EXHIBIT 4.1
CURIS, INC.
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as of
July 18, 2001 by and among Curis, Inc., a Delaware corporation (the "Company"),
Elan International Services, Ltd., a Bermuda exempted limited liability company
("EIS"), and Elan Pharma International Limited, an Irish private limited
liability company and an affiliate of EIS ("EPIL").
R E C I T A L S:
A. Pursuant to a Securities Purchase Agreement dated as of the date
hereof by and among the Company, EIS and EPIL (the "Securities Purchase
Agreement"), (i) EIS has acquired (a) certain shares of the Company's common
stock, par value U.S.$0.01 per share (the "Common Stock"), (b) certain shares of
the Company's Series A convertible exchangeable preferred stock, par value
U.S.$0.01 per share (the "Series a preferred Stock"), convertible into certain
shares of Common Stock, and (c) a warrant (the "Warrant") to purchase certain
shares of Common Stock, and (ii) EPIL has acquired a convertible promissory note
of the Company (the "Note"), convertible into certain shares of Common Stock.
The Series A Preferred Stock, the Warrant and the Note collectively are referred
to herein as the "Securities".
B. The execution of the Securities Purchase Agreement has occurred
on the date hereof and it is a condition to the closing of the transactions
contemplated thereby that the parties execute and deliver this Agreement.
C. The parties desire to set forth herein their agreement on the
terms and subject to the conditions set forth herein related to the granting of
certain registration rights to the Holders (as defined below) relating to the
shares of Common Stock held and the shares of Common Stock issuable upon
conversion or exercise of the Securities, as the case may be, by such Holders.
A G R E E M E N T:
The parties hereto agree as follows:
1. Certain Definitions. As used in this Agreement, the following
terms shall have the following respective meanings:
"Commission" shall mean the U.S. Securities and Exchange Commission.
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"Exchange Act" shall mean the U.S. Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder, all as the same shall be in effect from time to time.
"Holders" or "Holders of Registrable Securities" shall mean EIS,
EPIL and any Person who shall have acquired Registrable Securities from EIS or
EPIL as permitted herein, either individually or jointly, as the case may be, in
a transaction pursuant to which registration rights are transferred pursuant to
Section 10 hereof.
"Person" shall mean an individual, a partnership, a corporation, a
limited liability company, an association, a joint stock company, a trust, a
joint venture, an unincorporated organization or a governmental or
quasi-governmental entity, or any department, agency or political subdivision
thereof or any other entity of any kind.
"Registrable Securities" means (i) any shares of Common Stock issued
to EIS pursuant to the Securities Purchase Agreement; (ii) any shares of Common
Stock issued or issuable upon conversion or exercise of the Securities, as the
case may be; and (iii) any shares of Common Stock issued or issuable in respect
of the securities referred to in clauses (i) and (ii) above whether to satisfy
interest or dividend payments or upon any stock split, stock dividend,
recapitalization or similar event, until, in the case of any such security, it
is (A) sold pursuant to an effective registration statement under the Securities
Act; (B) eligible to be sold into the public market without regard to volume
limitations under Rule 144(k) promulgated under the Securities Act (or any
successor rule); (C) sold pursuant to Rule 144 under the Securities Act (or any
successor rule); or (D) sold by a Person in a transaction in which registration
rights are not transferred pursuant to Section 10 hereof. Whenever a number or
percentage of Registrable Securities is to be determined pursuant to this
Agreement, each then outstanding Security that is convertible into or
exercisable for shares of Common Stock will be deemed to be equal to the number
of shares of Common Stock for which such Security is then so convertible or
exercisable.
The terms "register," "registered" and "registration" refer to a
registration effected by preparing, filing and having declared effective a
registration statement in compliance with the Securities Act.
"Registration Expenses" shall mean (i) all expenses, other than
Selling Expenses (defined below), incurred by the Company in complying with
Section 2 or 3 hereof, including without limitation, all registration,
qualification and filing fees, exchange or quotation medium listing fees,
printing and delivery expenses, escrow and custodian fees, fees and
disbursements of counsel for the Company, blue sky fees and expenses and the
expenses of accountants for the Company including the expenses of any special
audits incident to or required by any such registration and (ii) the reasonable
fees and disbursements of one
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counsel, not to exceed U.S.$10,0000 for any registration, chosen by the Holders
of a majority of the Registrable Securities included in such registration for
the purpose of rendering a legal opinion on behalf of such Holders in connection
with any Demand Registration or Piggyback Registration.
"Securities Act" shall mean the U.S. Securities Act of 1933, as
amended, and the rules and regulations of the Commission promulgated thereunder,
all as the same shall be in effect from time to time.
"Selling Expenses" shall mean all underwriting discounts, selling
commissions and stock transfer taxes and the costs, fees and expenses of any
accountants, attorneys (other than the cost, fees and expenses of attorneys
which are Registration Expenses) or other experts retained by the Holders.
2. Demand Registrations.
(a) Requests for Registration. At any time after the six-month
anniversary of this Agreement, any Holder or Holders who collectively hold
Registrable Securities representing at least 5% of the Registrable Securities
then outstanding shall have the right (subject to the limitations set forth
below), exercisable by written notice to the Company (each a "Registration
Request"), to have the Company prepare and file with the Commission a
registration statement under the Securities Act covering the Registrable
Securities that are the subject of such request (each, a "Demand Registration").
Within 10 days after receipt of any such request, the Company will give written
notice of such requested registration to all other Holders of Registrable
Securities. The Company shall include such other Holders' Registrable Securities
in such offering if they have responded affirmatively within 10 days after the
receipt of the Company's notice. If the securities requested to be included for
registration under the registration statement to be filed in respect of the
Registration Request, together with all other securities to be registered under
such registration statement, do not have an expected aggregate offering price to
the public of at least U.S.$1,000,000, the Company shall not be obligated to
file a registration statement in response to the Registration Request.
The Holders, collectively, shall be permitted one Demand
Registration hereunder on Form S-1 or any similar long-form registration
statement (or on Form S-3 or any similar short-form registration statement if
such short-form registration statement is then available to the Company) and the
Holders hereby agree that they shall make reasonable accommodations regarding
the timing of the Demand Registration to the managing underwriter(s) engaged by
the Company.
A request for registration under this Section 2(a) will not count as
a Demand Registration until the registration statement has become effective and
remained effective until
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the earlier of 30 days and the sale of all securities registered thereunder
(unless such registration statement has not become effective due solely to the
actions or failure to act with respect to such registration of the Holders
requesting such registration, including a request by such Holders that such
registration be withdrawn).
(b) Priority on Demand Registrations. If a Demand Registration is an
underwritten offering and the managing underwriters advise the Company in
writing that in their opinion the number of Registrable Securities and, if
permitted hereunder, other securities requested to be included in such offering,
exceeds the number of Registrable Securities and other securities, if any, which
can be sold in such offering without adversely affecting the marketability of
the offering, the Company will include in such registration:
(i) first, the Registrable Securities requested to be included in
such registration by the Holders (or, if necessary, such Registrable
Securities pro rata among the Holders thereof based upon the number of
Registrable Securities owned by each such Holder or such other arrangement
agreed to among the Holders); and
(ii) thereafter, other securities requested to be included in such
registration, as determined by the Company.
The Holders of any Registrable Securities to be included in such an
underwritten offering shall enter into an underwriting agreement (which shall be
in customary form, may include agreements as to indemnification and
contribution).
(c) Restrictions on Demand Registration. The Company may postpone or
suspend, for up to 90 days in any 12-month period, the filing or the
effectiveness of a registration statement for a Demand Registration if the
Company's board of directors determines in good faith and notifies the Holders
in writing that such Demand Registration (i) would reasonably be expected to
have a material adverse effect on (x) any proposal or plan by the Company to
engage in any financing, acquisition or disposition of assets (other than in the
ordinary course of business) or (y) any merger, consolidation, tender offer or
similar transaction or (ii) would require disclosure of any information that the
board of directors of the Company determines in good faith the disclosure of
which would be detrimental to the Company; provided, however, that in such
event, the Holders initially requesting such Demand Registration shall be
entitled to withdraw such request and, if such request is withdrawn, such Demand
Registration will not count as a permitted Demand Registration hereunder and the
Company will pay any Registration Expenses in connection with such registration.
(d) Selection of Investment Bankers and Managers. A majority of the
Holders participating in the offering will have the right, but not the
obligation, to select the
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investment banker(s) and manager(s) to administer an offering pursuant to a
Demand Registration, subject to the Company's prior written approval, which will
not be unreasonably withheld, delayed or conditioned.
(e) The Company represents and warrants that it is not a party to,
or otherwise subject to, any agreement, other than this Agreement, granting
registration rights to any other Person with respect to any securities of the
Company.
3. Piggyback Registrations.
(a) Right to Piggyback. If at any time the Company shall propose to
register shares of Common Stock under the Securities Act (other than in a
registration statement relating to solely to sales of securities to participants
in a Company dividend reinvestment plan, or Form S-4 or S-8 or any successor
form or in connection with an acquisition or exchange offer or an offering of
securities solely to the existing shareholders or employees of the Company), the
Company (i) will give prompt written notice to all Holders of Registrable
Securities of its intention to effect such a registration and (ii) subject to
Section 3(b) and the other terms of this Agreement, will include in such
registration all Registrable Securities which are permitted under applicable
securities laws to be included in the form of registration statement selected by
the Company and with respect to which the Company has received written requests
for inclusion therein within 30 days after the receipt of the Company's notice
(each, a "Piggyback Registration"). The Holders will be permitted to withdraw
all or any part of the Registrable Securities from a Piggyback Registration at
any time prior to the effective date of such Piggyback Registration.
(b) Priority on Piggyback Registrations. If a Piggyback Registration
is to be an underwritten offering, and the managing investment bank advises the
Company in writing that in their opinion the number of securities requested to
be included in such registration exceeds the number which can be sold in such
offering without adversely affecting the marketability of the offering, the
Company will include in such registration:
(i) first, the securities the Company proposes to sell for its own
account;
(ii) second, the Registrable Securities requested to be included in
such registration by the Holders and any securities requested to be
included in such registration by any other Person pursuant to a demand or
piggyback registration request, other than Persons having a lower priority
of registration than the Holders, pro rata among the Holders of such
Registrable Securities and such other Persons, on the basis of the number
of securities requested to be included in such registration by each of
such Holders and such other Persons; and
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(iii) thereafter, other securities requested to be included in such
registration, as determined by the Company.
The Holders of any Registrable Securities to be included in an
underwritten offering shall enter into an underwriting agreement (which shall be
in customary form, may include agreements as to indemnification and
contribution).
(c) Right to Terminate Registration. If at any time after giving
written notice of its intention to register any of its securities as set forth
in Section 3(a) and prior to the effective date of the registration statement
filed in connection with such registration, the Company shall determine for any
reason not to register such securities, the Company may, at its election, give
written notice of such determination to each Holder of Registrable Securities
and thereupon be relieved of its obligation to register any Registrable
Securities in connection with such registration (but not from its obligation to
pay the Registration Expenses in connection therewith as provided herein).
(d) Selection of Underwriters/Placement Agents. The Company will
have the right to select the investment banker(s) and manager(s) to administer
an offering pursuant to a Piggyback Registration, subject to the reasonable
approval of the holders of a majority of the shares of Common Stock being
registered on such registration statement, which approval shall not be
unreasonably withheld, delayed or conditioned; provided that for the purposes of
this Section 3(d), to the extent the Company is issuing shares of Common Stock
in connection with such registration statement, the Company shall be deemed to
be a holder of the number of shares of Common Stock being issued under such
registration statement and to have approved of such selection.
4. Expenses of Registration.
Except as otherwise provided herein or as may otherwise be
prohibited by applicable law, all Registration Expenses incurred in connection
with all registrations pursuant to Sections 2 and 3 hereof shall be borne by the
Company. All Selling Expenses relating to securities registered on behalf of the
Holders of Registrable Securities shall be borne by such Holders.
5. Holdback Agreements.
(a) The Company agrees (i) not to effect any public sale or
distribution of its equity securities, or any securities convertible into or
exchangeable or exercisable for such securities, during the 10-day period prior
to, and during the 90-day period following, the effective date of any
underwritten Demand Registration or any underwritten Piggyback Registration
(except (x) as part of such underwritten registration, (y) pursuant to
registration
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statements on Form S-4 or Form S-8 or any successor form or (z) pursuant to a
registration statement then in effect), unless the underwriters managing the
offering otherwise agree, and (ii) to use its reasonable best efforts to cause
its officers and directors and each holder of at least 5% (on a fully-diluted
basis) of its outstanding shares of Common Stock, or any securities convertible
into or exchangeable or exercisable for shares of Common Stock, purchased from
the Company at any time after the date of this Agreement (other than in a
registered public offering) to agree not to effect any public sale or
distribution (including sales pursuant to Rule 144) of any such securities
during such periods (except as part of such underwritten registration, if
otherwise permitted), unless the underwriters managing the registered public
offering otherwise agree.
(b) If requested by the managing underwriter(s) in an underwritten
offering of Common Stock or securities convertible into or exchangeable or
exercisable for shares of Common Stock of the Company, each Holder agrees,
except to the extent such Holder is a participant in such offering, not to
effect any offer, sale, distribution or transfer, including a sale pursuant to
Rule 144 (or any similar provision then effect) under the Securities Act (except
as part of such underwritten registration) (each a "Lock-up"), during the 10-day
period prior to, and during the 180-day period following, the effective date of
such Registration Statement relating to any public offering of shares of Common
Stock (or, in each case, such shorter period as may be agreed to in writing by
the Company and the Holders of at least 50% of the Registrable Securities);
provided, however, that no Holder shall be required to enter into such an
agreement unless all Persons entitled to registration rights who are not parties
to this Agreement, all other persons selling shares in such offering, all
Persons holding in excess of 1% on a fully diluted basis) of the Company's
outstanding shares of Common Stock (other than that purchased in a registered
public offering) and all executive officers and directors of the Company shall
also have agreed not to offer, sell, distribute a transfer under the
circumstances and pursuant to the terms set forth in this Section 5(b);
provided, further, that in the event that if the foregoing proviso is satisfied
and any Person referenced in such proviso shall have entered into a Lock-up for
a period of less than 180 days following the effective date of such Registration
Statement, the Holders shall not be required to enter into a Lock-up for a
period that exceeds the greater of (x) 90 days after the effective date of such
Registration Statement and (y) the length of the shortest Lock-up period after
the effective date of such Registration Statement agreed to by any such Person.
6. Registration Procedures.
Whenever the Holders of Registrable Securities have requested that
any Registrable Securities be registered pursuant to this Agreement, the Company
will use its reasonable best efforts to effect the registration of such
Registrable Securities in accordance with the intended method or methods of
distribution thereof, and pursuant thereto the
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Company will under the time frames provided herein, or if not so provided, as
expeditiously as is reasonable:
(a) prepare and file with the Commission a registration statement on
any appropriate form for which the Company qualifies with respect to such
Registrable Securities and use its reasonable best efforts to cause such
registration statement to become effective (provided that before filing a
registration statement or prospectus or any amendments or supplements
thereto, the Company will (i) furnish to the counsel selected by the
Holders copies of all such documents proposed to be filed, which documents
will be subject to the review of such counsel, and (ii) notify each Holder
of Registrable Securities covered by such registration of any stop order
issued or threatened by the Commission);
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be reasonably necessary to keep such
registration statement effective for a period equal to the shorter of (i)
six months and (ii) the time by which all securities covered by such
registration statement have been sold, and comply with the provisions of
the Securities Act with respect to the disposition of all securities
covered by such registration statement during such period in accordance
with the intended methods of disposition by the sellers thereof set forth
in such registration statement;
(c) furnish to each seller of Registrable Securities such number of
copies of such registration statement, each amendment and supplement
thereto, the prospectus included in such registration statement (including
each preliminary prospectus) and such other documents as such seller may
reasonably request in order to facilitate the disposition of the
Registrable Securities owned by such seller;
(d) use all reasonable efforts to register or qualify such
Registrable Securities under the securities or blue sky laws of such
jurisdictions as any seller reasonably requests and do any and all other
acts and things which may be reasonably necessary or advisable to enable
such seller to consummate the disposition in such jurisdictions of the
Registrable Securities owned by such seller (provided that the Company
will not be required to (i) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for
this Section 6(d), (ii) subject itself to taxation in any jurisdiction or
(iii) take any action that would subject it to general service of process
in any such jurisdiction);
(e) promptly notify each seller of such Registrable Securities, at
any time when a prospectus relating thereto is required to be delivered
under the Securities Act, of the happening of any event as a result of
which the prospectus included in such
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registration statement contains an untrue statement of a material fact or
omits any material fact necessary to make the statements therein not
misleading, and, the Company will prepare and deliver to each Holder a
supplement or amendment to such prospectus so that, as thereafter
delivered to the purchasers of such Registrable Securities, such
prospectus will not contain an untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein not
misleading; provided, however, that the Company shall be required to
notify the Holders, but shall not be required to amend the registration
statement or supplement the Prospectus for a period of up to six months if
the board of directors determines in good faith that to do so would
reasonably be expected to have a material adverse effect on any proposal
or plan by the Company to engage in any financing, acquisition or
disposition of assets (other than in the ordinary course of business) or
any merger, consolidation, tender offer or similar transaction or would
require the disclosure of any information that the board of directors
determines in good faith the disclosure of which would be materially
detrimental to the Company, it being understood that the period for which
the Company is obligated to keep the Registration Statement effective
shall be extended for a number of days equal to the number of days the
Company delays amendments or supplements pursuant to this provision. Upon
receipt of any notice pursuant to this Section 6(e), the Holders shall
suspend all offers and sales of securities of the Company and all use of
any prospectus until advised by the Company that offers and sales may
resume, and shall keep confidential the fact and content of any notice
given by the Company pursuant to this Section 6(e);
(f) cause all such Registrable Securities to be listed on each
securities exchange or quoted on Nasdaq or other quotation medium, if any,
on which similar securities issued by the Company are then listed or
quoted;
(g) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration
statement;
(h) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the
Holders of a majority of the Registrable Securities being sold or the
underwriters, if any, reasonably request in order to expedite or
facilitate the disposition of such Registrable Securities;
(i) make available for inspection by the Holders of Registrable
Securities included in the registration statement, any underwriter
participating in any disposition pursuant to such registration statement
and any attorney, accountant or other agent retained by any such seller or
underwriter, all pertinent financial and other records, pertinent
corporate documents and properties of the Company, and cause the
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Company's officers, directors, employees and independent accountants to
supply all information reasonably requested by any such seller,
underwriter, attorney, accountant or agent in connection with such
registration statement;
(j) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the Commission, and make available to
its security holders, as soon as reasonably practicable, an earnings
statement covering the period of at least 12 months beginning with the
first day of the Company's first full calendar quarter after the effective
date of the registration statement, which earnings statement shall satisfy
the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder;
(k) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the
qualification of any shares of Common Stock included in such registration
statement for sale in any jurisdiction, use its reasonable best efforts
promptly to obtain the withdrawal of such order;
(l) if the registration is an underwritten offering, use its
reasonable best efforts to obtain a so-called "cold comfort" letter from
the Company's independent public accountants in customary form and
covering such matters of the type customarily covered by cold comfort
letters;
(m) use its reasonable best efforts to cause such Registrable
Securities covered by such registration statement to be registered with or
approved by such other governmental agencies or authorities as may be
necessary to enable the sellers thereof to consummate the disposition of
such Registrable Securities; and
(n) if any such registration or comparable statement refers to any
Holder by name or otherwise as the holder of any securities of the Company
and if in its sole and exclusive judgment, such Holder is or might be
deemed to be an underwriter or a controlling person of the Company, such
Holder shall have the right to require (i) the insertion therein of
language, in form and substance satisfactory to such Holder and presented
to the Company in writing, to the effect that the holding by such Holder
of such securities is not to be construed as a recommendation by such
Holder of the investment quality of the Company's securities covered
thereby and that such holding does not imply that such Holder shall assist
in meeting any future financial requirements of the Company, or (ii) in
the event that such reference to such Holder by name or otherwise is not
required by the Securities Act or any similar Federal statute then in
force, the deletion of the reference to such Holder; provided that with
respect to this clause (ii) such Holder shall (a) furnish to the Company
an opinion of counsel to such effect, which opinion and counsel shall be
reasonably satisfactory to the Company
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and (b) indemnify the Company against any loss or liability imposed upon
and any reasonable expenses incurred by the Company as a result of such
deletion.
7. Obligations of Holders.
Whenever the Holders of Registrable Securities sell any Registrable
Securities pursuant to a Demand Registration or a Piggyback Registration, such
Holders shall be obligated to comply with the applicable provisions of the
Securities Act, including the prospectus delivery requirements thereunder, and
any applicable state securities or blue sky laws. In addition, each Holder of
Registrable Securities will be deemed to have agreed by virtue of its
acquisition of such Registrable Securities that, upon receipt of any notice
described in Section 6(e), such Holder will forthwith discontinue disposition of
such Registrable Securities covered by such registration statement or prospectus
until such Holder's receipt of the copies of the supplemented or amended
prospectus contemplated by Section 6(e), or until it is advised in writing by
the Company that the use of the applicable prospectus may be resumed, and has
received copies of any additional or supplemental filings that are incorporated
or deemed to be incorporated by reference in such prospectus.
8. Indemnification.
(a) The Company agrees to indemnify, to the fullest extent permitted
by applicable law, each Holder of Registrable Securities, its officers and
directors and each Person who controls such Holder (within the meaning of the
Securities Act) against all losses, claims, damages, liabilities, expenses or
any amounts paid in settlement of any litigation, investigation or proceeding
commenced or threatened (collectively, "Claims") to which each such indemnified
party may become subject under the Securities Act insofar as such Claim arose
out of (i) any untrue or alleged untrue statement of material fact contained, in
any registration statement, prospectus or preliminary prospectus or any
amendment thereof or supplement thereto or (ii) 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 the same are
caused by or contained in any information furnished in writing to the Company by
such Holder expressly for use therein or by such Holder's failure to deliver a
copy of the registration statement or prospectus or any amendments or
supplements thereto after the Company has furnished such Holder with copies of
the same. In connection with an underwritten offering, the Company will
indemnify the underwriters, their officers and directors and each Person who
controls the underwriters (within the meaning of the Securities Act) to the same
extent as provided above with respect to the indemnification of the Holders of
Registrable Securities.
(b) In connection with any registration statements in which a Holder
of Registrable Securities is participating, each such Holder will, to the
fullest extent permitted by
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applicable law, indemnify the Company, its directors and officers and each
Person who controls the Company (within the meaning of the Securities Act)
against any and all Claims to which each such indemnified party may become
subject under the Securities Act insofar as such Claim arose out of (i) any
untrue or alleged untrue statement of material fact contained in any
registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto, (ii) 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; provided that with respect to a Claim arising
pursuant to clause (i) or (ii) above, the material misstatement or omission is
contained in the information such Holder provided to the Company pursuant to
Section 11 hereof; provided, further, that the obligation to indemnify will be
individual to each Holder and will be limited to the amount of proceeds received
by such Holder from the sale of Registrable Securities pursuant to such
registration statement.
(c) Any Person entitled to indemnification hereunder will (i) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification (but the failure to provide such notice shall not
release the indemnifying party of its obligation under paragraphs (a) and (b),
unless and then only to the extent that, the indemnifying party has been
prejudiced by such failure to provide such notice) and (ii) unless in such
indemnified party's reasonable judgment, based on written advice of counsel, a
conflict of interest between such indemnified and indemnifying parties may exist
with respect to such claim, permit such indemnifying party to assume the defense
of such claim with counsel reasonably satisfactory to the indemnified party. An
indemnifying party who is not entitled to, or elects not to, assume the defense
of a claim will not be obligated to pay the fees and expenses of more than one
counsel for all parties indemnified by such indemnifying party with respect to
such claim, unless in the reasonable judgment of any indemnified party, based on
written advice of counsel, a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim.
(d) The indemnifying party shall not be liable to indemnify an
indemnified party for any settlement, or consent to judgment of any such action
effected without the indemnifying party's written consent (but such consent will
not be unreasonably withheld, delayed or conditioned). Furthermore, the
indemnifying party shall not, except with the prior written approval of each
indemnified party, consent to entry of any judgment or enter into any settlement
which does not include as an unconditional term thereof the giving by the
claimant or plaintiff to each indemnified party of a release from all liability
in respect of such claim or litigation without any payment or consideration
provided by each such indemnified party.
(e) If the indemnification provided for in this Section 8 is
unavailable to an indemnified party under clauses (a) and (b) above in respect
of any losses, claims, damages or liabilities referred to therein, then each
indemnifying party, in lieu of indemnifying such
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indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities in
such proportion as is appropriate to reflect not only the relative benefits
received by the Company, the underwriters, the sellers of Registrable Securities
and any other sellers participating in the registration statement from the sale
of shares pursuant to the registered offering of securities for which indemnity
is sought but also the relative fault of the Company, the underwriters, the
sellers of Registrable Securities and any other sellers participating in the
registration statement in connection with the misstatement or omission which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the
Company, the underwriters, the sellers of Registrable Securities and any other
sellers participating in the registration statement shall be deemed to be based
on the relative relationship of the total net proceeds from the offering (before
deducting expenses) to the Company, the total underwriting commissions and fees
from the offering (before deducting expenses) to the underwriters and the total
net proceeds from the offering (before deducting expenses) to the sellers of
Registrable Securities and any other sellers participating in the registration
statement. The relative fault of the Company, the underwriters, the sellers of
Registrable Securities and any other sellers participating in the registration
statement 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 sellers of Registrable Securities and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission; provided that in no event shall the liability of any
selling Holder 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.
(f) The indemnification provided for under this Agreement will
remain in full force and effect regardless of any investigation made by or on
behalf of the indemnified party or any officer, director or controlling person
of such indemnified party and will survive the transfer of the Registrable
Securities.
9. Participation in Underwritten Registrations.
No Person may participate in any registration hereunder which is
underwritten unless such Person (a) agrees to sell such Person's securities on
the basis provided in any underwriting arrangements approved by the Person or
Persons entitled hereunder to approve such arrangements and (b) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of such
underwriting arrangements; provided that no Holder of Registrable Securities
included in any underwritten registration shall be required to make any
representations or
-14-
warranties to the Company or the underwriters (other than representations and
warranties regarding such Holder and such Holder's intended method of
distribution) or to undertake any indemnification obligations to the Company or
the underwriters with respect thereto, except as otherwise provided in paragraph
8 hereof.
10. Transfer of Registration Rights.
The rights granted to any Holder under this Agreement may be
assigned to any Person in connection with any transfer or assignment of
Registrable Securities by a Holder; provided, however, that: (a) such transfer
is otherwise effected in accordance with applicable securities laws, (b) such
transfer is not in violation of the Securities Purchase Agreement, (c) if not
already a party hereto, the assignee or transferee agrees in writing prior to
such transfer to be bound by the provisions of this Agreement, and (d) unless
otherwise notified by such Holder, EIS shall act as agent and representative for
such Holder for the giving and receiving of notices hereunder.
11. Information by Holder.
Each Holder shall furnish to the Company such written information
regarding such Holder and any distribution proposed by such Holder as the
Company may reasonably request in writing and as shall be reasonably required in
connection with any registration, qualification or compliance referred to in
this Agreement and shall promptly notify the Company of any changes in such
information.
12. Exchange Act Compliance.
The Company shall comply with all of the reporting requirements of
the Exchange Act then applicable to it, if any, and shall comply with all other
public information reporting requirements of the Commission which are conditions
to the availability of Rule 144 for the sale of the Registrable Securities. The
Company shall cooperate with each Holder in supplying such information as may be
necessary for such Holder to complete and file any information reporting forms
presently or hereafter required by the Commission as a condition to the
availability of Rule 144.
13. Termination of Registration Rights.
All registration rights granted under this Agreement shall terminate
and be of no further force and effect as to a particular Holder on the date that
(i) all Registrable Securities held by such Holder may immediately be sold
without restriction under Rule 144 during any 90-day period as determined by
counsel to the Company pursuant to a written opinion letter delivered by such
counsel to such effect addressed to the Company's transfer
-15-
agent for shares of Common Stock and such Holder or (ii) all Registrable
Securities held by such Holder have been registered with the Commission or are
no longer outstanding. For the avoidance of doubt, in order to satisfy the
requirements of clause (i) above, (x) all Registrable Securities held by such
Holder must be in the form of Common Stock and (y) such Holder shall not then
have the right to receive additional Registrable Securities (other than right to
receive dividends or other distributions on then-outstanding shares of Common
Stock held by such Holder on the same basis as other holders of shares of Common
Stock).
14. Miscellaneous.
(a) No Inconsistent Agreements. So long as any Holder owns any
Registrable Securities, the Company will not enter into any agreement that is
inconsistent with or violates the rights granted hereunder to the Holders of
Registrable Securities, including, without limitation, any agreement that would
require the Company to register any of its securities with priority with respect
to registration over, the rights granted to the Holders hereunder, without the
prior written consent of the Holders of at least 50% of the Registrable
Securities.
(b) Remedies. Any Person having rights under any provision of this
Agreement will be entitled to enforce such rights specifically to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or other security) for specific performance and for other injunctive
relief in order to enforce or prevent violation of the provisions of this
Agreement; provided, however, that in no event shall any Holder have the right
to enjoin, delay or interfere with any offering of securities by the Company.
(c) Amendments and Waivers. Except as otherwise provided herein, the
provisions of this Agreement may be amended or waived only with the prior
written consent of the Company and Holders of at least 50% of the Registrable
Securities; provided, however, that without the prior written consent of all the
Holders, no such amendment or waiver shall reduce the foregoing percentage
required to amend or waive any provision of this Agreement.
(d) Successors and Assigns. This Agreement and all of the provisions
hereof shall be binding upon and inure to the benefit of the parties and their
respective successors and permitted assigns. In addition, whether or not any
express assignment has been made, the provisions of this Agreement which are for
the benefit of Holders of Registrable Securities are also for the benefit of,
and enforceable by, any permitted transferee of Registrable Securities, in
accordance with Section 10 hereof.
-16-
(e) Severability. In case any provision of this Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not be in any way affected or impaired thereby.
(f) Counterparts and Facsimile. This Agreement may be executed in
any number of counterparts, and each such counterpart hereof shall be deemed to
be an original instrument, but all such counterparts together shall constitute
one agreement. This Agreement may be signed and delivered to the other party by
facsimile transmission; such transmission shall be deemed a valid signature.
(g) Descriptive Headings. The section and paragraph headings
contained in this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement.
(h) Governing Law; Disputes. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York, without
giving effect to conflicts of laws rules or principles. Any dispute under this
Agreement that is not settled by mutual consent shall be finally adjudicated by
any federal or state court sitting in the City, County and State of New York,
and each party consents to the exclusive jurisdiction of such courts (or any
appellate court therefrom) over any such dispute.
(i) Notices. All notices, demands and requests of any kind to be
delivered to any party in connection with this Agreement shall be in writing and
shall be deemed to have been duly given if personally or hand delivered or if
sent by internationally-recognized overnight courier or by registered or
certified mail, return receipt requested and postage prepaid, or by facsimile
transmission, in each case, addressed as follows:
(i) if to the Company, to:
Curis, Inc.
00 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000-0000
Attention: Doros Platika, M.D., President and
Chief Executive Officer
Facsimile: (000) 000-0000
with a copy to:
-00-
Xxxxxx Xxxxxxx LLP
0000 Xxxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: L. Xxx Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
(ii) (A) if to EIS, to:
Elan International Services, Ltd.
000 Xx. Xxxxx Xxxxx
Xxxxxx, Xxxxxx Xxxxxx
Xxxxxxx XX 04
Attention: Chief Executive Officer
Facsimile: (000) 000-0000
(B) if to EPIL, to:
Elan Pharma International Limited
Wil House
Xxxxxxx Business Xxxx
Xxxxxxx
Co. Clare, Ireland
Attention: Company Secretary
Facsimile: 011 353 61 362 097
with a copy to, in the case of (ii) above:
Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
or to such other address as the party to whom notice is to be given may have
furnished to the other party hereto in writing in accordance with provisions of
this Section 14(i). Any such notice or communication shall be deemed to have
been effectively given (i) in the case of personal or hand delivery, on the date
of such delivery, (ii) in the case of an internationally-recognized overnight
delivery courier, on the second business day after the date when sent or earlier
upon receipt of evidence of acceptance of delivery, (iii) in the case of
mailing, on the fifth business day following that day on which the piece of mail
containing such
-18-
communication is posted and (iv) in the case of facsimile transmission, on the
date of telephone confirmation of receipt.
(j) Entire Agreement. This Agreement constitutes the full and entire
understanding and agreement of the parties with regard to the subject matter
hereof and supersedes all prior agreements and understandings among the parties
with respect thereto.
[Signature page follows]
IN WITNESS WHEREOF, the parties have executed this Registration
Rights Agreement as of the date first written above.
CURIS, INC.
By: /s/ Doros Platika, M.D.
--------------------------------
Name: Doros Platika, M.D.
Title: President and Chief Executive
Officer
ELAN INTERNATIONAL SERVICES, LTD.
By: /s/ Xxxxx Xxxxx Buryj
-----------------------------
Name: Xxxxx Xxxxx Buryj
Title: Vice President
ELAN PHARMA INTERNATIONAL
LIMITED
By: /s/ Xxxxx Xxxxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxxxx
Title: Authorized Signatory
