Exhibit 4.05
INCIDENTAL REGISTRATION RIGHTS AGREEMENT
This Incidental Registration Rights Agreement (this "AGREEMENT") is
made and entered into as of _______________, 20__, by and among CancerVax
Corporation, a Delaware corporation (the "COMPANY"), and certain vendors to the
Company, as set forth on Exhibit A hereto, that provide the Company with
equipment leases, real property leases, loans, credit lines, guarantees of
indebtedness, cash price reductions or similar transactions (each individually a
"VENDOR" and collectively the "VENDORS").
A. The Company has granted each of the Vendors warrants to
purchase from the Company a certain number of shares of Vendor Preferred Stock,
Series 1 of the Company, par value $0.00004 per share together with any other
series of Vendor Preferred Stock, (the "VENDOR PREFERRED"), on the terms and
conditions set forth in one or more Warrants between the Company and such Vendor
(the "WARRANT").
B. The Warrant provides that pursuant thereto the Vendor shall be
granted certain registration rights as more fully set forth herein.
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual promises hereinafter set forth, the parties hereto agree as follows:
1. REGISTRATION RIGHTS.
1.1 Definitions. For purposes of this Section 1:
(a) Registration. The terms "REGISTER,"
"REGISTRATION" and "REGISTERED" refer to a registration effected by preparing
and filing a registration statement in compliance with the Securities Act of
1933, as amended (the "SECURITIES ACT"), and the declaration or ordering of
effectiveness of such registration statement.
(b) Registrable Securities. The term
"REGISTRABLE SECURITIES" means:
(1) all the shares of Common Stock of the
Company ("COMMON STOCK") issued or issuable upon the conversion of any shares of
Vendor Preferred issued or issuable upon exercise of any Warrant that are now
owned or may hereafter be acquired by any Vendor or any of Vendor's permitted
successors and assigns; and
(2) any shares of Common Stock issued (or
issuable upon the conversion or exercise of any warrant, right or other security
which is issued) as a dividend or other distribution with respect to, or in
exchange for or in replacement of, all such shares of Common Stock described in
clause (1) of this subsection (b); excluding in all cases, however, any
Registrable Securities sold by a person in a transaction in which rights under
this Section 1 are not assigned in accordance with this Agreement or any
Registrable Securities sold to the public or sold pursuant to Rule 144
promulgated under the Securities Act.
(c) Holder. The term "HOLDER" means any person
owning of record Registrable Securities or any assignee of record of such
Registrable Securities to whom rights set forth herein have been duly assigned
in accordance with this Agreement; provided, however, that for purposes of this
Agreement, a record holder of shares of Vendor Preferred convertible into
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such Registrable Securities shall be deemed to be the Holder of such Registrable
Securities; and, provided further, that the Company shall in no event be
obligated to register shares of Vendor Preferred, and that Holders of
Registrable Securities will not be required to convert their shares of Vendor
Preferred into Common Stock in order to exercise the registration rights granted
hereunder, until immediately before the closing of the offering to which the
registration relates.
(d) SEC. The term "SEC" or "COMMISSION" means
the U.S. Securities and Exchange Commission.
1.2 Piggyback Registrations. If (but without any
obligation to do so) the Company proposes to register (including for this
purpose a registration effected by the Company for stockholders than the
Holders) any of its stock or other securities under the Securities Act in
connection with the public offering of such securities solely for cash (other
than registration statements relating to any employee benefit plan or a
corporate reorganization or other transaction covered by Rule 145 promulgated
under the Securities Act, or a registration on any registration form which does
not permit secondary sales or does not include substantially the same
information as would be required to be included in a registration statement
covering the sale of Registrable Securities) the Company shall, at such time,
promptly notify each Holder in writing of such registration). Upon the written
request of each Holder given within twenty (20) days after mailing of such
notice by the Company in accordance with Section 3.1 hereof, the Company shall
subject to the provisions of Section 1.2(a) hereof, cause to be registered under
the Securities Act all of the Registrable Securities that each such Holder has
requested to be registered. If a Holder decides not to include all of its
Registrable Securities in any registration statement thereafter filed by the
Company, such Holder shall nevertheless continue to have the right to include
any Registrable Securities in any subsequent registration statement or
registration statements as may be filed by the Company with respect to offerings
of its securities, all upon the terms and conditions set forth herein.
(a) Underwriting. If a registration statement
under which the Company gives notice under this Section 1.2 is for an
underwritten offering, then the Company shall so advise the Holders of
Registrable Securities. In such event, the right of any such Holder's
Registrable Securities to be included in a registration pursuant to this Section
1.2 shall be conditioned upon such Holder's participation in such underwriting
and then only in such quantity as the underwriters determine in their sole
discretion will not jeopardize the success of the offering by the Company. All
Holders proposing to distribute their Registrable Securities through such
underwriting shall enter into an underwriting agreement in customary form with
the managing underwriter or underwriter(s) selected for such underwriting.
Notwithstanding any other provision of this Agreement, if the managing
underwriter determine(s) in good faith that marketing factors require a
limitation of the number of shares to be underwritten, then the managing
underwriter(s) may exclude shares (including Registrable Securities) from the
registration and the underwriting, and the number of shares that may be included
in the registration and the underwriting shall be allocated, first, to the
Company, second to stockholders of the Company then holding demand registration
rights who are exercising or participating in such demands, and third to any
stockholders of the Company (including, without limitation, the Holders) granted
incidental registration rights under this Agreement, or any other agreement
between the Company and any stockholder (collectively, the "INCIDENTAL RIGHTS
HOLDERS"), (the securities so included to be apportioned pro rata among the
selling Incidental Right Holders according to the total amount of securities
entitled to be included therein owned by each selling Incidental Rights Holders,
or in such other portions as shall mutually be agreed to by such selling
Incidental Rights Holders); provided, however, that the Registrable Securities
requested by
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Holders to be included in such a registration shall be subject to complete or
partial exclusion and/or cut-back pursuant to any senior registration rights of
stockholders of the Company as set forth in any other agreement (whether
presently in existence or as may come into existence in the future) between the
Company and any stockholder thereof; provided, further, that if such
registration is the initial public offering of the Company's securities, the
underwriters may exclude all of the Registrable Securities requested by Holders
to be included in such a registration; provided, further, that in the event of a
conflict between the priority of any registration rights, the incidental
registration rights granted pursuant hereto shall be deemed junior to the
registration rights granted in any other registration rights agreement between
the Company and any stockholders thereof, as may reasonably be determined by the
Company in its sole and absolute discretion. If any Holder disapproves of the
terms of any such underwriting, such Holder may elect to withdraw therefrom by
written notice, given in accordance with Section 3.1 hereof, to the Company and
the underwriter, delivered at least twenty (20) days prior to the effective date
of the registration statement. Any Registrable Securities excluded or withdrawn
from such underwriting shall be excluded and withdrawn from the registration.
For any Holder that is a partnership or corporation, the partners, retired
partners and shareholders of such Holder, or the estates and family members of
any such partners and retired partners and any trusts for the benefit of any of
the foregoing persons shall be deemed to be a single "Holder," and any pro rata
reduction with respect to such "Holder" shall be based upon the aggregate amount
of shares carrying registration rights owned by all entities and individuals
included in such "Holder," as defined in this sentence.
(b) Expenses. All expenses incurred in
connection with a registration pursuant to this Section 1.2, including, without
limitation, all registration and qualification fees, printers' and accounting
fees, fees and disbursements of counsel for the Company (but excluding
underwriters' discounts and commissions), shall be borne by the Company. Each
Holder participating in a registration pursuant to this Section 1.2 shall bear
such Holder's proportionate share (based on the number of Registrable Securities
sold by such Holder over the total number of shares included in such
registration at the time it goes effective) of all discounts, commissions or
other amounts payable to underwriters or brokers in connection with such
offering and the fees and disbursements of any counsel for the participating
Holders.
1.3 Obligations of the Company. Whenever required to
effect the registration of any Registrable Securities under this Agreement, the
Company shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration
statement with respect to such Registrable Securities and use reasonable efforts
to cause such registration statement to become effective and, upon the request
of the Holders of a majority of the Registrable Securities registered
thereunder, keep such registration statement effective for up to ninety (90)
days.
(b) Prepare and file with the SEC such
amendments and supplements to such registration statement and the prospectus
used in connection with such registration statement as may be necessary to
comply with the provisions of the Securities Act with respect to the disposition
of all securities covered by such registration statement.
(c) Furnish to the Holders such number of copies
of a prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as they may
reasonably request in order to facilitate the disposition of the Registrable
Securities owned by them that are included in such registration.
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(d) Use reasonable efforts to register and
qualify the securities covered by such registration statement under such other
securities or "Blue Sky" laws of such jurisdictions as shall be reasonably
requested by the Holders, 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.
(e) In the event of any underwritten public
offering, enter into and perform its obligations under an underwriting
agreement, in usual and customary form, with the managing underwriter(s) of such
offering. Each Holder participating in such underwriting hereby agrees to also
enter into and perform its obligations under such an agreement.
(f) Notify each Holder of Registrable Securities
covered by such registration statement at any time when a prospectus relating
thereto is required to be delivered under the Securities Act of the happening of
any event as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the circumstances
then existing. The Company will use reasonable efforts to amend or supplement
such prospectus in order to cause such prospectus not to include any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in
light of circumstances then existing.
1.4 Furnish Information. It shall be a condition
precedent to the obligations of the Company to take any action pursuant to
Section 1.2 that the selling Holders shall furnish to the Company such
information regarding themselves, the Registrable Securities held by them, and
the intended method of disposition of such securities as shall be required to
timely effect the registration of their Registrable Securities.
1.5 Delay of Registration. No Holder shall have any right
to obtain or seek an injunction restraining or otherwise delaying any such
registration as the result of any controversy that might arise with respect to
the interpretation or implementation of this Section 1.
1.6 Indemnification. In the event any Registrable
Securities are included in a registration statement under Section 1.2:
(a) By the Company. To the extent permitted by
law, the Company will indemnify and hold harmless each Holder, the partners,
officers and directors of each Holder, any underwriter (as defined in the
Securities Act) for such Holder and each person, if any, who controls such
Holder or underwriter within the meaning of the Securities Act or the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT"), against any losses,
claims, damages, liabilities or actions (joint or several) (collectively
"LOSSES", and individually a "LOSS") to which they may become subject under the
Securities Act, the Exchange Act or other federal or state law, insofar as such
Losses arise out of or are based upon any of the following statements, omissions
or violations (collectively, the "VIOLATIONS" and, individually, a "VIOLATION"):
(1) any untrue statement or alleged
untrue statement of a material fact contained in such registration statement,
including any preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto; or
(2) 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
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(3) any violation or alleged violation
by the Company of the Securities Act, the Exchange Act, any federal or state
securities law or any rule or regulation promulgated under the Securities Act,
the Exchange Act or any federal or state securities law in connection with the
offering covered by such registration statement.
The Company will reimburse each such Holder, partner, officer or director,
underwriter or controlling person for any legal or other expenses reasonably
incurred by them, within three months after a request for reimbursement has been
received by the Company, in connection with investigating or defending any such
Loss; provided however, that the indemnity agreement contained in this Section
1.6(a) shall not apply to amounts paid in settlement of any such Loss if such
settlement is effected without the consent of the Company (which consent shall
not be unreasonably withheld, delayed or conditioned), nor shall the Company be
liable in any such case for any such Loss to the extent that it arises out of or
is based upon a Violation which occurs in reliance upon and in conformity with
written information furnished expressly for use in connection with such
registration by such Holder, partner, officer, director, underwriter or
controlling person of such Holder.
(b) By Selling Holders. To the extent permitted
by law, each selling Holder will 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, any underwriter and any other Holder selling securities
under such registration statement or any of such other Holder's partners,
directors or officers or any person who controls such Holder within the meaning
of the Securities Act or the Exchange Act, against any Losses to which the
Company or any such director, officer, controlling person, underwriter or other
such Holder, partner or director, officer or controlling person of such other
Holder may become subject under the Securities Act, the Exchange Act or other
federal or state law, insofar as such Losses arise out of or are based upon any
Violation, in each case to the extent (and only to the extent) that such
Violation occurs in reliance upon and in conformity with written information
furnished by such Holder expressly for use in connection with such registration.
Each such Holder will reimburse any legal or other expenses reasonably incurred
by the Company or any such director, officer, controlling person, underwriter or
other Holder, partner, officer, director or controlling person of such other
Holder in connection with investigating or defending any such Loss within three
months after a request for reimbursement has been received by the indemnifying
Holder; provided, however, that the indemnity agreement contained in this
Section 1.6(b) shall not apply to amounts paid in settlement of any such Loss if
such settlement is effected without the consent of the Holder (which consent
shall not be unreasonably withheld, delayed or conditioned); and, provided
further, that the total amounts payable in indemnity by a Holder under this
Section 1.6(b) in respect of any Violation shall not exceed the net proceeds
received by such Holder in the registered offering out of which such Violation
arises.
(c) Notice. Promptly after receipt by an
indemnified party under this Section 1.6 of notice of the commencement of any
action (including any governmental action), such indemnified party will, if a
claim in respect thereof is to be made against any indemnifying party under this
Section 1.6, deliver to the indemnifying party a written notice of the
commencement thereof. The indemnifying party shall have the right to participate
in, and, to the extent the indemnifying party so desires, jointly with any other
indemnifying party similarly noticed, to assume the defense thereof with counsel
mutually satisfactory to the parties; provided, however, that an indemnified
party shall have the right to retain its own counsel, with the fees and expenses
to be paid by the indemnifying party, if representation of such indemnified
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party by the counsel retained by the indemnifying party would be inappropriate
due to actual or potential conflict of interests between such indemnified party
and any other party represented by such counsel in such proceeding. The failure
to deliver written notice to the indemnifying party within a reasonable time of
the commencement of any such action, if prejudicial to its ability to defend
such action, shall relieve such indemnifying party of any liability to the
indemnified party under this Section 1.6, but the omission to so deliver written
notice to the indemnifying party will not relieve it of any liability that it
may have to any indemnified party otherwise than under this Section 1.6.
(d) Defect Eliminated in Final Prospectus. The
foregoing indemnity agreements of the Company and Holders are subject to the
condition that, insofar as they relate to any Violation made in a preliminary
prospectus but eliminated or remedied in the amended prospectus on file with the
SEC at the time the registration statement in question becomes effective or the
amended prospectus filed with the SEC pursuant to SEC Rule 424(b) (the "FINAL
PROSPECTUS"), such indemnity agreement shall not inure to the benefit of any
person if a copy of the Final Prospectus was furnished to the indemnified party
and was not furnished to the person asserting the Loss at or prior to the time
such action is required by the Securities Act.
(e) Contribution. If the indemnification
provided for in this Section 1.6 is held by a court of competent jurisdiction to
be unavailable to an indemnified party with respect to any Loss or expense
referred to herein, then the indemnifying party, in lieu of indemnifying the
indemnified party, shall contribute to the amount paid or payable by such
indemnified party with respect to such Loss or expense in the proportion that is
appropriate to reflect the relative fault of the indemnifying party and the
indemnified party in connection with the statements or omissions that resulted
in such Loss or expense, as well as any other relevant equitable considerations.
The relative fault of the indemnifying party and the indemnified party shall be
determined 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. In any such case,
(A) no such Holder will be required to contribute any amount in excess of the
net proceeds received from all such Registrable Securities offered and sold by
such Holder pursuant to such registration statement; and (B) no person or entity
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) will be entitled to contribution from any person or entity
who was not guilty of such fraudulent misrepresentation.
(f) Conflict with Underwriting Agreement.
Notwithstanding the foregoing, to the extent that the provisions on
indemnification and contribution contained in the underwriting agreement entered
into in connection with the underwritten public offering are in conflict with
the foregoing provisions, the provisions in the underwriting agreement will
control.
(g) Survival. The obligations of the Company and
Holders under this Section 1.6 shall survive the completion of any offering of
Registrable Securities in a registration statement, and otherwise.
1.7 "Market Stand-Off" Agreement. Each Holder hereby
agrees that it shall not, to the extent requested by the Company or an
underwriter of securities of the Company, sell, make any short sale of, loan,
grant any option for the purchase of, or otherwise transfer or dispose of any
Registrable Securities or other shares of stock of the Company then owned by
such Holder (other than to transferees or partners of the Holder who agree to be
similarly bound)
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for such period of time beginning on the date such Holder is notified in writing
by the Company or the representative of the underwriters of the Company's Common
Stock that the Company proposes to file a registration statement under the
Securities Act and ending on the date specified by the Company or the
representatives of such underwriters, such period not to exceed (i) one hundred
eighty (180) days following the effective date of the registration statement of
the Company filed under the Securities Act pertaining to the Company's initial
public offering and (ii) ninety (90) days following the effective date of any
subsequent registration statement of the Company filed under the Securities Act;
provided, however, that, in each case, (i) all executive officers and directors
of the Company then holding Common Stock and (ii) each stockholder of the
Company holding in the aggregate at least one percent (1%) of the total equity
of the Company, enter into similar agreements.
For purposes of this Section 1.7, the term "Company" shall include any
wholly-owned subsidiary of the Company into which the Company merges or
consolidates. In order to enforce the foregoing covenant, the Company shall have
the right to place restrictive legends on the certificates representing the
shares subject to this Section and to impose stop transfer instructions with
respect to the Registrable Securities and such other shares of stock of each
Holder (and the shares or securities of every other person subject to the
foregoing restriction) until the end of such period. Each Holder further agrees
to enter into any agreement reasonably required by the underwriters to implement
the foregoing within any reasonable timeframe so requested.
1.8 Rule 144 Reporting. With a view to making available
the benefits of certain rules and regulations of the Commission which may at any
time permit the sale of the Registrable Securities to the public without
registration, after such time as a public market exists for the Common Stock of
the Company, the Company agrees to:
(a) Make and keep public information available,
as those terms are understood and defined in Rule 144 under the Securities Act,
at all times after the effective date of the first registration under the
Securities Act filed by the Company for an offering of its securities to the
general public;
(b) Use reasonable, diligent efforts to file
with the Commission in a timely manner all reports and other documents required
of the Company under the Securities Act and the Exchange Act (at any time after
it has become subject to such reporting requirements); and
(c) So long as a Holder owns any Registrable
Securities, to furnish to the Holder forthwith upon request (i) a written
statement by the Company as to its compliance with the reporting requirements of
said Rule 144 (at any time after ninety (90) days after the effective date of
the first registration statement filed by the Company for an offering of its
securities to the general public), and of the Securities Act and the Exchange
Act (at any time after it has become subject to the reporting requirements of
the Exchange Act), (ii) a copy of the most recent annual or quarterly report of
the Company, and such other reports and documents so filed by the Company, and
(iii) such other information as a Holder may reasonably request in availing
itself of any rule or regulation of the Commission allowing a Holder to sell any
such securities without registration (at any time after the Company has become
subject to the reporting requirements of the Exchange Act).
1.9 Termination of the Company's Obligations. The Company
shall have no obligations pursuant to Section 1.2 with respect to: (a) any
request or requests for inclusion in a
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registration, which request is made by any Holder on a date more than three (3)
years after the closing date of the Company's initial public offering; or (b)
any Registrable Securities proposed to be sold by a Holder in a registration
pursuant to Section 1.2 if, in the opinion of counsel to the Company, all such
Registrable Securities proposed to be sold by a Holder may be sold in a ninety
(90) day period without registration under the Securities Act pursuant to Rule
144 under the Securities Act.
2. ASSIGNMENT AND AMENDMENT.
2.1 Assignment. Notwithstanding anything herein to the
contrary, the registration rights of a Holder under Section 1 hereof may be
assigned only to a party who acquires all of the Registrable Securities from a
Holder; provided, however that no party may be assigned any of the foregoing
rights unless the Company is given prompt written notice by the assigning party
at the time of such assignment stating the name and address of the assignee and
identifying the securities of the Company as to which the rights in question are
being assigned; provided further, that any such assignee of such rights is not
deemed by the Board of Directors of the Company, in its reasonable judgment, to
be a competitor of the Company; and provided further that any such assignee
shall receive such assigned rights subject to all the terms and conditions of
this Agreement, including, without limitation, the provisions of this Section 2.
Assignments may be made without the Company's consent if the assignment is to a
partner, stockholder, member, affiliate of the Holder, or a parent, child,
grandchild, spouse, adopted child, adopted grandchild of Holder, or any trust
for the benefit of Holder or any of the foregoing.
2.2 Amendment and Waiver of Rights. Any provision of this
Agreement may be amended and the observance thereof may be waived (either
generally or in a particular instance and either retroactively or prospectively)
only with the written consent of (a) the Company, (b) the Vendors (and/or any of
its permitted successors or assigns) holding Warrants and/or shares of Vendor
Preferred issued upon exercise of such Warrants and/or shares of Common Stock
issued upon the conversion of such shares of Vendor Preferred representing,
exercisable for and/or convertible into a majority of all the Vendors' Shares
(as defined below); provided, however, that the grant to third parties of
registration rights senior to, or on a pari passu basis with, the incidental
registration rights granted to the Holders under Section 1 hereof shall not
require the consent of the Vendors. As used herein, the term "VENDORS' SHARES"
shall mean all then outstanding shares of Common Stock of the Company that were
issued upon the conversion of any shares of Vendor Preferred that were issued
upon exercise of the Warrants, plus the shares of Common Stock then issuable
upon conversion of all then outstanding shares of Vendor Preferred that were
issued upon exercise of the Warrants, plus the shares of Common Stock then
issuable upon conversion of the Vendor Preferred issuable upon exercise of all
then outstanding and exercisable Warrants. Any amendment or waiver effected in
accordance with this Section 2.2 shall be binding upon each Vendor, each Holder,
each permitted successor or assignee of such Vendor or Holder and the Company.
2.3 New Vendors. Notwithstanding anything herein to the
contrary, if the Company hereafter grants additional vendors ("NEW VENDORS") the
right to purchase Vendor Preferred pursuant to a Warrant and in accordance
therewith grants such New Vendors incidental registration rights on the terms
set forth herein, then each of the New Vendors shall become a party to this
Agreement as a "Vendor" hereunder, without the need of obtaining any consent,
approval or signature of any other Vendor hereunder; provided, that each New
Vendor shall have both (i) been granted a Warrant to purchase Vendor Preferred
by the Company and (ii) executed
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one or more counterpart signature pages to this Agreement as a "Vendor," with
the Company's consent.
3. GENERAL PROVISIONS.
3.1 Notices. Any and all notices required or permitted to
be given to a party pursuant to the provisions of this Agreement will be in
writing and will be effective and deemed to provide such party sufficient notice
under this Agreement on the earliest of the following: (i) at the time of
personal delivery, if delivery is in person; (ii) one (1) business day after
deposit with an express overnight courier for United States deliveries, or two
(2) business days after such deposit for deliveries outside of the United
States, with proof of delivery from the courier requested; or (iii) three (3)
business days after deposit in the United States mail by certified mail (return
receipt requested) for United States deliveries.
All notices for delivery outside the United States
will be sent by express courier. All notices not delivered personally will be
sent with postage and/or other charges prepaid and properly addressed to the
party to be notified at the address as follows, or at such other address as such
other party may designate by one of the indicated means of notice herein to the
other parties hereto as follows:
(a) if to the Vendor, at the Vendor's address as
set forth on the signature page hereto.
(b) if to the Company, marked "Attention:
President", at 0000 Xxxxxx Xxxxx, Xxxxxxxx, XX 00000.
3.2 Entire Agreement. This Agreement, together with all
the Exhibits hereto, constitutes the entire agreement and understanding of the
parties with respect to the subject matter of this Agreement, and supersedes any
and all prior and contemporaneous understandings and agreements, whether oral or
written, between or among the parties hereto with respect to the specific
subject matter hereof.
3.3 Governing Law. This Agreement will be governed by and
construed in accordance with the laws of the State of Delaware, without giving
effect to that body of laws pertaining to conflict of laws.
3.4 Severability. If any provision of this Agreement is
determined by any court or arbitrator of competent jurisdiction to be invalid,
illegal or unenforceable in any respect, such provision will be enforced to the
maximum extent possible given the intent of the parties hereto. If such clause
or provision cannot be so enforced, such provision shall be stricken from this
Agreement and the remainder of this Agreement shall be enforced as if such
invalid, illegal or unenforceable clause or provision had (to the extent not
enforceable) never been contained in this Agreement. Notwithstanding the
forgoing, if the value of this Agreement based upon the substantial benefit of
the bargain for any party is materially impaired, which determination as made by
the presiding court or arbitrator of competent jurisdiction shall be binding,
then both parties agree to substitute such provision(s) through good faith
negotiations.
3.5 Third Parties. Nothing in this Agreement, express or
implied, is intended to confer upon any person, other than the parties hereto
and their successors and assigns, any rights or remedies under or by reason of
this Agreement.
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3.6 Successors and Assigns. Subject to the provisions of
Section 2.1, this Agreement, and the rights and obligations of the parties
hereunder, will be binding upon and inure to the benefit of their respective
successors, assigns, heirs, executors, administrators and legal representatives.
3.7 Titles and Headings. The titles, captions and
headings of this Agreement are included for ease of reference only and will be
disregarded in interpreting or construing this Agreement. Unless otherwise
specifically stated, all references herein to "sections" and "exhibits" will
mean "sections" and "exhibits" to this Agreement.
3.8 Counterparts. This Agreement may be executed in any
number of counterparts, each of which when so executed and delivered will be
deemed an original, and all of which together shall constitute one and the same
agreement.
3.9 Costs and Attorneys' Fees. In the event that any
action, suit or other proceeding is instituted concerning or arising out of this
Agreement or any transaction contemplated hereunder, the prevailing party shall
recover all of such party's costs and attorneys' fees incurred in each such
action, suit or other proceeding, including any and all appeals or petitions
therefrom.
3.10 Adjustments for Stock Splits, Etc. Wherever in this
Agreement there is a reference to a specific number of shares of Common Stock or
Preferred Stock of the Company (including the Vendor Preferred) of any class or
series, then, upon the occurrence of any subdivision, combination or stock
dividend of such class or series of stock, the specific number of shares so
referenced in this Agreement shall automatically be proportionally adjusted to
reflect the affect on the outstanding shares of such class or series of stock by
such subdivision, combination or stock dividend.
3.11 Further Assurances. The parties agree to execute
such further documents and instruments and to take such further actions as may
be reasonably necessary to carry out the purposes and intent of this Agreement.
3.12 Facsimile Signatures. This Agreement may be executed
and delivered by facsimile and upon such delivery the facsimile signature will
be deemed to have the same effect as if the original signature had been
delivered to the other party.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first written above.
THE COMPANY:
CancerVax Corporation
Name:_______________________________
By:_________________________________
Title:______________________________
VENDORS:
____________________________________
By:_________________________________
Name:_______________________________
Title:______________________________
Address:____________________________
____________________________________
____________________________________
[SIGNATURE PAGE TO INCIDENTAL REGISTRATION RIGHTS AGREEMENT]
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EXHIBIT A
VENDORS
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Schedule to Exhibit 4.05
The preceding form of Incidental Registration Rights Agreement was entered into
between the Company and the following entities on the dates listed below:
Entity Date
------ ----
General Electric Capital Corporation July 11, 2001
Xxxxxxx Management Company February 5, 2002
Venture Lending & Leasing III, LLC September 6, 2002
M-Tech Therapeutics, Inc. February 1, 2003
