Exhibit 10.5
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made by and
between Osiris Therapeutics, Inc. (the "Company") and the undersigned
("Investor").
Recitals
A. The Investor desires to purchase from the Company, and the
Company desires to issue and sell to the Investor, units (the "Units")
consisting of shares of the Company's Series D Convertible Preferred Stock, par
value $.001 per share (the "Series D Preferred Stock"), all upon the terms set
forth in the Company's Confidential Private Placement Memorandum dated June 9,
1995, as amended or supplemented from time to time, including all attachments,
schedules and exhibits thereto (the "Memorandum"). Each share of Series D
Preferred Stock is currently convertible into one share of the Company's Common
Stock, $.001 par value (the "Common Stock").
B. To induce the Investor to purchase the Units, the Company has
undertaken to grant the Investor limited rights to cause the Company to register
under the Securities Act of 1933, as amended, and the rules and regulations
thereunder (collectively, the "Securities Act"), the Common Stock issued upon
conversion of the Series D Preferred Stock to be purchased by the Investor. This
Agreement sets forth the terms and conditions of such undertaking.
Agreements
In consideration of the foregoing and the mutual promises contained herein,
the Company and the Investor covenant and agree as follows:
l. Definitions. For purposes of this Agreement:
1.1 The terms "register, registered" and "registration" refer to a
registration effected by preparing and filing a registration statement or
statements or similar documents in compliance with the Securities Act and the
declaration or ordering of effectiveness of such registration statement or
document by the Securities and Exchange Commission (the "SEC"); and
1.2 The term "Registrable Securities" means collectively (i) the
Common Stock of the Company issued upon the conversion of the Series D Preferred
Stock, Series A Convertible Preferred Stock, par value $.001 per share ("Series
A Preferred Stock"), Series B Convertible Preferred Stock, par value $.001 per
share ("Series B Preferred Stock"), Series C Convertible
Preferred Stock, par value $.001 per share ("Series C Preferred Stock") and
Series C1 Convertible Preferred Stock, par value $.001 per share ("Series C1
Preferred Stock") and (ii) any Common Stock of the Company issued as a
dividend or other distribution with respect to, or in exchange for or in
replacement of such Common Stock, excluding in all cases, however, any
Registrable Securities sold by an Investor in a transaction in which its
registration rights under this Agreement are not assigned.
2. Registration.
2.1 In the event that the Company completes an underwritten initial
public offering of its Common Stock pursuant to a registration statement
declared effective under the Securities Act (an "IPO") prior to December 22,
1996, the Company shall, upon the written request of the Investor delivered
within 30 days of such completion, use its best efforts to cause all Registrable
Securities held by the Investor to be registered under the Securities Act not
later than 180 days after the closing date of such initial public offering;
provided, however, that the Investor may inform the Company in writing that it
wishes to exclude all or a portion of its Registrable Securities from such
registration, and have no further rights to have such Registrable Securities
registered by the Company.
2.2 The holders of a majority of the Registrable Securities shall
have the right to select the managing underwriter(s), if any, for such
registration of the Registrable Securities, subject to the approval of the
Company, which shall not be unreasonably withheld.
2.3 The Company is obligated to effect only one registration pursuant
to this Agreement.
2.4 In connection with an IPO of the Company's Common Stock, the
Investor agrees that, without the prior written consent of the Company, the
Investor shall not offer, sell, contract to sell, or otherwise dispose of any
Registrable Securities for and during the period beginning on the date that the
Company executes an underwriting agreement with respect to such offering and
continuing to and including 180 days after the date of the prospectus included
in the registration statement under the Securities Act for such offering.
3. Obligations of the Company.
When required under Section 2.1 of this Agreement to effect the
registration of the Registrable Securities, the Company shall, as expeditiously
as reasonably possible:
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3.1 prepare and file with the SEC a registration statement (the
"Registration Statement") with respect to all Registrable Securities, other than
any Registrable Securities excluded by the Investor pursuant to Section 2.1, and
use its best efforts to cause the Registration Statement to become effective not
later than 180 days after the closing date of the Company's initial public
offering of its securities, and keep the Registration Statement effective at all
times until December 22, 1996, which Registration Statement (including any
amendments or supplements thereto and prospectuses contained therein) shall not
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein, or necessary to make the statements therein, in
light of the circumstances in which they were made, not misleading;
3.2 prepare and file with the SEC such amendments (including
post-effective amendments) and supplements to the Registration Statement and the
prospectus used in connection with the Registration Statement as may be
necessary to keep the Registration Statement effective at all times until
December 22, 1996, and to comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by the Registration
Statement;
3.3 furnish promptly to the Investor such numbers of copies of a
prospectus, including a preliminary prospectus, and all amendments and
supplements thereto, in conformity with the requirements of the Securities Act,
and such other documents as the Investor may reasonably request in writing in
order to facilitate the public sale or other disposition of Registrable
Securities;
3.4 use its best efforts to register and quality the securities
covered by the Registration Statement under the securities or blue sky laws of
such jurisdictions as shall be reasonably requested by the Investor, and to
prepare and file in those jurisdictions such amendments (including
post-effective amendments) and supplements and to take such other actions as may
be necessary to maintain such registration and qualification in effect at all
times until December 22, 1996, and to take all other actions necessary or
advisable to enable the disposition of such securities in such jurisdictions;
provided, however, that the Company shall not be required in connection
therewith or as a condition thereto to qualify to do business in any
jurisdiction where it is not now so qualified, to take any action which would
subject it to taxation as to the service of process in suits other than those
arising out of the offer or sale of the securities covered by such registration
statement in any jurisdiction where it is not now so subject, to conform the
composition of its assets at the time to the securities or blue sky laws of such
jurisdiction or to provide any undertaking or make any change in its charter
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or bylaws which its Board of Directors determines to be contrary to the best
interests of the Company and its stockholders;
3.5 in the event the holders of a majority in interest of the
Registrable Securities select the managing underwriters in accordance with
Section 2.2 of this Agreement, enter into and perform its obligations under an
underwriting agreement, in usual and customary form, including, without
limitation, customary indemnification and contribution obligations, with the
managing underwriter of such offering. The Investor hereby agrees to enter into
and perform its customary obligations under any such agreement including,
without limitation, customary indemnification and contribution obligations;
3.6 notify the Investor, at any time when a prospectus relating to
Registrable Securities covered by the Registration Statement is required to be
delivered under the Securities Act, of the happening of any event as a result of
which the prospectus included in the Registration Statement, as then in effect,
includes an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances in which they were made, not misleading. The
Company shall promptly amend or supplement the Registration Statement to correct
any such untrue statement or omission;
3.7 notify the Investor of the issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement or the initiation of
any proceedings for that purpose. The Company will make every reasonable effort
to prevent the issuance of any stop order and, if any stop order is issued, to
obtain the lifting thereof at the earliest possible time;
3.8 make generally available to its security holders as soon as
practicable, but not later than 90 days after the close of the period covered
thereby, an earnings statement (in form complying with the provisions of Rule
158 under the Securities Act) covering a twelve month period beginning not later
than the first day of the Company's fiscal quarter next following the effective
date of the Registration Statement;
3.9 at the request of the holders of a majority in interest of the
Registrable Securities, furnish on the date that Registrable Securities are
delivered to the underwriters for sale in connection with a registration
pursuant to this Agreement (1) an opinion, dated such date, of the counsel
representing the Company for the purposes of such registration, in form and
substance as is customarily given to underwriters in an underwritten public
offering, addressed to the underwriters and (2) a letter, dated such date, from
the independent certified public accountants of the Company, in form and
substance as is customarily given by independent certified public accountants
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to underwriters in an underwritten public offering, addressed to the
underwriters;
3.10 make available for inspection by the Investor, any underwriters
participating in the offering pursuant to the registration and the counsel,
accountants or other agents retained by the Investor or any such underwriter,
all pertinent financial and other records, corporate documents and properties of
the Company, and cause the Company's officers, directors and employees to supply
all information reasonably requested by the Investor or any such underwriters in
connection with the registration;
3.11 if the Common Stock is then listed on a national securities
exchange, use its best efforts to cause the Registrable Securities to be listed
on such exchange. If the Common Stock is not then listed on a national
securities exchange, use its best efforts to facilitate the inclusion of the
Common Stock on the NASDAQ Stock Market.
3.12 provide a transfer agent and registrar, which may be a single
entity, for the Registrable Securities not later than the effective date of the
Registration Statement;
3.13 take all actions reasonably necessary to facilitate the timely
preparation and delivery of certificates (not bearing any legend restricting the
sale or transfer of such securities) representing the Registrable Securities to
be sold pursuant to the Registration Statement and to enable such certificates
to be in such denominations and registered in such names as the Investor or any
underwriters may reasonably request;
3.14 take all other reasonable actions necessary to expedite and
facilitate the registration of the Registrable Securities pursuant to the
Registration Statement.
4. Furnish Information.
It shall be a condition precedent to the obligations of the Company to take
any action pursuant to this Agreement with respect to the Investor that (a) the
Company shall have received an undertaking satisfactory to it from the Investor
to notify the Company of the happening of any event within the knowledge of the
Investor which causes the prospectus referred to in Section 3.3 hereof as it may
be amended or supplemented, to include an untrue statement of a material fact or
to omit to state any material fact required to be stated therein or necessary to
make the statement therein, in the light of the circumstances under which they
were made, not misleading and (b) such Investor shall furnish to the Company
such information regarding itself the Registrable Securities held by it, and the
intended method of disposition of such Registrable Securities as shall be
reasonably required to effect the
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registration of the Registrable Securities and shall execute such documents
in connection with such registration as the Company may reasonably request.
5. Expenses of Registration.
All expenses other than underwriting discounts and commissions incurred in
connection with registration, filings or qualifications pursuant to Sections 2
and 3, including, without limitation, all registration, listing, filing and
qualification fees, printers and accounting fees, and the fees and disbursements
of counsel for the Company shall be borne by the Company.
6. Indemnification.
In the event any Registrable Securities are included in a Registration
Statement under this Agreement:
6.1 To the extent permitted by law, the Company will indemnify and
hold harmless the Investor, each person, if any, who controls such Investor, any
underwriter (as defined in the Securities Act) for the Investor and each person,
if any, who controls any such underwriter within the meaning of the Securities
Act or the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
against any losses, claims, damages, expenses or liabilities (joint or several)
to which any of them may become subject under the Securities Act, the Exchange
Act or otherwise, insofar as such losses, claims, damages, expenses or
liabilities (or actions or proceedings, whether commenced or threatened, in
respect there of) arise out of or are based upon any of the following
statements, omissions or violations (collectively, a "Violation"): (i) any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, including any preliminary prospectus or final prospectus
contained therein or any amendments or supplements thereof (ii) the omission or
alleged omission to state therein a material fact required to be stated therein,
or necessary to make the statements therein, in light of the circumstances in
which they were made, not misleading or (iii) any violation or alleged violation
by the Company of the Securities Act, the Exchange Act, any state securities law
or any rule or regulation promulgated under the Securities Act, the Exchange Act
or any state securities law, and the Company will reimburse the Investor and
each such underwriter or controlling persons, promptly as such expenses are
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability, action or proceeding; provided, however, that (a) the indemnity
agreement contained in this Section 6.1 shall not apply to amounts paid in
settlement of any such loss, claim, damage, expense, liability or action if such
settlement is effected without the consent of the Company, which consent
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shall not be unreasonably withheld or delayed, (b) the Company will not be
liable in any such case for any such loss, claim, damage, expense, liability
or action to the extent that it arises out of or is based upon a Violation
which occurs in reliance upon and in conformity with information furnished
for use in connection with such registration by the Investor, directors and
officers of the Investor or any such underwriter or controlling person, as
the case may be, or (c) the Company will not be liable to any person who
participates as an underwriter in the offering or sale of Registrable
Securities or any other person, if any, who controls or is controlled by such
underwriter within the meaning of the Securities Act, in any such case to the
extent that any such loss, claim, damage, expense or liability (or action in
respect thereto) arises out of such underwriter's failure to send or give a
copy of the final prospectus to the person asserting an untrue statement or
alleged untrue statement or omission or alleged omission at or prior to the
written confirmation of the sale of securities to such person if such
statement or omission was corrected in such final prospectus. Such indemnity
shall remain in full force and effect regardless of any investigation made by
or on behalf of the Investor or any such underwriter or controlling person or
the Company and shall survive the transfer of the Registrable Securities by
the Investor.
6.2 To the extent permitted by law, the Investor will indemnify and
hold harmless the Company, each of its directors, each of its officers and
employees who sign the Registration Statement, each person, if any, who controls
the Company within the meaning of the Securities Act or the Exchange Act, any
underwriter and any other stockholder selling securities pursuant to the
Registration Statement or any of its directors or officers or any person who
controls such holder or underwriter, against any losses, claims, damages or
liabilities (jointly or severally) or actions to which any of them may become
subject, under the Securities Act, the Exchange Act or other federal or state
law, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any Violation, in each case to
the extent (and only to the extent) that such Violation occurs in reliance upon
and in conformity with information furnished to the Company by such Investor for
use in connection with such registration, and such Investor will reimburse the
Company, its directors, officers and employees, each underwriter and
controlling person for any legal or other expense reasonably incurred by any of
them in connection with investigating or defending any such loss, claim, damage,
expense, liability or action; provided, however, that the indemnity agreement
contained in this Section 6.2 shall not apply to amounts paid in settlement of
any such loss, claim, damage, expense, liability or action if such settlement is
effected without the consent of the Investor, which consent shall not be
unreasonably withheld, conditioned or delayed.
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6.3 Promptly after receipt by an indemnified party under this Section
6 of notice of the commencement of any action (including any governmental
action) or proceeding, such indemnified party will, if a claim in respect
thereof is to be made against any indemnifying party under this Section 6,
deliver to the indemnifying party a written notice of the commencement thereof
and the indemnifying party shall have the right to participate in, and, to the
extent that the indemnifying party so desires, jointly with any other
indemnifying party similarly noticed, to assume control of the defense thereof
with counsel selected by it and, after notice from the indemnifying party of its
election so to assume the defense thereof the indemnifying party shall not be
liable to such indemnified party under Section 6.1 for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation; provided, however, that an indemnified party shall have
the right to retain its own counsel, with the reasonable fees and expenses to be
paid by the indemnifying party, if in the reasonable opinion of counsel for the
indemnifying party, representation of such indemnified party by the counsel
retained by the indemnifying party would be inappropriate due to actual or
potential differing interests between such indemnified party and any other party
represented by such counsel in such proceeding, in which event the indemnifying
party shall not be liable for the fees and expenses of more than one counsel for
all indemnified parties. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action shall relieve such indemnifying party of any liability to the indemnified
party under this Section 6 only to the extent prejudicial to the indemnifying
party's ability to defend such action, but the omission so to deliver written
notice to the indemnifying party will not relieve the indemnifying party of any
liability that it may have to any indemnified party otherwise than under this
Section 6. In addition, the indemnifying party shall not be required to
indemnify, reimburse or otherwise make any contribution to the amount paid or
payable by the indemnified party for any losses, claims, damages, expenses or
liabilities incurred by the indemnified party in settlement of any actions or
proceedings otherwise covered hereunder unless such settlement has been
previously approved by the indemnifying party. The indemnification required by
this Section 6 shall be made by periodic payments of the amount thereof during
the course of the investigation or defense, promptly as such expense, loss,
damage, expense or liability is incurred, and upon receipt by the indemnifying
party of such documentation as it may reasonably request.
6.4 To the extent any indemnification by an indemnifying party is
prohibited or limited by law, the indemnifying party agrees to make the maximum
contribution with respect to any amounts for which it would otherwise be liable
under this Section 6 to the extent permitted by law,
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provided that (i) no contribution shall be made under circumstances where the
maker would not have been liable for indemnification under the fault
standards set forth in this Section 6, (ii) no seller of Registrable
Securities guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from
any seller of Registrable Securities who was not guilty of such fraudulent
misrepresentation and (ii) contribution by any seller of Registrable
Securities shall be limited in amount to the net amount of proceeds received
by such seller from the sale of such Registrable Securities.
7. Reports Under Securities Exchange Act of 1934.
With a view to making available to the Investor the benefits of Rule 144
promulgated under the Securities Act and any other rule or regulation of the SEC
that may at any time permit the Investor to sell securities of the Company to
the public without registration, the Company agrees to:
7.1 timely file and keep available such information, documents and
reports as may be required or prescribed by the SEC under Section 13 or 15(d)
(whichever is applicable) of the Exchange Act as well as any other information,
reports and documents required of the Company under the Securities Act or the
Exchange Act; and
7.2 furnish to the Investor, so long as the Investor owns any
Registrable Securities, forthwith upon request, (i) a written statement by the
Company as to its compliance with the reporting requirements of Rule 144 (at any
time after 90 days after the effective date of the first registration statement
filed by the Company), the Securities Act and the Exchange Act (at any time
after it has become subject to such reporting requirements), (ii) a copy of the
most recent annual or quarterly report of the Company and such other reports and
documents so filed by the Company, and (iii) such information as the Investor
may reasonably request in availing itself of any rule or regulation of the SEC
allowing the Investor to sell the Registrable Securities without registration.
8. Assignment of Registration Rights. The rights to have the Company
register Registrable Securities pursuant to this Agreement may be assigned by
the Investor to transferees or assignees of such securities provided the Company
is, within reasonable time after such transfers, furnished with written notice
of the name and address of such transferee or assignee and the securities with
respect to which such registration rights are being assigned; provided, however,
that such assignment shall be effective only if immediately following such
transfer the further disposition of such securities by the transferee or
assignee is restricted under the Securities Act.
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The term "Investor" as used in this Agreement shall include permitted
assignees.
9. Miscellaneous.
9.1 Notices required or permitted to be given hereunder shall be in
writing and shall be deemed to be sufficiently given when personally delivered
or sent by registered mail, return receipt requested, addressed (i) if to the
Company, at Osiris Therapeutics, Inc., 0000 Xxxxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxx 00000-0000, Attention: President, and (ii) if to the Investor, at the
address set forth under his name in the Subscription Agreement, or at such other
address as each such party furnishes by notice given in accordance with this
Section 9.1.
9.2 Failure of any party to exercise any right or remedy under this
Agreement or otherwise, or delay by a party in exercising such right or remedy,
will not operate as a waiver thereof. No waiver will be effective unless and
until it is in writing and signed by the party giving the waiver.
9.3 This Agreement shall be enforced, governed and construed in all
respects in accordance with the laws of the State of Delaware, as such laws
are applied by Delaware courts to agreements entered into and to be performed
in Delaware by and between residents of Delaware. In the event that any
provision of this Agreement is invalid or unenforceable under any applicable
statute or rule of law, then such provision shall be deemed inoperative to
the extent that it may conflict therewith and shall be deemed modified to
conform with such statute or rule of law. Any provision hereof which may
prove invalid or unenforceable under any law shall not affect the validity or
enforceability of any other provision hereof.
9.4 This Agreement constitutes the entire agreement between the
parties hereto with respect to the subject matter hereof and may be amended,
supplemented, modified or terminated with respect to all holders of
Registrable Securities by a writing executed by the Company and the holders
of a majority of the outstanding shares of Series A Preferred Stock, Series B
Preferred Stock and the Series D Preferred Stock, acting together as a single
class.
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IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of this ____ day of_____________ 1995.
INVESTOR
By: ____________________
Name: __________________
OSIRIS THERAPEUTICS, INC.
By: ____________________
Name: __________________
Title: _________________
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