REGISTRATION RIGHTS AGREEMENT
Exhibit
3
This
Registration Rights Agreement (this “Agreement”)
is
made and entered into as of February ___,
2007,
among Gentium S.p.A., an Italian joint stock company (the “Company”),
and
the purchasers signatory hereto (each such purchaser is a “Purchaser”
and
collectively, the “Purchasers”).
This
Agreement is made pursuant to the Securities Subscription Agreement, dated
as of
February 6, 2007, among the Company and the Purchasers (the “Subscription
Agreement”).
The
Company and the Purchasers hereby agree as follows:
1. Definitions.
Capitalized terms used and not otherwise defined herein that are defined in
the
Subscription Agreement shall have the meanings given such terms in the
Subscription Agreement. As used in this Agreement, the following terms shall
have the following meanings:
“ADSs”
means
American Depository Shares, each a security representing one Ordinary Share
deposited by the Company with The Bank of New York pursuant to the terms of
the
Deposit Agreement, issued by The Bank of New York pursuant to the terms of
the
Deposit Agreement.
“Advice”
shall
have the meaning set forth in Section 6(c).
“Effectiveness
Date”
means
the
90th
calendar
day following the Closing, extended by a period of 30 additional days if the
Commission reviews the Registration Statement; provided,
however,
in the
event that the Company is notified by the Commission that the Registration
Statement will not be reviewed or is no longer subject to further review and
comments, the Effectiveness Date as to the Registration Statement shall be
the
fifth Trading Day following the date on which the Company is so notified if
such
date precedes the dates required above, unless such fifth Trading Day is after
March 31, 2007, in which case such Effectiveness Date will be the 90th
calendar
day following the Closing.
“Effectiveness
Period”
shall
have the meaning set forth in Section 2(a).
“Filing
Date”
means
the 30th
calendar
day following the Closing.
“Holder”
or
“Holders”
means
the holder or holders, as the case may be, from time to time of Registrable
Securities.
“Indemnified
Party”
shall
have the meaning set forth in Section 5(c).
“Indemnifying
Party”
shall
have the meaning set forth in Section 5(c).
“Liquidated
Damages”
shall
have the meaning set forth in Section 2(b).
“Losses”
shall
have the meaning set forth in Section 5(a).
“Plan
of Distribution”
shall
have the meaning set forth in Section 2(a).
“Proceeding”
means
an action, claim, suit, investigation or proceeding (including, without
limitation, an investigation or partial proceeding, such as a deposition),
whether commenced or threatened.
“Prospectus”
means
the prospectus included in the Registration Statement (including, without
limitation, a prospectus that includes any information previously omitted from
a
prospectus filed as part of an effective registration statement in reliance
upon
Rule 430A promulgated under the Securities Act), as amended or supplemented
by
any prospectus supplement, with respect to the terms of the offering of any
portion of the Registrable Securities covered by the Registration Statement,
and
all other amendments and supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
“Registrable
Securities”
means
all of (i) the Shares, including ADSs representing the same, and (ii) any
Shares, including ADSs representing the same, issued or issuable upon any stock
split, dividend or other distribution, recapitalization or similar event with
respect to the foregoing.
“Registration
Statement”
means
the registration statement required to be filed hereunder, including the
Prospectus, amendments and supplements to such registration statement or
Prospectus, including pre- and post-effective amendments, all exhibits thereto,
and all material incorporated by reference or deemed to be incorporated by
reference in such registration statement.
“Registration
Default”
shall
have the meaning set forth in Section 2(b).
“Registration
Default Date”
shall
have the meaning set forth in Section 2(b).
“Rule
415”
means
Rule 415 promulgated by the Commission pursuant to the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission having substantially the same purpose and
effect as such Rule.
“Rule
424”
means
Rule 424 promulgated by the Commission pursuant to the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission having substantially the same purpose and
effect as such Rule.
“Selling
Security Holder Questionnaire”
shall
mean the Questionnaire attached to this form as Annex B.
2
“Shares”
shall
mean the Ordinary Shares issued pursuant to the Subscription
Agreement.
2. Shelf
Registration.
(a) On
or
prior to the Filing Date, the Company shall prepare and file with the Commission
the Registration Statement covering the resale of the Registrable Securities
(including the ADSs) for an offering to be made on a continuous basis pursuant
to Rule 415. The Registration Statement shall be on Form F-3 (except if the
Company is not then eligible to register for resale the Registrable Securities
on Form F-3, in which case such registration shall be on another appropriate
form in accordance herewith) and shall contain (unless otherwise directed by
the
Holders) substantially the “Plan
of Distribution”
attached hereto as Annex
A.
Subject
to the terms of this Agreement, the Company shall use its best efforts to cause
the Registration Statement to be declared effective under the Securities Act
as
promptly as possible after the filing thereof, but in any event prior to the
Effectiveness Date, and shall use its best efforts to keep the Registration
Statement continuously effective under the Securities Act until all Registrable
Securities covered by the Registration Statement have been sold or may be sold
without volume restrictions pursuant to Rule 144 as determined by the counsel
to
the Company pursuant to a written opinion letter to such effect, addressed
and
acceptable to the Company’s transfer agent and the affected Holders (the
“Effectiveness
Period”).
The
Company shall immediately notify the Holders via facsimile or electronic mail
of
the effectiveness of the Registration Statement on the same Trading Day that
the
Company telephonically confirms effectiveness with the Commission, which shall
be the date requested for effectiveness of the Registration Statement. The
Company shall, by 9:30 AM Eastern Time on the Trading Day after the Effective
Date (as defined in the Subscription Agreement), file a Form 424(b)(5) with
the
Commission. Each Holder agrees to furnish to the Company a completed Selling
Security Holder Questionnaire simultaneously with the execution of this
Agreement.
(b) If
(i)
the Registration Statement is not filed on or prior to the Filing Date, or
(ii)
the Company fails to file with the Commission a request for acceleration in
accordance with Rule 461 promulgated under the Securities Act, within five
Trading Days of the date that the Company is notified (orally or in writing,
whichever is earlier) by the Commission that the Registration Statement will
not
be “reviewed,” or not subject to further review (unless such fifth Trading Day
is after March 31, 2007) or (iii) prior to the Effectiveness Date, the Company
fails to file a pre-effective amendment and otherwise respond in writing to
comments made by the Commission in respect of the Registration Statement within
twenty Trading Days after the receipt of comments by or notice from the
Commission that such amendment is required in order for the Registration
Statement to be declared effective or (iv) the Registration Statement is not
declared effective by the Commission by the Effectiveness Date or (v) the
Registration Statement ceases to be effective or usable at any time during
the
Effectiveness Period (without being succeeded on the same date immediately
by a
post-effective amendment or supplement to the Registration Statement that cures
such failure and that is itself, in the case of a post-effective amendment,
immediately declared effective) or the Holders are not permitted to utilize
the
Prospectus therein to resell such Registrable Securities for twenty consecutive
Trading Days or in any individual case an aggregate of thirty Trading Days
during any twelve month period (which need not be consecutive Trading Days)
(any
of the foregoing being a “Registration
Default”
and
for
purposes of clause (i) or (iv) the date on which such Registration Default
occurs, or for purposes of clause (ii) the date on which such five Trading
Day
period is exceeded, or for purposes of clause (iii) the date which such twenty
Trading Day period is exceeded, or for purposes of clause (v) the date on which
such twenty or thirty Trading Day period, as applicable, is exceeded, each
being
a “Registration
Default Date”)
then,
subject to Section 3(j), the Company shall pay to each Holder an amount in
cash,
as liquidated damages and not a penalty (“Liquidated
Damages”)
equal
to 1% of the aggregate purchase price paid by such Holder pursuant to the
Subscription Agreement for any Registrable Securities then held by such Holder
per month of time between the Registration Default Date and the date such
Registration Default is cured, prorated for any period less than one month;
provided
that
such
Liquidated Damages paid to each Holder may not exceed more than 10% of the
purchase price paid by such Holder for its Registrable Securities. The foregoing
represents the sole monetary remedy to any Holder in connection with any
Registration Default. In no event shall the Company be required to pay
Liquidated Damages in excess of the applicable amount set forth above,
regardless of whether one or multiple Registration Defaults exists. The Company
shall pay the Holders any Liquidated Damages accrued for the first month after
a
Registration Default Date within seven calendar days after the end of such
month, and any Liquidated Damages accrued for any subsequent month within seven
calendar days after the end of such month. If the Company fails to pay any
liquidated damages pursuant to this Section in full within seven days after
the
date payable, the Company will pay interest thereon at a rate of 15% per annum
(or such lesser maximum amount that is permitted to be paid by applicable law)
to the Holder, accruing daily from the date such liquidated damages are due
until such amounts, plus all such interest thereon, are paid in full. A
Registration Default under clause (i) above shall be cured on the date that
the
Registration Statement is filed with the SEC; a Registration Default under
clause (ii) above shall be cured on the date that the Company files such request
for acceleration; a Registration Default under clause (iii) above shall be
cured
when the Company files such pre-effective amendment and otherwise respond in
writing to comments made by the Commission; a Registration Default under clause
(iv) above shall be cured on the date that the Registration Statement is
declared effective by the SEC; and a Registration Default under clause (v)
above
shall be cured on the date that the Registration Statement is declared effective
by the SEC or otherwise usable.
3
(c) Prior
to
the Effective Date of the Registration Statement the Company is required to
file
hereunder, the Company will file a Form F-6 if necessary to register or list
any
of the Registrable Securities thereunder, and will file such an F-6 in enough
time so that such F-6 is effective on or prior to the Effective Date of the
Registration Statement.
4
3. Registration
Procedures
In
connection with the Company’s registration obligations hereunder, the Company
shall:
(a) (i)
Prepare and file with the Commission such amendments, including post-effective
amendments, to the Registration Statement and the Prospectus used in connection
therewith as may be necessary to keep the Registration Statement continuously
effective as to the applicable Registrable Securities for the Effectiveness
Period; (ii) cause the related Prospectus to be amended or supplemented by
any
required Prospectus supplement (subject to the terms of this Agreement), and
as
so supplemented or amended to be filed pursuant to Rule 424; (iii) respond
as
promptly as reasonably possible to any comments received from the Commission
with respect to the Registration Statement or any amendment thereto; and (iv)
comply in all material respects with the provisions of the Securities Act and
the Exchange Act with respect to the disposition of all Registrable Securities
covered by the Registration Statement during the applicable period in accordance
(subject to the terms of this Agreement) with the intended methods of
disposition by the Holders thereof set forth in the Registration Statement
as so
amended or in such Prospectus as so supplemented.
(b) Notify
the Holders of Registrable Securities to be sold (which notice shall, pursuant
to clauses (ii) through (v) hereof, be accompanied by an instruction to suspend
the use of the Prospectus until the requisite changes have been made) as
promptly as reasonably possible and (if requested by any such Person) confirm
such notice in writing no later than one Trading Day following the day (i)(A)
when a Prospectus or any Prospectus supplement or post-effective amendment
to
the Registration Statement is filed; and (B) with respect to the Registration
Statement or any post-effective amendment, when the same has become effective;
(ii) of any request by the Commission or any other Federal or state governmental
authority for amendments or supplements to the Registration Statement or
Prospectus or for additional information; (iii) of the issuance by the
Commission or any other federal or state governmental authority of any stop
order suspending the effectiveness of the Registration Statement covering any
or
all of the Registrable Securities or the initiation of any Proceedings for
that
purpose; (iv) of the receipt by the Company of any notification with respect
to
the suspension of the qualification or exemption from qualification of any
of
the Registrable Securities for sale in any jurisdiction, or the initiation
or
threatening of any Proceeding for such purpose; and (v) of the occurrence of
any
event or passage of time that makes the financial statements included in the
Registration Statement ineligible for inclusion therein or any statement made
in
the Registration Statement or Prospectus or any document incorporated or deemed
to be incorporated therein by reference untrue in any material respect or that
requires any revisions to the Registration Statement, Prospectus or other
documents so that, in the case of the Registration Statement or the Prospectus,
as the case may be, it will not contain any untrue statement of a material
fact
or omit to state any material fact required to be stated therein or necessary
to
make the statements therein, in light of the circumstances under which they
were
made, not misleading; provided
that any
and all of such information provided pursuant to clause (v) above shall remain
confidential to each Holder until such information otherwise becomes public,
unless disclosure by a Holder is required by law; provide,
further,
notwithstanding each Holder’s agreement to keep such information confidential,
the Holders make no acknowledgement that any such information is material,
non-public information.
5
(c) Use
its
best efforts to avoid the issuance of, or, if issued, obtain the withdrawal
of
(i) any order suspending the effectiveness of the Registration Statement, or
(ii) any suspension of the qualification (or exemption from qualification)
of
any of the Registrable Securities for sale in any jurisdiction, at the earliest
practicable moment.
(d) Furnish
to each Holder, upon written request of such Holder, without charge, at least
one conformed copy of the Registration Statement and each amendment thereto,
including financial statements and schedules, all documents incorporated or
deemed to be incorporated therein by reference to the extent requested by such
Person, and all exhibits to the extent requested by such Person (including
those
previously furnished or incorporated by reference).
(e) Promptly
deliver to each Holder, upon written request of such Holder, without charge,
as
many copies of the Prospectus or Prospectuses (including each form of
prospectus) and each amendment or supplement thereto as such Persons may
reasonably request in connection with resales by the Holder of Registrable
Securities. Subject to the terms of this Agreement, the Company hereby consents
to the use of such Prospectus and each amendment or supplement thereto by each
of the selling Holders in connection with the offering and sale of the
Registrable Securities covered by such Prospectus and any amendment or
supplement thereto, except after the giving of any notice pursuant to Section
3(b).
(f) Prior
to
any resale of Registrable Securities by a Holder, use its commercially
reasonable efforts to register or qualify or cooperate with the selling Holders
in connection with the registration or qualification (or exemption from the
Registration or qualification) of such Registrable Securities for the resale
by
the Holder under the securities or Blue Sky laws of such jurisdictions within
the United States as any Holder reasonably requests in writing, to keep each
registration or qualification (or exemption therefrom) effective during the
Effectiveness Period and to do any and all other acts or things reasonably
necessary to enable the disposition in such jurisdictions of the Registrable
Securities covered by each Registration Statement; provided that the Company
shall not be required to qualify generally to do business in any jurisdiction
where it is not then so qualified or subject the Company to any material tax
in
any such jurisdiction where it is not then so subject or file a general consent
to service of process in any such jurisdiction.
(g) If
requested by the Holders, use its best efforts to cause its transfer agent
to
prepare and deliver certificates representing Registrable Securities to a
transferee pursuant to the Registration Statement within three (3) Trading
Days
of delivery to the transfer agent of certificates bearing restrictive legends,
which certificates shall be free, to the extent permitted by the Subscription
Agreement, of all restrictive legends, and to enable such Registrable Securities
to be in such denominations and registered in such names as any such Holders
may
request.
6
(h) Upon
the
occurrence of any event contemplated by this Section 3, as promptly as
reasonably possible under the circumstances taking into account the Company’s
good faith assessment of any adverse consequences to the Company and its
shareholders of the premature disclosure of such event, prepare a supplement
or
amendment, including a post-effective amendment, to the Registration Statement
or a supplement to the related Prospectus or any document incorporated or deemed
to be incorporated therein by reference, and file any other required document
so
that, as thereafter delivered, neither the Registration Statement nor such
Prospectus will contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. If the Company notifies the Holders in accordance with clauses
(ii) through (v) of Section 3(b) above to suspend the use of any Prospectus
until the requisite changes to such Prospectus have been made, then the Holders
shall suspend use of such Prospectus. The Company will use its best efforts
to
ensure that the use of the Prospectus may be resumed as promptly as is
practicable. The Company shall be entitled to exercise its right under this
Section 3(h) to suspend the availability of the Registration Statement and
Prospectus for a period not to exceed 90 days (which need not be consecutive
days) in any 365 day period.
(i) Comply
with all applicable rules and regulations of the Commission and the Trading
Market.
(j) The
Company may require each selling Holder to furnish to the Company a certified
statement as to the number of Ordinary Shares or ADSs beneficially owned by
such
Holder and, if required by the Commission, the person thereof that has voting
and dispositive control over the Shares. During any periods that the Company
is
unable to meet its obligations hereunder with respect to the registration of
the
Registrable Securities solely because any Holder fails to furnish such
information within three Trading Days of the Company’s request, any Liquidated
Damages that are accruing at such time as to such Holder only shall be tolled
and any Registration Default that may otherwise occur solely because of such
delay shall be suspended as to such Holder only, until such information is
delivered to the Company.
(k) File
such
public reports as shall be required to satisfy the current public information
requirements set forth in Rule 144 of the Securities Act until the earlier
of
the sale of the Registrable Securities under the Registration Statement or
such
time as the Registrable Securities are eligible for sale under Rule
144(k).
(l) If
requested by a Purchaser, the Company shall (i) as soon as practicable
incorporate in a prospectus supplement or post-effective amendment such
information as such Purchaser reasonably requests to be included therein
relating to the sale and distribution of Registrable Securities, including,
without limitation, information with respect to the number of Registrable
Securities being offered or sold, the purchase price being paid therefor and
any
other terms of the offering of the Registrable Securities to be sold in such
offering, and (ii) as soon as practicable make all required filings of such
prospectus supplement or post-effective amendment after being notified of the
matters to be incorporated in such prospectus supplement or post-effective
amendment.
7
4. Registration
Expenses.
All
fees and expenses incident to the performance of or compliance with this
Agreement by the Company shall be borne by the Company whether or not any
Registrable Securities are sold pursuant to the Registration Statement. The
fees
and expenses referred to in the foregoing sentence shall include, without
limitation, (i) all registration and filing fees (including, without limitation,
fees and expenses (A) with respect to filings required to be made with the
Trading Market on which the ADSs are then listed for trading and (B) in
compliance with applicable state securities or Blue Sky laws reasonably agreed
to by the Company in writing (including, without limitation, fees and
disbursements of counsel for the Company in connection with Blue Sky
qualifications or exemptions of the Registrable Securities and determination
of
the eligibility of the Registrable Securities for investment under the laws
of
such jurisdictions as requested by the Holders), (ii) printing expenses
(including, without limitation, expenses of printing certificates for
Registrable Securities and of printing prospectuses for a Holder if the printing
of prospectuses is reasonably requested by such Holder), (iii) messenger,
telephone and delivery expenses related to the Company's obligations hereunder,
(iv) fees and disbursements of counsel for the Company, (v) Securities Act
liability insurance, if the Company so desires such insurance, and (vi) fees
and
expenses of all other Persons retained by the Company in connection with the
consummation of the transactions contemplated by this Agreement. In addition,
the Company shall be responsible for all of its internal expenses incurred
in
connection with the consummation of the transactions contemplated by this
Agreement (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expense
of
any annual audit and the fees and expenses incurred in connection with the
listing of the Registrable Securities on any securities exchange as required
hereunder, including all fees and expenses of the Depositary. In no event shall
the Company be responsible for any broker or similar commissions or, except
to
the extent provided for in the Transaction Documents, including Section 5.2
of
the Subscription Agreement, any legal fees or other costs of the
Holders.
5. Indemnification
(a) Indemnification
by the Company.
The
Company shall, notwithstanding any termination of this Agreement, indemnify
and
hold harmless each Holder, the officers, directors, members, partners, agents,
brokers (including brokers who offer and sell Registrable Securities as
principal as a result of a pledge or any failure to perform under a margin
call
of Ordinary Shares), investment advisors and employees of each of them, each
Person who controls any such Holder (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) and the officers, directors,
members, partners, agents and employees of each such controlling Person, to
the
fullest extent permitted by applicable law, from and against any and all losses,
claims, damages, liabilities, judgments, fines, penalties, charges, costs
(including, without limitation, reasonable attorneys’ fees) and expenses
(collectively, “Losses”),
as
incurred, arising out of or relating to (i) any untrue or alleged untrue
statement of a material fact contained in the Registration Statement, any
Prospectus or any form of prospectus (including an issuer free-writing
prospectus) or in any amendment or supplement thereto or in any preliminary
prospectus, or arising out of or relating to any omission or alleged omission
of
a material fact required to be stated therein or necessary to make the
statements therein (in the case of any Prospectus or form of prospectus or
supplement thereto, in light of the circumstances under which they were made)
not misleading, except to the extent, but only to the extent, that (a) such
untrue statements or omissions are based solely upon information regarding
such
Holder furnished in writing to the Company by such Holder expressly for use
therein, or to the extent that such information relates to such Holder or such
Holder’s proposed method of distribution of Registrable Securities as set forth
in Annex
A
hereto
or any changes to Annex
A
hereto
that are expressly approved in writing by such Holder expressly for use in
the
Registration Statement, such Prospectus or such form of Prospectus or in any
amendment or supplement thereto or (b) in the case of an occurrence of an event
of the type specified in Section 3(b)(ii)-(v), the use by such Holder of an
outdated or defective Prospectus after the Company has notified such Holder
in
writing that the Prospectus is outdated or defective and prior to the receipt
by
such Holder of the Advice contemplated in Section 6(c);
(ii)
any violation by the Company of the Securities Act, or any other law, including,
without limitation, any state securities laws, or any rule or regulation
thereunder relating to the offer or sale of the Registrable Securities pursuant
to the Registration Statement; or (iii) any material violation of this Agreement
by the Company, its agents or representatives.
The
Company shall notify the Holders promptly of the institution, threat or
assertion of any Proceeding arising from or in connection with the transactions
contemplated by this Agreement of which the Company is aware.
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(b) Indemnification
by Holders.
Each
Holder shall, notwithstanding any termination of this Agreement, severally
and
not jointly, indemnify and hold harmless the Company, its directors, officers,
agents and employees, each Person who controls the Company (within the meaning
of Section 15 of the Securities Act and Section 20 of the Exchange Act), and
the
directors, officers, agents or employees of such controlling Persons, to the
fullest extent permitted by applicable law, from and against all Losses as
to
the extent arising solely out of or based solely upon (i) such Holder’s failure
to comply with the prospectus delivery requirements of the Securities Act;
or
(ii) upon any untrue or alleged untrue statement of a material fact contained
in
any Registration Statement, any Prospectus, or any form of prospectus, or in
any
amendment or supplement thereto or in any preliminary prospectus, or arising
out
of or relating to any omission or alleged omission of a material fact required
to be stated therein or necessary to make the statements therein not misleading
to the extent that (1) such untrue statements or omissions are based solely
upon
information regarding such Holder furnished in writing to the Company by such
Holder expressly for use therein, or to the extent that such information relates
to such Holder or such Holder’s proposed method of distribution of Registrable
Securities as set forth in Annex
A
hereto
or any changes to Annex
A
hereto
that are expressly approved in writing by such Holder expressly for use in
the
Registration Statement, such Prospectus or such form of Prospectus or in any
amendment or supplement thereto or (2) in the case of an occurrence of an event
of the type specified in Section 3(b)(ii)-(v), the use by such Holder of an
outdated or defective Prospectus after the Company has notified such Holder
in
writing that the Prospectus is outdated or defective and prior to the receipt
by
such Holder of the Advice contemplated in Section 6(c). In no event shall the
liability of any selling Holder hereunder be greater in amount than the dollar
amount of the net proceeds received by such Holder upon the sale of the
Registrable Securities covered by such Registration Statement giving rise to
such indemnification obligation.
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(c) Conduct
of Indemnification Proceedings.
If any
Proceeding shall be brought or asserted against any Person entitled to indemnity
hereunder (an “Indemnified
Party”),
such
Indemnified Party shall promptly notify the Person from whom indemnity is sought
(the “Indemnifying
Party”)
in
writing, and the Indemnifying Party shall have the right to assume the defense
thereof, including the employment of counsel reasonably satisfactory to the
Indemnified Party and the payment of all fees and expenses incurred in
connection with defense thereof; provided, that the failure of any Indemnified
Party to give such notice shall not relieve the Indemnifying Party of its
obligations or liabilities pursuant to this Agreement, except (and only) to
the
extent that it shall be finally determined by a court of competent jurisdiction
(which determination is not subject to appeal or further review) that such
failure shall have prejudiced the Indemnifying Party.
An
Indemnified Party shall have the right to employ separate counsel in any such
Proceeding and to participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such Indemnified Party or Parties
unless: (1) the Indemnifying Party has agreed in writing to pay such fees and
expenses; (2) the Indemnifying Party shall have failed promptly to assume the
defense of such Proceeding; (3) the Indemnifying Party shall have failed
promptly to employ counsel reasonably satisfactory to such Indemnified Party
in
any such Proceeding; or (4) the named parties to any such Proceeding (including
any impleaded parties) include both such Indemnified Party and the Indemnifying
Party, and such Indemnified Party shall reasonably believe that a material
conflict of interest is likely to exist if the same counsel were to represent
such Indemnified Party and the Indemnifying Party (in which case, if such
Indemnified Party notifies the Indemnifying Party in writing that it elects
to
employ separate counsel at the expense of the Indemnifying Party, the reasonable
fees and expenses of one separate counsel shall be at the expense of the
Indemnifying Party). The Indemnifying Party shall not be liable for any
settlement of any such Proceeding effected without its written consent, which
consent shall not be unreasonably withheld. No Indemnifying Party shall, without
the prior written consent of the Indemnified Party, effect any settlement of
any
pending Proceeding in respect of which any Indemnified Party is a party, unless
such settlement includes an unconditional release of such Indemnified Party
from
all liability on claims that are the subject matter of such
Proceeding.
The
Indemnified Party shall promptly reimburse the Indemnifying Party for that
portion of such fees and expenses applicable to such actions for which such
Indemnified Party is not entitled to indemnification hereunder, determined
based
upon the relative faults of the parties.
(d) Contribution.
If the
indemnification under Section 5(a) or 5(b) is unavailable to an Indemnified
Party or insufficient to hold an Indemnified Party harmless for any Losses,
then
each Indemnifying Party shall contribute to the amount paid or payable by such
Indemnified Party, in such proportion as is appropriate to reflect the relative
fault of the Indemnifying Party and Indemnified Party in connection with the
actions, statements or omissions that resulted in such Losses as well as any
other relevant equitable considerations. The relative fault of such Indemnifying
Party and Indemnified Party shall be determined by reference to, among other
things, whether any action in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission of a material
fact,
has been taken or made by, or relates to information supplied by, such
Indemnifying Party or Indemnified Party, and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such
action, statement or omission. The amount paid or payable by a party as a result
of any Losses shall be deemed to include, subject to the limitations set forth
in Section 5(c), any reasonable attorneys’ or other reasonable fees or expenses
incurred by such party in connection with any Proceeding to the extent such
party would have been indemnified for such fees or expenses if the
indemnification provided for in this Section was available to such party in
accordance with its terms.
10
The
parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 5(d) were determined by pro rata allocation or by
any
other method of allocation that does not take into account the equitable
considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 5(d), no Holder shall be required
to contribute, in the aggregate, any amount in excess of the amount by which
the
proceeds actually received by such Holder from the sale of the Registrable
Securities subject to the Proceeding exceeds the amount of any damages that
such
Holder has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission, except in the case of fraud
by
such Holder.
The
indemnity and contribution agreements contained in this Section are in addition
to any liability that the Indemnifying Parties may have to the Indemnified
Parties.
6. Miscellaneous
(a) Remedies.
In the
event of a breach by the Company or by a Holder, of any of their obligations
under this Agreement, each Holder or the Company, as the case may be, in
addition to being entitled to exercise all rights granted by law and under
this
Agreement, including recovery of damages, will be entitled to specific
performance of its rights under this Agreement. The Company and each Holder
agree that monetary damages would not provide adequate compensation for any
losses incurred by reason of a breach by it of any of the provisions of this
Agreement and hereby further agrees that, in the event of any action for
specific performance in respect of such breach, it shall waive the defense
that
a remedy at law would be adequate.
(b) Compliance.
Each
Holder covenants and agrees that it will comply with the prospectus delivery
requirements of the Securities Act as applicable to it in connection with sales
of Registrable Securities pursuant to the Registration Statement.
(c) Discontinued
Disposition.
Each
Holder agrees by its acquisition of such Registrable Securities that, upon
receipt of a notice from the Company of the occurrence of any event of the
kind
described in Section 3(b)(ii) through Section 3(c)(v), such Holder will
forthwith discontinue disposition of such Registrable Securities under the
Registration Statement until such Holder’s receipt of the copies of the
supplemented Prospectus and/or amended Registration Statement or until it is
advised in writing (the “Advice”)
by the
Company that the use of the applicable Prospectus may be resumed, and, in either
case, has received copies of any additional or supplemental filings that are
incorporated or deemed to be incorporated by reference in such Prospectus or
Registration Statement. The
Company agrees and acknowledges that any periods during which the Holder is
required to discontinue the disposition of the Registrable Securities hereunder
shall be subject to the provisions of Section 2(b). The
Company will use its best efforts to ensure that the use of the Prospectus
may
be resumed as promptly as it practicable.
11
(d) Piggy-Back
Registrations.
If at
any time during the Effectiveness Period there is not an effective Registration
Statement covering all of the Registrable Securities and the Company shall
determine to prepare and file with the Commission a registration statement
relating to an offering for its own account or the account of others under
the
Securities Act of any of its equity securities, other than on Form F-4 or Form
F-8 (each as promulgated under the Securities Act) or their then equivalents
relating to equity securities to be issued solely in connection with any
acquisition of any entity or business or equity securities issuable in
connection with the stock option or other employee benefit plans, then the
Company shall send to each Holder a written notice of such determination and,
if
within fifteen days after the date of such notice, any such Holder shall so
request in writing, the Company shall include in such registration statement
all
or any part of such Registrable Securities such Holder requests to be
registered; provided,
however,
that,
the Company shall not be required to register any Registrable Securities
pursuant to this Section 6(d) that are eligible for resale pursuant to Rule
144(k) promulgated under the Securities Act or that are the subject of a
then-effective Registration Statement.
(e) Amendments
and Waivers.
The
provisions of this Agreement, including the provisions of this sentence, may
not
be amended, modified or supplemented, and waivers or consents to departures
from
the provisions hereof may not be given, unless the same shall be in writing
and
signed by the Company and each Holder of the then outstanding Registrable
Securities. Notwithstanding the foregoing, a waiver or consent to depart from
the provisions hereof with respect to a matter that relates exclusively to
the
rights of Holders and that does not directly or indirectly affect the rights
of
other Holders may be given by Holders of all of the Registrable Securities
to
which such waiver or consent relates; provided,
however,
that
the provisions of this sentence may not be amended, modified, or supplemented
except in accordance with the provisions of the immediately preceding
sentence.
(f) Notices.
Any and
all notices or other communications or deliveries required or permitted to
be
provided hereunder shall be delivered as set forth in the Subscription
Agreement.
(g) Successors
and Assigns.
This
Agreement shall inure to the benefit of and be binding upon the successors
and
permitted assigns of each of the parties and shall inure to the benefit of
each
Holder. The Company may not assign its rights or obligations hereunder without
the prior written consent of all of the Holders of the then-outstanding
Registrable Securities. Each Holder may assign their respective rights hereunder
in the manner and to the Persons as permitted under the Subscription
Agreement.
12
(h) No
Inconsistent Agreements.
Neither
the Company nor any of its subsidiaries has entered, as of the date hereof,
nor
shall the Company or any of its subsidiaries, on or after the date of this
Agreement, enter into any agreement with respect to its securities, that would
have the effect of impairing the rights granted to the Holders in this
Agreement.
(i) Execution
and Counterparts.
This
Agreement may be executed in any number of counterparts, each of which when
so
executed shall be deemed to be an original and, all of which taken together
shall constitute one and the same Agreement. In the event that any signature
is
delivered by facsimile transmission, such signature shall create a valid binding
obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile signature
were the original thereof.
(j) Governing
Law.
All
questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be determined with the provisions of the Subscription
Agreement.
(k) Cumulative
Remedies.
The
remedies provided herein are cumulative and not exclusive of any remedies
provided by law.
(l) Severability.
If any
term, provision, covenant or restriction of this Agreement is held by a court
of
competent jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated, and the parties hereto shall use their commercially reasonable
efforts to find and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may
be
hereafter declared invalid, illegal, void or unenforceable.
(m) Headings.
The
headings in this Agreement are for convenience of reference only and shall
not
limit or otherwise affect the meaning hereof.
(n) Independent
Nature of Holders’ Obligations and Rights.
The
obligations of each Holder hereunder are several and not joint with the
obligations of any other Holder hereunder, and no Holder shall be responsible
in
any way for the performance of the obligations of any other Holder hereunder.
Nothing contained herein or in any other agreement or document delivered at
any
closing, and no action taken by any Holder pursuant hereto or thereto, shall
be
deemed to constitute the Holders as a partnership, an association, a joint
venture or any other kind of entity, or create a presumption that the Holders
are in any way acting in concert with respect to such obligations or the
transactions contemplated by this Agreement. Each Holder shall be entitled
to
protect and enforce its rights, including without limitation the rights arising
out of this Agreement, and it shall not be necessary for any other Holder to
be
joined as an additional party in any proceeding for such purpose.
13
IN
WITNESS WHEREOF, the parties have executed this Registration Rights Agreement
as
of the date first written above.
| |
|
|
| By: | ||
|
Name: Xxxxx Xxxx Xxxxx, M.D. |
||
|
Title:
President and Chief Executive
Officer
|
||
[SIGNATURE
PAGE OF HOLDERS FOLLOWS]
14
[SIGNATURE
PAGE OF HOLDERS TO GNT RRA]
Name
of
Holder: __________________________
Signature
of Authorized Signatory of Holder:
__________________________
Name
of
Authorized Signatory: _________________________
Title
of
Authorized Signatory: __________________________
[SIGNATURE
PAGES CONTINUE]
ANNEX
A
Plan
of Distribution
Each
selling security holder and any of their pledgees, assignees and
successors-in-interest may, from time to time, sell any or all of their ADSs
on
the Nasdaq Global Market System or any other stock exchange, market or trading
facility on which the ADSs are traded or in private transactions. These sales
may be at fixed or negotiated prices. A selling security holder may use any
one
or more of the following methods when selling ADSs:
· ordinary
brokerage transactions and transactions in which the broker-dealer solicits
purchasers;
· block
trades in which the broker-dealer will attempt to sell the shares as agent
but
may position and resell a portion of the block as principal to facilitate the
transaction;
· purchases
by a broker-dealer as principal and resale by the broker-dealer for its
account;
· an
exchange distribution in accordance with the rules of the applicable
exchange;
· public
or
privately negotiated transactions;
· settlement
of short sales entered into after the effective date of the registration
statement of which this prospectus is a part;
· on
the
Nasdaq National Market System (or through facilities of any national securities
exchange or US inter-dealer quotation system of a registered national securities
association on which the ADSs are then listed, admitted to unlisted trading
privileges or included for quotation);
· broker-dealers
may agree with the selling security holders to sell a specified number of such
shares at a stipulated price per share;
· through
underwriters, brokers or dealers (who may act as agents or principals) or
directly to one or more purchasers;
· through
the writing or settlement of options or other hedging transactions, whether
through an options exchange or otherwise;
· a
combination of any such methods of sale; or
· any
other
method permitted pursuant to applicable law.
The
selling security holders may also sell shares under Rule 144 under the
Securities Act of 1933, as amended, if available, rather than under this
prospectus.
Broker-dealers
engaged by the selling security holders may arrange for other brokers-dealers
to
participate in sales. Broker-dealers may receive commissions or discounts from
the selling security holders (or, if any broker-dealer acts as agent for the
purchaser of shares, from the purchaser) in amounts to be negotiated, but,
except as set forth in a supplement to this Prospectus, in the case of an agency
transaction not in excess of a customary brokerage commission in compliance
with
NASDR Rule 2440; and in the case of a principal transaction a markup or markdown
in compliance with NASDR IM-2440.
In
connection with the sale of the ADSs or interests therein, the selling security
holders may enter into hedging transactions with broker-dealers or other
financial institutions, which may in turn engage in short sales of the ADSs
in
the course of hedging the positions they assume. The selling security holders
may also sell shares of the ADSs short and deliver these securities to close
out
their short positions, or loan or pledge the ADSs to broker-dealers that in
turn
may sell these securities. The selling security holders may also enter into
option or other transactions with broker-dealers or other financial institutions
or the creation of one or more derivative securities which require the delivery
to such broker-dealer or other financial institution of shares offered by this
prospectus, which shares such broker-dealer or other financial institution
may
resell pursuant to this prospectus (as supplemented or amended to reflect such
transaction). The selling security holders may also pledge shares to a
broker-dealer or other financial institution which, upon default, they may
in
turn resell.
In
addition to the foregoing methods, the selling security holders may offer their
shares from time to time in transactions involving principals or brokers not
otherwise contemplated above, in a combination of such methods or described
above or any other lawful methods. The selling security holders may also
transfer, donate or assign their shares to lenders, family members and others
and each of such persons will be deemed to be a selling security holder for
purposes of this prospectus. The security holders or their successors in
interest may from time to time pledge or grant a security interest in some
or
all of the shares of common stock, and if the selling security holders default
in the performance of their secured obligations, the pledgees or secured parties
may offer and sell the shares of common stock from to time under this
prospectus; provided however in the event of a pledge or then default on a
secured obligation by the selling security holder, in order for the shares
to be
sold under this registration statement, unless permitted by law, we must
distribute a prospectus supplement and/or amendment to this registration
statement amending the list of selling security holders to include the pledgee,
secured party or other successors in interest of the security holder under
this
prospectus.
The
selling security holders may also sell their shares pursuant to Rule 144 under
the Securities Act, which permits limited resale of shares purchased in a
private placement subject to the satisfaction of certain conditions, including,
among other things, the availability of certain current public information
concerning the issuer, the resale occurring following the required holding
period under Rule 144 and the number of shares being sold during any three-month
period not exceeding certain limitations.
Sales
through brokers may be made by any method of trading authorized by any stock
exchange or market on which the shares may be listed or quoted, including block
trading in negotiated transactions. Without limiting the foregoing, such brokers
may act as dealers by purchasing any or all of the shares covered by this
prospectus, either as agents for others or as principals for their own accounts,
and reselling such shares pursuant to this prospectus. The selling security
holders may effect such transactions directly, or indirectly through
underwriters, broker-dealers or agents acting on their behalf. In effecting
sales, broker-dealers or agents engaged by the selling security holders may
arrange for other broker-dealers to participate. Broker-dealers or agents may
receive commissions, discounts or concessions from the selling security holders,
in amounts to be negotiated immediately prior to the sale (which compensation
as
to a particular broker-dealer might be in excess of customary commissions for
routine market transactions).
The
selling security holders and any broker-dealers or agents that are involved
in
selling the shares may be deemed to be “underwriters” within the meaning of the
Securities Act in connection with such sales. In such event, any profits
received by the selling security holders or such broker-dealers or agents and
any profit on the resale of the shares purchased by them may be deemed to be
underwriting commissions or discounts under the Securities Act.
We
are
required to pay certain fees and expenses incurred by us incident to the
registration of the shares. We have agreed to indemnify the selling security
holders against certain losses, claims, damages and liabilities, including
liabilities under the Securities Act.
We
agreed
to keep this prospectus effective until the earlier of (i) the date on which
the
shares may be resold by the selling security holders without registration and
without regard to any volume limitations by reason of Rule 144(e) under the
Securities Act or any other rule of similar effect or (ii) all of the shares
have been sold pursuant to the prospectus or Rule 144 under the Securities
Act
or any other rule of similar effect.
Under
applicable rules and regulations under the Exchange Act, any person engaged
in
the distribution of the resale shares may not simultaneously engage in market
making activities with respect to the ordinary shares or ADSs for the applicable
restricted period, as defined in Regulation M, prior to the commencement of
the
distribution. In addition, the selling security holders will be subject to
applicable provisions of the Exchange Act and the rules and regulations
thereunder, including Regulation M, which may limit the timing of purchases
and
sales of shares of the ordinary shares or ADSs by the selling security holders
or any other person. We will make copies of this prospectus available to the
selling security holders and have informed them of the need to deliver a copy
of
this prospectus to each purchaser at or prior to the time of the
sale.
Annex
B
Selling
Security Holder Notice and Questionnaire
The
undersigned beneficial owner of ADSs representing the ordinary shares, par
value
€1.00 per share (the “Ordinary
Shares”),
of
Gentium S.p.A., an Italian joint stock company (the “Company”),
(the
“Registrable
Securities”)
understands that the Company has filed or intends to file with the Securities
and Exchange Commission (the “Commission”)
a
registration statement on Form F-3 (the “Registration
Statement”)
for
the registration and resale under Rule 415 of the Securities Act of 1933, as
amended (the “Securities
Act”),
of
the Registrable Securities, in accordance with the terms of the Registration
Rights Agreement, dated as of February 9, 2007 (the “Registration
Rights Agreement”),
among
the Company and the Purchasers named therein. A copy of the Registration Rights
Agreement is available from the Company upon request at the address set forth
below. All capitalized terms not otherwise defined herein shall have the
meanings ascribed thereto in the Registration Rights Agreement.
Certain
legal consequences arise from being named as a selling security holder in the
Registration Statement and the related prospectus. Accordingly, holders and
beneficial owners of Registrable Securities are advised to consult their own
securities law counsel regarding the consequences of being named or not being
named as a selling security holder in the Registration Statement and the related
prospectus.
NOTICE
The
undersigned beneficial owner (the “Selling
Security Holder”)
of
Registrable Securities hereby elects to include the Registrable Securities
owned
by it and listed below in Item 3 (unless otherwise specified under such Item
3)
in the Registration Statement.
The
undersigned hereby provides the following information to the Company and
represents and warrants that such information is accurate:
QUESTIONNAIRE
1. Name.
|
(a)
|
Full
Legal Name of Selling Security Holder:
|
|
(b)
|
Full
Legal Name of Registered Holder (if not the same as (a) above) through
which Registrable Securities Listed in Item 3 below are
held:
|
|
(c)
|
Full
Legal Name of Natural Control Person (which means a natural person
who
directly or indirectly alone or with others has power to vote or
dispose
of the securities covered by the
questionnaire):
|
2.
Address for Notices to Selling Security Holder:
|
Telephone:
|
|
|
Fax:
|
|
|
Contact
Person:
|
3.
Beneficial Ownership of Registrable Securities:
|
(a)
|
Type
and Number of Registrable Securities beneficially
owned:
|
4.
Broker-Dealer Status:
|
(a)
|
Are
you a broker-dealer?
|
Yes
o No
o
|
(b)
|
If
“yes” to Section 4(a), did you receive your Registrable Securities as
compensation for investment banking services to the
Company.
|
Yes
o No
o
|
Note:
|
If
no, the Commission’s staff has indicated that you should be identified as
an underwriter in the Registration
Statement.
|
|
(c)
|
Are
you an affiliate of a
broker-dealer?
|
Yes
o No
o
|
(d)
|
If
you are an affiliate of a broker-dealer, do you certify that you
bought
the Registrable Securities in the ordinary course of business, and
at the
time of the purchase of the Registrable Securities to be resold,
you had
no agreements or understandings, directly or indirectly, with any
person
to distribute the Registrable
Securities?
|
Yes
o No
o
|
Note:
|
If
no, the Commission’s staff has indicated that you should be identified as
an underwriter in the Registration
Statement.
|
5.
Beneficial Ownership of Other Securities of the Company Owned by the Selling
Security Holder.
Except
as set forth below in this Item 5, the undersigned is not the beneficial or
registered owner of any securities of the Company other than the Registrable
Securities listed above in Item 3.
|
(a)
|
Type
and Amount of Other Securities beneficially owned by the Selling
Security
Holder:
|
6.
Relationships with the Company:
Except
as set forth below, neither the undersigned nor any of its affiliates, officers,
directors or principal equity holders (owners of 5% of more of the equity
securities of the undersigned) has held any position or office or has had any
other material relationship with the Company (or its predecessors or affiliates)
during the past three years.
State
any
exceptions here:
The
undersigned agrees to promptly notify the Company of any inaccuracies or changes
in the information provided herein that may occur subsequent to the date hereof
at any time while the Registration Statement remains effective.
By
signing below, the undersigned consents to the disclosure of the information
contained herein in its answers to Items 1 through 6 and the inclusion of such
information in the Registration Statement and the related prospectus
and
any
amendments or supplements thereto.
The
undersigned understands that such information will be relied upon by the Company
in connection with the preparation or amendment of the Registration Statement
and the related prospectus.
IN
WITNESS WHEREOF the undersigned, by authority duly given, has caused this Notice
and Questionnaire to be executed and delivered either in person or by its duly
authorized agent.
| Dated: ______________________ | Beneficial Owner: ______________________ | |
| |
|
|
| By: | ||
|
Name: |
||
| Title | ||
PLEASE
FAX A COPY OF THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE, AND RETURN
THE ORIGINAL BY OVERNIGHT MAIL, TO:
Xxxxx
X.
Xxxxxxx, Esq.
Xxxxxxx
Xxxxxx & Green, P.C.
000
Xxxx
Xxxxxx
Xxx
Xxxx,
XX 00000
Tel:
(000) 000-0000
Fax:
(000) 000-0000
E-mail:
xxxxxxxx@xxxxxx.xxx
