POLYMEDIX, INC. REGISTRATION RIGHTS SUBSTITUTION AGREEMENT
POLYMEDIX, INC.
THIS REGISTRATION RIGHTS SUBSTITUTION AGREEMENT (this “Agreement”) is made this ___day of
___2007 by and among PolyMedix, Inc., a Delaware corporation (the “Company”), and the
undersigned Holders (as defined in Section 1.1(a)) of Registrable Securities (as defined in Section
1.1(b)) and identified on Exhibit A attached hereto and as may be amended and supplemented
from time to time.
SECTION 1
REGISTRATION RIGHTS
1.1 Certain Definitions. As used in this Section 1:
(a) The term “Holder” (collectively, “Holders”) means each Holder holding Registrable
Securities, securities exercisable or convertible into Registrable Securities or securities
exercisable for securities convertible into Registrable Securities.
(b) The term “Registrable Securities” means (i) the Company’s common stock, par value $0.001
per share (the “Common Stock”) issued or issuable upon conversion of the shares of the Company’s
Series 1 Convertible Preferred Stock (the “Series 1 Stock”) held by a Holder, (ii) Common Stock
issued or issuable upon exercise of the Company’s warrants issued in connection with the offer and
sale of its Series 1 Stock and held by a Holder, and (iii) any Common Stock issued as (or issuable
upon the conversion or exercise of any warrant, right or other security that is issued as) a
dividend or other distribution with respect to, or in exchange or in replacement of, such
securities; provided, however, that shares of Common Stock or other securities
shall only be treated as Registrable Securities if and so long as (A) they have not been sold to or
through a broker or dealer or underwriter in a public distribution or a public securities
transaction or sold for cash or other property, (B) they have not been sold in a transaction exempt
from the registration and prospectus delivery requirements of the Act under Section 4(1) thereof so
that all transfer restrictions and restrictive legends with respect thereto are removed upon the
consummation of such sale, and (C) the registration rights associated with such securities have not
been terminated pursuant to Section 1.8 hereof.
(c) The terms “register,” “registered” and “registration” refer to a registration effected by
filing with the Securities and Exchange Commission (the “SEC”) a registration statement (the
“Registration Statement”) in compliance with the Securities Act of 1933, as amended (the “Act”) and
the declaration or ordering by the SEC of the effectiveness of such Registration Statement.
1.2 Substitution of Registration Rights. The Company and each Holder agree that the
registration rights provided herein are in complete substitution for any other registration rights
held by such Holder with respect to the registration of the Company’s securities held by such
Holder, including without limitation registration rights pursuant to
any agreement or instrument between the Holder and the Company, and that any other
registration rights not expressly set forth in this Agreement are hereby terminated.
1.3 Registration. The Company shall file the Registration Statement covering the
Registrable Securities on the date that is the earlier of (i) ninety (90) days following the
effectiveness of a registration statement filed in connection with an equity financing of the
Company or (ii) September 1, 2007.
1.4 Expenses of Registration. All expenses incurred in connection with the
registration effected pursuant to Section 1.2, including, without limitation, all registration,
filing and qualification fees (including state securities law fees and expenses), printing
expenses, escrow fees, fees and disbursements of counsel for the Company, fees and disbursements of
one counsel for the participating Holders (to be chosen by the Holders of a majority of the then
outstanding Registrable Securities) up to a maximum of $12,500, and expenses of any special audits
incidental to or required by such registration shall be borne by the Company; provided,
however, that the Company shall not be required to pay stock transfer taxes or
underwriters’ discounts or selling commissions relating to Registrable Securities.
1.5 Obligations of the Company. Whenever required under this Section 1 to effect the
registration of Registrable Securities pursuant to the Registration Statement, the Company shall:
(a) as promptly as practicable, prepare and file with the SEC such amendments and supplements
to the Registration Statement and the prospectus used in connection with such Registration
Statement as may be necessary to keep such Registration Statement effective for the lesser of four
years from the date the Registration Statement is first declared effective by the SEC or until the
Holders have completed the distribution of all Registrable Securities relating to the Registration
Statement, and to comply with the provisions of the Act with respect to the disposition of all
securities covered by the Registration Statement;
(b) as promptly as practicable, furnish to the selling Holders such numbers of copies of such
registration statement and each amendment thereto, the prospectus included in such Registration
Statement, (including each preliminary prospectus), in conformity with the requirements of the Act,
and such other documents as they may reasonably request in order to facilitate the disposition of
Registrable Securities owned by them;
(c) use its best efforts to register or otherwise qualify the securities covered by such
Registration Statement under such other securities laws of such states and other jurisdictions as
shall be reasonably requested by the Holders or the managing underwriter, provided that the Company
shall not be required in connection therewith or as a condition thereto to qualify to do business;
(d) promptly notify each Holder of Registrable Securities covered by such Registration
Statement, at any time when a prospectus relating thereto is required to be delivered under the
Act, of the happening of any event as a result of which the prospectus
-2-
included in such Registration Statement, as then in effect, includes an untrue statement of a
material fact or omits to state a material fact required to be stated therein or necessary to make
the statements therein not misleading in the light of the circumstances then existing;
(e) provide a transfer agent and registrar for all such Registrable Securities not later than
the effective date of such Registration Statement;
(f) promptly notify the Holders of Registrable Securities of the following events and (if
requested by any such person) confirm such notification in writing: (1) the filing of the
prospectus or any prospectus supplement and the Registration Statement and any amendment or
post-effective amendment thereto and, with respect to the Registration Statement or any
post-effective amendment thereto, the declaration of the effectiveness of such document, (2) any
requests by the SEC for amendments or supplements to the Registration Statement or the prospectus
or for additional information, (3) the issuance or threat of issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement or the initiation of any proceedings for
that purpose, (4) the commencement or termination of any Blackout Period declared pursuant to
Section 1.5(h), and (5) 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 threat of initiation of any proceeding for such purpose; and
(g) cooperate with Holders including Registrable Securities in such registration to facilitate
the timely preparation and delivery of certificates representing Registrable Securities to be sold,
such certificates to be in such denominations and registered in such names as such Holders may
request at least two business days prior to any sale of Registrable Securities.
(h) at any time during which the Registrable Securities are included in the then-effective
Registration Statement, the Company may suspend the ability of the Holder to sell the Holder’s
Registrable Securities pursuant to the Registration Statement, for a reasonable period or periods
(a “ Black-out Period ”), in the event that (1) an event occurs and is continuing as a result of a
which the Registration Statement including the Registrable Securities, any related prospectus or
any document incorporated therein by reference as then amended or supplement would, in the
Company’s good faith judgment, contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of the circumstances
under which the were made, not misleading, and (2) the Company determined in its good faith
judgment that the disclosure of such event at such time would be to the detriment of the business,
operations or prospects of the Company or the disclosure otherwise relates to a business
transaction, operations or other material event which has not yet been publicly disclosed.
Notwithstanding the foregoing provisions of this Section 1.5(h), the Company will use reasonable
efforts to limit the aggregate number of days covered by Black-out Periods to no more than twenty
(20) consecutive business days or exceed sixty (60) business days in a particular calendar year.
1.6 Information by Holder. Each Holder shall timely furnish to the Company all
information and make customary representations and warranties as the
-3-
Company may reasonably request in writing and as shall be required in connection with any
registration, qualification or compliance referred to in this Section 1.
1.7 Delay of Registration. No Holder shall have any right to obtain or seek an
injunction restraining or otherwise delaying any such registration as the result of any controversy
that might arise with respect to the interpretation or implementation of this Section 1.
1.8 Termination of Rights. This Agreement and the rights and obligations set forth
herein shall terminate upon the earlier to occur of (1) the written agreement of the Company and
the Holders holding a majority in interest of the Registrable Securities then outstanding or (2)
the earlier of (a) four years from the date the Registration Statement is first declared effective
by the SEC and (b) until the Holders have completed the distribution of all Registrable Securities
relating to the Registration Statement, and to comply with the provisions of the Act with respect
to the disposition of all securities covered by the Registration Statement.
SECTION 2
MISCELLANEOUS
2.1 Governing Law. This Agreement shall be governed in all respects by the laws of
the State of Delaware without regard to the conflicts of laws principles of any jurisdiction. No
suit, action or proceeding with respect to this Agreement may be brought in any court or before any
similar authority other than in a court of competent jurisdiction in the State of Delaware, and the
parties hereby submits to the exclusive jurisdiction of such courts for the purpose of such suit,
proceeding or judgment. Each of the parties hereto hereby irrevocably waives any right which it
may have had to bring such an action in any other court, domestic or foreign, or before any similar
domestic or foreign authority and agreed not to claim or plead the same.
2.2 Entire Agreement. This Agreement embodies the entire agreement and understanding
between the parties hereto and supersedes and replaces in their entirety all prior agreements and
understandings relating to the subject matter hereof. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their heirs, executors, legal representatives,
successors and permitted transferees, except as may be expressly provided otherwise herein.
Nothing in this Agreement, express or implied, is intended to confer upon any party, other than the
parties hereto and their successors and assigns, any rights, remedies, obligations or liabilities
under or by reason of this Agreement, except as expressly provided herein.
2.3 Assignability. Each Holder acknowledges that such Holder may not assign any of
its rights to or interest in or under this Agreement except in connection with a transaction
involving Registrable Securities and in which such securities may be treated as Registrable
Securities pursuant to Section 1.1(b) immediately upon consummating the transaction.
-4-
2.4 Specific Enforcement. The parties hereto expressly acknowledge that they will be
irreparably damaged if this Agreement is not specifically enforced. Upon a breach of the terms,
covenants, or conditions of this Agreement by any party, the Holders and the Company shall, to the
extent not prohibited by law, in addition to all other remedies, each be entitled to seek a
temporary or permanent injunction, without showing any actual damage, and/or a decree for specific
performance, in accordance with the provisions hereof.
2.5 Amendments. Except as otherwise provided herein, the provisions of this Agreement
may not be amended, modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given unless consented to in writing by (i) the Company and (ii) the
Holders of at least a majority in interest of the then outstanding Registrable Securities that have
not been sold pursuant to the Registration Statement. Any such written consent shall be binding
upon the Company, and the Holders. No waivers of or exceptions to any term, condition or provision
of this Agreement, in any one or more instances, shall be deemed to be, or construed as, a further
or continuing waiver of any such term, condition or provision.
2.6 Severability. In the case any one or more of the provisions contained in this
Agreement shall for any reason to be held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other provision of this
Agreement and such invalid, illegal and unenforceable provision shall be reformed and construed so
that it will be valid, legal, and enforceable to the maximum extent permitted by law.
2.7 Notices. Any notice, demand or request required or permitted to be given by
either the Company or a Holder pursuant to the terms of this Agreement shall be in writing and
shall be deemed given when delivered personally or deposited in the United States mail, first class
with postage prepaid, and addressed:
(a)
if to the Company, at:
|
with a copy to: | |
PolyMedix, Inc.
|
Xxxxxx Xxxxxxxx LLP | |
000 X. Xxxxxx Xxxxxxx Xxxx, Xxxxx 000
|
000 Xxxxxxx Xxxx | |
Xxxxxx, XX 00000
|
000 Xxxxxx Xxxx | |
Attn: Xx. Xxxxxx Xxxxx
|
Xxxxxx, XX 00000 | |
Telephone: (000) 000-0000
|
Attn: Xxxxxxx X. Xxxxxx, Esq. | |
Telecopier: (000) 000-0000
|
Telephone: (000) 000-0000 | |
Email: xxxxxx@xxxxxxxxx.xxx
|
Telecopier: (000) 000-0000 |
(b) and if to a Holder, to the address of such Holder set forth on Exhibit A to this
Agreement, or such other address as a Holder may request by notifying the other in writing.
2.8 Delays or Omissions. Any party’s failure to enforce any provision or provisions
of this Agreement shall not in any way be construed as a waiver of any such provision or
provisions, nor prevent that party thereafter from enforcing each and every other provision of this
Agreement. The rights granted all parties herein are cumulative and shall
-5-
not constitute a waiver of any party’s right to assert all other legal remedies available to
it under the circumstances.
2.9 Intent. The Holders agree to execute upon request any further documents or
instruments necessary or desirable to carry out the purposes or intent of this Agreement.
2.10 Titles and Subtitles. The titles of the sections and subsections of this
Agreement are for convenience of reference only and are not to be considered in construing this
Agreement.
2.11 Counterparts; Execution by Facsimile. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. This Agreement may be executed by facsimile signature(s)
which shall be binding on the party delivering same, to be followed by delivery of originally
executed signature pages.
*****
-6-
IN WITNESS WHEREOF, the Company has executed this Registration Rights Substitution Agreement
as of the date set forth below.
| POLYMEDIX, INC. |
||||
| By: | ________________________ | |||
| Name: | ||||
| Title: | ||||
| Date: | ________________________ | |||
POLYMEDIX, INC.
COUNTERPART SIGNATURE PAGE
IN WITNESS WHEREOF, the undersigned has executed this Registration Rights Substitution
Agreement as of the date set forth below.
Date: |
By: | ||||
| Name: | |||||
| Title: |
PLEASE COMPLETE, SIGN AND DATE THIS REGISTRATION RIGHTS SUBSTITUTION AGREEMENT AND RETURN IT
BY FACSIMILE AS SOON AS POSSIBLE, BUT IN NO EVENT LATER THAN 5:00 P.M. ON FRIDAY, MAY 4,
2007, WITH AN ORIGINAL SENT BY MAIL TO:
PolyMedix, Inc.
c/o Xxxxxx Xxxxx, Corporate Secretary
000 X. Xxxxxx-Xxxxxxx Xxxx; Xxxxx 000
Xxxxxx, XX 00000
Fax: (000) 000-0000 or (000) 000-0000
c/o Xxxxxx Xxxxx, Corporate Secretary
000 X. Xxxxxx-Xxxxxxx Xxxx; Xxxxx 000
Xxxxxx, XX 00000
Fax: (000) 000-0000 or (000) 000-0000
EXHIBIT A
SCHEDULE OF HOLDERS
| Number of Shares of | ||||
| Number of Shares | Common Stock | |||
| Name and Address | of Series 1 Stock | Underlying Warrants | ||
Total |
