REGISTRATION RIGHTS AGREEMENT
Exhibit
10.1
Execution
Copy
THIS
REGISTRATION RIGHTS AGREEMENT (“Agreement”) is entered into as
of December 30, 2009 between ANIKA THERAPEUTICS INC., a company incorporated
under the laws of the Commonwealth of Massachusetts (the “Company”) and FIDIA
FARMACEUTICI S.P.A., a company incorporated under the laws of Italy (the “Investor”).
RECITALS
WHEREAS, pursuant to that
certain Sale and Purchase Agreement, dated as of the date hereof (the “Purchase Agreement”), the
Company has agreed to issue to the Investor 1,981,192 shares (the “Shares”) of the Company’s
common stock, par value U.S. $0.01 per share (“Common Stock”), pursuant to
the terms and conditions of the Purchase Agreement and for the consideration
specified therein; and
WHEREAS, it is a condition
precedent to the closing under the Purchase Agreement that the Company and the
Investor have entered into this Agreement.
NOW, THEREFORE, in
consideration of the recitals and the mutual premises, covenants and agreements
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Definitions. For
purposes of this Agreement:
1.1. “Damages” means any loss,
damage, or liability (joint or several) to which a party hereto may become
subject under the Securities Act, the Exchange Act, or other U.S. federal or
U.S. state law, insofar as such loss, damage, or liability (or any action in
respect thereof) arises out of or is based upon (i) any untrue statement or
alleged untrue statement of a material fact contained in any registration
statement of the Company, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements thereto;
(ii) an 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 (iii) any violation or alleged violation by the indemnifying
party (or any of its agents or Affiliates (as defined in the Purchase
Agreement)) of the Securities Act, the Exchange Act, any state securities law,
or any rule or regulation promulgated under the Securities Act, the Exchange
Act, or any state securities law.
1.2. “Demand Registration Period”
means any period of time after the first anniversary of the Closing Date (as
defined in the Purchase Agreement) during which the Company is eligible to use a
Form S-3.
1.3. “Exchange Act” means the
Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.
1.4. “Excluded Registration” means
(i) a registration statement relating to the sale of securities to employees of
the Company or a subsidiary of the Company pursuant to a stock option, stock
purchase, or similar equity incentive plan; (ii) a registration statement
relating to an SEC Rule 145 transaction; (iii) a registration statement on any
form that does not include substantially the same information as would be
required to be included in a registration statement covering the sale of the
Registrable Securities; or (iv) a registration statement relating to the
issuance by the Company of securities other than (A) the Company’s Common Stock
or (B) any securities having substantially equivalent rights and ranking with
the Company’s Common Stock (“Equivalent
Stock”).
1.5. “Form S-1” means such form
under the Securities Act as in effect on the date hereof or any successor
registration form under the Securities Act subsequently adopted by the
SEC.
1.6. “Form S-2” means such form
under the Securities Act as in effect on the date hereof or any successor
registration form under the Securities Act subsequently adopted by the
SEC.
1.7. “Form S-3” means such form
under the Securities Act as in effect on the date hereof or any registration
form under the Securities Act subsequently adopted by the SEC that permits
incorporation of substantial information by reference to other documents filed
by the Company with the SEC.
1.8. “Registrable Securities” means
(i) the Shares; and (ii) any Common Stock issued as (or issuable upon the
conversion or exercise of any warrant, right, or other security that is issued
as) a dividend or other distribution with respect to, or in exchange for or in
replacement of, (a) the Shares or (b) any shares of Common Stock issuable under
this clause (ii).
1.9. “SEC” means the United States
Securities and Exchange Commission.
1.10. “SEC Rule 144” means Rule 144
promulgated by the SEC under the Securities Act.
1.11. “SEC Rule 145” means Rule 145
promulgated by the SEC under the Securities Act.
1.12. “Securities Act” means the
Securities Act of 1933, as amended, and the rules and regulations promulgated
thereunder.
1.13. “Selling Expenses” means all
underwriting discounts, selling commissions, and stock transfer taxes applicable
to the sale of Registrable Securities, and fees and disbursements of counsel for
the Investor.
2. Registration
Rights. The Company covenants and agrees as
follows:
2.1. Demand
Registration.
(a) Subject
to termination of the registration rights under Section 2.3 and to
the limitations of Section 2.3,
(i) at any time
during a Demand Registration Period, the Investor may by notice to the Company
request that the Company file a Form S-3 registration statement with respect to
the outstanding Registrable Securities of the Investor and (ii) upon such
request, the Company shall as soon as practicable, and in any event within
forty-five (45) days after the date such request is given by the Investor, file
a Form S-3 registration statement under the Securities Act covering all
Registrable Securities that the Investor requests to be included in such
registration statement. Notwithstanding anything contained herein to
the contrary, the Investor may not make any demand pursuant to Section 2.1(a)(i)
after a registration statement has become effective for Registrable Securities
of the Investor pursuant to a previous demand under Section
2.1(a)(i). The Company shall not be obligated to effect, or to
take any action to effect, any registration statement pursuant to Section 2.1(a)(i) during the
period that is thirty (30) days before the Company’s good faith estimate of the
date of filing of, and ending on a date that is ninety (90) days after the
effective date of, a Company-initiated registration of Common Stock (other than
a registration that is an Excluded Registration), provided, that the
Company is actively employing in good faith commercially reasonable efforts to
cause such registration statement to become effective.
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(b) Notwithstanding
the foregoing obligations, if the Company furnishes to the Investor a
certificate signed by the Company’s chief executive officer stating that in the
good faith judgment of the Company’s board of directors it would be materially
detrimental to the Company and its stockholders for such registration statement
to either become effective or remain effective for as long as such registration
statement otherwise would be required to remain effective, because such action
would (i) interfere with a significant acquisition, corporate reorganization, or
other similar transaction involving the Company; (ii) require premature
disclosure of material information that the Company has a bona fide business
purpose for preserving as confidential; or (iii) render the Company unable
to comply with requirements under the Securities Act or Exchange Act, then the
Company shall have the right to defer taking action with respect to such filing,
for a period of not more than one hundred twenty (120) days after the request of
the Investor is given; provided, however, that the
Company may not invoke this right more than once in any twelve (12) month
period; and provided, further, that the
Company shall not register any securities for its own account or that of any
other stockholder during such one hundred twenty (120) day period other than any
registration specified in clauses (i), (ii) or (iv) of the definition of
Excluded Registration.
2.2. Piggyback
Registration. If the Company proposes to register (including,
for this purpose, a registration effected by the Company for stockholders other
than the Investor) any of its Common Stock or Equivalent Stock under the
Securities Act in connection with the public offering of such securities solely
for cash (other than in an Excluded Registration), the Company shall, at such
time, promptly give the Investor notice of such registration. Upon
the request of the Investor given within fifteen (15) days after such notice is
given by the Company, the Company shall, subject to the provisions of Sections 2.3, 2.4(b) and 3.10,
cause to be registered all of the Registrable Securities that the Investor
requests to be included in such registration. The Company shall have
the right to terminate or withdraw any registration initiated by it under this
Section 2.2
before the effective date of such registration, whether or not the Investor has
elected to include Registrable Securities in such registration. The
expenses (other than Selling Expenses) of such withdrawn registration shall be
borne by the Company in accordance with Section 2.7.
2.3. Termination of Registration
Rights. The right of the Investor to request registration
pursuant to Section
2.1
shall terminate after a registration statement has become effective for
Registrable Securities of the Investor pursuant to a request made by the
Investor under Section
2.1. The right of the Investor to request inclusion of
Registrable Securities in any registration pursuant to Section 2.2 shall
terminate at such time as the Investor holds fewer than twenty-five percent
(25%) of the Shares (as adjusted for any stock splits, stock dividends,
recapitalizations or the like).
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2.4. Underwriting
Requirements.
(a) A
registration requested under Section Section 2.1 may not be by
means of an underwriting.
(b) In
connection with any offering involving an underwriting of shares of the
Company’s capital stock pursuant to Section 2.2, the
Company shall not be required to include any of the Investor’s Registrable
Securities in such underwriting unless the Investor accepts the terms of the
underwriting as agreed upon between the Company and its underwriters, and then
only in such quantity as the underwriters in their sole discretion determine
will not jeopardize the success of the offering by the Company. If
the total number of Registrable Securities requested by the Investor to be
included in such offering exceeds the number of securities to be sold that the
underwriters in their sole discretion determine is compatible with the success
of the offering, then the Company shall be required to include in the offering
only that number of Registrable Securities, which the underwriters and the
Company in their sole discretion determine will not jeopardize the success of
the offering.
2.5. Obligations of the
Company. Whenever required under this Section 2 to effect
the registration of any Registrable Securities, 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 its commercially reasonable efforts to cause such
registration statement to become effective and keep such registration statement
effective for a period of no less than one hundred twenty (120) days or, if
earlier, until the distribution contemplated in the registration statement has
been completed; provided, however, that (i)
such one hundred twenty (120) day period shall be extended for a period of time
equal to the period the Investor refrains, at the request of the Company, from
selling any securities included in such registration, and (ii) in the case of
any registration of Registrable Securities on Form S-3 that are intended to be
offered on a continuous or delayed basis, subject to compliance with applicable
SEC rules, such one hundred twenty (120) day period shall be extended for up to
ninety (90) days, if necessary, to keep the registration statement effective
until all such Registrable Securities are sold;
(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 Securities Act in order to
enable the disposition of all securities covered by such registration
statement;
(c) furnish
to the Investor such numbers of copies of a prospectus, including a preliminary
prospectus, as required by the Securities Act, and such other documents as the
Investor may reasonably request in order to facilitate its disposition of its
Registrable Securities;
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(d) use
its commercially reasonable efforts to register and qualify the securities
covered by such registration statement under such other U.S. securities or
blue-sky laws of such U.S. jurisdictions as shall be reasonably requested by the
Investor; provided
that the Company shall not be required to qualify to do business or to
file a general consent to service of process in any such states or
jurisdictions, unless the Company is already subject to service in such
jurisdiction and except as may be required by the Securities Act;
(e) in
the event of any underwritten public offering under Section 2.2, enter
into and perform its obligations under an underwriting agreement, in usual and
customary form, with the underwriter(s) of such offering;
(f) use
its commercially reasonable efforts to cause all such Registrable Securities
covered by such registration statement to be listed on a U.S. national
securities exchange or trading system and each securities exchange and trading
system (if any) on which similar securities issued by the Company are then
listed;
(g) provide
a transfer agent and registrar for all Registrable Securities registered
pursuant to this Agreement and provide a CUSIP number for all such Registrable
Securities, in each case not later than the effective date of such
registration;
(h) at
least 48 hours prior to the filing of any registration statement or prospectus
with respect to such Registrable Securities, or any amendment or supplement
thereto, furnish a copy thereof to the Investor and refrain from filing any such
registration statement, prospectus, amendment or supplement to which counsel to
the Investor shall have reasonably objected on the grounds that such document
does not comply in all material respects with the requirements of the Securities
Act, unless, in the case of an amendment or supplement, in the opinion of
counsel for the Company the filing of such amendment or supplement is reasonably
necessary to protect the Company from any liabilities under any applicable
federal or state law and such filing will not violate applicable
laws;
(i) notify
the Investor, promptly after the Company receives notice thereof, of the time
when such registration statement has been declared effective or a supplement to
any prospectus forming a part of such registration statement has been filed;
and
(j) after
such registration statement becomes effective, notify the Investor of any
request by the SEC that the Company amend or supplement such registration
statement or prospectus.
2.6. Furnish
Information. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Section 2 with
respect to the Registrable Securities of the Investor that the Investor shall
furnish to the Company such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such securities
as is reasonably required to effect the registration of the Investor’s
Registrable Securities.
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2.7. Expenses of
Registration. All expenses (other than Selling Expenses)
incurred in connection with registrations, filings, or qualifications pursuant
to this Section 2,
including all registration, filing, and qualification fees; printers’ and
accounting fees; and fees and disbursements of counsel for the Company, shall be
borne and paid by the Company; provided, however, that the
Company shall not be required to pay for any expenses of any registration
proceeding begun pursuant to Section 2.1 if the
registration request is subsequently withdrawn at the request of the Investor
(in which case the Investor shall bear such expenses), unless the Investor
agrees to forfeit its registration rights under Section 2.1(a); provided further that
if, at the time of such withdrawal, the Investor has learned of a material
adverse change in the condition, business, or prospects of the Company from that
known to the Investor at the time of its request and that has not otherwise been
publicly disclosed by the Company in its SEC filings, and has withdrawn the
request with reasonable promptness after learning of such information, then the
Investor shall not be required to pay any of such expenses and shall not forfeit
its registration rights under Section
2.1(a). All Selling Expenses relating to Registrable
Securities registered pursuant to this Section 2 shall be
borne and paid by the Investor.
2.8. Indemnification. If
any Registrable Securities are included in a registration statement under this
Section 2:
(a) To
the extent permitted by law, the Company will indemnify and hold harmless the
Investor, and the partners, members, officers, directors, Affiliates, and
stockholders of the Investor; legal counsel and accountants for the Investor;
any underwriter (as defined in the Securities Act) for the Investor; and each
Person (as defined in the Purchase Agreement), if any, who controls such
Investor or underwriter within the meaning of the Securities Act or the Exchange
Act, against any Damages, and the Company will pay to the Investor, underwriter,
controlling Person, or other aforementioned Person any legal or other expenses
reasonably incurred thereby in connection with investigating or defending any
claim or proceeding from which Damages may result, as such expenses are
incurred; provided, however, that the
indemnity agreement contained in this Section 2.8(a) shall not
apply to amounts paid in settlement of any such claim or proceeding if such
settlement is effected without the consent of the Company, nor shall the Company
be liable for any Damages to the extent that they arise out of or are based upon
actions or omissions made in reliance upon and in conformity with written
information furnished by or on behalf of the indemnified Person expressly for
use in connection with such registration.
(b) To
the extent permitted by law, the Investor will indemnify and hold harmless the
Company, and each of its directors, each of its officers who has signed the
registration statement, each Person (if any), who controls the Company within
the meaning of the Securities Act, legal counsel and accountants for the
Company, any underwriter (as defined in the Securities Act), and any controlling
Person of any such underwriter, against any Damages, in each case only to the
extent that such Damages arise out of or are based upon actions or omissions
made in reliance upon and in conformity with written information furnished by or
on behalf of the Investor expressly for use in connection with such
registration; and the Investor will pay to the Company and each other
aforementioned Person any legal or other expenses reasonably incurred thereby in
connection with investigating or defending any claim or proceeding from which
Damages may result, as such expenses are incurred; provided, however, that the
indemnity agreement contained in this Section 2.8(b) shall not
apply to amounts paid in settlement of any such claim or proceeding if such
settlement is effected without the consent of the Investor; and provided further that
in no event shall any indemnity under this Section 2.8(b) exceed the
proceeds from the offering received by the Investor (net of any Selling Expenses
paid by the Investor), except in the case of fraud or willful misconduct by the
Investor.
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(c) Promptly
after receipt by an indemnified party under this Section 2.8 of notice of the
commencement of any action (including any governmental action) for which a party
may be entitled to indemnification hereunder, such indemnified party will, if a
claim in respect thereof is to be made against any indemnifying party under this
Section 2.8, give the
indemnifying party notice of the commencement thereof, but any failure or delay
in giving such notice shall not relieve the indemnifying party from any
liability except to the extent that it is materially prejudiced by such failure
or delay. The indemnifying party shall at its election have the right
to either (i) participate in such action or (ii) to assume the defense thereof;
provided, however, that the
indemnified parties as a group (together with all other indemnified parties that
may be represented without conflict by one counsel) shall have the right to
retain one separate counsel, with the reasonable fees and expenses to be paid by
the indemnifying party, if representation of such indemnified party(ies) by the
counsel retained by the indemnifying party would be inappropriate due to actual
or potential differing interests between such indemnified party(ies) and any
other party represented by such counsel in such action.
(d) To
provide for just and equitable contribution to joint liability under the
Securities Act in any case in which either (i) any party otherwise entitled to
indemnification hereunder makes a claim for indemnification pursuant to this
Section 2.8 but it is
judicially determined (by the entry of a final judgment or decree by a court of
competent jurisdiction and the expiration of time to appeal or the denial of the
last right of appeal) that such indemnification may not be enforced in such
case, notwithstanding the fact that this Section 2.8 provides for
indemnification in such case, or (ii) contribution under the Securities Act may
be required on the part of any party hereto for which indemnification is
provided under this Section 2.8, then, and in
each such case, such parties will contribute to the aggregate losses, claims,
damages, liabilities, or expenses to which they may be subject (after
contribution from others) in such proportion as is appropriate to reflect the
relative fault of each of the indemnifying party and the indemnified party in
connection with the statements, omissions, or other actions that resulted in
such loss, claim, damage, liability, or expense, as well as to reflect any other
relevant equitable considerations. The relative fault of the
indemnifying party and of the indemnified party shall be determined by reference
to, among other things, whether the untrue or allegedly untrue statement of a
material fact, or the omission or alleged omission of 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; provided, however, that, in any
such case, (x) the Investor will not be required to contribute any amount in
excess of the public offering price of all such Registrable Securities offered
and sold by the Investor pursuant to such registration statement, and (y) no
Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) will be entitled to contribution from any party who
was not guilty of such fraudulent misrepresentation; and provided further that
in no event shall the Investor’s liability pursuant to this Section 2.8(d), when combined
with the amounts paid or payable by the Investor pursuant to Section 2.8(b), exceed the
proceeds from the offering received by the Investor (net of any Selling Expenses
paid by the Investor), except in the case of willful misconduct or fraud by the
Investor.
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(e) Unless
otherwise superseded by an underwriting agreement entered into in connection
with the underwritten public offering under Section 2.2, the
obligations of the Company and the Investor under this Section 2.8 shall survive
the completion of any offering of Registrable Securities in a registration under
this Section 2
2.8, and otherwise shall survive the termination of this
Agreement.
2.9. Reports Under Exchange
Act. With a view to making available to the Investor the
benefits of SEC Rule 144 and any other rule or regulation of the SEC that may at
any time permit the Investor to sell securities of the Company to the public
without registration or pursuant to a registration on Form S-3, the Company
shall:
(a) use
commercially reasonable efforts to make and keep available adequate current
public information, as those terms are understood and defined in SEC Rule
144;
(b) use
commercially reasonable efforts to file with the SEC in a timely manner all
reports and other documents required of the Company under the Securities Act and
the Exchange Act; and
(c) furnish
to the Investor, forthwith upon request (i) to the extent accurate, a written
statement by the Company that it has complied with the reporting requirements of
SEC Rule 144, the Securities Act, and the Exchange Act, or that it qualifies as
a registrant whose securities may be resold pursuant to Form S-3; and (ii) such
other information as may be reasonably requested in availing the Investor of any
rule or regulation of the SEC that permits the selling of any such securities
without registration or pursuant to Form S-3.
2.10. “Market Stand-off”
Agreement. The Investor hereby agrees that it will not,
without the prior written consent of the managing underwriter, during the period
commencing on the date of the final prospectus relating to the registration by
the Company for its own behalf of shares of its Common Stock or any other
securities of the Company, under the Securities Act on a registration
statement on Form X-0, Xxxx X-0, or Form S-3 and ending on the date
specified by the Company and the managing underwriter (such period not to exceed
ninety (90) days, which period may be extended upon the request of the managing
underwriter, to the extent required by any NASD rules, for an additional period
of up to fifteen (15) days if the Company issues or proposes to issue an
earnings or other public release within fifteen (15) days of the expiration of
the 90-day lockup period), (i) lend; offer; pledge; sell; contract to sell; sell
any option or contract to purchase; purchase any option or contract to sell;
grant any option, right, or warrant to purchase; or otherwise transfer or
dispose of, directly or indirectly, any shares of Common Stock or any securities
convertible into or exercisable or exchangeable (directly or indirectly) for
Common Stock held immediately before the effective date of the registration
statement for such offering or (ii) enter into any swap or other
arrangement that transfers to another, in whole or in part, any of the economic
consequences of ownership of such securities, whether any such transaction
described in clause (i) or (ii) above is to be settled by delivery of Common
Stock or other securities, in cash, or otherwise. The foregoing
provisions of this Section 2.10
shall not apply to (i) any shares included in such registration statement
pursuant to the Investor’s rights under Section 2.2 or (ii) the sale of any
shares to an underwriter pursuant to an underwriting agreement, and shall be
applicable to the Investor only if all senior officers and directors of the
Company are subject to the same restrictions. The underwriters in
connection with such registration are intended third-party beneficiaries of this
Section 2.10 and shall have the
right, power, and authority to enforce the provisions hereof as though they were
a party hereto. The Investor further agrees to execute such
agreements as may be reasonably requested by the underwriters in connection with
such registration that are consistent with this Section 2.10 or that are
necessary to give further effect thereto.
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3. Miscellaneous.
3.1. Successors and
Assigns. The rights and obligations provided for in this
Agreement may not be assigned, delegated or transferred by either party without
the prior written consent of the other party, except that this Agreement may be
assigned or transferred in full to a successor in ownership of all or
substantially all of the business or assets of the Investor (whether by merger,
consolidation, sale or otherwise) without the prior consent of the Company;
provided, that
the Investor provides written notice to the Company of such assignment and the
assignee of this Agreement agrees in writing to be bound as such party
hereunder; and provided further, that this
Agreement must be assigned to and shall be assumed by and enforceable against a
successor in ownership of all or substantially all of the business or assets of
the Company (whether by merger, consolidation, sale or
otherwise). Notwithstanding anything to the contrary in this
Agreement, any assignment, delegation or transfer, or any such assignment or
transfer, in violation of this Section 3.1 shall be
void. This Agreement shall inure to the benefit of, and be binding
upon, the legal representatives, successors and permitted assigns of each of the
parties.
3.2. Governing
Law. This Agreement shall be governed, in all respects,
including validity, interpretation and effect by the laws of the Commonwealth of
Massachusetts, without regards to conflicts of law principles that could result
in the application of the law of any other jurisdiction.
3.3. CONSENT TO
JURISDICTION. EACH PARTY HERETO HEREBY IRREVOCABLY AGREES THAT
ANY SUIT, ACTION, PROCEEDING OR CLAIM AGAINST IT ARISING OUT OF OR IN ANY WAY
RELATING TO THIS AGREEMENT, OR ANY JUDGMENT ENTERED BY ANY COURT IN RESPECT
THEREOF, MAY BE BROUGHT OR ENFORCED IN THE STATE OR FEDERAL COURTS LOCATED IN
THE COMMONWEALTH OF MASSACHUSETTS, AND EACH PARTY HERETO HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW
OR HEREAFTER HAVE TO THE VENUE OF ANY PROCEEDING BROUGHT IN THE COMMONWEALTH OF
MASSACHUSETTS AND FURTHER IRREVOCABLY WAIVES ANY CLAIMS THAT ANY SUCH PROCEEDING
HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
3.4. Counterparts; Facsimile. This
Agreement may be executed and delivered (i) by facsimile or PDF
signature and (ii) in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
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3.5. Titles and
Subtitles. The titles and subtitles used in this Agreement are
for convenience only and are not to be considered in construing or interpreting
this Agreement.
3.6. Notices. Any
communication or notice required or permitted to be given under this Agreement
shall be made in writing and in the English language and shall be deemed to have
been duly and validly given (i) in the case of notice sent by letter, upon
receipt of the same, and (ii) in the case of notice sent by telefax, upon
acknowledgement of successful and complete transmission by the fax machine of
the sending party, addressed, in each case, to the addresses indicated in the
preamble of the Purchase Agreement or to such other address as each party may
hereafter furnish to the other by written notice, as herein
provided.
3.7. Amendments and
Waivers. This Agreement may only be waived, changed, modified
or discharged by an agreement in writing signed by the Company and the
Investor. 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.
3.8. Severability. In
case any one or more of the provisions contained in this Agreement is for any
reason held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality, or unenforceability shall not affect any other provision
of this Agreement, and such invalid, illegal, or unenforceable provision shall
be reformed and construed so that it will be valid, legal, and enforceable to
the maximum extent permitted by law.
3.9. Entire
Agreement. This Agreement: (a) supersedes all prior agreements
relating to the same matter and (b) contains, jointly with the Purchase
Agreement, the entire understanding between the Investor and the Company with
respect to the subject matter hereof.
3.10. Termination. Notwithstanding
anything contained in this Agreement to the contrary, this Agreement shall
terminate and the Company shall have the right to terminate or withdraw any then
effective registration statement relating to Registrable Securities, at any time
that the Investor is able to sell its outstanding Registrable Securities without
restriction under SEC Rule 144(b)(1) as a Person that is not an “affiliate” of
the Company (within the meaning of SEC Rule 144). For all purposes of
this Agreement, whether the Investor is able to “sell its outstanding
Registrable Securities without restriction under SEC Rule 144(b)(1),” including
without limitation whether the Investor is not an “affiliate” of the Company
(within the meaning of SEC Rule 144), shall be determined by the Investor,
reasonably and in good faith after consultation with its counsel. In
the event the Company and the Investor disagree as to the Investor’s status as
an “affiliate,” then the Company and the Investor agree to discuss such matter
in good faith; provided, that the
final determination shall be made by the Investor, acting reasonably and in good
faith, and taking into consideration the discussions with the Co
mpany.
[Remainder
of Page Intentionally Left Blank]
-10-
IN WITNESS WHEREOF, the
parties have executed this Agreement as of the date first written
above.
|
ANIKA
THERAPEUTICS, INC.
|
|||
|
|
By:
|
/s/ Xxxxxxx X. Xxxxxxxx | |
| Name: Xxxxxxx X. Xxxxxxxx | |||
|
Title: Chief
Executive Officer and President
|
|||
|
FIDIA
FARMACEUTICI S.P.A.
|
|||
|
|
By:
|
/s/ Xxxxxxx Xxxxxxx | |
| Name: Xxxxxxx Xxxxxxx | |||
| Title: Managing Director | |||
-11-
