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EXHIBIT 10.41
ABGENIX, INC.
REGISTRATION RIGHTS AGREEMENT
JANUARY 27, 1999
This Agreement is made as of the date first written above by and between
ABGENIX, INC., a Delaware corporation having its principal executive office at
0000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000 (the "Company"), and GENENTECH,
INC., a Delaware corporation having its principal executive office at 0 XXX Xxx,
Xxxxx Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 (including any successor to Genentech,
Inc., the "Holder").
RECITALS
A. In connection with the Multi-Antigen Agreement, the Holder is
purchasing 495,396 shares of the Company's Common Stock (the "Shares") for an
aggregate purchase price of $8,000,000 pursuant to the terms and conditions of
the Common Stock Purchase Agreement of even date herewith to which this
Agreement is attached as Exhibit A.
B. To induce the Holder to enter into the Common Stock Purchase Agreement,
the Company has agreed to provide the Holder with certain registration rights
with respect to the Shares pursuant to the terms and conditions of this
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and promises set forth in this Agreement, the parties agree as follows:
1. Certain Definitions. As used in this Rights Agreement, the following
terms shall have the following respective meanings:
Business Day. Each Monday, Tuesday, Wednesday, Thursday and Friday
that is not a day on which banking institutions in San Francisco are
authorized or obligated by law or executive order to close.
Effectiveness Period. See Section 2(a) hereof.
Exchange Act. The Securities Exchange Act of 1934, as amended, or any
similar federal statute and the rules and regulations of the SEC
promulgated thereunder.
Initial Shelf Registration. See Section 2(a) hereof.
Losses. See Section 5(a) hereof.
Prospectus. The prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any prospectus supplement,
including, without limitation, with respect to the terms of the offering of
any portion of the Registrable Securities covered by such Registration
Statement and all other amendments and supplements to the Prospectus,
including post-effective amendments, and all material incorporated by
reference or deemed to be incorporated by reference in such Prospectus.
Such Prospectus and any amendments or supplements shall comply with the
Securities Act.
Register. The terms "register," "registered" and "registration" refer
to a registration effected by preparing and filing a registration statement
in compliance with the Securities Act, and the declaration or ordering of
the effectiveness of such registration statement by the SEC.
Registrable Securities. The Shares or other securities issued or
issuable with respect to the Shares as a result of any stock split, stock
dividend, recapitalization, exchange, combination, merger, consolidation,
distribution or similar event.
Registration Expenses. See Section 4 hereof.
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Registration Statement. Any registration statement of the Company
which covers any of the Registrable Securities pursuant to the provisions
of this Agreement, including the Prospectus, amendments and supplements to
such registration statement, including post-effective amendments, all
exhibits, and all material incorporated by reference or deemed to be
incorporated by reference in such registration statement. Such Registration
Statement and any amendments or supplements thereto shall comply with the
Securities Act.
Replacement Shelf Registration. See Section 2(b) hereof.
Rule 144. Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
SEC. The Securities and Exchange Commission.
Securities Act. The Securities Act of 1933, as amended, and the rules
and regulations promulgated by the SEC thereunder.
Shelf Registration. See Section 2 hereof.
Special Counsel. Special Counsel shall be the counsel specified by the
Holder as special counsel to the Holder.
Subsequent Shelf Registration. See Section 2(c) hereof.
2. Shelf Registration.
(a) If the Company shall receive, at any time after the date hereof, a
written request from the Holder that the Company file a registration
statement under the Securities Act covering the registration of all of the
Holder's Registrable Securities with an aggregate offering price, net of
underwriting discounts and commissions, expected to exceed $2,000,000, then
the Company shall file as soon as practicable (but in no event later than
sixty (60) days following the Company's receipt of the Holder's notice) a
Registration Statement. The Registration Statement shall register the
Registrable Securities for an offering to be made on a continuous basis
pursuant to Rule 415 of the Securities Act (a "Shelf Registration")
covering all of the Registrable Securities (the "Initial Shelf
Registration"). The Initial Shelf Registration shall be on Form S-1 or
another appropriate form permitting registration of such Registrable
Securities for resale by the Holder. The Company shall use its best efforts
to cause the Initial Shelf Registration to be declared effective under the
Securities Act by the SEC as soon as practicable and to keep the Initial
Shelf Registration continuously effective under the Securities Act until
two years after the date hereof (the "Effectiveness Period"), or such
shorter period ending when (i) all Registrable Securities covered by the
Initial Shelf Registration have been sold or shall have ceased to be
Registrable Securities, (ii) the Replacement Shelf Registration, as defined
below, covering all of the Registrable Securities has been declared
effective under the Securities Act or (iii) a Subsequent Shelf
Registration, as defined below, covering all of the Registrable Securities
has been declared effective under the Securities Act.
The Holder's rights pursuant to this Section 2(a) shall terminate (i)
after the Company has effected one such registration pursuant to this
Section 2(a), and such registration has been declared or ordered effective
by the SEC or (ii) upon the filing with the SEC of the Replacement Shelf
Registration Statement (as defined below); provided, however, that if such
registration statement is not declared or ordered effective by the SEC
within forty-five (45) days from the earlier of the date of filing or July
2, 1999, the Holder's rights pursuant to this Section 2(a) shall not
terminate.
(b) The Company shall prepare and, as soon as the Company is eligible
to use Form S-3 or another appropriate form permitting registration of the
Company's securities for resale by the Holder, the Company shall file with
the SEC a Registration Statement for a Shelf Registration covering all of
the Registrable Securities (the "Replacement Shelf Registration"). The
Replacement Shelf Registration shall be on Form S-3 or another appropriate
form permitting registration of such Registrable Securities for resale by
the Holders. On the date that the Replacement Shelf Registration is
declared effective under
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the Securities Act by the SEC, the Company shall withdraw the Initial Shelf
Registration, if filed or declared effective, and no further sales of
Registrable Securities shall be made pursuant to the Initial Shelf
Registration as of such date; provided, however, that in no event shall the
Initial Shelf Registration be withdrawn until such time as the Replacement
Shelf Registration has been declared effective under the Securities Act by
the SEC. After the Replacement Shelf Registration has been declared
effective by the SEC, the Company shall use its best efforts to keep the
Replacement Shelf Registration continuously effective under the Securities
Act until the end of the Effectiveness Period or such shorter period ending
when (i) all Registrable Securities covered by the Replacement Shelf
Registration have been sold or shall have ceased to be Registrable
Securities, or (ii) a Subsequent Shelf Registration, as defined below,
covering all of the Registrable Securities has been declared effective
under the Securities Act.
(c) If the Initial Shelf Registration or any Subsequent Shelf
Registration, as defined below, ceases to be effective for any reason at
any time during the Effectiveness Period (other than because all
Registerable Securities registered thereunder shall have been sold or shall
have ceased to be Registerable Securities), the Company shall use its best
efforts to obtain the prompt withdrawal of any order suspending the
effectiveness thereof, and in any event shall within 45 days of such
cessation of effectiveness amend the Shelf Registration in a manner
reasonably expected to obtain the withdrawal of the order suspending the
effectiveness thereof, or file an additional "shelf" Registration Statement
pursuant to Rule 415 of the Securities Act covering all of the Registrable
Securities (a "Subsequent Shelf Registration"). If a Subsequent Shelf
Registration is filed, the Company shall use its best efforts to cause the
Subsequent Shelf Registration to be declared effective under the Securities
Act by the SEC as soon as practicable after such filing and shall use its
best efforts to keep such Registration Statement continuously effective
until the end of the Effectiveness Period.
(d) The Company shall supplement and amend the Shelf Registration if
required by the rules, regulations or instructions applicable to the
registration form used by the Company for such Shelf Registration, if
required by the Securities Act, or if reasonably requested by any Holder or
by any underwriter of the Registrable Securities.
(e) Notwithstanding anything set forth in this Agreement, Company
shall not be obligated to take any action to effect any such registration,
qualification or compliance pursuant to this Section 2 during the period
starting with the date ninety (90) days prior to the Company's estimated
date of filing of, and ending on the date 90 days immediately following the
effective date of, any registration statement pertaining to securities of
the Company (other than a registration of securities in a Rule 145
transaction or with respect to an employee benefit plan), provided that the
Company is actively employing in good faith its best efforts to cause such
registration statement to become effective.
(f) The Holder shall have no right to request that the offering, sale,
disposition or distribution of any Registrable Securities to be registered
under the Securities Act pursuant to this Agreement be effected pursuant to
an underwritten offering. If a registration pursuant to this Agreement
involves an underwritten offering, the underwriter or underwriters thereof
shall be selected by the Company in its sole and absolute discretion.
(g) If a registration pursuant to this Agreement involves an
underwritten offering, and the managing underwriter shall advise the
Company in writing that, in its opinion, the number of shares of Common
Stock requested to be included in such registration exceeds the number
which can be sold in such underwritten offering, the Company will include
in such registration, to the extent of the number of shares of Common Stock
which the Company is so advised can be sold in such offering, a portion of
the number of Registrable Securities of the Holder.
3. Piggyback Registration.
(a) If (A) the Company has filed a Replacement Shelf Registration
pursuant to Section 2(b) hereof, and either (i) such registration has not
been declared or ordered effective by the SEC within forty-five (45) days
from the earlier of the date of filing or July 2, 1999 or (ii) if such
registration is declared or ordered effective but does not continue to be
effective for ten trading days and (B) the
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Company determines to register any of its securities for its own account,
other than a registration relating solely to employee benefit plans or
relating to a corporate reorganization or other transaction under Rule 145,
or a registration on any registration form that does not permit secondary
sales, the Company will:
(x) promptly give to each Holder written notice thereof; and
(y) use its best efforts to include in such registration (and any
related qualification under blue sky laws or other compliance), except
as set forth in Section 3(b) below, and in any underwriting involved
therein, all the Registrable Securities specified in a written request
or requests, made by any Holder and received by the Company within
twenty (20) days after the written notice from the Company described in
clause (x) above is mailed or delivered by the Company. Such written
request may specify all or a part of a Holder's Registrable Securities.
(b) Underwriting. If the registration of which the Company gives
notice is for a registered public offering involving an underwriting, the
right of any Holder to registration pursuant to this Section 3 shall be
conditioned upon such Holder's participation in such underwriting and the
inclusion of such Holder's Registrable Securities in the underwriting to
the extent provided herein pursuant to an underwriting agreement in
customary form with the underwriter or underwriters selected by the
Company.
If the managing underwriter advises the Company in writing that
marketing factors require a limitation on the number of shares to be
underwritten, the Company may (subject to the limitations set forth below)
exclude all Registrable Securities from, or limit the number of Registrable
Securities to be included in, the registration and underwriting. The
Company shall so advise all holders of securities requesting registration,
and the number of shares of securities that are entitled to be included in
the registration and underwriting shall be allocated first to the Company
for securities being sold for its own account and thereafter on a pro rata
basis. If any person does not agree to the terms of any such underwriting,
he may withdraw his securities therefrom by written notice to the Company
or the managing underwriter. Any securities withdrawn from the underwriting
shall be withdrawn from the registration, and the Company shall then offer
to all persons with securities included in the registration the right to
include additional securities in an aggregate amount equal to the number of
shares so withdrawn, with such shares to be allocated on a pro rata basis
among the persons requesting additional inclusion.
4. Registration Procedures. In connection with the Company's registration
obligations under Section 2 hereof, the Company shall effect such registrations
to permit the sale of the Registrable Securities in accordance with the intended
method or methods of disposition thereof and pursuant thereto the Company shall
as expeditiously as possible:
(a) Prepare and file with the SEC a Registration Statement or
Registration Statements on any appropriate form under the Securities Act
available for the sale of the Registrable Securities by the Holder in
accordance with the intended method or methods of distribution thereof, and
cause each such Registration Statement to become effective and remain
effective as provided herein; provided, that before filing any such
Registration Statement or Prospectus or any amendments or supplements
thereto (other than documents that would be incorporated or deemed to be
incorporated therein by reference and that the Company is required by
applicable securities laws or stock exchange requirements to file) the
Company shall furnish to the Holder, the Special Counsel and the managing
underwriters of such offering, if any, copies of all such documents
proposed to be filed, which documents will be subject to the review of the
Holder, the Special Counsel and such underwriters.
(b) Prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement continuously effective for the applicable period
specified in Section 2; cause the related Prospectus to be timely
supplemented by any required Prospectus supplement, and as so supplemented
to be filed pursuant to Rule 424 (or any similar provisions then in force)
under the Securities Act; and comply with the provisions of the Securities
Act with respect to the disposition of all securities covered by such
Registration Statement
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during the applicable period in accordance with the intended methods of
disposition by the Holders set forth in such Registration Statement as so
amended or such Prospectus as so supplemented.
(c) Notify the Holders, the Special Counsel and the managing
underwriters, if any, promptly, and (if requested by any such person)
confirm such notice in writing, (i) when a Prospectus or any Prospectus
supplement or post-effective amendment has been filed, and, with respect to
a Registration Statement or any post-effective amendment, when the same has
become effective, (ii) of any request by the SEC or any other federal or
state governmental authority during the period of effectiveness of the
Registration Statement for amendments or supplements to a Registration
Statement or related Prospectus or for additional information, (iii) of the
issuance by the SEC or any other federal or state governmental authority of
any stop order suspending the effectiveness of a Registration Statement or
the initiation of any proceedings for that purpose, (iv) of the receipt by
the Company of any notification with respect to the suspension of the
qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose, (v) of the happening of any event which
makes any statement made in such Registration Statement or related
Prospectus or any document incorporated or deemed to be incorporated
therein by reference untrue in any material respect or which requires the
making of any changes in the Registration Statement or Prospectus so that,
in the case of the Registration Statement, it will not contain any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading, and that in the case of the Prospectus, it will not contain any
untrue statement of a material fact or omit to state any material fact or
omit to state any material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, and (vi) of the Company's reasonable
determination that a post-effective amendment to a Registration Statement
would be appropriate.
(d) Use its best efforts to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement, or the lifting of
any suspension of the qualification (or exemption from qualification) of
any of the Registrable Securities for sale in any jurisdiction, at the
earliest possible moment.
(e) Subject to the last paragraph of this Section 3, if reasonably
requested by the managing underwriters, if any, or the Holder (i) promptly
incorporate in a Prospectus supplement or post-effective amendment such
information as the managing underwriters, if any, or the Holder agrees
should be included therein as required by applicable law, (ii) make all
required filings of such Prospectus supplement or such post-effective
amendment as soon as practicable after the Company has received
notification of the matters to be incorporated in such Prospectus
supplement or post-effective amendment, and (iii) supplement or make
amendments to any Registration Statement consistent with clause (i) or (ii)
above; provided, that the Company shall not be required to take any actions
under this Section 3(e) that are not, in the opinion of counsel for the
Company, necessary or advisable to comply with applicable law.
(f) Furnish to the Holder, the Special Counsel and each managing
underwriter, if any, without charge, at least one conformed copy of the
Registration Statement or Registration Statements and any post-effective
amendment thereto, including financial statements but excluding schedules,
all documents incorporated or deemed to be incorporated therein by
reference and all exhibits (unless requested in writing by the Holder,
Special Counsel or managing underwriter, if any).
(g) Promptly deliver to the Holder, the Special Counsel and the
underwriters, if any, without charge, as many copies of the Prospectus or
Prospectuses relating to such Registrable Securities (including each
preliminary prospectus) and any amendment or supplement thereto as such
persons may reasonably request; and the Company hereby consents to the use
of such Prospectus or each amendment or supplement thereto by the Holder
and the underwriters, if any, in connection with the offering and sale of
the Registrable Securities covered by such Prospectus or any amendment or
supplement thereto.
(h) Prior to any public offering of Registrable Securities, to
register or qualify or cooperate with the Holder, the underwriters, if any,
and the Special Counsel in connection with the registration or
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qualification (or exemption from such registration or qualification) of
such Registrable Securities for offer and sale under the securities or Blue
Sky laws of such jurisdictions within the United States as the Holder or
underwriter, if any, reasonably requests in writing; keep each such
registration or qualification (or exemption therefrom) effective during the
period such Registration Statement is required to be kept effective and do
any and all other acts or things necessary or advisable to enable the
disposition in such jurisdictions of the Registrable Securities covered by
the applicable Registration Statement; provided, that the Company will not
be required to (i) qualify generally to do business in any jurisdiction
where it is not then so qualified or (ii) take any action that would
subject it to general service of process in suits or to taxation in any
such jurisdiction where it is not then so subject.
(i) Cause the Registrable Securities covered by the applicable
Registration Statement to be registered with or approved by such other
governmental agencies or authorities within the United States, except as
may be required solely as a consequence of the nature of the Holder in
which case the Company will cooperate in all reasonable respects with the
filing of such Registration Statement and the granting of such approvals,
as may be necessary to enable the Holder or the underwriters, if any, to
consummate the disposition of such Registrable Securities.
(j) Upon the occurrence of any event contemplated by Section 3(c)(v)
or 3(c)(vi) above, prepare a supplement or post-effective amendment to each
Registration Statement or a supplement to the related Prospectus or any
document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of the
Registrable Securities being sold thereunder, such Prospectus will not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(k) Enter into such agreements (including, in the event of an
underwritten offering, an underwriting agreement in form, scope and
substance as is customary in underwritten offerings) and take all such
other actions in connection therewith (including, in the event of an
underwritten offering, those reasonably requested by the managing
underwriters, if any, or the Holder) in order to expedite or facilitate the
disposition of such Registrable Securities and in such connection, whether
or not an underwriting agreement is entered into and if the registration is
an underwritten registration, (i) make such representations and warranties,
subject to the Company's ability to do so, to the Holder and the
underwriters, if any, with respect to the business of the Company and its
subsidiaries, the Registration Statement, Prospectus and documents
incorporated by reference or deemed incorporated by reference, if any, in
each case, in form, substance and scope as are customarily made by issuers
to underwriters in underwritten offerings and confirm the same if and when
requested; (ii) use its best efforts to obtain opinions of counsel to the
Company and updates thereof (which counsel and opinions (in form, scope and
substance) shall be reasonably satisfactory to the managing underwriters,
if any, Special Counsel and the Holder) addressed to the Holder and each of
the underwriters, if any, covering the matters customarily covered in
opinions requested in underwritten offerings; (iii) use its reasonable
efforts to obtain "cold comfort" letters and updates thereof from the
independent certified public accountants of the Company (and, if necessary,
any other certified public accountants of any subsidiary of the Company or
any business acquired or to be acquired by the Company for which financial
statements and financial data is, or is required to be, included in the
Registration Statement), addressed to the Holder and each of the
underwriters, if any, such letters to be in customary form and covering
matters of the type customarily covered in "cold comfort" letters in
connection with underwritten offerings; and (iv) deliver such documents and
certificates as may be reasonably requested by the Holder, the Special
Counsel and the managing underwriters, if any, to evidence the continued
validity of the representations and warranties of the Company and its
subsidiaries made pursuant to clause (i) above and to evidence compliance
with any customary conditions contained in the underwriting agreement or
other agreement entered into by the Company. The above shall be done at
each closing under such underwriting or similar agreement as and to the
extent required thereunder.
(l) If necessary in connection with a disposition of Registrable
Securities pursuant to a Registration Statement, make available for
inspection by a representative of the Holder, any underwriter participating
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in any disposition of Registrable Securities, if any, and any attorney or
accountant retained by the Holders or underwriter, financial and other
records, pertinent corporate documents and properties of the Company, and
cause the executive officers, directors and employees of the Company to
supply all information reasonably requested by any such representative,
underwriter, attorney or accountant in connection with such disposition;
provided that any records, information or documents that are designated by
the Company in writing as confidential at the time of delivery of such
records, information or documents shall be kept confidential by such
persons unless (i) such records, information or documents are in the public
domain or otherwise publicly available, (ii) disclosure of such records,
information or documents is required by court or administrative order after
the exhaustion of appeals therefrom or (iii) disclosure of such records,
information or documents, in the written opinion of counsel (reasonably
acceptable to the Company) to such person, is otherwise required by law
(including, without limitation, pursuant to the requirements of the
Securities Act), which opinion shall be delivered to the Company at least
five days prior to the date on which such disclosure is sought, and
provided further that any information obtained pursuant to this provision
shall only be used in connection with the transaction for which such
information was obtained.
Notwithstanding anything in this Agreement to the contrary, the Holder
shall not be entitled to sell any of such Registrable Securities pursuant
to a Registration Statement or to receive a Prospectus relating thereto
unless the Holder (A) has at such time a current intent to sell such
Registrable Securities, and, at the Company's written request, confirms
such intent in writing, and (B) has furnished the Company promptly after
the Company's written request, such information regarding the Holder and
the distribution of such Registrable Securities as the Company may from
time to time reasonably request. The Company may refrain from filing such
registration for the Holder's Registrable Securities if it does not furnish
such information provided above. The Holder agrees promptly to furnish to
the Company all information required to be disclosed in order to make the
information previously furnished to the Company by the Holder not
misleading.
The Holder agrees by acquisition of such Registrable Securities that,
upon receipt of any written notice from the Company of (A) the happening of
any event of the kind described in Section 3(c)(ii), 3(c)(iii), 3(c)(iv),
3(c)(v) or 3(c)(vi) hereof or (B) that, in the judgment of the Company, it
is advisable to suspend use of the Prospectus for a discrete period of time
due to pending corporate developments, public filings with the SEC or
similar events, the Holder will forthwith discontinue disposition of such
Registrable Securities covered by such Registration Statement or Prospectus
until the Holder's receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 3(j) hereof, or until it is advised in
writing (the "Advice") 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. The Company shall use its best efforts to
insure that the use of the Prospectus may be resumed as soon as
practicable.
(m) When used herein with respect to a registration, the phrase
"another appropriate form," "such other form" or words to that effect shall
mean such alternative or successor form including, but not limited to, any
Form A or Form B as proposed by the SEC pursuant to Securities Act Release
No. 33-7606 (if such Form A or Form B is adopted by the SEC).
5. Registration Expenses. All fees and expenses incident to the Company's
performance of or compliance with this Agreement shall be borne by the Company
whether or not any of the Registration Statements become effective. Such fees
and expenses shall include, without limitation, (i) all registration and filing
fees (including, without limitation, fees and expenses (x) with respect to
filings required to be made with the National Association of Securities Dealers,
Inc. and (y) of compliance with federal securities or Blue Sky laws and
determination of the eligibility of the Registrable Securities for investment
under the laws of such jurisdictions as the managing underwriters, if any, or
the Holder may designate), (ii) printing expenses (including, without
limitation, expenses of printing certificates for Registrable Securities in a
form eligible for deposit with The Depository Trust Company and of printing
prospectuses if the printing of prospectuses is requested by the Special Counsel
or the Holder), (iii) fees and disbursements of counsel for the Company in
connection with the Shelf Registration, (iv) fees and disbursements of counsel
for the underwriters, if any,
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(v) fees and disbursements of all independent certified public accountants
referred to in Section 3(k)(iii) hereof (including the expenses of any special
audit and "cold comfort" letters required by or incident to such performance),
and (vi) Securities Act liability insurance obtained by the Company in its sole
discretion. In addition, the Company shall pay its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any annual audit, the
fees and expenses incurred in connection with the listing of the securities to
be registered on any securities exchange on which similar securities issued by
the Company are then listed and rating agency fees and the fees and expenses of
any person, including special experts, retained by the Company. Notwithstanding
the provisions of this Section 4, the Holder shall pay all registration expenses
to the extent that the Company is prohibited by applicable Blue Sky laws from
paying for or on behalf of the Holder.
All underwriting discounts, selling commissions and stock transfer taxes
applicable to the sale of the Registrable Securities, all fees and disbursements
of Special Counsel and all fees and disbursements of counsel for the
underwriters, if any, shall be paid by the Holder.
6. Indemnification.
(a) Indemnification by the Company. The Company shall indemnify and
hold harmless, to the fullest extent permitted by law, the Holder and each
person, if any, who controls the Holder (within the meaning of Section 15
of the Securities Act or Section 20(a) of the Exchange Act) from and
against all losses, liabilities, claims, damages and expenses (including
but not limited to reasonable attorney fees and any and all reasonable
expenses whatsoever incurred in investigating, preparing or defending
against litigation, commenced or threatened, or any claim whatsoever, and
any and all amounts paid in settlement of any claim or litigation)
(collectively, "Losses"), arising out of or based upon any untrue or
alleged untrue statement of a material fact contained in any Registration
Statement, Prospectus or form of Prospectus or in any amendment or
supplement thereto or in any preliminary prospectus, or arising out of or
based upon any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, except insofar as the same are based solely upon information
furnished in writing to the Company by the Holder expressly for use
therein; provided, that the Company shall not be liable to the Holder (or
any person controlling the Holder) to the extent that any such Losses arise
out of or are based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in any prospectus if either (A) (i) the
Holder failed to send or deliver a copy of the Prospectus with or prior to
the delivery of written confirmation of the sale by the Holder of a
Registrable Security to the person asserting the claim from which such
Losses arise and (ii) the Prospectus would have corrected such untrue
statement or alleged untrue statement or such omission or alleged omission,
or (B) (x) such untrue statement or alleged untrue statement, omission or
alleged omission is corrected in an amendment or supplement to the
Prospectus and (y) having previously been furnished by or on behalf of the
Company with copies of the Prospectus as so amended or supplemented, the
Holder thereafter fail to deliver such Prospectus as so amended or
supplemented, with or prior to the delivery of written confirmation of the
sale of a Registrable Security to the person asserting the claim from which
such Losses arise. The Company shall also indemnify each underwriter and
each person who controls such person (within the meaning of Section 15 of
the Securities Act or Section 20(a) of the Exchange Act) to the same extent
as provided above with respect to the indemnification of the Holder.
(b) Indemnification by Holder. In connection with any Registration
Statement in which the Holder is participating, the Holder shall furnish to
the Company in writing such information as the Company reasonably requests
for use in connection with any Registration Statement or Prospectus and the
Holder agrees to indemnify, to the fullest extent permitted by law, the
Company, its directors and officers and each other person who controls the
Company (within the meaning of Section 15 of the Securities Act and Section
20 of the Exchange Act), from and against all Losses arising out of or
based upon any untrue statement of a material fact contained in any
Registration Statement, Prospectus or preliminary prospectus or arising out
of or based upon any omission of a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, to the extent,
but only to the extent, that such untrue statement or omission is
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contained in any information so furnished in writing by the Holder to the
Company expressly for use in such Registration Statement or Prospectus. In
no event shall the liability of the Holder hereunder exceed the gross
proceeds received from sales of its Registrable Securities. The Company
shall be entitled to receive indemnities from underwriters participating in
the distribution to the same extent as provided above with respect to
information so furnished in writing by such persons expressly for use in
any Prospectus or Registration Statement.
(c) Conduct of Indemnification Proceedings. If any person shall be
entitled to indemnity hereunder (an "indemnified party"), such indemnified
party shall give prompt notice to the party from which such indemnity is
sought (the "indemnifying party") of any claim or of the commencement of
any proceeding with respect to which such indemnified party seeks
indemnification or contribution pursuant hereto; provided, that the failure
to so notify the indemnifying party shall not relieve the indemnifying
party from any obligation or liability except to the extent that the
indemnifying party has been prejudiced materially by such failure. All such
fees and expenses (including any fees and expenses incurred in connection
with investigating or preparing to defend such action or proceeding) shall
be paid to the indemnified party on a quarterly basis following written
notice thereof to the indemnifying party (notwithstanding the absence of
judicial determination as to the propriety and enforceability of the
indemnifying party's obligation to reimburse the indemnified party for such
expense and the possibility that such payments might later be held to have
been improper by a court of competent jurisdiction). In case any such
action is brought against an indemnified party, the indemnifying party
shall be entitled to participate therein and it may elect by written notice
delivered to the indemnified party within a reasonable period of time after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof with counsel reasonably satisfactory to such indemnified
party.
(d) Contribution. If the indemnification provided for in this Section
5 is unavailable to an indemnified party under Section 5(a) or 5(b) hereof
in respect of any Losses or is insufficient to hold such indemnified party
harmless, then each applicable indemnifying party, in lieu of indemnifying
such indemnified party, shall, jointly and severally, contribute to the
amount paid or payable by such indemnified party as a result of such
Losses, in such proportion as is appropriate to reflect the relative fault
of the indemnifying party or indemnifying parties, on the one hand, and
such indemnified party, on the other hand, in connection with the actions,
statements or omissions that resulted in such Losses as well as any other
relevant equitable considerations. The relative fault of such indemnifying
party or indemnifying parties, on the one hand, and such indemnified party,
on the other hand, shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission of a material
fact, has been taken or made by, or relates to information supplied by,
such indemnifying party or indemnified party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such action, statement or omission. The amount paid or payable by a
party as a result of any Losses shall be deemed to include any reasonable
legal or other reasonable fees or expenses incurred by such party in
connection with any proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 5(d) were determined by pro rata
allocation or by any other method or allocation that does not take into
account the equitable considerations referred to in the immediately
preceding paragraph. Notwithstanding this Section 5(d), if any of the
Holder is the indemnifying party, the Holder shall not be required to
contribute any amount in excess of the amount by which the total price at
which the Registrable Securities sold by the Holder and distributed to the
public were offered to the public exceeds the amount of any damages which
the Holder has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
The indemnity, contribution and expense reimbursement obligations of
the Company hereunder shall be in addition to any liability the Company may
otherwise have hereunder or otherwise. The
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provisions of this Section 5 shall survive so long as Registrable
Securities remain outstanding, notwithstanding any termination of this
Agreement.
7. Rule 144 Information Requirements. For so long as any Registerable
Securities are "restricted securities" under Rule 144, the Company agrees to
timely file the reports required to be filed by it under the Securities Act and
the Exchange Act. Notwithstanding the foregoing, nothing in this Section 6 shall
be deemed to require the Company to register any of its securities under any
section of the Exchange Act.
8. Sale without Registration. The Holder agrees to comply in all respects
with the provisions of this Section 7 so long as each certificate representing
the Shares is required to bear the legend in substantially the form set forth in
Section 6(a)(v) of the Common Stock Purchase Agreement (or any similar legend).
Prior to any proposed transfer of any Registrable Securities by the Holder which
shall not be registered under the Securities Act, the Holder shall give written
notice to the Company of its intention to effect such transfer, accompanied by:
(a) such information as is reasonably necessary in order to establish that such
transfer may be made without registration under the Securities Act; and (b) if
requested by the Company, at the Company's expense, an unqualified written
opinion of legal counsel, satisfactory in form and substance to the Company, to
the effect that such transfer may be made without registration under the
Securities Act; provided that nothing contained in this Section 7 shall relieve
the Company from complying with its obligations pursuant to Section 2 of this
Agreement.
9. Lock-Up Agreement. The Holder hereby agrees that, at the written request
of the Company or any managing underwriter of any underwritten offering of
securities of the Company, the Holder shall not, without the prior written
consent of the Company or such managing underwriter, sell, make any short sale
of, loan, grant any option for the purchase of, pledge, encumber, or otherwise
dispose of, or exercise any registration rights with respect to, any Registrable
Securities during the 90-day period commencing on the effective date of the
registration statement relating to such underwritten offering of the Company's
securities.
10. No Transfer of Registration Rights. Notwithstanding anything expressed
or implied in this Agreement to the contrary, the Holder shall not assign,
transfer or convey all or any of its rights under this Agreement, except with
the prior written consent of the Company; provided, however, the Holder may
assign, transfer or convey its rights under this Agreement to (i) Roche
Holdings, Inc. or (ii) any Affiliate of Genentech, Inc. or (iii) any entity
acting as an investment manager of securities owned by Genentech, Inc. provided
such investment manager shall not assign, transfer or convey all or any of its
rights under this Agreement to any third party (other than Genentech) without
the prior written consent of the Company. For purposes of this Agreement, the
term "Affiliate" means, when used with respect to any specified person, any
other person directly or indirectly controlling or controlled by or under direct
or indirect common control with such specified person. For the purposes of this
definition, "control," when used with respect to any person, means the power to
direct the management and policies of such person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise and
the terms "affiliated," "controlling" and "controlled" have meanings correlative
to the foregoing.
11. Miscellaneous.
(a) Remedies. In the event of a breach by the Company of its
obligations under this Agreement, the Holder, in addition to being entitled
to exercise all rights granted by law, including recovery of damages, will
be entitled to specific performance of its rights under this Agreement. The
Company agrees that monetary damages would not be adequate compensation for
any loss incurred by reason of a breach by it of any of the provisions of
this Agreement and hereby further agrees that, in the event of any action
for specific performance in respect of such breach, it shall waive the
defense that a remedy at law would be adequate.
(b) No Conflicting Agreements. The Company has not, as of the date
hereof, and shall not, on or after the date of this Agreement, enter into
any agreement with respect to its securities which materially conflicts
with the rights granted to the Holders in this Agreement.
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(c) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions
hereof may not be given, unless the Company has obtained the written
consent of the Holder.
(d) Notices. All notices and other communication required or
appropriate to be given hereunder shall be in writing and shall be
delivered by hand or mailed by certified mail, return receipt requested, or
sent by telex or facsimile (in which case a confirming copy shall also be
sent by certified mail or courier), to the following respective addresses
or to such other addresses as may be specified in any notice delivered or
mailed as above provided:
(i) If to the Purchaser, to:
Genentech, Inc.
0 XXX Xxx
Xxxxx Xxx Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Corporate Secretary
(ii) If to the Company to:
Abgenix, Inc.
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: President
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
Any notice or other communication delivered by hand or mailed shall be deemed to
have been delivered on the date on which such notice or communication is
delivered by hand, or in the case of certified mail deposited with the
appropriate postal authorities on the date when such notice or communication is
actually received, and in any other case shall be deemed to have been delivered
on the date on which such notice or communication is actually received.
(e) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and permitted assigns of each of the
parties.
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be original and all of which
taken together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, AS
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APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF CALIFORNIA,
WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
(i) Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid,
void or unenforceable, the remainder of the terms, provisions, covenants
and restrictions set forth herein shall remain in full force and effect and
shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means
to achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction. It is hereby stipulated
and declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and restrictions
without including any of such which may be hereafter declared invalid, void
or unenforceable.
(j) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and is intended to be a complete and
exclusive statement of the agreement and understanding of the parties
hereto in respect of the subject matter contained herein and the
registration rights granted by the Company with respect to the Shares.
There are no restrictions, promises, warranties or undertakings, other than
those set forth or referred to herein, with respect to the registration
rights granted by the Company with respect to the Shares. This Agreement
supersedes all prior agreements and understandings among the parties with
respect to such registration rights.
(k) Attorneys' Fees. In any action or proceeding brought to enforce
any provision of this Agreement, or where any provision hereof is validly
asserted as a defense, the prevailing party, as determined by the court,
shall be entitled to recover reasonable attorneys' fees in addition to any
other available remedy.
(l) Further Assurances. Each of the parties hereto shall use all
reasonable efforts to take, or cause to be taken, all appropriate action,
do or cause to be done all things reasonably necessary, proper or advisable
under applicable law, and execute and deliver such documents and other
papers, as may be required to carry out the provisions of this Agreement
and the other documents contemplated hereby and consummate and make
effective the transactions contemplated hereby.
(m) Termination. This Agreement and the obligations of the parties
hereunder shall terminate upon the earlier of the end of the Effectiveness
Period or when all of the Registrable Securities have been sold or cease to
be Registrable Securities, except for any liabilities or obligations under
Sections 4 or 5 or 6 or the provisos of Section 3(1) above, which shall
remain in effect in accordance with their terms.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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The foregoing Registration Rights Agreement is hereby executed as of the
date first above written.
"COMPANY" ABGENIX, INC.
By: /s/ R. XXXXX XXXXX
------------------------------------
R. Xxxxx Xxxxx
President and Chief Executive
Officer
"HOLDER" GENENTECH, INC.
By: /s/ XXXXXXX X. XXXXX
------------------------------------
Xxxxxxx X. Xxxxx
Chief Operating Officer
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