Contract
Exhibit
4.1
REGISTRATION RIGHTS AGREEMENT
(this "Agreement"),
dated as of July 6, 2010, by and between BIONOVO, INC., a Delaware
corporation, (the "Company"), and ASPIRE CAPITAL FUND, LLC,
an Illinois limited liability company
(together with it permitted assigns, the “Buyer”). Capitalized
terms used herein and not otherwise defined herein shall have the respective
meanings set forth in the Common Stock Purchase Agreement by and between the
parties hereto, dated as of the date hereof (as amended, restated, supplemented
or otherwise modified from time to time, the "Purchase
Agreement").
WHEREAS:
A. The
Company has agreed, upon the terms and subject to the conditions of the Purchase
Agreement, to issue to the Buyer (i) up to Fifteen Million Dollars ($15,000,000)
of the Company's common stock, par value $.0001 per share (the "Common Stock") (the "Purchase Shares"), and (ii)
such number of shares of Common Stock as is required pursuant to
Section 4(e) of the Purchase Agreement (the "Commitment Shares");
and
B. To
induce the Buyer to enter into the Purchase Agreement, the Company has agreed to
provide certain registration rights under the Securities Act of 1933, as
amended, and the rules and regulations there under, or any similar successor
statute (collectively, the "1933 Act"), and applicable
state securities laws.
NOW, THEREFORE, in
consideration of the promises and the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Company and the Buyer hereby agree as
follows:
1. DEFINITIONS.
As used
in this Agreement, the following terms shall have the following
meanings:
a. "Investor" means the Buyer, any
transferee or assignee thereof to whom a Buyer assigns its rights under this
Agreement and who agrees to become bound by the provisions of this Agreement in
accordance with Section 9 and any transferee or assignee thereof to whom a
transferee or assignee assigns its rights under this Agreement and who agrees to
become bound by the provisions of this Agreement in accordance with Section
9.
b. "Person" means any person or
entity including any corporation, a limited liability company, an association, a
partnership, an organization, a business, an individual, a governmental or
political subdivision thereof or a governmental agency.
c. "Register," "registered," and "registration" refer to a
registration effected by preparing and filing one or more registration
statements of the Company in compliance with the 1933 Act and pursuant to Rule
415 under the 1933 Act or any successor rule providing for offering securities
on a continuous basis ("Rule
415"), and the declaration or ordering of effectiveness of such
registration statement(s) by the United States Securities and Exchange
Commission (the "SEC").
d. "Registrable Securities" means
(i) any Purchase Shares which have been, or which may from time to time be,
issued or issuable to the Investor upon purchases of the Available Amount under
the Purchase Agreement (without regard to any limitation or restriction on
purchases), (ii) 1,395,349 Commitment Shares issued or issuable to the Investor
under the Purchase Agreement and (iii) any shares of capital stock issued or
issuable with respect to the Purchase Shares or the Commitment Shares as a
result of any stock split, stock dividend, recapitalization, exchange or similar
event or otherwise, without regard to any limitation on purchases under the
Purchase Agreement.
e. "Registration Statement" means
the registration statement of the Company covering the sale of the Registrable
Securities.
2. REGISTRATION.
a. Mandatory
Registration. The Company shall within twenty (20) Business
Days from the date hereof file with the SEC the Registration
Statement. The Registration Statement shall register 20,000,000
Purchase Shares and the 1,395,349 Commitment Shares. The Investor and
its counsel shall have a reasonable opportunity to review and comment upon such
Registration Statement or amendment to such Registration Statement and any
related prospectus prior to its filing with the SEC. Investor shall
furnish all information reasonably requested by the Company for inclusion
therein. The Company shall use its reasonable best efforts to have
the Registration Statement or amendment declared effective by the SEC at the
earliest possible date. The Company shall use reasonable best efforts
to keep the Registration Statement effective pursuant to Rule 415 promulgated
under the 1933 Act and available for sales of all of the Registrable Securities
at all times until the earlier of (i) the date as of which the Investor may sell
all of the Registrable Securities required to be covered by such Registration
Statement without restriction pursuant to Rule 144 promulgated under the 1933
Act (or successor thereto) or (ii) the date on which (A) the Investor shall have
sold all the Registrable Securities covered by such Registration Statement (the
"Registration
Period"). The Registration Statement (including any amendments
or supplements thereto and prospectuses contained therein), when filed and at
the time it becomes effective, shall not contain any 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 in which
they were made, not misleading.
b. Rule 424
Prospectus. The Company shall, if and when required by
applicable U.S. federal securities laws or regulations, from time to time file
with the SEC, pursuant to Rule 424 promulgated under the 1933 Act, the
prospectus and prospectus supplements, if any, to be used in connection with
sales of the Registrable Securities under the Registration
Statement. The Investor and its counsel shall have a reasonable
opportunity to review and comment upon such prospectus prior to its filing with
the SEC. The Investor shall use its reasonable best efforts to comment upon such
prospectus within one (1) Business Day from the date the Investor receives a
draft of such prospectus.
c. Sufficient Number of Shares
Registered. The Company may reduce the number of Purchase
Shares to be included in the Registration Statement . In the event of any
reduction in Registrable Securities pursuant to this paragraph, the Company
shall file one or more additional Registration Statements (each such
Registration Statement, a “New
Registration Statement”) until such time as all Registrable Securities
have been included in registration statements that have been declared effective
under the 1933 Act. If the necessity for a New Registration Statement shall
arise during the term of this Agreement, the Company shall use its reasonable
best efforts to file such New Registration Statement with the SEC promptly after
the later of
(i) the 60th
calendar day following the sale of substantially all of the Registrable
Securities included in the Registration Statement or the most recent prior New
Registration Statement, as applicable, and (ii) six months following the
effective date of the Registration Statement or the most recent prior New
Registration Statement, as applicable, or such earlier date as permitted by the
SEC. The Company shall use its reasonable best efforts to cause any such New
Registration Statement to become effective as soon as practicable following the
filing thereof and to remain effective for the Registration
Period.
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3. RELATED
OBLIGATIONS.
With
respect to the Registration Statement and any New Registration Statement, the
Company shall use its reasonable best efforts to effect the registration of the
Registrable Securities in accordance with the intended method of disposition
thereof and, pursuant thereto, the Company shall have the following
obligations:
a. The
Company shall prepare and file with the SEC such amendments (including
post-effective amendments) and supplements to any registration statement and the
prospectus used in connection with such registration statement, which prospectus
is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may be
necessary to keep the Registration Statement or any New Registration Statement
effective at all times during the Registration Period, and, during such period,
comply with the provisions of the 1933 Act with respect to the disposition of
all Registrable Securities of the Company covered by the Registration Statement
or any New Registration Statement, as applicable, until such time as all of such
Registrable Securities shall have been disposed of in accordance with the
intended methods of disposition by the seller or sellers thereof as set forth in
such registration statement.
b. The
Company shall permit the Investor to review and comment upon the Registration
Statement or any New Registration Statement and all amendments and supplements
thereto at least two (2) Business Days prior to their filing with the SEC, and
not file any document in a form to which Investor reasonably
objects. The Investor shall use its reasonable best efforts to
comment upon the Registration Statement or any New Registration Statement and
any amendments or supplements thereto within two (2) Business Days from the date
the Investor receives a draft thereof. The Company shall
furnish to the Investor, without charge any correspondence from the SEC or the
staff of the SEC to the Company or its representatives relating to the
Registration Statement or any New Registration Statement.
c. Upon
request of the Investor, the Company shall furnish to the Investor, (i) promptly
after the same is prepared and filed with the SEC, at least one copy of such
registration statement and any amendment(s) thereto, including financial
statements and schedules, all documents incorporated therein by reference and
all exhibits, (ii) upon the effectiveness of any registration statement, a copy
of the prospectus included in such registration statement and all amendments and
supplements thereto (or such other number of copies as the Investor may
reasonably request) and (iii) such other documents, including copies of any
preliminary or final prospectus, as the Investor may reasonably request from
time to time in order to facilitate the disposition of the Registrable
Securities owned by the Investor.
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d. The
Company shall use reasonable best efforts to (i) register and qualify, unless an
exemption from registration and qualification applies, the Registrable
Securities covered by a registration statement under such other securities or
"blue sky" laws of such jurisdictions in the United States as the Investor
reasonably requests, (ii) prepare and file in those jurisdictions, such
amendments (including post-effective amendments) and supplements to such
registrations and qualifications as may be necessary to maintain the
effectiveness thereof during the Registration Period, (iii) take such other
actions as may be necessary to maintain such registrations and qualifications in
effect at all times during the Registration Period, and (iv) take all other
actions reasonably necessary or advisable to qualify the Registrable Securities
for sale in such jurisdictions; provided, however, that the Company shall not be
required in connection therewith or as a condition thereto to (x) qualify to do
business in any jurisdiction where it would not otherwise be required to qualify
but for this Section 3(d), (y) subject itself to general taxation in any such
jurisdiction, or (z) file a general consent to service of process in any such
jurisdiction. The Company shall promptly notify the Investor who
holds Registrable Securities of the receipt by the Company of any notification
with respect to the suspension of the registration or qualification of any of
the Registrable Securities for sale under the securities or "blue sky" laws of
any jurisdiction in the United States or its receipt of actual notice of the
initiation or threatening of any proceeding for such purpose.
e. As
promptly as practicable after becoming aware of such event or facts, the Company
shall notify the Investor in writing of the happening of any event or existence
of such facts as a result of which the prospectus included in any registration
statement, as then in effect, includes an untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading, and promptly prepare a supplement or amendment to such
registration statement to correct such untrue statement or omission, and deliver
a copy of such supplement or amendment to the Investor (or such other number of
copies as the Investor may reasonably request). The Company shall
also promptly notify the Investor in writing (i) when a prospectus or any
prospectus supplement or post-effective amendment has been filed, and when a
registration statement or any post-effective amendment has become effective
(notification of such effectiveness shall be delivered to the Investor by
facsimile or email on the same day of such effectiveness), (ii) of any request
by the SEC for amendments or supplements to any registration statement or
related prospectus or related information, and (iii) of the Company's reasonable
determination that a post-effective amendment to a registration statement would
be appropriate.
f.
The Company shall use its reasonable best efforts to prevent the issuance of any
stop order or other suspension of effectiveness of any registration statement,
or the suspension of the qualification of any Registrable Securities for sale in
any jurisdiction and, if such an order or suspension is issued, to obtain the
withdrawal of such order or suspension at the earliest practicable time and to
notify the Investor of the issuance of such order and the resolution thereof or
its receipt of actual notice of the initiation or threat of any proceeding for
such purpose.
g. The
Company shall (i) cause all the Registrable Securities to be listed on each
securities exchange on which securities of the same class or series issued by
the Company are then listed, if any, if the listing of such Registrable
Securities is then permitted under the rules of such exchange, or (ii) secure
designation and quotation of all the Registrable Securities on the Principal
Market. The Company shall pay all fees and expenses in connection with
satisfying its obligation under this Section.
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h. The
Company shall cooperate with the Investor to facilitate the timely preparation
and delivery of certificates (not bearing any restrictive legend) representing
the Registrable Securities to be offered pursuant to any registration statement
and enable such certificates to be in such denominations or amounts as the
Investor may reasonably request and registered in such names as the Investor may
request.
i.
The Company shall at all times provide a transfer agent and registrar with
respect to its Common Stock.
j.
If reasonably requested by the Investor, the Company shall (i) promptly
incorporate in a prospectus supplement or post-effective amendment such
information as the Investor reasonably believes should 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 sold, the purchase price being paid therefor and any other
terms of the offering of the Registrable Securities; (ii) make all required
filings of such prospectus supplement or post-effective amendment as soon as
notified of the matters to be incorporated in such prospectus supplement or
post-effective amendment; and (iii) supplement or make amendments to any
registration statement.
k. The
Company shall use its reasonable best efforts to cause the Registrable
Securities covered by any registration statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary
to consummate the disposition of such Registrable Securities.
l.
Within one (1) Business Day after any registration statement which includes the
Registrable Securities is ordered effective by the SEC, the Company shall
deliver, and shall cause legal counsel for the Company to deliver, to the
transfer agent for such Registrable Securities (with copies to the Investor)
confirmation that such registration statement has been declared effective by the
SEC in the form attached hereto as Exhibit
A. Thereafter, if requested by the Buyer at any time, the
Company shall deliver to the Buyer a written confirmation whether or not the
effectiveness of such registration statement has lapsed at any time for any
reason (including, without limitation, the issuance of a stop order) and whether
or not the registration statement is current and available to the Buyer for sale
of all of the Registrable Securities.
m. The
Company shall take all other reasonable actions necessary to expedite and
facilitate disposition by the Investor of Registrable Securities pursuant to any
registration statement.
4. OBLIGATIONS OF THE
INVESTOR.
a. The
Company shall notify the Investor in writing of the information the Company
reasonably requires from the Investor in connection with any registration
statement hereunder. The Investor shall furnish to the Company such
information regarding itself, the Registrable Securities held by it and the
intended method of disposition of the Registrable Securities held by it as shall
be reasonably required to effect the registration of such Registrable Securities
and shall execute such documents in connection with such registration as the
Company may reasonably request.
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b. The
Investor agrees to cooperate with the Company as reasonably requested by the
Company in connection with the preparation and filing of any registration
statement hereunder.
c. The
Investor agrees that, upon receipt of any notice from the Company of the
happening of any event or existence of facts of the kind described in Section
3(f) or the first sentence of 3(e), the Investor will immediately discontinue
disposition of Registrable Securities pursuant to any registration statement(s)
covering such Registrable Securities until the Investor's receipt of the copies
of the supplemented or amended prospectus contemplated by Section 3(f) or the
first sentence of 3(e). Notwithstanding anything to the contrary, the Company
shall cause its transfer agent to promptly deliver shares of Common Stock
without any restrictive legend in accordance with the terms of the Purchase
Agreement in connection with any sale of Registrable Securities with respect to
which an Investor has entered into a contract for sale prior to the Investor's
receipt of a notice from the Company of the happening of any event of the kind
described in Section 3(f) or the first sentence of 3(e) and for which the
Investor has not yet settled.
5. EXPENSES OF
REGISTRATION.
All
reasonable expenses, other than sales or brokerage commissions, incurred in
connection with registrations, filings or qualifications pursuant to Sections 2
and 3, including, without limitation, all registration, listing and
qualifications fees, printers and accounting fees, and fees and disbursements of
counsel for the Company, shall be paid by the Company.
6. INDEMNIFICATION.
a. In
the event any Registrable Securities are included in any Registration Statement
under this Agreement, to the fullest extent permitted by law, the Company will,
and hereby does, indemnify, hold harmless and defend the Investor, each Person,
if any, who controls the Investor, the members, the directors, officers,
partners, employees, agents, representatives of the Investor and each Person, if
any, who controls the Investor within the meaning of the 1933 Act or the
Securities Exchange Act of 1934, as amended (the "1934 Act") (each, an "Indemnified Person"), against
any losses, claims, damages, liabilities, judgments, fines, penalties, charges,
costs, attorneys' fees, amounts paid in settlement or expenses, joint or
several, (collectively, "Claims") incurred in
investigating, preparing or defending any action, claim, suit, inquiry,
proceeding, investigation or appeal taken from the foregoing by or before any
court or governmental, administrative or other regulatory agency, body or the
SEC, whether pending or threatened, whether or not an indemnified party is or
may be a party thereto ("Indemnified Damages"), to
which any of them may become subject insofar as such Claims (or actions or
proceedings, whether commenced or threatened, in respect thereof) arise out of
or are based upon: (i) any untrue statement or alleged untrue statement of a
material fact in the Registration Statement, any New Registration Statement or
any post-effective amendment thereto or in any filing made in connection with
the qualification of the offering under the securities or other "blue sky" laws
of any jurisdiction in which Registrable Securities are offered ("Blue Sky Filing"), or the
omission or alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, (ii) any
untrue statement or alleged untrue statement of a material fact contained in the
final prospectus (as amended or supplemented, if the Company files any amendment
thereof or supplement thereto with the SEC) or the omission or alleged omission
to state therein any material fact necessary to make the statements made
therein, in light of the circumstances under which the statements therein were
made, not misleading, (iii) any violation or alleged violation by the Company of
the 1933 Act, the 1934 Act, any other law, including, without limitation, any
state securities law, or any rule or regulation thereunder relating to the offer
or sale of the Registrable Securities pursuant to the Registration Statement or
any New Registration Statement or (iv) any material violation by the
Company of this Agreement (the matters in the foregoing clauses (i) through (iv)
being, collectively, "Violations"). The
Company shall reimburse each Indemnified Person promptly as such expenses are
incurred and are due and payable, for any reasonable legal fees or other
reasonable expenses incurred by them in connection with investigating or
defending any such Claim. Notwithstanding anything to the contrary
contained herein, the indemnification agreement contained in this Section 6(a):
(i) shall not apply to a Claim by an Indemnified Person arising out of or based
upon a Violation which occurs in reliance upon and in conformity with
information furnished in writing to the Company by such Indemnified Person
expressly for use in connection with the preparation of the Registration
Statement, any New Registration Statement or any such amendment thereof or
supplement thereto, if such prospectus was timely made available by the Company
pursuant to Section 3(c) or Section 3(e); (ii) with respect to any superseded
prospectus, shall not inure to the benefit of any such person from whom the
person asserting any such Claim purchased the Registrable Securities that are
the subject thereof (or to the benefit of any person controlling such person) if
the untrue statement or omission of material fact contained in the superseded
prospectus was corrected in the revised prospectus, as then amended or
supplemented, if such revised prospectus was timely made available by the
Company pursuant to Section 3(c) or Section 3(e), and the Indemnified Person was
promptly advised in writing not to use the incorrect prospectus prior to the use
giving rise to a violation and such Indemnified Person, notwithstanding such
advice, used it; (iii) shall not be available to the extent such Claim is based
on a failure of the Investor to deliver or to cause to be delivered the
prospectus made available by the Company, if such prospectus was timely made
available by the Company pursuant to Section 3(c) or Section 3(e); and (iv)
shall not apply to amounts paid in settlement of any Claim if such settlement is
effected without the prior written consent of the Company, which consent shall
not be unreasonably withheld. Such indemnity shall remain in full
force and effect regardless of any investigation made by or on behalf of the
Indemnified Person and shall survive the transfer of the Registrable Securities
by the Investor pursuant to Section 9.
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b. In
connection with the Registration Statement or any New Registration Statement,
the Investor agrees to severally and not jointly indemnify, hold harmless and
defend, to the same extent and in the same manner as is set forth in Section
6(a), the Company, each of its directors, each of its officers who signs the
Registration Statement or any New Registration Statement, each Person, if any,
who controls the Company within the meaning of the 1933 Act or the 1934 Act
(collectively and together with an Indemnified Person, an "Indemnified Party"), against
any Claim or Indemnified Damages to which any of them may become subject, under
the 1933 Act, the 1934 Act or otherwise, insofar as such Claim or Indemnified
Damages arise out of or are based upon any Violation, in each case to the
extent, and only to the extent, that such Violation occurs in reliance upon and
in conformity with written information about the Investor set forth on Exhibit B attached
hereto and furnished to the Company by the Investor expressly for use in
connection with such registration statement; and, subject to Section 6(d), the
Investor will reimburse any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such Claim; provided, however,
that the indemnity agreement contained in this Section 6(b) and the agreement
with respect to contribution contained in Section 7 shall not apply to amounts
paid in settlement of any Claim if such settlement is effected without the prior
written consent of the Investor, which consent shall not be unreasonably
withheld; provided, further, however, that the Investor shall be liable under
this Section 6(b) for only that amount of a Claim or Indemnified Damages as does
not exceed the net proceeds to the Investor as a result of the sale of
Registrable Securities pursuant to such registration statement. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of such Indemnified Party and shall survive the transfer of
the Registrable Securities by the Investor pursuant to Section
9.
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c. Promptly
after receipt by an Indemnified Person or Indemnified Party under this Section 6
of notice of the commencement of any action or proceeding (including any
governmental action or proceeding) involving a Claim, such Indemnified Person or
Indemnified Party shall, if a Claim in respect thereof is to be made against any
indemnifying party under this Section 6, deliver to the indemnifying party a
written notice of the commencement thereof, and the indemnifying party shall
have the right to participate in, and, to the extent the indemnifying party so
desires, jointly with any other indemnifying party similarly noticed, to assume
control of the defense thereof with counsel mutually satisfactory to the
indemnifying party and the Indemnified Person or the Indemnified Party, as the
case may be; provided, however, that an Indemnified Person or Indemnified Party
shall have the right to retain its own counsel with the fees and expenses to be
paid by the indemnifying party, if, in the reasonable opinion of counsel
retained by the indemnifying party, the representation by such counsel of the
Indemnified Person or Indemnified Party and the indemnifying party would be
inappropriate due to actual or potential differing interests between such
Indemnified Person or Indemnified Party and any other party represented by such
counsel in such proceeding. The Indemnified Party or Indemnified Person shall
cooperate fully with the indemnifying party in connection with any negotiation
or defense of any such action or claim by the indemnifying party and shall
furnish to the indemnifying party all information reasonably available to the
Indemnified Party or Indemnified Person which relates to such action or
claim. The indemnifying party shall keep the Indemnified Party or
Indemnified Person fully apprised at all times as to the status of the defense
or any settlement negotiations with respect thereto. No indemnifying
party shall be liable for any settlement of any action, claim or proceeding
effected without its written consent, provided, however, that the indemnifying
party shall not unreasonably withhold, delay or condition its
consent. No indemnifying party shall, without the consent of the
Indemnified Party or Indemnified Person, consent to entry of any judgment or
enter into any settlement or other compromise which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party or Indemnified Person of a release from all liability in
respect to such claim or litigation. Following indemnification as
provided for hereunder, the indemnifying party shall be subrogated to all rights
of the Indemnified Party or Indemnified Person with respect to all third
parties, firms or corporations relating to the matter for which indemnification
has been made. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action shall not relieve such indemnifying party of any liability to the
Indemnified Person or Indemnified Party under this Section 6, except to the
extent that the indemnifying party is prejudiced in its ability to defend such
action.
d. No
Person involved in the sale of Registrable Securities who is guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 0000
Xxx) in connection with such sale shall be entitled to indemnification from any
Person involved in such sale of Registrable Securities who is not guilty of
fraudulent misrepresentation.
e. The
indemnification required by this Section 6 shall be made by periodic payments of
the amount thereof during the course of the investigation or defense, as and
when bills are received or Indemnified Damages are incurred.
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f.
The indemnity agreements contained herein shall be in addition to (i) any cause
of action or similar right of the Indemnified Party or Indemnified Person
against the indemnifying party or others, and (ii) any liabilities the
indemnifying party may be subject to pursuant to the law.
7. CONTRIBUTION.
To the
extent any indemnification by an indemnifying party is prohibited or limited by
law, the indemnifying party agrees to make the maximum contribution with respect
to any amounts for which it would otherwise be liable under Section 6 to the
fullest extent permitted by law; provided, however, that: (i) no contribution
shall be made under circumstances where the maker would not have been liable for
indemnification under the fault standards set forth in Section 6 of this
Agreement, (ii) no seller of Registrable Securities guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) shall be
entitled to contribution from any seller of Registrable Securities who was not
guilty of fraudulent misrepresentation; and (iii) contribution by any seller of
Registrable Securities shall be limited in amount to the net amount of proceeds
received by such seller from the sale of such Registrable
Securities.
8. REPORTS AND DISCLOSURE UNDER
THE SECURITIES ACTS.
With a
view to making available to the Investor the benefits of Rule 144 promulgated
under the 1933 Act or any other similar rule or regulation of the SEC that may
at any time permit the Investor to sell securities of the Company to the public
without registration ("Rule
144"), the Company agrees, at the Company’s sole expense,
to:
a. make
and keep public information available, as those terms are understood and defined
in Rule 144;
b. file
with the SEC in a timely manner all reports and other documents required of the
Company under the 1933 Act and the 1934 Act so long as the Company remains
subject to such requirements and the filing of such reports and other documents
is required for the applicable provisions of Rule 144;
c. furnish
to the Investor so long as the Investor owns Registrable Securities, promptly
upon request, (i) a written statement by the Company, if true, that it has
complied with the reporting and or disclosure provisions of Rule 144, the 1933
Act and the 1934 Act, (ii) a copy of the most recent annual or quarterly report
of the Company and such other reports and documents if such reports or documents
are not publicly available via XXXXX and (iii) such other information as may be
reasonably requested to permit the Investor to sell such securities pursuant to
Rule 144 without registration; and
d. take
such additional action as is reasonably requested by the Investor to enable the
Investor to sell the Registrable Securities pursuant to Rule 144, including,
without limitation, delivering all such legal opinions, consents, certificates,
resolutions and instructions to the Company’s Transfer Agent as may be
reasonably requested from time to time by the Investor and otherwise fully
cooperate with Investor and Investor’s broker to effect such sale of securities
pursuant to Rule 144.
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The Company agrees that damages may be
an inadequate remedy for any breach of the terms and provisions of this Section
8 and that Investor shall, whether or not it is pursuing any remedies at law, be
entitled to equitable relief in the form of a preliminary or permanent
injunctions, without having to post any bond or other security, upon any breach
or threatened breach of any such terms or provisions.
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9.
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ASSIGNMENT OF
REGISTRATION RIGHTS.
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The
Company shall not assign this Agreement or any rights or obligations hereunder
without the prior written consent of the Investor. The Investor may
not assign its rights under this Agreement without the written consent of the
Company, other than to an affiliate of the Investor controlled by Xxxxxx X.
Xxxxxx; provided: (i) the Investor agrees in writing with such transferee or
assignee (as the case may be) to assign all or any portion of such rights, and a
copy of such agreement is furnished to the Company within a reasonable time
after such transfer or assignment (as the case may be); (ii) the Company is,
within a reasonable time after such transfer or assignment (as the case may be),
furnished with written notice of (a) the name and address of such transferee or
assignee (as the case may be), and (b) the securities with respect to which such
registration rights are being transferred or assigned (as the case may be);
(iii) immediately following such transfer or assignment (as the case may be) the
further disposition of such securities by such transferee or assignee (as the
case may be) is restricted under the 1933 Act or applicable state securities
laws if so required; (iv) at or before the time the Company receives the written
notice contemplated by clause (ii) of this sentence such transferee or assignee
(as the case may be) agrees in writing with the Company to be bound by all of
the provisions contained herein; (v) such transfer or assignment (as the case
may be) shall have been made in accordance with the applicable requirements of
the Purchase Agreement; and (vi) such transfer or assignment (as the case may
be) shall have been conducted in accordance with all applicable federal and
state securities laws.
|
10.
|
AMENDMENT OF
REGISTRATION RIGHTS.
|
Provisions
of this Agreement may be amended and the observance thereof may be waived
(either generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the
Investor.
|
11.
|
MISCELLANEOUS.
|
a. A
Person is deemed to be a holder of Registrable Securities whenever such Person
owns or is deemed to own of record such Registrable Securities. If
the Company receives conflicting instructions, notices or elections from two or
more Persons with respect to the same Registrable Securities, the Company shall
act upon the basis of instructions, notice or election received from the
registered owner of such Registrable Securities.
b. Any
notices, consents, waivers or other communications required or permitted to be
given under the terms of this Agreement must be in writing and will be deemed to
have been delivered: (i) upon receipt, when delivered personally;
(ii) upon receipt, when sent by facsimile (provided confirmation of transmission
is mechanically or electronically generated and kept on file by the sending
party); or (iii) one (1) Business Day after deposit with a nationally recognized
overnight delivery service, in each case properly addressed to the party to
receive the same. The addresses and facsimile numbers for such
communications shall be:
10
If to the
Company:
Bionovo,
Inc.
0000
Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx,
XX 00000
Phone:
000-000-0000
Fax:
000-000-0000
Attention: Chief
Financial Officer
With a
copy to:
Xxxxxxxxx
Traurig, LLP
000 Xxxx
Xxxxxx
Xxx Xxxx,
XX 00000
|
|
Telephone:
|
000-000-0000
|
|
|
Facsimile:
|
212-801-6400
|
|
|
Attention:
|
Xxxxxx
X. Xxxxx, Esq.
|
If to the
Investor:
Aspire
Capital Fund, LLC
000 Xxxxx
Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx,
XX 00000
|
|
Telephone:
|
000-000-0000
|
|
|
Facsimile:
|
000-000-0000
|
|
|
Attention:
|
Xxxxxx
X. Xxxxxx
|
With a copy to:
O’Melveny
& Xxxxx LLP
0000 Xxx
Xxxxxx, XX
Xxxxxxxxxx,
XX 00000
|
|
Telephone:
|
000-000-0000
|
|
|
Facsimile:
|
000-000-0000
|
|
Attention:
|
Xxxxxx
Xxxx, Esq.
|
or at
such other address and/or facsimile number and/or to the attention of such other
person as the recipient party has specified by written notice given to each
other party three (3) Business Days prior to the effectiveness of such
change. Written confirmation of receipt (A) given by the recipient of
such notice, consent, waiver or other communication, (B) mechanically or
electronically generated by the sender's facsimile machine containing the time,
date, recipient facsimile number and an image of the first page of such
transmission or (C) provided by a nationally recognized overnight delivery
service, shall be rebuttable evidence of personal service, receipt by facsimile
or receipt from a nationally recognized overnight delivery service in accordance
with clause (i), (ii) or (iii) above, respectively.
c. Failure
of any party to exercise any right or remedy under this Agreement or otherwise,
or delay by a party in exercising such right or remedy, shall not operate as a
waiver thereof.
11
d. The
corporate laws of the State of Delaware shall govern all issues concerning the
relative rights of the Company and its stockholders. All other
questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be governed by the internal laws of the State of
Illinois, without giving effect to any choice of law or conflict of law
provision or rule (whether of the State of Illinois or any other jurisdictions)
that would cause the application of the laws of any jurisdictions other than the
State of Illinois. Each party hereby irrevocably submits to the
exclusive jurisdiction of the state and federal courts sitting the City of
Chicago, for the adjudication of any dispute hereunder or in connection herewith
or with any transaction contemplated hereby or discussed herein, and hereby
irrevocably waives, and agrees not to assert in any suit, action or proceeding,
any claim that it is not personally subject to the jurisdiction of any such
court, that such suit, action or proceeding is brought in an inconvenient forum
or that the venue of such suit, action or proceeding is
improper. Each party hereby irrevocably waives personal service of
process and consents to process being served in any such suit, action or
proceeding by mailing a copy thereof to such party at the address for such
notices to it under this Agreement and agrees that such service shall constitute
good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law. If any provision of this Agreement
shall be invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall not affect the validity or enforceability of the
remainder of this Agreement in that jurisdiction or the validity or
enforceability of any provision of this Agreement in any other
jurisdiction. EACH
PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO, AND AGREES NOT TO
REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN
CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION
CONTEMPLATED HEREBY.
e. With
the exception of the Mutual Nondisclosure Agreement between the Company and the
Investor dated as of June 29, 2010, this Agreement and the
Purchase Agreement constitute the entire agreement among the parties
hereto with respect to the subject matter hereof and thereof. There
are no restrictions, promises, warranties or undertakings, other than those set
forth or referred to herein and therein. This Agreement and the
Purchase Agreement supersede all prior agreements and understandings among the
parties hereto with respect to the subject matter hereof and
thereof.
f.
Subject to the requirements of Section 9, this Agreement shall inure to the
benefit of and be binding upon the permitted successors and assigns of each of
the parties hereto.
g. The
headings in this Agreement are for convenience of reference only and shall not
limit or otherwise affect the meaning hereof.
h. This
Agreement may be executed in identical counterparts, each of which shall be
deemed an original but all of which shall constitute one and the same
agreement. This Agreement, once executed by a party, may be delivered
to the other party hereto by facsimile transmission of a copy of this Agreement
bearing the signature of the party so delivering this Agreement.
i.
Each party shall do and perform, or cause to be done and performed, all such
further acts and things, and shall execute and deliver all such other
agreements, certificates, instruments and documents, as the other party may
reasonably request in order to carry out the intent and accomplish the purposes
of this Agreement and the consummation of the transactions contemplated
hereby.
12
j.
The language used in this Agreement will be deemed to be the language chosen by
the parties to express their mutual intent and no rules of strict construction
will be applied against any party.
k. This
Agreement is intended for the benefit of the parties hereto and their respective
permitted successors and assigns, and is not for the benefit of, nor may any
provision hereof be enforced by, any other Person.
*
* * * * *
13
IN WITNESS WHEREOF, the
parties have caused this Registration Rights Agreement to be duly executed as of
day and year first above written.
|
THE COMPANY:
|
||
|
BIONOVO,
INC.
|
||
|
By:
|
/s/ Xxxxxx X. Xxxxxxxxxx
|
|
|
Name:
Xxxxxx X. Xxxxxxxxxx
|
||
|
Title:
Chief Financial Officer
|
||
|
BUYER:
|
||
|
ASPIRE
CAPITAL FUND, LLC
|
||
|
BY:
ASPIRE CAPITAL PARTNERS, LLC
|
||
|
BY:
SGM HOLDINGS CORP.
|
||
|
By:
|
/s/ Xxxxxx X. Xxxxxx
|
|
|
Name:
Xxxxxx X. Xxxxxx
|
||
|
Title:
President
|
||
14
EXHIBIT
A
FORM
OF NOTICE OF EFFECTIVENESS
OF
REGISTRATION STATEMENT
________
__, 2010
[TRANSFER
AGENT]
________________
________________
Attention:
___________
RE:
BIONOVO, INC.
Ladies
and Gentlemen:
We are
counsel to Bionovo,
Inc., a Delaware corporation (the “Company”), and have
represented the Company in connection with that certain Common Stock Purchase
Agreement, dated as of _________, 2010 (the “Purchase Agreement”), entered
into by and between the Company and Aspire Capital Fund, LLC (the “Buyer”) pursuant to which the
Company has agreed to issue to the Buyer shares of the Company's Common Stock,
par value $.0001 per share (the “Common Stock”), in an amount
up to Fifteen Million Dollars ($15,000,000), in accordance with the terms of the
Purchase Agreement. In connection with the transactions contemplated by the Purchase Agreement, the
Company has registered with the U.S. Securities & Exchange Commission the
following shares of Common Stock:
(1) _________
shares of Common Stock to be issued upon purchase from the Company by the Buyer
from time to time (the
“Purchase Shares.”).
(2) _________
shares of Common Stock which have been issued to the Buyer as a commitment fee
(the “Commitment
Shares”).
Pursuant
to the Purchase Agreement, the Company also has entered into a Registration
Rights Agreement, dated as of ______, 2010, with the Buyer (the “Registration Rights
Agreement”) pursuant to which the Company agreed, among other things, to
register the Purchase Shares and the Commitment
Shares under the Securities Act of 1933, as amended (the “1933 Act”). In
connection with the Company's obligations under the Purchase Agreement and the
Registration Rights Agreement, on ________, 2010, the Company filed a
Registration Statement (File No. 333-_________) (the “Registration Statement”) with
the Securities and Exchange Commission (the “SEC”) relating to the sale of
[all of the] [___________] Purchase Shares and [all of the] [___________]
Commitment Shares.
In
connection with the foregoing, (i) based solely upon the order of the SEC dated
[__________], the Registration Statement was declared effective under the
Securities Act on [ENTER DATE OF EFFECTIVENESS] and (ii) based solely upon oral
advice from the staff of the SEC, no stop order suspending its effectiveness of
the Registration Statement has been issued and no proceedings for that purpose
have been instituted or overtly threatened by the SEC. The Commitment
Shares are available for sale under the 1933 Act pursuant to the Registration
Statement and the restrictive legend on the Commitment Shares may be removed and
___________ Purchase Shares are available for sale under the 1933 Act pursuant
to the Registration Statement and may be issued without any restrictive
legend.
|
Very
truly yours,
|
||
|
[Company
Counsel]
|
||
|
By:
|
||
|
CC:
|
Aspire
Capital Fund, LLC
|
EXHIBIT
B
Information
About The Investor Furnished To The Company By The Investor
Expressly
For Use In Connection With The Registration Statement
As of the
date of the Purchase Agreement, Aspire Capital beneficially owned no shares of
common stock of the Company. Xxxxxx X. Xxxxxx, Xxxx X. Xxxxx & Xxxxxxxx
Xxxxxxxxxxxxx the principals of Aspire Capital, are deemed to be beneficial
owners of all of the shares of common stock owned by Aspire
Capital. Messrs. Xxxxxx, Xxxxx & Komissopoulos have shared voting
and investment power over the shares being offered under the prospectus filed
with the SEC in connection with the transactions contemplated under the Purchase
Agreement. Aspire Capital is not a licensed broker dealer or an
affiliate of a licensed broker dealer.
