EXHIBIT 10.14
[Letterhead of Protarga, Inc.]
December 5, 2000
equity4life (Bahamas)
Xxxxxxxxxxxxxxxx 00
Xxxxxx XX-0000
Xxxxxxxxxxx
Re: Subscription Agreement, dated as of December 5, 2000, by and between
Protarga, Inc. and equity4life (Bahamas) (the "SUBSCRIPTION AGREEMENT")
Dear Sir:
This letter will confirm our agreement that the following language is
hereby added to the Subscription Agreement, with all capitalized terms used
without definition having the respective meanings assigned to them in the
Subscription Agreement:
"15. PIGGYBACK REGISTRATION RIGHTS. (a) PIGGYBACK REGISTRATION. If the
Company, at any time during the two (2) years following the effective date of
the Company's underwritten initial public offering of its common stock, proposes
for any reason to register any shares of its common stock (the "PRIMARY SHARES")
under the Act (other than on Form S-4 or Form S-8 promulgated under the Act or
any successor forms thereto), then it shall promptly give written notice
(describing such Primary Shares and specifying the form and manner and the other
relevant facts involved in such proposed registration (including, without
limitation, the price (net of any underwriting commissions, discounts and the
like) at which such Primary Shares are reasonably expected to be sold)) to the
Subscriber of its intention to so register such Primary Shares and, upon the
written request, delivered within fifteen (15) days after the date of delivery
of any such notice by the Company, of the Subscriber to include in such
registration shares of common stock issuable upon conversion of the Shares (the
"Registrable Securities") (which request shall specify the number of Registrable
Securities proposed to be included in such registration), the Company shall use
its commercially reasonable efforts to cause all such Registrable Securities to
be included in such registration using the same underwriter or underwriters on
the same terms and conditions as the Primary Shares being sold in such
registration; PROVIDED, HOWEVER, that if the managing underwriter advises the
Company that in their opinion the inclusion of all Registrable Securities
proposed to be included in such registration would interfere with or adversely
affect the successful marketing (including pricing) of either the Primary Shares
proposed to be registered by the Company or any shares proposed to be registered
by any stockholder of the Company, then the number of Primary Shares and
Registrable Securities proposed to be included in such registration shall be
included in the following order: (i) FIRST, the Primary Shares; (ii) SECOND, to
the extent, if any, that the managing underwriter advises would not
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interfere with or adversely affect the marketing (including pricing) of the
Primary Shares proposed to be registered by the Company, the Registrable
Securities proposed to be sold by the Subscriber and shares proposed to be sold
by any other stockholders of the Company, in each case, PRO RATA among them
based upon the number of Registrable Securities (or other shares) requested by
such Subscriber or other selling stockholder to be included in such
registration. Notwithstanding anything in this Agreement to the contrary, the
Company will not include Registrable Securities in any registration statement
filed by the Company hereunder if in the opinion of counsel to the Company the
sale of the Registrable Securities in the manner contemplated by the holders of
such Registrable Securities may be effected without registration regardless of
the identity or status of the buyer(s) of such Registrable Securities. Also, the
Company will not include Registrable Securities in any registration statement
filed by the Company hereunder to cover Registrable Securities that are already
registered pursuant to a previous registration statement that is effective and
available for use by the holders of such Registrable Securities to effect sales
thereof at such time. Nothing in this Section 15(a) shall be construed as
limiting the Company's ability to grant registration rights after the date
hereof. In the event that the Company grants to any investor or investors
registration rights which are more beneficial than those granted to the
Subscriber hereunder, Subscriber shall be entitled to participate in such more
beneficial registration rights on a pro rata basis together with such investor
or investors.
(b) EXPENSES. All underwriting discounts and selling commissions applicable
to the Registrable Securities to be sold by the Subscriber shall be borne by the
Subscriber, in proportion to the number of Registrable Securities sold by such
Subscriber. The Company shall pay all reasonable fees and expenses (including
without limitation the reasonable fees and expenses of counsel retained by the
Subscriber) in connection with two (2) registrations hereunder.
(c) INDEMNIFICATION.
(i) In connection with any registration of any Registrable Securities
under the Act pursuant to this Agreement, the Company shall indemnify and hold
harmless the Subscriber, and its directors and officers, each underwriter,
broker or any other person acting on behalf of such selling Subscriber and each
other person, if any, who controls any of the foregoing persons within the
meaning of the Act, (all of the foregoing, collectively, the "INDEMNIFIED
PERSONS") against any losses, claims, damages or liabilities, joint or several
(or actions in respect thereof) (including amounts paid in connection with
investigative proceedings (commenced or threatened) and amounts paid in
settlement of claims, if such settlement is made with the Company's prior
written consent, which shall not be unreasonably withheld or delayed), and any
legal or other expenses reasonably incurred by any Indemnified Person in
connection with investigating, defending against, or settling any of the
foregoing (all of the foregoing, collectively, the "INDEMNIFIABLE LOSSES"), to
which any of the Indemnified Persons may become subject under the Act or
otherwise, but only insofar as such Indemnifiable Losses arise out of or are
based upon an untrue statement or alleged untrue statement of a material fact
contained in the registration statement under which such Registrable
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Securities were registered under the Act, any preliminary prospectus or
final prospectus contained therein or otherwise filed with the Securities and
Exchange Commission (the "COMMISSION"), any amendment or supplement thereto or
any document incident to registration or qualification of any Registrable
Securities, 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 or, with respect to any prospectus,
necessary to make the statements therein in light of the circumstances under
which they were made not misleading, or any violation by the Company of the Act
or state securities or blue sky laws applicable to the Company and relating to
action or inaction required of the Company in connection with such registration
or qualification under such state securities or blue sky laws; and shall
reimburse such Indemnified Person for any legal or other expenses reasonably
incurred by any of them in connection with investigating, defending against, or
settling any such Indemnifiable Losses; PROVIDED, HOWEVER, that the Company
shall not be liable to any Indemnified Person in any such case to the extent
that any such Indemnifiable Losses (A) arise out of or are based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
said registration statement, preliminary prospectus, final prospectus,
amendment, supplement or document incident to registration or qualification of
any Registrable Securities in reliance upon and in conformity with written
information furnished to the Company by the Subscriber (or its representative)
or underwriter specifically for use in the preparation thereof, or (B) result
from the fact that any underwriter sold Registrable Securities to a person or
entity to whom there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the final prospectus, as amended and
supplemented (as the case may be).
(ii) In connection with any registration of Registrable Securities under
the Act pursuant to this Agreement, the Subscriber selling Registrable
Securities shall indemnify and hold harmless the Company, each director and
officer of the Company, each underwriter, broker or other person acting on
behalf of such Subscriber, each person who controls any of the foregoing persons
within the meaning of the Act, and each other seller of shares under such
registration statement and each officer, director, partner and employee of such
seller, against any Indemnifiable Losses (in the same manner and to the same
extent as set forth in Section 15(c)(i)) arising out of or based upon any
statement or omission from such registration statement, any preliminary
prospectus or final prospectus contained therein or otherwise filed with the
Commission, any amendment or supplement thereto or any document incident to
registration or qualification of any Registrable Securities, if such statement
or omission was made in reliance upon and in conformity with written information
furnished to the Company or such underwriter by such Subscriber (or its
representatives) specifically for use in connection with the preparation of such
registration statement, preliminary prospectus, final prospectus, amendment,
supplement or document.
(iii) Promptly after receipt by an indemnified party under this Section
15 of notice of the commencement of any action, suit, proceeding, investigation
or threat thereof made in writing for which such indemnified party may make a
claim under this Section 15, such indemnified party shall deliver to the
indemnifying party a
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written notice of the commencement thereof and the indemnifying party
shall have the right to participate in, and, to the extent the indemnifying
party so desires, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party; provided, however, that an indemnified
party shall have the right to retain its own counsel at its own expense (except
as specifically provided below). The failure to deliver written notice to the
indemnifying party within a reasonable time following the commencement of any
such action shall not relieve such indemnifying party of any liability to the
indemnified party under this Section 15 except, if and to the extent that the
indemnifying party is actually prejudiced thereby, but in no event shall it
relieve the indemnifying party of any liability that it may have to any
indemnified party otherwise than pursuant to this Section 15. Any fees and
expenses incurred by the indemnified party (including any fees and expenses
incurred in connection with investigating or preparing to defend such action or
proceeding) shall be paid to the indemnified party, as incurred, within sixty
(60) days of written notice thereof to the indemnifying party (regardless of
whether it is ultimately determined that an indemnified party is not entitled to
indemnification hereunder, but in such event such amounts shall be immediately
refunded). Any such indemnified party shall have the right to employ separate
counsel in any such action, claim or proceeding and to participate in the
defense thereof, but the fees and expenses of such counsel shall be the expenses
of such indemnified party unless (i) the indemnifying party has agreed to pay
such fees and expenses or (ii) the indemnifying party shall have failed to
promptly assume the defense of such action, claim or proceeding or (iii) the
named parties to any such action, claim or proceeding (including any impleaded
parties) include both such indemnified party and the indemnifying party, and
such indemnified party shall have been advised by counsel that there may be one
or more legal defenses available to it which are different from or in addition
to those available to the indemnifying party and that the assertion of such
defenses would create a conflict of interest such that counsel employed by the
indemnifying party could not faithfully represent the indemnified party, it
being understood, however, that the indemnifying party shall not, in connection
with any one such action, claim or proceeding or separate but substantially
similar or related actions, claims or proceedings in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys
(together with appropriate local counsel) at any time for all such indemnified
parties. No indemnifying party shall be liable to an indemnified party for any
settlement of any action, proceeding or claim without the written consent of the
indemnifying party, which consent shall not be unreasonably withheld."
[SIGNATURES ON FOLLOWING PAGE.]
Very truly yours,
PROTARGA, INC.
By: /s/ Xxxxxx Xxxxxx IV
-----------------------
Its: Chief Financial Officer
AGREED:
EQUITY4LIFE (BAHAMAS)
By: /s/ Xxxx Merkli
--------------------------
Its: Director
