ANTIVIRALS INC.
REGISTRATION RIGHTS AGREEMENT
DATED AS OF
_________________________________, 19___
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is entered into as of May 20, 1992, by
and between ANTIVIRALS, INC., an Oregon corporation (the "Company"), and Ice
Bear, Inc., an Alaska corporation ("Ice Bear").
RECITALS
Ice Bear is purchasing 65,790 shares of the Company's Common Stock (the
"Common Stock") and a warrant dated as of May 20, 1992 for an additional 658,000
shares of Common Stock. The execution by the Company of this Agreement is a
condition to such purchase of the Common Stock and the Warrant.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt of which
is hereby acknowledged, the parties hereto agree as follows:
1. DEFINITIONS. For purposes of this Agreement:
(a) The term "register," "registered," and "registration" refer
to a registration effected by preparing and filing a registration statement or
similar document in compliance with the Securities Act of 1933, as amended (the
"Act"), and the declaration or ordering of effectiveness of such registration
statement or document;
(b) The term "Registrable Securities" means (i) the 65,790
shares of the Company's Common Stock purchased under the Common Stock and
Warrant Purchase Agreement dated as of May 20, 1992, (ii) the Common Stock of
the Company issuable or issued upon exercise of the Warrant, and (iii) any
Common Stock of the Company issued as (or issuable upon the conversion or
exercise of any warrant, right or other security which is issued as) a dividend
or other distribution with respect to, or in exchange for or in replacement of,
such Common Stock and Warrant, excluding in all cases, however, any Registrable
Securities sold by a person in a transaction in which its rights under this
Agreement are not assigned;
(c) The number of shares of "Registrable Securities then
outstanding" shall be determined by the number of shares of Common Stock
outstanding which are, and the number of shares of Common Stock issuable
pursuant to then exercisable or convertible securities which are, Registrable
Securities; and
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(d) The term "Holder" means any person owning or having the
right to acquire Registrable Securities who is a party to this Agreement as of
the date hereof or who may be added as a party hereto pursuant to the terms of
this Agreement, and any assignee thereof in accordance with Section 9.
2. COMPANY REGISTRATION. If (but without any obligation to do so)
the Company proposes to register (including for this purpose a registration
effected by the Company for shareholders other than the Holders) any of its
stock or other securities under the Act in connection with the public offering
of such securities solely for cash (other than a registration relating solely to
the sale of securities to participants in a Company employee stock plan), the
Company shall, at each such time, promptly give each Holder written notice of
such registration. Upon the written request of each Holder given within 20 days
after mailing of such notice by the Company, the Company shall, subject to the
provisions of Section 6, cause to be registered under the Act all of the
Registrable Securities that each such Holder has requested to be registered.
3. FURNISH INFORMATION. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Agreement with
respect to any selling Holder that such selling Holder 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 shall be reasonably
required to effect the registration of its Registrable Securities and to execute
such documents in connection with such registration as the Company may
reasonably request.
4. EXPENSES OF COMPANY REGISTRATION. The Company shall bear and pay
all expenses incurred in connection with any registration, filing or
qualification of Registrable Securities with respect to the registrations
pursuant to Section 2 for each Holder, including, without limitation, all
registration, filing and qualification fees, printing and accounting fees, and
the fees and disbursements of counsel for the Company and of one counsel for the
Holders; provided, however, that the selling Holders shall bear the expenses of
any underwriting discounts and commissions relating to the Registrable
Securities.
5. UNDERWRITING REQUIREMENTS. The Company shall not be required
under Section 2 to include any of the Holders' securities in an underwritten
offering of the Company's securities unless such Holders accept the terms of the
underwriting as agreed upon between the Company and the underwriters selected by
it, assuming usual and customary underwriting terms. If the total amount of
securities, including Registrable Securities, requested by shareholders to be
included in such offering exceeds the amount of securities that the underwriters
reasonably believe compatible with the success of the offering, then the Company
shall be required to include in the offering only that number of such
securities, including Registrable Securities, which the underwriters believe
will not jeopardize the success of the offering (the securities so included to
be apportioned pro rata among the selling shareholders according to the total
amount of securities otherwise entitled to be included therein owned by each
selling shareholder or in such other proportions as shall mutually be agreed to
by such selling shareholders), but in no event shall the amount of securities of
the selling Holders included in the offering be reduced
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below 25% of the total amount of securities included in such offering, unless
such offering is the initial public offering of the Company's securities, in
which case the selling Holders may be excluded if the underwriters make the
determination described above and provided no other shareholder's securities
are included.
6. DELAY OF REGISTRATION. No Holder shall have any right to obtain
or seek an injunction restraining or otherwise delaying any such registration as
the result of any controversy that might arise with respect to the
interpretation or implementation of this Agreement.
7. INDEMNIFICATION. In the event any Registrable Securities are included
in a registration statement under this Agreement:
(a) To the extent permitted by law, the Company will indemnify
and hold harmless each Holder, the partners, officers, agents, employees and
directors of each Holder, any underwriter (as defined in the Act) for such
Holder and each person, if any, who controls such Holder or underwriter within
the meaning of the Act or the Securities Exchange Act of 1934, as amended (the
"1934 Act"), against any losses, claims, damages or liabilities (joint or
several) to which they may become subject under the Act, the 1934 Act or other
federal or state law, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any of the following
statements, omissions or violations (collectively, a "Violation"): (i) any
untrue statement or alleged untrue statement of a material fact contained in
such registration statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements thereto, (ii) the
omission or alleged omission to state therein a material fact required to be
stated therein, or necessary to make the statements therein not misleading, or
(iii) any violation or alleged violation by the Company of the Act, the 1934
Act, any state securities law or any rule or regulation promulgated under the
Act, the 1934 Act or any state securities law; and the Company will reimburse
each such Holder, partner, officer, agent, employee or director, underwriter or
controlling person for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the indemnity agreement contained
in this Section 7(a) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement is effected without
the consent of the Company, which consent shall not be unreasonably withheld,
nor shall the Company be liable in any such case for any such loss, claim,
damage, liability or action to the extent that it arises out of or is based upon
a Violation which occurs in reliance upon and in conformity with written
information furnished expressly for use in connection with such registration by,
or on behalf of, any such Holder, underwriter or controlling person.
(b) To the extent permitted by law, each selling Holder will
indemnify and hold harmless the Company, each of its officers, directors, agents
or employees, each person, if any, who controls the Company within the meaning
of the Act, any underwriter and any other Holder selling securities in such
registration statement or any of its partners, agents, employees, directors or
officers or any person who controls such Holder, against any losses, claims,
damages or liabilities (joint or several) to which the Company or any such
director, partner,
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agent, employee, officer, controlling person, or underwriter, or other such
Holder or director, officer, partner, agent, employee or controlling person
may become subject, under the Act, the 1934 Act or other federal or state
law, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any Violation, in each case
to the extent (and only to the extent) that such Violation occurs in reliance
upon and in conformity with written information furnished by, or on behalf
of, such Holder expressly for use in connection with such registration; and
each such Holder will reimburse any legal or other expenses reasonably
incurred by the Company or any such partner, agent, employee, director,
officer, controlling person, underwriter or other Holder, in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the indemnity agreement contained in this Section
7(b) shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement is effected without the
consent of the Holder, which consent shall not be unreasonably withheld; and
provided, further, that each selling Holder shall be liable under this
Section 7(b) for only that amount of losses, claims, damages and liabilities
as does not exceed the proceeds to such selling Holder as a result of such
registration.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 7 deliver to the
indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly notified, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party shall
have the right to retain its own counsel, with the fees and expenses to be paid
by the indemnifying party, if, in the opinion of counsel for the indemnifying
party, representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable period of time of the commencement of any
such action shall relieve such indemnifying party of any liability to the
indemnified party under this Section 7 to the extent materially prejudicial to
its ability to defend such action, but the omission so to deliver written notice
to the indemnifying party will not relieve it of any liability that it may have
to any indemnified party otherwise than under this Section 7.
8. REPORTS UNDER THE ACT. With a view to making available to the
Holders the benefits of SEC Rule 144 promulgated under the Act and any other
rule or regulation of the SEC that may at any time permit a Holder to sell
securities of the Company to the public without registration or pursuant to a
registration on Form S-3, the Company agrees to:
(a) make and keep public information available, as those terms
are understood and defined in SEC Rule 144, at all times after 90 days after the
effective date of the first registration statement filed by the Company for the
offering of its securities to the general public;
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(b) take such action, including the voluntary registration of
its Common Stock under Section 12 of the 1934 Act, as is necessary to enable the
Holders to utilize Form S-3 for the sale of their Registrable Securities, such
action to be taken as soon as practicable after the end of the fiscal year in
which the first registration statement filed by the Company for the offering of
its securities to the general public is declared effective;
(c) file with the SEC in a timely manner all reports and other
documents required of the Company under the Act and the 1934 Act; and
(d) furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request (i) a written statement by the
Company that it has complied with the reporting requirements of SEC Rule 144 (at
any time after 90 days after the effective date of the first registration
statement filed by the Company), the Act and the 1934 Act (at any time after it
has become subject to such reporting requirements), or that it qualifies as a
registrant whose securities may be resold pursuant to Form S-3 (at any time
after it so qualifies), (ii) a copy of the most recent annual or quarterly
report of the Company and such other reports and documents so filed by the
Company, and (iii) such other information as may be reasonably requested in
availing any Holder of any rule or regulation of the SEC which permits the
selling of any such securities without registration or pursuant to such form.
9. ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the
Company to register Registrable Securities pursuant to this Agreement may be
assigned by a Holder to a transferee or assignee of such securities who shall,
upon such transfer or assignment, be deemed a "Holder" under this Agreement,
provided the Company is, within a reasonable period of time after such transfer,
furnished with written notice of the name and address of such transferee or
assignee and the securities with respect to which such registration rights are
being assigned; provided, further, that such assignment shall be effective only
if immediately following such transfer the further disposition of such
securities by the transferee or assignee is restricted under the Act.
10. "MARKET STAND-OFF" AGREEMENT. The Holders hereby agree that they
shall not, to the extent requested by the Company and an underwriter of Common
Stock (or other securities) of the Company, sell or otherwise transfer or
dispose (other than to donees who agree to be similarly bound) of any
Registrable Securities for up to 90 days following the effective date of a
registration statement of the Company filed under the Act; provided, however,
that all officers and directors of the Company and all other persons with
registration rights (whether or not pursuant to this Agreement) enter into
similar agreements.
In order to enforce the foregoing covenant, the Company may impose
stop-transfer instructions with respect to the Registrable Securities of the
Holders (and the shares or securities of every other person subject to the
foregoing restriction) until the end of such period.
11. NOTICES. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon personal
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delivery to the party to be notified or upon deposit with the United States
Post Office, postage prepaid, registered or certified with return receipt
requested and addressed to the party to be notified at the address indicated
for such party on the signature page hereof or on Schedule A hereto, or at
such other address as such party may designate by ten days' advance written
notice to the other parties given in the foregoing manner.
12. AMENDMENTS AND WAIVER. Any term of this Agreement may be amended
and the observance of any term may be waived (either generally or in a
particular instance and either retroactively or prospectively) only with the
written consent of the Company and the holders of a majority of the shares of
Common Stock that are Registrable Securities themselves or upon which
Registrable Securities are based. Additional Holders may be added to this
Agreement with such consent by amending Schedule A hereto and adding a signature
page executed by such additional Holder.
13. TERMINATION. The registration rights described in Section 2
shall terminate fifteen years after the effective date of the Company's first
registration statement for a public offering of securities of the Company to the
general public.
14. SEVERABILITY. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, such provision shall be excluded
from this Agreement, and the balance of this Agreement shall be interpreted as
if such provision were so excluded and shall be enforceable in accordance with
its terms.
15. GOVERNING LAW. This Agreement shall be governed by and construed
under the laws of the State of Oregon as applied to agreements among Oregon
residents entered into and to be performed entirely within the State of Oregon.
16. COUNTERPARTS. This Agreement may be executed 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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17. ENTIRE AGREEMENT. This Agreement constitutes the full and entire
understanding and agreement between the parties with respect to the subject
matter hereof and supersedes all prior agreements with respect to the subject
matter hereof.
ANTIVIRALS INC., an Oregon corporation
By____________________________________
Its________________________________
Address: One S.W. Columbia Avenue
Suite 1105
Xxxxxxxx, XX 00000
ICE BEAR, INC., an Alaska corporation
By____________________________________
Its________________________________
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SCHEDULE A
NAME ADDRESS
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Ice Bear, Inc., an Alaska corporation 00000 X.X. Xxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
