REGISTRATION RIGHTS AGREEMENT
Exhibit 10.3
This REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made as of December 11, 2006,
by and among (i) Advancis Pharmaceutical Corporation, a Delaware corporation (the
“Company”), (ii) each person listed on Exhibit A attached hereto (collectively, the
“Initial Investors” and each individually, an “Initial Investor”), and (iii) each
person or entity that subsequently becomes a party to this Agreement pursuant to, and in accordance
with, the provisions of Section 12 hereof (collectively, the “Investor Permitted
Transferees” and each individually an “Investor Permitted Transferee”).
WHEREAS, the Company has agreed to issue and sell to the Initial Investors, and the Initial
Investors have agreed to purchase from the Company, an aggregate of 6,000,000 shares (the
“Purchased Shares”) of the Company’s common stock, $0.01 par value per share (the
“Common Stock”), all upon the terms and conditions set forth in that certain Securities
Purchase Agreement, dated of even date herewith, between the Company and the Initial Investors (the
“Securities Purchase Agreement”); and
WHEREAS, the terms of the Securities Purchase Agreement provide that it shall be a condition
precedent to the closing of the transactions thereunder, for the Company and the Initial Investors
to execute and deliver this Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein, the
parties hereto hereby agree as follows:
1. DEFINITIONS. The following terms shall have the meanings provided therefor below
or elsewhere in this Agreement as described below:
“Board” shall mean the board of directors of the Company.
“Closing” and “Closing Date” shall have the meanings ascribed to such terms in
the Securities Purchase Agreement.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and all of
the rules and regulations promulgated thereunder.
“Investors” shall mean, collectively, the Initial Investors and the Investor Permitted
Transferees; provided, however, that the term “Investors” shall not include
any of the Initial Investors or any of the Investor Permitted Transferees that does not own or hold
any Registrable Shares.
“Majority Holders” shall mean, at the relevant time of reference thereto, those
Investors holding more than fifty percent (50%) of the Registrable Shares held by all of the
Investors.
“Qualifying Holder” shall have the meaning ascribed thereto in Section 12 hereof.
“Registrable Shares” shall mean the Purchased Shares, provided,
however, such term shall not, after the Mandatory Registration Termination Date, include
any of the Purchased
Shares that become or have become eligible for resale without restrictions or volume
limitations pursuant to Rule 144 or pursuant to Regulation S.
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“Rule 144” shall mean Rule 144 promulgated under the Securities Act and any successor
or substitute rule, law or provision.
“SEC” shall mean the Securities and Exchange Commission.
“Securities Act” shall mean the Securities Act of 1933, as amended, and all of the
rules and regulations promulgated thereunder.
2. EFFECTIVENESS; TERMINATION. This Agreement shall become effective and legally
binding only if the Closing occurs. This Agreement shall terminate and be of no further force or
effect, automatically and without any action being required of any party hereto, upon the
termination of the Securities Purchase Agreement pursuant to Section 7 thereof.
3. MANDATORY REGISTRATION.
(a) Within twenty (20) business days after the Closing Date, the Company will prepare and file
with the SEC a registration statement on Form S-3, or in the event the Company is not eligible to
use Form S-3, on Form S-1, for the purpose of registering under the Securities Act all of the
Registrable Shares for resale by, and for the account of, the Investors as selling stockholders
thereunder (the “Registration Statement”). The Registration Statement shall permit the
Investors to offer and sell, on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act, any or all of the Registrable Shares. The Company agrees to use reasonable best
efforts to cause the Registration Statement to become effective as soon as practicable, but in no
event later than ninety (90) days after the Closing Date (or one hundred twenty (120) days if the
Registration Statement is reviewed by the SEC). In the event that, after the Closing Date and
before the Registration Statement is declared effective, there is an act of God, war or terror, the
Effectiveness Deadline will be extended by a number of days equal to the days of any such act, plus
ten (10).
(b) The Company shall be required to keep the Registration Statement effective until such date
that is the earlier of (i) the date as of which all of the Purchasers may sell all of the
Registrable Securities without restriction pursuant to Rule 144(k) (or the successor rule thereto)
promulgated under the Securities Act or (ii) the date when all of the Registrable Shares registered
thereunder shall have been sold (such date is referred to herein as the “Mandatory Registration
Termination Date”). Thereafter, the Company shall be entitled to withdraw the Registration
Statement and the Investors shall have no further right to offer or sell any of the Registrable
Shares pursuant to the Registration Statement (or any prospectus relating thereto).
(c) The offer and sale of the Registrable Shares pursuant to the Registration Statement shall
not be underwritten.
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4. PENALTIES/SUSPENSION OF THE REGISTRATION STATEMENT
(a) If a Registration Statement covering the Registrable Shares is not filed with the
Commission on or prior to twenty (20) business days after the Closing Date, the Company will make
pro rata payments to each Investor, as liquidated damages and not as a penalty, in an amount equal
to 1% of the aggregate amount invested by such Investor for each 30-day period or pro rata for any
portion thereof following the date by which such Registration Statement should have been filed for
which no Registration Statement is filed with respect to the Registrable Shares. The amounts
payable as liquidated damages pursuant to this paragraph shall be paid, in cash in lawful money of
the United States, within three (3) business days of the last day of each such 30-day period during
which the Registration Statement should have been filed for which no Registration Statement was
filed with respect to the Registrable Shares.
(b) The Company shall notify the Investors by facsimile or e-mail as promptly as practicable,
and in any event, within forty-eight (48) hours, after the Registration Statement is declared
effective and shall simultaneously provide the Investors with copies of any related prospectus to
be used in connection with the sale or other disposition of the securities covered thereby. If (A)
a Registration Statement covering the Registrable Shares is not declared effective by the SEC
within ninety (90) days after the Closing Date (or one hundred twenty (120) days if reviewed by the
SEC), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be
made pursuant to such Registration Statement for any reason (including without limitation by reason
of a stop order, or the Company’s failure to update the Registration Statement), but excluding the
inability of any Investor to sell the Registrable Shares covered thereby due to market conditions
and except as excused pursuant to Section 11 below, then the Company will make pro rata payments to
each Investor, as liquidated damages and not as a penalty, in an amount equal to 1% of the
aggregate amount invested by such Investor for each 30-day period or pro rata for any portion
thereof following the date by which such Registration Statement should have been effective, but was
not so effective or available (the “Blackout Period”). The amounts payable as liquidated
damages pursuant to this paragraph shall be paid, in cash in lawful money of the United States,
monthly within three (3) business days of the last day of each month following the commencement of
the Blackout Period until the termination of the Blackout Period.
(c) No Investor shall be entitled to a payment pursuant to this Section 4 if effectiveness of
a registration statement has been delayed or a prospectus has been unavailable as a result of (i) a
failure by such Investor to promptly provide on request by the Company the information required
under the Securities Purchase Agreement or this Agreement or requested by the SEC as a condition to
effectiveness of the Registration Statement; (ii) the provision of inaccurate or incomplete
information by such Investor; or (iii) a statement or determination of the SEC that any provision
of the rights of the Investor under this Agreement are contrary to the provisions of the Securities
Act.
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5. OBLIGATIONS OF THE COMPANY. In connection with the Company’s obligation under
Section 3 hereof to file the Registration Statement with the SEC and to use its reasonable best
efforts to cause the Registration Statement to become effective, the Company shall, as
expeditiously as reasonably possible:
(a) Prepare and file with the SEC such amendments and supplements to the Registration
Statement and the prospectus used in connection therewith as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all Registrable Shares covered
by the Registration Statement;
(b) Furnish to the selling Investors such number of copies of a prospectus, including a
preliminary prospectus, in conformity with the requirements of the Securities Act, and such other
documents (including, without limitation, prospectus amendments and supplements as are prepared by
the Company in accordance with Section 5(a) above) as the selling Investors may reasonably request
in order to facilitate the disposition of such selling Investors’ Registrable Shares;
(c) Notify the selling Investors, at any time during which a prospectus relating to the
Registration Statement is required to be delivered under the Securities Act, of the happening of
any event as a result of which the prospectus included in or relating to the Registration Statement
contains an untrue statement of a material fact or omits any fact necessary to make the statements
therein not misleading; and, thereafter, subject to Section 11 hereof, the Company will promptly
prepare (and, when completed, give notice and provide a copy thereof to each selling Investor) a
supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of
such Registrable Shares, such prospectus will not contain an untrue statement of a material fact or
omit to state any fact necessary to make the statements therein not misleading; provided
that upon such notification by the Company, the selling Investors will not offer or sell
Registrable Shares until the Company has notified the selling Investors that it has prepared a
supplement or amendment to such prospectus and delivered copies of such supplement or amendment to
the selling Investors (it being understood and agreed by the Company that the foregoing proviso
shall in no way diminish or otherwise impair the Company’s obligation to promptly prepare a
prospectus amendment or supplement as above provided in this Section 5(c) and deliver copies of
same as above provided in Section 5(b) hereof); and
(d) Use commercially reasonable efforts to register and qualify the Registrable Shares covered
by the Registration Statement under such other securities or Blue Sky laws of such states as shall
be reasonably appropriate in the opinion of the Company, provided that the Company 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 states or jurisdictions, and
provided further that (notwithstanding anything in this Agreement to the contrary with
respect to the bearing of expenses) if any jurisdiction in which any of such Registrable Shares
shall be qualified shall require that expenses incurred in connection with the qualification
therein of any such Registrable Shares be borne by the selling Investors, then the selling
Investors shall, to the extent required by such jurisdiction, pay their pro rata share of such
qualification expenses.
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(e) Subject to the terms and conditions of this Agreement, including Section 3 hereof, the
Company shall use its commercially reasonable efforts to (i) prevent the issuance of any stop order
or other suspension of effectiveness of a Registration Statement, or the suspension of the
qualification of any of the Registrable Shares for sale in any jurisdiction in the United States,
and (ii) if such an order or suspension is issued, obtain the withdrawal of such order or
suspension at the earliest practicable moment and notify each holder of Registrable Shares of the
issuance of such order and the resolution thereof or its receipt of notice of the initiation or
threat of any proceeding such purpose.
(f) The Company shall (i) comply with all requirements of the National Association of
Securities Dealers, Inc. with regard to the issuance of the Purchased Shares and the listing
thereof on the NASDAQ Global Market and such other securities exchange or automated quotation
system, as applicable, and (ii) engage a transfer agent and registrar to maintain the Company’s
stock ledger for all Registrable Shares covered by the Registration Statement not later than the
effective date of the Registration Statement.
(g) The Company will notify the Investors of any pending proceeding against the Company under
Section 8A of the Securities Act in connection with the offering of the Registrable Securities.
(h) The Company will file the Registration Statement and all amendments and supplements
thereto electronically on XXXXX.
6. FURNISH INFORMATION. It shall be a condition precedent to the obligations of the
Company to take any action pursuant to this Agreement that the selling Investors shall furnish to
the Company such information regarding them and the securities held by them as the Company shall
reasonably request and as shall be required in order to effect any registration by the Company
pursuant to this Agreement. Each Investor shall promptly notify the Company of any changes in the
information furnished to the Company.
7. EXPENSES OF REGISTRATION. Except as set forth in Section 5(d), all expenses
incurred in connection with the registration of the Registrable Shares pursuant to this Agreement
(excluding underwriting, brokerage and other selling commissions and discounts), including without
limitation all registration and qualification and filing fees, printing, and fees and disbursements
of counsel for the Company, shall be borne by the Company; provided however that the Investors
shall be required to pay the expenses of counsel and any other advisors for the Investors and any
brokerage or other selling discounts or commissions and any other expenses incurred by the
Investors for their own account.
8. DELAY OF REGISTRATION. The Investors shall not take any action to restrain, enjoin
or otherwise delay any registration as the result of any controversy which might arise with respect
to the interpretation or implementation of this Agreement.
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9. INDEMNIFICATION.
(a) To the extent permitted by law, the Company will indemnify and hold harmless each selling
Investor, and each officer and director of such selling Investor and each
person, if any, who controls such selling Investor, within the meaning of the Securities Act,
against any losses, claims, damages or liabilities, joint or several, to which they may become
subject under the Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any untrue or alleged
untrue statement of any material fact contained in the Registration Statement, in any preliminary
prospectus or final prospectus relating thereto or in any amendments or supplements to the
Registration Statement or any such preliminary prospectus or final prospectus, or arise out of or
are based upon the 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 will reimburse such
selling Investor, or such officer, director or controlling person for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the indemnity agreement
contained in this Section 9(a) 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
Company (which consent shall not be unreasonably withheld), nor shall the Company be liable in any
such case for any such loss, damage, liability or action to the extent that it arises out of or is
based upon (i) an untrue statement or alleged untrue statement or omission made in connection with
the Registration Statement, any preliminary prospectus or final prospectus relating thereto or any
amendments or supplements to the Registration Statement or any such preliminary prospectus or final
prospectus, in reliance upon and in conformity with written information furnished expressly for use
in connection with the Registration Statement or any such preliminary prospectus or final
prospectus by the selling Investors or (ii) an untrue statement or alleged untrue statement or
omission in the Registration Statement or any prospectus that is (whether preliminary or final)
corrected in any subsequent amendment or supplement to the Registration Statement or prospectus
that was delivered to the selling Investor before the pertinent sale or sales by the selling
Investor.
(b) To the extent permitted by law, each selling Investor will severally and not jointly
indemnify and hold harmless the Company, each of its directors, each of its officers who have
signed the Registration Statement, each person, if any, who controls the Company within the meaning
of the Securities Act, and all other selling Investors against any losses, claims, damages or
liabilities to which the Company or any such director, officer, controlling person, or such other
selling Investor may become subject to, under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereto) arise out of or are based
upon any untrue or alleged untrue statement of any material fact contained in the Registration
Statement or any preliminary prospectus or final prospectus, relating thereto or in any amendments
or supplements to the Registration Statement or any such preliminary prospectus or final
prospectus, or arise out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent and only to the extent that such untrue statement or alleged
untrue statement or omission or alleged omission (i) was made in the Registration Statement, in any
preliminary prospectus or final prospectus relating thereto or in any amendments or supplements to
the Registration Statement or any such preliminary prospectus or final prospectus, in reliance upon
and in conformity with written information furnished by the selling Investor expressly for use in
connection with the Registration Statement, or any preliminary prospectus or final prospectus or
(ii) was corrected in any subsequent
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amendment or supplement to the Registration Statement or prospectus (whether preliminary or
final) that was delivered to the selling Investor before the pertinent sale or sales by the selling
Investor and such corrected amendment or supplement to the Registration Statement or prospectus was
not delivered to the purchaser; and such selling Investor will reimburse any legal or other
expenses reasonably incurred by the Company or any such director, officer, controlling person, or
other selling Investor in connection with investigating or defending any such loss, claim, damage,
liability or action, provided, however, that the liability of each selling Investor
hereunder shall be limited to the proceeds (net of underwriting discounts and commissions, if any)
received by such selling Investor from the sale of Registrable Shares covered by the Registration
Statement, and provided, further, however, that the indemnity agreement
contained in this Section 9(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 those
selling Investor(s) against which the request for indemnity is being made (which consent shall not
be unreasonably withheld).
(c) Promptly after receipt by an indemnified party under this Section 9 of notice of the
commencement of any action, such indemnified party will, if a claim in respect thereof is to be
made against any indemnifying party under this Section 9, notify the indemnifying party in writing
of the commencement thereof and the indemnifying party shall have the right to participate in and,
to the extent the indemnifying party desires, jointly with any other indemnifying party similarly
noticed, to assume at its expense the defense thereof with counsel satisfactory to the indemnifying
party or indemnifying parties. In the event that the indemnifying party assumes any such defense,
the indemnified party may participate in such defense with its own counsel and at its own expense,
provided, however, that the counsel for the indemnifying party shall act as lead
counsel in all matters pertaining to such defense or settlement of such claim and the indemnifying
party shall only pay for such indemnified party’s expenses for the period prior to the date of its
participation on such defense. The failure to notify an indemnifying party promptly of the
commencement of any such action, if prejudicial in any material respect to his ability to defend
such action, shall relieve such indemnifying party of any liability to the indemnified party under
this Section 9, but the omission so to notify the indemnifying party will not relieve him of any
liability which he may have to any indemnified party otherwise other than under this Section 9.
(d) Notwithstanding anything to the contrary herein, the indemnifying party shall not be
entitled to settle any claim, suit or proceeding unless in connection with such settlement the
indemnified party receives an unconditional release with respect to the subject matter of such
claim, suit or proceeding and such settlement does not contain any admission of fault by the
indemnified party.
(e) If the indemnification provided for in this Section 9 is unavailable to or insufficient to
hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses,
claims, damages or liabilities (or actions or proceedings in respect thereof) referred to therein,
then each indemnifying party shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in
such proportion as is appropriate to reflect the relative fault of the Company on the one hand and
the Investors on the other in connection with the statements or omissions or other
matters which resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations.
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The relative fault shall be
determined by reference to, among other things, in the case of an untrue statement, whether the
untrue statement relates to information supplied by the Company on the one hand or an Investor on
the other and the parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement. The Company and the Investors agree that it would not be
just and equitable if contribution pursuant to this subsection (e) were determined by pro rata
allocation (even if the Investors were treated as one entity for such purpose) or by any other
method of allocation which does not take into account the equitable considerations referred to
above in this subsection (e). The amount paid or payable by an indemnified party as a result of
the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in
this subsection (e) shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such action or claim. No
person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Investors’ obligations in this subsection to contribute are
several in proportion to their sales of Registrable Shares to which such loss relates and not
joint.
(f) The parties to this Agreement hereby acknowledge that they are sophisticated business
persons who were represented by counsel during the negotiations regarding the provisions hereof
including, without limitation, the provisions of this Section 9, and are fully informed regarding
said provisions. They further acknowledge that the provisions of this Section 9 fairly allocate
the risks in light of the ability of the parties to investigate the Company and its business in
order to assure that adequate disclosure is made in the Registration Statement as required by the
Securities Act and the Exchange Act.
10. REPORTS UNDER THE EXCHANGE ACT. With a view to making available to the Investors
the benefits of Rule 144 and any other rule or regulation of the SEC that may at any time permit
the Investors to sell the Purchased Shares to the public without registration, the Company agrees
to use commercially reasonable efforts: (i) to make and keep public information available as those
terms are understood in Rule 144, (ii) to file with the SEC in a timely manner all reports and
other documents required to be filed by an issuer of securities registered under the Securities Act
or the Exchange Act pursuant to Rule 144, (iii) as long as any Investor owns any Purchased Shares,
to furnish in writing upon such Investor’s request a written statement by the Company that it has
complied with the reporting requirements of Rule 144 and of the Securities Act and the Exchange
Act, and to furnish to such Investor a copy of the most recent annual or quarterly report of the
Company, and such other reports and documents so filed by the Company as may be reasonably
requested in availing such Investor of any rule or regulation of the SEC permitting the selling of
any such Purchased Shares without registration and (iv) undertake any additional actions reasonably
necessary to maintain the availability of the Registration Statement or the use of Rule 144.
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11. SUSPENSION. Notwithstanding anything in this Agreement to the contrary, in the
event (i) of any request by the SEC or any other federal or state governmental authority during the
period of effectiveness of the Registration Statement for amendments or supplements to a
Registration Statement or related prospectus or for additional information; (ii) of the
issuance by the SEC or any other federal or state governmental authority of any stop order
suspending the effectiveness of a Registration Statement or the initiation of any proceedings for
that purpose; (iii) of the receipt by the Company of any notification with respect to the
suspension of the qualification or exemption from qualification of any of the Registrable Shares
for sale in any jurisdiction or the initiation of any proceeding for such purpose; (iv) of any
event or circumstance which necessitates the making of any changes in the Registration Statement or
related prospectus, or any document incorporated or deemed to be incorporated therein by reference,
so that, in the case of the Registration Statement, it will not contain any untrue statement of a
material fact or any omission to state a material fact required to be stated therein or necessary
to make the statements therein not misleading, and that in the case of the prospectus, it will not
contain any untrue statement of a material fact or any omission to state a material fact required
to be stated therein or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; or (v) that the Board has made the good faith
determination (A) that continued use by the selling Investors of the Registration Statement for
purposes of effecting offers or sales of Registrable Shares pursuant thereto would require, under
the Securities Act, premature disclosure in the Registration Statement (or the prospectus relating
thereto) of material, nonpublic information concerning the Company, its business or prospects or
any proposed material transaction involving the Company, (B) that such premature disclosure would
be materially adverse to the Company, its business or prospects or any such proposed material
transaction or would make the successful consummation by the Company of any such material
transaction significantly less likely and (C) that it is therefore essential to suspend the use by
the Investors of such Registration Statement (and the prospectus relating thereto) for purposes of
effecting offers or sales of Registrable Shares pursuant thereto, then the Company shall furnish to
the selling Investors a certificate signed by the President or Chief Executive Officer of the
Company setting forth one or more of the above described circumstances, and the right of the
selling Investors to use the Registration Statement (and the prospectus relating thereto) shall be
suspended for a period (the “Suspension Period”) of not more than forty-five (45) days
after delivery by the Company of the certificate referred to above in this Section 11;
provided that the Company shall be entitled to no more than two such Suspension
Periods during the twelve (12) month period commencing on the Closing Date and during each
subsequent twelve (12) month period until the Mandatory Registration Termination Date (including
any extension thereto). During the Suspension Period, none of the Investors shall offer or sell
any Registrable Shares pursuant to or in reliance upon the Registration Statement (or the
prospectus relating thereto) and each of the Investors shall keep the fact of the above described
certificate and its contents confidential. The Company shall use commercially reasonable efforts
to terminate any Suspension Period as promptly as practicable.
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12. TRANSFER OF REGISTRATION RIGHTS. None of the rights of any Investor under this
Agreement shall be transferred or assigned to any person unless (i) such person is a Qualifying
Holder (as defined below), and (ii) such person agrees to become a party to, and bound by, all of
the terms and conditions of, this Agreement by duly executing and delivering to the Company an
Instrument of Adherence in the form attached as Exhibit B hereto. For purposes of this
Section 12, the term “Qualifying Holder” shall mean, with respect to any Investor, (i) any
partner or member thereof, (ii) any corporation, partnership or limited liability company
controlling, controlled by, or under common control with, such Investor or any partner or member
thereof, or (iii) any other direct transferee from such Investor of at least 25% of those
Registrable Shares held by such Investor. None of the rights of any Investor under this
Agreement shall be transferred or assigned to any person (including, without limitation, a
Qualifying Holder) that acquires Registrable Shares in the event that and to the extent that such
person is eligible to resell such Registrable Shares pursuant to Rule 144(k) of the Securities Act
or may otherwise resell such Registrable Shares pursuant to an exemption from the registration
provisions of the Securities Act. After any transfer in accordance with this Section 12, the
rights and obligations of an Investor as to any transferred Registrable Shares shall be the rights
and obligations of the Investor Permitted Transferee holding such Registrable Shares.
13. ENTIRE AGREEMENT. This Agreement and the Securities Purchase Agreement constitute
and contain the entire agreement and understanding of the parties with respect to the subject
matter hereof, and supersede any and all prior negotiations, correspondence, agreements or
understandings with respect to the subject matter hereof.
14. MISCELLANEOUS.
(a) This Agreement may not be amended, modified or terminated, and no rights or provisions may
be waived, except with the written consent of the Majority Holders and the Company.
(b) This Agreement shall be governed by and construed and enforced in accordance with the laws
of the State of New York and without regard to any conflicts of laws concepts which would apply the
substantive law of some other jurisdiction, and shall be binding upon and inure to the benefit of
the parties hereto and their respective heirs, personal representatives, successors or assigns,
provided that, to the extent applicable, the terms and conditions of Section 12 hereof are
satisfied. This Agreement shall also be binding upon and inure to the benefit of any transferee of
any of the Purchased Shares provided that the terms and conditions of Section 12 hereof are
satisfied. Notwithstanding anything in this Agreement to the contrary, if at any time any Investor
shall cease to own any Purchased Shares, all of such Investor’s rights under this Agreement shall
immediately terminate.
(c) Any notices, reports or other correspondence (hereinafter collectively referred to as
“correspondence”) required or permitted to be given hereunder shall be in writing and shall be sent
by postage prepaid first class mail, courier or telecopy or delivered by hand to the party to whom
such correspondence is required or permitted to be given hereunder, and shall be deemed sufficient
upon receipt when delivered personally or by courier, overnight delivery service or confirmed
facsimile, or three (3) business days after being deposited in the regular mail as certified or
registered mail (airmail if sent internationally) with postage prepaid, if such notice is addressed
to the party to be notified at such party’s address or facsimile number as set forth below:
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(i) All correspondence to the Company shall be addressed as follows:
| 00000 Xxxxxx Xxxxxxx Xxxxxxx Xxxxxxxxxx, Xxxxxxxx 00000 |
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| Attention: | Xxxxxx X. Xxxxxx, Ph.D. President and Chief Executive Officer |
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| Facsimile: | (000) 000-0000 | |||
with a copy to:
| Xxxxx Xxxxxxxxxx LLP 0000 Xxxxxx xx xxx Xxxxxxxx Xxx Xxxx, Xxx Xxxx 00000 |
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| Attention: | Xxxxxxxxx X. Xxxxxx, Esq. | |||
| Facsimile: | (000) 000-0000 | |||
(ii) All correspondence to any Investor shall be sent to such Investor at the address set
forth in Exhibit A.
(iii) Any entity may change the address to which correspondence to it is to be addressed by
written notification as provided for herein.
(d) The parties acknowledge and agree that in the event of any breach of this Agreement,
remedies at law may be inadequate, and each of the parties hereto shall be entitled to seek
specific performance of the obligations of the other parties hereto and such appropriate injunctive
relief as may be granted by a court of competent jurisdiction.
(e) Should any part or provision of this Agreement be held unenforceable or in conflict with
the applicable laws or regulations of any jurisdiction, the invalid or unenforceable part or
provisions shall be replaced with a provision which accomplishes, to the extent possible, the
original business purpose of such part or provision in a valid and enforceable manner, and the
remainder of this Agreement shall remain binding upon the parties hereto.
(f) This Agreement may be executed in a number of counterparts, any of which together shall
for all purposes constitute one Agreement, binding on all the parties hereto notwithstanding that
all such parties have not signed the same counterpart.
[Signature Page to Follow]
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IN WITNESS WHEREOF, the parties hereto have executed this Registration Rights Agreement as of
the date and year first above written.
| ADVANCIS PHARMACEUTICAL CORPORATION | ||||||
| By: | /s/ Xxxxxx X. Low | |||||
| Name: Xxxxxx X. Low | ||||||
| Title: Vice President, Finance and Chief Financial Officer | ||||||
THE INITIAL INVESTOR’S SIGNATURE TO THE INVESTOR QUESTIONNAIRE DATED OF EVEN DATE HEREWITH SHALL
CONSTITUTE THE INITIAL INVESTOR’S SIGNATURE TO THIS REGISTRATION RIGHTS AGREEMENT.
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