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EXHIBIT 10.3
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Rights Agreement"), entered
into as of June 30, 1998, between Cheyenne LLC (the "Investor"), and SciClone
Pharmaceuticals, Inc., a California corporation (the "Company").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Structured Equity Line Flexible
Financing Agreement by and between the Company and the Investor (the
"Agreement"), the parties desire that, upon the terms and subject to the
conditions contained herein, the Company may elect to issue to the Investor,
and, at the Company's option, the Investor shall purchase from the Company,
from time to time as provided in the Agreement, shares of the Company's common
stock (the "Common Stock"), no par value, for a maximum aggregate purchase
price of $32,000,000 (the "Maximum Offering Amount");
WHEREAS, pursuant to the terms of, and in partial consideration for,
the Investor's commitment to enter into the Agreement, the Company has issued
to the Investor a warrant dated June 30, 1998, exercisable from time to time
within five (5) years from the Effective Date of the Agreement (the "Warrant")
for the purchase of an aggregate of 200,000 shares of Common Stock at a price
specified in such Warrant;
WHEREAS, the Company has agreed to issue from time to time to the
Investor additional warrants (the "Additional Warrants" or the "Final Warrant,"
as applicable, and collectively with the Warrant, the "Warrants") to purchase
up to an aggregate of 300,000 shares of Common Stock (in addition to the
200,000 shares of Common Stock described in the immediately preceding
paragraph, the "Shares") at prices determined pursuant to the Agreement upon
the occurrence, if any, of certain circumstances set forth in the Agreement;
WHEREAS, pursuant to the terms of and in partial consideration for,
the Investor's commitment to enter into the Agreement, the Company has agreed
to provide the Investor with certain registration rights with respect to the
Shares as set forth in this Rights Agreement;
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants and conditions set forth in the
Agreement, the Warrants and this Rights Agreement and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, intended to be legally bound hereby, the Company and the Investor
agree as follows:
1. Certain Definitions. Capitalized terms used in this Rights
Agreement and not otherwise defined herein shall have the same meaning ascribed
to them in the Agreement. The following terms shall have the following
respective meanings:
"Commission" shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
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"Investor" shall include the Investor and any permitted assignee or
transferee of the rights under the Agreement and the Warrants to whom the
registration rights conferred by this Rights Agreement have been transferred in
compliance with Section 9 of this Rights Agreement.
The terms "register," "registered" and "registration" shall refer to a
registration effected by preparing and filing an appropriate registration
statement in compliance with the Securities Act and applicable rules and
regulations thereunder, and the declaration or ordering of the effectiveness of
such registration statement.
"Registration Expenses" shall mean, subject to Section 11.2 of the
Agreement, all expenses to be incurred by the Company in connection with
Investor's exercise of its registration rights under this Rights Agreement,
including, without limitation, all registration and filing fees, printing
expenses, fees and disbursements of counsel for the Company, blue sky fees and
expenses, reasonable fees and disbursements of counsel to Investor for a "due
diligence" examination of the Company and review of the Registration Statement
(as defined below), and the expense of any special audits incident to or
required employees of the Company, which shall be paid in any event by the
Company).
"Registrable Securities" shall mean any Shares or other securities
issued or issuable to the Investor or any holder or transferee upon the
exercise of the Warrant, the Additional Warrants, if any, and the Final Warrant
as provided therein, until (i) a registration statement under the Securities
Act covering the offering of such Shares has been declared effective by the
Commission and such Shares have been disposed of pursuant to such effective
registration statement, (ii) such Shares are sold under circumstances in which
all of the applicable conditions of Rule 144 (or any similar provision then in
force) under the Securities Act ("Rule 144") are met, (iii) such Shares have
been otherwise transferred and the Company has delivered a new certificate or
other evidence of ownership for such securities not bearing a restrictive
legend, or (iv) such time as, in the opinion of counsel to the Company, which
counsel shall be acceptable to the Investor in its sole discretion, all such
Shares may be sold without any time, volume or manner limitation pursuant to
Rule 144(k) (or any similar provision then in effect) under the Securities Act.
2. Registration Requirements. The Company shall use its
reasonable best efforts to effect the registration of the Registrable
Securities contemplated by the Warrant, the Additional Warrants, if any, and
the Final Warrant (including, without limitation, the execution of an
undertaking to file post-effective amendments, appropriate qualification under
applicable blue sky or other state securities laws and appropriate compliance
with applicable regulations issued under the Securities Act) as would permit or
facilitate the sale or distribution of all the Registrable Securities in the
manner (including manner of sale) and in all states reasonably requested by the
warrant holder for purposes of maximizing the proceeds realizable by the
Investor from such sale or distribution. Such reasonable best efforts by the
Company shall include without limitation the following:
(a) Subject to the terms and conditions of this Rights
Agreement, the Company shall file with the Commission (i) no later than thirty
(30) days from the date of execution of the Agreement, an appropriate
registration statement under the Securities Act for the registration of the
resale by the Investor of the Registrable Securities (the "Registration
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Statement") which Registration Statement shall have been declared effective by
the Commission no later than one hundred twenty (120) days from the Effective
Date, Furthermore, at the time of filing of the Registration Statement, the
Company shall file (A) such blue sky filings as shall have been requested by
the Investor; and (B) any required filings with the National Association of
Securities Dealers, Inc. or exchange or market where the Shares are traded.
The Company shall use its best efforts to have all filings declared effective
as promptly as practicable.
(b) (i) If the Company (A) fails to file the
Registration Statement complying with the requirements of this Rights Agreement
within thirty (30) days from the date of the execution of the Agreement or if
the Registration Statement has not become effective on or before one hundred
twenty (120) days from the Effective Date, the Investor shall have, in addition
to and without limiting any other rights it may have at law, in equity or under
the Agreement, or this Rights Agreement (including the right to specific
performance), the right to receive, as liquidated damages, the payments as
provided in subparagraph (ii) of this section.
(ii) In the event the Company fails to obtain the
effectiveness of a Registration Statement within the time period set forth in
Section 2(a), the Company shall pay to the Investor an amount equal to (A)
$100, in cash, for each day of the thirty (30) day period following the date by
which such Registration Statement was required to have been declared effective
and (B) $500, in cash, for each day after such first thirty (30) day period.
In addition to the foregoing, in the event the Company fails to maintain the
effectiveness of a Registration Statement (or the use of the underlying
prospectus) throughout the period set forth in Section 5(a), other than
suspensions as set forth in Section 4, the Company shall pay to the Investor an
amount equal to $500, in cash, per day, in which a suspension has occurred.
(c) The Company shall enter into such customary
agreements and take all such other reasonable actions in connection therewith
in order to expedite or facilitate the disposition of such Registrable
Securities.
3. Registration Procedures. The Company will keep the Investor
advised in writing as to the initiation of each registration and as to the
completion thereof. At its expense, the Company will use its reasonable best
efforts to:
(a) Keep such registration effective for the period
ending sixty (60) months, as extended pursuant to Section 4 hereof, following
the Effective Date of the Agreement, or until the Investor has completed the
distribution of the Shares or securities issued or issuable by the Company upon
exercise of the Warrants, whichever first occurs.
(b) Furnish such number of prospectuses and amendments
and supplements thereto, and other documents incident thereto as the Investor
from time to time may reasonably request.
(c) Prepare and file with the Commission such amendments
and post-effective amendments to the Registration Statement as may be necessary
to keep such Registration Statement effective for the applicable period; cause
the related prospectus to be supplemented by any required prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424
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under the Securities Act; and comply with the provisions of the Securities Act
applicable to it 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 sellers thereof set forth in such
Registration Statement or supplement to such prospectus;
(d) Notify the Investor and its counsel (as designated in
writing by the Investor) promptly, and confirm such notice (a "Notice") in
writing, (i) when a 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, (ii) of any
request by the Commission for amendments or supplements to the Registration
Statement or related prospectus or for additional information, (iii) 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
purposes, (iv) of the receipt by the Company of any notification with respect
to the suspension of the qualification of any of the Registrable Securities for
sale in any jurisdiction or the initiation or threatening of any proceeding for
such purpose, (v) of the happening of any event as a result of which the
prospectus included in the Registration Statement (as then in effect) contains
any untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein (in
the case of the prospectus or any preliminary prospectus, in light of the
circumstances under which they were made) not misleading, and (vi) of the
Company's reasonable determination that a post-effective amendment to the
Registration Statement would be appropriate or that there exist circumstances
not yet disclosed to the public which make further sales under such
Registration Statement inadvisable pending such disclosure and post-effective
amendment;
(e) Upon the occurrence of any event contemplated by
Section 3(d)(ii)-(vi) and immediately upon the expiration of any Blocking
Period (as defined in Section 4), prepare, if the occurrence of such event or
period requires such preparation, a supplement or post- effective amendment to
the Registration Statement or 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 being sold
thereunder, such prospectus will not contain an untrue statement of a material
fact or omit to state any material fact necessary to make the statements, in
light of the circumstances under which they were made, not misleading;
(f) Obtain the withdrawal of any order suspending the
effectiveness of the Registration Statement, or the lifting of any suspension
of the qualification of any of the Registrable Securities for sale in any
jurisdiction, at the earliest possible moment;
(g) Cause all Registrable Securities subject to
Registration Statement at all times to be registered or qualified for offer and
sale under the securities or blue sky laws of such jurisdictions as any
Investor reasonably requests in writing; use its best efforts to keep each such
registration or qualification effective, including through new filings or
amendments or renewals, during the period the Registration Statement is
required to be kept effective and do any and all other acts or things necessary
or advisable to enable the disposition in such jurisdictions of the Registrable
Securities covered by the Registration Statement; provided, however, that the
Company will not be required to qualify to do business or take any action that
would subject it to
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taxation or general service of process in any jurisdiction where it is not then
so qualified or subject;
(h) Cause the Registrable Securities covered by the
Registration Statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the seller
or sellers thereof to consummate the disposition of such Registrable Securities
in accordance with the chosen method or methods of distribution; and
(i) Cause all Registrable Securities included in such
Registration Statement to be listed, by the date of first sale of Registrable
Securities pursuant to such Registration Statement, on the principal securities
exchange or automated interdealer system on which the same type of securities
of the Company are then listed or traded.
4. Suspensions of Effectiveness. The Company may suspend
dispositions under the Registration Statement and notify the Investor that it
may not sell the Registrable Securities pursuant to any Registration Statement
or prospectus (a "Blocking Notice") if the Company's management determines in
its good faith judgment that the Company's obligation to ensure that such
Registration Statement and prospectus are current and complete would require
the Company to take actions that might reasonably be expected to have a
materially adverse detrimental effect on the Company and its shareholders;
provided that such suspension pursuant to a Blocking Notice or the notice
described below or as a result of the circumstances described in Section
3(d)(ii)-(vi) may not exceed ninety (90) days (whether or not consecutive) in
any twelve (12) month period. The Investor agrees by acquisition of the
Registrable Securities that, upon receipt of a Blocking Notice or "Notice" from
the Company of the existence of any fact of the kind described in the following
sentence, the Investor shall not dispose of, sell or offer for sale the
Registrable Securities pursuant to the Registration Statement until such
Investor receives (i) copies of the supplemented or amended prospectus, or
until counsel for the Company shall have determined that such disclosure is not
required due to subsequent events, (ii) notice in writing (the "Advice") from
the Company that the use of the prospectus may be resumed and (iii) copies of
any additional or supplemental filings that are incorporated by reference in
the Prospectus. Pursuant to the immediately preceding sentence, the Company
may provide such Notice to the Investor upon the determination by the Company
of the existence of any fact or the happening or any event that makes any
statement of a material fact made in the Registration Statement, the
prospectus, any amendment or supplement thereto, or any document incorporated
by reference therein untrue in any material respect, or that requires the
making of any additions to or changes in the Registration Statement or the
prospectus, in order to make the statements therein not misleading in any
material respect. If so directed by the Company in connection with any such
notice, each Investor will deliver to the Company (at the Company's expense)
all copies, other than permanent file copies then in such Investor's
possession, of the prospectus covering such Registrable Securities that was
current immediately prior to the time of receipt of such notice. In the event
the Company shall give any such Blocking Notice or Notice, the time regarding
the effectiveness of such Registration Statement set forth in Section 5(a)
shall be extended by one and one-half (1-1/2) times the number of days during
the period from and including the date of the giving of such Blocking Notice or
Notice to and including the date when the Investor shall have received the
copies of the supplemented or amended prospectus, the Advice and any additional
or supplemental filings that are incorporated by reference in the prospectus.
Delivery of a Blocking
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Notice or Notice and the related suspension of any Registration Statement shall
not constitute a default under this Rights Agreement and shall not create any
obligation to pay liquidated damages under Section 2 hereof. However, if the
Investor's ability to sell under the Registration Statement is suspended for
more than the ninety (90) days period described above, the Investor may elect,
in its sole and absolute discretion, to terminate the Agreement pursuant to
Section 10.4(b)(i) in the Agreement.
5. Indemnification.
(a) Company Indemnity. The Company will indemnify the
Investor, each of its officers, directors and partners, and each person
controlling the Investor, within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act and the rules and regulations thereunder
with respect to which registration, qualification or compliance has been
effected pursuant to this Rights Agreement, against all claims, losses, damages
and liabilities (or actions in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in
any prospectus, offering circular or other document (including any related
registration statement, notification or the like or any amendment thereto)
incident to any such registration, qualification or compliance, or based on 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, or
any violation by the Company of the Securities Act or any state securities law
or in either case, any rule or regulation thereunder applicable to the Company
and relating to action or inaction required of the Company in connection with
any such registration, qualification or compliance, and will reimburse the
Investor, each of its officers, directors and partners, and each person
controlling the Investor, each such underwriter and each person who controls
any such underwriter, for any legal and any other expenses reasonably incurred
in connection with investigating and defending any such claim, loss, damage,
liability or action, provided that the Company will not be liable in any such
case to the extent that any such claim, loss, damage, liability or expense
arises out of or is based on any untrue statement or omission (or alleged
untrue statement or omission) that is made in reliance upon and in conformity
with written information furnished to the Company by Investor and stated to be
specifically for use therein. In addition to any other information furnished
in writing to the Company by the Investor, the information in the Registration
Statement concerning the Investor under the captions "Selling Shareholders" (or
any similarly captioned Section containing the information required pursuant to
Item 507 of Regulation S-K promulgated pursuant to the Securities Act) and
"Plan of Distribution" (or any similarly captioned Section containing
information required pursuant to Item 508 of Regulation S-K) shall be deemed
information furnished in writing to the Company by the Investor to the extent
it conforms to information actually supplied in writing by the Investor. The
indemnity agreement contained in this Section 5(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 will
not be unreasonably withheld).
(b) Investor Indemnity. The Investor will, if
Registrable Securities held by it are included in the securities as to which
such registration, qualification or compliance is being effected, indemnify the
Company, each of its directors, officers, partners, and each underwriter, if
any, of the Company's securities covered by such a registration statement, each
person who controls the Company or such underwriter within the meaning of
Section 15 of the Securities Act
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or Section 20 of the Exchange Act and the rules and regulations thereunder,
each other Investor (if any), and each of their officers, directors and
partners, and each person controlling such other Investor (if any), and each of
their officers, directors, and partners, and each person controlling such other
Investor against all claims, losses, damages and liabilities (or actions in
respect thereof) arising out of or based on any untrue statement (or alleged
untrue statement) of a material fact contained in any such registration
statement (or any amendment thereto), prospectus, offering circular or other
document, or any omission (or alleged omission) to state therein a material
fact required to be stated therein or necessary to make the statement therein
not misleading, and will reimburse the Company and its directors, officers and
partners, or control persons for any legal or any other expenses reasonably
incurred in connection with investigating and defending any such claim, loss,
damage, liability or action, in each case to the extent, but only to the
extent, that such untrue statement (or alleged untrue statement) or omission
(or alleged omission) is made in such registration statement, prospectus,
offering circular or other document in reliance upon and in conformity with
written information furnished to the Company by the Investor and stated to be
specifically for use therein, and provided that no Investor shall be liable
under this indemnity for an amount in excess of the proceeds received by the
Investor from the sale of the Registrable Securities pursuant to such
Registration Statement. In addition to any other information furnished in
writing to the Company by the warrant holder, the information in the
Registration Statement concerning the Investor under the captions "Selling
Shareholders" (or any similarly captioned Section containing the information
required pursuant to Item 507 of Regulation S-K promulgated pursuant to the
Securities Act) and "Plan of Distribution" (or any similarly captioned Section
containing information required pursuant to Item 508 of Regulation S-K) shall
be deemed information furnished in writing to the Company by the Investor to
the extent it conforms to information actually supplied in writing by the
Investor. The indemnity agreement contained in this Section 5(b) shall not
apply to amounts paid in settlement of any such claims, losses, damages or
liabilities if such settlement is effected without the written consent of the
Investor (which consent shall not be unreasonably withheld).
(c) Procedure. Each party entitled to indemnification
under this Section 5 (the "Indemnified Party") shall give notice to the party
required to provide indemnification (the "Indemnifying Party") promptly after
such Indemnified Party has actual knowledge of any claim as to which indemnity
may be sought, and shall permit the Indemnifying Party to assume the defense of
any such claim in any litigation resulting therefrom, provided that counsel for
the Indemnifying Party, who shall conduct the defense of such claim or any
litigation resulting therefrom, shall be approved by the Indemnified Party
(whose approval shall not be unreasonably withheld), and the Indemnified Party
may participate in such defense at such party's expense, and provided further
that the failure of any Indemnified Party to give notice as provided herein
shall not relieve the Indemnifying Party of its obligations under this Article
except to the extent that the Indemnifying Party is materially and adversely
affected by such failure to provide notice. The Indemnifying Party 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 (in addition to any local counsel) at any time for such Indemnified
Party, provided, however, that if separate firm(s) of attorneys are required
due to a conflict of interest, then the indemnifying party shall be liable for
the reasonable fees and expenses
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of each such separate firm. No Indemnifying Party, in the defense of any such
claim or litigation, shall, except with the consent of each Indemnified Party,
consent to entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability in respect
to such claim or litigation. Each Indemnified Party shall furnish such
information regarding itself or the claim in question as an Indemnifying Party
may reasonably request in writing and as shall be reasonably required in
connection with the defense of such claim and litigation resulting therefrom.
6. Contribution. If the indemnification provided for in Section
5 hereof is unavailable to the Indemnified Party in respect of any losses,
claims, damages or liabilities referred to herein (other than by reason of the
exceptions provided therein), then each such Indemnifying Party, in lieu of
indemnifying such Indemnified Party, shall contribute to the amount paid or
payable by such Indemnified Party as a result of such losses, claims, damages
or liabilities (i) as between the Company and the Investor on the one hand and
the underwriters on the other, in such proportion as is appropriate to reflect
the relative benefits received by the Company and the Investor on the one hand
or underwriters, as the case may be, on the other from the offering of the
Registrable Securities, or if such allocation is not permitted by applicable
law, in such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on the one hand and of the
Investor on the other, in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations and (ii) as between the Company on the one
hand and the Investor on the other, in such proportion as is appropriate to
reflect the relative fault of the Company and of the Investor in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Investor on the other shall be deemed to be in the same proportion as the
proceeds from the offering received by the Company from the initial sale of the
Registrable Securities by the Company to the Investor pursuant to this Rights
Agreement bear to the proceeds received by the Investor from the sale of
Registrable Securities pursuant to the Registration Statement. The relative
fault of the Company on the one hand and of the Investor on the other shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company or by the
Investor.
In no event shall the obligation of any Indemnifying Party to
contribute under this Section 6 exceed the amount that such Indemnifying Party
would have been obligated to pay by way of indemnification if the
indemnification provided for under Section 5(a) or Section 5(b) hereof had been
available under the circumstances.
The Company and the Investor agree that it would not be just and
equitable if contribution pursuant to this Section 6 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 paragraphs. The amount paid or payable by an Indemnified Party as a
result of the losses, claims, damages and liabilities referred to in the
immediately preceding
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paragraphs shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such Indemnified
Party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this section, no Investor shall be required
to contribute any amount in excess of the amount by which the Investor, the
total price at which the shares of Common Stock offered by the Investor and
distributed to the public, or offered to the public, exceeds the amount of any
damages that the Investor 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.
7. Survival. The indemnity and contribution agreements contained
in Section 5 and Section 6 shall remain operative and in full force and effect
regardless of (i) any termination of the Agreement or any underwriting
agreement, (ii) any investigation made by or on behalf of any Indemnified Party
or by or on behalf of the Company and (iii) the consummation of the sale or
successive resales of the Registrable Securities.
8. Information by Investor. The Investor shall promptly furnish
to the Company such information regarding the Investor and the distribution
proposed by such Investor as the Company may reasonably request in writing and
as shall be reasonably required in connection with any registration,
qualification or compliance referred to in this Rights Agreement. All
information provided to the Company by the Investor shall be accurate and
complete in all material respects and the Investor shall promptly notify the
Company if any such information becomes incorrect or incomplete. If the
Investor does not timely provide all such reasonably requested information, it
shall not be entitled to the liquidated damages contemplated by Section
2(b)(ii) hereof to the extent that such delay in the Registration Statement
becoming effective is caused by such failure to timely provide information
unless such Investor shall be able to demonstrate to the Company's satisfaction
that such failure to timely provide did not proportionately contribute to the
event giving rise to the indemnity obligation.
9. Transfer or Assignment of Rights. Neither this Rights
Agreement nor any rights of the Investor or the Company hereunder may be
assigned by either party to any other person. Notwithstanding the foregoing,
upon prior written notice to the Company, the Investor's rights and obligations
under this Rights Agreement may be assigned, in whole or in part, to any
Affiliate of the Investor (a "Permitted Transferee"), and the rights and
obligation of the Investor under this Rights Agreement shall inure to the
benefit of, and be enforceable by and against, any such Permitted Transferee.
10. Miscellaneous.
(a) Entire Agreement. This Rights Agreement contains the
entire understanding and agreement of the parties relating to the registration
of Registrable Securities, and may not be modified or terminated except by a
written agreement signed by both parties.
(b) Notices. All notices, demands, requests, consents,
approvals or other communications required or permitted to be given hereunder
or which are given with respect to
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this Rights Agreement shall be in writing and shall be personally served or
deposited in the mail, registered or certified, return receipt requested,
postage prepaid, or delivered by reputable air courier service with charges
prepaid, or transmitted by hand delivery, telegram, telex or facsimile,
addressed as set forth below, or to such other address as such party shall have
specified most recently by written notice: (a) if to the Company, to: SciClone
Pharmaceuticals Inc., 000 Xxxxxxxx Xxxxxx Xxxxxxxxx, Xxx Xxxxx, XX 00000;
Attention: Xxxxx X. Xxxxx, Facsimile No.: (000) 000-0000, with copies (which
shall not constitute notice) to: Xxxx Xxxx Xxxx & Freidenrich LLP, 000 Xxxxxxxx
Xx., Xxxxx 000, Xxx Xxxxxxxxx, Xxxxxxxxxx, 00000, Attention: J. Xxxxxx Xxxxxx,
Esq., Facsimile No.: (000) 000-0000; and (b) if to the Investor, Cheyenne LLC,
c/o The Palladin Group, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxx X. Xxxxxxx, Facsimile No.: (212) 698- 0554, with copies
(which shall not constitute notice) to: Xxxxxx & Xxxxxx, 000 00xx Xxxxxx, X.X.,
Xxxxxxxxxx, X.X. 00000-0000, Attn. X. Xxxxxxxxx Xxxxxx, Facsimile No.: (202)
942-5999. Subject to Section 2.3(c) of the Agreement, notice shall be deemed
given on the date of service or transmission if personally served or
transmitted by telegram, telex or facsimile during normal business hours of the
recipient. Notice otherwise sent as provided herein shall be deemed given on
the third business day following the date mailed or on the second business day
following delivery of such notice by a reputable air courier service.
(c) Gender of Terms. All terms used herein shall be
deemed to include the feminine and the neuter, and the singular and the plural,
as the context requires.
(d) GOVERNING LAW; CONSENT OF JURISDICTION; WAIVER OF
JURY TRIAL. THIS RIGHTS AGREEMENT AND THE VALIDITY AND PERFORMANCE OF THE
TERMS HEREOF SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW OR
CHOICE OF LAW, EXCEPT TO THE EXTENT THAT THE LAW OF THE STATE OF CALIFORNIA
REGULATES THE COMPANY'S ISSUANCE OF SECURITIES. THE PARTIES HERETO HEREBY
AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING DIRECTLY OR INDIRECTLY FROM OR IN
CONNECTION WITH THIS RIGHTS AGREEMENT SHALL BE LITIGATED ONLY IN THE SUPREME
COURT OF THE STATE OF NEW YORK OR THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK LOCATED IN NEW YORK COUNTY, NEW YORK. TO THE
EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES HERETO CONSENT TO THE
JURISDICTION AND VENUE OF THE FOREGOING COURTS AND CONSENT THAT ANY PROCESS OR
NOTICE OF MOTION OR OTHER APPLICATION TO EITHER OF SAID COURTS OR A JUDGE
THEREOF MAY BE SERVED INSIDE OR OUTSIDE THE STATE OF NEW YORK OR THE SOUTHERN
DISTRICT OF NEW YORK BY REGISTERED MAIL, RETURN RECEIPT REQUESTED, DIRECTED TO
THE SUCH PARTY AT ITS ADDRESS SET FORTH IN THIS RIGHTS AGREEMENT (AND SERVICE
SO MADE SHALL BE DEEMED COMPLETE FIVE (5) DAYS AFTER THE SAME HAS BEEN POSTED
AS AFORESAID) OR BY PERSONAL SERVICE OR IN SUCH OTHER MANNER AS MAY BE
PERMISSIBLE UNDER THE RULES OF SAID COURTS. THE PARTIES HERETO HEREBY WAIVE
ANY RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY LITIGATION PURSUANT TO THIS
RIGHTS AGREEMENT.
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(e) Titles. The titles used in this Rights Agreement are
used for convenience only and are not to be considered in construing or
interpreting this Rights Agreement.
(f) Rule 144. The Company will use its reasonable best
efforts to file all reports required to be filed by it under the Securities Act
and the Exchange Act and that it will take such further action as holders of
Registrable Securities may reasonably request, all to the extent required from
time to time to enable the Investor to sell Registrable Securities without
registration under the Act within the limitation of the exemptions provided by
(a) Rule 144, as such Rule may be amended from time to time, or (b) any similar
role or regulation hereafter adopted by the Commission. If at any time the
Company is not required to file such reports, it will, upon the request of the
Investor, make publicly available other information so long as necessary to
permit sales pursuant to Rule 144. Upon the request of the Investor, the
Company will deliver to the Investor a written statement as to whether it has
complied with such requirements.
(g) Counterparts. This Rights Agreement may be executed
in counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
[REST OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Rights
Agreement to be duly executed as of the date first above written.
CHEYENNE LLC SCICLONE PHARMACEUTICALS, INC.
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxx X. Xxxxx
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Printed: Xxxxxx X. Xxxxxxx Printed: Xxxxx X. Xxxxx
Title: Title: Senior Vice President
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[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
