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EXHIBIT 4.4
THIRD AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
This Third Amended and Restated Registration Rights Agreement (the
"Agreement") is made as of this ____ day of _______, 1997 by and among Transcend
Therapeutics, Inc., a Delaware corporation ("Transcend"), and The Venture
Capital Fund of New England III, L.P., Advent International Investors II Limited
Partnership, Advent Performance Materials Limited Partnership, Global Private
Equity II Limited Partnership, Rovent II Limited Partnership, Xxxx X. Xxxxxxx,
Xxxxxxx Xxx, Sprout Capital VI, L.P., DLJ Capital Corporation, Xxxxx X. Xxxxxxx,
Xxxxx X. Xxxxxxx, Xxxxxxx X. Xxxx, Xxxxxx X. Xxxxx and Xxxx X. Xxxxxx
(collectively, the "Purchasers"), Clinical Nutrition Holdings, Inc. ("Nestle"),
Xxxxxx Healthcare Corporation ("Xxxxxx"), Clintec International, Inc.
("Clintec"), the Massachusetts Institute of Technology ("MIT") and Boehringer
Ingelheim International GmbH, a limited liability company organized under the
laws of the Federal Republic of Germany ("BI"). The Purchasers, Nestle, Baxter,
Clintec, MIT and BI are referred to collectively herein as the "Holders."
RECITALS
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WHEREAS, Holders other than BI have certain rights with respect to the
registration of their Registrable Shares (as defined below) under the Securities
Act (as defined below) upon the terms and conditions set forth in the Second
Amended and Restated Registration Rights Agreement dated as of August 21, 1996
by and among Transcend and such Holders (the "Second Registration Rights
Agreement"); and
WHEREAS, in connection with the Company's February 1997 $1,039,000 bridge
financing, the Company intends to issue warrants (the "1997 Warrants") to
purchase shares of its Common Stock, $.01 par value per share (the "1997 Warrant
Shares"), to the holders of the Company's Non-Convertible Preferred Stock (the
"1997 Warrantholders"); and
WHEREAS, BI intends to is purchase shares of Transcend's capital stock (the
"BI PURCHASE") pursuant to the terms of a Stock Purchase Agreement (the "Stock
Purchase Agreement") by and between Transcend and BI; and
WHEREAS, such shares may be shares of Transcend's Common Stock, $.01 par
value per share ("Common Stock"), or shares of Transcend's Series D Convertible
Preferred Stock, $.01 par value per share ("Series D Preferred Stock"). The
shares actually issued to BI in the BI Purchase, as determined in accordance
with the Stock Purchase Agreement, are referred to herein as the "Purchased
Shares;" and
WHEREAS, the parties wish to provide registration rights to BI and the 1997
Warrantholders with respect to the Purchased Shares and the shares of Common
Stock issuable upon exercise of the 1997 Warrants; and
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WHEREAS, Section 18 of the Second Registration Rights Agreement provides
that such agreement may be amended by Transcend and the Holders of at least 75%
of the Registrable Shares (collectively, the "Amending Holders"); and
WHEREAS, each of the parties hereto desires to set forth in a single
document such registration and certain other rights of the Holders;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Transcend, BI and the Amending
Holders agree as follows:
1. TERMINATION OF SECOND REGISTRATION RIGHTS AGREEMENT. The parties
hereto hereby acknowledge and agree that the Second Registration Rights
Agreement is hereby terminated and amended, restated and superseded in all
respects by this Agreement.
2. CERTAIN DEFINITIONS. As used in this Agreement, the following terms
shall have the following respective meanings:
"COMMISSION" means the Securities and Exchange Commission, or any
other Federal agency at the time administering the Securities Act.
"Common Registrable Shares" means (i) the shares of Common Stock held
by Nestle and Clintec as successors to Clintec Nutrition Company pursuant to the
Partnership Distribution Agreement dated September 30, 1996, (ii) the MIT
Warrant Shares, (iii) if shares of Common Stock are issued to BI pursuant to the
BI Purchase, such shares of Common Stock, (iv) the 1997 Warrant Shares, and (v)
any other shares of Common Stock of Transcend issued in respect of such shares
(because of stock splits, stock dividends, reclassifications, recapitalizations,
or similar events).
"COMMON STOCKHOLDER" means each of the 1997 Warrantholders, Nestle,
Clintec, MIT and, if shares of Common Stock are issued to BI in the BI Purchase,
BI and their successors or assigns as permitted by Section 15 hereof.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
or any similar United States statute, and the rules and regulations of the
Commission issued under such act, as they each may, from time to time, be in
effect.
"MIT WARRANT" means the warrant dated October 26, 1994 to purchase
5,000 shares of Transcend's Common Stock and held by MIT.
"MIT WARRANT SHARES" means the shares of Common Stock reserved by
Transcend for issuance, or actually issued, upon exercise of the MIT Warrant.
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"Preferred Registrable Shares" means:
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(i) the shares of Common Stock issued or issuable upon
conversion of Transcend's Series A Convertible Preferred Stock, $.01 par value
per share (the "Series A Preferred Stock"), issued (a) pursuant to the Series A
Convertible Stock and Warrant Purchase Agreement (the "Series A Stock Purchase
Agreement") dated as of April 5, 1994, as amended, by and among Transcend and
the Purchasers (as defined therein), (b) pursuant to the Warrantholder Agreement
dated of August 21, 1996 by and among Transcend and the Warrantholders (as
defined therein), and (c) as payment of interest on, or upon conversion of the
principal amount of, certain Secured Convertible Term Notes due 1997 (the
"Notes") (none of which are currently outstanding);
(ii) the shares of Common Stock issued or issuable upon the
conversion of Transcend's Series B Convertible Preferred Stock, $.01 par value
per share (the "Series B Preferred Stock"), issued as payment of interest on,
and upon conversion of the principal amount of, certain of the Notes;
(iii) the shares of Common Stock issued or issuable upon
conversion of Transcend's Series C Preferred Stock issued pursuant to the Series
C Stock Purchase Agreement dated August 21, 1996 by and among Transcend and the
Purchasers (as defined therein);
(iv) if shares of Series D Preferred Stock are issued to BI in
the BI Purchase, shares of Common Stock issued or issuable upon conversion of
such Series D Preferred Stock; and
(v) any other shares of Common Stock of Transcend issued in
respect of such shares (because of stock splits, stock dividends,
reclassifications, recapitalizations, or similar events). Wherever reference is
made in this Agreement to a request or consent of holders of a certain
percentage of the Preferred Registrable Shares, or to a number or percentage of
Preferred Registrable Shares held by a Series A Stockholder, a Series B
Stockholder, Series C Stockholder or Series D Stockholder (all as defined
below), such reference shall be intended to refer to shares of Common Stock
issuable upon conversion of the shares of Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock and Series D Preferred Stock even if
such conversion has not yet been effected.
"PREFERRED STOCKHOLDER" means all Series A Stockholders, Series B
Stockholders, Series C Stockholders and, if shares of Series D Preferred Stock
are issued to BI in the BI Purchase, BI and its successors or assigns.
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"REGISTRATION STATEMENT" means a registration statement filed by
Transcend with the Commission for a public offering and sale of securities of
Transcend (other than a registration statement on Form S-8 or Form S-4, or their
successors, or any other form for a limited purpose, or any registration
statement covering only securities proposed to be issued in exchange for
securities or assets of another corporation).
"REGISTRATION EXPENSES" means the expenses described in Section 7.
"REGISTRABLE SHARES" means Common Registrable Shares and Preferred
Registrable Shares.
"SECURITIES ACT" means the Securities Act of 1933, as amended, or any
similar United States statute, and the rules and regulations of the Commission
issued under such act, as they each may, from time to time, be in effect.
"SERIES A STOCKHOLDER" means a Holder of shares of Series A Preferred
Stock and its successors or assigns as permitted by Section 15 hereof.
"SERIES B STOCKHOLDER" means a Holder of shares of Series B Preferred
Stock and its successors or assigns as permitted by Section 15 hereof.
"SERIES C STOCKHOLDER" means a Holder of shares of Series C Preferred
Stock and its successors or assigns as permitted by Section 15 hereof.
"SERIES D STOCKHOLDER" means, if shares of Series D Preferred Stock
are issued to BI in the BI Purchase, BI and its successors or assigns as
permitted by Section 15 hereof.
"STOCKHOLDERS" means all Preferred Stockholders and Common
Stockholders; "STOCKHOLDER" means any Preferred Stockholder or Common
Stockholder.
3. Sale or Transfer of Shares: Legend.
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3.1. The Registrable Shares shall not be sold or transferred unless
either (i) they first shall have been registered under the Securities Act, or
(ii) Transcend first shall have been furnished with an opinion of legal counsel,
reasonably satisfactory to Transcend, to the effect that such sale or transfer
is exempt from the registration requirements of the Securities Act.
3.2. Each certificate representing the Registrable Shares shall bear
a legend substantially in the following form:
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The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Act"), or applicable state securities laws and may not be
transferred or otherwise disposed of unless and until such
shares are registered under the Act and such laws or (1)
registration under applicable state securities is not
required and (2) an opinion of counsel satisfactory to
Transcend is furnished to Transcend, to the effect that such
registration under the Act is not required."
The foregoing legend shall be removed from the certificates representing
any Registrable Shares at the request of the holder thereof, at such time as
they become registered under the Securities Act or eligible for resale pursuant
to Rule 144(k) under the Securities Act.
4. Required Registrations.
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4.1. Subject to the last sentence of Section 4.3, within 90 days
following written notice from a Preferred Stockholder or Stockholders holding
not less than thirty-five percent (35%) of the then outstanding Preferred
Registrable Shares, Transcend shall use its best efforts to effect the
registration of such Preferred Registrable Shares on Form S-1 or Form S-2 (or
any successor forms) or other appropriate Registration Statement designated by
such Preferred Stockholder or Stockholders. Subject to the last sentence of
Section 4.3, within 90 days following written notice from a Common Stockholder
or Stockholders holding not less than thirty-five percent (35%) of the then
outstanding Common Registrable Shares, Transcend shall use its best efforts to
effect the registration of such Common Registrable Shares on Form S-1 or Form
S-2 (or any successor forms) or other appropriate Registration Statement
designated by such Common Stockholder or Stockholders. Any demand registration
pursuant to this Section 4.1 must be underwritten on a firm commitment basis by
an investment banker of recognized national or regional standing in the United
States. The right of other Stockholders to participate in such underwritten
registration shall be conditioned on such Stockholders' participation in such
underwriting upon the same terms and conditions. Upon receipt of any such
request, Transcend shall promptly give written notice of such proposed
registration to all Stockholders. Such Stockholders shall have the right, by
giving written notice to Transcend within 30 days after Transcend provides its
notice, to elect to have included in such registration such of their Registrable
Shares as such Stockholders may request in such notice of election, subject to
the approval of the underwriter managing the offering. Thereupon, Transcend
shall, as expeditiously as possible, use its best efforts to effect the
registration, on Form S-1 or Form S-2 (or any successor form) or such other
appropriate Registration Statement designated by such Stockholder or
Stockholders, of all Registrable Shares which Transcend has been requested to so
register.
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4.2. At any time after Transcend becomes eligible to file a
Registration Statement on Form S-3 (or any successor form relating to secondary
offerings), (i) a Preferred Stockholder or Stockholders holding not less than
thirty-five percent (35 %) of the then outstanding Preferred Registrable Shares
may request Transcend, in writing, to effect registration on Form S-3 (or such
successor form), of Preferred Registrable Shares or (ii) a Common Stockholder or
Stockholders holding not less than thirty-five percent (35 %) of the then
outstanding Common Registrable Shares may request Transcend, in writing, to
effect registration on Form S-3 (or such successor form), of Common Registrable
Shares. Upon receipt of either or both such requests, Transcend shall promptly
give written notice of such proposed registration(s) to all Stockholders. Such
Stockholders shall have the right, by giving written notice to Transcend within
thirty days after Transcend provides its notice, to elect to have included in
such registration such of their Registrable Shares as such Stockholders may
request in such notice of election, subject to the approval of the underwriter
managing the offering. Thereupon, Transcend shall, as expeditiously as possible,
use its best efforts to effect the registration, on Form S-3 (or such successor
form), of all Registrable Shares which Transcend has been requested to so
register.
4.3. Transcend shall not be required to effect more than one
registration pursuant to the first sentence or second sentence of Section 4.1 or
more than one registration pursuant to clauses (i) or (ii) of Section 4.2. In
addition, Transcend shall not be required to effect any registration (other than
on Form S-3 or any successor form relating to secondary offerings, if available)
within six months after the effective date of any other Registration Statement
of Transcend.
4.4. A registration pursuant to the first or second sentence of
Section 4.1 shall not count for purposes of the limitation set forth in Section
4.3 (i) unless the offering becomes effective and the requesting Stockholders
are able to sell at least 75% of the Registrable Shares sought to be included in
the Registration or (ii) if Transcend is engaged or has fixed plans within 30
days of the time of the request to engage, in a registered public offering as to
which the Stockholders may include Registerable Shares pursuant to Section 4.5.
In the event of a clause (ii) of this Section 4.4 occurrence, Transcend may at
its option direct that such request be delayed for a period of six months from
the effective date of such offering, any such right to delay a request to be
exercised by Transcend not more than once in any two-year period.
4.5 At any time after _________ ___, 1998, if Transcend is then
eligible to file a Registration Statement on Form S-3 (or any successor form
relating to secondary offerings), within 30 days following a written request
from BI that Transcend effect registration of Registrable Shares issued in the
BI Purchase, Transcend shall file a registration statement on Form S-3 (or any
successor form) and use its best efforts to effect the registration on Form S-3
(or such successor form) of such Registrable Shares as promptly thereafter as
possible. Upon the effectiveness of a registration statement filed hereunder,
Transcend shall prepare and file with the Commission such amendments and
supplements to such registration statement and
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the prospectus used in connection therewith as may be necessary to keep such
registration statement effective and to comply with the provisions of the
Securities Act with the respect to the resale of the Registrable Shares covered
by such registration statement until the second anniversary of the closing of
the BI Purchase.
5. Incidental Registration.
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5.1. Whenever Transcend proposes to file a Registration Statement
(other than pursuant to Section 4.1 and 4.2 above), prior to such filing it
shall give written notice to all Stockholders of its intention to do so, and
upon the written request of a Stockholder or Stockholders given within 30 days
after Transcend provides such notice (which request shall state the intended
method of disposition of such Registrable Shares), Transcend shall use its best
efforts to cause all Preferred Registrable Shares which Transcend has been
requested to register by the Preferred Stockholders and all Common Registrable
Shares which Transcend has been requested to register by the Common Stockholders
to be registered under the Securities Act to the extent necessary to permit
their sale or other disposition in accordance with the intended methods of
distribution specified in the request of such Stockholder(s); provided that
Transcend shall have the right to postpone or withdraw any registration effected
pursuant to this Section 5 without obligation to any Stockholder.
5.2. In connection with any offering under Section 4.1 involving an
underwriting, Transcend shall not be required to include any Registrable Shares
in such underwriting unless the holders thereof accept the terms of the
underwriting as agreed upon between Transcend and the underwriters selected by
it, and then only in such quantity as will not, in the opinion of the
underwriters, jeopardize the success of the offering by Transcend. If in the
opinion of the managing underwriter the registration of all, or part of, the
Registrable Shares which the holders have requested to be included would
materially and adversely affect such public offering, then Transcend shall be
required to include in the underwriting only that number of Registrable Shares,
if any, which the managing underwriter believes may be sold without causing such
adverse effect. In the event of such a reduction in the number of shares to be
included in the underwriting, all holders of Registrable Shares who have
requested registration shall participate in the underwriting pro rata based upon
their total ownership of Registrable Shares (or in any other proportion as
agreed upon by such holders) and if any such holder would thus be entitled to
include more shares than such holder requested to be registered, the excess
shall be allocated among such other requesting holders pro rata based on their
ownership of Registrable Shares. No other securities requested to be included in
a registration for the account of anyone other than Transcend or the
Stockholders shall be included in a registration unless all Registrable Shares
requested to be included in such registration are so included.
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6. Registration Procedures.
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6.1. If and whenever Transcend is required by the provisions of this
Agreement to use its best efforts to effect the registration of any of the
Registrable Shares under the Securities Act, Transcend shall:
(a) file with the Commission a Registration Statement with
respect to such Registrable Shares and use its best efforts to cause that
Registration Statement to become and remain effective;
(b) as expeditiously as possible prepare and file with the
Commission any amendments and supplements to the Registration Statement and the
prospectus included in the Registration Statement as may be necessary to keep
the Registration Statement effective for a period of not less than 90 days from
the effective date;
(c) as expeditiously as possible furnish to each selling
Stockholder such reasonable numbers of copies of the prospectus, including a
preliminary prospectus, in conformity with the requirements of the Securities
Act, and such other documents as the selling Stockholder may reasonably request
in order to facilitate the public sale or other disposition of the Registrable
Shares owned by the selling Stockholder; and
(d) as expeditiously as possible use its best efforts to
register or qualify the Registrable Shares covered by the Registration Statement
under the securities or Blue Sky laws of such states as the selling Stockholder
shall reasonably request, and do any and all other acts and things that may be
necessary or desirable to enable the selling Stockholder to consummate the
public sale or other disposition in such jurisdictions of the Registrable Shares
owned by the selling Stockholder; PROVIDED, HOWEVER, that Transcend shall not be
required in connection with this paragraph (d) to qualify as a foreign
corporation in any jurisdiction.
6.2. If Transcend has delivered preliminary or final prospectuses to
the selling Stockholder and after having done so the prospectus is amended to
comply with the requirements of the Securities Act, Transcend shall promptly
notify the selling Stockholder and, if requested, the selling Stockholder shall
immediately cease making offers of Registrable Shares and shall return all
prospectuses to Transcend. Transcend shall promptly provide the selling
Stockholder with revised prospectuses and, following receipt of the revised
prospectuses, the selling Stockholder shall be free to resume making offers of
the Registrable Shares.
7. ALLOCATION OF EXPENSES. Transcend shall pay the Registration Expenses
(as defined below) for (i) the first demand registration on Form S-1 or Form S-2
(or any successor forms) or Form S-3 (or any successor form) requested by any of
the
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Preferred Stockholders (or Stockholders holding the requisite percentage of
Preferred Registrable Shares) pursuant to Section 4.1 or 4.2 hereof, (ii) the
first demand registration on Forms S-1 or S-2 (or any successor forms) or Form
S-3 (or any successor form) requested by any of the Common Stockholders pursuant
to Section 4.1 or 4.2 hereof, and (iii) one registration on Form S-3 requested
by BI pursuant to Section 4.5 hereof. If a registration on a Registration
Statement other than Form S-3 (or any successor form) requested by the
Stockholders pursuant to Section 4.1 is withdrawn at the request of the
Stockholders requesting it (other than as a result of information concerning the
business or financial condition of Transcend that is made known to the
Stockholders after the date on which such registration was requested) and if the
requesting Stockholders holding a majority of the Registrable Shares requested
to be included in such registration elect not to have such registration counted
as a registration requested under Section 4.1, the requesting Stockholders shall
pay the Registration Expenses of such registration pro rata in accordance with
the number of their Registrable Shares which were to have been included in such
registration. For purposes of this Section, the term "Registration Expenses"
shall mean all expenses incurred by Transcend in complying with Sections 4 and 5
of this Agreement, including, without limitation, all registration and filing
fees, exchange listing fees, printing expenses, fees and disbursements of
counsel for Transcend and one counsel for the selling Stockholders,
out-of-pocket expenses of Transcend and the underwriters, state Blue Sky fees
and expenses, if any, and the expense of any special audits incident to or
required by any such registration, but excluding underwriting discount and
selling commissions and fees of more than one counsel for the selling
Stockholders. Such underwriting discounts and selling commissions shall be borne
pro rata by the selling Stockholders in accordance with the number of their
Registrable Shares included in such registration.
8. Indemnification.
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8.1. In the event of any registration of any of the Registrable
Shares under the Securities Act pursuant to this Agreement, then to the extent
permitted by law Transcend shall indemnify and hold harmless the seller of such
Registrable Shares, each underwriter of such Registrable Shares and each other
person, if any, who controls such seller or underwriter within the meaning of
the Securities Act or the Exchange Act against any losses, claims, damages or
liabilities, joint or several, to which such seller, underwriter or controlling
person may become subject under the Securities Act, the Exchange Act, state
securities laws or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any Registration Statement under which such Registrable Shares were registered
under the Securities Act, any preliminary prospectus or final prospectus
contained in the Registration Statement, or any amendment or supplement to such
Registration Statement, or arise out of or are based upon the omission or
alleged omission to state a material fact required to be stated therein or
necessary to make
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the statements therein not misleading; and Transcend shall reimburse such
seller, underwriter and each such controlling person for any legal or any other
expenses reasonably incurred by such seller, underwriter or controlling person
in connection with investigating or defending any such loss, claim, damage,
liability or action; PROVIDED, HOWEVER, that Transcend shall not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any untrue statement or omission made in such
Registration Statement, preliminary prospectus or prospectus, or any such
amendment or supplement, in reliance upon and in conformity with information
furnished to Transcend, in writing, by or on behalf of such seller, underwriter
or controlling person specifically for use in the preparation thereof.
8.2. In the event of any registration of any of the Registrable
Shares under the Securities Act pursuant to this Agreement, then to the extent
permitted by law, each seller of Registrable Shares severally and not jointly,
shall indemnify and hold harmless Transcend, each of its directors and officers
and each underwriter (if any) and each person, if any, who controls Transcend or
any such underwriter within the meaning of the Securities Act or the Exchange
Act, against any losses, claims, damages or liabilities joint or several, to
which Transcend, such directors and officers, underwriter or controlling person
may become subject under the Securities Act, Exchange Act, state securities laws
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement under which such Registrable Shares were registered under the
Securities Act, any preliminary prospectus or final prospectus contained in the
Registration Statement, or any amendment or supplement to the Registration
Statement, or arise out of or are based upon any omission or alleged omission to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, if the statement or omission was made solely
in reliance upon and in conformity with information furnished in writing to
Transcend by or on behalf of such seller, specifically for use in connection
with the preparation of such Registration Statement, prospectus, amendment or
supplement; PROVIDED, HOWEVER, that the obligations of such Stockholder
hereunder shall be limited to an amount equal to the proceeds to each
Stockholder of Registrable Shares sold as contemplated herein.
8.3. Indemnification of an underwriter pursuant to this Section 8
shall not be interpreted as providing relief of such underwriter from any or all
of its due diligence obligations. Further, an underwriter shall not be entitled
to indemnification pursuant to this subsection in the event that it fails to
deliver to any selling Stockholder any preliminary or final or revised
prospectus, as required by the Rules and Regulations of the Commission. Finally,
no indemnification shall be provided pursuant to this subsection in the event
that any error in a preliminary prospectus of Transcend is subsequently
corrected in the final prospectus of Transcend for a
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particular offering, and such final prospectus is delivered to all purchasers in
the offering prior to the date of purchase of the securities.
8.4. Each party entitled to indemnification under this Section 8
(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 be unreasonably
withheld); 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 8. The Indemnified Party may participate in such
defense at such party's expense; PROVIDED, HOWEVER, that the Indemnifying Party
shall pay such expense if representation of such Indemnified Party by the
counsel retained by the Indemnifying Party would be inappropriate due to actual
or potential differing interests between the Indemnified Party and any other
party represented by such counsel in such proceeding. 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 that does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such Indemnified Party of a release from all
liability in respect of such claim or litigation, and no Indemnified Party shall
consent to entry of any judgment or settle such claim or litigation without the
prior written consent of the Indemnifying Party.
8.5. CONTRIBUTION. If the indemnification provided for in Sections
8.1 through 8.4 is held by a court of competent jurisdiction to be unavailable
to an Indemnified Party with respect to any losses, claims, damages or
liabilities referred to herein, the Indemnifying Party, in lieu of indemnifying
such Indemnified Party thereunder, shall to the extent permitted by applicable
law contribute to the amount paid or payable by such Indemnified Party as a
result of such loss, claim, damage or liability in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party on the one
hand and of the Indemnified Party on the other in connection with the
violation(s) that resulted in such loss, claim, damage or liability, as well as
any other relevant equitable considerations. The relative fault of the
Indemnifying Party and of the Indemnified Party shall be determined by a court
of law by reference to, among other things, whether the untrue or alleged untrue
statement of material fact or the omission to state a material fact relates to
information supplied by the Indemnifying Party or by the Indemnified Party and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
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8.6. INDEMNIFICATION WITH RESPECT TO UNDERWRITTEN OFFERING. In the
event that Registrable Shares are sold pursuant to a Registration Statement in
an underwritten offering pursuant to Subsection 4.1, Transcend agrees to enter
into an underwriting agreement containing customary representations and
warranties with respect to the business and operations of an issuer of the
securities being registered and customary covenants and agreements to be
performed by such issuer, including without limitation customary provisions with
respect to indemnification by Transcend of the underwriters of such offering.
9. INFORMATION BY HOLDER. Each holder of Registrable Shares included in
any registration shall furnish to Transcend such information regarding such
holder and the distribution proposed by such holder as Transcend may request in
writing and as shall be required in connection with any registration,
qualification or compliance referred to in this Agreement.
10. RULE 144 REQUIREMENTS. With a view to making available to the
Stockholders the benefits of Rule 144 promulgated under the Securities Act and
any other rule or regulation of the Commission that may at any time permit a
Stockholder to sell securities of Transcend to the public without registration,
Transcend 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 any time
after it has become subject to the reporting requirements of the Exchange Act);
(b) file with the Commission in a timely manner all reports and
other documents required of Transcend under the Securities Act and the Exchange
Act (at any time after it has become subject to such reporting requirements);
and
(c) furnish to any holder of Registrable Shares upon request a
written statement by Transcend as to its compliance with the reporting
requirements of said Rule 144 (at any time after 90 days after the closing of
the first sale of securities by Transcend pursuant to a Registration Statement),
and of the Securities Act and the Exchange Act (at any time after it has become
subject to such reporting requirements), a copy of the most recent annual or
quarterly report of Transcend, and such other reports and documents of Transcend
as such holder may reasonably request to avail itself of any similar rule or
regulation of the Commission allowing it to sell any such securities without
registration.
11. SELECTION OF UNDERWRITER. In the case of any registration effected
pursuant to Sections 4.1 or 4.2, the requesting Stockholders shall have the
right to designate the managing underwriter, subject to the approval of
Transcend, which approval shall not be unreasonably withheld or delayed.
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12. RESTRICTIONS ON OTHER AGREEMENTS. Transcend will not enter into any
agreement with any party which by its terms grants any right relating to the
registration of its Common Stock superior to or on a parity with the rights
granted to the Purchasers, Clintec, MIT and BI pursuant to this Agreement.
13. MERGERS. ETC. Transcend shall not, directly or indirectly, enter into
any merger, consolidation or reorganization in which Transcend shall not be
surviving corporation unless the proposed surviving corporation shall, prior to
such merger, consolidation or reorganization, agree in writing to assume the
obligations of Transcend under this Agreement, and for that purpose references
hereunder to "Registrable Shares" shall be deemed to be references to the
securities which the Stockholders would be entitled to receive in exchange for
Registrable Shares under any such merger, consolidation or reorganization;
PROVIDED, HOWEVER, that the provisions of this Section 13 shall not apply in the
event of any merger, consolidation or reorganization in which Transcend is not
the surviving corporation if all Stockholders are entitled to receive in
exchange for their Registrable Shares consideration consisting solely of (i)
cash, (ii) securities of the acquiring corporation which may be immediately sold
to the public without registration under the Securities Act, or (iii) securities
of the acquiring corporation which the acquiring corporation has agreed to
register within 90 days of completion of the transaction for resale to the
public pursuant to the Securities Act.
14. TERMINATION. All of Transcend's obligations to register Registerable
Shares under this Agreement shall terminate on September 30, 2005.
15. Transfer of Rights.
------------------
15.1. The rights granted to a Stockholder under this Agreement may be
transferred by such Stockholder to another person or entity that is then a
Stockholder, or to any person or entity acquiring at least 50,000 Registrable
Shares (after giving effect to the one-for-five reverse stock split of
Transcend's Common Stock effected February 7, 1997, as adjusted for subsequent
stock splits, stock dividends, recapitalization or similar events).
15.2. Any transferee (other than a Purchaser, Nestle, Clintec or BI)
to whom rights under this Agreement are transferred shall, as a condition to
such transfer, deliver to Transcend a written instrument by which such
transferee identifies itself, gives Transcend notice of the transfer of such
rights, indicates the Registrable Shares owned by it and agrees to be bound by
the obligations imposed upon Stockholders under this Agreement.
15.3. A transferee to whom rights are transferred pursuant to this
Section 6 may not again transfer such rights to any other person or entity,
other than as provided in paragraphs (a) or (b) above.
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15.4. Notwithstanding anything to the contrary herein, any
Stockholder which is a partnership or corporation may transfer rights granted to
such Stockholder under this Agreement to any partner or stockholder thereof to
whom Registrable Shares are transferred and who delivers to Transcend a written
instrument in accordance with paragraph (b) above which contains a
representation that the transfer is exempt from registration under the
Securities Act. In the event of such transfer, such partner or stockholder shall
be deemed a Stockholder for purposes of this Agreement and may again transfer
such rights to any other person or entity which acquires Registrable Shares from
such partner or stockholder, in accordance with, and subject to, the provisions
of paragraphs (a), (b) and (c) above.
16. General
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16.1. NOTICES. All notices, requests, consents, and other
communications under this Agreement shall be in writing and shall be delivered
by hand or mailed by first class certified or registered mail, return receipt
requested, postage prepaid:
If to Transcend at:
Transcend Therapeutics, Inc.
000 Xxxxxxxx Xxxxx, 0X
Xxxxxxxxx, XX 00000
Attention: President
Facsimile: (000) 000-0000
With a copy to:
Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
or at such other address or addresses as may have been furnished in writing by
Transcend to the Holders.
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If to the following Purchasers:
The Venture Capital Fund of New England
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, III
Facsimile: (000) 000-0000
Advent International Investors II Limited Partnership
Advent Performance Materials Limited Partnership
Global Private Equity Fund Limited Partnership
Rovent II Limited Partnership
Xxxx X. Xxxxxxx
Xxxxxxx Xxx
c/o Advent International Corporation
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Moufflet
Facsimile: (000) 000-0000
Sprout Capital VI, L.P.
c/o The Sprout Group
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000-0000
Attention: Xxxxxxxx Xxxxxxx
Facsimile: (000) 000-0000
DLJ Capital Corporation
c/o The Sprout Group
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000-0000
Attention: Xxxxxxxx Xxxxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx & Dodge LLP
Xxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx, Esq.
Facsimile: (000) 000-0000
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or at such other address or addresses as may be been furnished to Transcend in
writing by the above Purchasers.
If to the following Purchasers or Clintec:
Xxxxxx Healthcare Corporation
Xxx Xxxxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxx, Xx.
Facsimile: (000) 000-0000
Clintec International, Inc.
Xxx Xxxxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxx
Facsimile: (000) 000-0000
Clinical Nutrition Holdings, Inc.
000 Xxxxx Xxxxx Xxxx.
Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxx, Xxxx & Xxxxx
Three First National Plaza
00 Xxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxxx, Esq.
Facsimile: (000) 000-0000
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If to MIT:
Massachusetts Institute of Technology
000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Associate Director of Real Estate
with a copy to:
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
If to BI:
Boehringer Ingelheim International GmbH
D-55216 Ingelheim am Rhein
Germany
Attention: Corporate Licensing
Facsimile: 011 49 61 32 77 35 83
with a copy to:
Boehringer Ingelheim International GmbH
D-55216 Ingelheim am Rhein
Germany
Attention: Head of Legal Department
Facsimile: 011 49 61 32 77 35 83
If to Xxxxx X. Xxxxxxx:
Xxxxx X. Xxxxxxx
24 Xxxxxx Xxxxx Vistas
000 Xxxxxx Xxxx Xxxx Xxxx 0000
Xxxxx Xx, XX 00000
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If to Xxxxx X. Xxxxxxx:
Xxxxx X. Xxxxxxx
Hoescht Xxxxxx Xxxxxxx
Executive Vice President, Global Research
Hoescht Aktiengesellschaft
HMR Research
Building K
X-00000 Xxxxxxxxx/Xxxx
Xxxxxxx
Facsimile: 011-49-69-305-81664
If to Xxxxxxx X. Xxxx:
Xxxxxxx X. Xxxx
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
If to Xxxxxx X. Xxxxx:
Xxxxxx X. Xxxxx
c/o Transcend Therapeutics, Inc.
000 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
If to Xxxx X. Xxxxxx:
Xxxx X. Xxxxxx
c/o Transcend Therapeutics, Inc.
000 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
or at such other address or addresses as may be been furnished to Transcend in
writing by the above Holder.
Any such notice provided in accordance with this Section 6 shall be deemed given
when so delivered personally, telegraphed, telexed, sent by facsimile
transmission, or, if mailed, two days after the date of deposit in the United
States mails.
17. ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof
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and supersedes all prior agreements and understandings relating to such subject
matter.
18. AMENDMENTS AND WAIVERS. Any term of this Agreement may be amended and
the observance of any term of this Agreement may be waived (either generally or
in a particular instance and either retroactively or prospectively), with the
written consent of Transcend and the holders of at least 75% of the Registrable
Shares; PROVIDED, that this Agreement may be amended with the consent of the
holders of less than all Registrable Shares only in a manner which affects all
Registrable Shares in the same fashion. No waivers of or exceptions to any term,
condition or provision of this Agreement, in any one or more instances, shall be
deemed to be, or construed as, a further or continuing waiver of any such term,
condition or provision.
19. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
shall be one and the same document.
20. SEVERABILITY. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
21. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts, without regard to
the conflicts of law rules of the Commonwealth of Massachusetts.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, this Agreement has been executed as of the date first
above written.
TRANSCEND THERAPEUTICS, INC.
By: ________________________________________
Name: Xxxxxx X. Xxxxx, M.D., Ph.D.
Title: President
BOEHRINGER INGELHEIM INTERNATIONAL GmbH
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
THE VENTURE CAPITAL FUND OF NEW ENGLAND III, L.P.
By: F H & Co. III, L.P.
General Partner
By: ________________________________________
Xxxxxxx X. Xxxxx, III
General Partner
SPROUT CAPITAL VI, L.P.
By: DLJ Capital Corporation,
Managing General Partner
By: ________________________________________
Name: Xxxxxxxx Xxxxxxx
Title: Vice President
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DLJ CAPITAL CORPORATION
By: ________________________________________
Name: Xxxxxxxx Xxxxxxx
Title: Vice President
ADVENT INTERNATIONAL INVESTORS II LIMITED PARTNERSHIP
By: Advent International Corporation, General Partner
By: ________________________________________
Name: Xxxxxx X. Moufflet
Title: Senior Vice President
ADVENT PERFORMANCE MATERIALS LIMITED PARTNERSHIP
By: Advent International Limited Partnership, General Partner
By: Advent International Corporation, General Partner
By: ________________________________________
Name: Xxxxxx X. Moufflet
Title: Senior Vice President
GLOBAL PRIVATE EQUITY II LIMITED PARTNERSHIP
By: Advent International Limited Partnership, General Partner
By: Advent International Corporation, General Partner
By: ________________________________________
Name: Xxxxxx X. Moufflet
Title: Senior Vice President
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ROVENT II LIMITED PARTNERSHIP
By: Advent International Limited Partnership, General Partner
By: Advent International Corporation, General Partner
By: ________________________________________
Name: Xxxxxx X. Moufflet
Title: Senior Vice President
XXXXXX HEALTHCARE CORPORATION
By: ________________________________________
Name: Xxxx X. Xxxxxxx, Xx.
Title: Vice President
CLINICAL NUTRITION HOLDINGS, INC.
By: ________________________________________
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
CLINTEC INTERNATIONAL, INC.
By: ________________________________________
Name: Xxxxxxx X. Xxxx
Title: Chief Financial Officer
XXXX X. XXXXXXX
By: ________________________________________
Xxxxxx X. Moufflet
as attorney-in-fact for Xxxx X. Xxxxxxx
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XXXXXXX XXX
By: ________________________________________
Xxxxxx X. Moufflet
as attorney-in-fact for Xxxxxxx Xxx
MASSACHUSETTS INSTITUTE OF TECHNOLOGY
By: ________________________________________
Name:
Title:
____________________________________________
Xxxxx X. Xxxxxxx
____________________________________________
Xxxxxxx X. Xxxx
____________________________________________
Xxxxxx X. Xxxxx
____________________________________________
Xxxx X. Xxxxxx
____________________________________________
Xxxxx X. Xxxxxxx
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