Exhibit 10.3
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made as of
December 23, 1994, by and among Osiris Therapeutics, Inc., a Delaware
corporation (the "Investor"), The Xxxxx Xxxxxxx University ("JHU"), Xxxx X.
Xxxxx, M.D. ("Xx. Xxxxx") and Xxxxxx Xxxxx, M.D. ("Dr. Small," and together
with Xx. Xxxxx, the "Founder Stockholders") (the Investor, the Founder
Stockholders and JHU, collectively, the "Stockholders"), and Gryphon
Pharmaceuticals, Inc., a Delaware corporation (the "Company").
The parties to this Agreement hereby agree as follows:
1. Required Registration. Upon the receipt by the Company from the
Investor of a written request (the "Request") for the registration of Common
Shares (as defined in Section 16(h) below) owned by such Investor at any time
and from time to time after the 180th day after the date on which the Company
completes an initial public offering of its capital stock pursuant to an
effective registration statement filed with the Securities and Exchange
Commission ("SEC") under the Securities Act of 1933, as amended (the "1933
Act"), the Company shall use its best efforts to prepare and file a
registration statement under the 1933 Act covering the Common Shares which
are the subject of the Request. The Investor shall be entitled to three
registrations under this Section 1. In the event that the Investor
determines for any reason (other than at the request or recommendation of the
Company or the managing underwriters) not to proceed with a registration of
Common Shares requested pursuant to this Section 1 at any time before the
registration statement has been declared effective by the SEC, and such
registration statement, if theretofore filed with the SEC, is withdrawn with
respect to the Common Shares covered thereby, and the Investor agrees to
reimburse the Company for all fees, costs and expenses incurred by it in
connection therewith, then the Investor shall not be deemed to have exercised
one of its rights to require the Company to register Common Shares pursuant
to this Section 1. If the Investor determines not to proceed with such a
registration upon the request or recommendation of the Company or the
managing underwriters, the Investor shall not be required to reimburse the
Company for its fees, costs and expenses, and the Investor shall not be
deemed to have exercised one of its rights to require the Company to register
Common Shares pursuant to this Section 1. The Company shall not, without the
prior written consent of the Investor, effect any registration of its
securities (other than on Form S-4 or Form S-8, or a successor form thereto)
from the date the Company receives a Request pursuant to this Section 1 until
the earlier of (a) 90 days after the date on which all securities covered by
such Request have been sold or (b) 180 days after the effective date of the
registration statement covering such securities.
2. Incidental Registration. Each time the Company shall determine to
proceed with the preparation and filing of a registration statement under the
1933 Act in connection with the proposed offer and sale for money of any of
its securities, whether by the Company or any of its security holders (other
than on Forms S-4 or S-8, or any successor or similar form), the Company
shall give written notice of its determination to the Stockholders. Upon the
written request of any of the Stockholders given to the Company within 30
days after the mailing of any such notice by the Company, the Company shall,
subject to Section 5 hereof, cause all such Common Shares which such
Stockholder has requested to be registered to be included in such
registration statement.
3. Short Form Registration. In addition to the registration rights
provided in Sections 1 and 2 hereof, if the Company qualifies for the use of
Form S-3 or any similar short form registration statement then available
(other than Form S-4 or Form S-8, or any successor or similar form), the
Company shall use its best efforts to register Common Shares on such form on
behalf of the Investor at the request of the Investor. All registrations
effected under this Section 3 shall be at the expense of the Company. The
Investor shall be entitled to two (2) registrations under this Section 3. In
the event that the Investor determines for any reason (other than at the
request or recommendation of the Company or the managing underwriters) not to
proceed with a registration of Common Shares requested pursuant to this
Section 3 at any time before the registration statement has been declared
effective by the SEC, and such registration statement, if theretofore filed
with the SEC, is withdrawn with respect to the Common Shares covered thereby,
and the Investor agrees to reimburse the Company for all fees, costs and
expenses incurred by it in connection therewith, then the Investor shall not
be deemed to have exercised one of its rights to require the Company to
register Common Shares pursuant to this Section 3. If the Investor
determines not to proceed with such a registration upon the request or
recommendation of the Company or the managing underwriters, the Investor
shall not be required to reimburse the Company for its fees, costs and
expenses, and the Investor shall not be deemed to have exercised one of its
rights to require the Company to register Common Shares pursuant to this
Section 3.
4. Limitations. Notwithstanding the provisions of Sections 1 and 3
hereof: (a) the Company shall have the right to delay or suspend the
preparation and filing of a registration statement for up to 90 days if in
the reasonable judgment of a majority of the Directors on the Board of
Directors of the Company such preparation or filing would harm or hinder in
any material fashion the ability of the Company to conduct its affairs or
would have a material adverse effect on the business, properties or financial
condition of the Company; provided that the Company shall use its best
efforts to cause any such registration statement to become effective within
150 days of receipt of the request therefor and shall only be entitled to
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utilize this clause (a) once in any 12 month period; (b) if the Company has
given notice under Section 2 hereof that it intends to prepare and file a
registration statement (a "Section 2 Registration Statement"), then the
Company shall have the right to delay or suspend the filing of the
registration statement requested by the Investor; provided that the Company
shall use its best efforts to cause any such registration statement requested
by the Investor to become effective within 180 days (or, if required by the
underwriters for the Section 2 Registration Statement, within 270 days) after
the date on which all securities covered by the Section 2 Registration
Statement have been sold, and that the Company shall use its best efforts to
include any Common Shares that are the subject of a notice delivered by
Investor under Section 2 in such Section 2 Registration Statement; (c) the
Company shall not be required to prepare or file a registration statement
with respect to any Request under Section 1 if the Common Shares covered
thereby constitute less than twenty percent (20%) of the Common Shares then
held by the Investor unless the reasonably anticipated aggregate offering
price of such Common Shares exceeds $5,000,000; and (d) in the event the
Company elects to include any Company Common Shares as a primary offering in
any registration which has been initiated by the Investor pursuant to Section
1 or 3, such offering shall be deemed for all purposes of this Agreement to
be a registration pursuant to Section 2 hereof.
5. Pro Ration. If Common Shares (including any Common Shares of the
Company to be issued and sold by it) are to be included under Sections 1, 2
or 3 above in a registration statement which pertains to an underwritten
public offering and the managing underwriters advise the Company in writing
that in their opinion the number of Common Shares requested to be included
exceeds the number of Common Shares which can be sold in such offering, the
Company will include in such registration (i) first, the Common Shares which
the Company proposes to issue and sell, (ii) second, such Common Shares as to
which registration rights have been exercised by the Investor under either
Sections 1 or 3, as the case may be (the "Demand Shares"), on a pro rata
basis among the holders of Demand Shares according to the relation the number
of Common Shares owned by each such holder bears to the total number of
Common Shares owned by all such holders, (iii) third, the number of Common
Shares requested by the Investor (to the extent its request was not pursuant
to Sections 1 or 3) and other Stockholders to be included which in the
opinion of such underwriters can be sold (the "Secondary Shares"), on a pro
rata basis among holders of such Secondary Shares according to the relation
the number of Common Shares owned by each such holder bears to the total
number of Common Shares owned by all such holders (exclusive of Demand Shares
in each case), and (iv) fourth, any other Common Shares requested to be
included in such registration statement by persons other than the
Stockholders.
6. Standstill. Each Stockholder agrees in connection with any
underwritten public offering of the Company's securities
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pursuant to an effective registration statement under the 1933 Act that upon
request of the managing underwriter(s) it shall commit itself in writing not
to sell or offer to sell any Common Shares (other than such shares included
in the underwritten public offering), during the seven days prior to, and for
a period not to exceed 180 days from, the date of the final prospectus used
in such offering; provided, however, that (a) such agreement shall apply only
to the first such underwritten public offering of the Company and to any
underwritten public offering occurring within twelve months of the Company's
first underwritten public offering and (b) such Stockholder shall have no
obligation to enter into the agreement described in this Section 6 unless all
executive officers and Directors of the Company, and any holder of more than
10% of the Company's issued and outstanding Common Shares, enter into
similar agreements.
7. Registration Procedures. If and whenever the Company is required by
the provisions of Sections 1, 2 or 3 to effect the registration of Common
Shares under the 1933 Act, the Company will, as expeditiously as possible:
(a) subject to the provisions of Section 4, prepare and file with the SEC
within 60 days of the Company's receipt of the Investor's Request (or other
request therefore) a registration statement with respect to such Common
Shares, and use its best efforts to cause such registration statement to
become effective within 100 days of the Company's receipt of such request
and remain effective for such period as may be reasonably necessary to
effect the sale of such Common Shares, not to exceed 180 days (this
provision shall not be applicable to registrations pursuant to Section 2);
(b) prepare and file with the SEC such amendments to such registration
statement and supplements to the prospectus contained therein as may be
necessary to keep such registration statement effective until the earlier of
(i) the date on which all Common Shares covered by such registration
statement have been sold and (ii) 180 days after the effective date of
such registration statement;
(c) use its best efforts to register or qualify the Common Shares for sale
under such other securities or blue sky laws of such jurisdictions as the
selling Stockholder or, in the case of an underwritten public offering, the
managing underwriter shall reasonably request (including factors such as the
cost to the Company) and do any and all other acts and things which may be
reasonably necessary or desirable to enable the selling Stockholders to
consummate the disposition of the Common Shares in such jurisdictions;
provided, however, the Company shall not be required to qualify generally to
do business in jurisdictions where it is not otherwise so qualified or to
consent to general service of process in any such jurisdiction;
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(d) furnish to the selling Stockholders and to the underwriters of the
securities being registered a reasonable number of copies of the
registration statement, preliminary prospectus, final prospectus, and such
other documents as each selling Stockholder or underwriters may reasonably
request in order to facilitate the public offering of such securities;
(e) notify each selling Stockholder promptly after it shall receive notice
thereof, of the time when such registration statement has become effective
or a supplement to any prospectus forming a part of such registration
statement has been filed;
(f) prepare and file with the SEC, promptly upon the request of a selling
Stockholder, any amendments or supplements to such registration statement or
prospectus which, in the opinion of counsel for such selling Stockholder
(and concurred in by counsel for the Company), is required under the 1933
Act or the rules and regulations thereunder in connection with the
distribution of the Common Shares;
(g) prepare and promptly file with the SEC, and promptly notify a selling
Stockholder of the filing of, any amendment or supplement to such
registration statement or prospectus as may be necessary to correct any
statements or omissions if, at the time when a prospectus relating to such
securities is required to be delivered under the 1933 Act, any event shall
have occurred as the result of which any such prospectus or any other
prospectus as then in effect would include an untrue statement of a material
fact or omit to state any material fact necessary to make the statement
therein, in the light of the circumstances in which they were made, not
misleading;
(h) advise the selling Stockholder promptly after it shall receive notice
or obtain knowledge thereof, of the issuance of any stop order by the SEC
suspending the effectiveness of such registration statement or the
initiation or threatening of any proceeding for that purpose and promptly
use its best efforts to prevent the issuance of any stop order or to obtain
its withdrawal if such stop order should be issued; and
(i) if the offering is underwritten at the request of a selling
Stockholder, furnish on the date or dates provided for in the underwriting
agreement: (i) an opinion of counsel for the Company addressed to the
underwriters opining as to such matters as may be reasonably agreed to
by such underwriters and the Company; and (ii) a letter or letters from the
independent certified public accountants of the Company, addressed to the
underwriters covering such matters as such underwriters request, in which
letters such accountants shall state (without limiting the generality of
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the foregoing) that they are independent certified public accountants
within the meaning of the 1933 Act and that in the opinion of such
accountants the financial statements and other financial data of the
Company included in the registration statement or any amendment or
supplement thereto comply in all material respects with the applicable
accounting requirements of the 1933 Act.
8. Expenses. With respect to the registrations requested pursuant to
Section 1 hereof, and with respect to each inclusion of Common Shares in a
registration statement pursuant to Section 2 hereof, and with respect to all
registrations requested pursuant to Section 3 hereof, the Company shall bear
the reasonable fees, costs and expenses of such registrations, including but
not limited to the following fees, costs and expenses: all registration,
filing, and stock exchange fees, printing expenses, fees and disbursements of
counsel and accountants for the Company, fees and disbursements of other
persons or entities retained by the Company, all legal fees and disbursements
and other expenses of complying with state securities or blue sky laws of any
jurisdictions in which the securities to be offered are to be registered or
qualified, and the reasonable fees and disbursements of one counsel for the
Stockholders participating in such registration. The Stockholders
participating in such registration shall be responsible for, and shall pay,
their pro rata share of underwriting discounts and commissions with respect
to the Common Shares being sold by them.
9. Indemnification.
(a) By the Company. The Company shall indemnify and hold harmless each
holder of Common Shares that are included in a registration statement
pursuant to this Agreement and any underwriter (as defined in the 0000 Xxx)
for such holder and each person, if any, who controls such holder or such
underwriter within the meaning of the 1933 Act, from and against any and all
loss, damage, liability or claims, to which such holder or any such
underwriter or controlling person becomes subject under the 1933 Act or
otherwise, and subject to the provisions of Section 9(c) hereof to reimburse
them, from time to time upon request, for any legal or other costs or
expenses reasonably incurred by them in connection with investigating any
claims or defending any actions (as provided in Section 9(c) hereof), insofar
as such losses, damages, liabilities, claims, costs or expenses are caused
by any untrue statement or alleged untrue statement of any material fact
contained in such registration statement, any prospectus contained therein or
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading; provided, however,
that the Company will not be liable in any such case to the extent that any
such loss, damage, liability, claim, cost or expense arises out of or is
based upon
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(i) an untrue statement or alleged untrue statement or omission or
alleged omission (other than a statement or omission about the Company) made
in conformity with information furnished by the Investor in writing
specifically for use in the preparation of a registration statement or (ii)
the holders' failure to deliver a copy of the registration statement,
prospectus or any amendments or supplements thereto as required by law, unless
such failure was the result of the Company's failure to provide same to such
holder.
(b) B Holders of Common Shares. Each holder, severally and not jointly,
of Common Shares that are included in a registration pursuant to this
Agreement will indemnify and hold harmless the Company, each other holder,
any underwriter and each person, if any, who controls the Company, such other
holder or such underwriter, from and against any and all loss, damage,
liability or claim, to which the Company or such other holder or any
controlling person and/or any underwriter becomes subject under the 1933 Act
or otherwise and to reimburse them, from time to time upon request, for any
legal or other costs or expenses reasonably incurred by them in connection
with investigating any claims or defending any actions, insofar as such
losses, damages, liabilities, costs, or expenses are caused by any untrue or
alleged untrue statement of any material fact contained in such registration
statement, any prospectus contained therein, or any amendment or supplement
thereto, or arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in
which they were made, not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was so made in reliance upon and in strict
conformity with written information furnished by such holder specifically for
use in the preparation of such registration statement.
(c) Notice. Promptly after receipt by an indemnified party pursuant to
the provisions of paragraph (a) or (b) of this Section 9 of notice of the
commencement of any action involving the subject matter of the foregoing
indemnity provision, such indemnified party will, if a claim thereof is to be
made against the indemnifying party pursuant to the provisions of said
paragraph (a) or (b), promptly notify the indemnifying party in writing of
the commencement thereof; but the omission to so notify the indemnifying
party will not relieve it from any liability which it may have to any
indemnified party otherwise than hereunder and shall only relieve it from any
liability which it may have to such indemnified party under this Section 9 if
and to the extent the indemnifying party is prejudiced by such omission. In
case 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 satisfactory to such indemnified
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party; provided, however, if the defendants in any action include both the
indemnified party and the indemnifying party and there is a conflict of
interest 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 separate counsel to participate in the defense of
such action on behalf of such indemnified party or parties; provided, that
the Company's obligation under Section 9(a) to reimburse any such indemnified
party or parties for legal costs and expenses shall be limited to the legal
costs and expenses of one such separate counsel. 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 paragraph (a) or (b) for
any legal or other expense subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation, unless (i) the indemnified party shall have employed counsel
in accordance with the proviso of the preceding sentence, (ii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after the notice of the commencement of the action, or (iii) the indemnifying
party has authorized the employment of counsel for the indemnified party at
the expense of the indemnifying party.
(d) Contribution. If for any reason the indemnification provided for in
paragraphs (a) and (b) is unavailable to an indemnified party or insufficient
to hold it harmless as contemplated by such paragraphs, then the indemnifying
party shall contribute to the amount paid or payable by the indemnified party
as a result of such loss, claim, damage or liability in such proportion as is
appropriate to reflect not only the relative benefits received by the
indemnified party and the indemnifying party, but also the relative fault of
the indemnified party and the indemnifying party, as well as any other
relevant equitable considerations; provided, however, that, in any such case,
(i) no holder of Common Shares will be required to contribute any amount in
excess of the sales price of all such Common Shares sold by such holder
pursuant to such registration statement, and (ii) no holder of Common Shares
guilty of a fraudulent misrepresentation (within the meaning of Section 11(f)
of the 0000 Xxx) will be entitled to contribution from any holder of Common
Shares who was not guilty of such fraudulent misrepresentation.
Promptly after receipt by a holder of Common Shares of notice of the
commencement of any action, suit or proceeding in connection with a public
offering of Common Shares, such holder will, if a claim for contribution in
respect thereof is able to be made against another party, notify the
contributing party of the commencement thereof. The omission so to notify the
contributing party will not relieve it from any liability which it may have
to any other party other than for contribution under the 1933 Act. In case
any such action, suit or proceeding is
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brought against any party, and such party notifies a contributing party of
the commencement thereof, the contributing party will be entitled to
participate therein with the notifying party and any other contributing party
similarly notified.
10. Transfer of Registration Rights. The registration rights and related
obligations provided herein may be assigned by a Stockholder to any person or
entity that acquires Common Shares from such Stockholder, and the term
"Stockholder" shall include the original Stockholder and any person that
acquires Common Shares from such Stockholder or any subsequent Stockholder;
provided, however, that (a) the Company shall be given written notice by the
transferor thereof at the time of such transfer stating the name and address
of the transferee and identifying the securities with regard to which such
rights are being transferred, (b) the transferee shall agree in writing to
assume the obligations of the transferor hereunder and (c) the registration
rights and related obligations may not be transferred with any Common Shares
sold in a registered offering.
11. Stockholder to Provide Information. In the event a Stockholder
requests a registration of Common Shares as provided herein, such Stockholder
shall provide all such information and materials and shall take all such
actions as may be reasonably required in order to permit the Company to
comply with all applicable requirements of the SEC and to obtain any desired
acceleration of the effective date of such registration statement.
Specifically, the Company may require the Stockholder to furnish the Company
with such information regarding such Stockholder and the distribution of its
securities as the Company may from time to time reasonably request in writing
and as shall be required by law or the SEC.
12. Rule 144 Reporting. With a view to making available the benefits of
certain rules and regulations of the SEC which may permit the sale of the
Common Shares to the public without registration, the Company agrees to:
(a) Make and keep public information available, as those terms are
understood and defined in Rule 144 under the 1933 Act, at all times from and
after 90 days following the effective date of the first registration under
the 1933 Act filed by the Company for an offering of its securities to the
general public;
(b) Use its best efforts to file with the SEC in a timely manner all
reports and other documents required of the Company under the 1933 Act and
the Securities Exchange Act of 1934, as amended (the "1934 Act"); and
(c) So long as Stockholders own any Common Shares, furnish to such
Stockholder forthwith upon request a written statement by the Company as to
its compliance with the reporting requirements of the 1933 Act and the 1934
Act, a copy of the most recent annual or quarterly report of the Company, and
such other reports and documents so filed as the Stockholder may reasonably
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request in availing itself of any rule or regulation of the SEC allowing the
Stockholder to sell any such securities without registration.
13. Granting of Registration Rights. The Company shall not, without the
prior written consent of the Investor grant to any person or entity
registration rights of any kind or nature with respect to Common Shares or
other capital shares or the Company if such rights would have priority over
the rights granted to the Investor pursuant to this Agreement, whether in
terms of the number of shares which holders may include in any registration,
the timing of any registration of shares, the rights of holders to demand
registration of shares held by them at the time requested by them, or in any
other material respect; provided, however, that the prior written consent of
the Stockholders (other than the Investor) holding at least 60% of the Common
Stock (not including the Common Stock held by the Investor) shall also be
required if the Company proposes to grant to any person or entity
registration rights that would adversely affect the rights of the
Stockholders under Section 2 of this Agreement other than as a result of
increasing the number of Persons or Common Stock included in a registration
pursuant to Section 2 of this Agreement.
14. Remedies. The Company recognizes and agrees that if the Company
fails to comply with its obligations under this Agreement, the Stockholders
may not have an adequate remedy at law. Such failure will cause the
Stockholders irreparable harm for which there may be no adequate remedy at
law, and the Company hereby consents to the issuance of an injunction in
favor of the Stockholders by any court of competent jurisdiction. The right
of such Stockholders to obtain an injunction hereunder shall not be
considered a waiver of any right on the part of the Stockholders to recover
damages and to assert any other claims for remedies which the Stockholders
may have at law or in equity. The Company agrees to bear any expenses
incurred by the Stockholders, including reasonable attorneys fees, in
enforcing their rights under this Agreement except in cases in which it is
determined that the Company was not in breach of its obligation to provide
such rights.
15. Selection of Lead Underwriter. The lead managing underwriter for any
registration of Common Shares for sale by the Company shall be selected by
the Company.
16. Miscellaneous.
(a) Waivers and Amendments. This Agreement may be amended or modified in
whole or in part only by a writing which makes reference to this Agreement
and is executed by the Company and the Stockholders holding at least 60% of
the Common Shares subject to this Agreement. The obligations of any party
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hereunder may be waived (either generally or in a particular instance and
either retroactively or prospectively) only with the written consent of the
party or parties to whom the obligations are owed; provided, however, that
any waiver by any party of any violation of, breach of, or default under
any provision of this Agreement or any other agreement provided for herein
shall not be construed as, or constitute, a continuing waiver of such
provision, or waiver of any other violation of, breach of or default under any
other provision of this Agreement or any other agreement provided for herein.
(b) Entire Agreement. This Agreement sets forth the entire understanding
of the parties hereto and supersedes all prior contracts, agreements,
arrangements, communications, discussions, representations, and warranties,
whether oral or written, among the parties with respect to the subject matter
hereof.
(c) Governing Law. This Agreement shall in all respects be governed by
and construed in accordance with the internal substantive laws of the State
of Ohio without giving effect to the principles of conflicts of law thereof.
(d) Notices. Any notice, request or other communication required or
permitted hereunder shall be in writing and be deemed to have been duly given
(i) when personally delivered or sent by facsimile transmission (the receipt
of which is confirmed in writing), (ii) one business day after being sent by
a nationally recognized overnight courier service, or (iii) three business
days after being sent by registered or certified mail, return receipt
requested, postage prepaid, to the parties at their respective addresses set
forth below.
If to the Company:
Gryphon Pharmaceuticals, Inc.
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Attn: President
with a copy to:
The Xxxxx Xxxxxxx University School of Medicine
Office of Technology Licensing
0000 X. Xxxxxxxx Xxxxxx
Xxxxx 0-000
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
If to Osiris:
Osiris Therapeutics, Inc.
The Wearn Building - 4th Floor
00000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
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Attn: Xxxxx X. Xxxxx
with a copy to:
Xxxxx, Day, Xxxxxx & Xxxxx
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attn: Xxxx X. XxXxxxxxxx, Esq.
If to Xx. Xxxxx:
The Xxxxx Xxxxxxx School of Medicine
Oncology 3-109
000 X. Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
with a copy to:
Xxxxx & Xxxxxxx L.L.P.
000 X. Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Jordan X. Xxxx, Esq.
If to Dr. Small:
The Xxxxx Xxxxxxx School of Medicine
Oncology 3-109
000 X. Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
with a copy to:
Xxxxx & Xxxxxxx L.L.P.
000 X. Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Jordan X. Xxxx, Esq.
Any party by written notice to the others may change the address of the
persons to whom notices or copies thereof shall be directed.
(e) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, and all of
which together will constitute one and the same instrument.
(f) Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective
successors and assigns, except that the Company may not assign or transfer
its rights hereunder without the prior written consent of the Investor. Each
of the Stockholders shall be entitled to assign all of its rights, benefits
and obligations hereunder to any person or entity that acquires Preferred
Shares or Common Shares from such Stockholder,
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without the prior consent of any party and such person or entity shall become
a Stockholder and be entitled to all rights and benefits of a Stockholder
hereunder.
(g) Third Parties. Nothing expressed or implied in this Agreement is
intended, or shall be construed, to confer upon or give any person or entity
other than the parties hereto any rights or remedies under or by reason of
this Agreement.
(h) Definition of Common Shares. For the purposes of this Agreement, the
term "Common Shares" shall mean the shares of Common Stock of the Company,
par value $.001 per share (the "Common Stock"), and any shares of Common
Stock into which shares of the Company's Series A Convertible Preferred Stock
(the "Preferred Shares"), may at such time be converted. For the purposes of
this Agreement, a Stockholder shall be deemed to be the holder of any shares
of Common Stock into which any Preferred Shares it holds are convertible.
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IN WITNESS WHEREOF, the undersigned have executed, or have caused their
duly authorized representatives to execute, this Registration Rights
Agreement as of the date first written above.
GRYPHON PHARACEUTICALS, INC.
By: /s/ Xxxxx X. Xxxxx
--------------------------
Xxxxx X. Xxxxx, President
OSIRIS THERAPEUTICS, INC.
By: /s/ Xxxxx X. Xxxxx
--------------------------
Xxxxx X. Xxxxx, President
THE XXXXX XXXXXXX UNIVERSITY
By: /s/ Xxxxx X. Xxxxx
--------------------------
Xxxxx X. Xxxxx, PhD
Title: Executive Vice Xxxx
-----------------------
/s/ Xxxx X. Xxxxx
-----------------------------
Xxxx X. Xxxxx
/s/ Xxxxxx Xxxxx
-----------------------------
Xxxxxx Xxxxx
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