REGISTRATION RIGHTS AGREEMENT
This
Registration Rights Agreement (the “Agreement”)
is made
and entered into as of this 11th
day of
April, 2008 by and among Novelos Therapeutics, Inc., a
Delaware corporation (the “Company”),
the
“Investors”
named
in that certain Securities Purchase Agreement, dated March 26, 2008, as amended
on April 9, 2008, by and among the Company and the Investors (the “Securities
Purchase Agreement”),
and
the holders of the Series B Warrants (as defined below). Capitalized terms
not
otherwise defined herein shall have the meanings ascribed thereto in the
Securities Purchase Agreement.
WHEREAS,
the
Company has agreed to issue and sell to the Investors, and the Investors have
agreed to purchase from the Company, 113.5 shares of Preferred Stock and
warrants (the “Series D Warrants”) to purchase up to 4,365,381 shares of the
Company’s common stock, $.00001 par value per share (the “Common
Stock”),
upon
the terms and conditions set forth in the Securities Purchase Agreement;
WHEREAS,
the
holders of the Series B Warrants are parties to a Registration Rights Agreement
dated May 2, 2007 (the “Prior
Registration Agreement”);
WHEREAS,
the
holders of the Series B Warrants have agreed to amend the Series B Warrants,
amend the Prior Registration Statement and waive any and all liquidated damages
accruing from September 6, 2007 as a result of the Company’s failure to register
the Series B Warrants;
WHEREAS,
the
Company has agreed to register the shares of Common Stock issuable upon
conversion of the Preferred Stock and the shares of Common Stock issuable upon
exercise of the Series B Warrants and Series D Warrants in accordance with
the
terms of this Agreement;
The
parties hereby agree as follows:
1. Certain
Definitions.
As
used
in this Agreement, the following terms shall have the following
meanings:
“FINRA”
shall
mean the Financial Industry Regulatory Authority.
“Holders”
shall
mean the Investors
and the holders of the Series B Warrants and
any
Affiliate or permitted transferee thereof who is a subsequent holder of any
Registrable Securities.
“Investors”
shall
mean the Investors identified in the Securities Purchase Agreement.
“Preferred
Stock”
means
the Series D Convertible Preferred Stock, par value $0.00001 per share.
“Prospectus”
shall
mean the prospectus included in any Registration Statement, 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 such
Registration Statement and by all other amendments and supplements to the
prospectus, including post-effective amendments and all material incorporated
by
reference in such prospectus.
“Register,”
“registered”
and
“registration”
refer
to a registration made by preparing and filing a Registration Statement or
similar document in compliance with the 1933 Act, and the declaration or
ordering of effectiveness of such Registration Statement or
document.
“Registrable
Securities”
shall
mean the shares of Common Stock issuable (i) upon the conversion of the
Preferred Stock (excluding 12,000,000 shares of Common Stock issuable upon
conversion of the Preferred Stock which are registered pursuant to the Prior
Registration Statement), (ii) upon the exercise of the Series D Warrants and
(iii) upon the exercise of the Series B Warrants; provided,
that,
a
security shall cease to be a Registrable Security upon a sale pursuant to a
Registration Statement.
“Registration
Statement”
shall
mean any registration statement of the Company filed under the 1933 Act that
covers the resale of any of the Registrable Securities pursuant to the
provisions of this Agreement, amendments and supplements to such Registration
Statement, including post-effective amendments, and all exhibits and all
material incorporated by reference in such Registration Statement.
“Series
B Warrants”
shall
mean the warrants to purchase up to 7,500,000 shares of Common Stock dated
May
2, 2007, as amended, issued pursuant to that certain Securities Purchase
Agreement dated as of April 12, 2007, as amended on May 2, 2007.
2. Amendment
of Prior Registration Rights Agreement.
The
holders of the Series B Warrants by their execution of this Agreement hereby
agree and acknowledge that the Prior Registration Agreement has been amended
to,
among other things, remove the Series B Warrants from the definition of
Registrable Securities and as result of such amendment this Agreement supersedes
and replaces, in its entirety, the Prior Registration Agreement with respect
to
the registration of the Series B Warrants and that holders of the Series B
Warrants shall have no further rights under the Prior Registration Agreement
with respect to the registration of the Series B Warrants.
3. Registration.
(a) Registration
Statement.
Promptly following the six month anniversary of the Closing Date of the purchase
and sale of the Preferred Stock and Series D Warrants contemplated by the
Securities Purchase Agreement, but in no event after five (5) business days
after the six month anniversary of the Closing Date (the “Filing
Deadline”),
the
Company shall prepare and file with the SEC one Registration Statement on Form
S-1 covering the resale of all of the Registrable Securities without regard
to
any limitation on exercise of the Series D Warrants and Series B Warrants.
Such
Registration Statement shall include the plan of distribution attached hereto
as
Exhibit
A.
Such
Registration Statement also shall cover, to the extent allowable under the
1933
Act and the rules promulgated thereunder (including Rule 416), such
indeterminate number of additional shares of Common Stock resulting from stock
splits, stock dividends or similar transactions with respect to the Registrable
Securities. The Registration Statement (and each amendment or supplement
thereto, and each request for acceleration of effectiveness thereof) shall
be
provided in accordance with Section
4(c)
to the
Holders and their respective counsel prior to its filing or other submission.
If
a Registration Statement covering the Registrable Securities is not filed with
the SEC on or prior to the Filing Deadline, the Company will make pro rata
payments to each Holder, as liquidated damages and not as a penalty, in an
amount equal to 1.5% of the aggregate amount invested by such Holder for each
30-day period or pro rata for any portion thereof following the date by which
such Registration Statement should have been filed for which no Registration
Statement is filed with respect to the Registrable Securities. Such payments
shall be in partial compensation to the Holders, and shall not constitute the
Holders’ exclusive remedy for such events. Such payments shall be made to each
Holder in cash. The amounts payable as liquidated damages pursuant to this
paragraph shall be payable in lawful money of the United States, and amounts
payable as liquidated damages shall be paid within two (2) Business Days of
the
last day of each such 30-day period during which the Registration Statement
should have been filed for which no Registration Statement was filed with
respect to the Registrable Securities.
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(b) Expenses.
The
Company will pay all expenses associated with each registration, including
filing and printing fees, counsel and accounting fees and expenses, costs
associated with clearing the Registrable Securities for sale under applicable
state securities laws and listing fees, but excluding the fees and disbursements
of more than one law firm serving as counsel to the Holders, and discounts,
commissions, fees of underwriters, selling brokers, dealer managers or similar
securities industry professionals with respect to the Registrable Securities
being sold.
(c) Effectiveness.
(i) The
Company shall use its best efforts to have the Registration Statement declared
effective not later than the earlier to occur of (x) the 60th day immediately
following the Filing Deadline, (y) five (5) Business Days following the
Company’s receipt of a no-review letter from the SEC relating to the
Registration Statement, or (z) the 90th day following the Filing Deadline if
the
Company’s receives a review from the SEC relating to the Registration Statement;
provided,
however,
if the
Registration Statement is not declared effective within the time period set
forth above, the Company shall continue to use its best efforts to have the
Registration Statement declared effective as soon as possible thereafter.
(ii) For
not
more than fifteen (15) consecutive days or for a total of not more than thirty
(30) days in any twelve (12) month period, the Company may delay the disclosure
of material non-public information concerning the Company, by terminating or
suspending effectiveness of any registration contemplated by this Section
3,
if the
disclosure of such material non-public information at the time is not, in the
good faith opinion of the Company, in the best interests of the Company (an
“Allowed
Delay”);
provided,
that
the Company shall promptly (a) notify the Holders in writing of the existence
of
(but in no event, without the prior written consent of a Holder, shall the
Company disclose to such Holder any of the facts or circumstances regarding)
material non-public information giving rise to an Allowed Delay, and (b) advise
the Holders in writing to cease all sales under the Registration Statement
until
the end of the Allowed Delay.
(d) Underwritten
Offering.
If any
offering pursuant to a Registration Statement filed pursuant to Section
3(a)
hereof
involves an underwritten offering, the Company shall have the right to select
an
investment banker and manager to administer the offering, subject to the
reasonable satisfaction of the Requisite Holders.
4. Company
Obligations.
The
Company will use its best efforts to effect the registration of the Registrable
Securities in accordance with the terms hereof, and pursuant thereto the Company
will, as expeditiously as possible:
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(a) use
its
best efforts to cause such Registration Statement to become effective and to
remain continuously effective for a period that will terminate upon the earlier
of (i) the date on which all Registrable Securities covered by such Registration
Statement, as amended from time to time, have been sold and (ii) two years
from
the Closing Date;
(b) prepare
and file with the SEC such amendments and post-effective amendments to the
Registration Statement and the Prospectus as may be necessary to keep the
Registration Statement effective for the period specified in Section 4(a) and
to
comply with the provisions of the 1933 Act and the 1934 Act with respect to
the
distribution of all Registrable Securities;
(c) provide
copies to and permit counsel to the Investors to review each Registration
Statement and all amendments thereto no fewer than three (3) days prior to
their
filing with the SEC and not file any document to which such counsel reasonably
objects within three (3) days following receipt by such counsel of such
Registration Statement and/or amendments thereto;
(d) furnish
to the Holders and their legal counsel (i) promptly after the same is prepared
and publicly distributed, filed with the SEC, or received by the Company (but
not later than two (2) Business Days after the filing date, receipt date or
sending date, as the case may be), an electronic copy of any Registration
Statement and any amendment thereto, each preliminary prospectus and Prospectus
and each amendment or supplement thereto, and each letter written by or on
behalf of the Company to the SEC or the staff of the SEC, and each item of
correspondence from the SEC or the staff of the SEC, in each case relating
to
such Registration Statement (other than any portion thereof which contains
information for which the Company has sought confidential treatment), and (ii)
such number of copies of a Prospectus, including a preliminary prospectus,
and
all amendments and supplements thereto and such other documents as each Holder
may reasonably request in order to facilitate the disposition of the Registrable
Securities owned by such Holder, which in any event, shall not exceed ten (10)
Prospectuses;
(e) in
the
event the Company selects an underwriter for the offering, the Company shall
enter into and perform its reasonable obligations under an underwriting
agreement, in usual and customary form, including, without limitation, customary
indemnification and contribution obligations, with the underwriter of such
offering;
(f) if
required by the underwriter, the Company shall furnish, on the effective date
of
the Registration Statement (i) an opinion, dated as of such date, from
independent legal counsel representing the Company for purposes of such
Registration Statement, in form, scope and substance as is customarily given
in
an underwritten public offering, addressed to the underwriter and (ii) a letter,
dated such date, from the Company’s independent certified public accountants in
form and substance as is customarily given by independent certified public
accountants to underwriters in an underwritten public offering, addressed to
the
underwriter and the Holders;
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(g) use
its
reasonable best efforts to prevent the issuance of any stop order or other
suspension of effectiveness and, if such order is issued, obtain the withdrawal
of any such order at the earliest possible moment;
(h) prior
to
any public offering of Registrable Securities, use its reasonable best efforts
to register or qualify or cooperate with the Holders and their counsel in
connection with the registration or qualification of such Registrable Securities
for offer and sale under the securities or blue sky laws of such jurisdictions
reasonably requested by the Holders and do any and all other reasonable acts
or
things necessary or advisable to enable the distribution in such jurisdictions
of the Registrable Securities covered by the Registration
Statement;
(i) cause
all
Registrable Securities covered by a Registration Statement to be listed or
traded on each securities exchange, interdealer quotation system or other market
on which similar securities issued by the Company are then listed or
traded;
(j) immediately
notify the Holders, at any time when a Prospectus relating to the Registrable
Securities is required to be delivered under the 1933 Act, upon discovery that,
or upon the happening of any event as a result of which, the Prospectus included
in such Registration Statement, as then in effect, includes an untrue statement
of a material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not misleading in light
of
the circumstances then existing, and at the request of any such Holder, promptly
prepare and furnish to such Holder a reasonable number of copies of a supplement
to or an amendment of such Prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such Registrable Securities, such Prospectus
shall not include 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 not misleading in light of the circumstances then existing;
and
(k) otherwise
use its best efforts to comply with all applicable rules and regulations of
the
SEC under the 1933 Act and the 1934 Act and take such other actions as may
be
reasonably necessary to facilitate the registration of the Registrable
Securities hereunder; and make available to its security holders, as soon as
reasonably practicable, but not later than the Availability Date (as defined
below), an earnings statement covering a period of at least twelve (12) months,
beginning after the effective date of each Registration Statement, which
earnings statement shall satisfy the provisions of Section 11(a) of the 1933
Act
(for the purpose of this subsection
3(k),
“Availability
Date”
means
the 45th day following the end of the fourth fiscal quarter that includes the
effective date of such Registration Statement, except that, if such fourth
fiscal quarter is the last quarter of the Company’s fiscal year, “Availability
Date”
means
the 90th day after the end of such fourth fiscal quarter).
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5. Due
Diligence Review; Information.
Upon
receipt of an appropriate confidentiality agreement, the Company shall make
available, during normal business hours, for inspection and review by the
Holders, advisors to and representatives of the Holders (who may or may not
be
affiliated with the Holders), and any underwriter participating in any
disposition of Common Stock on behalf of the Holders pursuant to a Registration
Statement or amendments or supplements thereto or any blue sky, FINRA or other
filing, all financial and other records, all filings with the SEC, and all
other
corporate documents and properties of the Company as may be reasonably necessary
for the purpose of such review, and cause the Company’s officers, directors and
employees, within a reasonable time period, to supply all such information
reasonably requested by the Holders or any such representative, advisor or
underwriter in connection with such Registration Statement (including, without
limitation, in response to all questions and other inquiries reasonably made
or
submitted by any of them), prior to and from time to time after the filing
and
effectiveness of the Registration Statement for the sole purpose of enabling
the
Holders and such representatives, advisors and underwriters and their respective
accountants and attorneys to conduct initial and ongoing due diligence with
respect to the Company and the accuracy of such Registration
Statement.
Notwithstanding
the foregoing, the Company shall not disclose material nonpublic information
to
the Holders, or to advisors to or representatives of the Holders, unless prior
to disclosure of such information the Company identifies such information as
being material nonpublic information and provides the Holders, such advisors
and
representatives with the opportunity to accept or refuse to accept such material
nonpublic information for review.
6. Obligations
of the Holders.
(a) Each
Holder agrees to furnish to the Company a completed Questionnaire in the form
attached to this Agreement as Exhibit
B
(a
“Selling
Shareholder Questionnaire”)
not
prior to 120 days after the Closing Date and not more than 150 days after the
Closing Date. A Holder who fails to furnish a Selling Stockholder Questionnaire
within 150 days after the Closing Date may have its Registrable Securities
excluded from the Registration Statement, provided that the Company has provided
such Holder with notice at least 20 days prior (but no more than 60 days prior)
to the expiration of such 150 day period.
(b) Each
Holder, by its acceptance of the Registrable Securities, agrees to cooperate
with the Company as reasonably requested by the Company in connection with
the
preparation and filing of a Registration Statement hereunder, unless such Holder
has notified the Company in writing of its election to exclude all of its
Registrable Securities from such Registration Statement.
(c) In
the
event the Company, at the request of the Holders, determines to engage the
services of an underwriter, each such Holder agrees to enter into and perform
its obligations under an underwriting agreement, in usual and customary form,
including, without limitation, customary indemnification and contribution
obligations, with the managing underwriter of such offering and take such other
actions as are reasonably required in order to expedite or facilitate the
dispositions of the Registrable Securities.
(d) Each
Holder agrees that, upon receipt of any notice from the Company of the happening
of any event rendering a Registration Statement no longer effective, such Holder
will immediately discontinue disposition of Registrable Securities pursuant
to
the Registration Statement covering such Registrable Securities, until the
Holder’s receipt of copies of the supplemented or amended Prospectus filed with
the SEC and declared effective and, if so directed by the Company, the Holder
shall deliver to the Company (at the expense of the Company) or destroy (and
deliver to the Company a certificate of destruction) all copies in the Holder’s
possession of the Prospectus covering the Registrable Securities current at
the
time of receipt of such notice.
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(e) No
Holder
may participate in any third party underwritten registration hereunder unless
it
(i) agrees to sell the Registrable Securities on the basis provided in any
underwriting arrangements in usual and customary form entered into by the
Company, (ii) completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents reasonably required
under the terms of such underwriting arrangements, and (iii) agrees to pay
its
pro rata share of all underwriting discounts and commissions. Notwithstanding
the foregoing, no Holder shall be required to make any representations to such
underwriter, other than those with respect to itself and the Registrable
Securities owned by it, including its right to sell the Registrable Securities,
and any indemnification in favor of the underwriter by the Holders shall be
several and not joint and limited in the case of any Holder, to the net proceeds
received by such Holder from the sale of its Registrable Securities. The scope
of any such indemnification in favor of an underwriter shall be limited to
the
same extent as the indemnity provided in Section
7(b)
hereof.
7. Indemnification.
(a) Indemnification
by the Company.
The
Company will indemnify and hold harmless each Holder and any controlling person
(as defined in Section 15 of the 0000 Xxx) and their respective officers,
directors, members, employees and agents, successors and assigns (the
“Indemnified Persons”), against any losses, claims, damages or liabilities,
joint or several, to which such Indemnified Person may become subject under
the
1933 Act or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon: (i) any untrue
statement or alleged untrue statement of any material fact contained in any
Registration Statement, any preliminary prospectus or final prospectus contained
therein, or any amendment or supplement thereof; (ii) any blue sky application
or other document executed by the Company specifically for blue sky compliance
or based upon written information furnished by the Company filed in any state
or
other jurisdiction in order to qualify any or all of the Registrable Securities
under the securities laws thereof (any such application, document or information
herein called a “Blue
Sky Application”);
(iii)
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;
(iv)
any violation by the Company, or its directors, officers, employees or agents
of
any rule or regulation promulgated under the 1933 Act applicable to the Company
or its directors, officers, employees or agents and relating to action or
inaction required of the Company or any of them in connection with such
registration; or (v) any failure to register or qualify the Registrable
Securities included in any such Registration Statement in any state where the
Company or its agents has affirmatively undertaken or agreed in writing that
the
Company will undertake such registration or qualification on a Holder’s behalf
(the undertaking of any underwriter chosen by the Company being attributed
to
the Company) and will reimburse such Holder, and each such officer, director
or
member and each such controlling person for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided,
however,
that
the Company will not be liable in any such case if and to the extent that any
such loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made
in
conformity with information furnished in writing by such Holder or any such
controlling person specifically for use in such Registration Statement or
Prospectus.
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(b) Indemnification
by the Holders.
In
connection with any Registration Statement pursuant to the terms of this
Agreement, each Holder will furnish to the Company in writing such information
as the Company reasonably requests concerning such Holder or the proposed manner
of such Holder’s distribution for use in connection with any Registration
Statement or Prospectus and agrees, severally but not jointly, to indemnify
and
hold harmless, to the fullest extent permitted by law, the Company, its
Subsidiaries and its and their respective directors, officers, employees,
shareholders and each person who controls the Company (within the meaning of
the
0000 Xxx) against any losses, claims, damages, liabilities and expenses
(including reasonable attorney fees) resulting from any untrue statement of
a
material fact or any omission of a material fact required to be stated in the
Registration Statement or Prospectus or preliminary prospectus or amendment
or
supplement thereto or necessary to make the statements therein not misleading,
to the extent, but only to the extent that such untrue statement or omission
is
contained in any information furnished in writing by such Holder to the Company
specifically for inclusion in such Registration Statement or Prospectus or
amendment or supplement thereto. In no event shall the liability of a Holder
be
greater in amount than the aggregate dollar amount of the proceeds (net of
all
expenses paid by such Holder and the amount of any damages such Holder has
otherwise been required to pay by reason of such untrue statement or omission)
received by such Holder upon the sale of the Registrable Securities included
in
the Registration Statement giving rise to such indemnification
obligation.
(c) Conduct
of Indemnification Proceedings.
Any
person entitled to indemnification hereunder shall (i) give prompt notice to
the
indemnifying party of any claim with respect to which it seeks indemnification
and (ii) permit such indemnifying party to assume the defense of such claim
with
counsel reasonably satisfactory to the indemnified party; provided
that any
person entitled to indemnification hereunder shall have the right to employ
separate counsel and to participate in the defense of such claim, but the fees
and expenses of such counsel shall be at the expense of such person unless
(a)
the indemnifying party has agreed to pay such fees or expenses, or (b) the
indemnifying party shall have failed to assume the defense of such claim and
employ counsel reasonably satisfactory to such person or (c) in the reasonable
judgment of any such person, based upon advice of its counsel, a conflict of
interest exists between such person and the indemnifying party with respect
to
such claims (in which case, if the person notifies the indemnifying party in
writing that such person elects to employ separate counsel at the expense of
the
indemnifying party, the indemnifying party shall not have the right to assume
the defense of such claim on behalf of such person); and provided,
further,
that
the failure of any indemnified party to give notice as provided herein shall
not
relieve the indemnifying party of its obligations hereunder, except to the
extent that such failure to give notice shall materially adversely affect the
indemnifying party in the defense of any such claim or litigation. It is
understood that the indemnifying party shall not, in connection with any
proceeding in the same jurisdiction, be liable for fees or expenses of more
than
one separate firm of attorneys at any time for all such indemnified parties.
No
indemnifying party will, except with the consent of the indemnified party,
consent to entry of any judgment or enter into any settlement that does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to such indemnified party of a release from all liability in respect of such
claim or litigation.
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(d) Contribution.
If for
any reason the indemnification provided for in the preceding paragraphs (a)
and
(b) is unavailable to an indemnified party or insufficient to hold it completely
harmless, other than as expressly specified therein, then the indemnifying
party
shall contribute to the amount paid or payable by the indemnified party as
a
result of such loss, claim, damage or liability in such proportion as is
appropriate to reflect the relative fault of the indemnified party and the
indemnifying party, as well as any other relevant equitable considerations.
No
person guilty of fraudulent misrepresentation within the meaning of Section
11(f) of the 1933 Act shall be entitled to contribution from any person not
guilty of such fraudulent misrepresentation. In no event shall the contribution
obligation of a Holder be greater in amount than the aggregate dollar amount
of
the proceeds (net of all expenses paid by such holder and the amount of any
damages such Holder has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission) received by it
upon
the sale of the Registrable Securities giving rise to such contribution
obligation.
8. Miscellaneous.
(a) Amendments
and Waivers.
This
Agreement shall not be amended except by a writing signed by (i) the Company
and
(ii) the Requisite Holders. The Company may take any action herein prohibited,
or omit to perform any act herein required to be performed by it, only if the
Company shall have obtained the written consent to such amendment, action or
omission to act, of the Requisite Holders.
(b) Notices.
All
notices and other communications provided for or permitted hereunder shall
be
made as set forth in Section
11.4
of the
Securities Purchase Agreement.
(c) Assignments
and Transfers by Holders.
The
provisions of this Agreement shall be binding upon and inure to the benefit
of
the Holders and their respective successors and assigns. A Holder may transfer
or assign, in whole or from time to time in part, to one or more persons its
rights hereunder in connection with the transfer of Registrable Securities
by
such Holder to such person, provided,
that,
such
Holder complies with all applicable laws thereto and provides written notice
of
assignment to the Company promptly after such assignment is
effected.
(d) Assignments
and Transfers by the Company.
This
Agreement shall not be assigned by the Company without the prior written consent
of each Holder, except that without the prior written consent of the Holders,
but after notice duly given, the Company shall assign its rights and delegate
its duties hereunder to any successor-in-interest corporation, and such
successor-in-interest shall assume such rights and duties, in the event of
a
merger or consolidation of the Company with or into another corporation or
the
sale of all or substantially all of the Company’s assets.
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(e) Benefits
of the Agreement.
The
terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective permitted successors and assigns of the parties.
Nothing in this Agreement, express or implied, is intended to confer upon any
party other than the parties hereto or their respective successors and assigns
any rights, remedies, obligations, or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement.
(f) Counterparts;
Faxes.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument. This Agreement may also be executed via facsimile, which shall
be
deemed an original.
(g) Titles
and Subtitles.
The
titles and subtitles used in this Agreement are used for convenience only and
are not to be considered in construing or interpreting this
Agreement.
(h) Severability.
Any
provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof but shall be interpreted as if it were written so as to be
enforceable to the maximum extent permitted by applicable law, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. To the extent
permitted by applicable law, the parties hereby waive any provision of law
which
renders any provisions hereof prohibited or unenforceable in any
respect.
(i) Further
Assurances.
The
parties shall execute and deliver all such further instruments and documents
and
take all such other actions as may reasonably be required to carry out the
transactions contemplated hereby and to evidence the fulfillment of the
agreements herein contained.
(j) Entire
Agreement.
This
Agreement is intended by the parties as a final expression of their agreement
and intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
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(k) Governing
Law; Consent to Jurisdiction.
This
Agreement shall be governed by, and construed in accordance with, the internal
laws of the State of New York without regard to the choice of law principles
thereof. Each of the parties hereto irrevocably submits to the exclusive
jurisdiction of the courts of the State of New York located in New York County
and the United States District Court for the Southern District of New York
for
the purpose of any suit, action, proceeding or judgment relating to or arising
out of this Agreement and the transactions contemplated hereby. Service of
process in connection with any such suit, action or proceeding may be served
on
each party hereto anywhere in the world by the same methods as are specified
for
the giving of notices under this Agreement. Each of the parties hereto
irrevocably consents to the jurisdiction of any such court in any such suit,
action or proceeding and to the laying of venue in such court. Each party hereto
irrevocably waives any objection to the laying of venue of any such suit, action
or proceeding brought in such courts and irrevocably waives any claim that
any
such suit, action or proceeding brought in any such court has been brought
in an
inconvenient forum. THE
COMPANY AND EACH OF THE HOLDERS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT
TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING RELATING TO OR ARISING OUT OF THIS
AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY.
[Signature
Pages Follow]
-11-
Company
Signature Page to Registration Rights Agreement
IN
WITNESS WHEREOF, the Company has executed this Agreement or caused its duly
authorized officer to execute this Agreement as of the date first above
written.
|
By:
|
/s/
Xxxxx. X. Xxxxxx
|
|
|
Name:
Xxxxx X. Xxxxxx
|
||
|
Title: President
and CEO
|
||
-12-
Holder
Signature Page to Registration Rights Agreement
IN
WITNESS WHEREOF, the undersigned has executed this Registration Rights Agreement
or caused its duly authorized officers to execute this Registration Rights
Agreement as of the date first above written.
|
Xmark
Opportunity Fund, Ltd.
|
||
|
Name
of entity
|
||
|
By:
|
Xmark
Opportunity Manager, LLC,
|
|
|
its
Investment Manager
|
||
|
By:
|
Xmark
Opportunity Partners, LLC,
|
|
|
its
Sole Member
|
||
|
By:
|
Xmark
Capital Partners, LLC,
|
|
|
its
Managing Member
|
||
|
By:
|
/s/
Xxxxxxxx X. Xxxx
|
|
|
Name:
Xxxxxxxx X. Xxxx
|
||
|
Title:
Chief Executive Officer
|
||
|
Cayman
Islands
|
||
|
Jurisdiction
of organization of entity
|
||
|
Address:
|
||
|
00
Xxxxx Xxxxxx
Xxxxxxxxxx,
XX 00000
|
||
-13-
Holder
Signature Page to Registration Rights Agreement
IN
WITNESS WHEREOF, the undersigned has executed this Registration Rights Agreement
or caused its duly authorized officers to execute this Registration Rights
Agreement as of the date first above written.
|
Xmark
Opportunity Fund, L.P.
|
||
|
Name
of entity
|
||
|
By:
|
Xmark
Opportunity GP, LLC
|
|
|
its
General Partner
|
||
|
By:
|
Xmark
Opportunity Partners, LLC,
|
|
|
its
Sole Member
|
||
|
By:
|
Xmark
Capital Partners, LLC,
|
|
|
its
Managing Member
|
||
|
By:
|
/s/
Xxxxxxxx X. Xxxx
|
|
|
Name:
Xxxxxxxx X. Xxxx
|
||
|
Title:
Chief Executive Officer
|
||
|
Delaware
|
||
|
Jurisdiction
of organization of entity
|
||
|
Address:
|
||
|
00
Xxxxx Xxxxxx
Xxxxxxxxxx,
XX 00000
|
||
-14-
Holder
Signature Page to Registration Rights Agreement
IN
WITNESS WHEREOF, the undersigned has executed this Registration Rights Agreement
or caused its duly authorized officers to execute this Registration Rights
Agreement as of the date first above written.
|
Xmark
JV Investment Partners, LLC
|
||
|
Name
of entity
|
||
|
By:
|
Xmark
Opportunity Partners, LLC
|
|
|
its
Investment Manager
|
||
|
By:
|
Xmark
Capital Partners, LLC,
|
|
|
its
Managing Member
|
||
|
By:
|
/s/
Xxxxxxxx X. Xxxx
|
|
|
Name:
Xxxxxxxx X. Xxxx
|
||
|
Title:
Chief Executive Officer
|
||
|
Delaware
|
||
|
Jurisdiction
of organization of entity
|
||
|
Address:
|
||
|
00
Xxxxx Xxxxxx
Xxxxxxxxxx,
XX 00000
|
||
-15-
Holder
Signature Page to Registration Rights Agreement
IN
WITNESS WHEREOF, the undersigned has executed this Registration Rights Agreement
or caused its duly authorized officers to execute this Registration Rights
Agreement as of the date first above written.
|
Caduceus
Capital Master Fund Limited
|
||
|
Name
of entity
|
||
|
By:
|
/s/
Xxxxxx X. Xxxxx
|
|
|
Name:
Xxxxxx X. Xxxxx
|
||
|
Title:
Managing Partner, OrbiMed Advisors LLC
|
||
|
Print
jurisdiction of organization of entity: Bermuda
|
||
|
Address:
c/o
OrbiMed Advisors LLC
000
Xxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, XX 00000
|
||
-16-
Holder
Signature Page to Registration Rights Agreement
IN
WITNESS WHEREOF, the undersigned has executed this Registration Rights Agreement
or caused its duly authorized officers to execute this Registration Rights
Agreement of the date first above written.
|
Caduceus
Capital II, L.P.
|
||
|
Name
of entity
|
||
|
By:
|
/s/
Xxxxxx X. Xxxxx
|
|
|
Name:
Xxxxxx X. Xxxxx
|
||
|
Title:
Managing Partner, OrbiMed Advisors LLC
|
||
|
Print
jurisdiction of organization of entity: Delaware
|
||
|
Address:
c/o
OrbiMed Advisors LLC
000
Xxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, XX 00000
|
||
-17-
Holder
Signature Page to Registration Rights Agreement
IN
WITNESS WHEREOF, the undersigned has executed this Registration Rights Agreement
or caused its duly authorized officers to execute this Registration Rights
Agreement as of the date first above written.
|
Summer
Street Life Sciences Hedge Fund Investors LLC
|
|||
|
Name
of entity
|
|||
|
By:
|
/s/
Xxxxxx X. Xxxxx
|
||
|
Name:
Xxxxxx X. Xxxxx
|
|||
|
Title:
Managing Partner, OrbiMed Advisors LLC
|
|||
|
Print
jurisdiction of organization of entity: Delaware
|
|||
|
Address:
c/o
OrbiMed Advisors LLC
000
Xxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, XX 00000
|
|||
-18-
Holder
Signature Page to Registration Rights Agreement
IN
WITNESS WHEREOF, the undersigned has executed this Registration Rights Agreement
or caused its duly authorized officers to execute this Registration Rights
Agreement as of the date first above written
|
UBS
Eucalyptus Fund, L.L.C.
|
||
|
Name
of entity
|
||
|
By:
|
/s/
Xxxxxx X. Xxxxx
|
|
|
Name:
Xxxxxx X. Xxxxx
|
||
|
Title:
Managing Partner, OrbiMed Advisors LLC
|
||
|
Print
jurisdiction of organization of entity: Delaware
|
||
|
Address:
c/o
OrbiMed Advisors LLC
000
Xxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, XX 00000
|
||
-19-
Holder
Signature Page to Registration Rights Agreement
IN
WITNESS WHEREOF, the undersigned has executed this Registration Rights Agreement
or caused its duly authorized officers to execute this Registration Rights
Agreement as of the date first above written.
|
PW
Eucalyptus Fund, Ltd.
|
||
|
Name
of entity
|
||
|
By:
|
/s/
Xxxxxx X. Xxxxx
|
|
|
Name:
Xxxxxx X. Xxxxx
|
||
|
Title:
Managing Partner, OrbiMed Advisors LLC
|
||
|
Print
jurisdiction of organization of entity: Cayman Islands
|
||
|
Address:
c/o
OrbiMed Advisors LLC
000
Xxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, XX 00000
|
||
-20-
Holder
Signature Page to Registration Rights Agreement
IN
WITNESS WHEREOF, the undersigned has executed this Registration Rights Agreement
or caused its duly authorized officers to execute this Registration Rights
Agreement as of the date first above written.
|
Xxxxx
Capital Fund II Master Fund Ltd.
|
||
|
Name
of entity
|
||
|
By:
|
/s/
Xxxx Xxxxx
|
|
|
Name: Xxxx
Xxxxx
|
||
|
Title: KOM
Capital Management
|
||
|
Investment
Manager
|
||
|
Print
jurisdiction of organization of entity:
|
||
|
Address:
c/o
KOM Capital Management
000
Xxxxx Xxxxxx, Xxxxx 0000,
Xxx
Xxxx, XX 00000
|
||
-21-
Holder
Signature Page to Registration Rights Agreement
IN
WITNESS WHEREOF, the undersigned has executed this Registration Rights Agreement
or caused its duly authorized officers to execute this Registration Rights
Agreement as of the date first above written.
|
Europa
International, Inc.
|
||
|
Name
of entity
|
||
|
By:
|
/s/
Xxxx Xxxxx
|
|
|
Name: Xxxx
Xxxxx
|
||
|
Title: Xxxxx
Capital Management
|
||
|
Investment
Manager for
Europa
International, Inc.
|
||
|
Print
jurisdiction of organization of entity
|
||
|
Address:
c/o
Knoll Capital Management
000
Xxxxx Xxxxxx, Xxxxx 0000,
Xxx
Xxxx, XX 00000
|
||
-22-
Holder
Signature Page to Registration Rights Agreement
IN
WITNESS WHEREOF, the undersigned has executed this Registration Rights Agreement
or caused its duly authorized officers to execute this Registration Rights
Agreement as of the date first above written.
|
Xxxx
BioVenures, L.P.
|
||
|
Name
of entity
|
||
|
By:
HBV GP, L.L.C., its General Partner
|
||
|
By:
|
/s/
X. Xxxxxx Xxxxxx, III
|
|
|
Name:
X. Xxxxxx Xxxxxx, III, Manager
|
||
|
Jurisdiction
of organization of entity: Delaware
|
||
|
Address:
Xxxx
Investments
0000
X. Xxxxx
Xxxxxx,
XX 00000
Attn:
Xxxxxxx X. Xxxxxxx, X. Xxxxxx Xxxxxx, III and Xxxxxxxx X. Xxxxxx
|
||
-23-
Exhibit
A
Plan
of Distribution
The
selling stockholders, which as used herein includes donees, pledgees,
transferees or other successors-in-interest selling shares of common stock
or
interests in shares of common stock received after the date of this prospectus
from a selling stockholder as a gift, pledge, partnership distribution or other
transfer, may, from time to time, sell, transfer or otherwise dispose of any
or
all of their shares of common stock or interests in shares of common stock
on
any stock exchange, market or trading facility on which the shares are traded
or
in private transactions. These dispositions may be at fixed prices, at
prevailing market prices at the time of sale, at prices related to the
prevailing market price, at varying prices determined at the time of sale,
or at
negotiated prices.
The
selling stockholders may use any one or more of the following methods when
disposing of shares or interests therein:
-
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;
-
privately negotiated transactions;
-
short
sales;
-
through
the writing or settlement of options or other hedging transactions, whether
through an options exchange or otherwise;
-
broker-dealers may agree with the selling stockholders to sell a specified
number of such shares at a stipulated price per share;
-
a
combination of any such methods of sale; and
-
any
other method permitted pursuant to applicable law.
The
selling stockholders may, from time to time, pledge or grant a security interest
in some or all of the shares of common stock owned by them and, if they default
in the performance of their secured obligations, the pledgees or secured parties
may offer and sell the shares of common stock, from time to time, under this
prospectus, or under an amendment to this prospectus under Rule 424(b)(3) or
other applicable provision of the Securities Act amending the list of selling
stockholders to include the pledgee, transferee or other successors in interest
as selling stockholders under this prospectus. The selling stockholders also
may
transfer the shares of common stock in other circumstances, in which case the
transferees, pledgees or other successors in interest will be the selling
beneficial owners for purposes of this prospectus.
-24-
In
connection with the sale of our common stock or interests therein, the selling
stockholders may enter into hedging transactions with broker-dealers or other
financial institutions, which may in turn engage in short sales of the common
stock in the course of hedging the positions they assume. The selling
stockholders may also sell shares of our common stock short and deliver these
securities to close out their short positions, or loan or pledge the common
stock to broker-dealers that in turn may sell these securities. The selling
stockholders 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
aggregate proceeds to the selling stockholders from the sale of the common
stock
offered by them will be the purchase price of the common stock less discounts
or
commissions, if any. Each of the selling stockholders reserves the right to
accept and, together with their agents from time to time, to reject, in whole
or
in part, any proposed purchase of common stock to be made directly or through
agents. We will not receive any of the proceeds from this offering. Upon any
exercise of the warrants by payment of cash, however, we will receive the
exercise price of the warrants.
The
selling stockholders also may resell all or a portion of the shares in open
market transactions in reliance upon Rule 144 under the Securities Act of 1933,
provided that they meet the criteria and conform to the requirements of that
rule.
The
selling stockholders and any underwriters, broker-dealers or agents that
participate in the sale of the common stock or interests therein may be
"underwriters" within the meaning of Section 2(11) of the Securities Act. Any
discounts, commissions, concessions or profit they earn on any resale of the
shares may be underwriting discounts and commissions under the Securities Act.
Selling stockholders who are "underwriters" within the meaning of Section 2(11)
of the Securities Act will be subject to the prospectus delivery requirements
of
the Securities Act.
To
the
extent required, the shares of our common stock to be sold, the names of the
selling stockholders, the respective purchase prices and public offering prices,
the names of any agents, dealer or underwriter, any applicable commissions
or
discounts with respect to a particular offer will be set forth in an
accompanying prospectus supplement or, if appropriate, a post-effective
amendment to the registration statement that includes this
prospectus.
In
order
to comply with the securities laws of some states, if applicable, the common
stock may be sold in these jurisdictions only through registered or licensed
brokers or dealers. In addition, in some states the common stock may not be
sold
unless it has been registered or qualified for sale or an exemption from
registration or qualification requirements is available and is complied
with.
-25-
We
have
advised the selling stockholders that the anti-manipulation rules of Regulation
M under the Exchange Act may apply to sales of shares in the market and to
the
activities of the selling stockholders and their affiliates. In addition, we
will make copies of this prospectus (as it may be supplemented or amended from
time to time) available to the selling stockholders for the purpose of
satisfying the prospectus delivery requirements of the Securities Act. The
selling stockholders may indemnify any broker-dealer that participates in
transactions involving the sale of the shares against certain liabilities,
including liabilities arising under the Securities Act.
We
have
agreed to indemnify the selling stockholders against liabilities, including
liabilities under the Securities Act and state securities laws, relating to
the
registration of the shares offered by this prospectus.
We
have
agreed with the selling stockholders to keep the registration statement of
which
this prospectus constitutes a part effective until the earlier of (1) such
time
as all of the shares covered by this prospectus have been disposed of pursuant
to and in accordance with the registration statement or (2) two years from
the
Closing Date.
-26-
Exhibit
B
Selling
Stockholder Questionnaire
|
To:
|
|
|
c/o
Foley Xxxx LLP
|
|
|
000
Xxxxxxx Xxxxxxxxx
|
|
|
Xxxxxx,
XX 00000
|
|
|
Attention:
Xxxxxx Xxxxxxx, Esq.
|
|
|
Facsimile:
(000) 000-0000
|
Reference
is made to the Registration Rights Agreement (the “Agreement”), made between
Novelos Therapeutics, Inc., a Delaware corporation (the “Company”), and the
Holders noted therein.
Pursuant
to Section 6(a) of the Agreement, the undersigned hereby furnishes to the
Company the following information for use by the Company in connection with
the
preparation of the Registration Statement.
| (1) |
Name
and Contact Information:
|
|
Full
legal name of record holder:
|
|
|
Address
of record holder:
|
|
|
Social
Security Number or Taxpayer
identification number of record holder: |
|
|
Identity
of beneficial owner (if
different
than record holder):
|
|
|
Name
of contact person:
|
|
|
Telephone
number of contact person:
|
|
|
Fax
number of contact person:
|
|
|
E-mail
address of contact person:
|
-27-
|
(2)
|
Beneficial
Ownership of Registrable Securities:
|
|
(a)
|
Number
of Registrable Securities owned by Selling
Stockholder:
|
|
(b)
|
Number
of Registrable Securities requested to be
registered:
|
|
(3)
|
Beneficial
Ownership of Other Securities of the Company Owned by the Selling
Stockholder:
|
Except
as
set forth below in this Item (3), the undersigned is not the beneficial or
registered owner of any securities of the Company other than the Registrable
Securities listed above in Item (2)(a).
Type
and
amount of other securities beneficially owned by the Selling
Stockholder:
| (4) |
Relationships
with the Company:
|
Except
as
set forth below, neither the undersigned nor any of its affiliates, officers,
directors or principal equity holders (5% or more) 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:
| (5) |
Plan
of Distribution:
|
Except
as
set forth below, the undersigned intends to distribute pursuant to the
Registration Statement the Registrable Securities listed above in Item (2)
in
accordance with the “Plan of Distribution” section set forth
therein:
State
any
exceptions here:
-28-
|
(6)
|
Selling
Stockholder Affiliations:
|
(a) Is
the
Selling Stockholder a registered broker-dealer?
(b) Is
the
Selling Stockholder an affiliate of a registered broker-dealer(s)? (For purposes
of this response, an “affiliate” of, or person “affiliated” with, a specified
person, is a person that directly, or indirectly through one or more
intermediaries, controls or is controlled by, or is under common control with,
the person specified.)
(c) If
the
answer to Item (6)(b) is yes, identify the registered broker-dealer(s) and
describe the nature of the affiliation(s):
(d) If
the
answer to Item (6)(b) is yes, did the Selling Stockholder acquire the
Registrable Securities in the ordinary course of business (if not, please
explain)?
(e) If
the
answer to Item (6)(b) is yes, did the Selling Stockholder, at the time of
purchase of the Registrable Securities, have any agreements, plans or
understandings, directly or indirectly, with any person to distribute the
Registrable Securities (if yes, please explain)?
| (7) |
Voting
or Investment Control over the Registrable
Securities:
|
If
the
Selling Stockholder is not a natural person, please identify the natural person
or persons who have voting or investment control over the Registrable Securities
listed in Item (2) above:
-29-
Pursuant
to Section 3(c) of the Agreement, the undersigned acknowledges that the Company
may, by notice to the Holder at its last known address, suspend or withdraw
the
Registration Statement and require that the undersigned immediately cease sales
of Registrable Securities pursuant to the Registration Statement under certain
circumstances described in the Agreement. At any time that such notice has
been
given, the undersigned may not sell Registrable Securities pursuant to the
Registration Statement.
The
undersigned hereby agrees to sell such shares only pursuant to and in the manner
contemplated by the Registration Statement, including the Plan of Distribution
section contained therein (in substantially the form attached hereto as Exhibit
A), or pursuant to an exemption from the registration requirements under the
Securities Act. The undersigned hereby further acknowledges that pursuant to
Section 7(b) of the Agreement, the undersigned shall indemnify the Company
and
each of its directors and officers against, and hold the Company and each of
its
directors and officers harmless from, any losses, claims, damages, expenses
or
liabilities (including reasonable attorneys fees) to which the Company or its
directors and officers may become subject by reason of any statement or omission
in the Registration Statement made in reliance upon, or in conformity with,
a
written statement by the undersigned, including the information furnished in
this Questionnaire by the undersigned.
By
signing below, the undersigned consents to the disclosure of the information
contained herein in its answers to Items (1) through (7) above and the inclusion
of such information in the Registration Statement, any amendments thereto and
the related prospectus. 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.
The
undersigned has reviewed the answers to the above questions and affirms that
the
same are true, complete and accurate. THE UNDERSIGNED AGREES TO NOTIFY THE
COMPANY IMMEDIATELY OF ANY MATERIAL CHANGES IN THE FOREGOING
INFORMATION.
|
Dated:
|
,
2008
|
|
|
Signature
of Record Holder
(Please
sign your name in exactly the same manner as the certificate(s) for the shares
being registered)
-30-
