EXHIBIT 7.3
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REGISTRATION RIGHTS AGREEMENT
BY AND BETWEEN
GUILFORD PHARMACEUTICALS INC.
and
AMGEN INC.
Dated as of October 1, 1997
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TABLE OF CONTENTS
SECTION 1. Definitions.................................... 1
SECTION 2. Securities Subject to this Agreement........... 3
(a) Registrable Securities......................... 3
(b) Holders of Registrable Securities.............. 3
SECTION 3. Demand Registrations........................... 4
(a) Demand by Holders.............................. 4
(b) Effective Registration......................... 4
(c) Registration Statement Form.................... 4
(d) Selection of Underwriters...................... 5
(e) Registration of Other Securities............... 5
(f) Priority Among Holders of Registrable Securities
in Requested Registration...................... 5
(g) Registration Requirements...................... 5
SECTION 4. Piggyback Registrations........................ 6
(a) Participation.................................. 6
(b) Underwriter's Cutback.......................... 6
(c) No Effect on Demand Registrations.............. 7
SECTION 5. Priority of Other Registration Rights.......... 7
SECTION 6. Hold-Back Agreements........................... 7
(a) Restrictions Applicable to Holders of
Registrable Securities......................... 7
(b) Registration Restrictions Applicable to
the Company.................................... 7
SECTION 7. Registration Procedures........................ 8
SECTION 8. Registration Expenses.......................... 13
SECTION 9. Indemnification................................ 14
(a) Indemnification by Company..................... 14
(b) Indemnification by Holder of Registrable
Securities..................................... 15
(c) Contribution................................... 15
SECTION 10. Transfer of Registration Rights............... 16
SECTION 11. Rule 144...................................... 16
SECTION 12. Participation in Underwritten Registrations... 17
SECTION 13. Miscellaneous................................. 17
(a) Remedies...................................... 17
(b) No Inconsistent Agreements.................... 17
(c) Amendments and Waivers........................ 17
(d) Notices....................................... 17
(e) Successors and Assigns........................ 18
(f) Counterparts.................................. 19
(g) Headings...................................... 19
(h) Governing Law................................. 19
(i) Severability.................................. 19
(j) Entire Agreement.............................. 19
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REGISTRATION RIGHTS AGREEMENT
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THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is dated as of
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October 1, 1997 and entered into by and between GUILFORD PHARMACEUTICALS INC., a
Delaware corporation (the "Company"), and AMGEN INC., a Delaware corporation
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(the "Purchaser").
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RECITALS
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WHEREAS, the Company, GPI NIL Holdings, Inc., a Delaware corporation
and wholly-owned subsidiary of the Company, and the Purchaser have entered into
a collaboration with respect to the research, development and commercialization
of certain small molecule neuroimmunophilin compounds, and have executed a
Binding Term Sheet dated as of August 20, 1997 relating thereto (the "Binding
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Term Sheet");
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WHEREAS, in connection with the Binding Term Sheet, the Purchaser has
agreed to purchase from the Company, and the Company has agreed to sell to the
Purchaser, 640,095 shares of Common Stock and a Warrant for 700,000 shares of
Common Stock for an aggregate cash consideration of $20 million;
WHEREAS, in connection with the foregoing, the Company and the
Purchaser have entered into a Stock and Warrant Purchase Agreement (the
"Purchase Agreement") dated as of October 1, 1997; and
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WHEREAS, as contemplated by the Binding Term Sheet, the Company has
agreed to provide the registration rights set forth in this Agreement;
AGREEMENT
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NOW, THEREFORE, in consideration of the mutual covenants and premises
contained herein and for other good and valuable consideration the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Definitions.
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(a) As used in this Agreement, the terms below shall have the
following meanings:
"Agent" shall mean any Person authorized to act and who acts on behalf
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of the Purchaser with respect to the transactions contemplated by this
Agreement.
"Collateral Agreements" shall mean the Binding Term Sheet, the Warrant
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and the Purchase Agreement.
"Common Stock" shall mean the Common Stock, $.01 par value, of the
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Company.
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"Exchange Act" shall mean the Securities Exchange Act of 1934, as
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amended from time to time.
"NASD" shall mean the National Association of Securities Dealers, Inc.
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"Person" shall mean an individual, firm, corporation, partnership,
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limited liability company, trust or unincorporated organization, or other
entity, or a government or agency or political subdivision thereof, and shall
include any successor (by merger or otherwise) of such Person.
"Prospectus" shall mean the prospectus included in any Registration
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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 the 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.
"Registrable Securities" shall mean (i) the Common Stock acquired by
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the Purchaser pursuant to the terms of the Purchase Agreement, and (ii) the
Warrant Shares. Registrable Securities shall also include any securities which
may be issued or distributed with respect to, or in exchange for, such
Registrable Securities pursuant to a stock dividend, stock split or other
distribution, merger, consolidation, recapitalization or reclassification or
similar transaction; provided, however, that any such Registrable Securities
shall cease to be Registrable Securities to the extent (i) a Registration
Statement with respect to the sale of such Registrable Securities has been
declared effective under the Securities Act and such Registrable Securities have
been disposed of in accordance with the plan of distribution set forth in such
Registration Statement, or (ii) such Registrable Securities can be disposed of
pursuant to Rule 144 without regard to Rule 144(k) (or any similar provisions
then in force) under the Securities Act.
"Registration" shall mean a Registration of the Company's securities
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for sale to the public under a Registration Statement.
"Registration Statement" shall mean any Registration Statement of the
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Company filed with the Securities and Exchange Commission under the rules and
regulations promulgated under the Securities Act, including the Prospectus,
amendments and supplements to such Registration Statement, including post-
effective amendments, and all exhibits and all material incorporated by
reference in such Registration Statement.
"Securities Act" shall mean the Securities Act of 1933, as amended
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from time to time.
"SEC" shall mean the Securities and Exchange Commission.
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"Underwritten Registration" or "Underwritten Offering" shall mean a
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Registration in which securities of the Company are sold to an underwriter for
reoffering to the public.
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"Warrant" shall mean the Warrant to purchase shares of Common Stock,
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issued and sold pursuant to the Purchase Agreement dated as of the date hereof,
by and between the Company and the Purchaser.
"Warrant Shares" shall mean any shares of Common Stock issued or
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issuable upon exercise of the Warrant.
(b) Other Defined Terms. The following terms shall have the meanings
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defined for such terms in the Sections set forth below:
Term Section
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Agreement Preamble
Company Preamble
Demand Registration Holdback Period 6(b)
Demand Registration 3(a)
Exchange and Registration Rights Agreement 5
Holder 2(b)
Indemnified Holder 9(a)
Piggyback Registration 4(a)
Piggyback Securities 4(b)
Preferred Stock Purchase Agreement 5
Priority Agreements 5
Purchase Agreement Recitals
Purchaser Preamble
Registration Expenses 8(a)(7)
Underwriter's Warrant 5
SECTION 2. Securities Subject to this Agreement.
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(a) Registrable Securities. The securities entitled to the benefits
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of this Agreement are the Registrable Securities.
(b) Holders of Registrable Securities. Initially, Purchaser is the
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only holder of Registrable Securities, and Registrable Securities shall only
refer to such securities owned of record or beneficially by Purchaser or by a
transferee (or subsequent transferee) of Purchaser pursuant to Section 10 hereof
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who has thereby acquired rights hereunder (each a "Holder"). Subject to the
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foregoing, a Person is deemed to be a Holder of Registrable Securities whenever
such Person owns Registrable Securities or has the right to acquire such
Registrable Securities, whether or not such ownership or right was acquired
pursuant to the Purchase Agreement or the Warrant, and whether or not such
acquisition has actually been effected and disregarding any legal restrictions
upon the exercise of such right.
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SECTION 3. Demand Registrations.
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(a) Demand by Holders. During the five-year period commencing on the
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date hereof, the Holders of at least 50% of the Registrable Securities then
outstanding may make a total of three written requests to the Company for
Registration of Registrable Securities under and in accordance with the
provisions of the Securities Act of all or part of the Registrable Securities.
Any such Registration requested shall hereinafter be referred to as a "Demand
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Registration." Each request for a Demand Registration shall specify the kind
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and aggregate amount of Registrable Securities to be registered, the intended
methods of disposition thereof and the information required by Item 507 of
Regulation S-K under the Securities Act. Upon such request for a Demand
Registration, subject to Section 3(g) below, the Company shall use its best
efforts to promptly effect the Registration of such Registrable Securities under
(i) the Securities Act, and (ii) subject to Section 7(h), the blue sky laws of
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such jurisdictions as any Holder of such Registrable Securities requesting such
Registration or any underwriter, if any, may reasonably request. The Company
shall also use its best efforts to have all such Registrable Securities
registered with or approved by such other federal or state governmental agencies
or authorities as may be necessary in the opinion of counsel to the Company and
counsel to such Holders of at least 50% of such Registrable Securities to
consummate the disposition of such Registrable Securities.
(b) Effective Registration. Subject to the last paragraph of Section
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7, the Company shall be deemed to have effected a Demand Registration if the
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Registration Statement relating to such Demand Registration is filed with the
SEC but the requesting Holders inform the Company that they desire that the
Registration Statement be withdrawn or abandoned; provided, however, that such
withdrawal does not result from action or inaction on the part of the Company
that has materially and adversely affected the value of such registration to the
participating Holders, or if the Registration Statement is declared effective by
the SEC and remains effective until the earlier of the date on which (i) all the
Registrable Securities subject to such Registration Statement have been disposed
of pursuant thereto or (ii) nine months have elapsed from the date of such
effectiveness; provided, however, that no Demand Registration shall be deemed to
have been effected if (i) such Registration, after it has become effective, is
the subject of any stop order, injunction or other order or requirement of the
SEC or other governmental agency or court for any reason not primarily
attributable to the selling Holders of Registrable Securities, or (ii) the
conditions to closing specified in the purchase agreement or underwriting
agreement entered into in connection with such Registration are not satisfied,
other than by reason of a failure on the part of the selling Holders of
Registrable Securities or any underwriter referred to in Section 3(d).
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(c) Registration Statement Form. Registrations under this Section 3
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shall be on such appropriate registration form of the SEC as shall permit the
disposition of such Registrable Securities in accordance with the intended
method or methods of disposition specified in such Holders' requests for such
Registration. If, in connection with any Registration under this Section 3
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which is proposed by the Company to be on Form S-3 or any successor form to such
Form, the managing underwriter (if any) or Holders of at least 50% of the
Registrable Securities requesting a Demand Registration shall advise the Company
in writing that in its opinion additional disclosure not required by such form
is of material importance to the success of the
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offering, then the Company shall consider including such additional
disclosure, subject at all times to the Company's ultimate discretion to include
or not include any additional disclosure.
(d) Selection of Underwriters. If at any time or from time to time
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during the time period applicable to Demand Registrations any of the Holders of
the Registrable Securities covered by a Registration Statement desire to sell
Registrable Securities in an Underwritten Offering, the investment banker or
investment bankers that will manage the offering will be selected by the Holders
of at least 50% of the Registrable Securities included in such offering;
provided that the selection of any such investment banker or investment bankers
is subject to consent by the Company, which consent shall not be unreasonably
withheld.
(e) Registration of Other Securities. Subject to Section 5 hereof,
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whenever the Company shall effect a Registration pursuant to this Section 3 in
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connection with an Underwritten Offering by one or more Holders of Registrable
Securities, securities other than Registrable Securities shall be reduced to the
extent determined necessary by the managing underwriter of such offering if such
managing underwriter shall have advised such selling Holders to be covered by
such Registration in writing (with a copy to the Company) that, in its opinion,
the number of securities requested to be included in such Registration exceeds
the number which can be sold in such offering within a price range acceptable to
the selling Holders of at least 50% of the Registrable Securities requested to
be included in such Registration. If no such notice or letter is provided, the
Company may include shares of Common Stock for its own account or for the
account of other shareholders of the Company having the right to include such
shares in a Registration Statement filed by the Company with the SEC.
(f) Priority Among Holders of Registrable Securities in Requested
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Registration. If the managing underwriter of an Underwritten Offering pursuant
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to this Section 3 advises each of the Holders in writing (with a copy to the
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Company) that less than all of the Registrable Securities proposed to be
included in such offering should be included (using the same standard described
in subsection (e) hereof), then the amount of Registrable Securities to be
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offered for the accounts of Holders shall be reduced pro rata, based on the
number of Registrable Securities owned by such Holders.
(g) Registration Requirements. Anything in this Section 3 to the
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contrary notwithstanding, the Company shall not be required to file any
Registration Statement pursuant to this Section 3, (i) within a period of six
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months after the effective date of any other Registration Statement filed
pursuant to a Demand Registration, (ii) for a deferral period of up to 90 days
if the Board of Directors of the Company in good faith determines that such
Registration would interfere with any proposed offering of shares of the
Company's capital stock, pending financing transaction, or acquisition,
corporate reorganization or other significant transaction involving the Company;
provided that the Company shall be able to defer Registration under this
subclause (ii) only one time in any 12-month period, (iii) for a period
beginning on the effective date of any Registration Statement and ending 90 days
thereafter, or (iv) if the estimated aggregate proceeds of an offering of
Registrable Securities (less underwriting discounts and commissions) will be
less than $15 million.
SECTION 4. Piggyback Registrations.
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(a) Participation. Subject to Sections 4(b) and 5 hereof, if at any
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time from and after the date hereof, the Company proposes to file or files a
Registration Statement under the Securities Act with respect to any offering of
securities of the same type as the Registrable Securities for its own account
(other than a Registration Statement on Form S-8 or Form S-4 or any successor
form thereto), or for the account of any securityholder of securities of the
same type as the Registrable Securities, then, as promptly as practicable, the
Company shall give written notice of such proposed filing to each Holder of
Registrable Securities and such notice shall offer the Holders of Registrable
Securities the opportunity to include in such registration such number of
Registrable Securities as each such Holder may request (a "Piggyback
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Registration"). Subject to Section 5, the Company shall include in such
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Registration Statement all Registrable Securities requested within 20 days after
the receipt of any such notice (which request shall specify the Registrable
Securities intended to be disposed of by such Holder) to be included in the
Registration for such offering pursuant to a Piggyback Registration. Each
Holder electing to participate in such Registration Statement shall do so
pursuant to the terms of such proposed registration and shall execute such usual
and customary custody agreements, powers of attorney, underwriting agreements,
holdback agreements or other documents as are reasonably requested or required
by the Company and any underwriter of such offering as provided in Section 12
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hereof; provided that Holder shall not be required to represent and warrant to,
or to indemnify, any party with respect to any matters other than as to the
Holder's ownership of the Registrable Securities and with respect to any other
information provided by Holder and required to be included in the Registration
Statement pursuant to SEC Rules and Regulations. Each Holder of Registrable
Securities shall be permitted to withdraw all or part of such Holder's
Registrable Securities from a Piggyback Registration at any time prior to the
effective date thereof.
(b) Underwriter's Cutback. The Company shall use its best efforts to
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cause the managing underwriter or underwriters of a proposed Underwritten
Offering to permit the Registrable Securities requested to be included in the
Registration for such offering under Section 4(a) (the "Piggyback Securities")
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to be included on the same terms and conditions as any similar securities
included therein. Notwithstanding the foregoing, but subject to Section 5
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hereof, if the managing underwriter or underwriters participating in such
offering advises each of the Holders in writing (with a copy to the Company)
that the total amount of securities requested to be included in such Piggyback
Registration exceeds the amount which can be sold in (or during the time of)
such offering without delaying or jeopardizing the success of the offering
(including the price per share of the securities to be sold), then, after
including all shares proposed to be sold by the Company in a Company-initiated
registration, the amount of securities to be offered for the account of the
Holders shall be reduced pro rata with all other holders participating in such
offering on the basis of the number of shares to be registered by all
stockholders participating in such offering; provided, however that, subject to
Section 5 hereof, the managing underwriter or underwriters may not limit the
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Registrable Securities or other securities to be included in such Registration
to less than 25% of the securities included therein. Notwithstanding the
foregoing, the Company shall have the right to withdraw or delay the
Registration Statement at any time; provided, however, that written notice of
such withdrawal or delay shall be given to the Holders thereunder.
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(c) No Effect on Demand Registrations. No Registration of Registrable
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Securities effected pursuant to a request under this Section 4 shall be deemed
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to have been effected pursuant to Section 3 hereof or shall relieve the Company
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of its obligation to effect any Registration upon request under Section 3
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hereof.
SECTION 5. Priority of Other Registration Rights.
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The parties expressly agree and understand that a Holder's right to
priority in a Registration of Registrable Securities shall at all times be
subordinate to the rights granted under (i) the Series A Preferred Stock
Purchase Agreement, dated as of September 30, 1993, as amended (the "Preferred
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Stock Purchase Agreement"), (ii) the Underwriter's Warrant, dated as of June 24,
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1994 (the "Underwriter's Warrant"), and (iii) the Exchange and Registration
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Rights Agreement, dated as of February 17, 1995 (the "Exchange and Registration
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Rights Agreement" and collectively, with the Preferred Stock Purchase Agreement
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and the Underwriter's Warrant, the "Priority Agreements") so that inclusion of
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any Registrable Securities in any Registration requested to be made pursuant to
Sections 3(a) and 4(a) is subject to the prior right to include in such
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Registration any securities requested to be registered by a securityholder under
the Priority Agreements as provided for therein. Notwithstanding the foregoing,
except in the case of a limitation imposed under Sections 3(f) and 4(b), and
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subject to the conditions of this Section 5, the Company shall use its best
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efforts to cause all Registrable Securities to be registered that are requested
to be registered, regardless of the number of securities to be registered under
the Priority Agreements. As a result of the foregoing, if any Registrable
Security is excluded from a Demand Registration due to the existing rights of
such other securityholders, such Registration shall not count as a Demand
Registration.
SECTION 6. Hold-Back Agreements.
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(a) Restrictions Applicable to Holders of Registrable Securities. If
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(i) the Company shall file a Registration Statement with respect to its Common
Stock or similar securities or securities convertible into, or exchangeable or
exercisable for, such securities in an Underwritten Offering and (ii) the
managing underwriter or underwriters advises the Company in writing (in which
case the Company shall notify the Holders) that a public sale or distribution of
Registrable Securities (other than those which may be sold, after application of
Section 4(b), by a Holder in connection with a Piggyback Registration) would
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have material adverse effect on such offering, then such Holder shall, to the
extent not inconsistent with applicable law, refrain from effecting any public
sale or distribution of Registrable Securities during the period following the
effective date of such Registration Statement and until the earliest of (A) the
abandonment of such offering and (B) 90 days, or such shorter date as the
managing underwriter shall require, after the effective date of such
Registration Statement.
(b) Registration Restrictions Applicable to the Company. In the event
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of a Demand Registration, the Company, if requested by the Holders of at least
50% of the Registrable Securities to be included in such Demand Registration,
(i) shall agree not to, and shall cause its executive officers and directors not
to, effect any public sale or distribution of its Common Stock or similar
securities or securities convertible into, or exchangeable or exercisable for,
such securities during the 90-day period following the effective date of a
Registration
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Statement relating to an Underwritten Offering of Registrable Securities if the
managing underwriter or underwriters determine such public sale or distribution
would have a material adverse effect on such offering and (ii) shall (x) cause
each securityholder of the Company's privately placed equity securities issued
in connection with a financing transaction involving at least 5% of the
Company's then outstanding equity securities at any time after the date hereof
(provided that the foregoing shall not apply with respect to securities issued
in connection with corporate partnering transactions or off-balance sheet
financing transactions to fund early stage research, and (y) use its reasonable
best efforts to cause each other securityholder of the Company owning at least
10% of the Company's then outstanding equity securities (other than a
securityholder permitted to file a Schedule 13G under the Exchange Act) to
agree, not to effect a public sale or distribution of the Common Stock during
the 90-day period following the effective date of a Registration Statement
relating to an underwritten public offering of the Common Stock if the managing
underwriter or underwriters determine such public sale or distribution would
have a material adverse effect on such offering.
SECTION 7. Registration Procedures.
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In connection with the Company's Registration obligations pursuant to
Sections 3 and 4 hereof, the Company will use its best efforts to effect such
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Registration to permit the sale of such Registrable Securities in accordance
with the intended method or methods of disposition thereof, and pursuant thereto
the Company will as expeditiously as possible:
(a) before filing a Registration Statement thereto, furnish to the
Holders of the Registrable Securities covered by such Registration
Statement and the underwriters, if any, copies of such Registration
Statement proposed to be filed, and any participating Holder or the
underwriters, may suggest such changes thereto and the Company will
consider including such changes, subject at all times to the Company's
ultimate discretion to include or not include such changes;
(b) prepare and file with the SEC a Registration Statement or
Registration Statements relating to the applicable Demand Registration or
Piggyback Registration including all exhibits and financial statements
required by the SEC to be filed therewith, and use its best efforts to
cause such Registration Statement to become effective under the Securities
Act; and prepare and file with the SEC such amendments and post-effective
amendments to such Registration Statement, and such supplements to the
Prospectus, as may be requested by any underwriter of Registrable
Securities or as may be required by the rules, regulations or instructions
applicable to the Registration form utilized by the Company or by the
Securities Act or rules and regulations otherwise necessary to keep the
Registration Statement effective for a period of not less than nine months
(or such shorter period which will terminate when all Registrable
Securities covered by such Registration Statement have been sold or
withdrawn); and cause the Prospectus as so supplemented to be filed
pursuant to Rule 424 under the Securities Act; and comply with the
provisions of the Securities Act and the Exchange Act with respect to the
disposition of all securities covered by such Registration Statement during
the applicable period in accordance with the intended methods of
disposition by the selling Holders thereof set forth in such Registration
Statement or supplement to the Prospectus;
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(c) notify the selling Holders of Registrable Securities and the managing
underwriters, if any, promptly, and (if requested by any such Person)
confirm such advice in writing,
(1) when the Prospectus or any Prospectus supplement or post-
effective amendment has been filed, and, with respect to the
Registration Statement or any post-effective amendment, when the same
has become effective,
(2) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose,
(3) if at any time the representations and warranties of the
Company contemplated by paragraph (n)(1) below cease to be true and
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correct,
(4) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Registrable
Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, and
(5) of the existence of any fact which results in the
Registration Statement, the Prospectus or any document incorporated
therein by reference containing an untrue statement of material fact
or omitting to state a material fact required to be stated therein or
necessary to make the statements therein not misleading;
(d) make every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of the Registration Statement at the earliest
possible moment;
(e) if requested by the managing underwriter or underwriters or a
Holder of Registrable Securities being sold in connection with an
Underwritten Offering pursuant to Section 3 hereof, incorporate in a
Prospectus supplement or post-effective amendment such information as the
managing underwriters and the Holders of at least 50% of the Registrable
Securities being sold agree should be included therein relating to the plan
of distribution with respect to such Registrable Securities, including,
without limitation, information with respect to the amount of Registrable
Securities being sold to such underwriters, the purchase price being paid
therefor by such underwriters and with respect to any other terms of the
underwritten (or best efforts underwritten) offering of the Registrable
Securities to be sold in such offering; and 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;
(f) furnish to each selling Holder of Registrable Securities and each
managing underwriter, without charge, at least one copy of the Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules, all documents incorporated therein by reference
and all exhibits (including those incorporated by reference);
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(g) deliver to each selling Holder of Registrable Securities and the
underwriters, if any, without charge, as many copies of the Prospectus
(including each preliminary prospectus) and any amendment or supplement
thereto as such Persons may reasonably request; the Company consents to the
use of the Prospectus or any amendment or supplement thereto by each of the
selling Holders of Registrable Securities and the underwriters, if any, in
connection with the offering and sale of the Registrable Securities covered
by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register
or qualify or cooperate with the selling Holders of Registrable Securities,
the underwriters, if any, and their respective 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 as any
selling Holder of Registrable Securities or any underwriter reasonably
requests in writing and do any and all other acts or things reasonably
necessary to enable the disposition in such jurisdictions of the
Registrable Securities covered by the Registration Statement; provided that
the Company will not be required to qualify generally to do business in any
jurisdiction where it is not then so qualified or to take any action which
would subject it to taxation or general service of process in any such
jurisdiction where it is not then so subject;
(i) cooperate with the selling Holders of Registrable Securities and
the managing underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold and
not bearing any restrictive legends; and enable such Registrable Securities
to be in such denominations and registered in such names as the managing
underwriters may request at least two business days prior to any sale of
Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered
by the applicable Registration Statement to be registered with or approved
by such other foreign governmental agencies or authorities, and the NASD,
as may be necessary to enable the seller or selling Holders thereof or the
underwriters, if any, to consummate the disposition of such Registrable
Securities; provided, however, that the Holders shall pay any and all costs
associated with any such registration or approval with any foreign
governmental agency or authority;
(k) if any fact contemplated by paragraph (c)(6) above shall exist,
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prepare a supplement or post-effective amendment to the Registration
Statement or the related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Securities, the Prospectus
will not contain an untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading;
(l) cause all Registrable Securities covered by the Registration
Statement to be listed on each securities exchange on which similar
securities issued by the Company
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are then listed if requested by the Holders of at least 50% of such
Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the applicable Registration
Statement, provide a CUSIP number for all Registrable Securities and
provide the applicable transfer agent with printed certificates for the
Registrable Securities which are in a form eligible for deposit with
Depositary Trust Company;
(n) enter into agreements (including underwriting agreements in
customary form for such underwriter and consistent with then current market
practice) and take all other appropriate and reasonable actions in order to
expedite or facilitate the disposition of such Registrable Securities and
in such connection, whether or not an underwriting agreement is entered
into and whether or not the Registration is an Underwritten Registration:
(1) make such representations and warranties to the Holders of
such Registrable Securities and the underwriters, if any, in form,
substance and scope as are customarily made by issuers to underwriters
in Underwritten Offerings in customary form and consistent with then
current market practice;
(2) obtain opinions of counsel to the Company (which counsel and
opinions (in form, scope and substance) shall be reasonably
satisfactory to the managing underwriters, if any, addressed to the
underwriters, if any, in customary form covering the matters
customarily covered in opinions requested in primary Underwritten
Offerings and such other matters as may be reasonably requested by
such underwriters;
(3) obtain "cold comfort" letters and updates thereof from the
Company's independent certified public accountants addressed to the
underwriters, if any, such letters to be in customary form and
consistent with then current market practice and covering matters of
the type customarily covered in "cold comfort" letters by underwriters
in connection with primary Underwritten Offerings;
(4) if an underwriting agreement is entered into, cause the same
to set forth in full the indemnification provisions and procedures
substantially to the effect set forth in Section 9 hereof with respect
---------
to all parties to be indemnified pursuant to said Section; and
(5) deliver such documents and certificates as may be reasonably
requested in writing by the Holders of at least 50% of the Registrable
Securities being sold or the managing underwriters, if any, to
evidence compliance with paragraph (k) above and with any customary
-------------
conditions contained in the underwriting agreement or other agreement
entered into by the Company.
11
The above shall be done at each closing under such underwriting or similar
agreement or as and to the extent required thereunder;
(o) make available for inspection by any underwriter (including any
"qualified independent underwriter" that is required to be retained in
accordance with the rules and regulations of the NASD) participating in any
disposition pursuant to such Registration Statement, and any attorney or
accountant retained by underwriter, all financial and other records,
pertinent corporate documents and properties of the Company, and cause the
Company's officers, directors and employees to supply all information
reasonably requested by any such representative, underwriter, attorney or
accountant in connection with the Registration; provided that any records,
documents, properties or information that are designated by the Company in
writing as confidential shall be kept confidential by such Person and shall
not be used for any purpose other than in connection with such Registration
Statement unless disclosure of such records, documents, properties and
information is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules
and regulations of the SEC, and make generally available to its security
holders, earnings statements satisfying the provisions of Section 11(a) of
the Securities Act and Rule 158 promulgated thereunder; and
(q) cooperate and assist in any filings required to be made with the
NASD and, subject to Section 7(o), in the performance of any due diligence
------------
investigation by any underwriter (including any "qualified independent
underwriter" that is required to be retained in accordance with the rules
and regulations of the NASD).
The Company may require each Holder of Registrable Securities as to
which any Registration is being effected to furnish to the Company such
information regarding such Holder and such Holder's intended method of
distribution of such Registrable Securities, as the Company may from time to
time reasonably request in writing.
Each Holder of Registrable Securities agrees by acquisition of such
Registrable Securities that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 7(c)(6) hereof, such
---------------
Holder will forthwith discontinue disposition of Registrable Securities until
such Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 7(k) hereof, or until it is advised in writing by the
------------
Company that the use of the Prospectus may be resumed, and has received copies
of any additional or supplemental filings which are incorporated by reference in
the Prospectus, and, if so directed by the Company, such Holder will deliver to
the Company (at the Company's expense) all copies, other than permanent file
copies then in such Holder's possession, of the Prospectus covering such
Registrable Securities current at the time of receipt of such notice. In the
event the Company shall give any such notice, the time periods during which such
Registration Statement shall be maintained effective shall be extended by the
number of days during the period from and including the date of the giving of
such notice to and including the date when each seller of Registrable Securities
covered by such Registration Statement either receives the copies of the
12
supplemented or amended prospectus contemplated by Section 7(k) hereof or is
------------
advised in writing by the Company that the use of the Prospectus may be resumed.
SECTION 8. Registration Expenses.
---------------------
(a) All expenses incident to the Company's performance of or
compliance with this Agreement will be paid by the Company, regardless of
whether the Registration Statement becomes effective, including without
limitation:
(1) all Registration and filing fees (including with respect to
filings required to be made with the SEC);
(2) fees and expenses of compliance with securities or blue sky
laws (including fees and disbursements of counsel for the underwriters or
selling Holders in connection with blue sky qualifications of the
Registrable Securities and determination of their eligibility for
investment under the laws of such jurisdictions as the managing
underwriters or Holders of at least 50% of the Registrable Securities being
sold may designate);
(3) printing (including expenses of printing certificates for the
Registrable Securities in a form eligible for deposit with the Depositary
Trust Company and of printing prospectuses), messenger, telephone and
delivery expenses;
(4) fees and disbursements of counsel for the Company;
(5) fees and disbursements of all independent certified public
accountants of the Company (including the expenses of any "cold comfort"
letters required by or incident to such performance);
(6) fees and expenses of other Persons retained by the Company;
and
(7) all Registration, filing and other fees and expenses
associated with any NASD filing required to be made in connection with the
Registration Statement (all such expenses being herein called "Registration
------------
Expenses").
--------
The Company will, in any event, pay its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any annual audit, the
fees and expenses incurred in connection with the listing of the securities to
be registered on each securities exchange on which similar securities issued by
the Company are then listed, rating agency fees and the fees and expenses of any
Person, including special experts, retained by the Company. Notwithstanding any
provision to the contrary, if a registration initiated under Section 3 is
---------
withdrawn by the Holders initiating such registration under circumstances that
would nevertheless be considered a Demand Registration under Section 3(b), the
------------
Company shall have no obligation to pay expenses of such registration and all
such expenses shall be paid by the Holders initiating such registration.
13
(b) Each selling Holder of the Registrable Securities shall pay all
discounts, commissions, fees and expenses of the underwriters, selling brokers,
dealer managers and similar industry professionals, transfer taxes and any out-
of-pocket costs and expenses of such selling Holder including the fees and
expenses of counsel for such selling Holder relating to the distribution of such
Registrable Securities.
SECTION 9. Indemnification.
---------------
(a) Indemnification by Company. The Company agrees to indemnify and
--------------------------
hold harmless each Holder of Registrable Securities, its officers, directors,
employees and Agents and each Person who controls such Holder within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act
(each such person being sometimes hereinafter referred to as an "Indemnified
-----------
Holder") from and against all losses, claims, damages, liabilities and expenses
------
(including reasonable costs of investigation and legal expenses) arising out of
or based upon any untrue statement or alleged untrue statement of a material
fact contained in any Registration Statement or Prospectus or in any amendment
or supplement thereto or in any preliminary prospectus, or arising out of or
based upon any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages, liabilities or
expenses arise out of or are based upon any such untrue statement or omission or
allegation thereof based upon information furnished in writing to the Company by
such Holder or any underwriter expressly for use therein; provided, however,
that the Company shall not be liable in any such case to the extent that any
such loss, claim, damage, liability or expense arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission in
any Prospectus or preliminary prospectus, if such untrue statement or alleged
untrue statement, omission or alleged omission is completely corrected in an
amendment or supplement to the Prospectus or preliminary prospectus and if,
having previously been furnished by or on behalf of the Company with copies of
the Prospectus or preliminary prospectus as so amended or supplemented, such
Holder thereafter fails to deliver such Prospectus or preliminary prospectus as
so amended or supplemented, prior to or concurrently with the sale of a
Registrable Security to the person asserting such loss, claim, damage, liability
or expense who purchased such Registrable Security which is the subject thereof
from such Holder. This indemnity will be in addition to any liability which the
Company may otherwise have.
If any action or proceeding (including any governmental investigation
or inquiry) shall be brought or asserted against an Indemnified Holder in
respect of which indemnity may be sought from the Company, such Indemnified
Holder shall promptly notify the Company in writing, and the Company shall
assume the defense thereof, including the employment of counsel satisfactory to
such Indemnified Holder and the payment of all expenses. Such Indemnified
Holder shall have the right to employ separate counsel in any such action and to
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Holder unless (a) the Company has
agreed to pay such fees and expenses or (b) the Company shall have failed to
assume the defense of such action or proceeding and has failed to employ counsel
satisfactory to such Indemnified Holder in any such action or proceeding or (c)
the named parties to any such action or proceeding (including any impleaded
parties) include both such Indemnified Holder and the Company, and such
Indemnified Holder shall have been
14
advised by counsel that there may be one or more legal defenses available to
such Indemnified Holder which are different from or additional to those
available to the Company (in which case, if such Indemnified Holder notifies the
Company in writing that it elects to employ separate counsel at the expense of
the Company, the Company shall not have the right to assume the defense of such
action or proceeding on behalf of such Indemnified Holder, it being understood,
however, that the Company shall not, in connection with any one such action or
proceeding or separate but substantially similar or related actions or
proceedings in the same jurisdiction arising out of the same general allegations
or circumstances, be liable for the reasonable fees and expenses of more than
one separate firm of attorneys at any time for such Indemnified Holder and any
other Indemnified Holders, which firm shall be designated in writing by such
Indemnified Holders). The Company shall not be liable for any settlement of any
such action or proceeding effected without its written consent, but if settled
with its written consent, or if there be a final judgment for the plaintiff in
any such action or proceeding, the Company agrees to indemnify and hold harmless
such Indemnified Holders from and against any loss or liability by reason of
such settlement or judgment.
(b) Indemnification by Holder of Registrable Securities. Each Holder
---------------------------------------------------
of Registrable Securities agrees to indemnify and hold harmless the Company, its
directors and officers and each Person, if any, who controls the Company within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act to the same extent as the foregoing indemnity from the Company to
such Holder, but only with respect to (i) information relating to such Holder
furnished in writing by such Holder expressly for use in, and information
provided under Section 3(a) hereof for use in, any Registration Statement or
Prospectus, or any amendment or supplement thereto, or any preliminary
prospectus and (ii) any loss, claim, damage, liability or expense described in
the proviso to the first sentence of Section 9(a). In case any action or
------------
proceeding shall be brought against the Company or its directors or officers or
any such controlling person, in respect of which indemnity may be sought against
a Holder of Registrable Securities, such Holder shall have the rights and duties
given the Company and the Company or its directors or officers or such
controlling person shall have the rights and duties given to each Holder by the
preceding paragraph. In no event shall the liability of any selling Holder of
Registrable Securities hereunder be greater in amount than the dollar amount of
the proceeds received by such Holder upon the sale of the Registrable Securities
giving rise to such indemnification obligation.
The Company shall be entitled to receive indemnities from
underwriters, selling brokers, dealer managers and similar securities industry
professionals participating in the distribution, to the same extent as provided
above with respect to information so furnished in writing by such Persons
specifically for inclusion in any Prospectus or Registration Statement or any
amendment or supplement thereto, or any preliminary prospectus.
(c) Contribution. If the indemnification provided for in this Section
------------ -------
9 is unavailable to an indemnified party under Section 9(a) or Section 9(b)
- ------------ ------------
hereof (other than by reason of exceptions provided in those Sections) in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then each applicable indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities or
expenses in such
15
proportion as is appropriate to reflect the relative fault of the Company on the
one hand and of the Indemnified Holder on the other in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative fault of the Company on the one hand and of the Indemnified Holder
on the other shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company or by the Indemnified Holder and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party as a result of the
losses, claims, damages, liabilities and expenses referred to in Section 9(a) or
------------
Section 9(b) shall be deemed to include, subject to the limitations set forth in
------------
the second paragraph of Section 9(a), any legal or other fees or expenses
------------
reasonably incurred by such party in connection with investigating or defending
any action or claim.
The Company and each Holder of Registrable Securities agree that it
would not be just and equitable if contribution pursuant to this Section 9(c)
------------
were determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to in the
immediately preceding paragraph. Notwithstanding the provisions of this Section
-------
9(c), an Indemnified Holder shall not be required to contribute any amount in
----
excess of the amount by which the total price at which the Registrable
Securities sold by such Indemnified Holder or its affiliated Indemnified Holders
and distributed to the public were offered to the public exceeds the amount of
any damages which such Indemnified Holder, or its affiliated Indemnified Holder,
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
SECTION 10. Transfer of Registration Rights.
-------------------------------
The rights to cause the Company to register securities granted by the
Company hereunder may be transferred or assigned by Purchaser or a subsequent
Holder in writing to a transferee or assignee; provided, however, that such
transfer is in connection with the sale of Registerable Securities covering a
minimum of the greater of 25% of the Registrable Securities then outstanding or
200,000 shares of Common Stock. Such Holder within a reasonable time after said
transfer shall give written notice to the Company, stating the name and address
of said transferee or assignee and identifying the securities with respect to
which such registration rights are being assigned. Subsequent transfers or
assignments of such registration rights may also be effected in accordance with
the foregoing requirements.
SECTION 11. Rule 144.
--------
The Company covenants that it will file the reports required to be
filed by it under the Exchange Act and the rules and regulations adopted by the
SEC thereunder, all to the extent required from time to time to enable such
Holder to sell Registrable Securities without Registration under the Securities
Act within the limitation of the exemptions provided by (a) Rule 144 under the
Securities Act, as such Rule may be amended from time to time, or (b) any
similar
16
rule or regulation hereafter adopted by the SEC. Upon the request of
any Holder of Registrable Securities, the Company will deliver to such Holder a
written statement as to whether it has complied with such information and
requirements.
SECTION 12. Participation in Underwritten Registrations.
-------------------------------------------
Subject to Section 5 hereof, no Person may participate in any
---------
Underwritten Registration hereunder unless such Person (a) agrees to sell such
Person's securities on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
SECTION 13. Miscellaneous.
-------------
(a) Remedies. Each of the parties hereto, in addition to being
--------
entitled to exercise all rights provided herein, in the Purchase Agreement and
granted by law, including recovery of damages, will be entitled to specific
performance of its rights under this Agreement. Each of the parties hereto
agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this Agreement and
hereby agrees to waive the defense in any action for specific performance that a
remedy at law would be adequate.
(b) No Inconsistent Agreements. From and after the date hereof,
--------------------------
except with respect to registration rights granted by the Company pursuant to
the Priority Agreements, the Company shall not enter into any agreement granting
any holder or prospective holder of any securities of the Company registration
rights with respect to such securities unless such new registration rights are
pari passu with, subordinate to, or otherwise do not materially adversely affect
the rights of Holders granted hereunder. The Company represents and warrants
that the rights granted to the Holders of Registrable Securities hereunder do
not in any way conflict with and are not inconsistent with the rights granted to
the holders of the Company's securities under any agreement in effect on the
date hereof.
(c) Amendments and Waivers. The provisions of this Agreement,
----------------------
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company has obtained the written consent of Holders
of at least 50% of the then outstanding Registrable Securities. Notwithstanding
the foregoing, a waiver or consent to departure from the provisions hereof that
relates exclusively to the rights of Holders of Registrable Securities whose
securities are being sold pursuant to a Registration Statement and that does not
directly or indirectly affect the rights of other Holders of Registrable
Securities may be given by the Holders of a majority of the Registrable
Securities being sold.
(d) Notices. Unless otherwise provided herein, any notice, request,
-------
instruction or other document to be given hereunder by any party to the others
shall be in writing and delivered in person or by courier or by facsimile
transmission (with receipt confirmed), or mailed
17
by certified mail, postage prepaid, return receipt requested (such mailed
notice to be effective on the date of such receipt is acknowledged), as follows:
If to the Holder of Registrable Securities, at the most current address
given by such Holder to the Company in accordance with the provisions of this
Section 12(d), which address initially is, with respect to the Purchaser:
Amgen Inc.
Amgen Center
0000 XxXxxxxxxxx Xxxxx
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000-0000
Attn: Corporate Secretary
Telecopy No.: (000) 000-0000
With a copy to:
Xxxxxx & Xxxxxxx
000 Xxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxx, Esq.
Telecopy No.: (000) 000-0000
(ii) if to the Company, initially to:
Guilford Pharmaceuticals Inc.
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Corporate Secretary
Telecopy No.: (000) 000-0000
With a copy to:
Xxxxx & Xxxxxxx, L.L.P.
000 Xxxxx Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx Xxxxxx, Esq.
Telecopy No.: (000) 000-0000
or to such other place and with such other copies as either party may designate
as to itself by written notice to the others.
(e) Successors and Assigns. Except as otherwise expressly provided
----------------------
herein, this Agreement shall inure to the benefit of and be binding upon the
successors and assigns of each of the parties, including without limitation,
subsequent Holders of Registrable Securities; provided, however, that this
Agreement shall not inure to the benefit of or be binding upon a
18
successor or assign of a Holder of Registrable Securities unless and to the
extent such successor or assign acquired Registrable Securities from such
Holder.
(f) Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. This Agreement shall be governed by and construed
-------------
in accordance with the laws of the State of Delaware (without regard to choice
of law provisions).
(i) Severability. In the event that any one or more of the provisions
------------
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(j) Entire Agreement. This Agreement together with the Collateral
----------------
Agreements are 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. There are no restrictions, promises, warranties or undertakings, other
than those set forth or referred to herein with respect to the registration
rights granted by the Company with respect to the securities sold pursuant to
the Purchase Agreement. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter including
without limitation Exhibit A to the Binding Term Sheet.
[Signature Page To Follow]
19
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
GUILFORD PHARMACEUTICALS INC.
By:/s/ Xxxxx X. Xxxxx, M.D.
---------------------------------------------
Name: Xxxxx X. Xxxxx, M.D.
Title: President and Chief Executive Officer
AMGEN INC.
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President, General Counsel
and Secretary
S-1
