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EXHIBIT 10.25
1998 REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") dated as of _______
__, 1998 is entered into by and between DYAX CORP., a Delaware corporation (the
"Company"), and GENZYME CORPORATION, a Massachusetts corporation ("Genzyme" or
the "Stockholder").
RECITALS
A. The Company and the Stockholder deem it to be in their respective best
interests to set forth the rights of the Stockholder in connection with public
offerings and sales of the _____shares (the "Shares") of Common Stock, par value
$0.01 per share ("Common Stock"), of the Company being issued to Genzyme in a
private placement pursuant to a stock purchase agreement (the "Purchase
Agreement") of even date herewith between the parties.
B. The execution and delivery of this Agreement is a condition to closing
of the transactions contemplated by the Purchase Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants and
obligations hereinafter set forth, the Company and the Stockholder hereby agree
as follows:
SECTION 1. CERTAIN DEFINITIONS.
As used in this Agreement, the following terms have the following
respective meanings:
"COMMISSION" means the Securities and Exchange Commission, or any other
Federal agency at the time administering the Securities Act and/or the Exchange
Act.
"EXCHANGE ACT" means the Securities Exchange Act of 1934 or any similar
Federal statute, and the rules and regulations of the Commission issued under
such Act, as they each may, from time to time, be in effect.
"INITIAL PUBLIC OFFERING" shall mean the closing of the first fully
underwritten, firm commitment public offering pursuant to an effective
Registration Statement covering the offer and sale by the Company of its Common
Stock, resulting in aggregate net proceeds to the Company (after deducting
underwriting discounts and commissions) of at least $10,000,000 and at a per
share price of at least $4.80 (such amount to be equitably adjusted upon the
occurrence of any stock split, stock dividend, combination, reclassification or
other similar event).
"OTHER REGISTRABLE SHARES" means "Registrable Shares" included within the
definition thereof in and for purposes of the Amended and Restated Registration
Rights Agreement dated as of October 30, 1996 among the Company and certain of
its stockholders, as amended to date and as the same may be amended from time to
time hereafter.
"REGISTRABLE SHARES" means the Shares and any other shares of Common Stock
of the Company issued or issuable in respect of the Shares (because of stock
splits, stock dividends, reclassifications, recapitalizations or similar
events).
"REGISTRATION EXPENSES" has the meaning ascribed thereto in Section 5.
"REGISTRATION STATEMENT" means a registration statement filed by the
Company with the Commission for a public offering and sale of securities of the
Company (other than a registration
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statement on Form S-8 or Form S-4, or any successor forms, or any registration
statement covering only securities proposed to be issued in exchange for
securities or assets of another corporation).
"SECURITIES ACT" means the Securities Act of 1933 or any similar Federal
statute, and the rules and regulations of the Commission issued under such Act,
as they each may, from time to time, be in effect.
"STOCKHOLDERS" means, individually and collectively, Genzyme, and any
persons or entities to whom the rights granted under this Agreement are
transferred by Genzyme, and their successors or assigns to the extent permitted
by Section 14 hereof.
SECTION 2. REQUIRED REGISTRATIONS.
(a) Commencing 180 days after the closing of the Initial Public Offering of
the Company, a Stockholder or Stockholders may request, in writing, that the
Company effect the registration on Form S-3 (or any successor form), of all or
such portion of the Registrable Shares as such holder or holders shall specify.
Upon receipt of any such request, the Company shall promptly give written notice
of such proposed registration to all Stockholders. Such Stockholders shall have
the right, by giving written notice to the Company within 30 days after the
Company 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. Thereupon, the Company shall, as expeditiously as possible, use its
best efforts to effect the registration on Form S-3 (or any successor form) of
all Registrable Shares which the Company has been so requested to register.
(b) The Company shall not be required to effect more than three
registrations pursuant to paragraph (a) above. Unless otherwise requested by the
selling Stockholders, a registration pursuant to paragraph (a) above shall not
count as one of the permitted registrations until it has become effective.
Notwithstanding the foregoing, however, in any twelve-month period the Company
shall not be required to effect more than one such registration on Form S-3, and
any such registration on Form S-3 shall be separated from any previous
registration on Form S-3 by a period of at least six months, subject to the
prior receipt by such Stockholders of notice of such previous registration in
accordance with Section 3(a).
(c) If at the time of any request to register Registrable Shares pursuant
to this Section 2, the Company is engaged or has firm plans to engage within 90
days of the time of the request in a registered public offering as to which the
Stockholders may include Registrable Shares pursuant to Section 3 or is engaged
in any other activity which, in the good faith determination of the Company's
Board of Directors, would be adversely affected by the requested registration to
the material detriment of the Company, then the Company may at its option direct
that such request be delayed for a period not in excess of one hundred twenty
(120) days from the effective date of such offering or the date of commencement
of such other material activity, as the case may be, such right to delay a
request to be exercised by the Company not more than once.
SECTION 3. INCIDENTAL REGISTRATION.
(a) Whenever the Company proposes to file a Registration Statement (other
than pursuant to Section 2), it will, prior to such filing, give written notice
to all Stockholders of its intention to do so and, upon the written request of a
Stockholder or Stockholders given within 20 days after the Company provides such
notice (which request shall state the intended method of disposition of such
Registrable Shares), the Company shall use its best efforts to cause all
Registrable Shares which the Company has been requested to register 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
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of such Stockholder(s); provided that the Company shall have the right to
postpone or withdraw any registration effected pursuant to this Section 3
without obligation to any Stockholder.
(b) In connection with any offering under this Section 3 involving an
underwriting, the Company 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 the Company 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 the Company. 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 the Company 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 shares other than Registrable Shares and Other
Registrable Shares shall be excluded from the underwriting before any
Registrable Shares are excluded from the underwriting and the holders of
Registrable Shares who have requested registration shall participate in the
underwriting pro rata based upon their total ownership of Registrable Shares and
Other Registrable Shares (or in any other proportion as agreed upon by such
holders) and if any holder would thus be entitled to include more shares than
such holder requested to be registered, the excess shall be allocated among
other requesting holders pro rata based on their total ownership of Registrable
Shares and Other Registrable Shares.
SECTION 4. REGISTRATION PROCEDURES. If and whenever the Company 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, the
Company shall:
(a) provide to the selling Stockholders drafts of the Registration
Statement and an opportunity to comment thereon and participate in the
preparation thereof prior to filing the Registration Statement with the
Commission;
(b) file with the Commission the Registration Statement and use its best
efforts to cause the Registration Statement to become and remain effective;
(c) 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 270 days from the
effective date;
(d) 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 Stockholders may reasonably request in order to
facilitate the public sale or other disposition of the Registrable Shares owned
by the selling Stockholders;
(e) 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 Stockholders shall
reasonably request, and do any and all other acts and things that may be
necessary or desirable to enable the selling Stockholders to consummate the
public sale or other disposition in such jurisdictions of the Registrable Shares
owned by the selling Stockholders; PROVIDED, HOWEVER, that the Company shall not
be required in connection with this paragraph (e) to qualify as a foreign
corporation or execute a general consent to service of process in any
jurisdiction.
(f) use its best efforts to secure the designation and quotation of the
Shares on the Nasdaq National Market or any national securities exchange on
which the Common Stock is then listed;
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(g) notify each Stockholder immediately at any time when a prospectus is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus, as then in effect, includes an untrue
statement of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and as promptly as
practicable thereafter, prepare, file and furnish to each Stockholder a
reasonable number of copies of a supplement or an amendment to such prospectus
as may be necessary so that such prospectus does not contain an 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, in light of the
circumstances under which they were made, not misleading; and, if requested, the
selling Stockholders shall immediately cease making offers of Registrable Shares
and shall return all prospectuses to the Company;
(h) use its best efforts to prevent the issuance of any stop order or other
order suspending the effectiveness of such Registration Statement and, if such
an order is issued, to obtain the withdrawal thereof at the earliest possible
time and to notify the Stockholders of the issuance of such order and the
resolution thereof; and
(i) furnish to the Stockholders and any underwriters of such Stockholders'
shares, on the date that such Registration Statement becomes effective, (i) an
opinion, dated such date, of outside counsel representing the Company (and
reasonably acceptable to the Stockholders) addressed to the Stockholders as to
the effectiveness of the registration statement and its compliance as to form
with the requirements of the Securities Act and such other matters as may be
reasonably requested by the Stockholders (including, if such registration
statement relates to an underwritten public offering, such additional matters as
are customarily included in opinions delivered by company counsel in
underwritten public offerings) and (ii) in the case of an underwriting, a
letter, dated such date, from the Company's independent certified public
accountants, in form and substance as is customarily given by independent
certified public accountants to underwriters in an underwritten public offering,
addressed to the underwriters, if any, and to the Stockholders.
SECTION 5. ALLOCATION OF EXPENSES. The Company shall pay the Registration
Expenses for the registrations requested by the Stockholders pursuant to Section
2 of this Agreement and of all registrations pursuant to Section 3 of this
Agreement. If a registration requested by the Stockholders pursuant to paragraph
(a) of Section 2 is withdrawn at the request of the Stockholders requesting it
(other than as a result of information concerning the business or financial
condition of the Company which is made known to the Stockholders after the date
on which such registration was requested) and if the requesting Stockholders
elect not to have such registration counted as a registration requested under
paragraph (a) of Section 2, the requesting Stockholders shall pay the
Registration Expenses of such registration pro rata in accordance with the
number of their Registrable Shares previously proposed to be included in such
registration. For purposes of this Agreement, the term "Registration Expenses"
shall mean all expenses incurred by the Company in complying with this
Agreement, including, without limitation, all registration and filing fees,
exchange listing fees, printing expenses, fees and disbursements of counsel for
the Company and one counsel for the selling Stockholders, state blue sky fees
and expenses, and the expense of any special audits incident to or required by
any such registration, but excluding underwriting discounts and selling
commissions. 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.
SECTION 6. INDEMNIFICATION. In the event of any registration of any of the
Registrable Shares under the Securities Act pursuant to this Agreement, the
Company will 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
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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 such 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 the statements therein, in light of the
circumstances under which they were made, not misleading, and the Company will
reimburse such seller, underwriter or controlling person for any legal or any
other expenses reasonably incurred by such seller, underwriter or controlling
person, respectively, in connection with investigating or defending any such
loss, claim, damage, liability or action; PROVIDED, HOWEVER, that the Company
will 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 the Company, in writing, by or on
behalf of such seller, underwriter or controlling person specifically for use in
the preparation thereof.
In the event of any registration of any of the Registrable Shares under the
Securities Act pursuant to this Agreement, each seller of Registrable Shares
included in such registration, severally and not jointly, will indemnify and
hold harmless the Company, each of its directors and officers and each
underwriter (if any) and each person, if any, who controls the Company 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
the Company, such directors and officers, underwriter or controlling persons may
become 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, in light of the circumstances under which they were made, not
misleading, if the statement or omission was made in reliance upon and in
conformity with information furnished in writing to the Company 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 seller hereunder shall be limited to an amount
equal to the proceeds to such seller from Registrable Shares sold in such
registration. Indemnification of any underwriter pursuant to this Section 6
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,
in the event that any error in a preliminary prospectus of the Company is
subsequently corrected in the final prospectus of the Company for a particular
offering, no indemnification shall be provided pursuant to this Section unless
the Company has provided the seller of Registrable Shares against whom
indemnification is sought with sufficient copies of the final prospectus and any
amendments and supplements thereto in accordance with the Company's obligations
under Section 4 of this Agreement.
Each party entitled to indemnification under this Section 6 (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
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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
Agreement. 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 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 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.
Except to the extent otherwise provided above, if the indemnification
provided for in this Section 6 is for any reason unavailable or insufficient to
hold harmless an indemnified party then each such indemnifying party in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages,
judgments or liabilities referred to above (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company, the
holders of Registrable Shares and the underwriters from the offering of the
shares or (ii) if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company, the holders of Registrable Shares and the underwriters in
connection with the statement or omission which resulted in such losses, claims,
damages, judgments or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company, the holders of
Registrable Shares and the underwriters shall be deemed to be in the same
proportion as the total net proceeds from the offering of the shares (before
deducting expenses) received by the Company and the holders of Registrable
Shares and the total underwriting discounts and commissions received by the
underwriters bear to each other. The relative fault of the Company, the holders
of Registrable Shares and the underwriters shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company, the holder of Registrable Shares or the
underwriters and that party's relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statements or omissions.
SECTION 7. 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 Section 2, the Company agrees to enter into
and perform its obligations under 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 the Company of the underwriters of
such offering. The Company covenants to use its best efforts to cause the
conditions to the underwriters' performance under such underwriting agreement to
be met.
SECTION 8. INFORMATION BY HOLDER. Each holder of Registrable Shares
included in any registration shall furnish to the Company such information
regarding such holder and the distribution proposed by such holder as the
Company may request in writing and as shall be required in connection with any
registration, qualification or compliance referred to in this Agreement.
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SECTION 9. "STAND-OFF" AGREEMENT. If a Stockholder holds more than one
percent of the outstanding Common Stock, it shall agree, if requested by the
Company and an underwriter of Common Stock or other securities of the Company,
not to sell or otherwise transfer or dispose of any Registrable Shares of the
Company held by such Stockholder for a specified period of time (not to exceed
120 days) following the effective date of a Registration Statement; PROVIDED
THAT, all Stockholders holding more than one percent of the outstanding Common
Stock and all officers and directors of the Company enter into similar
agreements. Such agreement shall be in writing in a form satisfactory to the
Company and such underwriter. The Company may impose stop-transfer instructions
with respect to the Registrable Shares or other securities subject to the
foregoing restriction until the end of the stand-off period.
SECTION 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 the Company to the public without
registration, the Company 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;
(b) use its best 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) furnish to any holder of Registrable Shares upon request a written
statement by the Company 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 the Company 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 the Company, and such other reports and documents of the Company as
such holder may reasonably request to avail itself of said Rule 144 or any
similar rule or regulation of the Commission allowing it to sell any such
securities without registration.
SECTION 11. SELECTION OF UNDERWRITER. In the case of any registration
effected pursuant to Section 2, the requesting Stockholders shall have the right
to designate the managing underwriter, subject to the approval of the Company,
which approval may not be unreasonably withheld or delayed.
SECTION 12. NO CONFLICT OF RIGHTS. The Company shall not, after the date
hereof, grant any registration rights which would adversely affect or impair the
registration rights granted hereby.
SECTION 13. SUCCESSORS AND ASSIGNS. Except as provided in Section 14
hereof, the provisions of this Agreement shall be binding upon and inure to the
benefit of, the respective successors, assigns, heirs, executors and
administrators of the parties hereto.
SECTION 14. ASSIGNMENT. (a) The rights granted to the Stockholders under
this Agreement may not be transferred except to any transferee or successor who
is (x) a general or limited partner, officer or other affiliate of such
Stockholder or any other affiliate of the Company or (y) who acquires at least
120,000 Registrable Shares (equitably adjusted to reflect stock splits,
dividends, combinations and like adjustments) (or such lesser number of shares
as may constitute such Stockholder's entire holding of Registrable Shares) and
who is not directly or indirectly a competitor of the Company or a partner,
officer, director, employee or owner of more than 1% of the outstanding
securities of any publicly traded direct or indirect competitor of the Company;
PROVIDED, HOWEVER, that the Company is given written notice by the transferee
stating the name and address of the transferee and identifying the securities
with
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respect to which such rights are being assigned. Notwithstanding the foregoing
restrictions with respect to competitors, a professional institutional investor
owning up to 20% of the outstanding securities of a direct or indirect
competitor of the Company may be a transferee of such rights provided that it
complies with the provisions of the previous sentence. For purposes hereof the
term "affiliate" shall mean, with respect to the Company, any officer, director
or holder of 5% or more of any class of the Company's stock and, with respect to
any Stockholder, any person who or which controls, is controlled by or under
common control with such Stockholder.
(b) TRANSFEREES. Any transferee to whom rights under this Agreement are
transferred shall, as a condition to such transfer, deliver to the Company a
written instrument by which such transferee agrees to be bound by the
obligations imposed upon the Stockholders hereby to the same extent as if such
transferee were a Stockholder hereunder.
(c) SUBSEQUENT TRANSFEREES. A transferee to whom rights are transferred
pursuant to this Section 14 may not again transfer such rights to any other
person or entity, other than as provided in (a) and (b) above.
SECTION 15. TERMINATION OF REGISTRATION RIGHTS. Notwithstanding any other
provision of this Agreement, the Company shall not be required pursuant to this
Agreement (i) to give notice of any proposed registration pursuant to Section 2
or Section 3 to any Stockholder if, based on record holdings, such Stockholder
could then sell pursuant to Rule 144 (or any similar rule) under any
Registration Statement in a single 90-day period all Registrable Shares
registered in the name of such holder, or (ii) to include in any Registration
Statement any Registrable Shares if as of the filing thereof such Stockholder
could then sell pursuant to Rule 144 (or any similar rule) under the Securities
Act in a single 90-day period all of such Registrable Shares requested to be
registered in such offering.
SECTION 16. NOTICES. All notices, requests, consents, and other
communications under this Agreement shall be in writing and shall be delivered
by hand, telecopy or telegram, overnight courier or first class certified or
registered mail, return receipt requested, postage prepaid:
If to the Company, to Dyax Corp., One Xxxxxxx Square, Building 600 - 5th
Xxxxx, Xxxxxxxxx, XX 00000, Attn: President, or such other address or addresses
as may have been furnished in writing by the Company to the Stockholders, with a
copy to Xxxxxxxxx X. Xxxxxxxx, Esq., Xxxxxx & Dodge LLP, Xxx Xxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000;
If to Genzyme, to its address set forth on the signature page of this
Agreement, or such other address or addresses as may have been furnished to the
Company in writing by such Stockholder.
Notices provided in accordance with this Section 16 shall be deemed
delivered on the date of personal delivery, telecopy or telegram, the next
business day after delivery by overnight courier, or 48 hours after the date of
mailing.
SECTION 17. ENTIRE AGREEMENT. This Agreement embodies the entire agreement
and understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements and understandings relating to such
subject matter, including without limitation the Prior Agreement.
SECTION 18. AMENDMENTS AND WAIVERS. 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 the Company and the holders of a majority of the Registrable Shares.
Any amendment or waiver effected in accordance with this Section 18 shall be
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binding upon each holder of Registrable Shares and the Company. 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.
SECTION 19. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Execution of an
undertaking agreeing to be bound by the terms of this Agreement shall be deemed
to be a counterpart signature to this Agreement.
SECTION 20. HEADINGS. The headings of the sections, subsections and
paragraphs of this Agreement have been added for convenience only and shall not
be deemed to be a part of this Agreement.
SECTION 21. SEVERABILITY. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision.
SECTION 22. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware.
[Remainder of Page Intentionally left blank]
[Signature Pages to follow]
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IN WITNESS WHEREOF, the undersigned have hereunto set their hand as of the
day and year first above written.
COMPANY:
DYAX CORP.
By:____________________________
Xxxxx X. Xxxxx
President
Notice Address:
Dyax Corp.
Xxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Chief Financial Officer
Fax: (000) 000-0000
STOCKHOLDER:
GENZYME CORP.
By:____________________________
Name:
Title:
Notice Address:
Genzyme Corp.
Xxx Xxxxxxx Xxxxxx, Xxxxxxxx 0000
Xxxxxxxxx, XX 00000
Attention: Chief Legal Officer
Fax: (000) 000-0000
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