IDERA PHARMACEUTICALS, INC. REGISTRATION RIGHTS AGREEMENT
Exhibit 10.2
REGISTRATION RIGHTS AGREEMENT (this “AGREEMENT”), dated as of November 4, 2011, by and among
IDERA PHARMACEUTICALS, INC., a corporation organized under the laws of the State of Delaware (the
“COMPANY”), and each of the persons or entities listed on Exhibit A hereto (the
“PURCHASERS”).
WHEREAS:
In connection with the Convertible Preferred Stock and Warrant Purchase Agreement, dated as of
even date herewith, by and among the Company and the Purchasers (the “STOCK PURCHASE AGREEMENT”),
the Company has agreed, upon the terms and subject to the conditions contained therein, to issue
and sell to the Purchasers (i) shares (the “SHARES”) of the Company’s Series D convertible
preferred stock, par value $0.01 per share (the “PREFERRED STOCK”), and (ii) warrants (the
“WARRANTS”) to acquire shares of the Company’s common stock, par value $0.001 per share (the
“COMMON STOCK”). The shares of Common Stock issuable upon exercise of or otherwise pursuant to the
Warrants are referred to herein as the “WARRANT SHARES.”
To induce the Purchasers to execute and deliver the Stock Purchase Agreement, the Company has
agreed to provide certain registration rights under the Securities Act of 1933, as amended, and the
rules and regulations thereunder, or any similar successor statute (collectively, the “SECURITIES
ACT”), and applicable state securities laws.
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Purchasers hereby agree as follows:
1. DEFINITIONS.
A. As used in this Agreement, the following terms shall have the following meanings:
i. “PURCHASERS” means the Purchasers and any transferees or assignees who agree to become
bound by the provisions of this Agreement in accordance with Section 10 hereof.
ii. “REGISTER,” “REGISTERED,” and “REGISTRATION” refer to a registration effected by preparing
and filing a Registration Statement or Statements in compliance with the Securities Act and
pursuant to Rule 415 under the Securities Act or any successor rule providing for offering
securities on a continuous basis (“RULE 415”), and the declaration or ordering of effectiveness of
such Registration Statement by the United States Securities and Exchange Commission (the “SEC”).
iii. “REGISTRABLE SECURITIES” means (a) the shares of Common Stock issued or issuable upon the
conversion of the Shares (the “CONVERSION SHARES”), (b) the
Warrant Shares and (c) any shares of
capital stock issued or issuable, from time to time (with any adjustments), in respect of the
Conversion Shares or the Warrant Shares by virtue of any stock split, stock dividend,
recapitalization or similar event; provided, however, that shares of Common Stock that are
Registrable Securities shall cease to be Registrable Securities upon the earliest of (A) the date
such shares become eligible for sale pursuant to Rule 144(b)(1)(i) under the Securities Act;
provided that a period of at least one year, as determined in accordance with paragraph (d)
of Rule 144 under the Securities Act, has elapsed since the later of the date such shares were
acquired from the Company or an affiliate of the Company, (B) the date that such shares are sold
(I) pursuant to a registration statement, (II) to or through a broker, dealer or underwriter in a
public securities transaction and/or (III) in a transaction exempt from the registration and
prospectus delivery requirements of the Securities Act such that all transfer restrictions and
restrictive legends with respect thereto, if any, are removed upon the consummation of such sale,
or (C) any sale or transfer to any person or entity which by virtue of Section 10 of this Agreement
is not entitled to the rights provided by this Agreement. Wherever reference is made in this
Agreement to a request or consent of holders of a certain percentage of Registrable Securities, the
determination of such percentage shall include shares of Common Stock issuable upon conversion of
the Shares or exercise of the Warrants, even if such conversion or exercise has not been effected.
iv. “REGISTRATION STATEMENT” means a registration statement of the Company under the
Securities Act.
B. Capitalized terms used herein and not otherwise defined herein shall have the respective
meanings set forth in the Stock Purchase Agreement.
2. REGISTRATION.
A. MANDATORY REGISTRATION. The Company shall file with the SEC and use its reasonable best
efforts to cause to become effective a Registration Statement on Form S-3 (or, if Form S-3 is not
then available, on such form of Registration Statement as is then available to effect a
registration of all of the Registrable Securities) covering the resale of the Registrable
Securities on or prior to February 2, 2012. The Registration Statement filed hereunder, to the
extent allowable under the Securities Act, shall state that such Registration Statement also covers
such indeterminate number of additional shares of Common Stock as may become issuable upon
conversion of the Preferred Stock or exercise of the Warrants to prevent dilution resulting from
stock splits, stock dividends or similar transactions.
B. PAYMENTS BY THE COMPANY. If the Registration Statement is not declared effective by the
SEC on or before March 4, 2012 (the “REGISTRATION DEADLINE”) or, (ii) if, after the Registration
Statement has been declared effective by the SEC, sales of any of the Registrable Securities cannot
be made pursuant to such Registration Statement because such Registration Statement has been
suspended (by reason of a stop order or the Company’s failure to update the Registration Statement
or otherwise) except as a result of a permitted Suspension under Section 9, then the Company will
make payments to the Purchasers in such amounts and at such times as shall be determined pursuant
to this Section 2(B), as liquidated damages and not as
a penalty for such delay in or reduction of their ability to sell the Registrable Securities
(which remedy shall constitute the Purchasers exclusive monetary remedy). The Company shall pay to
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each Purchaser an amount equal to the product of (i) the aggregate purchase price of the Shares
then held by such Purchaser (the “AGGREGATE SHARE PRICE”), multiplied by (ii) one hundredths (.01),
for each thirty (30) day period, (A) after the Registration Deadline and prior to the date the
Registration Statement filed pursuant to Section 2(A) is declared effective by the SEC, and (B)
during which sales of any Registrable Securities cannot be made pursuant to any such Registration
Statement after the Registration Statement has been declared effective; provided,
however, that there shall be excluded from each such period any delays which are
attributable to changes (other than corrections of Company mistakes with respect to information
previously provided by the Purchasers) required by the Purchasers in the Registration Statement
with respect to information relating to the Purchasers, including, without limitation, changes to
the plan of distribution. Such amounts shall be paid in cash within five (5) trading days after
the end of each thirty (30) day period that gives rise to such obligation. Notwithstanding the
foregoing, in no event shall the Company be obligated to make payments hereunder (a) to more than
one Purchaser in respect of the same Registrable Securities for the same period of time or (b) to
any one Purchaser in an aggregate amount that exceeds 10% of the Aggregate Purchase Price paid by
such Purchaser for such Shares. All liquidated damages hereunder shall apply on a daily pro-rata
basis for any portion of a 30-day period prior to the cure of any of the events specified in (A) or
(B) of this Section 2(B).
3. OBLIGATIONS OF THE COMPANY.
In connection with the registration of the Registrable Securities, the Company shall have the
following obligations:
A. The Company shall prepare and file with the SEC such amendments (including post-effective
amendments) and supplements to the Registration Statement and the prospectus used in connection
with the Registration Statement as may be necessary to keep the Registration Statement effective
pursuant to Rule 415 at all times until no Registrable Securities remain outstanding (the
“REGISTRATION PERIOD”), and, during such period, comply with the provisions of the Securities Act
in order to enable the disposition of all Registrable Securities of the Company covered by the
Registration Statement until such time as all of such Registrable Securities have been disposed of
in accordance with the intended methods of disposition by the seller or sellers thereof as set
forth in the Registration Statement.
B. In connection with the effectiveness of the Registration Statement, the Company shall
furnish to each Purchaser whose Registrable Securities are included in the Registration Statement
within three trading days of the date of effectiveness of the Registration Statement or any
amendment thereto, a notice stating that the Registration Statement or amendment has been declared
effective; and such number of copies of a prospectus, including a preliminary prospectus, and all
amendments and supplements thereto and such other documents as such Purchaser may reasonably
request in order to facilitate the disposition of the Registrable Securities owned by such
Purchaser.
C. The Company shall use its reasonable best efforts to (i) register and qualify the
Registrable Securities covered by the Registration Statement under such other securities or “blue
sky” laws of such jurisdictions in the United States as each Purchaser who holds Registrable
Securities being offered reasonably requests, (ii) prepare and file in those jurisdictions such
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amendments (including post-effective amendments) and supplements to such registrations and
qualifications as may be necessary to maintain the effectiveness thereof during the Registration
Period, (iii) take such other actions as may be necessary to maintain such registrations and
qualifications in effect at all times during the Registration Period, and (iv) take all other
actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such
jurisdictions; provided, however, that the Company shall not be required in connection therewith or
as a condition thereto to (a) qualify to do business in any jurisdiction where it would not
otherwise be required to qualify but for this Section 3(C), (b) subject itself to general taxation
in any such jurisdiction, (c) file a general consent to service of process in any such
jurisdiction, (d) provide any undertakings that cause the Company undue expense or burden, or (e)
make any change in its charter or by-laws, which in each case the Board of Directors of the Company
determines to be contrary to the best interests of the Company and its stockholders.
D. The Company shall notify each Purchaser who holds Registrable Securities of the time when a
supplement to any prospectus forming a part of such Registration Statement has been filed and of
any request by the Commission for the amending or supplementing of such Registration Statement or
prospectus. If the Company has delivered a Prospectus and after having done so the prospectus is
amended to comply with the requirements of the Securities Act, the Company shall promptly notify
each Purchaser who holds Registrable Securities and, if requested, such Purchasers shall
immediately cease making offers of Registrable Securities and return all prospectuses to the
Company. The Company shall promptly provide the Purchasers with revised prospectuses and,
following receipt of the revised prospectuses, the Purchasers shall be free to resume making offers
of the Registrable Securities.
E. The Company shall provide a transfer agent and registrar, which may be a single entity, for
the Registrable Securities not later than the effective date of the Registration Statement.
F. The Company shall cooperate with the Purchasers who hold Registrable Securities to
facilitate the timely preparation and delivery of certificates representing Registrable Securities
to be offered pursuant to the Registration Statement and enable such certificates to be in such
denominations or amounts, as the case may be, as Purchasers may reasonably request and registered
in such names as the Purchasers may request.
G. At the reasonable request of the Purchasers holding a majority in interest of the
Registrable Securities, the Company shall prepare and file with the SEC such amendments (including
post effective amendments) and supplements to a Registration Statement and the prospectus used in
connection with such Registration Statement as may be necessary in order to change the plan of
distribution set forth in such Registration Statement.
H. The Company shall use its reasonable best efforts to cause all Registrable Securities
registered pursuant to this Agreement to be listed on each securities exchange or trading system on
which similar securities issued by the Company are then listed.
4. OBLIGATIONS OF THE PURCHASERS. In connection with the registration of the Registrable
Securities, the Purchasers shall have the following obligations:
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A. It shall be a condition precedent to the obligations of the Company under Sections 2 and 3
with respect to the Registrable Securities of a particular Purchaser that such Purchaser shall
furnish to the Company such information regarding itself, the Registrable Securities held by it and
the intended method of disposition of the Registrable Securities held by it as shall be reasonably
required to effect the registration of such Registrable Securities and shall execute such documents
in connection with such registration as the Company may reasonably request. At least five (5)
trading days prior to the first anticipated filing date of the Registration Statement, the Company
shall notify each Purchaser of the information the Company requires from each such Purchaser.
B. Each Purchaser, by such Purchaser’s acceptance of the Registrable Securities, agrees to
cooperate with the Company as reasonably requested by the Company in connection with the
preparation and filing of the Registration Statement hereunder, unless such Purchaser has notified
the Company in writing of such Purchaser’s election to exclude all of such Purchaser’s Registrable
Securities from such Registration Statement.
C. Each Purchaser agrees that, upon receipt of any notice from the Company of the happening of
any event of the kind described in Sections 3(D) or 9, such Purchaser will immediately discontinue
disposition of Registrable Securities pursuant to the Registration Statement covering such
Registrable Securities until such Purchaser’s receipt of the copies of the supplemented or amended
prospectus contemplated by Sections 3(D) or 9.
5. EXPENSES OF REGISTRATION. All reasonable expenses incurred by the Company or the Purchasers in
connection with registrations, filings or qualifications pursuant to Sections 2 and 3 above,
including, without limitation, all registration, listing and qualifications fees, printers and
accounting fees, the fees and disbursements of counsel for the Company and the fees and
disbursements of one counsel selected by the Purchasers, shall be borne by the Company, excluding
underwriting discounts, selling commissions and similar costs which shall be borne by the
Purchasers.
6. INDEMNIFICATION. In the event any Registrable Securities are included in a Registration
Statement under this Agreement:
A. To the extent permitted by law, the Company will indemnify, hold harmless and defend (i)
each Purchaser who holds such Registrable Securities, and (ii) the directors, officers, partners,
members, employees and agents of such Purchaser and each person who controls any Purchaser within
the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of
1934, as amended (the “EXCHANGE ACT”), if any, (each, an “INDEMNIFIED PERSON”), against any joint
or several losses, claims, damages, liabilities or expenses (collectively, together with actions,
proceedings or inquiries by any regulatory or self-regulatory organization, whether commenced or
threatened, in respect thereof, “CLAIMS”) to which any of them may become subject insofar as such
Claims arise out of or are based upon: (i) any untrue statement or alleged untrue statement of a
material fact in a Registration Statement or the omission or alleged omission to state therein a
material fact required to be stated or necessary
to make the statements therein not misleading, (ii) any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus if used prior to the effective
date of such Registration Statement, or contained in the final prospectus (as amended or
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supplemented, if the Company files any amendment thereof or supplement thereto with the SEC) or the
omission or alleged omission to state therein any material fact necessary to make the statements
made therein, in light of the circumstances under which the statements therein were made, not
misleading, or (iii) any violation or alleged violation by the Company of the Securities Act, the
Exchange Act, any other law, including, without limitation, any state securities law, or any rule
or regulation thereunder relating to the offer or sale of the Registrable Securities (the matters
in the foregoing clauses (i) through (iii), collectively, “VIOLATIONS”). Subject to the
restrictions set forth in Section 6(C) with respect to the number of legal counsel, the Company
shall reimburse the Purchasers and each other Indemnified Person, promptly as such expenses are
incurred and are due and payable, for any reasonable legal fees or other reasonable expenses
incurred by them in connection with investigating or defending any such Claim. Notwithstanding
anything to the contrary contained herein, the obligations of the Company contained in this Section
6(A): (i) shall not apply to a Claim arising out of or based upon (A) a Violation which occurs in
reliance upon and in conformity with information furnished in writing to the Company by such
Indemnified Person expressly for use in the Registration Statement or any such amendment thereof or
supplement thereto, (B) the failure of a Purchaser to comply with Section 4(C) or (C) the use by a
Purchaser in connection with any sale or sales of Registrable Securities of a prospectus containing
any untrue statement or omission of a material fact following notification by the Company that such
prospectus contains an untrue statement or omission of a material fact and receipt by the Purchaser
of a corrected prospectus; and (ii) shall not apply to amounts paid in settlement of any Claim if
such settlement is effected without the prior written consent of the Company, which consent shall
not be unreasonably withheld. Such indemnity shall remain in full force and effect regardless of
any investigation made by or on behalf of the Indemnified Person and shall survive the transfer of
the Registrable Securities by the Purchasers pursuant to Section 10 hereof.
B. Each Purchaser who holds such Registrable Securities agrees severally and not jointly to
indemnify, hold harmless and defend, to the same extent and in the same manner set forth in Section
6(A), the Company, each of its directors, each of its officers who signs the Registration
Statement, its employees, agents and each person, if any, who controls the Company within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and any other
stockholder selling securities pursuant to the Registration Statement or any of its directors or
officers or any person who controls such stockholder within the meaning of the Securities Act or
the Exchange Act (collectively and together with an Indemnified Person, an “INDEMNIFIED PARTY”),
against any Claim to which any of them may become subject, under the Securities Act, the Exchange
Act or otherwise, insofar as such Claim arises out of or is based upon any Violation, in each case
to the extent (and only to the extent) that such Violation occurs in reliance upon and in
conformity with written information furnished to the Company by such Purchaser expressly for use in
connection with such Registration Statement; and subject to Section 6(C) such Purchaser will
reimburse any legal or other expenses (promptly as such expenses are incurred and are due and
payable) reasonably incurred by them in connection with investigating or defending any such Claim;
provided, however, that (I) the obligations of a Purchaser contained in this Section 6(B) shall not
apply to amounts paid in settlement of any Claim if such settlement is effected without the prior
written consent of such Purchaser, which
consent shall not be unreasonably withheld, and (II) the Purchaser shall be liable under this
Agreement (including this Section 6(B) and Section 7) for only that amount as does not exceed the
gross proceeds actually received by such Purchaser as a result of the sale of Registrable
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Securities pursuant to such Registration Statement. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of such Indemnified Party and shall
survive the transfer of the Registrable Securities by the Purchasers pursuant to Section 10 hereof.
C. Promptly after receipt by an Indemnified Person or Indemnified Party under this Section 6
of notice of the threat or commencement of any action (including any governmental action), such
Indemnified Person or Indemnified Party shall, if a Claim in respect thereof is to made against any
indemnifying party under this Section 6, deliver to the indemnifying party a written notice of the
commencement thereof, and the indemnifying party shall have the right to participate in, and, to
the extent the indemnifying party so desires, jointly with any other indemnifying party similarly
noticed, to assume control of the defense thereof with counsel mutually satisfactory to the
indemnifying party and the Indemnified Person or the Indemnified Party, as the case may be;
provided, however, that such indemnifying party shall not be entitled to assume such defense and an
Indemnified Person or Indemnified Party shall have the right to retain its own counsel with the
fees and expenses to be paid by the indemnifying party, if, in the reasonable opinion of counsel
retained by the indemnifying party, the representation by such counsel of the Indemnified Person or
Indemnified Party and the indemnifying party would be inappropriate due to actual or potential
conflicts of interest between such Indemnified Person or Indemnified Party and any other party
represented by such counsel in such proceeding or the actual or potential defendants in, or targets
of, any such action include both the Indemnified Person or the Indemnified Party and the
indemnifying party and any such Indemnified Person or Indemnified Party reasonably determines,
based upon the reasonable opinion of counsel, that there may be legal defenses available to such
Indemnified Person or Indemnified Party which are in conflict with those available to such
indemnifying party. The indemnifying party shall pay for only one separate legal counsel for the
Indemnified Persons or the Indemnified Parties, as applicable, and such legal counsel shall be
selected by Purchasers holding a majority-in-interest of the Registrable Securities included in the
Registration Statement to which the Claim relates (with the approval of the Purchasers if it holds
Registrable Securities included in such Registration Statement), if the Purchasers are entitled to
indemnification hereunder, or by the Company, if the Company is entitled to indemnification
hereunder, as applicable. The failure to deliver written notice to the indemnifying party within a
reasonable time of the commencement of any such action shall not relieve such indemnifying party of
any liability to the Indemnified Person or Indemnified Party under this Section 6, except to the
extent that the indemnifying party is actually prejudiced in its ability to defend such action.
D. The Indemnified Party shall cooperate fully with the indemnifying party in connection with
any negotiation or defense of any such action or claim by the indemnifying party and shall furnish
to the indemnifying party all information reasonably available to the Indemnified Party which
relates to such action or claim.
E. No indemnifying party shall, except with the consent of each Indemnified Party (which
consent shall not be unreasonably withheld), consent to entry of any judgment or enter
into any settlement which does not include the giving by the claimant to such Indemnified
Party a release from all liability in respect to such claim or litigation.
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7. CONTRIBUTION. To the extent any indemnification by an indemnifying party required by the terms
of this Agreement is prohibited or limited by law, the indemnifying party, in lieu of indemnifying
the Indemnified Party, agrees to contribute with respect to any amounts for which it would
otherwise be liable under Section 6 up to the amount paid or payable by the indemnifying party as a
result of the Claims in such proportion as is appropriate to reflect the relative fault of the
indemnifying party, on the one hand, and the Indemnified Person or Indemnified Party, as the case
may be, on the other hand, with respect to the Violation giving rise to the applicable Claim;
provided, however, that (i) no contribution shall be made under circumstances where the maker would
not have been liable for indemnification under the fault standards set forth in Section 6, (ii) no
person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any seller of Registrable Securities who was
not guilty of such fraudulent misrepresentation, and (iii) contribution (together with any
indemnification or other obligations under this Agreement) by any seller of Registrable Securities
shall be limited in amount to the amount of gross proceeds received by such seller from the sale of
such Registrable Securities. The relative fault of the Company and the Purchasers shall be
determined by reference to, among other things, whether the untrue or alleged untrue statement of
material fact related to information supplied by the Company or the Purchasers and the parties’
relative intent, knowledge, access to information and opportunity to correct or prevent such
statement or omission.
8. REPORTS UNDER THE EXCHANGE ACT. With a view to making available to the Purchasers the benefits
of Rule 144 promulgated under the Securities Act or any other similar rule or regulation of the SEC
that may at any time permit each Purchaser to sell securities of the Company to the public, so long
as the Registration Statement is effective and such Purchaser holds Registrable Securities, without
registration (“RULE 144”), the Company agrees to:
i. file with the SEC in a timely manner and make and keep available all reports and other
documents required of the Company under the Securities Act and the Exchange Act so long as the
Company remains subject to such requirements and the filing and availability of such reports and
other documents is required for the applicable provisions of Rule 144; and
ii. furnish to each Purchaser so long as such Purchaser owns Registrable Securities, promptly
upon request, (i) a written statement by the Company that it has complied with the reporting
requirements of Rule 144, the Securities Act and the Exchange Act, (ii) a copy of the most recent
annual or quarterly report of the Company and such other reports and documents so filed by the
Company, and (iii) such other information as may be reasonably requested to permit the Purchasers
to sell such securities under Rule 144 without registration.
9. SUSPENSION OF USE OF PROSPECTUS. Subject to Section 2(B), the Company may, by written notice to
the Purchasers, (i) delay the filing of, or effectiveness of, the Registration Statement; or (ii)
suspend the Registration Statement after effectiveness and require that the Purchasers immediately
cease sales of Registrable Securities pursuant to the Registration Statement, if (a) the Company
reasonably believes that there is or may be in existence material nonpublic information or events
involving the Company, the failure of which to be disclosed in
the prospectus included in the registration statement would result in a Violation (as defined
below) and (b) the Company shall furnish to the Purchasers a certificate signed by the Chairman of
the Board of Directors of the Company stating that in the good faith judgment of the Board of
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Directors of the Company, it would have a material adverse effect on the Company (which for this
purpose shall include a material adverse effect on a pending transaction) to disclose such material
nonpublic information or events in the prospectus included in the registration statement (a
“SUSPENSION”). The Company shall not disclose such information or events to any Purchaser. If the
Company requires the Purchasers to cease sales of Registrable Securities pursuant to a Suspension,
the Company shall, as promptly as practicable following the termination of the circumstance which
entitled the Company to do so, take such actions as may be necessary to reinstate the effectiveness
of the Registration Statement and/or give written notice to the Purchasers authorizing them to
resume sales pursuant to the Registration Statement. If, as a result thereof, the prospectus
included in the Registration Statement has been amended to comply with the requirements of the
Securities Act, the Company shall enclose such revised prospectus with the notice to the Purchasers
given pursuant hereto, and the Purchasers shall make no offers or sales of Registrable Securities
pursuant to the Registration Statement other than by means of such revised prospectus. The Company
shall not cause a Suspension on more than two occasions during any twelve (12) month period or for
more than thirty (30) days per such occasion.
10. ASSIGNMENT OF REGISTRATION RIGHTS. The rights of the Purchasers hereunder, including the right
to have the Company register Registrable Securities pursuant to this Agreement, shall be
automatically assignable by each Purchaser to any affiliate of the Purchaser to which all or any
portion of the Registrable Securities are transferred if: (i) the Purchaser agrees in writing with
the transferee or assignee to assign such rights, and a copy of such agreement is furnished to the
Company after such assignment, (ii) the Company is furnished with written notice of (a) the name
and address of such transferee or assignee, and (b) the securities with respect to which such
registration rights are being transferred or assigned, (iii) the transferee or assignee agrees in
writing for the benefit of the Company to be bound by all of the provisions contained herein, and
(iv) such transfer shall have been made in accordance with the applicable requirements of the Stock
Purchase Agreement and the Warrants, as applicable.
11. AMENDMENT OF REGISTRATION RIGHTS. Provisions of this Agreement may be amended and the
observance thereof may be waived (either generally or in a particular instance and either
retroactively or prospectively), only with written consent of the Company and Purchasers who hold a
majority in interest of the Registrable Securities; provided, however, that no consideration shall
be paid to a Purchaser by the Company in connection with an amendment hereto unless each Purchaser
similarly affected by such amendment receives a pro-rata amount of consideration from the Company.
Unless a Purchaser otherwise agrees, each amendment hereto must similarly affect each Purchaser.
Any amendment or waiver effected in accordance with this Section 11 shall be binding upon each
Purchaser and the Company.
12. MISCELLANEOUS.
A. A person or entity is deemed to be a holder of Registrable Securities whenever such person
or entity owns of record such Registrable Securities. If the Company receives conflicting
instructions, notices or elections from two or more persons or entities with respect to
the same Registrable Securities, the Company shall act upon the basis of instructions, notice
or election received from the registered owner of such Registrable Securities.
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B. All notices required or permitted hereunder shall be in writing and shall be deemed
effectively given: (i) upon delivery to the party to be notified, (ii) when received by email or
confirmed facsimile, or (iii) one (1) business day after deposit with a nationally recognized
overnight carrier, specifying next business day delivery, with written verification of receipt.
All communications shall be sent to the Company and the Purchasers as follows or at such other
addresses as the Company or the Purchasers may designate upon ten (10) days’ advance written notice
to the other party:
If to the Company:
Idera Pharmaceuticals, Inc.
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Chief Executive Officer
Fax: (000)-000-0000
Email: xxxxxxxx@xxxxxxxxxxx.xxx
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Chief Executive Officer
Fax: (000)-000-0000
Email: xxxxxxxx@xxxxxxxxxxx.xxx
with a copy simultaneously transmitted by like means to:
Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxx
Fax: (000) 000-0000
Email: xxxxxx.xxxxxx@xxxxxxxxxx.xxx
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxx
Fax: (000) 000-0000
Email: xxxxxx.xxxxxx@xxxxxxxxxx.xxx
If to a Purchaser, at its address as set forth on the Schedule of Purchasers attached to the
Stock Purchase Agreement.
C. Failure of any party to exercise any right or remedy under this Agreement or otherwise, or
delay by a party in exercising such right or remedy, shall not operate as a waiver thereof.
D. This Agreement shall be governed by and construed in accordance with the laws of the
Commonwealth of Massachusetts without regard to principles of conflicts of law.
E. This Agreement, the Stock Purchase Agreement (including all schedules and exhibits thereto)
and the Warrants constitute the entire agreement among the parties hereto with respect to the
subject matter hereof and thereof. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein and therein. This Agreement, the
Stock Purchase Agreement and the Warrants supersede all prior agreements and understandings among
the parties hereto with respect to the subject matter hereof and thereof.
F. Subject to the requirements of Section 10 hereof, this Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties hereto.
G. The headings in this Agreement are for convenience of reference only and shall not limit or
otherwise affect the meaning hereof.
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H. This Agreement may be executed in two or more counterparts, each of which shall be deemed
an original but all of which shall constitute one and the same agreement. This Agreement, once
executed by a party, may be delivered to the other party hereto by facsimile transmission of a copy
of this Agreement bearing the signature of the party so delivering this Agreement.
I. Each party shall do and perform, or cause to be done and performed, all such further acts
and things, and shall execute and deliver all such other agreements, certificates, instruments and
documents, as the other party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the transactions contemplated
hereby.
J. All consents, approvals and other determinations to be made by the Purchasers pursuant to
this Agreement shall be made by the Purchasers holding a majority in interest of the Registrable
Securities (determined as if all Shares and Warrant Shares then outstanding had been converted into
or exercised for Registrable Securities) held by all Purchasers.
K. Each party to this Agreement has participated in the negotiation and drafting of this
Agreement. As such, the language used herein shall be deemed to be the language chosen by the
parties hereto to express their mutual intent, and no rule of strict construction will be applied
against any party to this Agreement.
L. For purposes of this Agreement, the term “Business Day” means any day other than a Saturday
or Sunday or a day on which banking institutions in the State of New York are authorized or
obligated by law, regulation or executive order to close, and the term “Trading Day” means any day
on which the Nasdaq Global Market, or if the Common Stock is not then traded on the Nasdaq Global
Market the principal securities exchange or trading market where the Common Stock is then listed or
traded, is open for trading.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the date
first above written.
| IDERA PHARMACEUTICALS, INC. |
||||
| By: | /s/ Xxxxxx Xxxxxxx | |||
| Name: | Xxxxxx Xxxxxxx | |||
| Its: Chief Executive Officer and President | ||||
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PURCHASER:
| PILLAR PHARMACEUTICALS I, L.P. |
||||
| By: | /s/ Youssef El Zein | |||
| Name: | Youssef El Zein | |||
| Title: | Director | |||
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EXHIBIT A
Purchasers
Pillar Pharmaceuticals I, L.P.
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