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EXHIBIT 10.51
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REGISTRATION RIGHTS AGREEMENT
BY AND BETWEEN
GUILFORD PHARMACEUTICALS INC.
and
AMGEN INC.
Dated as of October 1, 1997
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TABLE OF CONTENTS
SECTION 1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 2. Securities Subject to this Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
(a) Registrable Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
(b) Holders of Registrable Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 3. Demand Registrations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(a) Demand by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(b) Effective Registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(c) Registration Statement Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(d) Selection of Underwriters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(e) Registration of Other Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(f) Priority Among Holders of Registrable Securities in Requested Registration . . . . . . . . . . . . 5
(g) Registration Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 4. Piggyback Registrations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(a) Participation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(b) Underwriter's Cutback . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(c) No Effect on Demand Registrations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 5. Priority of Other Registration Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 6. Hold-Back Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(a) Restrictions Applicable to Holders of Registrable Securities . . . . . . . . . . . . . . . . . . . 7
(b) Registration Restrictions Applicable to the Company . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 7. Registration Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 8. Registration Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 9. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(a) Indemnification by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(b) Indemnification by Holder of Registrable Securities . . . . . . . . . . . . . . . . . . . . . . . 15
(c) Contribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 10. Transfer of Registration Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 11. Rule 144 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 12. Participation in Underwritten Registrations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 13. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(a) Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(b) No Inconsistent Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
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(c) Amendments and Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(d) Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(e) Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(f) Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(g) Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(h) Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(i) Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(j) Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is dated
as of October 1, 1997 and entered into by and between GUILFORD PHARMACEUTICALS
INC., a Delaware corporation (the "Company"), and AMGEN INC., a Delaware
corporation (the "Purchaser").
RECITALS
WHEREAS, the Company, GPI NIL Holdings, Inc., a Delaware
corporation and wholly-owned subsidiary of the Company, and the Purchaser have
entered into a collaboration with respect to the research, development and
commercialization of certain small molecule neuroimmunophilin compounds, and
have executed a Binding Term Sheet dated as of August 20, 1997 relating thereto
(the "Binding Term Sheet");
WHEREAS, in connection with the Binding Term Sheet, the
Purchaser has agreed to purchase from the Company, and the Company has agreed
to sell to the Purchaser, 640,095 shares of Common Stock and a Warrant for
700,000 shares of Common Stock for an aggregate cash consideration of $20
million;
WHEREAS, in connection with the foregoing, the Company and the
Purchaser have entered into a Stock and Warrant Purchase Agreement (the
"Purchase Agreement") dated as of October 1, 1997; and
WHEREAS, as contemplated by the Binding Term Sheet, the
Company has agreed to provide the registration rights set forth in this
Agreement;
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and
premises contained herein and for other good and valuable consideration the
receipt and adequacy of which are hereby acknowledged, the parties hereto agree
as follows:
SECTION 1. Definitions.
(a) As used in this Agreement, the terms below shall have
the following meanings:
"Agent" shall mean any Person authorized to act and who acts
on behalf of the Purchaser with respect to the transactions contemplated by
this Agreement.
"Collateral Agreements" shall mean the Binding Term Sheet, the
Warrant and the Purchase Agreement.
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"Common Stock" shall mean the Common Stock, $.01 par value, of
the Company.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended from time to time.
"NASD" shall mean the National Association of Securities
Dealers, Inc.
"Person" shall mean an individual, firm, corporation,
partnership, limited liability company, trust or unincorporated organization,
or other entity, or a government or agency or political subdivision thereof,
and shall include any successor (by merger or otherwise) of such Person.
"Prospectus" shall mean the prospectus included in any
Registration Statement, as amended or supplemented by any prospectus supplement
with respect to the terms of the offering of any portion of the Registrable
Securities covered by the Registration Statement and by all other amendments
and supplements to the prospectus, including post-effective amendments and all
material incorporated by reference in such prospectus.
"Registrable Securities" shall mean (i) the Common Stock
acquired by the Purchaser pursuant to the terms of the Purchase Agreement, and
(ii) the Warrant Shares. Registrable Securities shall also include any
securities which may be issued or distributed with respect to, or in exchange
for, such Registrable Securities pursuant to a stock dividend, stock split or
other distribution, merger, consolidation, recapitalization or reclassification
or similar transaction; provided, however, that any such Registrable Securities
shall cease to be Registrable Securities to the extent (i) a Registration
Statement with respect to the sale of such Registrable Securities has been
declared effective under the Securities Act and such Registrable Securities
have been disposed of in accordance with the plan of distribution set forth in
such Registration Statement, or (ii) such Registrable Securities can be
disposed of pursuant to Rule 144 without regard to Rule 144(k) (or any similar
provisions then in force) under the Securities Act.
"Registration" shall mean a Registration of the Company's
securities for sale to the public under a Registration Statement.
"Registration Statement" shall mean any Registration Statement
of the Company filed with the Securities and Exchange Commission under the
rules and regulations promulgated under the Securities Act, including the
Prospectus, amendments and supplements to such Registration Statement,
including post-effective amendments, and all exhibits and all material
incorporated by reference in such Registration Statement.
"Securities Act" shall mean the Securities Act of 1933, as
amended from time to time.
"SEC" shall mean the Securities and Exchange Commission.
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"Underwritten Registration" or "Underwritten Offering" shall
mean a Registration in which securities of the Company are sold to an
underwriter for reoffering to the public.
"Warrant" shall mean the Warrant to purchase shares of Common
Stock, issued and sold pursuant to the Purchase Agreement dated as of the date
hereof, by and between the Company and the Purchaser.
"Warrant Shares" shall mean any shares of Common Stock issued
or issuable upon exercise of the Warrant.
(b) Other Defined Terms. The following terms shall have
the meanings defined for such terms in the Sections set forth below:
Term Section
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Agreement Preamble
Company Preamble
Demand Registration Holdback Period 6(b)
Demand Registration 3(a)
Exchange and Registration Rights Agreement 5
Holder 2(b)
Indemnified Holder 9(a)
Piggyback Registration 4(a)
Piggyback Securities 4(b)
Preferred Stock Purchase Agreement 5
Priority Agreements 5
Purchase Agreement Recitals
Purchaser Preamble
Registration Expenses 8(a)(7)
Underwriter's Warrant 5
SECTION 2. Securities Subject to this Agreement.
(a) Registrable Securities. The securities entitled to
the benefits of this Agreement are the Registrable Securities.
(b) Holders of Registrable Securities. Initially,
Purchaser is the only holder of Registrable Securities, and Registrable
Securities shall only refer to such securities owned of record or beneficially
by Purchaser or by a transferee (or subsequent transferee) of Purchaser
pursuant to Section 10 hereof who has thereby acquired rights hereunder (each a
"Holder"). Subject to the foregoing, a Person is deemed to be a Holder of
Registrable Securities whenever such Person owns Registrable Securities or has
the right to acquire such Registrable Securities, whether or not such ownership
or right was acquired pursuant to the Purchase Agreement or the Warrant, and
whether or not such acquisition has actually been effected and disregarding any
legal restrictions upon the exercise of such right.
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SECTION 3. Demand Registrations.
(a) Demand by Holders. During the five-year period
commencing on the date hereof, the Holders of at least 50% of the Registrable
Securities then outstanding may make a total of three written requests to the
Company for Registration of Registrable Securities under and in accordance with
the provisions of the Securities Act of all or part of the Registrable
Securities. Any such Registration requested shall hereinafter be referred to
as a "Demand Registration." Each request for a Demand Registration shall
specify the kind and aggregate amount of Registrable Securities to be
registered, the intended methods of disposition thereof and the information
required by Item 507 of Regulation S-K under the Securities Act. Upon such
request for a Demand Registration, subject to Section 3(g) below, the Company
shall use its best efforts to promptly effect the Registration of such
Registrable Securities under (i) the Securities Act, and (ii) subject to
Section 7(h), the blue sky laws of such jurisdictions as any Holder of such
Registrable Securities requesting such Registration or any underwriter, if any,
may reasonably request. The Company shall also use its best efforts to have
all such Registrable Securities registered with or approved by such other
federal or state governmental agencies or authorities as may be necessary in
the opinion of counsel to the Company and counsel to such Holders of at least
50% of such Registrable Securities to consummate the disposition of such
Registrable Securities.
(b) Effective Registration. Subject to the last
paragraph of Section 7, the Company shall be deemed to have effected a Demand
Registration if the Registration Statement relating to such Demand Registration
is filed with the SEC but the requesting Holders inform the Company that they
desire that the Registration Statement be withdrawn or abandoned; provided,
however, that such withdrawal does not result from action or inaction on the
part of the Company that has materially and adversely affected the value of
such registration to the participating Holders, or if the Registration
Statement is declared effective by the SEC and remains effective until the
earlier of the date on which (i) all the Registrable Securities subject to such
Registration Statement have been disposed of pursuant thereto or (ii) nine
months have elapsed from the date of such effectiveness; provided, however,
that no Demand Registration shall be deemed to have been effected if (i) such
Registration, after it has become effective, is the subject of any stop order,
injunction or other order or requirement of the SEC or other governmental
agency or court for any reason not primarily attributable to the selling
Holders of Registrable Securities, or (ii) the conditions to closing specified
in the purchase agreement or underwriting agreement entered into in connection
with such Registration are not satisfied, other than by reason of a failure on
the part of the selling Holders of Registrable Securities or any underwriter
referred to in Section 3(d).
(c) Registration Statement Form. Registrations under
this Section 3 shall be on such appropriate registration form of the SEC as
shall permit the disposition of such Registrable Securities in accordance with
the intended method or methods of disposition specified in such Holders'
requests for such Registration. If, in connection with any Registration under
this Section 3 which is proposed by the Company to be on Form S-3 or any
successor form to such Form, the managing underwriter (if any) or Holders of at
least 50% of the Registrable Securities requesting a Demand Registration shall
advise the Company in writing that in its opinion additional disclosure not
required by such form is of material importance to the success
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of the offering, then the Company shall consider including such additional
disclosure, subject at all times to the Company's ultimate discretion to
include or not include any additional disclosure.
(d) Selection of Underwriters. If at any time or from
time to time during the time period applicable to Demand Registrations any of
the Holders of the Registrable Securities covered by a Registration Statement
desire to sell Registrable Securities in an Underwritten Offering, the
investment banker or investment bankers that will manage the offering will be
selected by the Holders of at least 50% of the Registrable Securities included
in such offering; provided that the selection of any such investment banker or
investment bankers is subject to consent by the Company, which consent shall
not be unreasonably withheld.
(e) Registration of Other Securities. Subject to Section
5 hereof, whenever the Company shall effect a Registration pursuant to this
Section 3 in connection with an Underwritten Offering by one or more Holders of
Registrable Securities, securities other than Registrable Securities shall be
reduced to the extent determined necessary by the managing underwriter of such
offering if such managing underwriter shall have advised such selling Holders
to be covered by such Registration in writing (with a copy to the Company)
that, in its opinion, the number of securities requested to be included in such
Registration exceeds the number which can be sold in such offering within a
price range acceptable to the selling Holders of at least 50% of the
Registrable Securities requested to be included in such Registration. If no
such notice or letter is provided, the Company may include shares of Common
Stock for its own account or for the account of other shareholders of the
Company having the right to include such shares in a Registration Statement
filed by the Company with the SEC.
(f) Priority Among Holders of Registrable Securities in
Requested Registration. If the managing underwriter of an Underwritten
Offering pursuant to this Section 3 advises each of the Holders in writing
(with a copy to the Company) that less than all of the Registrable Securities
proposed to be included in such offering should be included (using the same
standard described in subsection (e) hereof), then the amount of Registrable
Securities to be offered for the accounts of Holders shall be reduced pro rata,
based on the number of Registrable Securities owned by such Holders.
(g) Registration Requirements. Anything in this Section
3 to the contrary notwithstanding, the Company shall not be required to file
any Registration Statement pursuant to this Section 3, (i) within a period of
six months after the effective date of any other Registration Statement filed
pursuant to a Demand Registration, (ii) for a deferral period of up to 90 days
if the Board of Directors of the Company in good faith determines that such
Registration would interfere with any proposed offering of shares of the
Company's capital stock, pending financing transaction, or acquisition,
corporate reorganization or other significant transaction involving the
Company; provided that the Company shall be able to defer Registration under
this subclause (ii) only one time in any 12-month period, (iii) for a period
beginning on the effective date of any Registration Statement and ending 90
days thereafter, or (iv) if the estimated aggregate proceeds of an offering of
Registrable Securities (less underwriting discounts and commissions) will be
less than $15 million.
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SECTION 4. Piggyback Registrations.
(a) Participation. Subject to Sections 4(b) and 5
hereof, if at any time from and after the date hereof, the Company proposes to
file or files a Registration Statement under the Securities Act with respect to
any offering of securities of the same type as the Registrable Securities for
its own account (other than a Registration Statement on Form S-8 or Form S-4 or
any successor form thereto), or for the account of any securityholder of
securities of the same type as the Registrable Securities, then, as promptly as
practicable, the Company shall give written notice of such proposed filing to
each Holder of Registrable Securities and such notice shall offer the Holders
of Registrable Securities the opportunity to include in such registration such
number of Registrable Securities as each such Holder may request (a "Piggyback
Registration"). Subject to Section 5, the Company shall include in such
Registration Statement all Registrable Securities requested within 20 days
after the receipt of any such notice (which request shall specify the
Registrable Securities intended to be disposed of by such Holder) to be
included in the Registration for such offering pursuant to a Piggyback
Registration. Each Holder electing to participate in such Registration
Statement shall do so pursuant to the terms of such proposed registration and
shall execute such usual and customary custody agreements, powers of attorney,
underwriting agreements, holdback agreements or other documents as are
reasonably requested or required by the Company and any underwriter of such
offering as provided in Section 12 hereof; provided that Holder shall not be
required to represent and warrant to, or to indemnify, any party with respect
to any matters other than as to the Holder's ownership of the Registrable
Securities and with respect to any other information provided by Holder and
required to be included in the Registration Statement pursuant to SEC Rules and
Regulations. Each Holder of Registrable Securities shall be permitted to
withdraw all or part of such Holder's Registrable Securities from a Piggyback
Registration at any time prior to the effective date thereof.
(b) Underwriter's Cutback. The Company shall use its
best efforts to cause the managing underwriter or underwriters of a proposed
Underwritten Offering to permit the Registrable Securities requested to be
included in the Registration for such offering under Section 4(a) (the
"Piggyback Securities") to be included on the same terms and conditions as any
similar securities included therein. Notwithstanding the foregoing, but
subject to Section 5 hereof, if the managing underwriter or underwriters
participating in such offering advises each of the Holders in writing (with a
copy to the Company) that the total amount of securities requested to be
included in such Piggyback Registration exceeds the amount which can be sold in
(or during the time of) such offering without delaying or jeopardizing the
success of the offering (including the price per share of the securities to be
sold), then, after including all shares proposed to be sold by the Company in a
Company-initiated registration, the amount of securities to be offered for the
account of the Holders shall be reduced pro rata with all other holders
participating in such offering on the basis of the number of shares to be
registered by all stockholders participating in such offering; provided,
however that, subject to Section 5 hereof, the managing underwriter or
underwriters may not limit the Registrable Securities or other securities to be
included in such Registration to less than 25% of the securities included
therein. Notwithstanding the foregoing, the Company shall have the right to
withdraw or delay the Registration Statement at any time; provided, however,
that written notice of such withdrawal or delay shall be given to the Holders
thereunder.
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(c) No Effect on Demand Registrations. No Registration
of Registrable Securities effected pursuant to a request under this Section 4
shall be deemed to have been effected pursuant to Section 3 hereof or shall
relieve the Company of its obligation to effect any Registration upon request
under Section 3 hereof.
SECTION 5. Priority of Other Registration Rights.
The parties expressly agree and understand that a Holder's
right to priority in a Registration of Registrable Securities shall at all
times be subordinate to the rights granted under (i) the Series A Preferred
Stock Purchase Agreement, dated as of September 30, 1993, as amended (the
"Preferred Stock Purchase Agreement"), (ii) the Underwriter's Warrant, dated as
of June 24, 1994 (the "Underwriter's Warrant"), and (iii) the Exchange and
Registration Rights Agreement, dated as of February 17, 1995 (the "Exchange and
Registration Rights Agreement" and collectively, with the Preferred Stock
Purchase Agreement and the Underwriter's Warrant, the "Priority Agreements") so
that inclusion of any Registrable Securities in any Registration requested to
be made pursuant to Sections 3(a) and 4(a) is subject to the prior right to
include in such Registration any securities requested to be registered by a
securityholder under the Priority Agreements as provided for therein.
Notwithstanding the foregoing, except in the case of a limitation imposed under
Sections 3(f) and 4(b), and subject to the conditions of this Section 5, the
Company shall use its best efforts to cause all Registrable Securities to be
registered that are requested to be registered, regardless of the number of
securities to be registered under the Priority Agreements. As a result of the
foregoing, if any Registrable Security is excluded from a Demand Registration
due to the existing rights of such other securityholders, such Registration
shall not count as a Demand Registration.
SECTION 6. Hold-Back Agreements.
(a) Restrictions Applicable to Holders of Registrable
Securities. If (i) the Company shall file a Registration Statement with
respect to its Common Stock or similar securities or securities convertible
into, or exchangeable or exercisable for, such securities in an Underwritten
Offering and (ii) the managing underwriter or underwriters advises the Company
in writing (in which case the Company shall notify the Holders) that a public
sale or distribution of Registrable Securities (other than those which may be
sold, after application of Section 4(b), by a Holder in connection with a
Piggyback Registration) would have material adverse effect on such offering,
then such Holder shall, to the extent not inconsistent with applicable law,
refrain from effecting any public sale or distribution of Registrable
Securities during the period following the effective date of such Registration
Statement and until the earliest of (A) the abandonment of such offering and
(B) 90 days, or such shorter date as the managing underwriter shall require,
after the effective date of such Registration Statement.
(b) Registration Restrictions Applicable to the Company.
In the event of a Demand Registration, the Company, if requested by the Holders
of at least 50% of the Registrable Securities to be included in such Demand
Registration, (i) shall agree not to, and shall cause its executive officers
and directors not to, effect any public sale or distribution of its Common
Stock or similar securities or securities convertible into, or exchangeable or
exercisable for, such securities during the 90-day period following the
effective date of a Registration
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Statement relating to an Underwritten Offering of Registrable Securities if the
managing underwriter or underwriters determine such public sale or distribution
would have a material adverse effect on such offering and (ii) shall (x) cause
each securityholder of the Company's privately placed equity securities issued
in connection with a financing transaction involving at least 5% of the
Company's then outstanding equity securities at any time after the date hereof
(provided that the foregoing shall not apply with respect to securities issued
in connection with corporate partnering transactions or off-balance sheet
financing transactions to fund early stage research, and (y) use its reasonable
best efforts to cause each other securityholder of the Company owning at least
10% of the Company's then outstanding equity securities (other than a
securityholder permitted to file a Schedule 13G under the Exchange Act) to
agree, not to effect a public sale or distribution of the Common Stock during
the 90-day period following the effective date of a Registration Statement
relating to an underwritten public offering of the Common Stock if the managing
underwriter or underwriters determine such public sale or distribution would
have a material adverse effect on such offering.
SECTION 7. Registration Procedures.
In connection with the Company's Registration obligations
pursuant to Sections 3 and 4 hereof, the Company will use its best efforts to
effect such Registration to permit the sale of such Registrable Securities in
accordance with the intended method or methods of disposition thereof, and
pursuant thereto the Company will as expeditiously as possible:
(a) before filing a Registration Statement thereto,
furnish to the Holders of the Registrable Securities covered by such
Registration Statement and the underwriters, if any, copies of such
Registration Statement proposed to be filed, and any participating
Holder or the underwriters, may suggest such changes thereto and the
Company will consider including such changes, subject at all times to
the Company's ultimate discretion to include or not include such
changes;
(b) prepare and file with the SEC a Registration
Statement or Registration Statements relating to the applicable Demand
Registration or Piggyback Registration including all exhibits and
financial statements required by the SEC to be filed therewith, and
use its best efforts to cause such Registration Statement to become
effective under the Securities Act; and prepare and file with the SEC
such amendments and post-effective amendments to such Registration
Statement, and such supplements to the Prospectus, as may be requested
by any underwriter of Registrable Securities or as may be required by
the rules, regulations or instructions applicable to the Registration
form utilized by the Company or by the Securities Act or rules and
regulations otherwise necessary to keep the Registration Statement
effective for a period of not less than nine months (or such shorter
period which will terminate when all Registrable Securities covered by
such Registration Statement have been sold or withdrawn); and cause
the Prospectus as so supplemented to be filed pursuant to Rule 424
under the Securities Act; and comply with the provisions of the
Securities Act and the Exchange Act with respect to the disposition of
all securities covered by such Registration Statement during the
applicable period in accordance with the intended methods of
disposition by the selling Holders thereof set forth in such
Registration Statement or supplement to the Prospectus;
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(c) notify the selling Holders of Registrable Securities
and the managing underwriters, if any, promptly, and (if requested by
any such Person) confirm such advice in writing,
(1) when the Prospectus or any Prospectus
supplement or post-effective amendment has been filed, and,
with respect to the Registration Statement or any
post-effective amendment, when the same has become effective,
(2) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that
purpose,
(3) if at any time the representations and
warranties of the Company contemplated by paragraph (n)(1)
below cease to be true and correct,
(4) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of the Registrable Securities for sale in any
jurisdiction or the initiation or threatening of any
proceeding for such purpose, and
(5) of the existence of any fact which results in
the Registration Statement, the Prospectus or any document
incorporated therein by reference containing an untrue
statement of material fact or omitting to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading;
(d) make every reasonable effort to obtain the withdrawal
of any order suspending the effectiveness of the Registration
Statement at the earliest possible moment;
(e) if requested by the managing underwriter or
underwriters or a Holder of Registrable Securities being sold in
connection with an Underwritten Offering pursuant to Section 3 hereof,
incorporate in a Prospectus supplement or post-effective amendment
such information as the managing underwriters and the Holders of at
least 50% of the Registrable Securities being sold agree should be
included therein relating to the plan of distribution with respect to
such Registrable Securities, including, without limitation,
information with respect to the amount of Registrable Securities being
sold to such underwriters, the purchase price being paid therefor by
such underwriters and with respect to any other terms of the
underwritten (or best efforts underwritten) offering of the
Registrable Securities to be sold in such offering; and make all
required filings of such Prospectus supplement or post-effective
amendment as soon as notified of the matters to be incorporated in
such Prospectus supplement or post-effective amendment;
(f) furnish to each selling Holder of Registrable
Securities and each managing underwriter, without charge, at least one
copy of the Registration Statement and any post-effective amendment
thereto, including financial statements and schedules, all documents
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incorporated therein by reference and all exhibits (including those
incorporated by reference);
(g) deliver to each selling Holder of Registrable
Securities and the underwriters, if any, without charge, as many
copies of the Prospectus (including each preliminary prospectus) and
any amendment or supplement thereto as such Persons may reasonably
request; the Company consents to the use of the Prospectus or any
amendment or supplement thereto by each of the selling Holders of
Registrable Securities and the underwriters, if any, in connection
with the offering and sale of the Registrable Securities covered by
the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable
Securities, register or qualify or cooperate with the selling Holders
of Registrable Securities, the underwriters, if any, and their
respective counsel in connection with the Registration or
qualification of such Registrable Securities for offer and sale under
the securities or blue sky laws of such jurisdictions as any selling
Holder of Registrable Securities or any underwriter reasonably
requests in writing and do any and all other acts or things reasonably
necessary to enable the disposition in such jurisdictions of the
Registrable Securities covered by the Registration Statement; provided
that the Company will not be required to qualify generally to do
business in any jurisdiction where it is not then so qualified or to
take any action which would subject it to taxation or general service
of process in any such jurisdiction where it is not then so subject;
(i) cooperate with the selling Holders of Registrable
Securities and the managing underwriters, if any, to facilitate the
timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any restrictive
legends; and enable such Registrable Securities to be in such
denominations and registered in such names as the managing
underwriters may request at least two business days prior to any sale
of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable
Securities covered by the applicable Registration Statement to be
registered with or approved by such other foreign governmental
agencies or authorities, and the NASD, as may be necessary to enable
the seller or selling Holders thereof or the underwriters, if any, to
consummate the disposition of such Registrable Securities; provided,
however, that the Holders shall pay any and all costs associated with
any such registration or approval with any foreign governmental agency
or authority;
(k) if any fact contemplated by paragraph (c)(6) above
shall exist, prepare a supplement or post-effective amendment to the
Registration Statement or the related Prospectus or any document
incorporated therein by reference or file any other required document
so that, as thereafter delivered to the purchasers of the Registrable
Securities, the Prospectus will not contain an untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading;
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(l) cause all Registrable Securities covered by
the Registration Statement to be listed on each securities exchange on
which similar securities issued by the Company are then listed if
requested by the Holders of at least 50% of such Registrable Securities
or the managing underwriters, if any;
(m) not later than the effective date of the applicable
Registration Statement, provide a CUSIP number for all Registrable
Securities and provide the applicable transfer agent with printed
certificates for the Registrable Securities which are in a form
eligible for deposit with Depositary Trust Company;
(n) enter into agreements (including underwriting
agreements in customary form for such underwriter and consistent with
then current market practice) and take all other appropriate and
reasonable actions in order to expedite or facilitate the disposition
of such Registrable Securities and in such connection, whether or not
an underwriting agreement is entered into and whether or not the
Registration is an Underwritten Registration:
(1) make such representations and warranties to
the Holders of such Registrable Securities and the
underwriters, if any, in form, substance and scope as are
customarily made by issuers to underwriters in Underwritten
Offerings in customary form and consistent with then current
market practice;
(2) obtain opinions of counsel to the Company
(which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the managing underwriters,
if any, addressed to the underwriters, if any, in customary
form covering the matters customarily covered in opinions
requested in primary Underwritten Offerings and such other
matters as may be reasonably requested by such underwriters;
(3) obtain "cold comfort" letters and updates
thereof from the Company's independent certified public
accountants addressed to the underwriters, if any, such
letters to be in customary form and consistent with then
current market practice and covering matters of the type
customarily covered in "cold comfort" letters by underwriters
in connection with primary Underwritten Offerings;
(4) if an underwriting agreement is entered into,
cause the same to set forth in full the indemnification
provisions and procedures substantially to the effect set
forth in Section 9 hereof with respect to all parties to be
indemnified pursuant to said Section; and
(5) deliver such documents and certificates as
may be reasonably requested in writing by the Holders of at
least 50% of the Registrable Securities being sold or the
managing underwriters, if any, to evidence compliance with
paragraph (k) above and with any customary conditions
contained in the underwriting agreement or other agreement
entered into by the Company.
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The above shall be done at each closing under such underwriting or
similar agreement or as and to the extent required thereunder;
(o) make available for inspection by any underwriter
(including any "qualified independent underwriter" that is required to
be retained in accordance with the rules and regulations of the NASD)
participating in any disposition pursuant to such Registration
Statement, and any attorney or accountant retained by underwriter, all
financial and other records, pertinent corporate documents and
properties of the Company, and cause the Company's officers, directors
and employees to supply all information reasonably requested by any
such representative, underwriter, attorney or accountant in connection
with the Registration; provided that any records, documents,
properties or information that are designated by the Company in
writing as confidential shall be kept confidential by such Person and
shall not be used for any purpose other than in connection with such
Registration Statement unless disclosure of such records, documents,
properties and information is required by court or administrative
order;
(p) otherwise use its best efforts to comply with all
applicable rules and regulations of the SEC, and make generally
available to its security holders, earnings statements satisfying the
provisions of Section 11(a) of the Securities Act and Rule 158
promulgated thereunder; and
(q) cooperate and assist in any filings required to be
made with the NASD and, subject to Section 7(o), in the performance of
any due diligence investigation by any underwriter (including any
"qualified independent underwriter" that is required to be retained in
accordance with the rules and regulations of the NASD).
The Company may require each Holder of Registrable Securities
as to which any Registration is being effected to furnish to the Company such
information regarding such Holder and such Holder's intended method of
distribution of such Registrable Securities, as the Company may from time to
time reasonably request in writing.
Each Holder of Registrable Securities agrees by acquisition of
such Registrable Securities that, upon receipt of any notice from the Company
of the happening of any event of the kind described in Section 7(c)(6) hereof,
such Holder will forthwith discontinue disposition of Registrable Securities
until such Holder's receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 7(k) hereof, or until it is advised in
writing by the Company that the use of the Prospectus may be resumed, and has
received copies of any additional or supplemental filings which are
incorporated by reference in the Prospectus, and, if so directed by the
Company, such Holder will deliver to the Company (at the Company's expense) all
copies, other than permanent file copies then in such Holder's possession, of
the Prospectus covering such Registrable Securities current at the time of
receipt of such notice. In the event the Company shall give any such notice,
the time periods during which such Registration Statement shall be maintained
effective shall be extended by the number of days during the period from and
including the date of the giving of such notice to and including the date when
each seller of Registrable Securities covered by such Registration Statement
either
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receives the copies of the supplemented or amended prospectus contemplated by
Section 7(k) hereof or is advised in writing by the Company that the use of the
Prospectus may be resumed.
SECTION 8. Registration Expenses.
(a) All expenses incident to the Company's performance of
or compliance with this Agreement will be paid by the Company, regardless of
whether the Registration Statement becomes effective, including without
limitation:
(1) all Registration and filing fees (including
with respect to filings required to be made with the SEC);
(2) fees and expenses of compliance with
securities or blue sky laws (including fees and disbursements of
counsel for the underwriters or selling Holders in connection with
blue sky qualifications of the Registrable Securities and
determination of their eligibility for investment under the laws of
such jurisdictions as the managing underwriters or Holders of at least
50% of the Registrable Securities being sold may designate);
(3) printing (including expenses of printing
certificates for the Registrable Securities in a form eligible for
deposit with the Depositary Trust Company and of printing
prospectuses), messenger, telephone and delivery expenses;
(4) fees and disbursements of counsel for the
Company;
(5) fees and disbursements of all independent
certified public accountants of the Company (including the expenses of
any "cold comfort" letters required by or incident to such
performance);
(6) fees and expenses of other Persons retained by
the Company; and
(7) all Registration, filing and other fees and
expenses associated with any NASD filing required to be made in
connection with the Registration Statement (all such expenses being
herein called "Registration Expenses").
The Company will, in any event, pay its internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expense of any annual
audit, the fees and expenses incurred in connection with the listing of the
securities to be registered on each securities exchange on which similar
securities issued by the Company are then listed, rating agency fees and the
fees and expenses of any Person, including special experts, retained by the
Company. Notwithstanding any provision to the contrary, if a registration
initiated under Section 3 is withdrawn by the Holders initiating such
registration under circumstances that would nevertheless be considered a Demand
Registration under Section 3(b), the Company shall have no obligation to pay
expenses of such registration and all such expenses shall be paid by the
Holders initiating such registration.
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(b) Each selling Holder of the Registrable Securities
shall pay all discounts, commissions, fees and expenses of the
underwriters, selling brokers, dealer managers and similar industry
professionals, transfer taxes and any out-of-pocket costs and
expenses of such selling Holder including the fees and expenses of
counsel for such selling Holder relating to the distribution of such
Registrable Securities.
SECTION 9. Indemnification.
(a) Indemnification by Company. The Company agrees to
indemnify and hold harmless each Holder of Registrable Securities, its
officers, directors, employees and Agents and each Person who controls such
Holder within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act (each such person being sometimes hereinafter referred
to as an "Indemnified Holder") from and against all losses, claims, damages,
liabilities and expenses (including reasonable costs of investigation and legal
expenses) arising out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement or
Prospectus or in any amendment or supplement thereto or in any preliminary
prospectus, or arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar as such losses,
claims, damages, liabilities or expenses arise out of or are based upon any
such untrue statement or omission or allegation thereof based upon information
furnished in writing to the Company by such Holder or any underwriter expressly
for use therein; provided, however, that the Company shall not be liable in any
such case to the extent that any such loss, claim, damage, liability or expense
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission in any Prospectus or preliminary prospectus, if
such untrue statement or alleged untrue statement, omission or alleged omission
is completely corrected in an amendment or supplement to the Prospectus or
preliminary prospectus and if, having previously been furnished by or on behalf
of the Company with copies of the Prospectus or preliminary prospectus as so
amended or supplemented, such Holder thereafter fails to deliver such
Prospectus or preliminary prospectus as so amended or supplemented, prior to or
concurrently with the sale of a Registrable Security to the person asserting
such loss, claim, damage, liability or expense who purchased such Registrable
Security which is the subject thereof from such Holder. This indemnity will be
in addition to any liability which the Company may otherwise have.
If any action or proceeding (including any governmental
investigation or inquiry) shall be brought or asserted against an Indemnified
Holder in respect of which indemnity may be sought from the Company, such
Indemnified Holder shall promptly notify the Company in writing, and the
Company shall assume the defense thereof, including the employment of counsel
satisfactory to such Indemnified Holder and the payment of all expenses. Such
Indemnified Holder shall have the right to employ separate counsel in any such
action and to participate in the defense thereof, but the fees and expenses of
such counsel shall be at the expense of such Indemnified Holder unless (a) the
Company has agreed to pay such fees and expenses or (b) the Company shall have
failed to assume the defense of such action or proceeding and has failed to
employ counsel satisfactory to such Indemnified Holder in any such action or
proceeding or (c) the named parties to any such action or proceeding (including
any impleaded parties) include both such Indemnified Holder and the Company,
and such Indemnified Holder shall have been
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advised by counsel that there may be one or more legal defenses available to
such Indemnified Holder which are different from or additional to those
available to the Company (in which case, if such Indemnified Holder notifies
the Company in writing that it elects to employ separate counsel at the expense
of the Company, the Company shall not have the right to assume the defense of
such action or proceeding on behalf of such Indemnified Holder, it being
understood, however, that the Company shall not, in connection with any one
such action or proceeding or separate but substantially similar or related
actions or proceedings in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys at any time for such Indemnified
Holder and any other Indemnified Holders, which firm shall be designated in
writing by such Indemnified Holders). The Company shall not be liable for any
settlement of any such action or proceeding effected without its written
consent, but if settled with its written consent, or if there be a final
judgment for the plaintiff in any such action or proceeding, the Company agrees
to indemnify and hold harmless such Indemnified Holders from and against any
loss or liability by reason of such settlement or judgment.
(b) Indemnification by Holder of Registrable Securities.
Each Holder of Registrable Securities agrees to indemnify and hold harmless the
Company, its directors and officers and each Person, if any, who controls the
Company within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act to the same extent as the foregoing indemnity
from the Company to such Holder, but only with respect to (i) information
relating to such Holder furnished in writing by such Holder expressly for use
in, and information provided under Section 3(a) hereof for use in, any
Registration Statement or Prospectus, or any amendment or supplement thereto,
or any preliminary prospectus and (ii) any loss, claim, damage, liability or
expense described in the proviso to the first sentence of Section 9(a). In
case any action or proceeding shall be brought against the Company or its
directors or officers or any such controlling person, in respect of which
indemnity may be sought against a Holder of Registrable Securities, such Holder
shall have the rights and duties given the Company and the Company or its
directors or officers or such controlling person shall have the rights and
duties given to each Holder by the preceding paragraph. In no event shall the
liability of any selling Holder of Registrable Securities hereunder be greater
in amount than the dollar amount of the proceeds received by such Holder upon
the sale of the Registrable Securities giving rise to such indemnification
obligation.
The Company shall be entitled to receive indemnities from
underwriters, selling brokers, dealer managers and similar securities industry
professionals participating in the distribution, to the same extent as provided
above with respect to information so furnished in writing by such Persons
specifically for inclusion in any Prospectus or Registration Statement or any
amendment or supplement thereto, or any preliminary prospectus.
(c) Contribution. If the indemnification provided for in
this Section 9 is unavailable to an indemnified party under Section 9(a) or
Section 9(b) hereof (other than by reason of exceptions provided in those
Sections) in respect of any losses, claims, damages, liabilities or expenses
referred to therein, then each applicable 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 such losses, claims, damages,
liabilities or expenses in such
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proportion as is appropriate to reflect the relative fault of the Company on
the one hand and of the Indemnified Holder on the other in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable
considerations. The relative fault of the Company on the one hand and of the
Indemnified Holder on the other 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 or by the Indemnified Holder and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The amount paid or payable by a
party as a result of the losses, claims, damages, liabilities and expenses
referred to in Section 9(a) or Section 9(b) shall be deemed to include, subject
to the limitations set forth in the second paragraph of Section 9(a), any legal
or other fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim.
The Company and each Holder of Registrable Securities agree
that it would not be just and equitable if contribution pursuant to this
Section 9(c) were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to in the immediately preceding paragraph. Notwithstanding the provisions of
this Section 9(c), an Indemnified Holder shall not be required to contribute
any amount in excess of the amount by which the total price at which the
Registrable Securities sold by such Indemnified Holder or its affiliated
Indemnified Holders and distributed to the public were offered to the public
exceeds the amount of any damages which such Indemnified Holder, or its
affiliated Indemnified Holder, has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
SECTION 10. Transfer of Registration Rights.
The rights to cause the Company to register securities granted
by the Company hereunder may be transferred or assigned by Purchaser or a
subsequent Holder in writing to a transferee or assignee; provided, however,
that such transfer is in connection with the sale of Registerable Securities
covering a minimum of the greater of 25% of the Registrable Securities then
outstanding or 200,000 shares of Common Stock. Such Holder within a reasonable
time after said transfer shall give written notice to the Company, stating the
name and address of said transferee or assignee and identifying the securities
with respect to which such registration rights are being assigned. Subsequent
transfers or assignments of such registration rights may also be effected in
accordance with the foregoing requirements.
SECTION 11. Rule 144.
The Company covenants that it will file the reports required
to be filed by it under the Exchange Act and the rules and regulations adopted
by the SEC thereunder, all to the extent required from time to time to enable
such Holder to sell Registrable Securities without Registration under the
Securities Act within the limitation of the exemptions provided by (a) Rule 144
under the Securities Act, as such Rule may be amended from time to time, or (b)
any
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similar rule or regulation hereafter adopted by the SEC. Upon the request of
any Holder of Registrable Securities, the Company will deliver to such Holder a
written statement as to whether it has complied with such information and
requirements.
SECTION 12. Participation in Underwritten Registrations.
Subject to Section 5 hereof, no Person may participate in any
Underwritten Registration hereunder unless such Person (a) agrees to sell such
Person's securities on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
SECTION 13. Miscellaneous.
(a) Remedies. Each of the parties hereto, in addition to
being entitled to exercise all rights provided herein, in the Purchase
Agreement and granted by law, including recovery of damages, will be entitled
to specific performance of its rights under this Agreement. Each of the
parties hereto agrees that monetary damages would not be adequate compensation
for any loss incurred by reason of a breach by it of the provisions of this
Agreement and hereby agrees to waive the defense in any action for specific
performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. From and after the date
hereof, except with respect to registration rights granted by the Company
pursuant to the Priority Agreements, the Company shall not enter into any
agreement granting any holder or prospective holder of any securities of the
Company registration rights with respect to such securities unless such new
registration rights are pari passu with, subordinate to, or otherwise do not
materially adversely affect the rights of Holders granted hereunder. The
Company represents and warrants that the rights granted to the Holders of
Registrable Securities hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the Company's securities
under any agreement in effect on the date hereof.
(c) Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given unless the Company has obtained the written
consent of Holders of at least 50% of the then outstanding Registrable
Securities. Notwithstanding the foregoing, a waiver or consent to departure
from the provisions hereof that relates exclusively to the rights of Holders of
Registrable Securities whose securities are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect the
rights of other Holders of Registrable Securities may be given by the Holders
of a majority of the Registrable Securities being sold.
(d) Notices. Unless otherwise provided herein, any
notice, request, instruction or other document to be given hereunder by any
party to the others shall be in writing and delivered in person or by courier
or by facsimile transmission (with receipt confirmed), or
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mailed by certified mail, postage prepaid, return receipt requested (such
mailed notice to be effective on the date of such receipt is acknowledged), as
follows:
If to the Holder of Registrable Securities, at the most current
address given by such Holder to the Company in accordance with the provisions
of this Section 12(d), which address initially is, with respect to the
Purchaser:
Amgen Inc.
Amgen Center
0000 XxXxxxxxxxx Xxxxx
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000-0000
Attn: Corporate Secretary
Telecopy No.: (000) 000-0000
With a copy to:
Xxxxxx & Xxxxxxx
000 Xxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxx, Esq.
Telecopy No.: (000) 000-0000
(ii) if to the Company, initially to:
Guilford Pharmaceuticals Inc.
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Corporate Secretary
Telecopy No.: (000) 000-0000
With a copy to:
Xxxxx & Xxxxxxx, L.L.P.
000 Xxxxx Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx Xxxxxx, Esq.
Telecopy No.: (000) 000-0000
or to such other place and with such other copies as either party may designate
as to itself by written notice to the others.
(e) Successors and Assigns. Except as otherwise
expressly provided herein, this Agreement shall inure to the benefit of and be
binding upon the successors and assigns of each of the parties, including
without limitation, subsequent Holders of Registrable Securities; provided,
however, that this Agreement shall not inure to the benefit of or be binding
upon a
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successor or assign of a Holder of Registrable Securities unless and to the
extent such successor or assign acquired Registrable Securities from such
Holder.
(f) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(h) Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of Delaware (without
regard to choice of law provisions).
(i) Severability. In the event that any one or more of
the provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable, the validity, legality
and enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired
thereby.
(j) Entire Agreement. This Agreement together with the
Collateral Agreements are intended by the parties as a final expression of
their agreement and intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter contained herein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein with respect to
the registration rights granted by the Company with respect to the securities
sold pursuant to the Purchase Agreement. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter including without limitation Exhibit A to the Binding Term Sheet.
[Signature Page To Follow]
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
GUILFORD PHARMACEUTICALS INC.
By: /S/ XXXXX X. XXXXX, M.D.
-------------------------------------------------------
Name: Xxxxx X. Xxxxx, M.D.
Title: President and Chief Executive Officer
AMGEN INC.
By: /S/ XXXXXX X. XXXXXXXX
-------------------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President, General Counsel
and Secretary
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