Exhibit 4
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
-----------------------------
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is entered
into as of April 18, 2006 by and among American Pharmaceutical Partners,
Inc., a Delaware corporation (the "Company"), Xx. Xxxxxxx Soon-Shiong
("PSS") and the stockholders of ABI receiving Common Stock in the Merger
(each as defined below) who execute and deliver a counterpart to this
Agreement (collectively, the "Stockholder Parties").
R E C I T A L S
---------------
A. The Company and American BioScience Inc., Inc., a California
corporation ("ABI") have entered into an agreement and plan of merger,
dated as of November 27, 2005 (the "Merger Agreement") pursuant to which
holders of shares of common stock of ABI as of the Effective Time of the
Merger (each term as defined in the Merger Agreement) will be entitled to
receive shares of Common Stock;
B. The obligation of ABI to consummate the merger contemplated by the
Merger Agreement (the "Merger") is conditioned, among other things, upon
the Company entering into this Agreement.
AGREEMENT
---------
NOW, THEREFORE, in consideration of the foregoing and of the mutual
promises herein contained, the parties hereby agree as follows:
1. Definitions. Unless the context otherwise requires, the terms
defined in this Section 1 shall have the meanings herein specified for all
purposes of this Agreement, applicable to both the singular and plural
forms of any of the terms herein defined.
"Agreement" means this Registration Rights Agreement.
"Automatic Shelf Registration Statement" means an automatic shelf
registration statement as defined under Rule 405 of the Securities Act.
"Board" means the Board of Directors of the Company.
"Common Stock" means the common stock, par value $.001, of the
Company.
"Commission" means the Securities and Exchange Commission.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Holder" of any security means the record or beneficial owner of
such security.
"Holders of a Majority of Registrable Securities" means the
Person or Persons who are the Holders of greater than 50% of the
Registrable Securities then outstanding.
"Independent Member of the Board" means a member of the Board who
is an Outside Independent Director as defined in the Corporate Governance
and Voting Agreement by and among PSS, the Company and certain other
parties who were or will be issued Registrable Securities pursuant to the
Merger to be effected pursuant to the Merger Agreement or, from and after
the termination of such agreement, shall refer to members of the Board who
are members of the Company's audit committee.
"Initiating Holder" means any Holder of Registrable Securities.
"Person" means any natural person, corporation, trust,
association, company, partnership, limited liability company, joint venture
and other entity and any government, governmental agency, instrumentality
or political subdivision.
The terms "register," "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement in
substantial compliance with the Securities Act, and the declaration or
ordering of the effectiveness of such registration statement.
"Registrable Securities" shall mean (i) the shares of Common
Stock issued to the Stockholder Parties pursuant to the Merger and (ii) any
shares of Common Stock or other securities issued or issuable in respect of
the Common Stock or the other securities referred to in clause (i) above by
way of a spin-off, split-off, dividend or stock split or in connection with
a combination of shares, reclassification, merger, consolidation or
reorganization; provided, however, that such shares of Common Stock or
other securities shall constitute Registrable Securities only so long as
they have not been (x) sold to or through a broker or dealer or underwriter
in a public distribution or a public securities transaction pursuant to an
effective registration statement under the Securities Act, or (y) sold in a
transaction exempt from the registration and prospectus delivery
requirements of the Securities Act under Section 4(1) thereof so that all
transfer restrictions and restrictive legends with respect to such Common
Stock or other securities are removed upon the consummation of such sale
and the seller and purchaser of such Common Stock or other securities
receive an opinion of counsel for the Company, which shall be in form and
content reasonably satisfactory to the seller and purchaser and their
respective counsel, to the effect that such Common Stock or other
securities in the hands of the purchaser are freely transferable without
restriction or registration under the Securities Act in any public or
private transaction.
"Securities Act" means the Securities Act of 1933, as amended.
"WKSI" means a well-known seasoned issuer as defined under Rule
405 of the Securities Act.
2. Underwritten Demand Registration.
--------------------------------
(a) At any time or from time to time after the date hereof, any
Initiating Holder shall have the right to request, by delivery of a written
notice to the Company (an "Underwritten Demand Notice"), that the Company
file a registration statement under the Securities Act (an "Underwritten
Registration Statement") covering all or a portion of the Registrable
Securities for the purpose of effecting an underwritten offering of such
Registrable Securities (an "Underwritten Demand Registration"); provided,
however, that no Initiating Holder shall be entitled to demand an
Underwritten Demand Registration Statement during the period when the
Company is exercising its right to defer a Shelf Demand Registration
pursuant to Section 3(b). Any such Underwritten Demand Notice must request
the registration of Registrable Securities having an aggregate market
value, based on the average per share closing price of the Registrable
Securities as reported by the NASDAQ National Market (or, if the
Registrable Securities are not traded on the NASDAQ national market, on any
other securities exchange or market upon which the Registrable Securities
are then traded) over the ten (10) consecutive trading days prior to the
date of the Underwritten Demand Notice, of not less than one hundred
million dollars ($100,000,000). Subject to Section 6(b)(A), as soon as
reasonably practicable, but in no event later than forty-five (45) days
(thirty (30) days if the registration statement will be on Form S-3) after
receiving an Underwritten Demand Notice, the Company shall file with the
Commission a registration statement covering the Registrable Securities
subject to the Underwritten Demand Notice. Subject to Sections 2(b) and 4,
the Company shall use its reasonable best efforts to cause such
registration statement to become effective as expeditiously as possible.
Any registration under this Section 2 shall be on a form designated by the
managing underwriter for such registration and the applicable registration
statement shall reflect such plan or method of distribution of the
applicable securities as shall be designated by the managing underwriter.
(b) Notwithstanding the provisions of Section 2(a), if the Company is
required to effect a registration pursuant to this Section 2 and the
Company furnishes to the Initiating Holder requesting such registration a
certificate signed by the Chief Executive Officer of the Company or an
Independent Member of the Board stating that in the good faith judgment of
the Board or a majority of the Independent Members of the Board it would be
detrimental to the Company and its stockholders for a registration
statement or other filing to be filed or become effective on or before the
date such filing or effectiveness would otherwise be required hereunder,
the Company shall have the right to defer such filing or the effectiveness
hereunder for a period ending not more than ninety (90) days after the
Company's receipt of the applicable Underwritten Demand Notice, provided,
that the Company may not exercise its right under this Section 2(b) more
than twice in any 18-month period; and provided further, that the Company
may not exercise its rights under this Section 2(b) for two consecutive
90-day periods.
(c) Notwithstanding the provisions of Section 2(a), the Company shall
not be obligated to (i) file or effect an Underwritten Registration
Statement within a period of 90 days after the effective date of any other
Underwritten Registration Statement or an underwritten offering pursuant to
a Shelf Registration Statement or (ii) file or effect more than a total of
two Underwritten Registration Statements within any 12-month period;
provided, however, that each Shelf Registration Statement filed during the
applicable 12-month period will reduce by one the number of Underwritten
Registration Statements the Company is obligated to file during such
12-month period.
(d) The Company may elect to register in any Underwritten Demand
Registration any additional shares of Common Stock (including, without
limitation, any shares of Common Stock to be distributed in a primary
offering made by the Company) so long as the inclusion of such Common Stock
by the Company would not (i) be reasonably likely to delay in any material
respect the Initiating Holder's ability timely to sell the Registrable
Securities pursuant to the Demand Registration Statement or (ii) cause a
reduction in the number of Registrable Securities included in the
Underwritten Demand Registration as a result of the Company's election to
so register additional shares of Common Stock. Such election of the
Company, if made, shall be made by the Company giving written notice to the
Initiating Holder prior to the effectiveness of the Underwritten
Registration Statement stating (A) that the Company proposes to include
additional shares of Common Stock in such Demand Registration Statement,
and (B) the number of shares of Common Stock proposed to be included.
3. Shelf Registration.
------------------
(a) At any time or from time to time after the date hereof and so
long as the Company is eligible to register Registrable Securities under a
Form S-3 Registration Statement, any Initiating Holder shall have the right
to request, by delivery of a written notice to the Company (a "Shelf Demand
Notice"), that (i) the Company file a shelf registration statement (a
"Shelf Registration Statement") pursuant to Rule 415 under the Securities
Act covering all or a portion of the Registrable Securities to enable the
resale on a delayed or continuous basis of such Registrable Securities (a
"Shelf Demand Registration") or (ii) if the Company is a WKSI and has an
outstanding effective Form S-3 Registration Statement, the Company file a
post-effective amendment to such Form S-3 Registration Statement covering
all or a portion of the Registrable Securities; provided, however, that in
any case the Company shall not be obligated to file or effect any Shelf
Registration Statement (A) at any time that the amount of unsold
Registrable Securities covered by all then effective Shelf Registration
Statements equals or exceeds seventeen percent of the then outstanding
shares of Common Stock of the Company or (B) if the requested Shelf
Registration Statement covers a number of Registrable Securities that, when
added to the amount of unsold Registrable Securities covered by all then
effective Shelf Registration Statements would equal or exceed seventeen
percent of the then outstanding shares of Common Stock of the Company; and
provided, further that no Initiating Holder shall be entitled to demand a
Shelf Registration Statement during the period when the Company is
exercising its right to defer an Underwritten Demand Registration pursuant
to Section 2(b). Subject to Section 6(b)(A), as soon as reasonably
practicable, but in no event later than thirty (30) days after receiving a
Shelf Demand Notice (or twenty (20) days if the Company is a WKSI and then
has an effective Form S-3 Registration Statement), the Company shall file
with the Commission a Shelf Registration Statement on Form S-3 of the
Commission or, if the Company is a WKSI and has an effective Form S-3
Registration Statement, a post-effective amendment thereto. Subject to
Sections 3(b) and 3(c), the Company shall use its commercially reasonable
best efforts to cause the Shelf Registration Statement to become effective
as expeditiously as possible and to remain effective until the earlier of
(x) the time all Registrable Securities subject thereto have been sold and
(y) the third anniversary of the initial effective time, including by
filing necessary post-effective amendments and prospectus supplements
reasonably required by a Holder, subject to any blackout periods described
in subparagraph (b) below. If the Company is at any time a WKSI, it shall
cause each Shelf Registration Statement to be, or shall cause any filed
Shelf Registration Statement to be amended to be, an Automatic Shelf
Registration Statement. The Initiating Holder shall have the right to
determine the plan and method of distribution for the Registrable
Securities to be reflected in the Shelf Registration Statement in respect
of which it is the Initiating Holder.
(b) Notwithstanding the provisions of Section 3(a), if the
Company is required to effect a Shelf Registration Statement or make any
filing with the Commission pursuant to this Section 3 or if the Company has
a Shelf Registration Statement in effect pursuant to this Section 3, and
the Company furnishes to the Initiating Holder requesting such registration
or filing or to the Holders of Registrable Securities included in such
Shelf Registration Statement, as applicable, a certificate signed by an
Independent Member of the Board stating that (x) in the good faith judgment
of a majority of the Independent Members of the Board it would be
detrimental to the Company and its stockholders for a registration
statement or other filing to be filed on or before the date such filing
would otherwise be required hereunder or (y) sales pursuant to a Shelf
Registration Statement would require the disclosure of information not
otherwise then required by law (in the absence of a registration or sales
thereunder) to be publicly disclosed and that in the good faith judgment of
a majority of the Independent Members of the Board such disclosure would be
detrimental to the Company and its stockholders, the Company shall have the
right to defer such filing or the effectiveness thereof for a period of not
more than ninety days after the Company's receipt of the applicable Shelf
Demand Notice or prevent Holders of Registrable Securities from selling
Registrable Securities pursuant to an effective Shelf Registration
Statement for a period of not more than ninety days after the Company
delivers a written request to the applicable Holder demanding that such
Holder cease sales of securities under the Shelf Registration Statement
(and during such period the Company shall not be obligated to file another
Shelf Registration Period during the period such sales under an effective
Shelf Registration Statement are not allowed); provided, that the Company
may not exercise its rights under this Section 3(b) more than twice in any
18-month period; and provided further, that the Company may not exercise
its rights under this Section 2(b) for two consecutive 90-day periods.
(c) Notwithstanding the provisions of Section 3(a), the Company
shall not be obligated to (i) file a Shelf Registration Statement within a
period of 90 days after the effective date of any Underwritten Registration
Statement or an underwritten offering pursuant to a Shelf Registration
Statement or (ii) file or effect more than a total of two Shelf
Registration Statements within any 12-month period; provided, however, that
each filing of an Underwritten Registration Statement during the 12-month
period will reduce by one the number of Shelf Registration Statements that
the Company is obligated to file during such 12-month period.
(d) Upon the receipt by the Company of a Shelf Demand Notice, the
Company shall give prompt written notice to all Holders of Registrable
Securities (other than the Initiating Holder) that a Shelf Registration
Statement pursuant to this Section 3 is being effected. In the event that
any such Holder delivers to the Company a written request within fifteen
(15) days after the delivery of such written notice to the Holder by the
Company, to include in such Shelf Registration Statement Registrable
Securities of the Holder the Company shall include such Registrable
Securities in the Shelf Registration Statement, including by means of a
pre-effective or post-effective amendment thereto; provided, however, that
if the inclusion of the Registrable Securities of such Holders in such
registration statement would, in the opinion of the Initiating Holders, be
reasonably likely to delay in any material respect the Initiating Holder's
ability timely to sell the Registrable Securities pursuant to the Shelf
Registration Statement, the Company shall not include such Holders'
Registrable Securities in the Shelf Registration Statement without the
prior written consent of the Initiating Holder.
(e) At any time or from time to time after the date hereof, any
Initiating Holder shall have the right to request, by delivery of a written
notice to the Company (a "Shelf Underwritten Demand Notice"), that the
Company effect an underwritten offering of all or a portion of the
Registrable Securities included in an existing Shelf Registration
Statement. Any such Shelf Underwritten Demand Notice must request an
underwritten offering of Registrable Securities having an aggregate market
value, based on the average per share closing price of the Registrable
Securities as reported by the NASDAQ National Market (or if the Registrable
Securities are not traded on the NASDAQ National Market, the securities
exchange or market upon which the Registrable Securities are listed or
traded) over the ten (10) consecutive trading days prior to the date of the
Shelf Demand Notice, of not less than one hundred million dollars
($100,000,0000). Subject to Section 6(b)(A), as soon as reasonably
practicable after receiving an Underwritten Demand Notice, but in no event
later than thirty (30) days after receiving a Shelf Underwritten Demand
Notice, the Company shall file with the Commission such amendments to the
applicable Shelf Registration Statements and such prospectus supplements or
other filings as are necessary in connection with the underwritten offering
of the Registrable Securities subject to the Shelf Underwritten Demand
Notice, subject to Sections 3(b) and Section 4. Any prospectus supplement
or other filing with the Commission including a plan or method of
distribution of the securities subject to an underwritten offering pursuant
to this Section 3 shall reflect the plan or method of distribution of such
securities as shall be designated by the managing underwriter of the
offering.
(f) The Company may elect to register in any Shelf Registration
Statement any additional shares of Common Stock (including, without
limitation, any shares of Common Stock to be distributed in a primary
offering made by the Company) so long as the inclusion of such Common Stock
by the Company would not (i) be reasonably likely to delay in any material
respect the Initiating Holder's ability timely to sell the Registrable
Securities pursuant to the Shelf Registration Statement or (ii) cause a
reduction in the number of Registrable Securities included in the Shelf
Demand Registration as a result of the Company's election to so register
additional shares of Common Stock . Such election of the Company, if made,
shall be made by the Company giving written notice to the Initiating Holder
stating (A) that the Company proposes to include additional shares of
Common Stock in such Shelf Registration Statement, and (B) the number of
shares of Common Stock proposed to be included.
4. Underwritten Offerings.
----------------------
(a) The Initiating Holder shall have the right to select the
book-running managers and the co-managers (collectively, the "managing
underwriter") in connection with any underwritten offering pursuant to
Section 2 or Section 3; provided, that the selection of the managing
underwriter by the Initiating Holder shall be subject to the reasonable
approval of the Board. In connection with such underwritten offering, the
Company and the Initiating Holder shall enter into an underwriting
agreement with the underwriter or underwriters selected for such
underwriting, provided, that such underwriting agreement is in customary
form, provides for customary compensation, expense reimbursement and
indemnification, and otherwise is reasonably acceptable to the Initiating
Holder and the Company.
(b) Upon the receipt by the Company of an Underwritten Demand
Notice or a Shelf Underwritten Demand Notice, the Company shall give prompt
written notice to all Holders of Registrable Securities (other than the
Initiating Holder) that an underwritten offering pursuant to Section 2 or
Section 3, as applicable is being effected. In the event that any such
Holder delivers to the Company, within fifteen (15) days after the delivery
of such written notice to the Holder by the Company, a written request to
include in such underwritten offering any Registrable Securities of the
Holder, the Company shall include such Registrable Securities in the
registration statement; provided that the Company need not include in an
underwritten offering pursuant to Section 3 any Registrable Securities that
are not then included in the applicable Shelf Registration Statement
(unless the Company is then a WKSI). The right of any Holder to include
Registrable Securities in any underwritten offering shall be conditioned
upon such Holder's willingness to enter into an underwriting agreement with
the underwriter or underwriters selected for such offering (in each case,
unless otherwise mutually agreed by such Holder, the Initiating Holders and
the Company).
(c) Notwithstanding the foregoing, if the managing underwriter of
an underwritten offering in connection with any registration pursuant to
Section 2 or Section 3 advises the Company and the Holders of Registrable
Securities participating in such offering in writing that in its good faith
judgment the number of Registrable Securities requested to be included in
such offering exceeds the number of Registrable Securities which can be
sold in such offering at a price acceptable to the applicable Initiating
Holder, then (i) the number of Registrable Securities so requested to be
included in such offering shall be reduced to that number of shares which
in the good faith judgment of the managing underwriter can be sold in such
offering at such price and (ii) this reduced number of Registrable
Securities shall be allocated among all Holders of Registrable Securities
in proportion, as nearly as practicable, to the respective number of shares
of Registrable Securities then held by such Holders.
(d) Those Registrable Securities which are excluded from an
underwriting in connection with any registration pursuant to Section 2 or
Section 3 hereof by reason of the managing underwriter's marketing
limitation and all other Registrable Securities not originally requested to
be so included shall not be included in such offering and shall be withheld
from the market by the Holders thereof for a period (not to exceed ninety
(90) days) which the managing underwriter reasonably determines is
necessary to effect the underwritten offering.
(e) If the managing underwriter has not limited the number of
Registrable Securities to be included in an underwritten offering pursuant
to Section 2 or Section 3, the Company and, subject to the requirements of
Section 8 hereof, the other holders of the Company's securities may include
securities for its (or their) own account in such registration if the
managing underwriter so agrees and if the number of Registrable Securities
which would otherwise have been included in such offering will not thereby
be limited.
5. Piggyback Registration.
----------------------
(a) Each time the Company shall determine to file a registration
statement under the Securities Act (other than on Form S-4 or Form S-8 or a
registration statement on Form S-1 or Form S-3 covering solely an employee
benefit plan) in connection with the proposed offer and sale of any of its
securities of the same class as the Registrable Securities either for its
own account or on behalf of any other security holder (other than a
registration pursuant to Section 2 or Section 3), the Company agrees to
give prompt written notice of its determination to all Holders of
Registrable Securities. In the event that any such Holder delivers to the
Company, within fifteen (15) days after the delivery of such written notice
to the Holder by the Company, a written request to include in such
registration statement any Registrable Securities of the Holder, the
Company shall include such Registrable Securities in such registration
statement, all to the extent required to permit the sale or other
disposition by the prospective seller or sellers of the Registrable
Securities to be so registered.
(b) If the registration of which the Company gives written notice
pursuant to Section 5(a) is for a public offering involving an
underwriting, the Company shall so advise the Holders as a part of its
written notice. In such event 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.
Holders proposing to distribute their Registrable Securities through such
underwriting agree to enter into (together with the Company and the other
Holders distributing their securities through such underwriting) an
underwriting agreement with the underwriter or underwriters selected for
such underwriting by the Company.
(c) Notwithstanding any other provision of this Section 5, if the
managing underwriter of an underwritten offering in connection with the
registration pursuant to this Section 5 advises the Company and the Holders
of the Registrable Securities participating in such registration in writing
that in its good faith judgment the number of Registrable Securities and
the other securities requested to be registered (i) exceeds the number of
Registrable Securities and other securities which can be sold in such
offering at a price acceptable to the Company, or (ii) would jeopardize the
success of the offering, then (A) the number of Registrable Securities and
other securities proposed to be included in the offering shall be reduced
to that number which in the good faith judgment of the managing underwriter
can be sold in such offering at a price acceptable to the Company and (B)
such reduced number shall be allocated:
A. If the registration is on behalf of the Company:
a. First, to the Company, such that all securities proposed to
be registered by or on behalf of the Company are included in
the registration statement;
b. Next, among all Holders of Registrable Securities in
proportion, as nearly as practicable to the respective
number of Registrable Securities held by such Holders at the
time of the filing of the registration statement; and
c. Last, among all other participating holders proposing to
register securities other than Registrable Securities, in
the manner determined by the Company.
B. If the registration is on behalf of holders of Common Stock other
than any Stockholder Party:
a. First, among all participating holders other than any
Stockholder Party in the manner determined by the Company
and among all Holders of Registrable Securities in
proportion, as nearly as practicable to the respective
number of Registrable Securities and other shares of Common
Stock held by such persons at the time of the filing of the
registration statement; and
b. Last, to the Company, for such number of shares of Common
Stock as may be included in the registration statement.
(d) Those Registrable Securities which are excluded from the
underwriting by reason of the managing underwriter's marketing limitation
and all other Registrable Securities not originally requested to be so
included shall not be included in such registration.
6. Registration Procedures. If and whenever the Company is required by
the provisions of Section 2 or 3 to effect the registration of Registrable
Securities under the Securities Act,
(a) the Company, at its expense and as expeditiously as possible
shall use its reasonable best efforts to effect such registration and
agrees to:
(A) in accordance with the Securities Act and all applicable
rules and regulations, prepare and file with the Commission a
registration statement with respect to such securities and use
its reasonable best efforts to cause such registration statement
to become and remain effective for a period of 120 days (unless
the registration is a Shelf Registration Statement in which case
such period shall extend until the earlier of (x) the time all
Registrable Securities subject thereto have been sold and (y) the
third anniversary of the initial effectiveness thereof, subject
to the Company's rights to cause Holders of Registrable
Securities to cease sales under an effective Shelf Registration
Statement pursuant to Section 3(b)), and prepare and file with
the Commission such amendments and supplements to such
registration statement and the prospectus contained therein as
may be necessary to keep such registration statement effective
and such registration statement and prospectus accurate and
complete and to permit the Holders of Registrable Securities
subject to such registration statement to sell such securities;
(B) if an offering is to be underwritten in whole or in part,
enter into a written underwriting agreement in form and substance
reasonably satisfactory to the Company, the managing underwriter
of the offering and to the Initiating Holder (in the case of a
underwritten offering pursuant to Section 2 or Section 3) or to
Holders of a majority of the Registrable Securities participating
in such offering (in the case of a registration pursuant to
Section 3);
(C) furnish to the Holders of securities participating in such
registration and to the underwriters of the securities being
registered such number of copies of the registration statement
and each amendment and supplement thereto, preliminary
prospectus, final prospectus, prospectus supplement and such
other documents as such underwriters and Holders may reasonably
request;
(D) use its reasonable best efforts to register or qualify the
securities covered by such registration statement under such
state securities or blue sky laws of such jurisdictions as such
participating Holders of Registrable Securities and underwriters
may reasonably request, except that the Company shall not for any
purpose be required to execute a general consent to service of
process or to qualify to do business as a foreign corporation in
any jurisdiction where it is not so qualified;
(E) notify the Holders of Registrable Securities participating in
such registration, promptly after it shall receive notice
thereof, of the date and time when such registration statement
and each post-effective amendment thereto has become effective or
a prospectus or supplement to any prospectus relating to a
registration statement has been filed;
(F) notify such Holders of Registrable Securities promptly of any
request by the Commission for the amending or supplementing of
such registration statement or prospectus or for additional
information;
(G) prepare and file promptly with the Commission, and promptly
notify such Holders of Registrable Securities of the filing of,
such amendments or supplements to such registration statement or
prospectus as may be necessary to correct any statements or
omissions if, at the time when a prospectus relating to such
securities is required to be delivered under the Securities Act,
when any event has occurred as the result of which any such
prospectus or any other prospectus as then in effect would
include an untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to
make the statements therein not misleading;
(H) in case any of such Holders of Registrable Securities or any
underwriter for any such Holders is required to deliver a
prospectus at a time when the prospectus then in circulation is
not in compliance with the Securities Act or the rules and
regulations of the Commission, the Company shall use reasonable
best efforts to prepare promptly upon request such amendments or
supplements to such registration statement and such prospectus as
may be necessary in order for such prospectus to comply with the
requirements of the Securities Act and such rules and
regulations;
(I) advise such Holders of Registrable Securities, promptly after
it shall receive notice or obtain knowledge thereof, of the
issuance of any stop order by the Commission suspending the
effectiveness of such registration statement or the initiation or
threatening of any proceeding for that purpose and promptly use
its reasonable best efforts to prevent the issuance of any stop
order or to obtain its withdrawal if such stop order should be
issued;
(J) at the request of any Holder of Registrable Securities
covered by such registration statement, (i) furnish to such
Holder on the effective date of the registration statement, upon
the filing of a prospectus supplement with respect to such
registration statement or, if such registration includes an
underwritten offering, at the closing provided for in the
underwriting agreement, an opinion dated such date of the counsel
representing the Company for the purposes of such registration,
addressed to the underwriters, if any, and to the Holder or
Holders making such request, covering such matters with respect
to the registration statement, the prospectus and each amendment
or supplement thereto, proceedings under state, federal and other
securities laws, other matters relating to the Company, the
securities being registered and the offer and sale of such
securities as are customarily the subject of opinions of issuer's
counsel provided to underwriters in underwritten public
offerings, and such opinion of counsel shall additionally cover
such legal matters with respect to the registration as such
requesting Holder or Holders may reasonably request, and (ii) use
its reasonable best efforts to furnish to such Holders letters
dated each of such effective date, the date of the filing of a
prospectus supplement and such closing date, from the independent
certified public accountants of the Company, addressed to the
underwriters, if any, and to the Holder or Holders making such
request, stating that they are independent certified public
accountants within the meaning of the Securities Act and dealing
with such customary matters as the underwriters may request, or
if the offering is not underwritten that in the opinion of such
accountants the financial statements and other financial data of
the Company included in the registration statement or the
prospectus or any amendment or supplement thereto comply in all
material respects with the applicable accounting requirements of
the Securities Act, and additionally covering such other
accounting and financial matters as such requesting Holder or
Holders may reasonably request;
(K) list the Registrable Securities (and to maintain such listing
during the pendency of the relevant registration period) for
inclusion on the automated quotation system of the NASD or list
such Registrable Securities on any exchange on which the
securities of the Company of the same class with Registrable
Securities are listed (and to maintain such qualification during
the pendency of the relevant registration period);
(L) make senior executives of the Company available, upon
reasonable prior notice and subject to reasonable scheduling
flexibility, to assist the underwriters with respect to, and to
accompany the underwriters on the so-called "road show" in
connection with, marketing efforts for the distribution and sale
of Registrable Securities pursuant to an underwritten offering so
long as the fulfillment of this Section 6(a)(L) shall not
materially impair such senior executives' management of the
Company and other activities on behalf of the Company and so long
as any related expenses (including, without limitation, expenses
of the Company and participating senior executives) not required
to be paid by the Company pursuant to Section 7(b) are paid by
the Holders requesting such "road show" participation and
assistance; and
(M) prepare other offering materials in a form customarily used
in similar transactions or on the request of any Holder of
Registrable Securities or any managing underwriter.
(b) Each Holder of Registrable Securities included for
registration, at its expense and as expeditiously as possible agrees to:
(A) provide the Company with such information and assistance as
reasonably requested by the Company to effect such registration
under the Securities Act; and
(B) keep confidential that the Company has exercised its rights
under Sections 2(b), 3(b) and any other confidential information
provided by the Company in connection with this Agreement.
(c) Certain legal consequences arise from being named as a
selling securityholder in a registration statement and related prospectus.
Accordingly, each Stockholder Party acknowledges that it has been advised
to consult its own independent securities law counsel regarding the
consequences of demanding or requesting registration of Registrable
Securities hereunder or being named or not being named as a selling
securityholder in the registration statement and related prospectus.
7. Expenses.
--------
(a) With respect to each inclusion of shares of Registrable
Securities in a registration statement pursuant to Section 2 or Section 3,
the Company agrees to bear all fees, costs and expenses of such
registration and any public offerings in connection therewith; provided,
however, that Holders participating in any such registration agree to bear
their pro rata share of the underwriting discount and commissions, and any
the expenses associated or incurred in connection with "road show" or other
marketing efforts the expenses of which are not required to be paid by the
Company pursuant to subparagraph (b) below shall be paid by the Holders of
Registrable Securities requesting the same.
(b) The fees, costs and expenses of registration to be borne as
provided in paragraph (a) above, shall consist of (i) all registration,
filing and NASD fees, printing expenses, fees and disbursements of counsel
and accountants for the Company, (ii) fees and disbursements of counsel for
the underwriter(s) of such securities (if the Company and/or selling
security holders are otherwise required to bear such fees and
disbursements), (iii) all legal fees and disbursements and other expenses
of the Company complying with state securities or blue sky laws of any
jurisdictions in which the securities to be offered are to be registered or
qualified, (iv) reasonable fees and disbursements of one firm of counsel
for the selling security holders designated by the Holders of a majority of
the Registrable Securities included in such registration, and (v) the
expenses associated with the "road show" or other marketing efforts for the
distribution and sale of Registrable Securities registered under two
underwritten registration statements filed pursuant to either Section 2 or
3 in any eighteen month period.
(c) Notwithstanding the foregoing, the Company shall pay the
expenses of a registration statement requested pursuant to Section 2 or
Section 3 only with respect to the first eight (8) registration statements
so filed (and then only to the extent provided in Section 7) and all
expenses related to any additional registration statements, including those
fees and expenses set forth in Section 7(b), shall be paid by the
Initiating Holder and/or the Holders of Registrable Securities on a pro
rata basis; provided that, in the event that a registration pursuant to
Section 2 or 3 is requested by an Initiating Holder and such request is
withdrawn prior to the filing of a registration statement by the Company,
or the Holders of Registrable Securities cause the Company to withdraw a
registration statement prior to its effectiveness, then either (at the
election of the Initiating Holder), (i) the Initiating Holder and other
Holders of Registrable Securities requesting inclusion of their shares in
such registration shall bear pro rata all fees, costs and expenses of the
registration and preparation of the registration statement and such
requested registration statement shall not be deemed to be one of the
registration statements for which the Company is required to pay expenses
pursuant to this Section 7, or (ii) such requested registration statement
shall be deemed to be one of the registration statements for which the
Company is required to pay the expenses pursuant to this Section 7;
provided, further, that if at the time of such withdrawal, the Holders have
learned of a material adverse change in the condition, business, or
prospects of the Company as of the date of their request for such
registration statement not known to the Initiating Holder or publicly
available at the time of its request and have withdrawn their request
solely on such basis and with reasonable promptness after learning of such
material adverse change, then the Holders shall not be required to pay any
of such expenses and such requested registration statement shall not be
deemed to be one of the registration statements for which the Company is
required to pay expenses pursuant to this Section 7.
8. Indemnification.
---------------
(a) The Company hereby agrees to indemnify and hold harmless each
Holder of Registrable Securities which are included in a registration
statement pursuant to the provisions of this Agreement and each of such
Holder's officers, directors, partners, members, legal counsel and
accountants, and each Person who controls such Holder within the meaning of
the Securities Act and any underwriter (as defined in the Securities Act)
for such Holder, and any Person who controls such underwriter within the
meaning of the Securities Act, from and against, and agrees to reimburse
such Holder, its officers, directors, partners, members, legal counsel,
accountants and controlling Persons and each such underwriter and
controlling Person of such underwriter with respect to, any and all claims,
actions (actual or threatened), demands, losses, damages, liabilities,
costs and expenses to which such Holder, its officers, directors, partners,
members, legal counsel, accountants or controlling Persons, or any such
underwriter or controlling Person of such underwriter who may become
subject under the Securities Act or otherwise, insofar as such claims,
actions, demands, losses, damages, liabilities, costs or expenses arise out
of or are based upon (i) any untrue statement or alleged untrue statement
of any material fact contained in such registration statement, any
prospectus related thereto, or any amendment or supplement thereto, (ii)
the omission or alleged omission to state therein a material fact necessary
to make the statements therein, in light of the circumstances under which
they were made, not misleading or (iii) any violation or alleged violation
by the Company of the Securities Act, the Exchange Act, any federal or
state securities law or any rule or regulation promulgated under the
Securities Act, the Exchange Act or any federal or state securities law in
connection with the offering covered by such registration statement;
provided, however, that the Company will not be liable to any such Person
to the extent that any such claim, action, demand, loss, damage, liability,
cost or expense is caused by an untrue statement or alleged untrue
statement or omission or alleged omission of material fact so made in
strict conformity with written information furnished by such Holder or
another Holder, such underwriter or such controlling Person specifically
for use in the preparation thereof; provided, further, that the Company
shall not be liable to any such Person to the extent that such untrue
statement or omission of material fact is subsequently corrected by an
amendment or supplement to such registration statement (or an amended
prospectus filed with the Commission pursuant to Rule 424(b) of the
Securities Act) and such amendment or supplement (or amended prospectus) is
timely delivered to the Holders of Registrable Securities.
(b) Each Holder of shares of Registrable Securities which are
included in a registration statement pursuant to the provisions of this
Agreement hereby agrees (severally and not jointly) to indemnify and hold
harmless the Company, its officers, directors, legal counsel and
accountants and each Person who controls the Company within the meaning of
the Securities Act, from and against, and agrees to reimburse the Company,
its officers, directors, legal counsel, accountants and controlling Persons
with respect to, any and all claims, actions, demands, losses, damages,
liabilities, costs or expenses to which the Company, its officers,
directors, legal counsel, accountants or such controlling Persons may
become subject under the Securities Act or otherwise, insofar as such
claims, actions, demands, losses, damages, liabilities, costs or expenses
are caused by any untrue or alleged untrue statement of any material fact
contained in such registration statement, any prospectus related thereto or
any amendment or supplement thereto, or are caused by the omission or the
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 in which they were made, not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was so made in reliance
upon and in strict conformity with written information furnished by such
Holder specifically for use in the preparation thereof; provided, however,
that the indemnity agreement contained in this subsection 6(b) shall not
apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of
the Holder, which consent shall not be unreasonably withheld or delayed;
provided, further, that the total amounts payable in indemnity by a Holder
under this subsection 6(b) shall not exceed the net proceeds received by
such Holder in the registered sale out of which such claim, action, demand,
loss, damage, liability, cost, or expense arises.
(c) Promptly after receipt by a party indemnified pursuant to the
provisions of subsection (a) or (b) of this Section 8 of notice of the
commencement of any action involving the subject matter of the foregoing
indemnity provisions, such indemnified party will, if a claim therefore is
to be made against the indemnifying party pursuant to the provisions of
subsection (a) or (b), notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not
relieve it from any liability which it may have to an indemnified party
otherwise than under this Section 6 and shall not relieve the indemnifying
party from liability under this Section 6 unless such indemnifying party is
prejudiced by such omission. In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any
other indemnifying parties similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party;
provided, however, that if the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be legal defenses available
to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel (in which
case the indemnifying party shall not have the right to direct the defense
of such action on behalf of the indemnified party or parties). Upon the
permitted assumption by the indemnifying party of the defense of such
action, and approval by the indemnified party of counsel, the indemnifying
party shall not be liable to such indemnified party under subsection (a) or
(b) for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof (other than
reasonable costs of investigation) unless (i) the indemnified party shall
have employed separate counsel in connection with the assertion of legal
defenses in accordance with the proviso to the next preceding sentence,
(ii) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party
within a reasonable time, (iii) the indemnifying party and its counsel do
not actively and vigorously pursue the defense of such action, or (iv) the
indemnifying party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party. No indemnifying
party shall be liable to an indemnified party for any settlement of any
action or claim without the consent of the indemnifying party and no
indemnifying party may unreasonably withhold its consent to any such
settlement. No indemnifying party will consent to entry of any judgment or
enter into any settlement that does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such indemnified party
of a release from all liability with respect to such claim or litigation.
(d) If the indemnification provided for in subsection (a) or (b)
of this Section 8 is held by a court of competent jurisdiction to be
unavailable to a party to be indemnified with respect to any claims,
actions, demands, losses, damages, liabilities, costs or expenses referred
to therein, then each indemnifying party under any such subsection, in lieu
of indemnifying such indemnified party thereunder, hereby agrees to
contribute to the amount paid or payable by such indemnified party as a
result of such claims, actions, demands, losses, damages, liabilities,
costs or expenses in such proportion as is appropriate to reflect the
relative fault of the indemnifying party on the one hand and of the
indemnified party on the other in connection with the statements or
omissions which resulted in such claims, actions, demands, losses, damages,
liabilities, costs or expenses, as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the indemnifying party or by the indemnified party
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
Notwithstanding the foregoing, the amount any Holder of Registrable
Securities shall be obligated to contribute pursuant to this subsection (d)
shall be limited to an amount equal to the per share sale price (less any
underwriting discount and commissions) multiplied by the number of shares
of Registrable Securities sold by such Holder pursuant to the registration
statement which gives rise to such obligation to contribute (less the
aggregate amount of any damages which such Holder has otherwise been
required to pay in respect of such claim, action, demand, loss, damage,
liability, cost or expense or any substantially similar claim, action,
demand, loss, damage, liability, cost or expense arising from the sale of
such Registrable Securities).
(e) No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution hereunder from any person who was not guilty of such
fraudulent misrepresentation.
(f) The obligations of the Company and Holders under this Section
8 shall survive the completion of any offering of Registrable Securities in
a registration statement and termination of this Agreement.
9. Stockholder Information.
-----------------------
The Company may request each Holder of Registrable Securities as to
which any registration is to be effected pursuant to this Agreement to
furnish the Company with such information with respect to such Holder and
the distribution of such Registrable Securities as the Company may from
time to time reasonably request in writing and as shall be required by law
or by the Commission in connection therewith, and each Holder of
Registrable Securities as to which any registration is to be effected
pursuant to this Agreement agrees to promptly furnish the Company with such
information.
10. Forms.
-----
All references in this Agreement to particular forms of registration
statements are intended to include, and shall be deemed to include,
references to all successor forms which are intended to replace, or to
apply to similar transactions as, the forms herein referenced.
11. Lockup Agreement.
----------------
Each Holder of Registrable Securities agrees in connection with any
registration of the Company's securities that, upon the request of the
managing underwriter of any underwritten offering of the Company's
securities (or, if there is no managing underwriter, the Company), it or he
or she shall not sell, make any short sale of, loan, grant any option for
the purchase of, or otherwise dispose of any capital stock of the Company
(other than those that included in such registration) without the prior
written consent of such managing underwriter for a period not to exceed
ninety (90) days. The Company may impose stop transfer instructions with
respect to the Registrable Securities subject to the foregoing restriction
until the end of the lock-up period.
12. Transfer of Registration Rights.
-------------------------------
The rights to cause the Company to register securities granted to the
Holders of Registrable Securities pursuant to this Agreement may be
transferred or assigned only to (i) an affiliate or immediate family member
of a Holder of Registrable Securities or (ii) an immediate or remote
transferee of the Holder of Registrable Securities who, after such
transfer, is the Holder of not less than 5% of the number of shares of
Registrable Securities outstanding as of the date of this Agreement;
provided that the transferee first agrees in writing to be bound by the
terms of this Agreement. 13. Representations and Warranties of the Holder.
Each Stockholder Party by execution hereof acknowledges that the
Registrable Securities that such Holder may be entitled to receive pursuant
to the Merger Agreement are being offered and sold pursuant to an exemption
from registration under the Securities Act, based in part upon the
representations, warranties, covenants and agreements of the undersigned
contained below. Accordingly, he Holder hereby represents and warrants to
the Company as follows:
(a) The Holder both:
(i) either (A) is an "accredited investor" as defined in
Rule 501(a) of Regulation D under the Securities Act, or (B) is not a
"U.S. person" as such term is defined in Rule 902(k) of Regulation S
promulgated under the Securities Act (the definitions of such terms
pursuant to such Rule and Regulation are excerpted in Schedule I
hereto); and
(ii) is acquiring the Registrable Securities for the
undersigned's own account (or in the case of the undersigned who is
not a "U.S. Person" and otherwise is receiving the Registrable
Securities pursuant to the requirements of Regulation S, for the
undersigned's own account or the account or benefit of any non-U.S.
person), for investment purposes only, and not as a nominee or agent
and not with the view to, or any intention of, a resale or
distribution thereof, in whole or in part, or the grant of any
participation therein.
(b) The Holder has the capacity to protect his, her or its own
interests in connection with the transactions contemplated by the Merger
Agreement and is capable of evaluating the merits and risks of his, her or
its investment in the Company. The Holder acknowledges that he, she or it
must bear the economic risk of the investment in Registrable Securities
indefinitely, unless the Registrable Securities are registered pursuant to
the Securities Act or an exemption from registration is available, and
that, subject to the terms and conditions of this Agreement, the Company
has no obligation to register the Company common stock. The undersigned
also understands that there is no assurance that any exemption from
registration under the Securities Act will be available and that, even if
available, such exemption may not allow the undersigned to transfer all or
any portion of the Registrable Securities under the circumstances, in the
amounts or at the times the undersigned might propose.
(c) If the Holder is not a "U.S. person," as such term is defined
in Rule 902(k) of Regulation S promulgated under the Securities Act, the
Holder has satisfied himself, herself or itself as to the full observance
of the laws of his, her or its jurisdiction in connection with the proposed
issuance of the Registrable Securities pursuant to the Merger, and that the
Company's issuance of the Registrable Securities pursuant to the Merger
will not violate any applicable securities or other laws of the Holder's
home jurisdiction.
(d) The undersigned acknowledges that the Registrable Securities
to be received pursuant to the Merger Agreement will be "restricted
securities," as defined in Rule 144 promulgated under the Securities Act,
and must be held indefinitely unless they are subsequently registered under
the Securities Act or an exemption from such registration is available. The
undersigned is aware of the provisions of Rule 144, which permits limited
resale of shares purchased in a private placement only subject to the
satisfaction of certain conditions. The undersigned will comply with the
Securities Act and the rules promulgated thereunder in connection with any
sale, transfer, assignment or other disposition of any Registrable
Securities.
14. Miscellaneous.
-------------
14.1 Waivers and Amendments.
(a) With the written consent of the Holders of a Majority of the
Registrable Securities, the obligations of the Company and the rights of
the Holders of Registrable Securities under this Agreement may be waived
(either generally or in a particular instance, either retroactively or
prospectively and either for a specified period of time or indefinitely),
and with the consent of the Company, when authorized by a majority of the
Independent Members of the Board, may enter into a supplementary agreement
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or of any supplemental
agreement or modifying in any manner the rights and obligations hereunder
of the Holders of Registrable Securities and the Company; provided,
however, that no such waiver or supplemental agreement shall reduce the
aforesaid proportion of Registrable Securities, the Holders of which are
required to consent to any wavier or supplemental agreement, without the
consent of the Holders of all of the Registrable Securities.
(b) Upon the effectuation of each such waiver, consent or
agreement of amendment or modification, the Company agrees to give prompt
written notice thereof to the Holders of the Registrable Securities who
have not previously consented thereto in writing.
(c) Neither this Agreement nor any provision hereof may be
changed, waived, discharged or terminated orally or by course of dealing,
but only by a statement in writing signed by the party against which
enforcement of the change, waiver, discharge or termination is sought,
except to the extent provided in this Section 14.1; provided, that in the
case of the Company, that such change, waiver, discharge or termination has
been approved by a majority of the Independent Members of the Board.
Specifically, but without limiting the generality of the foregoing, the
failure of any party hereunder at any time or times to require performance
of any provision hereof by the Company shall in no manner affect the right
of such party at a later time to enforce the same. No waiver by any party
of the breach of any term or provision contained in this Agreement, in any
one or more instances, shall be deemed to be, or construed as, a further or
continuing waiver of any such breach, or a waiver of the breach of any
other term or covenant contained in this Agreement.
14.2 Effect of Waiver or Amendment. Each Holder of Registrable
Securities acknowledges that by operation of Section 14.1 hereof the
Holders of a Majority of the Registrable securities will, subject to the
limitations contained in Section 14.1(b), have the right and power to
diminish or eliminate certain rights of such Holder under this Agreement.
14.3 Rights of Holders Inter Se. Each Holder of Registrable
Securities shall have the absolute right to exercise or refrain from
exercising any right or rights which such Holder may have by reason of this
Agreement or any Registrable Security, including, without limitation, the
right to consent to the waiver of any obligation of the Company under this
Agreement and to enter into an agreement with the Company for the purpose
of modifying this Agreement or any agreement effecting any such
modification, and such Holder shall not incur any liability to any other
Holder with respect to exercising or refraining from exercising any such
right or rights.
14.4 Notices. All notices, requests or consents required or
permitted under this Agreement shall be made in writing and shall be given
to the other parties by personal delivery, registered or certified mail
(with return receipt), overnight air courier (with receipt signature) or
facsimile transmission (with "answerback" confirmation of transmission),
sent to such party's addresses or telecopy numbers as are set forth below
such party's signatures to this Agreement, or such other addresses or
telecopy numbers of which the parties have given notice pursuant to this
Section 14.4. Each such notice, request or consent shall be deemed
effective upon the date of actual receipt, receipt signature or
confirmation of transmission, as applicable (or if given by registered or
certified mail, upon the earlier of (i) actual receipt or (ii) three days
after deposit thereof in the United States mail (with respect to addresses
within the United States) or ten (10) days after deposit thereof in the
United States mail (with respect to addresses outside of the United
States).
14.5 Severability. Should any one or more of the provisions of
this Agreement or of any agreement entered into pursuant to this Agreement
be determined to be illegal or unenforceable, all other provisions of this
Agreement and of each other agreement entered into pursuant to this
Agreement, shall be given effect separately from the provision or
provisions determined to be illegal or unenforceable and shall not be
affected thereby.
14.6 No Third Parties. Subject to Section 8 hereof, this
Agreement shall not run to the benefit of or be enforceable by any Person
other than a party to this Agreement or, with respect to the Company, any
successor thereto.
14.7 Headings. The headings of the sections, subsections and
paragraphs of this Agreement have been inserted for convenience of
reference only and do not constitute a part of this Agreement.
14.8 Choice of Law. It is the intention of the parties that the
internal substantive laws, and not the laws of conflicts, of the State of
Delaware should govern the enforceability and validity of this Agreement,
the construction of its terms and the interpretation of the rights and
duties of the parties.
14.9 Counterparts. This Agreement may be executed in any number
of counterparts and by different parties hereto in separate counterparts,
with the same effect as if all parties had signed the same document. All
such counterparts shall be deemed an original, shall be construed together
and shall constitute one and the same instrument.
14.10 Arbitration.
(a) Any and all disputes or controversies, whether of law or fact
and of any nature whatsoever arising from or respecting this Agreement,
shall be decided by binding arbitration in accordance with Title 9 of the
United States Code and the Commercial Arbitration Rules of the American
Arbitration Association (the "Association"). If the parties are unable to
agree upon a single arbitrator, the arbitrator shall be a single,
independent arbitrator selected by the Association.
(b) Arbitration shall take place at Los Angeles, California, or
any other location mutually agreeable to the parties. The decision of the
arbitrator shall be final and binding upon all parties hereto and all
persons claiming under and through them and judgment thereon may be entered
by any court of competent jurisdiction. The fees and expenses of the
arbitrator shall be paid equally by the parties to such arbitration.
14.11 Rule 144. To the extent that the Company is subject to the
filing and reporting requirements of the Securities Act and the Exchange
Act, and so long as there are Registrable Securities outstanding, the
Company will file the reports required to be filed by it under the
Securities Act and the Exchange Act and the rules and regulations adopted
by the SEC thereunder, make and keep public information available, as those
terms are understood and defined in Rule 144 under the Securities Act, and
will take such further action as any holder of Registrable Securities may
reasonably request, all to the extent required from time to time to enable
such Holder to sell Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by (i) Rule
144 or Rule 144A under the Securities Act, as such Rule may be amended from
time to time, or (ii) any similar rule or regulation hereafter adopted by
the SEC. Upon the request of any holder of Registrable Securities, the
Company will deliver to such holder a written statement as to whether it
has complied with such information and requirements and with a copy of the
most recent annual or quarterly report of the Company, and such other
reports and documents of the Company as a Holder may reasonably request in
availing itself of any rule or regulation of the Commission allowing a
Holder to sell any such securities without registration.
14.12 Entire Agreement. This Agreement contains the entire
understanding of the parties hereto in respect of its subject matter and
supersedes all prior and contemporaneous agreements and understandings,
oral and written, between the parties with respect to such subject matter,
including, without limitation, the rights and obligations of the Company,
ABI and PSS under the terms of that certain First Amended Registration
Rights Agreement, dated as of June 1, 1998, by and among the Company,
Premier Purchasing Partners, L.P., ABI and certain Series A Investors set
forth therein (except that the Investors' obligations under any
confidentiality agreement with the Company shall continue in full force and
effect).
[signature page follows]
REGISTRATION RIGHTS AGREEMENT SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have caused this Registration Rights
Agreement to be duly executed as of the date first above written.
AMERICAN PHARMACEUTICAL PARTNERS, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Exec. V.P. & CFO
Address:
American Pharmaceutical Partners, Inc.
0000 Xxxx Xxxxxxxxx Xxxx, Xxxxx 000 Xxxx
Xxxxxxxxxx, XX 00000-0000
Attention: General Counsel
Fax: (000) 000-0000
PSS
/s/ Xx. Xxxxxxx Soon-Shiong
------------------------------
Xx. Xxxxxxx Soon-Shiong
Address:
c/o American Pharmaceutical Partners, Inc.
00000 Xxx Xxxxxxx Xxxx., Xxxxx 000
Xxx Xxxxxxx, XX 00000
STOCKHOLDER PARTIES:
-------------------
CALIFORNIA CAPITAL LIMITED PARTNERSHIP
BY: THEMBA LLC, ITS GENERAL PARTNER
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxx
Title: Manager
Address:
Californian Capital Limited Partnership
Att: Xxxxxx X. Xxxxxx
00000 Xxxxxx Xxxxxxxxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000
THEMBA 2005 TRUST I
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxx
Title: Trustee
Address:
Themba 2005 Trust I
Att: Xxxxxx X. Xxxxxx
00000 Xxxxxx Xxxxxxxxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000
THEMBA 2005 TRUST II
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxx
Title: Trustee
Address:
Themba 2005 Trust II
Att: Xxxxxx X. Xxxxxx
00000 Xxxxxx Xxxxxxxxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000
THE 2005 TWO-YEAR ANNUITY TRUST A
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxx
Title: Trustee
Address:
The 2005 Two-Year Annuity Trust A
Att: Xxxxxx X. Xxxxxx
00000 Xxxxxx Xxxxxxxxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000
THE 2005 TWO-YEAR ANNUITY TRUST B
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxx
Title: Trustee
Address:
The 2005 Two-Year Annuity Trust B
Att: Xxxxxx X. Xxxxxx
00000 Xxxxxx Xxxxxxxxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000
THEMBA CREDIT LLC
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxx
Title: Manager
Address:
Themba Credit, LLC
Att: Xxxxxx X. Xxxxxx
00000 Xxxxxx Xxxxxxxxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000
RSU PLAN LLC
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxx
Title: Manager
Address:
RSU Plan, LLC
Att: Xxxxxx X. Xxxxxx
00000 Xxxxxx Xxxxxxxxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000
VERON INTERNATIONAL LIMITED
By: ____________________________
Name:
Title: Manager
Address:
Veron International Limited
Att: Xxxxxx Xxxxx
Top Floor, Chinachem Golden Plaza
00 Xxxx Xxxx, Xxxxxxxxxxx Xxxx
Xxxxxxx, Xxxx Xxxx
SCHEDULE I
DEFINITIONS
"ACCREDITED INVESTOR" (as defined in Rule 501) means any person who comes
within any of the following categories, at the time of the sale of the
securities to that person:
(1) Any bank as defined in section 3(a)(2) of the Act or any savings
and loan association or other institution as defined in Section
3(a)(5)(A) of the Act whether acting in its individual or
fiduciary capacity; any broker dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934; insurance
company as defined in Section 2(13) of the Act; investment
company registered under the Investment Company Act of 1940 or a
business development company as defined in Section 2(a)(48) of
that Act; Small Business Investment Company licensed by the U.S.
Small Business Administration under Section 301(c) or (d) of the
Small Business Investment Act of 1958; employee benefit plan
within the meaning of Title I of the Employee Retirement Income
Security Act of 1974, if the investment decision is made by a
plan fiduciary, as defined in Section 3(21) of such Act, which is
either a bank, savings and loan association, insurance company,
or registered investment adviser, or if the employee benefit plan
has total assets in excess of US$5,000,000; or, if a
self-directed plan, with investment decisions made solely by
persons that are accredited investors;
(2) Any private business development company as defined in Section
202(a)(22) of the Investment Advisers Act of 1940;
(3) Any organization described in Section 501(c)(3) of the Internal
Revenue Code, corporation, Massachusetts or similar business
trust, or partnership, not formed for the specific purpose of
acquiring the securities offered, with total assets in excess of
US$5,000,000;
(4) Any director, executive officer, or general partner of the issuer
of the securities being offered or sold, or any director,
executive officer, or general partner of a general partner of
that issuer;
(5) Any natural person whose individual net worth, or joint net worth
with that person's spouse, at the time of his purchase exceeds
US$1,000,000;
(6) Any natural person who had an individual income in excess of
US$200,000 in each of the two most recent years or joint income
with that person's spouse in excess of US$300,000 in each of
those years and has a reasonable expectation of reaching the same
income level in the current year;
(7) Any trust with total assets in excess of US$5,000,000, not formed
for the specific purpose of acquiring the securities offered,
whose purchase is directed by a sophisticated person as described
in Rule 506(b)(2)(ii); and
(8) Any entity in which all of the equity owners are accredited
investors.
"UNITED STATES" means and includes the United States of America, its
territories and possessions, any State of the United States, and the
District of Columbia.
"U.S. PERSON" means: (i) a natural person resident in the United States;
(ii) any partnership or corporation organized or incorporated under the
laws of the United States; (iii) any estate of which any executor or
administrator is a U.S. Person; (iv) any trust of which any trustee is a
U.S. Person; (v) any agency or branch of a foreign entity located in the
United States; (vi) any nondiscretionary account or similar account (other
than an estate or trust) held by a dealer or other fiduciary for the
benefit or account of a U.S. Person; (vii) any discretionary account or
similar account (other than an estate or trust) held by a dealer or other
fiduciary organized, incorporated and (if an individual) resident in the
United States; and (viii) a corporation or partnership organized under the
laws of any foreign jurisdiction and formed by a U.S. Person principally
for the purpose of investing in securities not registered under the
Securities Act, unless it is organized or incorporated, owned, by
accredited investors (as defined in Rule 501(a) under the Securities Act)
who are not natural persons, estates or trusts).
"NON-U.S. PERSON" means any person who is not a U.S. Person or is deemed
not to be a U.S. Person under Regulation S.
