Exhibit 10.2
FORM OF REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT"), dated
as of [__________], 2002, is by and among DECODE GENETICS, INC., a Delaware
corporation (the "COMPANY"), and each of CHASE MEDICHEM PARTNERS, LLC, a
Delaware limited liability company, PEACHTREE MEDICHEM PARTNERS, LLC, a Delaware
limited liability company, and MEDEQUITY INVESTORS PARTNERS, LLC, a Delaware
limited liability company (each a "STOCKHOLDER" and collectively, the
"STOCKHOLDERS").
WHEREAS, the Company, Saga Acquisition Corp., a Delaware
corporation and a wholly owned subsidiary of the Company ("MERGER SUB"), and
MediChem Life Sciences, Inc., a Delaware corporation ("MCLS"), have entered into
an Agreement and Plan of Merger, dated as of January 7, 2002 (the "MERGER
AGREEMENT"), pursuant to which, upon the terms and subject to the conditions set
forth in the Merger Agreement, Merger Sub will merge with and into MCLS, with
MCLS being the surviving corporation (the "MERGER");
WHEREAS, pursuant to the Merger, the Stockholders will receive
Common Stock (as defined below) in exchange for their shares of common stock,
par value $0.01 per share, of MCLS, and the Company desires to grant certain
piggy-back registration rights to the Stockholders for their Common Stock
received in the Merger, subject to the terms and conditions set forth herein;
and
WHEREAS, the Company, Merger Sub, the Stockholders and certain
other stockholders of MCLS have entered into a Stockholders Agreement, dated as
of January 7, 2002 (the "STOCKHOLDERS AGREEMENT"), pursuant to which the parties
hereto had agreed to execute and deliver this Agreement prior to the Effective
Time (as defined in the Merger Agreement).
NOW, THEREFORE, in consideration of the foregoing and the
respective representations, warranties, covenants and agreements set forth
herein, in the Stockholders Agreement and in the Merger Agreement and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Stockholders, intending to be legally bound
hereby, agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. All capitalized terms used but not
specifically defined herein shall have the meaning ascribed to such term in the
Merger Agreement. In addition, the following terms, as used herein, shall have
the following meanings:
"COMMON STOCK" means shares of common stock, par value $0.001
per share, of the Company.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and
the rules and regulations promulgated thereunder.
"MATURITY DATE" means the first anniversary of the effective
date of the Merger.
"OTHER HOLDERS" means all holders of Registrable Stock, other
than the Stockholders.
"PERSON" means any individual, partnership, corporation,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization, government or agency or political
subdivision thereof or other entity.
"REGISTRABLE STOCK" means any (i) Common Stock owned by the
Stockholders at the time of any proposed registration and (ii) other Common
Stock subject to registration rights granted by the Company.
"REGISTRABLE STOCKHOLDER" means any holder of Registrable
Stock.
"RULE 144" means Rule 144 (or any successor rule of similar
effect) promulgated under the Securities Act.
"SECURITIES ACT" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"SELLING HOLDER" means any stockholder which is selling
Registrable Stock pursuant to a public offering registered hereunder.
"UNDERWRITER" means a securities dealer who purchases any
Registrable Stock as principal and not as part of such dealer's market-making
activities.
1.2 Internal References. Unless the context indicates
otherwise, references to Articles, Sections and paragraphs shall refer to the
corresponding articles, sections and paragraphs in this Agreement, and
references to the parties shall mean the parties to this Agreement.
ARTICLE II
REGISTRATION RIGHTS
2.1 Piggyback Registration.
(a) If the Company proposes to register any of its Common
Stock with the express purpose of issuing said Common Stock for cash,
the Company shall give notice to each of the Stockholders in writing of
such intention, at least thirty (30) days prior to the filing of the
registration statement in connection with such registration. Upon the
written request of any Stockholder given within fifteen (15) days after
receipt of any such notice, the Company shall include in such
registration all of the Registrable Stock indicated in such
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request(s) of such Stockholder(s), so as to permit the disposition of
the stock so requested. In addition, the Selling Holders shall provide
to the Company as soon as practicable, but in no event more than five
(5) days after furnishing the Company with the written request referred
to in the preceding sentence, any information that is necessary for the
Company to prepare and file with the SEC a registration statement with
respect to such Registrable Stock. Thereafter, the Company shall effect
the registration of the Registrable Stock, in accordance with the terms
hereof, and use its best efforts to keep such registration statement
effective until the distribution is complete, if underwritten, or
otherwise for ninety (90) days. If a Stockholder decides not to include
all of its Registrable Stock in any registration statement thereafter
filed by the Company, such Stockholder shall nevertheless continue to
have the right to include any Registrable Stock 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 in this Section 2.1.
(b) Notwithstanding any other provision of this Section 2.1,
the Company may cancel its intention to file a registration statement
or withdraw at any time any registration statement filed pursuant
hereto, in accordance with all applicable provisions of the Securities
Act or the Exchange Act, for any reason, including but not limited to
the discovery of material adverse information relating to the Company
or its condition, business, prospects or general market conditions.
(c) Notwithstanding any other provision of this Section 2.1,
if the registration statement under which the Company gives notice is
for an underwritten offering and if the managing underwriter advises
the Company in writing that in its good faith opinion the number of
shares of stock requested to be included in such registration exceeds
the number that can be sold in such offering without adversely
affecting such underwriter's ability to effect an orderly distribution
of such stock, the Company will include in such registration:
(i) first, the number of shares of stock requested to be
included by the Company pursuant to Section 2.1(a)
that, in the good faith opinion of such underwriters,
can be sold;
(ii) second, the amount of Registrable Stock held by Other
Holders that, in the opinion of such underwriters,
can be sold, provided that if, in the opinion of the
managing underwriter, less than all such stock
requested to be included can be included in such
registration, then allocation among the Other Holders
shall be made, unless otherwise agreed to by the
Other Holders, pro rata among the Other Holders
participating in such registration on the basis of
the number of shares of stock which each Other Holder
seeking to participate in such registration has
requested be included in such registration; provided,
however, that in any event, all of the Company's
stock that has been requested to be included in such
registration must be included in such registration
prior to any other stock; and
(iii) third, the amount of Registrable Stock held by the
Stockholders that, in the good faith opinion of such
underwriters, can be sold, provided that
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if, in the opinion of the managing underwriter, less
than all such stock requested to be included can be
included in such registration, then allocation among
the Stockholders shall be made pro rata among the
Stockholders participating in such registration on
the basis of the number of shares of stock which each
Stockholder seeking to participate in such
registration has requested be included in such
registration; provided, however, that in any event,
all of the Company's stock and all of the Other
Holders' Registrable Stock that has been requested to
be included in such registration must be included in
such registration prior to any other stock.
ARTICLE III
REGISTRATION PROCEDURES
3.1 Registration Procedures. Whenever required under this
Agreement to effect the registration of any Registrable Stock, the Company
shall, as expeditiously as possible:
(a) Prepare and file with the SEC a registration
statement with respect to such Registrable Stock and use its reasonable
best efforts to cause such registration statement to become effective,
subject to the Company's right to withdraw such registration statement
as provided in Section 2.1(b).
(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 reasonably
necessary to comply with the provisions of the Securities Act with
respect to the disposition of all Registrable Stock covered by such
registration statement.
(c) Furnish to the Registrable Stockholders such
numbers 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 Registrable Stock owned by them.
(d) Use all reasonable efforts to register and
qualify the securities covered by such registration statement under
such other United States federal or state securities or blue sky laws
of such jurisdictions as shall be reasonable requested by the
Stockholders, 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
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 of such
offering. Each Registrable Stockholder participating in such
underwriting shall also enter into and perform its obligations under
such an agreement.
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(f) Notify each Registrable Stockholder covered by
such registration statement at any time when a prospectus relating
thereto is required to be delivered under the Securities Act or 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, in which
event such Registrable Stockholder shall forthwith discontinue
disposition of its Registrable Stock pursuant to such prospectus until
it is advised in writing by the Company that the use of such prospectus
may be resumed or until such holder receives copies of any supplement
or amendment to such prospectus, provided, however, that such
suspensions shall not be in effect for more than 90 days in any 12
month period.
(g) Cause all Registrable Stock registered pursuant
hereunder to be listed on each securities exchange (or The Nasdaq
National Market) on which similar securities issued by the Company are
then listed.(g) Provide a transfer agent and register for all
Registrable Stock registered pursuant hereunder and a CUSIP for all
such Registrable Stock, in each case not later than the effective date
of such registration.
(h) Take such action under the securities laws of
such states of the United States as any participating Registrable
Stockholder shall reasonably request; provided, however, that the
Company shall not be required to qualify to do business as a foreign
corporation, or to file any general consent to service of process, in
any state.
3.2 Registration Expenses. All expenses incurred in connection
with any registration hereunder, including fees and disbursements of one legal
counsel for the Selling Holders up to an aggregate of $10,000, shall be borne by
the Company; provided, however, that each of the Selling Holders shall pay its
pro rata portion of the discounts or commissions payable to any underwriter.
ARTICLE IV
INDEMNIFICATION AND CONTRIBUTION
4.1 Indemnification. In the event of any registered offering
of Registrable Stock pursuant to this Agreement:
(a) The Company will indemnify and hold harmless, to
the fullest extent permitted by law, any Registrable Stockholder and
any underwriter for such Registrable Stockholder, and each person, if
any, who controls the Registrable Stockholder or such underwriter, from
and against any and all losses, damages, claims, liabilities, joint or
several, costs and expenses (including any amounts paid in any
settlement effected with the Company's prior written consent) to which
the Registrable Stockholder or any such underwriter or controlling
person may become subject under applicable law or otherwise, insofar as
such losses, damages, claims, liabilities (or actions or proceedings in
respect thereof), costs or expenses arise out of or are based
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upon (i) any untrue statement or alleged untrue statement of any
material fact contained in the registration statement or included in
the prospectus, as amended or supplemented, or (ii) the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in the light of
the circumstances in which they are made, not misleading, and the
Company will reimburse the Registrable Stockholder, such underwriter
and each such controlling person of the Registrable Stockholder or the
underwriter, promptly upon demand, for any reasonable legal or any
other expenses incurred by them in connection with investigating,
preparing to defend or defending against or appearing as a third-party
witness in connection with such loss, claim, damage, liability, action
or proceeding; provided, however, that the Company will not be liable
in any such case to the extent that any such loss, damage, liability,
cost or expense arises out of or is based upon any untrue statement or
omission in such registration statement or prospectus so made in
conformity with information furnished to the Company in writing by a
Registrable Stockholder, such underwriter or such controlling persons
specifically for use in such registration statement; provided, further,
that this indemnity shall not be deemed to relieve any underwriter of
any of its due diligence obligations; provided, further, that the
indemnity agreement contained in this Section 4.1(a) shall not apply to
amounts paid in settlement of any such claim, loss, damage, liability
or action if such settlement is effected without the consent of the
Company, which consent shall not be unreasonably withheld. Such
indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of the Selling Holder, the
underwriter or any controlling person of the Selling Holder or the
underwriter, and regardless of any sale in connection with such
offering by the Selling Holder. Such indemnity shall survive the
transfer of securities by a Selling Holder.
(b) Each Registrable Stockholder participating in a
registration hereunder will indemnity and hold harmless the Company
(including but not limited to its directors, officers, employees,
agents and representatives), any underwriter for the Company, and each
person, if any, who controls the Company or such underwriter, from and
against any and all losses, damages, claims, liabilities, costs or
expenses (including any amounts paid in any settlement effected with
the Stockholder's consent) to which the Company (including but not
limited to its directors, officers, employees, agents and
representatives) or any such controlling person and/or any such
underwriter may become subject under applicable law or otherwise,
insofar as such losses, damages, claims, liabilities (or actions or
proceedings in respect thereof), costs or expenses arise out of or are
based on an untrue statement or omission in such registration statement
or prospectus based on written information furnished to the Company by
such Registrable Stockholder specifically for use in such registration
statement, and each such Registrable Stockholder will reimburse the
Company (including but not limited to its directors, officers,
employees, agents and representatives), any underwriter and each such
controlling person of the Company or any underwriter, promptly upon
demand, for any reasonable legal or other expenses incurred by them in
connection with investigating, preparing to defend or defending against
or appearing as a third-party witness in connection with such loss,
claim, damage, liability, action or proceeding; provided, however, that
this indemnity shall
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not be deemed to relieve any underwriter of any of its due diligence
obligations; provided, further, that the indemnity agreement contained
in this Section 4.1(b) shall not apply to amounts paid in settlement of
any such claim, loss, damage, liability or action if such settlement is
effected without the consent of the Registrable Stockholders, as the
case may be, which consent shall not be unreasonably withheld.
(c) Promptly after receipt by an indemnified party
pursuant to the provisions of Section 4.1(a) or 4.1(b) of notice of the
commencement of any action involving the subject matter of the
foregoing indemnity provisions, but in any event no fewer than ten (10)
days before the date designated in such notice as the date by which an
answer must be served (or such extension thereof, provided that the
extension has been granted in writing by the plaintiff and that no
admission or consent to jurisdiction or other waiver has been granted
or implied by the request for such an extension), such indemnified
party will, if a claim thereof is to be made against the indemnifying
party pursuant to the provisions of said Section 4.1(a) or 4.1(b),
promptly notify the indemnifying party of the commencement thereof. In
the event such action is brought against any indemnified party and it
notifies the indemnifying party of the commencement thereof, the
indemnifying party shall have the right to participate in, and, to the
extent that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof with counsel
reasonably satisfactory to such indemnified party; provided, however,
that if the defendants in any action include both the indemnified party
and the indemnifying party and there is a conflict of interests which
would prevent counsel for the indemnifying party from also representing
the indemnified party, the indemnified party or parties shall have the
right to select one separate counsel to participate in the defense of
such action on behalf of such indemnified party or parties. After
notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will
not be liable to such indemnified party pursuant to the provisions of
said Section 4.1(a) or 4.1(b) for any legal or other expense
subsequently incurred by such indemnified party in connection with the
defense thereof, unless (i) the indemnified party shall have employed
counsel in accordance with the provision of the preceding sentence,
(ii) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after the notice of the commencement of
the action and within 15 days after written notice of the indemnified
party's intention to employ separate counsel pursuant to the previous
sentence, or (iii) the indemnifying party has authorized the employment
of counsel for the indemnified party at the expense of the indemnifying
party. No indemnifying party will consent to entry of any judgment or
enter into any settlement which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect to such
claim or litigation.
4.2 Contribution. If for any reason the foregoing indemnity is
unavailable, or is insufficient to hold harmless an indemnified party (except as
specifically provided therein), then the indemnifying party shall contribute to
the amount paid or payable by the indemnified party as a result of such losses,
claims, damages, liabilities or expenses (i) in such
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proportion as is appropriate to reflect the relative benefits received by the
indemnifying party on the one hand and the indemnified party on the other from
the registration or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, or provides a lesser sum to the indemnified party
than the amount hereinafter calculated, in such proportion as is appropriate to
reflect not only the relative benefits received by the indemnifying party on the
one hand and the indemnified party on the other but also the relative fault of
the indemnifying party and the indemnified party as well as any other relevant
equitable considerations. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
ARTICLE V
MISCELLANEOUS
5.1 Designation of Underwriter. The Company shall have the
right to designate the underwriters in any underwritten offering.
5.2 Rule 144. At any time, and from time to time until the
Maturity Date, the Company shall:
(a) make and keep available adequate current public
information with respect to the Company within the meaning of Rule
144(c) under the Securities Act (or similar rule then in effect);
(b) furnish to any Registrable Stockholder forthwith
upon request (i) a written statement by the Company as to its
compliance with the informational requirements of Rule 144(c) (or
similar rule then in effect) or (ii) a copy of the most recent annual
or quarterly report of the Company; and
(c) use its reasonable best efforts to comply with
all other necessary filings and other requirements so as to enable the
Registrable Stockholders and any transferee thereof to sell Registrable
Stock under Rule 144 under the Securities Act (or similar rule then in
effect).
5.3 Conditions to Registration Obligations. The Company shall
not be obligated to effect the registration of Registrable Stock pursuant to
this Agreement unless the Registrable Stockholder consents to the following:
(a) conditions requiring the Registrable Stockholder
to comply with all applicable provisions of the Securities Act and the
Exchange Act including, but not limited to, the prospectus delivery
requirements of the Securities Act, and to furnish to the Company
information about sales made in such public offering;
(b) conditions prohibiting the Registrable
Stockholder upon receipt of telegraphic or written notice from the
Company that it is required by law to correct or update the
registration statement or prospectus from effecting sales of the
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Registrable Stock until the Company has completed the necessary
correction or updating; and
(c) conditions prohibiting the sale of Registrable
Stock by such Registrable Stockholder, as the case may be, during the
process of the registration until the registration statement is
effective.
5.4 Lock Up. In connection with any underwritten registration
of Registrable Stock pursuant to Section 2 above and to the extent the
Stockholders participate in any offering, the Stockholders agree to abide by the
"lock-up" period as is required by the underwriter in such registration (but in
no event shall such "lock-up" period be greater than 180 days) and further agree
to execute such further documents as may be required by the underwriters to
effectuate such "lock-up." In addition, no Stockholder may participate in any
underwritten registration hereunder unless such person (i) agrees to sell such
person's securities on the basis provided in customary underwriting arrangements
and (ii) provides all relevant information and completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents required under the terms of such underwriting arrangements.
5.5 Termination. The registration rights granted under this
Agreement will terminate on the Maturity Date, except that the rights set forth
in Article IV shall not expire until the expiration of the applicable statute of
limitations.
5.6 Amendments, Waivers, Etc. This Agreement may not be
amended, waived or otherwise modified or terminated except by an instrument in
writing signed by the Company and each of the Stockholders.
5.7 Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement.
Each party need not sign the same counterpart.
5.8 Entire Agreement. This Agreement constitutes the entire
agreement and supersedes all prior agreements and understandings, both written
and oral, among the parties with respect to the subject matter hereof.
5.9 Governing Law; Submission to Jurisdiction. This Agreement
and all rights, remedies, liabilities, powers and duties of the parties hereto
and thereto, shall be governed by and construed in accordance with the laws of
the State of Delaware applicable to contracts executed in and to be performed
entirely within that State. The Company and the Stockholders irrevocably agree
that any legal action or proceeding with respect to this Agreement or for
recognition or enforcement of any judgment in respect hereof by brought by the
other party hereto or its successors and assigns may be brought and determined
in the Chancery or other courts in the State of Delaware, and the Company and
the Stockholders hereby irrevocably submit with regard to any such action or
proceeding for itself and in respect to its property, generally and
unconditionally, to the exclusive jurisdiction of the aforesaid courts and to
accept service of process in any manner permitted by such courts. The Company
and the Stockholders hereby irrevocably waive, and agree not to assert, by way
of
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motion, as a defense, counterclaim or otherwise, in any action or proceeding
with respect to this Agreement, (a) any claim that it is not personally subject
to the jurisdiction of the aforesaid courts for any reason other than the
failure to lawfully serve process; (b) that it or its property is exempt or
immune from jurisdiction of any such court or from any legal process commenced
in such courts (whether through service of notice, attachment prior to judgment,
attachment in aid of execution of judgment, execution of judgment or otherwise);
(c) to the fullest extent permitted by applicable law, that (i) the suit, action
or proceeding in any such court is brought in an inconvenient forum, (ii) the
venue of such suit, action or proceeding is improper or (iii) this Agreement, or
the subject matter hereof, may not be enforced in or by such courts; or (d) any
right to a trial by jury.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers, in each
case as of the day and year first above written.
DECODE GENETICS, INC.
By:___________________________________
Name:
Title:
CHASE MEDICHEM PARTNERS, LLC
By: MedEquity Investors, LLC
By:___________________________________
Name: Xxxxxx X. Xxxx
Title: Managing Member
PEACHTREE MEDICHEM PARTNERS, LLC
By: MedEquity Investors, LLC
By:___________________________________
Name: Xxxxxx X. Xxxx
Title: Managing Member
MEDEQUITY INVESTORS PARTNERS, LLC
By:___________________________________
Name: Xxxxxx X. Xxxx
Title: Managing Member
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