EXHIBIT A
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made as of April 4,
2000 between SuperGen, Inc., a Delaware corporation ("SuperGen") and AVI
BioPharma, Inc., an Oregon corporation ("AVI") pursuant to the terms of a Common
Stock and Warrant Purchase Agreement between the parties dated as of April 4,
2000 (the "Purchase Agreement").
SECTION 1
DEFINITIONS
1.1 DEFINITIONS. As used in this Agreement, the following terms shall have
the following respective meanings:
"ADDITIONAL SUPERGEN SHARES" shall mean the shares of SuperGen Common Stock
AVI receives from SuperGen pursuant to Section 1.3 of the Purchase Agreement.
"AVI COMMON STOCK" shall mean AVI's common stock, par value $0.0001 per
share.
"AVI SHARES" shall mean the shares of AVI Common Stock that SuperGen
purchases from AVI pursuant to Section 1.2 of the Purchase Agreement.
"CLOSING DATE" shall mean the Closing Date as defined in Section 2 of the
Purchase Agreement.
"COMMISSION" shall mean the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act.
"MATERIAL EVENT" shall mean the happening of any event during the period
that the registration statement described in Sections 2.1 and 3.1 hereof is
required to be effective as a result of which, in the reasonable judgment of AVI
or SuperGen, as the case may be, such registration statement or the related
prospectus contains or may contain any untrue statement of a material fact or
omits or may omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading.
"FORM S-3" means such form under the Securities Act as in effect on the
date hereof or any registration form under the Securities Act subsequently
adopted by the SEC which similarly permits inclusion or incorporation of
substantial information by reference to other documents filed by either AVI or
SuperGen with the Commission.
"HOLDER" shall mean, for purposes of Section 2, SuperGen or any person
holding Registrable Securities to whom SuperGen's rights under Section 2 of this
Agreement have been transferred in accordance with Section 2.9, and for purposes
of Section 3, AVI or any person holding Registrable
Securities to whom AVI's rights under Section 3 of this Agreement have been
transferred in accordance with Section 3.8.
"INITIAL HOLDERS" shall mean SuperGen or any Holders who in aggregate hold
greater than 20% of the Registrable Securities for purposes of Section 2.
"REGISTRABLE SECURITIES" shall mean, for purposes of Section 2, AVI Shares
and Warrant Shares, and for purposes of Section 3, SuperGen Shares or Additional
SuperGen Shares, as the case may be, until such time that such securities have
been (i) sold to or through a broker or dealer or underwriter in a public
distribution or a public securities transaction, or (ii) sold or are, in the
opinion of counsel for AVI in the case of AVI Shares and Warrant Shares, and
SuperGen in the case of SuperGen Shares and Additional SuperGen Shares,
available for sale in a single transaction exempt from the registration and
prospectus delivery requirements of the Securities Act so that all transfer
restrictions and restrictive legends with respect thereto are removed upon the
consummation of such sale.
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.
"REGISTRATION EXPENSES" shall mean all expenses, except as otherwise stated
below, incurred by AVI or SuperGen, as the registering company, in complying
with Sections 2.1, 2.2 and 2.3 (applicable to AVI) or Sections 3.1 and 3.2
(applicable to SuperGen) hereof, including, without limitation, all
registration, qualification and filing fees, printing expenses, escrow fees,
fees and disbursements of counsel for such registering company, blue sky fees
and expenses, the expense of any special audits incident to or required by any
such registration (but excluding the compensation of regular employees of AVI or
SuperGen as the registering company which shall be paid in any event by the
registering company).
"RESTRICTED SECURITIES" shall mean any AVI Shares, Warrant Shares, SuperGen
Shares or Additional SuperGen Shares required to bear the legend set forth in
Section 5.6 of the Purchase Agreement.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended, or any
similar federal statute and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"SELLING EXPENSES" shall mean all underwriting discounts, selling
commissions and stock transfer taxes applicable to the securities registered by
AVI (related to Sections 2.1, 2.2 and 2.3 ) or SuperGen (related to Sections 3.1
and 3.2, except as set forth above, all reasonable fees and disbursements of
counsel for SuperGen or AVI.
"SUPERGEN COMMON STOCK" shall mean the common stock of SuperGen, par value
$0.001.
"SUPERGEN SHARES" shall mean the shares of SuperGen Common Stock issued to
AVI pursuant to Section 1.2 of the Purchase Agreement.
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"WARRANT" shall mean the warrant AVI shall issue to SuperGen pursuant to
Section 1.4 of the Purchase Agreement.
"WARRANT SHARES" shall mean the shares of AVI Common Stock issued or
issuable upon exercise of the Warrant.
SECTION 2
REGISTRATION OF AVI SHARES AND WARRANT SHARES
2.1 REGISTRATION OF AVI SHARES.
(a) REGISTRATION. AVI shall use commercially reasonable efforts to
cause the AVI Shares which are Registrable Securities to be registered under the
Securities Act no later than 90 days after the Closing Date, so as to permit the
resale thereof, and in connection therewith shall prepare and file with the SEC
and shall use commercially reasonable efforts to cause to become effective, a
Form S-3 covering the AVI Shares; PROVIDED, HOWEVER, that the Holders, if any,
shall provide all such information and materials relating to the Holders, as
applicable, and take all such action as may be required in order to permit AVI
to comply with all the applicable requirements of the Commisson and to obtain
any desired acceleration of the effective date of such Form S-3, such provision
of information and materials to be a condition precedent to the obligations of
AVI pursuant to this Agreement and the Purchase Agreement. The offerings made
pursuant to such registrations shall not be underwritten.
(b) POSTPONEMENT OF REGISTRATION.
(i) REGISTRATION. Notwithstanding Section 2.1(a) above, AVI shall
be entitled to postpone the declaration of effectiveness of any Form S-3
prepared and filed pursuant to this Section 2.1 for a reasonable period of time,
but not in excess of 60 calendar days after the applicable deadline, if the
Board of Directors of AVI, acting in good faith, determines that there exists
material non-public information about AVI.
(ii) MATERIAL EVENT. The Holders agree that, upon receipt of any
notice from AVI of the happening of a Material Event, they will forthwith
discontinue disposition of the AVI Shares which are Registrable Securities
pursuant to any Form S-3 until the receipt of copies of supplemented or amended
prospectuses prepared by AVI (which AVI will use its commercially reasonable
efforts to prepare and file promptly), and, if so directed by AVI, the Holders
will deliver to AVI all copies in their possession, other than permanent file
copies then in the Holders' possession, of the prospectus covering such AVI
Shares current at the time of receipt of such notice. In no event shall AVI
delay causing to be effective a supplement or post-effective amendment to any
Form S-3 pursuant to Section 2.1 or the related prospectus, for more than 90
consecutive days or 120 days during any 365 consecutive calendar day period.
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2.2 REGISTRATION OF WARRANT SHARES; REQUESTED REGISTRATION.
(a) REQUEST FOR REGISTRATION. If, at any time after the date SuperGen
exercises its Warrant, in whole or in part, AVI shall receive from the Initial
Holders a written request that AVI effect any registration, qualification or
compliance with respect to the Warrant Shares which are Registrable Securities,
AVI will,
(i) promptly give written notice of the proposed registration,
qualification or compliance to any other Holders; and
(ii) as soon as practicable, use its diligent efforts to effect
such registration, qualification or compliance (including, without limitation,
appropriate qualification under applicable blue sky or other state securities
laws and appropriate compliance with applicable regulations issued under the
Securities Act and any other governmental requirements or regulations) as may be
so requested and as would permit or facilitate the sale and distribution of all
or such portion of such Registrable Securities as are specified in such request,
together with all or such portion of Registrable Securities of other Holders, if
any, joining in such request as are specified in a written request received by
AVI within 20 days after receipt of such written notice from AVI; PROVIDED,
HOWEVER, that AVI shall not be obligated to take any action to effect any such
registration, qualification or compliance pursuant to this Section 2.2:
(A) During the period starting with the date 60 days prior
to AVI's estimated date of filing of, and ending on the date 3 months
immediately following the effective date of, any registration statement
pertaining to securities of AVI (other than a registration of securities in a
Rule 145 transaction or with respect to an employee benefit plan), provided that
AVI is actively employing in good faith all reasonable efforts to cause such
registration statement to become effective;
(B) Unless the Registrable Securities sought to be
registered by the Initial Holders and other Holders pursuant to this Section 2.2
comprise at least 100,000 Warrant Shares;
(C) After the Company has effected two such registration
pursuant to this Section 2.2(a), and such registration has been declared or
ordered effective and the securities offered pursuant to such registrations have
been sold; or
(D) If AVI shall furnish to the Holders a certificate signed
by the President of AVI stating that in the good faith judgment of the Board of
Directors it would be seriously detrimental to AVI or its shareholders for a
registration statement to be filed in the near future, then AVI's obligation to
use its best efforts to register, qualify or comply under this Section 2.2 shall
be deferred for a period not to exceed 60 days from the date of receipt of
written request from the Initiating Holders, PROVIDED, HOWEVER, that AVI shall
not exercise the right to defer registration granted pursuant to this paragraph
(D) more than one time in any twelve month period.
Subject to the foregoing clauses (A) through (D), AVI shall file a
registration statement covering the Registrable Securities so requested to be
registered as soon as practicable after receipt of the request or requests of
the Holders, but in any event within 120 days of such request or requests.
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(b) UNDERWRITING. In the event that a registration pursuant to Section
2.2(a) is for a registered public offering involving an underwriting, AVI shall
so advise the Holders (as part of the notice given pursuant to Section 2.2
(a)(i). In such event, the right of the Holders to registration pursuant to
Section 2.2(a) shall be conditioned upon such Holders' participation in the
underwriting arrangements required by this Section 2.2(b), and the inclusion of
such Holders' Warrant Shares which are Registrable Securities in the
underwriting to the extent requested shall be limited to the extent provided
herein.
AVI shall (together with all Holders proposing to distribute their
securities through such underwriting) enter into an underwriting agreement in
customary form with the managing underwriter selected for such underwriting by a
majority in interest of the Holders, but subject to AVI's reasonable approval.
Notwithstanding any other provision of this Section 2.2, if the managing
underwriter advises the Holders in writing that marketing factors require a
limitation of the number of shares to be underwritten, then AVI shall so advise
all Holders of Warrant Shares which are Registrable Securities and the number of
Registrable Securities that may be included in the registration and underwriting
shall be allocated among all Holders thereof in proportion, as nearly as
practicable, to the respective amounts of Registrable Securities held by such
Holders at the time of filing the registration statement. No Registrable
Securities excluded from the underwriting by reason of the underwriter's
marketing limitation shall be included in such registration. To facilitate the
allocation of shares in accordance with the above provisions, AVI or the
underwriters may round the number of shares allocated to any Holder to the
nearest 100 shares.
(c) If any Holder of Registrable Securities disapproves of the terms
of the underwriting, such person may elect to withdraw therefrom by written
notice to AVI, the managing underwriter and the Initial Holders. The Registrable
Securities and/or other securities so withdrawn shall also be withdrawn from
registration, and shall not be transferred in a public distribution prior to 180
days after the effective date of the registration statement relating thereto, or
such other shorter period of time as the underwriters may require.
2.3 AVI REGISTRATION
(a) NOTICE OF REGISTRATION. If at any time or from time to time, but
in no event earlier than SuperGen's exercise of the Warrant, AVI shall determine
to register any of its securities, either for its own account or the account of
a security holder or holders, other than (i) a registration relating solely to
employee benefit plans, or (ii) a registration relating solely to a Commission
Rule 145 transaction, AVI will:
(i) promptly give to all Holders of Warrant Shares which are
Registrable Securities written notice thereof; and
(ii) include in such registration (and any related qualification
under blue sky laws or other compliance), and in any underwriting involved
therein, all the Registrable Securities specified in a written request or
requests, made within twenty (20) days after receipt of such written notice from
AVI, by all Holders.
(b) UNDERWRITING. If the registration of which AVI gives notice is for
a registered public offering involving an underwriting, AVI shall so advise the
Holders as a part of the
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written notice given pursuant to Section 2.3(a)(i). In such event the right of
and the Holders to registration pursuant to this Section 2.3 shall be
conditioned upon the Holders' participation in such underwriting and the
inclusion of the Registrable Securities in the underwriting shall be limited to
the extent provided herein. All Holders proposing to distribute their securities
through such underwriting shall, together with AVI, enter into an underwriting
agreement in customary form with the managing underwriter selected for such
underwriting by AVI. Notwithstanding any other provision of this Section 2.3, if
the managing underwriter determines that marketing factors require a limitation
of the number of shares to be underwritten, the managing underwriter and AVI may
reduce the securities to be included in such registration to the extent the
underwriters deem necessary (to zero if necessary). AVI shall so advise the
Holders and all holders of securities distributing their securities through such
underwriting and the number of shares of Registrable Securities that may be
included in the registration and underwriting shall be allocated among all such
holders in proportion, as nearly as practicable, to the respective amounts of
Registrable Securities held by the Holders at the time of filing the
registration statement. To facilitate the allocation of shares in accordance
with the above provisions, AVI may round the number of shares allocated to any
Holder or holder to the nearest 100 shares. If any Holder or holder disapproves
of the terms of any such underwriting, it may elect to withdraw therefrom by
written notice to AVI and the managing underwriter. Any securities excluded or
withdrawn from such underwriting shall be withdrawn from such registration, and
shall not be transferred in a public distribution prior to 180 days after the
effective date of the registration statement relating thereto, or such other
shorter period of time as the underwriters may require.
(c) RIGHT TO TERMINATE REGISTRATION. AVI shall have the right to
terminate or withdraw any registration initiated by it under this Section 2.4
prior to the effectiveness of such registration whether or not any holder has
elected to include securities in such registration.
2.4 REGISTRATION PROCEDURES. In the case of each registration,
qualification or compliance effected by AVI pursuant to this Section 2
(including the registration on Form S-3), AVI will keep the Holders advised in
writing as to the initiation of each registration, qualification and compliance
and as to the completion thereof. At its expense AVI will:
(a) Prepare and file with the Commission a registration statement with
respect to such securities and use its best efforts to cause such registration
statement to become and remain continuously effective for at least one year or
until the sale of all Registrable Securities described in the Registration
Statement has been completed;
(b) Furnish to the Holders such reasonable number of copies of the
registration statement, preliminary prospectus, final prospectus and such other
documents as the Holders or such underwriters may reasonably request in order to
effect the offering and sale of the shares to be offered and sold, but only
while AVI shall be required under the provisions hereof to cause such
registration statement to remain current;
(c) Use its commercially reasonable efforts to register or qualify the
shares of the Registrable Securities covered by such registration under the
securities or blue sky laws of such jurisdictions as the Holders shall
reasonably request (provided that AVI shall not be required in connection
therewith or as a condition thereto to qualify to do business or to file a
general consent to service of process in any such jurisdiction where it has not
been qualified), and do any and all other
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acts or things which may be reasonably necessary or advisable to enable the
Holders to consummate the public sale or other disposition of the Registrable
Securities in such jurisdictions;
(d) Cause all such Registrable Securities to be listed on the Nasdaq
National Market ("NNM") on which similar securities issued by AVI are then
listed;
(e) Notify the Holders upon the happening of any event as a result of
which the prospectus included in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in the light of the circumstances then existing;
(f) So long as the registration statement remains effective, promptly
prepare, file and furnish to the Holders a reasonable number of copies of a
supplement to or an amendment of such prospectus as may be necessary so that, as
thereafter delivered to the purchasers of the Registrable Securities, such
prospectus shall not include 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 not misleading in the light of the circumstances then
existing;
(g) Notify the Holders promptly after it shall receive notice thereof,
of the date and time any registration statement and each post-effective
amendment thereto has become effective or a supplement to any prospectus forming
a part of such registration statement has been filed;
(h) Notify the Holders promptly of any request by the Commission for
the amending or supplementing of such registration statement or prospectus or
for additional information; and
(i) Advise the Holders promptly after it shall receive notice or
obtain knowledge thereof, of the issuance of any stop order by the Commission
suspending the effectiveness of any registration statement or the initiation or
threatening of any proceeding for that purpose and promptly use commercially
reasonable efforts to prevent the issuance of any stop order or to obtain its
withdrawal if such stop order should be issued.
2.5 EXPENSES OF REGISTRATION. All Registration Expenses incurred in
connection with all registrations pursuant to this Section 2 shall be borne by
AVI. Unless otherwise stated, all Selling Expenses relating to securities
registered on behalf of any holders of securities participating in the
distribution and all other Registration Expenses shall be borne by such holders
pro rata on the basis of the number of shares so registered.
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2.6 INDEMNIFICATION.
(a) AVI will indemnify each Holder, each of its officers and
directors, and each person controlling such Holder within the meaning of Section
15 of the Securities Act, with respect to which registration, qualification or
compliance has been effected pursuant to this Section 2, and each underwriter,
if any, and each person who controls any underwriter within the meaning of
Section 15 of the Securities Act, against all expenses, claims, losses, damages
or liabilities (or actions in respect thereof), including any of the foregoing
incurred in settlement of any litigation, commenced or threatened, arising out
of or based on any untrue statement (or alleged untrue statement) of a material
fact contained in any registration statement, prospectus, offering circular or
other document, or any amendment or supplement thereto, incident to any such
registration, qualification or compliance, or based on 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 in which
they were made, not misleading, or any violation by AVI of the Securities Act,
the Exchange Act, state securities law or any rule or regulation promulgated
under such laws applicable to AVI in connection with any such registration,
qualification or compliance, and within a reasonable period AVI will reimburse
each Holder, each of its officers and directors, and each person controlling
such Holder, each such underwriter and each person who controls any such
underwriter, for any legal and any other expenses reasonably incurred in
connection with investigating, preparing or defending any such claim, loss,
damage, liability or action; provided that AVI will not be liable in any such
case to the extent that any such claim, loss, damage, liability or expense
arises out of or is based on any untrue statement or omission or alleged untrue
statement or omission, made in reliance upon and in conformity with written
information furnished to AVI by an instrument duly executed by any Holder, such
controlling person or underwriter and stated to be specifically for use therein.
(b) Each Holder will indemnify AVI, each of its directors and
officers, each underwriter, if any, of AVI's securities covered by such a
registration statement, each person who controls AVI or such underwriter within
the meaning of Section 15 of the Securities Act, and each other Holder
participating in the distribution, each of its officers and directors and each
person controlling such other Holder within the meaning of Section 15 of the
Securities Act, against all claims, losses, damages and liabilities (or actions
in respect thereof) arising out of or based on any untrue statement (or alleged
untrue statement) of a material fact contained in any such registration
statement, prospectus, offering circular or other document, or any omission (or
alleged omission) to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and within a
reasonable period will reimburse AVI, such other Holders, such directors,
officers, persons, underwriters or control persons for any legal or any other
expenses reasonably incurred in connection with investigating or defending any
such claim, loss, damage, liability or action, in each case to the extent, but
only to the extent, that such untrue statement (or alleged untrue statement) or
omission (or alleged omission) is made in such registration statement,
prospectus, offering circular or other document in reliance upon and in
conformity with written information furnished to AVI by an instrument duly
executed by the Holder and stated to be specifically for use therein.
Notwithstanding the foregoing, the liability of each Holder under this
subsection (b) shall be limited in an amount equal to the gross proceeds before
expenses and commissions to each Holder received for the shares sold by such
Holder, unless such liability arises out of or is based on willful misconduct by
such Holder.
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(c) Each party entitled to indemnification under this Section 2.6 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not unreasonably be
withheld), and the Indemnified Party may participate in such defense at such
party's expense, and provided further that the failure of any Indemnified Party
to give notice as provided herein shall not relieve the Indemnifying Party of
its obligations under this Section 2.7 unless the failure to give such notice is
materially prejudicial to an Indemnifying Party's ability to defend such action
and provided further, that the Indemnifying Party shall not assume the defense
for matters as to which there is a conflict of interest or separate and
different defenses. No Indemnifying Party, in the defense of any such claim or
litigation, shall, except with the consent of each Indemnified Party, consent to
entry of any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or
litigation.
2.7 INFORMATION BY HOLDER. Each Holder shall furnish to AVI such
information regarding such Holder, the Registrable Securities held by it and the
distribution proposed by such Holder as AVI may request in writing and as shall
be required in connection with any registration, qualification or compliance
referred to in this Section 2.
2.8 RULE 144 REPORTING. With a view to making available the benefits of
certain rules and regulations of the Commission which may at any time permit the
sale of Restricted Securities to the public without registration, AVI agrees to
use its best efforts to:
(a) Make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act, at all times;
(b) Use its best efforts to file with the Commission in a timely
manner all reports and other documents required of AVI under the Securities Act
and the Exchange Act; and
(c) So long as a Holder owns any Restricted Securities, furnish to the
Holder forthwith upon request a written statement by AVI as to its compliance
with the reporting requirements of said Rule 144 and of the Securities Act and
the Exchange Act, a copy of the most recent annual or quarterly report of AVI,
and such other reports and documents of AVI and other information in the
possession of or reasonably obtainable by AVI as the Holder may reasonably
request in availing itself of any rule or regulation of the Commission allowing
the Holder to sell any such securities without registration.
2.9 TRANSFER OF REGISTRATION RIGHTS. The rights to cause AVI to register
securities granted a Holder under Sections 2.1, 2.2 and 2.3 may be assigned to a
transferee or assignee reasonably acceptable to AVI which acquires at least
250,000 AVI Shares or Warrant Shares in connection with any transfer or
assignment of AVI Shares or Warrant Shares by the Holder.
2.10 STANDOFF AGREEMENT. In connection with any public offering of AVI's
securities, each Holder agrees, upon request of AVI or the underwriters managing
any underwritten offering of
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AVI's securities, not to sell, make any short sale of, loan, grant any option
for the purchase of, or otherwise dispose of any AVI Shares or Warrant Shares
(other than those included in the registration) without the prior written
consent of AVI or such underwriters, as the case may be, for such period of time
(not to exceed ninety (90) days) from the effective date of such registration as
may be requested by the underwriters, provided that the officers and directors
of AVI who own stock of AVI and each holder representing at least 1% ownership
of AVI's outstanding Common Stock also agrees to such restrictions.
2.11 TERMINATION OF REGISTRATION RIGHTS. The registration rights granted
pursuant to this Section 2 shall terminate as to each Holder at such time as all
AVI Shares or Warrant Shares held by such Holder may, in the opinion of counsel
to AVI (which opinion shall be addressed and rendered to the Holder), be sold in
a single three month period pursuant to Rule 144.
SECTION 3
REGISTRATION OF SUPERGEN SHARES AND ADDITIONAL SUPERGEN SHARES
3.1 REGISTRATION OF SUPERGEN SHARES.
(a) REGISTRATION STATEMENT. SuperGen shall use commercially reasonable
efforts to cause the SuperGen Shares which are Registrable Securities to be
registered under the Securities Act no later than 90 days after the Closing
Date, so as to permit the resale thereof, and in connection therewith shall
prepare and file with the SEC and shall use commercially reasonable efforts to
cause to become effective, a Form S-3 covering the SuperGen Shares; PROVIDED,
HOWEVER, that the Holders, if any, shall provide all such information and
materials relating to the Holders, as applicable, and take all such action as
may be required in order to permit SuperGen to comply with all the applicable
requirements of the SEC and to obtain any desired acceleration of the effective
date of such Form S-3, such provision of information and materials to be a
condition precedent to the obligations of SuperGen pursuant to this Agreement
and the Purchase Agreement. The offerings made pursuant to such registrations
shall not be underwritten.
(b) POSTPONEMENT OF REGISTRATION
(i) REGISTRATION. Notwithstanding Section 3.1(a) above, SuperGen
shall be entitled to postpone the declaration of effectiveness of any Form S-3
prepared and filed pursuant to this Section 3.1 for a reasonable period of time,
but not in excess of 60 calendar days after the applicable deadline, if the
Board of Directors of SuperGen, acting in good faith, determines that there
exists material non-public information about SuperGen.
(ii) MATERIAL EVENT. The Holders agree that, upon receipt of any
notice from SuperGen of the happening of a Material Event, they will forthwith
discontinue disposition of the SuperGen Shares which are Registrable Securities
pursuant to any Form S-3 until the receipt of copies of supplemented or amended
prospectuses prepared by SuperGen (which SuperGen will use its commercially
reasonable efforts to prepare and file promptly), and, if so directed by
SuperGen, the Holders will deliver to SuperGen all copies in their possession,
other than permanent file copies then in the Holders' possession, of the
prospectus covering such SuperGen Shares current at the time of receipt of such
notice. In no event shall SuperGen delay causing to be effective a supplement or
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post-effective amendment to any Form S-3 pursuant to this Section 3.1 or the
related prospectus, for more than 90 consecutive days or 120 days during any 365
consecutive calendar day period.
3.2 SUPERGEN REGISTRATION
(a) NOTICE OF REGISTRATION. If at any time or from time to time, but
in no event earlier than the issuance of any SuperGen Additional Shares,
SuperGen shall determine to register any of its securities, either for its own
account or the account of a security holder or holders, other than (i) a
registration relating solely to employee benefit plans, or (ii) a registration
relating solely to a Commission Rule 145 transaction, SuperGen will:
(i) promptly give to all Holders of SuperGen Additional Shares
which are Registrable Securities, if any, written notice thereof; and
(ii) include in such registration (and any related qualification
under blue sky laws or other compliance), and in any underwriting involved
therein, all the Registrable Securities specified in a written request or
requests, made within twenty (20) days after receipt of such written notice from
SuperGen, by all Holders.
(b) UNDERWRITING. If the registration of which SuperGen gives notice
is for a registered public offering involving an underwriting, SuperGen shall so
advise the Holders as a part of the written notice given pursuant to Section
3.2(a)(i). In such event the right of the Holders to registration pursuant to
this Section 3.2 shall be conditioned upon the Holders' participation in such
underwriting and the inclusion of the Registrable Securities in the underwriting
shall be limited to the extent provided herein. All Holders proposing to
distribute their securities through such underwriting shall, together with
SuperGen, enter into an underwriting agreement in customary form with the
managing underwriter selected for such underwriting by SuperGen. Notwithstanding
any other provision of this Section 3.2, if the managing underwriter determines
that marketing factors require a limitation of the number of shares to be
underwritten, the managing underwriter and SuperGen may reduce the securities to
be included in such registration to the extent the underwriters deem necessary
(to zero if necessary). SuperGen shall so advise all Holders and other holders
distributing their securities through such underwriting and the number of shares
of Registrable Securities that may be included in the registration and
underwriting shall be allocated among all such Holders and holders in
proportion, as nearly as practicable, to the respective amounts of Registrable
Securities held by such Holders at the time of filing the Registration
Statement. To facilitate the allocation of shares in accordance with the above
provisions, SuperGen may round the number of shares allocated to any Holder or
holder to the nearest 100 shares. If any Holder or holder disapproves of the
terms of any such underwriting, it may elect to withdraw therefrom by written
notice to SuperGen and the managing underwriter. Any securities excluded or
withdrawn from such underwriting shall be withdrawn from such registration, and
shall not be transferred in a public distribution prior to 180 days after the
effective date of the registration statement relating thereto, or such other
shorter period of time as the underwriters may require.
(c) RIGHT TO TERMINATE REGISTRATION. SuperGen shall have the right to
terminate or withdraw any registration initiated by it under this Section 3.2
prior to the effectiveness of such registration whether or not any holder has
elected to include securities in such registration.
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3.3 REGISTRATION PROCEDURES. In the case of each registration,
qualification or compliance effected by SuperGen pursuant to this Section 3
(including the registration Form S-3), SuperGen will keep advised in writing
as to the initiation of each registration, qualification and compliance and
as to the completion thereof. At its expense SuperGen will:
(a) Prepare and file with the Commission a registration statement with
respect to such securities and use its best efforts to cause such registration
statement to become and remain continuously effective for at least one year or
until the sale of all Registrable Securities described in the Registration
Statement has been completed;
(b) Furnish to the Holders such reasonable number of copies of the
registration statement, preliminary prospectus, final prospectus and such other
documents as the Holders or such underwriters may reasonably request in order to
effect the offering and sale of the shares to be offered and sold, but only
while SuperGen shall be required under the provisions hereof to cause such
registration statement to remain current;
(c) Use its commercially reasonable efforts to register or qualify the
shares of the Registrable Securities covered by such registration under the
securities or blue sky laws of such jurisdictions as the Holders shall
reasonably request (provided that SuperGen shall not be required in connection
therewith or as a condition thereto to qualify to do business or to file a
general consent to service of process in any such jurisdiction where it has not
been qualified), and do any and all other acts or things which may be reasonably
necessary or advisable to enable the Holders to consummate the public sale or
other disposition of the Registrable Securities in such jurisdictions;
(d) Cause all such Registrable Securities to be listed on the NNM on
which similar securities issued by AVI are then listed;
(e) Notify the Holders upon the happening of any event as a result of
which the prospectus included in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in the light of the circumstances then existing;
(f) So long as the registration statement remains effective, promptly
prepare, file and furnish to the Holders a reasonable number of copies of a
supplement to or an amendment of such prospectus as may be necessary so that, as
thereafter delivered to the purchasers of the Registrable Securities, such
prospectus shall not include 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 not misleading in the light of the circumstances then
existing;
(g) Notify the Holders promptly after it shall receive notice thereof,
of the date and time any registration statement and each post-effective
amendment thereto has become effective or a supplement to any prospectus forming
a part of such registration statement has been filed;
(h) Notify the Holders promptly of any request by the Commission for
the amending or supplementing of such registration statement or prospectus or
for additional information; and
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(i) Advise the Holders promptly after it shall receive notice or
obtain knowledge thereof, of the issuance of any stop order by the Commisson
suspending the effectiveness of any registration statement or the initiation or
threatening of any proceeding for that purpose and promptly use commercially
reasonable efforts to prevent the issuance of any stop order or to obtain its
withdrawal if such stop order should be issued.
3.4 EXPENSES OF REGISTRATION. All Registration Expenses incurred in
connection with all registrations pursuant to this Section 3 shall be borne by
SuperGen. Unless otherwise stated, all Selling Expenses relating to securities
registered on behalf of any holders of securities participating in the
distribution and all other Registration Expenses shall be borne by such holders
pro rata on the basis of the number of shares so registered.
3.5 INDEMNIFICATION.
(a) SuperGen will indemnify each Holder, each of its officers and
directors, and each person controlling such Holder within the meaning of Section
15 of the Securities Act, with respect to which registration, qualification or
compliance has been effected pursuant to this Section 3, and each underwriter,
if any, and each person who controls any underwriter within the meaning of
Section 15 of the Securities Act, against all expenses, claims, losses, damages
or liabilities (or actions in respect thereof), including any of the foregoing
incurred in settlement of any litigation, commenced or threatened, arising out
of or based on any untrue statement (or alleged untrue statement) of a material
fact contained in any registration statement, prospectus, offering circular or
other document, or any amendment or supplement thereto, incident to any such
registration, qualification or compliance, or based on 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 in which
they were made, not misleading, or any violation by SuperGen of the Securities
Act, the Exchange Act, state securities law or any rule or regulation
promulgated under such laws applicable to SuperGen in connection with any such
registration, qualification or compliance, and within a reasonable period
SuperGen will reimburse each Holder, each of its officers and directors, and
each person controlling such Holder, each such underwriter and each person who
controls any such underwriter, for any legal and any other expenses reasonably
incurred in connection with investigating, preparing or defending any such
claim, loss, damage, liability or action; provided that SuperGen will not be
liable in any such case to the extent that any such claim, loss, damage,
liability or expense arises out of or is based on any untrue statement or
omission or alleged untrue statement or omission, made in reliance upon and in
conformity with written information furnished to SuperGen by an instrument duly
executed by such Holder, such controlling person or underwriter and stated to be
specifically for use therein.
(b) Each Holder will indemnify SuperGen, each of its directors and
officers, each underwriter, if any, of SuperGen's securities covered by such a
registration statement, each person who controls SuperGen or such underwriter
within the meaning of Section 15 of the Securities Act, and each other Holder of
securities participating in the distribution, each of its officers and directors
and each person controlling such other Holder within the meaning of Section 15
of the Securities Act, against all claims, losses, damages and liabilities (or
actions in respect thereof) arising out of or based on any untrue statement (or
alleged untrue statement) of a material fact contained in any such registration
statement, prospectus, offering circular or other document, or any omission (or
alleged
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omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and within a reasonable
period will reimburse SuperGen, such other Holders, such directors, officers,
persons, underwriters or control persons for any legal or any other expenses
reasonably incurred in connection with investigating or defending any such
claim, loss, damage, liability or action, in each case to the extent, but only
to the extent, that such untrue statement (or alleged untrue statement) or
omission (or alleged omission) is made in such registration statement,
prospectus, offering circular or other document in reliance upon and in
conformity with written information furnished to SuperGen by an instrument duly
executed by such Holder and stated to be specifically for use therein.
Notwithstanding the foregoing, the liability of each Holder under this
subsection (b) shall be limited in an amount equal to the gross proceeds before
expenses and commissions to each Holder received for the shares sold by such
Holder, unless such liability arises out of or is based on willful misconduct by
such Holder.
(c) Each party entitled to indemnification under this Section 3.5 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not unreasonably be
withheld), and the Indemnified Party may participate in such defense at such
party's expense, and provided further that the failure of any Indemnified Party
to give notice as provided herein shall not relieve the Indemnifying Party of
its obligations under this Section 3.5 unless the failure to give such notice is
materially prejudicial to an Indemnifying Party's ability to defend such action
and provided further, that the Indemnifying Party shall not assume the defense
for matters as to which there is a conflict of interest or separate and
different defenses. No Indemnifying Party, in the defense of any such claim or
litigation, shall, except with the consent of each Indemnified Party, consent to
entry of any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or
litigation.
3.6 INFORMATION BY THE HOLDER. Each Holder shall furnish to SuperGen such
information regarding such Holder, the Registrable Securities held by it and the
distribution proposed by such Holder as SuperGen may request in writing and as
shall be required in connection with any registration, qualification or
compliance referred to in this Section 3.
3.7 RULE 144 REPORTING. With a view to making available the benefits of
certain rules and regulations of the Commission which may at any time permit the
sale of the Restricted Securities to the public without registration, SuperGen
agrees to use its best efforts to:
(a) Make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act, at all times;
(b) Use its best efforts to file with the Commission in a timely
manner all reports and other documents required of SuperGen under the Securities
Act and the Exchange Act; and
(c) So long as a Holder owns any SuperGen Shares or Additional
SuperGen Shares which are Restricted Securities furnish to such Holder forthwith
upon request a written
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statement by SuperGen as to its compliance with the reporting requirements of
said Rule 144 and of the Securities Act and the Exchange Act, a copy of the most
recent annual or quarterly report of SuperGen, and such other reports and
documents of SuperGen and other information in the possession of or reasonably
obtainable by SuperGen as the Holder may reasonably request in availing itself
of any rule or regulation of the Commission allowing such Holder to sell any
such securities without registration.
3.8 TRANSFER OF REGISTRATION RIGHTS. The rights to cause SuperGen to
register securities granted to a Holder under Sections 3.1 and 3.2 may be
assigned to a transferee or assignee reasonably acceptable to SuperGen which
acquires at least 100,000 shares of SuperGen Shares or Additional SuperGen
Shares in connection with any transfer or assignment of SuperGen Shares or
Additional SuperGen Shares by the Holder.
3.9 STANDOFF AGREEMENT. In connection with any public offering of
SuperGen's securities, each Holder agrees, upon request of SuperGen or the
underwriters managing any underwritten offering of SuperGen's securities, not to
sell, make any short sale of, loan, grant any option for the purchase of, or
otherwise dispose of any SuperGen Shares or Additional SuperGen Shares (other
than those included in the registration) without the prior written consent of
SuperGen or such underwriters, as the case may be, for such period of time (not
to exceed ninety (90) days) from the effective date of such registration as may
be requested by the underwriters, provided that the officers and directors of
SuperGen who own stock of SuperGen and each holder representing at least 1%
ownership of SuperGen's outstanding Common Stock also agrees to such
restrictions.
3.10 TERMINATION OF REGISTRATION RIGHTS. The registration rights granted
pursuant to Section 3 shall terminate as to each Holder at such time as all
SuperGen Shares or Additional SuperGen Shares held by such Holder may, in the
opinion of counsel to SuperGen (which opinion shall be addressed and rendered to
the Holder), be sold in a single three month period pursuant to Rule 144.
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SECTION 4
MISCELLANEOUS
4.1 GOVERNING LAW. This Agreement shall be governed in all respects by the
internal laws of the State of Delaware.
4.2 SURVIVAL. The covenants and agreements made herein shall survive the
closing of the transactions contemplated hereby.
4.3 SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, the
provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto.
4.4 ENTIRE AGREEMENT; AMENDMENT. This Agreement, the Purchase Agreement,
the United States of America Sales, Distribution and Development Agreement and
all exhibits hereto and thereto constitute the full and entire understanding and
agreement between the parties with regard to the subjects hereof and thereof,
and no party shall be liable or bound to any other party in any manner by any
warranties, representations or covenants except as specifically set forth herein
or therein. Except as expressly provided herein, neither this Agreement nor any
term hereof may be amended, waived, discharged or terminated other than by a
written instrument signed by the party against whom enforcement of any such
amendment, waiver, discharge or termination is sought.
4.5 NOTICES, ETC. All notices and other communications required or
permitted hereunder shall be in writing and shall be mailed by registered or
certified mail, postage prepaid, or otherwise delivered by hand or by messenger,
addressed (a) if to AVI, at AVI BioPharma, Inc., Xxx XX Xxxxxxxx, Xxxxxxxx, XX
00000, Attn: President, Xxxx X. Xxxxxxx, with a copy to Alter Xxxxx LLC, 000 XX
Xxxxxxxx, #0000, Xxxxxxxx, Xxxxxx 00000, Attn: Xxxxx Xxxxxxxx, or to such other
address (including electronic mail address) as AVI shall have furnished to
SuperGen in writing or by electronic mail, or (b) if to SuperGen, at SuperGen,
Inc., Xxx Xxxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx, XX 00000, Attn: President and CEO,
Xx. Xxxxxx Xxxxxxxxx, with a copy of any said notice to Xxxxxx Xxxxxxx Xxxxxxxx
& Xxxxxx, 000 Xxxx Xxxx Xxxx, Xxxx Xxxx, XX 00000-0000, Attn: Page Xxxxxxxxx,
Esq., or to such other address (including electronic mail address) as SuperGen
shall have furnished to AVI in writing or by electronic mail.
Each such notice or other communication shall for all purposes of this
Agreement be treated as effective or having been given when delivered if
delivered personally, or, if sent by mail, at the earlier of its receipt or 72
hours after the same has been deposited in a regularly maintained receptacle for
the deposit of the United States mail, addressed and mailed as aforesaid.
4.6 DELAYS OR OMISSIONS. Except as expressly provided herein, no delay or
omission to exercise any right, power or remedy accruing to any party to this
Agreement upon any breach or default of any other party under this Agreement,
shall impair any such right, power or remedy of such nondefaulting party nor
shall it be construed to be a waiver of any such breach or default, or an
acquiescence therein, or of or in any similar breach or default thereafter
occurring; nor shall any waiver of any single breach or default be deemed a
waiver of any other breach or default theretofore or thereafter occurring. Any
waiver, permit, consent or approval of any kind or character on the part
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of any party of any breach or default under this Agreement, or any waiver on the
part of any holder of any provisions or conditions of this Agreement, must be in
writing and shall be effective only to the extent specifically set forth in such
writing. All remedies, either under this Agreement or by law or otherwise
afforded to any party to this Agreement, shall be cumulative and not
alternative.
4.7 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one
instrument.
4.8 SEVERABILITY. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision; provided that no such severability shall be effective
if it materially changes the economic benefit of this Agreement to any party.
4.9 TITLES AND SUBTITLES. The titles and subtitles used in this Agreement
are used for convenience only and are not considered in construing or
interpreting this Agreement.
[SIGNATURE PAGE(S) FOLLOW(S)]
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The foregoing Agreement is hereby executed as of the date first above
written.
SUPERGEN, INC.
a Delaware Corporation
By: /s/ Xxxxxx Xxxxxxxxx
--------------------------------------
Xxxxxx Xxxxxxxxx
Chief Executive Officer and President
AVI BIOPHARMA, INC.
an Oregon Corporation
By: /s/ Xxxx X. Xxxxxxx
--------------------------------------
Xxxx X. Xxxxxxx
President & Chief Operating Officer
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
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