a registration statement under this Agreement, and otherwise.
(e) Any indemnity agreements contained herein shall be in
addition to any other rights to indemnification or contribution which any
indemnified party may have pursuant to law or contract and shall remain
operative and in full force and effect regardless of any investigation made or
omitted by or on behalf of any indemnified party.
(f) If a court of competent jurisdiction holds that the
foregoing indemnity is unavailable, then the indemnifying party, in lieu of
indemnifying the indemnified party thereunder, shall to the extent permitted by
applicable law contribute to the amount paid or payable by the indemnified party
as a result of such losses, claims, damages, liabilities or expenses (i) in such
proportion as is appropriate to reflect the relative benefits received by the
indemnifying party on the one hand and the indemnified party on the other
(taking into consideration, among other things, the fact that the provision of
the registration rights and indemnification hereunder is a material inducement
to the Holder to purchase Registrable Securities pursuant to the Securities
Purchase Agreement) or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law or provides a lesser sum to the indemnified
party than the amount hereinafter calculated, in such proportion as is
appropriate to reflect not only the relative benefits received by the
indemnifying party on the one hand and the indemnified party on the other
(taking into consideration, among other things, the fact that the provision of
the registration rights and indemnification hereunder is a material inducement
to the Holder to purchase Registrable Securities pursuant to the Securities
Purchase Agreement) but also the relative fault of the indemnifying party and
the indemnified party as well as any other relevant equitable considerations.
The relative fault shall be determined by reference to, among other things,
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whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by or on behalf of the indemnifying party or the indemnified party and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such untrue statement or omission. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation. Notwithstanding anything to the
contrary in this Section 9, the Holder shall not be required, pursuant to this
Section 9, to contribute any amount in excess of the net proceeds received by
such indemnifying party from the sale of securities in the offering to which the
losses, claims, damages, liabilities or expenses of the indemnified party
relate.
10. Reports Under the Exchange Act. With a view to making
available to the Holder the benefits of Rule 144 under the Securities 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 or pursuant to
a registration on Form S-3, 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, at all
times after the effective date of the first registration statement filed by the
Company for the offering of its securities to the general public;
(b) use its best efforts (without unreasonable expense) to
enable the Holder to utilize Form S-3 for the sale of their Registrable
Securities;
(c) file with the SEC in a timely manner all reports and
other documents required of the Company under the Securities Act and the
Exchange Act; and
(d) furnish to the Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request (i) a written statement by the
Company that it has complied with the reporting requirements of Rule 144 under
the Securities Act (at any time after the effective date of the first
registration statement filed by the Company) and the Securities Act and Exchange
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 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.
11. Assignment of Registration Rights. The rights to cause the
Company to register Registrable Securities pursuant to this Agreement may be
assigned in whole or in part by the Holder to one or more of its affiliates or
to one or more transferees or assignees of not less than 10% of the Registrable
Securities owned by the Holder on the date hereof, provided that (in each case)
such transferee or assignee delivers to the Company a written instrument by
which such transferee or assignee agrees to be bound by the obligations imposed
on the Holder under this Agreement to the same extent as if such transferee or
assignee was a party hereto. Except as specifically permitted in the preceding
sentence, neither this Agreement nor the Holder's rights or privileges under
this Agreement can be assigned or transferred in whole or in part without the
prior written consent of the other parties.
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12. No Other Registration Rights; Limitations on Subsequent
Registration Rights. The Company, represents and warrants to the Holder that,
except as listed on Schedule 12 attached hereto, no "registration rights"
relating to securities of the Company will exist on the date hereof other than
pursuant to this Agreement. From and after the date of this Agreement, the
Company shall not, without the prior written consent of the Holder, enter into
any agreement with any holder or prospective holder of any securities of the
Company which would allow such holder or prospective holder to include such
securities in any registration filed under this Agreement, 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 holder's securities will not reduce the amount of the Registrable
Securities of the Holder which is included therein, other than on a pari passu
and pro rata basis.
13. Amendment; Waiver. Any provision of this Agreement may be
amended only with the written consent of the Company and the Holder. The
observance of any provision of this Agreement may be waived (either generally or
in a particular instance and either retroactively or prospectively) only with
the written consent of the party to be charged. Any amendment or waiver effected
in accordance with this Section 13 shall be binding upon the Holder, each future
holder of all such securities, and the Company.
14. Changes in Registrable Securities. If, and as often as,
there are any changes in the Registrable Securities by way of stock split, stock
dividend, combination or reclassification, or through merger, consolidation,
reorganization or recapitalization, or by any other means (including, without
limitation, the reorganization of the Company as a subsidiary of a holding
company), appropriate adjustment shall be made in the provisions of this
Agreement, as may be required, so that the rights and privileges granted hereby
shall continue with respect to the Registrable Securities as so changed. Without
limiting the generality of the foregoing, the Company will require any successor
by merger or consolidation (or the parent company thereof) to assume and agree
to be bound by the terms of this Agreement, as a condition to any such merger or
consolidation.
15. Entire Agreement. This Agreement constitutes the full and
entire understanding and agreement among the parties hereto with respect to the
subject matter hereof and supersedes all prior agreements and any and all
negotiations and oral understandings with respect thereto. Nothing in this
Agreement, express or implied, is intended to confer upon any Person, other than
the parties hereto and their respective successors and assigns, any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided herein.
16. Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of New York, as applied to
agreements between New York residents entered into and to be performed entirely
within New York.
17. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
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18. Successors and Assigns. The provisions hereof shall inure
to the benefit of, and be binding upon, the successors, permitted assigns (as
provided in Section 11), heirs, executors and administrators of the parties
hereto.
19. Notices. Unless otherwise provided, any notices or other
communications required or permitted under, or otherwise in connection with,
this Agreement shall be in writing and shall be deemed to have been duly given
(w) when delivered in person, (x) upon confirmation of receipt when transmitted
by facsimile transmission, (y) on receipt after dispatch by registered or
certified mail, postage prepaid, or (z) on the next Business Day if transmitted
by national overnight courier, addressed in each case as specified in the
Purchase Agreement (or to such other address which has been delivered in
accordance with this Section 19): "Business Day" shall mean any day on which
banks are not required or authorized to close in New York, New York.
20. Severability. Any invalidity, illegality or limitation on
the enforceability of this Agreement or any part thereof, by any party whether
arising by reason of the law of the respective party's domicile or otherwise,
shall in no way affect or impair the validity, legality or enforceability of
this Agreement with respect to other parties. If any provision of this Agreement
shall be judicially determined to be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
21. Titles and Subtitles. The titles of the Sections of this
Agreement are for convenience of reference only and are not to be considered in
construing this Agreement.
22. Delays or Omissions; Remedies Cumulative. It is agreed
that no delay or omission to exercise any right, power or remedy accruing to the
parties shall impair any such right, power or remedy, nor shall it be construed
to be a waiver of any such breach or default, or any acquiescence therein, or of
any similar breach or default thereafter occurring; nor shall any waiver of any
single breach or default be deemed a waiver of any other breach or default
theretofore or thereafter occurring. It is further agreed that any waiver,
permit, consent or approval of any kind or character by a party of any breach or
default under this Agreement, or any waiver by a party of any provisions or
conditions of this Agreement must be in writing and shall be effective only to
the extent specifically set forth in writing and that all remedies, either under
this Agreement, or by law or otherwise afforded to a party, shall be cumulative
and not alternative.
23. Attorneys' Fees. 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 attorney's fees, costs and necessary
disbursements in addition to any other relief to which such party may be
entitled.
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24. Counterparts; Facsimile Signatures. This Agreement may be
executed in any number of counterparts, each of which shall be deemed to be an
original, and all of which together shall constitute one and the same document.
This Agreement may be executed by facsimile signatures.
25. Investment Parameters. Holder agrees that, from the
Closing Date, as defined in the Securities Purchase Agreement, until the date
that Holder, together with its affiliates, no longer beneficially owns, as
defined in Rule 13d-3 under the Securities Act, at least ten percent (10%) of
the outstanding shares of the Company's Common Stock, Holder shall not, directly
or indirectly, dispose of any of its shares of Common Stock except, subject to
the terms and conditions of this Agreement and applicable law, (i) in a widely
dispersed public distribution; (ii) in a private placement in which no one party
acquires the right to purchase more than five percent (5%) of the outstanding
shares of Common Stock; (iii) an assignment to a single party (such as a broker,
underwriter or investment banker) for the purpose of conducting a widely
dispersed public distribution on Holder's behalf; (iv) pursuant to Rule 144
under the Securities Act; or (v) pursuant to a tender or exchange offer to the
Company's stockholders.
[END OF TEXT. SIGNATURE PAGES FOLLOW.]
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IN WITNESS WHEREOF, the parties hereto have caused this
Investor and Registration Rights Agreement to be duly executed by their
respective authorized signatories as of the date first indicated above.
ENTREMED, INC.
By: /s/ Xxxx Xxxxxxxx
--------------------------------
Name: Xxxx Xxxxxxxx
Title: President
CELGENE CORPORATION
By: /s/ Xxxxxx X. Hugin
--------------------------------
Name: Xxxxxx X. Hugin
Title: Senior Vice President and
Chief Financial Officer
