Exhibit 10.48
LICENSE AGREEMENT
GLAXOSMITHKLINE
AND
3-DIMENSIONAL PHARMACEUTICALS, INC.
Note: Certain portions of this License Agreement and its exhibits, which
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are identified by the symbol "[* *]", have been omitted and filed separately
with the Securities and Exchange Commission pursuant to a confidential treatment
request.
LICENSE AGREEMENT
-----------------
THIS LICENSE AGREEMENT (hereinafter "AGREEMENT"), made as of the _____ day
of January, 2002, between SmithKline Xxxxxxx Corporation, a Pennsylvania
corporation having a place of business at Xxx Xxxxxxxx Xxxxx, Xxxxxxxxxxxx, XX
00000 ("SBC") and Glaxo Group Limited, a company incorporated in England and
Wales, having an office at Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxx, XX0 XXX, Xxxxxx
Xxxxxxx ("GGL" and, together with SBC, GlaxoSmithKline or "GSK") and 3-
Dimensional Pharmaceuticals, Inc., a Delaware corporation having a place of
business at Three Lower Makefield Corporate Center, 0000 Xxxxx Xxxx Xxxx,
Xxxxxxx, XX 00000 (herein referred to as "3DP"),
WITNESSETH THAT:
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WHEREAS, GSK is the owner of all right, title and interest in certain
patents, identified in Appendix B hereto, and know-how, relating to two
thrombopoietin peptide mimetics known internally at GSK as AF13948 and AF15705,
as well as to certain PEGylated forms of these compounds known internally at GSK
as GW350805 and GW395058, respectively;
WHEREAS GSK was developing, but has discontinued development of, GW350805
and W395058; and
WHEREAS, 3DP desires to obtain an exclusive license, and GSK is willing to
grant an exclusive license to develop and commercialize such compounds on the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the covenants and obligations expressed
herein, and intending to be legally bound, and otherwise to be bound by proper
and reasonable conduct, the parties agree as follows:
1. DEFINITIONS
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1.01 "AFFILIATE" shall mean any corporation or other entity that controls,
is controlled by or is under common control with a party to this Agreement. A
corporation or other entity, as applicable, shall be regarded as in control of
another corporation or other entity if it owns or directly or indirectly
controls at least fifty percent (50%) of the voting stock of the other
corporation or (a) in the absence of the ownership of at least fifty percent
(50%) of the voting stock of a corporation or (b) in the case of a non-corporate
entity, if it possesses, directly or indirectly, the power to direct or cause
the direction of the management and policies of such corporation or non-
corporate entity, as applicable.
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1.02 "EFFECTIVE DATE" shall mean the date as of which this Agreement is
effective and shall be the date of this Agreement first written above.
1.03 "FIELD" shall the mean the development, manufacture and sale of
products that are peptides or modified peptides, including but not limited to
PRODUCTS, that exhibit activity mimetic to thrombopoietin and that [* *];
excluding however for all purposes the development, manufacture and sale of
products that [* *], including but not limited to PRODUCTS,
[* *].
1.04 "KNOW-HOW" shall mean the technical information and know-how that is
owned or controlled by GSK as of the EFFECTIVE DATE and that is necessary or
useful for the development, manufacturing or regulatory approval of a PRODUCT
and shall include, without limitation, biological, chemical, pharmacological,
toxicological, clinical, assay, control and manufacturing data and any other
information specifically relating to a PRODUCT. A non-comprehensive list of
documentation encompassed within KNOW-HOW is set forth on Appendix A attached
hereto, which may be amended from time to time by mutual agreement of the
parties. In addition, if in the course of providing the services described in
Appendix E, GSK develops additional information or know-how that is necessary or
useful for the development, manufacturing or regulatory approval of a PRODUCT,
KNOW-HOW shall also include such additional information and know-how. For the
avoidance of doubt, it is understood and agreed that LICENSOR shall have no
obligation to complete or finalize any draft reports or collections of data that
may be included within KNOW-HOW.
1.05 "LICENSEE" shall mean 3DP.
1.06 "LICENSOR" shall mean GSK.
1.07 "NDA" shall mean an application for marketing approval of a
pharmaceutical product in any country of the world.
1.08 "PATENTS" shall mean the patents and patent applications that are
owned by LICENSOR as of the EFFECTIVE DATE, or to which LICENSOR otherwise has
the right to grant licenses as of the EFFECTIVE DATE and that generically or
specifically claim a PRODUCT or compositions thereof, methods of manufacturing a
PRODUCT or compositions thereof, or methods of using a PRODUCT or compositions
thereof. Also included within the definition of PATENTS are all continuations,
continuations-in-part, divisions, patents of addition, utility models, reissues,
renewals, extensions and supplementary patent certificates derived from or based
on such patents and patent applications. The list of U.S. and PCT patent
applications and patents encompassed within PATENTS as of the EFFECTIVE DATE is
set forth in Appendix B attached hereto. Promptly following the EFFECTIVE DATE,
LICENSOR shall amend Appendix B to include all patent applications and patents
encompassed within PATENTS. In addition, PATENTS shall also include patents and
patent applications filed in
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accordance with Section 7.01 as well as all continuations, continuations-in-
part, divisions, patents of addition, utility models, reissues, renewals,
extensions and supplementary patent certificates derived from or based on such
patents and patent applications.
1.09 "PRODUCT" shall mean any of AF15705, AF13948, GW350805 and GW395058,
each of which is more fully described on Appendix C, including alternative
PEGylated or otherwise-modified forms thereof and including pharmaceutical
compositions comprising such compounds or modified forms thereof, as well as any
derivatives thereof that are discovered or developed by LICENSEE during the term
of this AGREEMENT. "PRODUCTS" shall mean all of AF15705, AF13948, GW350805 and
GW395058 and all alternative PEGylated or otherwise-modified forms thereof and
including pharmaceutical compositions comprising such compounds or modified
forms thereof, as well as any derivatives thereof that are discovered or
developed by LICENSEE during the term of this AGREEMENT.
1.10 "TERRITORY" shall mean all the countries and territories in the world.
1.11 "THIRD PARTY(IES)" shall mean any party other than a party to this
Agreement or an AFFILIATE of either party.
2. GRANT
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2.01 LICENSOR hereby grants to LICENSEE an exclusive license, with the
right to grant sublicenses, under the PATENTS and KNOW-HOW to make, have made,
use, offer to sell, sell and import products in the FIELD in the TERRITORY,
subject to the terms and conditions of this Agreement.
3. PAYMENTS AND ROYALTIES
----------------------
3.01 In consideration for the exclusive license to PATENTS and KNOW-HOW
granted to LICENSEE by LICENSOR under this Agreement, LICENSEE shall make the
following stock issuances to LICENSOR (to be split equally between each GSK
entity comprising LICENSOR) in accordance with the Stock Purchase Agreement
attached hereto as Appendix D:
1. 500,000 shares of Common Stock of LICENSEE to be issued
within five (5) business days after the EFFECTIVE DATE;
2. [* *] shares of Common Stock of LICENSEE to be
issued within ten (10 days of the effective date of [* *], i.e.,
within ten (10) days of the date on which LICENSEE [* *]or to an
analogous agency under the laws and regulations of any other country;
3. [* *] shares of Common Stock of LICENSEE to be
issued within ten (10) days of [* *];
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4. [* *] shares of Common Stock of LICENSEE to be
issued within ten (10) days of [* *];
5. [* *] shares of Common Stock of LICENSEE to be
issued with ten (10) days of [* *].
[* *]
3.02 The stock issuances specified in Section 3.01 shall be the sole
consideration for all rights granted to LICENSEE hereunder and for all
obligations assumed by LICENSOR hereunder.
3.03 LICENSEE shall give LICENSOR prompt written notice of occurrence of
each of the development milestones identified in Section 3.01(2),(3),(4), and
(5).
4. DEVELOPMENT AND REGISTRATION
----------------------------
4.01 As of the EFFECTIVE DATE, LICENSEE shall have full control and
authority over, and shall be solely responsible for PRODUCTS, including but not
limited to the development, registration, manufacture and commercialization of
PRODUCTS in the TERRITORY. LICENSEE will exercise its reasonable efforts and
diligence in developing and commercializing a PRODUCT in accordance with its
business, legal, medical and scientific judgment, and in undertaking
investigations and actions required to obtain appropriate governmental approvals
to market a PRODUCT in the TERRITORY. All such activity shall be undertaken at
LICENSEE's expense.
4.02 LICENSEE shall keep LICENSOR informed in writing, on an annual basis,
of the status of the development of PRODUCTS throughout the TERRITORY.
4.03 Except as specified in Appendix E and in Section 4.04, LICENSOR shall
have no obligation to provide any support to LICENSEE, whether financially,
internal resource or otherwise, for the development and commercialization of
PRODUCTS under the terms of this Agreement or otherwise.
4.04 Except to the extent transferred to LICENSEE pursuant to this
Agreement, LICENSOR shall maintain its data, records, reports, and other
information relating to the research and development of PRODUCTS to the same
extent, and with the same level of care, as it would for other pharmaceutical
products that it discovers, develops and directly commercializes, provided that
such data, records, reports, and other information are in its possession or
control as of the EFFECTIVE DATE.
5. SUPPLY, DISTRIBUTION AND LABELING
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5.01 LICENSEE shall be solely responsible for providing its clinical,
promotional and commercial requirements of PRODUCTS throughout the TERRITORY.
5.02 LICENSEE shall be solely responsible for the distribution in the
TERRITORY of PRODUCTS.
5.03 At Licensee's discretion, PRODUCTS sold by LICENSEE or its permitted
sublicensees in the TERRITORY may bear a legend on its packaging stating that
such PRODUCT is sold under a license from LICENSOR and/or bearing the patent
numbers of patents claiming the PRODUCT that have been granted in the country of
sale; provided that the exact content of such legend must be approved by
LICENSOR prior to commercial launch in the TERRITORY if LICENSEE elects to use
such legends. LICENSOR shall bear no responsibility for any limitation on
damages recoverable from an infringer in an infringement suit as provided for
under Section 7.05 herein if LICENSEE elects under this Section 5.03 to omit the
US patent numbers of patents claiming the PRODUCT.
6. EXCHANGE OF INFORMATION, TRANSITIONAL SERVICES, AND CONFIDENTIALITY
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6.01 LICENSOR shall compile and transfer to LICENSEE, KNOW-HOW, including
but not limited to the documentation listed on Appendix A, and shall otherwise
provide certain transitional services, all as described in Appendix E. The
obligation to transfer KNOW-HOW extends only to KNOW-HOW known to GSK as of
EFFECTIVE DATE or developed by GSK prior to acceptance of an IND for a PRODUCT.
6.02 During the term of this Agreement and for five (5) years thereafter,
irrespective of any termination earlier than the expiration of the term of this
Agreement, LICENSOR shall not use or reveal or disclose to THIRD PARTIES any
confidential information received from LICENSEE without first obtaining the
written consent of LICENSEE, except as may be required to be disclosed to a
governmental agency, in which case LICENSOR shall give LICENSEE prior notice of
the details of such disclosure and of the requirements therefor. This
confidentiality obligation shall not apply to such information which is or
becomes a matter of public knowledge, or is already in the possession of
LICENSOR, or is disclosed to LICENSOR by a THIRD PARTY having the right to do
so, or is subsequently and independently developed by employees of LICENSOR or
AFFILIATES thereof who had no knowledge of the confidential information
disclosed. LICENSOR shall take reasonable measures to assure that no
unauthorized use or disclosure is made by others to whom access to such
information is granted.
6.03 During the term of this Agreement and for five (5) years thereafter,
irrespective of any termination earlier than the expiration of the term of this
Agreement, LICENSEE shall not use or reveal or disclose to THIRD PARTIES any
confidential information received from
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LICENSOR in accordance with this Agreement or under the Confidential Information
Agreement between LICENSOR and LICENSEE dated June 16, 2001, without first
obtaining the written consent of LICENSOR. This confidentiality obligation shall
not apply to KNOW-HOW or to such information which is or becomes a matter of
public knowledge, or is already in the possession of LICENSEE, or is disclosed
to LICENSEE by a THIRD PARTY having the right to do so, or is subsequently and
independently developed by employees of LICENSEE or AFFILIATES thereof who had
no knowledge of the confidential information disclosed. LICENSEE shall take
reasonable measures to assure that no unauthorized use or disclosure is made by
others to whom access to such information is granted.
6.04 Either party to this Agreement may release the announcement attached
hereto as Appendix F. Otherwise, no public announcement or other disclosure to
THIRD PARTIES concerning the existence of or terms of this Agreement shall be
made, either directly or indirectly, by any party to this Agreement, except as
may be legally required or as may be required for recording purposes, without
first obtaining the written approval of the other party and agreement upon the
nature and text of such announcement or disclosure; provided however, that in
the event of any disclosure required by law or required for recording purposes,
the disclosing party shall notify the other party prior to any such disclosure
and reasonably cooperate with any requests to limit or otherwise protect any
such disclosures.
The above notwithstanding, without the prior consent of LICENSOR, LICENSEE
may disclose to third parties information concerning the development and
commercialization of PRODUCTS provided that it shall not disclose the terms of
this Agreement, except to the extent already disclosed by the announcement
attached as Appendix F, without the prior written consent of LICENSOR.
A party desiring to make any other public announcement or other disclosure
shall inform the other party of the proposed announcement or disclosure in
reasonably sufficient time prior to release, and shall provide the other party
with a written copy thereof, in order to allow such other party to comment upon
such announcement or disclosure.
6.05 LICENSOR shall not submit for written or oral publication any
manuscript, abstract or the like which includes data or other information
relating to either PRODUCT without first obtaining the prior written consent of
LICENSEE.
6.06 Nothing in this Agreement shall be construed as preventing or in any
way inhibiting LICENSEE from complying with statutory and regulatory
requirements governing the development, manufacture, use and sale or other
distribution of PRODUCTS in any manner that it reasonably deems appropriate,
including, for example, by disclosing to regulatory authorities confidential or
other information received from LICENSOR or THIRD PARTIES.
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6.07 All confidential information disclosed by one party to the other shall
remain the intellectual property of the disclosing party. In the event that a
court or other legal or administrative tribunal, directly or through an
appointed master, trustee or receiver, assumes partial or complete control over
the assets of a party to this Agreement based on the insolvency or bankruptcy of
such party, the bankrupt or insolvent party shall promptly notify the court or
other tribunal (i) that confidential information received from the other party
under this Agreement remains the property of the other party and (ii) of the
confidentiality obligations under this Agreement. In addition, the bankrupt or
insolvent party shall, to the extent permitted by law, take all steps necessary
or desirable to maintain the confidentiality of the other party's confidential
information and to ensure that the court, other tribunal or appointee maintains
such information in confidence in accordance with the terms of this Agreement.
7. PATENT PROSECUTION AND LITIGATION
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7.01 Each party shall have and retain sole and exclusive title to all
inventions, discoveries and know-how which are made, conceived, reduced to
practice or generated solely by its employees, agents, or other persons acting
under its authority in the course of or as a result of the performance of
activities under this Agreement. Each party shall own a fifty percent (50%)
undivided interest in all such inventions, discoveries and know-how made,
conceived, reduced to practice or generated jointly by employees, agents, or
other persons acting under the authority of both parties in the course of or as
a result of the performance of activities under this Agreement. For the
avoidance of doubt, it is understood and agreed that LICENSOR is not obligated
to, and has no intent of being involved at all with LICENSEE in the development
or commercialization of PRODUCT under this Agreement, and that the
responsibility for the development and commercialization of PRODUCT rests solely
with LICENSEE, except as provided in Appendix E and in Section 4.04. LICENSOR
shall have the right to file, prosecute and maintain patent applications and
patents directed to inventions and discoveries that are owned in whole by
LICENSOR in accordance with this Section 7.01. LICENSEE shall have the right to
file, prosecute and maintain patent applications and patents directed to
inventions and discoveries that are owned in whole by LICENSEE in accordance
with this Section 7.01. Both parties shall have the right to file, prosecute
and maintain patent applications and patents directed to inventions and
discoveries that are jointly owned by LICENSEE and by LICENSOR in accordance
with this Section 7.01 and the parties shall agree upon which of them shall take
the lead in filing, prosecuting and maintaining such patent applications at the
equal expense of both parties. If either party declines to exercise its rights
to file, prosecute and maintain patent applications or patents hereunder, the
other party shall have the right to file, prosecute and maintain such patent
applications and patents at its own expense.
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7.02 LICENSOR shall disclose to LICENSEE the complete texts of all patents
and patent applications that are PATENTS as well as of all correspondence to or
from the U.S. Patent and Trademark Office, and other patent offices around the
world, relating to such patents and patent applications, as well as all
information received concerning the institution or possible institution of any
interference, opposition, re-examination, reissue, revocation, nullification or
any official proceeding involving a PATENT anywhere in the TERRITORY. All such
disclosures shall be subject to the provisions of Section 6.03. LICENSEE shall
have the right to comment upon all patent office communications concerning such
patents and patent applications as well as on all proposed responses to such
communications.
7.03 In addition, LICENSOR shall consult with patent attorneys appointed by
LICENSEE prior to taking any action that would result in the narrowing of claims
that cover the making, using, or selling of a PRODUCT, or that would otherwise
reduce the patent coverage for a PRODUCT, provided that the fees and expenses of
the appointed patent attorneys shall be paid by LICENSEE. LICENSEE shall have
the right to assume responsibility for any PATENT or any part of a PATENT that
covers the making, using or selling of a PRODUCT and that LICENSOR intends to
abandon or otherwise cause or allow to be forfeited.
7.04 In the event of the institution of any suit by a THIRD PARTY against
LICENSOR, LICENSEE or its sublicensees for patent infringement involving the
manufacture, use, sale, distribution or marketing of PRODUCT anywhere in the
TERRITORY, the party sued shall promptly notify the other party in writing.
LICENSEE shall have the right but not the obligation to defend such suit at its
own expense. LICENSOR and LICENSEE shall assist one another and cooperate in
any such litigation at the other's reasonable request without expense to the
requesting party.
7.05 In the event that LICENSOR or LICENSEE becomes aware of actual or
threatened infringement of a patent claim in a PATENT, which claim covers the
making, using, or selling of a product in the FIELD anywhere in the TERRITORY,
that party shall promptly notify the other party in writing. LICENSEE shall
have the first right but not the obligation to bring, at its own expense, an
infringement action against any THIRD PARTY and, if required in order to bring
or maintain such action or to recover the full measure of damages, to use
LICENSOR's name in connection therewith and to include LICENSOR as a party
thereto. If LICENSEE does not commence a particular infringement action within
ninety (90) days, LICENSOR, if LICENSEE consents, shall be entitled to bring
such infringement action at its own expense. The party conducting such action
shall have full control over its conduct, including settlement thereof, subject
to Paragraph 7.07. In any event, LICENSOR and LICENSEE shall assist one another
and cooperate in any such litigation at the other's reasonable request without
expense to the requesting party.
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7.06 LICENSOR and LICENSEE shall recover their respective actual out-of-
pocket expenses, or equitable proportions thereof, associated with any
litigation or settlement thereof from any recovery made by any party. Any excess
amount shall be kept by the party that conducted the litigation.
7.07 The parties shall keep one another informed of the status of and of
their respective activities regarding any litigation or settlement thereof
concerning PRODUCT, provided that no settlement or consent judgment or other
voluntary final disposition of any suit defended or action brought by one party
pursuant to this Article 7 may be entered into without the consent of the other
party if such settlement would require the non-settling party to be subject to
an injunction outside the FIELD or to make a monetary payment for which the non-
settling party is not indemnified by the settling party or would adversely
affect the non-settling party's rights under this Agreement.
8. TRADEMARKS AND NON-PROPRIETARY NAMES
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8.01 LICENSEE, at its expense, shall be responsible for the selection,
registration and maintenance of all trademarks that it employs in connection
with PRODUCT in the TERRITORY and shall own and control such trademarks.
Nothing in this Agreement shall be construed as a grant of rights, by license or
otherwise, to LICENSOR to use such trademarks for any purpose.
9. TERM AND TERMINATION
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9.01 Unless otherwise terminated, this Agreement shall expire upon the
expiration, lapse or invalidation of the last remaining PATENT in any country of
the TERRITORY that covers the making, using, selling, or importing of PRODUCT.
Expiration of this Agreement under this provision shall not preclude LICENSEE
from continuing to market PRODUCT and to use KNOW-HOW without further payments
to LICENSOR.
9.02 If either party fails or neglects to perform material covenants or
provisions of this Agreement and if such default is not corrected within thirty
(30) days after receiving written notice from the other party with respect to
such default, such other party shall have the right to terminate this Agreement
by giving written notice to the party in default; provided, however, that if
such default is contested in accordance with Article 14, then the termination
shall not take effect until the matter is finally resolved.
9.03 LICENSEE may terminate this Agreement at any time and at its
discretion by giving thirty (30) days written notice thereof to LICENSOR. Upon
any termination by LICENSOR pursuant to Section 9.02 or LICENSEE pursuant to
this Section 9.03, in addition to the provisions of Article 10 below, LICENSEE
shall return to LICENSOR any KNOW-HOW
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provided to LICENSEE hereunder. In addition, LICENSEE shall grant to LICENSOR a
license under LICENSEE's rights in all pre-clinical, clinical, regulatory,
manufacturing and other documentation and related know-how and patents relating
to PRODUCTS developed and/or commercialized hereunder under commercially
reasonable terms to be negotiated in good faith between the parties.
9.04 Either party may terminate this Agreement if, at any time, the other
party shall file in any court or agency pursuant to any statute or regulation of
any state or country, a petition in bankruptcy or insolvency or for
reorganization or for an arrangement or for the appointment of a receiver or
trustee of the party or of its assets, or if the other party proposes a written
agreement of composition or extension of its debts, or if the other party shall
be served with an involuntary petition against it, filed in any insolvency
proceeding, and such petition shall not be dismissed within sixty (60) days
after the filing thereof, or if the other party shall propose or be a party to
any dissolution or liquidation, or if the other party shall make an assignment
for the benefit of creditors.
9.05 Notwithstanding the bankruptcy of LICENSOR, or the impairment of
performance by LICENSOR of its obligations under this Agreement as a result of
bankruptcy or insolvency of LICENSOR, LICENSEE shall be entitled to retain the
licenses granted herein, subject to LICENSOR's rights to terminate this
Agreement for reasons other than bankruptcy or insolvency as expressly provided
in this Agreement.
10. RIGHTS AND DUTIES UPON TERMINATION
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10.01 Upon termination of this Agreement, LICENSOR shall have the right to
retain any shares of Common Stock of LICENSEE already issued to LICENSOR by
LICENSEE under this Agreement or the Stock Purchase Agreement, and LICENSEE
shall issue to LICENSOR all shares of Common Stock that may be due as of the
effective date of termination under Section 3.01.
10.02 Termination of this Agreement shall terminate all outstanding
obligations and liabilities between the parties arising from this Agreement,
including without limitation the licenses granted in Article 2 hereof, except
those described in Paragraphs 6.02, 6.03, 6.07, 7.01, 9.01, 9.03, 11.06, 13.01
and 14.01 and Article 10, as well as any other provision which, by its terms, is
stated to survive the termination or expiration of this Agreement. In addition,
any other provision required to interpret and enforce the parties rights and
obligations under this Agreement shall also survive, but only to the extent that
such survival is required for the full observation and performance of this
Agreement by the parties hereto.
10.03 Termination of the Agreement in accordance with the provisions
hereof shall not limit remedies that may be otherwise available in law or
equity.
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11. WARRANTIES AND REPRESENTATIONS
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11.01 LICENSOR represents and warrants that, except as listed in
Appendix G:
11.1.1. it has the right to enter into this Agreement;
11.1.2. as of the EFFECTIVE DATE, to its belief and knowledge, but
without any inquiry or investigation, the claims in the PATENTS listed on
Appendix B that cover the making, using or selling of a PRODUCT are valid and
enforceable;
11.1.3. as of the EFFECTIVE DATE, to its belief and knowledge, but
without any inquiry or investigation, there are no third party patents or other
intellectual property rights that would preclude or inhibit LICENSEE from
making, using, or selling PRODUCTS in the Field;
11.1.4. as of the EFFECTIVE DATE, to its belief and knowledge, but
without any inquiry or investigation, there are no third party liens or other
encumbrances, including but not limited to encumbrances arising from contracts
with third parties, on the PRODUCTS or on the PATENTS listed on Appendix B for
use in the Field;
11.1.5. it has disclosed or will timely disclose to LICENSEE all
information and data relevant to the safety of the PRODUCTS.
11.02 Nothing in this Agreement shall be construed as a warranty that
PATENTS are valid or enforceable or that their exercise does not infringe any
patent rights of THIRD PARTIES.
11.03 [* *].
11.04 LICENSEE acknowledges that, in entering into this Agreement,
LICENSEE has independently evaluated any information supplied by LICENSOR and
related to PRODUCT and PATENTS before making its decision to enter into this
Agreement and to undertake the commitments and obligations set forth herein,
except that LICENSEE has relied upon the representations and warranties by
LICENSOR expressly recited in Section 11.01. LICENSEE expressly acknowledges
that it is solely responsible for the development and commercialization of
PRODUCT and that, except as expressly set forth herein, LICENSOR has no
obligation to provide assistance in any manner to LICENSEE in the development
and commercialization of PRODUCT.
11.05 LICENSEE warrants that, with respect to any sublicense which it
shall be entitled to grant under this Agreement, it shall secure all appropriate
covenants, obligations and rights from any such sublicensee to ensure that such
sublicensee can comply with all of LICENSEE' covenants and obligations to
LICENSOR under this Agreement. LICENSEE agrees that it shall comply with all
reasonable requests from LICENSOR to use reasonable endeavors to enforce
requested provisions of such sublicense agreements.
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11.06 LICENSEE shall indemnify and hold harmless LICENSOR and its
Affiliates with respect to any and all claims, suits, causes of action, damages
and costs (including reasonable attorney's fees) (hereinafter "Claims") asserted
by any Third Party against LICENSEE and/or LICENSOR and arising from any of
LICENSEE'S actions or omissions under this Agreement, including without
limitation any claims for illness, injury, death or other damage resulting from
LICENSEE or its AFFILIATES manufacture, use or sale of PRODUCT, except to the
extent:
11.6.1. such Claims are due to the negligence or willful misconduct of
LICENSOR or to breach by LICENSOR of its representations and warranties under
Section 11.01
11.6.2. LICENSOR fails to give LICENSEE prompt notice of such Claims,
fails to permit LICENSEE to control the defense or settlement of such Claims, or
fails to reasonably cooperate with LICENSEE in the defense of such Claims;
provided however that LICENSEE shall not settle any claim that imposes an
injunction on LICENSOR outside of the FIELD or imposes a monetary judgement on
LICENSOR for which LICENSOR is not indemnified by LICENSEE or otherwise
adversely affects LICENSOR's rights outside the FIELD.
11.07 Immediately upon the first administration of a PRODUCT to a human in
accordance with this Agreement, and for a period of at least five (5) years
after the expiration of this Agreement or earlier termination, LICENSEE shall
obtain and/or maintain, at its sole cost and expense, product liability
insurance in amounts, which are reasonable and customary in the U.S.
pharmaceutical industry for companies that are of similar size and similarly
situated as LICENSEE. Such product liability insurance shall insure against all
liability, including product liability, personal liability, physical injury or
property damage. LICENSEE shall provide written proof of the existence of such
insurance to LICENSOR upon request therefor.
12. FORCE MAJEURE
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12.01 If the performance of any part of this Agreement by either party, or
of any obligation under this Agreement, is prevented, restricted, interfered
with or delayed by reason of any cause beyond the reasonable control of the
party liable to perform, unless conclusive evidence to the contrary is provided,
the party so affected shall, upon giving written notice to the other party, be
excused from such performance to the extent of such prevention, restriction,
interference or delay, provided that the affected party shall use its reasonable
best efforts to avoid or remove such causes of non-performance and shall
continue performance with the utmost dispatch whenever such causes are removed.
When such circumstances arise, the parties shall discuss what, if any,
modification of the terms of this Agreement may be required in order to arrive
at an equitable solution.
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13. GOVERNING LAW
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13.01 This Agreement shall be deemed to have been made in Pennsylvania and
its form, execution, validity, construction and effect shall be determined in
accordance with the laws of Pennsylvania.
14. DISPUTE RESOLUTION
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14.01 Any dispute, controversy or claim arising out of or relating to this
Agreement, including termination thereof (hereinafter collectively referred to
as "Dispute") shall be attempted to be settled by the parties, in good faith, by
submitting each such Dispute to appropriate senior management representatives of
each party in an effort to effect a mutually acceptable resolution thereof. In
the event no mutually acceptable resolution is achieved in a reasonable period
of time, then either party may submit the Dispute to binding arbitration in
accordance with the relevant rules of the American Arbitration Association and
the result of such arbitration shall be binding upon the parties and shall be
final. Any such arbitration shall take place in Philadelphia, Pennsylvania.
15. SEPARABILITY
------------
15.01 In the event any portion of this Agreement shall be held illegal,
void or ineffective, the remaining portions hereof shall remain in full force
and effect.
15.02 If any of the terms or provisions of this Agreement are in conflict
with any applicable statute or rule of law, then such terms or provisions shall
be deemed inoperative to the extent that they may conflict therewith and shall
be deemed to be modified to conform with such statute or rule of law.
15.03 In the event that the terms and conditions of this Agreement are
materially altered as a result of Paragraphs 15.01 or 15.02, the parties will
renegotiate the terms and conditions of this Agreement to resolve any
inequities.
16. ENTIRE AGREEMENT
----------------
16.01 This Agreement, entered into as of the date first written above,
constitutes the entire agreement between the parties relating to the subject
matter hereof and supersedes all previous writings and understandings, including
but not limited to the Confidential Information Agreement between LICENSOR and
LICENSEE dated June 16, 2001. No terms or provisions of this Agreement shall
be varied or modified by any prior or subsequent statement, conduct or act of
either of the parties, except that the parties may amend this Agreement by
written instruments specifically referring to and executed in the same manner as
this Agreement.
Page 13
17. NOTICES
-------
17.01 Any notice required or permitted under this Agreement shall be sent
by air mail, postage pre-paid, to the following addresses of the parties:
LICENSEE
To: 3-Dimensional Pharmaceuticals, Inc.
Three Lower Makefield Corporate Center
0000 Xxxxx Xxxx Xxxx
Xxxxxxx, XX 00000
Attn: Chief Executive Officer
Fax No.: 000-000-0000
Copy to:
Xxxxxx, Xxxxx & Xxxxxxx, LLP
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Fax No. 000-000-0000
Attention: Xxxxxx X. Xxxxx, Esq. and Xxxxx Xxxxxx, Esq.
LICENSOR
To: GlaxoSmithKline
0000 Xxxxxxxxxxxx Xxxx
Xxxxxxxxxxxx, XX 00000-0000
Attn: Xx. Xxxxxx Xxxxxxxx
V.P. and Director,
Genetics and Discovery Ventures
Fax: 000-000-0000
Copy to: GlaxoSmithKline
Corporate Law Department
Xxx Xxxxxxxx Xxxxx
000 Xxxxx 00xx Xxxxxx / XX0000
Xxxxxxxxxxxx, XX 00000
Attn: General Counsel
Fax: 000-000-0000
17.02 Any notice required or permitted to be given concerning this
Agreement shall be effective upon receipt by the party to whom it is addressed.
Page 14
18. ASSIGNMENT
----------
18.01 This Agreement and the licenses herein granted shall be binding upon
and inure to the benefit of the successors in interest of the respective
parties. Neither this Agreement nor any interest under this Agreement shall be
assignable by either party without the written consent of the other; provided,
however, that either party may assign this Agreement to (i) any AFFILIATE or
(ii) any corporation with which it may merge or consolidate, or to which it may
transfer all or substantially all of its assets , without obtaining the consent
of the other party; provided further that any such assignee shall agree to be
bound by the terms and conditions of this Agreement. For the avoidance of
doubt, LICENSEE's obligations under the Stock Purchase Agreement and
Registration Rights Agreement shall not be affected by any such assignment.
19. RECORDING
---------
19.01 LICENSEE shall have the right, at any time, to record, register, or
otherwise notify this Agreement in appropriate governmental or regulatory
offices anywhere in the TERRITORY, and LICENSOR shall provide reasonable
assistance to LICENSEE in effecting such recording, registering or notifying.
20. EXECUTION IN COUNTERPARTS
-------------------------
20.01 This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original but all of which together shall constitute
one and the same instrument.
Page 15
IN WITNESS WHEREOF, the parties, through their authorized officers, have
executed this Agreement as of the date first written above.
3-DIMENSIONAL PHARMACEUTICALS, INC.
BY:
---------------------------------
TITLE:
------------------------------
SMITHKLINE XXXXXXX CORPORATION
BY:
---------------------------------
TITLE:
------------------------------
GLAXO GROUP LIMITED
BY:
---------------------------------
TITLE:
------------------------------
Page 16
LICENSE AGREEMENT
GLAXOSMITHKLINE - 3DP
APPENDIX A
Documentation Encompassed Within KNOW-HOW
Appendix A
Documentation Encompassed Within KNOW-HOW
-----------------------------------------
GSK agrees to supply the following documentation to the extent such information
is in its possession at the time of the Effective Date. If electronic versions
are available, information will be supplied electronically. If only hardcopy
information is available then hardcopy will be supplied.
[* 2 pages have been omitted pursuant to a confidential treatment request *]
Electronic version of the Confidential Data Package
A-1
Appendix A continued
Documentation Encompassed Within KNOW-HOW
-----------------------------------------
The following documentation was available in the due diligence notebooks and GSK
agrees to supply this information to 3DP.
[* *]
INDI
Subject Document No. Document/1/ Title Author
[* *] [* *] [* *] [* *] [* *]
[* The entire table, consisting of 3 pages, has been omitted pursuant to
a confidential treatment request *]
A-3
[* *]
INDI
Subject Document No. Document/1/ Title Author
[* *] [* *] [* *] [* *] [* *]
[* The entire table, consisting of 2 pages, has been omitted pursuant to a
confidential treatment request *]
A-6
[* *]
Date From To Subject
[* *] [* *] [* *] [* *]
[* The entire table, consisting of 3 pages, has been omitted pursuant to a
confidential treatment request *]
A-8
[* *]
INDI
Subject Document No. Document/1/ Title Author
[* *] [* *] [* *] [* *] [* *]
[* The entire table, consisting of 5 pages, has been omitted pursuant to a
confidential treatment request *]
A-11
[* *]
Created or Last
Subject Document Format Contents Modified
[* *] [* *] [* *] [* *] [* *]
[* The entire table, consisting of 1 page, including a portion of one
footnote, has been omitted pursuant to a confidential treatment request *]
Notes:
1) A single report may be reissued and appear in more than one INDI document
files.
2) Electronic copy not available. Only pages or sections relevant to
[* *] provided.
X-00
XXXXXXX XXXXXXXXX
XXXXXXXXXXXXXXX - 0XX
XXXXXXXX B
PATENTS AND APPLICATIONS
U.S. PATENTS
------------
[* *]
U.S. PENDING PATENT APPLICATIONS
--------------------------------
[* *]
PCT APPLICATIONS
----------------
[* *]
NON-U.S. PATENTS AND APPLICATIONS
---------------------------------
Any and all non-U.S. patents that claim priority to one or more of the U.S.
Patents, U.S. Pending Patent Applications and PCT Applications set forth above.
A complete list will be provided by GSK.
B-1
LICENSE AGREEMENT
GLAXOSMITHKLINE - 3DP
XXXXXXXX X
XXXXXXXXXXX XX XXXXXXXXX
XX00000
-------
[* *]
AF15705
-------
[* *]
GW350805
--------
[* *]
GW395058
--------
[* *]
C-1
STOCK PURCHASE AGREEMENT and REGISTRATION RIGHTS AGREEMENT
GLAXOSMITHKLINE - 3DP
Appendix D
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (the "Agreement") is made as of January___, 2002
---------
by and among 3-Dimensional Pharmaceuticals, Inc., a Delaware corporation
( "3DP"), SmithKline Xxxxxxx Corporation, a Pennsylvania corporation ("SBC"),
--- ---
and Glaxo Group Limited, a company incorporated in England and Wales ("GGL"
---
and, together with SBC, "GSK").
---
WITNESSETH THAT:
WHEREAS, 3DP and GSK are entering into a License Agreement simultaneously with
the execution of this Agreement whereby GSK is granting to 3DP an exclusive
license to certain patents and know-how described in such License Agreement (the
"License");
-------
WHEREAS, pursuant to the License Agreement and in consideration for the License,
3DP has agreed to issue shares of its common stock, par value $.001 per share
(the "3DP Common Stock"), in equal amounts to SBC and GGL in accordance with the
----------------
terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties to this Agreement, intending to be legally
bound, hereby agree as follows:
1. Authorization of the Shares. 3DP has authorized the issuance and sale
----------------------------
to SBC and GGL of up to 2,400,000 shares of its Common Stock (the "Shares").
------
2. Purchase and Sale of the Shares. Subject to the terms and conditions
--------------------------------
of this Agreement and the terms and conditions of the License Agreement, and in
consideration for the grant of the License by GSK to 3DP, 3DP agrees to issue
and sell, the following number of Shares, such amount of Shares to be issued in
equal amounts to SBC and GGL:
(a) 500,000 shares of 3DP Common Stock to be issued within five (5)
business days after the Closing Date;
(b) [* *] shares of 3DP Common Stock to be issued within ten
(10) days of the effective date of [* *], i.e., within ten (10) days
of the date on which 3DP [* *] or to an analogous agency under the laws
and regulations of any other country;
D-1
(c) [* *] shares of 3DP Common Stock to be issued within ten
(10) days of [* *];
(d) [* *] shares of 3DP Common Stock to be issued within ten
(10) days of [* *]; and
(e) [* *] shares of 3DP Common Stock to be issued within ten
(10) days of [* *].
[* *]. In addition, for the purposes of this
Section 2, the terms "Product" and "IND" shall have the meanings ascribed to
------- ---
such terms in the License Agreement.
For purposes of this Agreement, the Shares to be issued pursuant to
Section 2(a) shall be referred to herein as the "Initial Shares" and the Shares
--------------
to be issued upon achievement of the milestones identified in Section 2(b), (c),
(d) and (e) shall be referred to herein as the "Contingent Shares."
-----------------
2.1 Adjustments. If, on or prior to the issuance of any of the
------------
Shares, 3DP should split or combine shares of 3DP Common Stock, or pay a stock
dividend or other stock distribution in 3DP Common Stock, or otherwise change
the 3DP Common Stock into any other securities, or make any other dividend or
distribution on the 3DP Common Stock, then the number of Shares issuable will be
appropriately adjusted to reflect such split, combination, dividend or other
distribution or change. No fractions of any Shares shall be issued pursuant to
this Agreement and the Shares issued hereunder shall be rounded up to the
nearest whole number of shares. [* *].
3. Closing. The issuance of the Initial Shares will occur within five
--------
business days of the execution of the License Agreement (the "Closing Date") at
------------
the offices of 3DP's counsel or at such other place as may be agreed upon by 3DP
and GSK. On the Closing Date, 3DP will deliver to GSK, or a representative of
GSK, stock certificates representing the Initial Shares, each such certificate
to be registered in the name of SBC and GGL, as applicable, or in the name of a
nominee designated by SBC or GGL. The issuance of the Contingent Shares shall
be made within ten days following the achievement of the milestones referenced
in Sections 2(b), (c), (d) and (e). 3DP's obligation to issue the Contingent
Shares will terminate upon the termination or expiration of the License
Agreement in accordance with its terms and will be conditioned on a material
breach or default not having occurred under this Agreement.
4. Representations, Warranties and Covenants of 3DP. 3DP hereby
------------------------------------------------
represents and warrants to, and covenants with, SBC and GGL, as follows:
4.1 Organization. 3DP is duly incorporated and validly existing in
------------
good standing under the laws of the jurisdiction of its incorporation. 3DP has
full power and authority to own, operate and occupy its properties and to
conduct its business as presently conducted and as described in the documents
(including the exhibits thereto) filed by 3DP under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), since the end of its most recently
------------
completed fiscal year through the date
D-2
hereof, including, without limitation, its report on Form 10-K for the year
ended December 31, 2000, its quarterly reports on Form 10-Q for the quarters
ending September 30, 2001, June 30, 2001 and March 31, 2001 and, its current
reports on Form 8-K filed with the Securities and Exchange Commission (the
"SEC") on September 28, 2001 and January 3, 2001, (the "Exchange Act Documents")
--- ----------------------
and is registered or qualified to do business and in good standing in each
jurisdiction in which the nature of the business conducted by it or the location
of the properties owned or leased by it requires such qualification and where
the failure to be so qualified would have a material adverse effect upon the
financial condition or results of operations of 3DP (a "Material Adverse
----------------
Effect"), and no proceeding has been instituted in any such jurisdiction,
------
revoking, limiting or curtailing, or seeking to revoke, limit or curtail, such
power and authority or qualification.
4.2 Due Authorization and Valid Issuance. 3DP has all requisite
------------------------------------
power and authority to execute, deliver and perform its obligations under this
Agreement, and the Agreement has been duly authorized and validly executed and
delivered by 3DP and constitutes a legal, valid and binding agreement of 3DP
enforceable against 3DP in accordance with its terms, except as rights to
indemnity and contribution may be limited by state or federal securities laws or
the public policy underlying such laws, except as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' and contracting parties' rights generally and except as
enforceability may be subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
The Shares being purchased by SBC and GGL hereunder will, upon issuance pursuant
to the terms hereof, be duly authorized, validly issued, fully-paid and
nonassessable.
4.3 Non-Contravention. The execution and delivery of this Agreement,
-----------------
the issuance of the Shares to be sold by 3DP under the License Agreement and
this Agreement, the fulfillment of the terms of the Agreement and the
consummation of the transactions contemplated hereby will not: (a) conflict with
or constitute a violation of, or default (with the passage of time or otherwise)
under, (i) any material bond, debenture, note or other evidence of indebtedness,
lease, contract, indenture, mortgage, deed of trust, loan agreement, joint
venture or other agreement or instrument to which 3DP is a party or by which its
properties are bound, (ii) the charter, by-laws or other organizational
documents of 3DP, or (iii) any law, administrative regulation, ordinance or
order of any court or governmental agency, arbitration panel or authority
applicable to 3DP or its properties, except in the case of clauses (i) and (iii)
for any such conflicts, violations or defaults which are not reasonably likely
to have a Material Adverse Effect; or (b) result in the creation or imposition
of any lien, encumbrance, claim, security interest or restriction whatsoever
upon any of the material properties or assets of 3DP or an acceleration of
indebtedness pursuant to any obligation, agreement or condition contained in any
material bond, debenture, note or any other evidence of indebtedness or any
material indenture, mortgage, deed of trust or any other agreement or instrument
to which 3DP is a party or by which it is bound or to which any of the material
property or assets of 3DP is subject. No consent, approval, authorization or
other order of, or registration, qualification or filing with, any regulatory
body, administrative agency, or other governmental body in the United States or
any other person is required for the execution and delivery of the Agreement and
the valid issuance and sale of the Shares to be sold pursuant to the Agreement,
other than such as have been
D-4
made or obtained, and except for any post-closing securities filings or
notifications required to be made under federal or state securities laws.
4.4 Capitalization. The capitalization of 3DP as of September 30,
--------------
2001 is as set forth in the most recent applicable Exchange Act Documents,
increased as set forth in the next sentence. 3DP has not issued any capital
stock since that date other than pursuant to (a) employee benefit plans
disclosed in the Exchange Act Documents, or (b) outstanding warrants, options or
other securities disclosed in the Exchange Act Documents. Except as set forth
in or contemplated by the Exchange Act Documents, there are no outstanding
rights (including, without limitation, preemptive rights), warrants or options
to acquire, or instruments convertible into or exchangeable for, any unissued
shares of capital stock or other equity interest in 3DP, or any contract,
commitment, agreement, understanding or arrangement of any kind to which 3DP is
a party or of which 3DP has knowledge and relating to the issuance or sale of
any capital stock of 3DP, any such convertible or exchangeable securities or any
such rights, warrants or options. No further approval or authorization of any
stockholder, the Board of Directors of 3DP or others is required for the
issuance and sale of the Shares. Except as disclosed in the Exchange Act
Documents, there are no stockholder agreements, voting agreements or other
similar agreements with respect to the capital stock of 3DP to which 3DP is a
party or, to the knowledge of 3DP, between or among any of 3DP's stockholders.
4.5 Legal Proceedings. There is no material legal or governmental
-----------------
proceeding pending or, to the knowledge of 3DP, threatened to which 3DP is or
may be a party or of which the business or property of 3DP is subject that is
required to be disclosed and that is not so disclosed in the Exchange Act
Documents. To the knowledge of 3DP, there are no facts which, if known by a
potential claimant, governmental authority or self regulatory organization,
would give rise to a claim or proceeding which would be reasonably likely to
have a Material Adverse Effect.
4.6 No Violations. 3DP is not in violation of its charter, bylaws,
-------------
or other organizational document, or in violation of any law, administrative
regulation, ordinance or order of any court, self regulatory organization or
governmental agency, arbitration panel or authority applicable to 3DP, which
violation, individually or in the aggregate, would be reasonably likely to have
a Material Adverse Effect, or in default (and there exists no condition which,
with the passage of time or otherwise, would constitute a default) in any
material respect in the performance of any bond, debenture, note or any other
evidence of indebtedness in any indenture, mortgage, deed of trust or any other
material agreement or instrument to which 3DP is a party or by which 3DP is
bound or by which the properties of 3DP are bound, which would be reasonably
likely to have a Material Adverse Effect.
4.7 Intellectual Property. Except as specifically disclosed in the
---------------------
Exchange Act Documents (a) 3DP owns or possesses sufficient rights to use all
material patents, patent rights, trademarks, copyrights, licenses, inventions,
trade secrets, trade names, know-how, confidential information and other
intellectual property (collectively, "Intellectual Property") described or
---------------------
referred to in the Exchange Act Documents as owned or possessed by it or that
are necessary for the conduct of its
D-5
business as now conducted or as proposed to be conducted as described in the
Exchange Act Documents except where the failure to currently own or possess such
Intellectual Property would not have a Material Adverse Effect, (b) 3DP is not,
to its knowledge, infringing, and has not received any notice of, nor has any
knowledge of, any asserted infringement by 3DP of, any rights of a third party
with respect to any Intellectual Property that, individually or in the
aggregate, would have a Material Adverse Effect and (c) 3DP has not received any
notice of, or has any knowledge of, infringement by a third party with respect
to any Intellectual Property rights of 3DP that, individually or in the
aggregate, would have a Material Adverse Effect.
4.8 Financial Statements; Accountants. The financial statements of
---------------------------------
3DP and the related notes contained in the Exchange Act Documents present fairly
in all material respects the financial position of 3DP as of the dates
indicated, and the results of its operations and cash flows for the periods
therein specified, and such financial statements have been prepared in
accordance with generally accepted accounting principles applied on a consistent
basis throughout the periods specified therein, except as may be included in the
notes to such financial statements, or in the case of unaudited financial
statements, as may be permitted by the rules of the SEC for Form 10-Q under the
Exchange Act and except as disclosed in the Exchange Act Documents. Xxxxxx
Xxxxxxxx LLP and Xxxxxxx X. Xxxxxx & Company, LLP, who 3DP expects will consent
to the inclusion in the Registration Statement of its opinion with respect to
the financial statements to be incorporated by reference from 3DP's Annual
Report on Form 10-K for the year ended December 31, 2001 into the Registration
Statement and the prospectus which forms a part thereof, are independent
accountants as required by the Securities Act and the rules and regulations
promulgated thereunder.
4.9 No Material Adverse Change. Except as disclosed in the Exchange
--------------------------
Act Documents, since September 30, 2001, there has not been (a) any material
adverse change in the financial condition, or results of operations of 3DP, (b)
any material adverse event affecting 3DP, (c) any material obligation, direct or
contingent, incurred by 3DP, except obligations incurred in the ordinary course
of business, (d) any dividend or distribution of any kind declared, paid or made
on the capital stock of 3DP, or (e) any loss or damage (whether or not insured)
to the physical property of 3DP which has been sustained that is material to
3DP.
4.10 Nasdaq Compliance. 3DP's Common Stock is registered pursuant to
-----------------
Section 12(g) of the Exchange Act and is listed on the Nasdaq National Market of
The Nasdaq Stock Market, Inc. (the "Nasdaq National Market"), and 3DP has taken
----------------------
no action designed to, or likely to have the effect of, terminating the
registration of the 3DP Common Stock under the Exchange Act or de-listing the
3DP Common Stock from the Nasdaq National Market, nor has 3DP received any
notification that the SEC or the National Association of Securities Dealers,
Inc. ("NASD") is contemplating terminating such registration or listing.
----
4.11 Reporting Status. 3DP has filed in a timely manner all
----------------
documents that 3DP was required to file under the Exchange Act during the 12
months preceding the date of this Agreement. 3DP's Exchange Act Documents
complied in all material respects with the SEC's requirements as of their
respective filing dates, and the information contained therein as of the date
thereof, and such information, taken as a whole as of the date hereof, did not
contain an 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
D-5
the circumstances under which they were made not misleading. 3DP is eligible to
register the resale of the Shares on a registration statement on Form S-3 under
the Act.
4.12 Listing. 3DP will comply with all of the requirements of the
-------
NASD with respect to the issuance of the Shares and the listing thereof on the
Nasdaq National Market.
4.13 Private Offering. Assuming that the representations and
----------------
warranties of SBC and GGL set forth in Section 5.1 are accurate, the offer and
sale of Shares pursuant to this Agreement are exempt from registration under the
Securities Act.
4.14 Reservation of Shares. 3DP shall maintain sufficient authorized
---------------------
but unissued shares of 3DP Common Stock to meet its obligations to deliver the
Contingent Shares pursuant to Sections 2(b), (c), (d) and (e) under this
Agreement.
4.15 Reporting of Public Information for Rule 144. With a view to
--------------------------------------------
making available the benefits of Rule 144 under the Securities Act (or any
similar or successor rule which may at any time permit the sale of the Shares to
the public without registration), 3DP agrees to (i) make and keep public
information available, as those terms are defined in Rule 144 under the
Securities Act, (ii) use its best efforts to file with the SEC in a timely
manner all reports and other documents required of 3DP under the Securities Act
and the Exchange Act, and (iii) furnish to each of SBC or GGL a copy of the most
recent annual or quarterly report of 3DP, and such other reports and documents
so filed by 3DP as each of SBC or GGL may reasonably request in availing itself
of Rule 144 (or any similar or successor rule).
5. Representations, Warranties and Covenants of SBC and GGL.
--------------------------------------------------------
5.1 Accredited Investor. Each of SBC and GGL represents and warrants
-------------------
to, and covenants with, 3DP that: (a) it is an "accredited investor" as defined
in Regulation D under the Securities Act and is also knowledgeable,
sophisticated and experienced in making, and is qualified to make decisions with
respect to, investments in securities presenting an investment decision like
that involved in the purchase of the Shares, including investments in comparable
companies, and has had the opportunity to request, receive, review and consider
all information that it deemed relevant in making an informed decision to
purchase the Shares; (b) it is acquiring the Initial Shares identified in
Section 2(a) of this Agreement and the right to acquire the Contingent Shares
identified in Sections 2(b), (c), (d) and (e), subject to the achievement by 3DP
of the milestones identified in those subsections and pursuant to the terms and
conditions of the License Agreement, in the ordinary course of its business and
for its own account for investment only and with no present intention of
distributing any of such Shares or any arrangement or understanding with any
other persons regarding the distribution of such Shares; (c) it will not,
directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of
(or solicit any offers to buy, purchase or otherwise acquire or take a pledge
of) any of the Shares except in compliance with the Securities Act, applicable
state securities laws and the respective rules and regulations promulgated
thereunder; and (d) it has, in connection with its decision to purchase the
number of Shares set forth in Section 2 of this Agreement, relied only upon the
Exchange Act Documents, any materials requested and received pursuant to clause
(a) above and the representations and warranties of 3DP contained herein. Each
of SBC and GGL understands that neither this issuance nor its acquisition of the
Shares has been
D-6
registered under the Securities Act or registered or qualified under any state
securities law in reliance on specific exemptions therefrom, which exemptions
may depend upon, among other things, the bona fide nature of its investment
intent as expressed herein.
5.2 Authority. Each of SBC and GGL further represents and warrants
---------
to, and covenants with, 3DP that (a) it has full right, power, authority and
capacity to enter into this Agreement and to consummate the transactions
contemplated hereby and has taken all necessary action to authorize the
execution, delivery and performance of this Agreement, and (b) this Agreement
and the License Agreement constitute valid and binding obligations of each of
SBC and GGL enforceable against them in accordance with their terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' and contracting
parties' rights generally and except as enforceability may be subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
5.3 No Investment Advice. Each of SBC and GGL understands that
--------------------
nothing in the Exchange Act Documents, this Agreement or any other materials
presented to them in connection with the purchase and sale of the Shares
constitutes legal, tax or investment advice. Each of SBC and GGL has consulted
such legal, tax and investment advisors as it, in its sole discretion, has
deemed necessary or appropriate in connection with its purchase of Shares.
5.4 Limitations on Resale. Each of SBC and GGL understand that the
---------------------
Shares may not be transferred unless the Shares have been registered under the
Securities Act and any applicable state securities law or, in the opinion of
counsel satisfactory to the issuer, the sale or disposition of the Shares may
lawfully be made without compliance with the registration requirements of the
Securities Act. Except with the consent of 3DP, each of SBC and GGL will not,
directly or indirectly, offer, sell, contract to sell, pledge or otherwise
dispose of any of the Initial Shares or Contingent Shares or any interests
therein, including through short sales, swaps, derivatives or other instruments
or arrangements which have the purpose or effect of transferring the risk of
ownership of such Shares (all of the foregoing referred to herein as "Transfer")
--------
prior to the first anniversary of (x) the Closing Date in the case of the
Initial Shares or the Contingent Shares issued pursuant to Section 2(b), or (y)
the date of achievement of the relevant milestone in the case of the Contingent
Shares issued pursuant to Sections 2(c), 2(d) or 2(e) (the "Lock Up"). In
-------
addition, until January 8, 2005, in any three-month period, neither SBC nor GGL
will Transfer any of the Initial Shares or Contingent Shares in an amount of
Shares that exceeds the greater of (i) one percent of the number of shares of
3DP Common Stock outstanding as shown by the most recent report or statement
published by 3DP, or (ii) the average weekly reported volume of trading in
shares of 3DP Common Stock on the Nasdaq National Market or such other national
securities exchange as such shares may be traded, during the four calendar weeks
preceding the date of execution of the transaction, provided, however, that the
foregoing volume limitations shall not apply to any sales by SBC or GGL pursuant
to an Underwritten Offering (as that term is defined in the Registration Rights
Agreement). Notwithstanding the limitations set forth in this Section 5.4, each
of SBC and GGL may Transfer its Shares to an Affiliate, as such term is defined
in the License Agreement.
D-7
5.5 Legends. The certificates evidencing the Shares to be delivered
--------
to each of SBC and GGL will bear restrictive legends substantially in the
following forms as long as applicable:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED,
SOLD, ASSIGNED, PLEDGED OR OTHERWISE ENCUMBERED OR DISPOSED OF, AND NO
LIEN, CHARGE OR OTHER ENCUMBRANCE MAY BE CREATED THEREON UNLESS SUCH
SECURITIES HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND ANY APPLICABLE STATE SECURITIES LAW, OR IN THE OPINION OF
COUNSEL SATISFACTORY TO THE ISSUER, THE SALE OR DISPOSITION THEREOF MAY
LAWFULLY BE MADE WITHOUT COMPLIANCE WITH THE REGISTRATION REQUIREMENTS OF
SUCH ACT.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CONTRACTUAL
RESTRICTIONS ON TRANSFER PURSUANT TO THAT CERTAIN STOCK PURCHASE AGREEMENT
DATED JANUARY_____, 2002 (THE "AGREEMENT") BY AND AMONG THE ISSUER,
SMITHKLINE XXXXXXX CORPORATION AND GLAXO GROUP LIMITED. SUCH SHARES MAY NOT
BE TRANSFERRED, SOLD, ASSIGNED, PLEDGED OR OTHERWISE ENCUMBERED OR DISPOSED
OF, AND NO LIEN, CHARGE OR OTHER ENCUMBRANCE MAY BE CREATED THEREON AND THE
ISSUER SHALL NOT BE REQUIRED TO GIVE EFFECT TO ANY ATTEMPTED SALE,
TRANSFER, ASSIGNMENT, PLEDGE OR OTHER ENCUMBRANCE EXCEPT TO THE EXTENT SUCH
ACTIONS ARE IN COMPLIANCE WITH THE AGREEMENT.
6. Survival of Representations, Warranties and Agreements.
------------------------------------------------------
Notwithstanding any investigation made by any party to this Agreement, all
covenants, agreements, representations and warranties made by 3DP, SBC and GGL
herein will survive the execution of this Agreement, the delivery to SBC and GGL
of the Shares being purchased and the payment therefor, provided, however, that
such representations and warranties need only be accurate as of the date of such
execution and delivery as of the Closing Date.
7. Registration of the Shares. The parties shall enter into a
--------------------------
Registration Rights Agreement dated the date hereof in substantially the form
attached hereto as Exhibit A with respect to the Shares.
D-8
8. Conditions of SBC's and GGL's Obligations . The obligations of SBC and
------------------------------------------
GGL under the License and this Agreement to purchase the Shares from 3DP are
subject to the fulfillment on or before the Closing Date of each of the
following conditions, any of which may be waived in writing by SBC or GGL:
8.1 Representation and Warranties. The representation and warranties
-----------------------------
of 3DP contained in this Agreement shall be true and correct on and as of the
Closing Date with the same effect as though such representations and warranties
had been made as of the Closing Date, except to the extent of changes caused by
the transactions expressly contemplated herein.
8.2 Performance of Obligations. 3DP shall have performed and
--------------------------
complied in all material respects with all agreements, obligations and
conditions contained in the License Agreement and this Agreement that are
required to be performed or complied with by it on or before the Closing Date.
8.3 Compliance with Law. On the Closing Date, the issuance by 3DP of
--------------------
the Shares and the execution of the License Agreement by SBC and GGL shall be
legally permitted by all laws and regulations to which 3DP, SBC and GGL are
subject and no preliminary or permanent injunction or other order by any court
of competent jurisdiction prohibiting or otherwise restraining such acquisition
shall be in effect.
8.4 The License Agreement. The License Agreement shall be in full
---------------------
force and effect and shall not have been terminated by any of the parties
thereto nor shall any of the parties given notice of such termination.
8.5 Opinion of Legal Counsel. SBC and GGL shall have received an
------------------------
opinion of Xxxxxx Xxxxx & Bockius, LLP, counsel to 3DP, with respect to the
matters in Sections 4.1, 4.2, and 4.3 herein, dated as of the Closing Date and
in form and substance reasonably acceptable to SBC and GGL.
9. Conditions to 3DP's Obligations. 3DP's obligations under this
-------------------------------
Agreement to sell and issue the Shares to SBC and GGL are subject to the
fulfillment on or before the Closing Date of each of the following conditions,
any of which may be waived in writing by 3DP:
9.1 Representations and Warranties. The representation and warranties
--------------------------------
of SBC and GGL contained in the License Agreement and this Agreement shall be
true and correct on and as of the Closing Date with the same effect as though
such representations and warranties had been made as of the Closing Date, except
to the extent of changes caused by the transactions expressly contemplated
herein.
9.2. Performance of Obligations. Each of SBC and GGL shall have
--------------------------
performed and complied in all material respects with all agreements, obligations
and conditions contained in the License Agreement and this Agreement that are
required to be performed or complied with by it on or before the Closing Date.
D-9
9.3. Compliance with Law. On the Closing Date, the issuance by 3DP
--------------------
of the Shares and the execution of the License by SBC and GGL shall be legally
permitted by all laws and regulations to which 3DP and SBC and GGL are subject
and no preliminary or permanent injunction or other order by any court of
competent jurisdiction prohibiting or otherwise restraining such acquisition
shall be in effect.
9.4. The License Agreement. The License Agreement shall be in full
---------------------
force and effect and shall not have been terminated by any of the parties
thereto nor shall any of the parties given notice of such termination.
9.5 The Registration Rights Agreement. The parties shall have
----------------------------------
executed the Registration Rights Agreement as set forth in Section 7.
10. Notices. All notices, requests, consents and other communications
-------
hereunder will be in writing, will be mailed (a) if within the United States by
first-class registered or certified airmail, or nationally recognized overnight
express courier, postage prepaid, by facsimile or e-mail, or (b) if delivered
from outside the United States, by international express courier, facsimile or
e-mail. All such notices will be deemed given (a) if delivered by first-class
registered or certified mail, three business days after so mailed, (b) if
delivered by nationally recognized overnight carrier, one business day after so
mailed, (c) if delivered by International Federal Express, two business days
after so mailed, and (d) if delivered by facsimile or e-mail, upon electronic
confirmation of receipt and will be delivered as addressed as follows:
(a) If to 3DP, to: 3-Dimensional Pharmaceuticals, Inc.
Three Lower Makefield Corporate Center
0000 Xxxxx Xxxx Xxxx
Xxxxxxx, XX 00000
Attn: Xxxxx X. U'Xxxxxxxx, Ph.D
Chief Executive Officer
Fax: (000) 000-0000 ___
(b) With a copy to: Xxxxxx Xxxxx & Bockius LLP
After January 18, 2002
----------------------
000 Xxxxxxxxxxxx Xxx., XX
Xxxxxxxxxx, XX 00000
Fax: (000) 000-0000
D-11
Attn: Xxxxxx X. Xxxxx, Esq. and Xxxxx Xxxxxx, Esq.
Before January 18, 2002
-----------------------
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Fax: (000) 000-0000
Attn: Xxxxxx X. Xxxxx, Esq. and Xxxxx Xxxxxx, Esq.
(c) If to the Licensors, to:
GlaxoSmithKline
0000 Xxxxxxxxxxxx Xxxx
Xxxxxxxxxxxx, XX 00000-0000
Attn: Xx. Xxxxxx Xxxxxxxx
V.P. and Director,
Genetics and Discovery Ventures
Fax: (000) 000-0000
(d) With a copy to:. GlaxoSmithKline
Corporate Law Department
One Franklin Plaza
000 Xxxxx 00xx Xxxxxx/XX0000
Xxxxxxxxxxxx, XX 00000
Attn: General Counsel
Fax: (000) 000-0000
11. Changes. This Agreement may not be modified or amended except
-------
pursuant to an instrument in writing signed by 3DP and each of SBC and GGL.
12. Headings. The headings of the various sections and subsections of
--------
this Agreement have been inserted for convenience of reference only and will not
be deemed to be part of this Agreement and do not affect its interpretation.
13. Severability. In case any provision contained in this Agreement
------------
should be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein will
not in any way be affected or impaired thereby.
14. Successors and Assigns. This Agreement shall be binding upon and
----------------------
inure to the benefit of the successors in interest of the respective parties.
Neither this Agreement nor any interest under this Agreement shall be assignable
by either party without the written consent of the other; provided, however,
that either party may assign this Agreement without the written consent of the
other party to any
D-11
corporation with which it may merge or consolidate, or to which it may transfer
all or substantially all of its assets; provided, further, that SBC or GGL may
assign this Agreement without the written consent of 3DP to an Affiliate;
provided, further, that, in any case, any such assignee shall agree to be bound
by the terms and conditions of this Agreement.
15. Governing Law. This Agreement will be governed by, and construed in
-------------
accordance with, the internal laws of the State of Pennsylvania, without giving
effect to the principles of conflicts of law.
16. Entire Agreement. This Agreement, together with the License Agreement
----------------
and Registration Rights Agreement, constitutes the entire agreement between the
parties relating to the subject matter hereof and no party shall be liable or
bound to the other in any manner by any warranties, representations or covenants
except as specifically set forth herein.
17 Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which will constitute an original, but all of which, when
taken together, will constitute but one instrument, and will become effective
when one or more counterparts have been signed by each party hereto and
delivered to the other parties.
D-12
IN WITNESS WHEREOF the parties have executed this Agreement effective as of
the day and year first above written.
3-DIMENSIONAL PHARMACEUTICALS, INC.
BY:
-----------------------------------
TITLE:
--------------------------------
SMITHKLINE XXXXXXX CORPORATION
BY:
-----------------------------------
TITLE:
--------------------------------
GLAXO GROUP LIMITED
BY:
-----------------------------------
TITLE:
--------------------------------
D-13
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered
into as of this ____th day of January 2002 between 3-Dimensional
Pharmaceuticals, Inc., a Delaware corporation (the "Company"), and SmithKline
Xxxxxxx Corporation, a Pennsylvania corporation ("SBC"), and Glaxo Group
Limited, a company incorporated in England and Wales ("GGL" and, together with
SBC, the "Licensors").
RECITALS
WHEREAS, the Company and the Licensors are entering into a Stock Purchase
Agreement (the "Stock Purchase Agreement") and a License Agreement (the "License
Agreement") simultaneously with the execution of this Agreement;
WHEREAS, pursuant to the Stock Purchase Agreement, the Company has
authorized the issuance and sale of up to 2,400,000 shares of common stock, par
value $.001 per share (the "3DP Common Stock"), in equal amounts to SBC and GGL
in accordance with the terms of the Stock Purchase Agreement and the License
Agreement; and
WHEREAS, as a condition of entering into the Stock Purchase Agreement the
Licensors have requested that the Company extend to them certain registration
rights and other rights as set forth below.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties to this Agreement, intending to be legally
bound, hereby agree as follows:
1. DEFINITIONS. For the purposes of this Agreement:
"Affiliate" of any specified Person, as defined below, means any other
Person, as defined below, that, directly or indirectly, is in control of, is
controlled by or is under common control with such specified Person. For
purposes of this definition, control of a Person means the power, direct or
indirect, to direct or cause the direction of the management and policies of
such Person, whether by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Commission" means the U.S. Securities and Exchange Commission.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, or
any successor federal statute and the rules and the regulations of the
Commission promulgated thereunder, as in effect from time to time.
D-14
"Existing Holder" means each "Holder" of "the Registrable Securities, as
defined below, of 3DP as those terms are defined in the Stockholders' Agreement,
as defined below.
"Investors" means the investors listed on Schedule 1 to the Stockholders'
Agreement, as defined below.
"Lock Up" has the meaning set forth in Section 5.4 of the Stock Purchase
Agreement.
"Nasdaq" means the Nasdaq National Market of The Nasdaq Stock Market.
"Person" means an individual, partnership, limited partnership,
corporation, trust, limited liability company or unincorporated organization or
other entity or organization, including a government or agency or political
subdivision thereof.
"Prospectus" means the prospectus (including any preliminary prospectus,
any final prospectus and any prospectus that discloses information previously
omitted from a prospectus filed as part of an effective Registration Statement,
as defined below, in reliance upon Rule 430A under the Securities Act, as
defined below) included in a Registration Statement, as amended or supplemented
by any prospectus supplement with respect to the terms of the offering of any
portion of the Registrable Shares covered by a Registration Statement, and by
all other amendments and supplements to such prospectus, including all material
incorporated by reference in such prospectus and all documents filed after the
date of such prospectus by the Company under the Exchange Act and incorporated
by reference therein.
"Registrable Shares" means the 2,400,000 shares of 3DP Common Stock
(subject to adjustment as provided in Section 2.1 of the Stock Purchase
Agreement) that the Company has agreed to sell to the Licensors pursuant to the
terms and conditions of the Stock Purchase Agreement, excluding such shares of
3DP Common Stock (i) which have been registered and sold under the Securities
Act pursuant to an effective registration statement or (ii) that are held by the
Licensors and can be sold to the public pursuant to Rule 144 under the
Securities Act without restriction.
"Registration Expenses" means all expenses incident to the Company's
compliance with the requirements relating to the filing of a Registration
Statement registering the Registrable Shares pursuant to this Agreement,
including all registration, filing and Nasdaq fees, all fees and expenses of
complying with securities or "blue sky" laws, all word-processing, duplicating
and printing expenses, messenger and delivery expenses, the fees and
disbursements of counsel for the Company and of its independent public
accountants, including the expenses of any special audits or "comfort" letters
required by or incident to such performance and compliance, premiums and other
costs of policies of insurance obtained by the Company against liabilities
arising out of the public offering of the Registrable Shares being registered,
but excluding fees and disbursements of counsel retained by the Licensors,
premiums and other costs of policies of insurance obtained by the Licensors or
their agents or Underwriters, as defined below, against liabilities arising out
of the public offering of the Registrable Shares being registered, any fees and
D-15
disbursements of Underwriters and all underwriting discounts and commissions
and transfer taxes, if any, relating to the Registrable Shares.
"Registration Statement" means a registration statement filed under the
Securities Act, as defined below, by the Company pursuant to the provisions of
Section 2 or 3 of this Agreement, including the Prospectus contained in such
registration statement, any amendments and supplements to such registration
statement, including post-effective amendments, and all exhibits and all
material incorporated by reference into such registration statement.
"Securities Act" means the Securities Act of 1933, as amended, or any
successor federal statute, and the rules and regulations of the Commission
promulgated thereunder, as in effect from time to time.
"Stockholders' Agreement" means the Third Amended and Restated
Stockholders' Agreement between the Company and the Investors dated as of March
31, 2000.
"Underwriter" means the underwriter(s) of the Registrable Shares designated
by the Licensors, with respect to a Registration Statement filed pursuant to
Section 2 or 3 of this Agreement.
"Underwritten Offering" means an offering of shares of 3DP Common Stock,
including the Registrable Shares, by which the shares of 3DP Common Stock are
sold to an underwriter for reoffering to the public.
2. DEMAND REGISTRATION.
(a) REQUEST FOR DEMAND REGISTRATION. Subject to the provisions of Section
2(c) of this Agreement, the registration rights of the Existing Holders
set forth in the Stockholders' Agreement and the limitations on
transfer contained in Section 5.4 of the Stock Purchase Agreement, at
any time after the Lock Up, the Licensors will have the right to
require the Company to register for offer and sale under the Securities
Act all or a portion, [* *], of the Registrable Shares then
outstanding. To exercise this right, the Licensors must provide the
Company with a joint written request specifying the number of the
Registrable Shares that they want the Company to register and the
Licensors' intended method(s) of distribution. If desired, the
Licensors will be entitled to select one or more nationally recognized
investment banks to serve as Underwriters for an Underwritten Offering
made pursuant to this Section 2, subject to the approval of the
Company, which approval will not be unreasonably withheld or delayed.
The Licensors acknowledge that the Company may include in a
Registration Statement filed pursuant to this Section 2 shares of 3DP
Common Stock for resale by other holders of 3DP Common Stock, including
the Existing Holders, or for the account of the Company; provided,
however, that if the shares of 3DP Common Stock included by the Company
and the Existing Holders
D-16
constitute at least a majority of the shares of 3DP Common Stock
included on a Registration Statement filed pursuant to this Section 2,
such Registration Statement will be deemed to be filed pursuant to
Section 3 of this Agreement.
(b) ALLOCATION OF UNDERWRITTEN OFFERING. If the Company files a
Registration Statement at the request of the Licensors pursuant to
this Section 2 to register the Registrable Shares for an Underwritten
Offering and includes in such Registration Statement additional shares
of 3DP Common Stock for sale by the Company (the "Company Shares"),
any of the Existing Holders (the "Existing Holders' Shares") or any
other holders of 3DP Common Stock (the "Other Holders' Shares") and
the total number of shares of 3DP Common Stock proposed to be included
in such Registration Statement will, in the opinion of the Underwriter
selected by the Licensors, exceed the maximum number of shares of 3DP
Common Stock that can be marketed either at a price reasonably related
to the then-current market value of the shares, or without otherwise
materially and adversely affecting the Underwritten Offering, then the
Company will exclude from such Underwritten Offering in such amount as
necessary, in the opinion of the Underwriter(s), to successfully
complete the Underwritten Offering (i) first, the Other Holders'
Shares, if any, and (ii) second, the Registrable Shares, the Company
Shares, and the Existing Holders' Shares, on a pro rata basis based on
the number of shares of 3DP Common Stock sought to be included in the
Registration Statement by the Licensors, the Company and the Existing
Holders.
(c) OBLIGATION TO EFFECT DEMAND REGISTRATION. Following receipt of any
notice from the Licensors pursuant to Section 2(a), the Company shall
use its reasonable best efforts to file a Registration Statement to
register under the Securities Act, for public sale in accordance with
the method(s) of disposition specified in such notice, the number of
the Registrable Shares specified in such notice. The Company shall be
obligated to register the Registrable Shares on [* *] in
connection with requests made by the Licensors pursuant to Section
2(a); provided, however, that the Licensors must make such requests on
a joint basis and provided further, however, that such obligation to
effect the registration shall be deemed satisfied, subject to Section
2(d) below, only when a Registration Statement covering all of the
Registrable Shares specified in notices received pursuant to Section
2(a) shall have become effective.
(d) RIGHT TO WITHDRAW REGISTRATION STATEMENT. The Licensors may request
that the Company rescind or withdraw a Registration Statement filed
pursuant to this Section 2, by giving written notice to the Company,
with the following consequences: (i) if the Registration Statement is
rescinded prior to being filed with the Commission, such rescinded
Registration Statement shall not be counted as a Registration
Statement requested pursuant to this Section 2 for purposes of Section
2(c); and (ii) if the Registration Statement is withdrawn after being
filed with the Commission but prior to
D-17
becoming effective, such withdrawn Registration Statement will not be
counted as a Registration Statement for purposes of Section 2(c) if
the Licensors (A) have reimbursed the Company for all out-of-pocket
expenses, including Registration Expenses, reasonably incurred by the
Company with respect to such withdrawn Registration Statement or (B)
reasonably believed that the Registration Statement contained an
untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements
made therein not misleading, notified the Company of such belief and
requested that the Company correct the alleged misstatement or
omission but the Company refused to correct such alleged misstatement
or omission.
(e) ADDITIONAL LIMITATIONS ON DEMAND REGISTRATION. The Company will not be
obligated to file a Registration Statement pursuant to this Section 2:
(i) until after 90 days after the effective date of the first
registration statement filed by the Company at the request of the
Existing Holders pursuant to Section 6.1 of the Stockholders'
Agreement (provided that such restriction shall not apply if the
Company's obligations under Section 6.1 of the Stockholders' Agreement
have been terminated pursuant to Section 6.13 of the Stockholders'
Agreement); (ii) more than one time in any twelve-month period; (iii)
if the Company has sent notice to the Licensors pursuant to Section
3(a) of this Agreement that it proposes to file a registration
statement to register shares of 3DP Common Stock and is diligently
pursuing such registration; (iv) during any period in which a
distribution of shares of 3DP Common Stock is ongoing or any other
registration statement pursuant to which shares of 3DP Common Stock are
to be or were sold (other than a registration statement filed for the
offer or sale of 3DP Common Stock under a shelf registration statement
on Form S-3 (except during a distribution of shares of 3DP Common Stock
under such shelf registration statement), or an employee benefit plan,
dividend reinvestment plan or rights plan or on Form S-8 or S-4 or any
successor forms) has been filed and not withdrawn or has been declared
effective within the prior 90 days; (v) during any period when the
Company is precluded from selling any shares of 3DP Common Stock as a
result of an agreement made in connection with a firm commitment
underwriting; or (vi) during any time when the Company has determined
in good faith that the filing of a Registration Statement would require
the disclosure of material information which the Company has a bona
fide reason to maintain as confidential; provided, however, that any
such delay shall not exceed 60 days.
(f) EFFECTIVENESS. The Company will use its reasonable best efforts,
subject to receipt of all necessary information from the Licensors (or
any Affiliate of the Licensors who is assigned registration rights
pursuant to this Agreement), to cause any Registration Statement filed
pursuant to this Section 2 to become effective and to maintain the
effectiveness of any such Registration Statement to enable the
Licensors to sell the Registrable Shares included in any such
Registration Statement on a delayed or continuous basis as permitted
by Rule 415 under the Securities Act, and from time to time
D-18
will amend or supplement such Registration Statement and the
Prospectus contained therein as and to the extent necessary to comply
with the Securities Act and any applicable state securities statute or
regulation; provided, however, that the Company will not be obligated
to maintain the effectiveness of such Registration Statement once the
Registrable Shares included in the Registration Statement no longer
meet the definition of the Registrable Shares.
3. PIGGYBACK REGISTRATION.
(a) REQUEST FOR PIGGYBACK REGISTRATION. If the Company at any time
proposes to register shares of 3DP Common Stock under the Securities
Act for sale to the public, whether for its own account or for the
account of other holders of 3DP Common Stock, including the Existing
Holders, or both (other than registration statements filed for the
offer or sale of 3DP Common Stock under an employee benefit plan,
dividend reinvestment plan or rights plan or on Form S-8 or S-4 or any
successor forms), each such time it will give written notice to the
Licensors of its intention to do so. Upon the written request of the
Licensors, which request must (i) specify the number of the
Registrable Shares that the Licensors want included on such
registration statement and the intended method(s) of disposition of
the Registrable Shares and (ii) be given to the Company within ten
(10) calendar days of the date of the Company's notice, the Company
will use reasonable best efforts to cause such the Registrable Shares
to be included in the registration statement proposed to be filed by
the Company subject to the allocation provisions set forth in
paragraph (b) or (c) of this Section 3.
(b) ALLOCATION OF UNDERWRITTEN OFFERING INITIATED BY THE COMPANY. If the
Company initiates the filing of a registration statement for an
Underwritten Offering and the total number of shares of 3DP Common
Stock proposed to be included in such registration statement will, in
the opinion of the managing underwriter(s) selected by the Company,
exceed the maximum number of shares of 3DP Common Stock that can be
marketed either at a price reasonably related to the then-current
market value of the shares, or without otherwise materially and
adversely affecting the Underwritten Offering, then the Company will
exclude from such Underwritten Offering in such amount as necessary,
in the opinion of the managing underwriter(s), to successfully
complete the Underwritten Offering (i) first, the Other Holders'
Shares, if any (ii) second, the Registrable Shares, and (iii) third,
the Existing Holders' Shares, if any.
(c) ALLOCATION OF UNDERWRITTEN OFFERING INITIATED BY THE EXISTING HOLDERS.
If the Existing Holders initiate the filing of a registration statement
for an Underwritten Offering pursuant to Section 6.1 of the
Stockholders' Agreement and the total number of shares of 3DP Common
Stock proposed to be included in such registration
D-19
statement will, in the opinion of the managing underwriter(s) selected
by such Existing Holders, exceed the maximum number of shares of 3DP
Common Stock that can be marketed either at a price reasonably related
to the then-current market value of the shares, or without otherwise
materially and adversely affecting the Underwritten Offering, then the
Company will exclude from such Underwritten Offering in such amount as
necessary, in the opinion of the managing underwriter(s), to
successfully complete the Underwritten Offering (i) first, the Other
Holders' Shares, if any, and (ii) second, the Registrable Shares and
the Company Shares on a pro rata basis based on the number of shares of
3DP Common Stock sought to be included in the Registration Statement by
the Licensors and the Company.
4. REGISTRATION PROCEDURES. If and whenever the Company is under an
obligation pursuant to this Agreement to use its reasonable best efforts to file
a Registration Statement for the Registrable Shares, the following provisions
will apply:
(a) The Company will furnish to the Licensors, at least five (5) business
days prior to the time that the Registration Statement is declared
effective by the Commission, a copy of the Registration Statement
initially filed with the Commission and will furnish to the Licensors
copies of each amendment thereto and each amendment or supplement, if
any, to the Prospectus included therein as promptly as practicable
after the filing thereof.
(b) Subject to Section 2(e) of this Agreement, the Company will use its
reasonable best efforts to promptly take such action as may be
reasonably necessary so that (i) the Registration Statement, when it
becomes effective, and any amendment thereto and the Prospectus
forming part thereof and any amendment or supplement thereto (and, in
each case, every report or other document incorporated therein by
reference), comply in all material respects with the Securities Act
and the Exchange Act, as applicable, and the respective rules and
regulations thereunder, (ii) the Registration Statement and any
amendment thereto do not, when the Registration Statement or the
amendment becomes effective, contain an 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 not misleading and (iii) the
Prospectus forming part of the Registration Statement, and any
amendment or supplement to such Prospectus, do not, at any time during
any period during which the Company is required to keep the
Registration Statement continuously effective pursuant to this
Agreement, include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, provided that the Licensors provide to the Company the
information about the Licensors required to be included in the
Prospectus.
D-20
(c) The Company will, promptly upon learning of any of the following
events, advise the Licensors, and will confirm such advice in writing
if so requested by the Licensors:
(i) when the Registration Statement and any amendment thereto have
been filed with the Commission and when the Registration
Statement or any post-effective amendment thereto has become
effective;
(ii) of any request by the Commission for amendments or supplements
to the Registration Statement or the Prospectus included therein
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 such purpose;
(iv) of the receipt by the Company of any notification with respect
to the suspension of the qualification of the Registrable Shares
included in the Registration Statement for sale in any
jurisdiction or the initiation of any proceeding for such
purpose; and
(v) following the effectiveness of any Registration Statement, of
the happening of any event or the existence of any facts that
requires the making of any changes in the Registration Statement
or the Prospectus included therein so that such Registration
Statement and Prospectus do not contain an untrue statement of a
material fact and do not omit to state a material fact required
to be stated therein or necessary to make the statements therein
(in the case of the Prospectus, in the light of the
circumstances under which they were made) not misleading (which
advice will be accompanied by an instruction to the Licensors to
suspend the use of the Prospectus until the requisite changes
have been made, which instruction the Licensors agree to
follow). At the request of the Licensors, the Company will
prepare a supplement or amendment to the Registration Statement
or the Prospectus so that as of the date of such amendment or
supplement the amended or supplemented Registration Statement
and Prospectus do not contain an untrue statement of a material
fact and do not omit to state a material fact required to be
stated therein or necessary to make the statements therein (in
the case of the Prospectus, in the light of the circumstances
under which they were made) not misleading.
(d) The Company will promptly notify the Licensors of its receipt of any
notification of any stop order issued by the Commission suspending the
effectiveness of the Registration Statement.
D-21
(e) The Company will furnish to the Licensors, without charge, at least
one copy of the Registration Statement and any post-effective
amendments and supplements thereto, including financial statements and
schedules and, if the Licensors so request in writing, all reports,
other documents and exhibits that are filed with or incorporated by
reference into the Registration Statement.
(f) The Company will, during the period during which the Company is
required to keep a Registration Statement continuously effective
pursuant to this Agreement, deliver to the Licensors, without charge,
as many copies of the Prospectus (including each preliminary
Prospectus) included in the Registration Statement and any amendment
or supplement thereto as the Licensors may reasonably request.
(g) Prior to any offering of the Registrable Shares pursuant to the
Registration Statement, the Company will use reasonable efforts to (i)
register, qualify or cooperate with the Licensors and their counsel in
connection with the registration or qualification of such of the
Registrable Shares for offer and sale under the securities or "blue
sky" laws of such jurisdictions within the United States as the
Licensors may reasonably request, (ii) keep such registrations or
qualifications in effect and comply with such laws so as to permit the
continuance of offers and sales in such jurisdictions for the period
during which the Company is required to keep the Registration
Statement continuously effective under this Agreement and (iii) take
any and all other actions reasonably requested by the Licensors that
are necessary or advisable to enable the disposition in such
jurisdictions of such Registrable Shares; provided, however, that in
no event will the Company be obligated to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction where it
would not otherwise be required to so qualify but for this Agreement
or file any general consent to service of process or subject itself to
tax in any jurisdiction where it would not otherwise be required to do
so but for this Section 4(g).
(h) The Company will cooperate with the Licensors to facilitate the timely
preparation and delivery of certificates representing the Registrable
Shares sold pursuant to the Registration Statement, which certificates
will comply with the requirements of Nasdaq, and which certificates
will be free of any restrictive legends and in such permitted
denominations and registered in such names as the Licensors may
request in connection with the sale of the Registrable Shares pursuant
to the Registration Statement.
(i) In connection with an Underwritten Offering of the Registrable Shares,
the Company will use reasonable efforts to:
(i) cooperate with the Licensors and their advisors in their efforts
to conduct appropriate due diligence as is customary for a
company of the size and character of the Company and make such
reasonable representations and
D-22
warranties in the applicable underwriting agreement to the
Underwriter, in form, substance and scope as are customarily
made by the Company to underwriters in secondary underwritten
offerings of equity;
(ii) make available for inspection by the Licensors, the Licensors'
advisors, and any attorney, accountant or other agent retained
by the Underwriter (collectively, the "Inspectors"), all
pertinent financial and other records, pertinent corporate
documents and properties of the Company (collectively, the
"Records"), as shall be reasonably necessary to enable them to
exercise their due diligence responsibility, and cause the
Company's officers, directors and employees to supply all
information (together with the Records, the "Information")
reasonably requested by any such Inspector in connection with
the preparation of such Registration Statement. Any of the
Information which the Company determines in good faith to be
confidential, and of which determination the Inspectors are so
notified, will not be disclosed by the Inspectors unless (A)
the disclosure of such Information is necessary to avoid or
correct a misstatement or omission of a material fact in the
Registration Statement, (B) the release of such Information is
ordered pursuant to a subpoena or other order from a court of
competent jurisdiction, or (C) such Information has been made
generally available to the public. The Licensors and their
Inspectors agree that they will, upon learning that disclosure
of such Information is sought in a court of competent
jurisdiction, give notice to the Company and allow the Company,
at the Company's expense, to undertake appropriate action to
prevent disclosure of the Information deemed confidential;
(iii) obtain opinions of counsel to the Company (which counsel and
opinions (in form, scope and substance) will be reasonably
satisfactory to the Underwriter) addressed to the Underwriter,
covering such matters that the Company customarily covers in
opinions requested in secondary underwritten offerings of
equity, to the extent reasonably required by the applicable
underwriting agreement;
(iv) obtain "comfort" letters and updates thereof from the
independent public accountants of the Company (and, if
necessary, from the independent public accountants of any
subsidiary of the Company or of any business acquired by the
Company for which financial statements and financial data are,
or are required to be, included in the Registration Statement),
addressed to the Licensors (if the Licensors have provided such
letter, representation or documentation, if any, required for
such "comfort" letter to be so addressed) and the Underwriter,
in customary form and covering matters of the type customarily
covered in "comfort" letters in connection with secondary
underwritten offerings of Company equity;
D-23
(v) deliver such certificates as may be reasonably requested by the
Licensors and the Underwriter, if any, including certificates to
evidence compliance with any conditions contained in the
underwriting agreement or other agreements entered into by the
Company; and
(vi) to take all other steps reasonably necessary to effect the timely
registration of the Registrable Shares covered by a Registration
Statement contemplated hereby.
5. LICENSORS' AGREEMENTS.
(a) The Licensors agree to provide to the Company such information
regarding the Licensors, the Registrable Shares and the Licensors'
intended method of disposition as the Company may from time to time
reasonably request; provided, however, that such information shall be
used only in connection with the filing of a Registration Statement or
as otherwise required by the Commission. If the Registration
Statement refers to the Licensors, the Licensors shall promptly (i)
notify the Company of the existence of any fact of which the
Licensors, individually or jointly, become aware or the happening of
any event which relates to the Licensors or the distribution of the
Registrable Shares that causes the Registration Statement to contain
an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make any statements
therein not misleading, or the Prospectus included in such
Registration Statement to contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make any statements therein, in the light of the
circumstances under which they were made, not misleading, and (ii)
provide to the Company such information which relates to the
Licensors' distribution of the Registrable Shares as shall be
necessary to enable the Company to prepare a supplement or post-
effective amendment to such Registration Statement or related
Prospectus or any document incorporated therein by reference or file
any other documents required so that such Registration Statement will
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 not misleading, and such Prospectus shall not
include an 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 the light of the circumstances under which they
were made, not misleading.
(b) NOTICE TO DISCONTINUE. The Licensors agree that, upon receipt of any
notice from the Company to discontinue using the Prospectus, the
Licensors will promptly discontinue the disposition of the Registrable
Shares pursuant to the Registration Statement covering such
Registrable Shares until the Company advises the Licensors that
dispositions
D-24
pursuant to the Registration Statement can resume and it delivers to
the Licensors copies of any required supplemented or amended
Prospectus.
6. INDEMNIFICATION AND CONTRIBUTION.
(a) Upon the registration of the Registrable Shares pursuant to Section 2
or 3 of this Agreement, the Company will indemnify and hold harmless
the Licensors and each Underwriter, selling agent or other securities
professional, if any, that facilitates the disposition of the
Registrable Shares, and each of their respective officers and
directors and each Person who controls the Licensors, such
Underwriter, selling agent or other securities professional within the
meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act (each such Person being sometimes referred to as an
"Indemnified Person"), against any losses, claims, damages or
liabilities, joint or several, to which such Indemnified Person may
become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement
under which such Registrable Shares are to be registered under the
Securities Act, or any Prospectus contained therein or furnished by
the Company to any Indemnified Person, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading,
and the Company hereby agrees to reimburse such Indemnified Person for
any legal or other documented expenses reasonably incurred by it in
connection with investigating or defending any such action or claim as
promptly as practicable after such expenses are incurred; provided,
however, that the Company will not be liable to any such Indemnified
Person in any such case to the extent that any such loss, claim,
damage, liability (or action or proceeding in respect thereof) or
expense arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in such
Registration Statement or Prospectus, or amendment or supplement
thereto, in reliance upon and in conformity with written information
furnished to the Company by such Indemnified Person or its agent(s)
expressly for use therein; provided further, however, that the Company
will not be liable to the extent that any loss, claim, damage,
liability (or action or proceeding in respect thereof) or expense
arises out of or is based upon (i) the use of any Prospectus after
such time as the obligation of the Company to keep the same effective
and current has expired, or (ii) the use of any Prospectus after such
time as the Company has advised the Licensors in writing that a
supplement thereto or a post-effective amendment to the Registration
Statement is required; and provided further, however, that the Company
will not be liable to any Indemnified Person to the extent that any
loss, claim, damage, liability (or action or proceeding in respect
thereof) or expense arises out of such Indemnified Person's failure to
send or give a copy of the final prospectus or supplement to the
Person asserting an untrue statement or alleged
D-25
untrue statement or omission or alleged omission at or prior to the
written confirmation of the sale of the Registrable Shares to such
Person if such statement or omission was timely corrected in such
final prospectus or supplement.
(b) The Licensors agree, as a consequence of the inclusion of the
Registrable Shares in a Registration Statement, and each Underwriter,
selling agent or other securities professional, if any, that
facilitates the disposition of the Registrable Shares will agree, as a
consequence of facilitating such disposition of the Registrable
Shares, severally and not jointly, to (i) 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, against any losses,
claims, damages or liabilities or expenses to which the Company or
such other Person may become subject, under the Securities Act or
otherwise, insofar as such losses, claims, damages, liabilities (or
actions or proceedings in respect thereof) or expenses arise out of or
are based upon an untrue statement or alleged untrue statement of a
material fact contained in such Registration Statement or Prospectus,
or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by the
Licensors, such Underwriter, selling agent or other securities
professional or its agent expressly for use therein, and (ii)
reimburse the Company for any legal or other expenses reasonably
incurred by the Company in connection with investigating or defending
any such action or claim as such expenses are incurred.
(c) Promptly after receipt by any Person entitled to indemnity (an
"Indemnitee") under paragraphs (a) or (b) of this Section 6 of notice
of the commencement of any action or claim, such Indemnitee will, if a
claim in respect thereof is to be made against an indemnitor under
this Section 6 (an "Indemnitor"), notify such Indemnitor in writing of
the commencement thereof; but the omission to so notify the Indemnitor
will not relieve it from any liability that it may have to any
Indemnitee except to the extent of any actual prejudice. In case any
such action will be brought against any Indemnitee, it will notify an
Indemnitor of the commencement thereof, such Indemnitor will be
entitled to participate therein and, to the extent that it wishes,
jointly with any other Indemnitor similarly notified, to assume the
defense thereof, with counsel satisfactory to such Indemnitee, and,
after notice from the Indemnitor to such Indemnitee of its election so
to assume the defense thereof, such Indemnitor will not be liable to
such Indemnitee under this Section 6 for any legal expenses of other
counsel or any other expenses, in each case subsequently incurred by
such Indemnitee, in connection with the defense thereof. No
Indemnitor will, without the written consent of the Indemnitee, effect
the settlement or compromise of, or
D-26
consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the Indemnitee is
an actual or potential party to such action or claim) unless such
settlement, compromise or judgment (i) includes an unconditional
release of the Indemnitee from all liability arising out of such
action or claim and (ii) does not include a statement as to, or an
admission of, fault, culpability or a failure to act, by or on behalf
of any Indemnitee.
(d) If the indemnification provided for in this Section 6 is held by a
court of competent jurisdiction to be unavailable to, or insufficient
to hold harmless, an Indemnitee under paragraphs (a) or (b) of this
Section 6 in respect of any losses, claims, damages, liabilities (or
actions or proceedings in respect thereof) or expenses referred to
therein, then each Indemnitor will contribute to the amount paid or
payable by such Indemnitee as a result of such losses, claims,
damages, liabilities (or actions or proceedings in respect thereof) or
expenses in such proportion as is appropriate to reflect the relative
fault of the Indemnitor and the Indemnitee in connection with the
statements or omissions which resulted in such losses, claims,
damages, liabilities (or actions, or proceedings in respect thereof)
or expenses, as well as any other relevant equitable considerations.
The relative fault of such Indemnitor and Indemnitee will 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
such Indemnitor or by such Indemnitee, and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The parties hereto agree that it
would not be just and equitable if contribution pursuant to this
Section 6(d) were determined solely by pro rata allocation (even if
the Licensors or any Underwriter, selling agents or other securities
professionals or all of them were treated as one entity for such
purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in this Section
6(d). The amount paid or payable by an Indemnitee as a result of the
losses, claims, damages, liabilities (or actions or proceedings in
respect thereof) or expenses referred to above will be deemed to
include any legal fees or expenses reasonably incurred by such
Indemnitee in connection with investigating or defending any such
action or claim except to the extent any legal fees are incurred after
the Indemnitor assumes the defense of the litigation as set forth in
Section 6(c) above. No Person guilty of fraudulent misrepresentation
(as used in Section 11(f) of the Securities Act) will be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation. The obligations of the Licensors and any
Underwriter, selling agents or other securities professionals under
this Section 6(d) to contribute will be several in proportion to the
percentage of the principal amount of the Registrable Shares
registered or underwritten, as the case may be, by them and not joint.
D-27
The obligations of the Company under this Section 6 will be in addition to any
liability which the Company may otherwise have to any Indemnitee and the
obligations of any Indemnified Person under this Section 6 of this Agreement
will be in addition to any liability which such Indemnified Person may otherwise
have to the Company. The remedies provided in this Section 6 are not exclusive
and will not limit any rights or remedies that may otherwise be available to an
Indemnitee at law or in equity.
7. UNDERWRITING AGREEMENT. Notwithstanding the provisions of Sections 4
and 6 of this Agreement, to the extent that the Licensors and the Company enter
into an underwriting or similar agreement with respect to a Registration
Statement, which agreement contains provisions covering one or more issues
addressed in Sections 4 and 6, the provisions contained in such Sections
addressing such issue or issues shall be superceded with respect to such
Registration Statement by such other agreement.
8. EXPENSES OF REGISTRATION. [* *].
9. DAMAGES. [* *].
10. MISCELLANEOUS.
(a) NOTICES. All notices, requests, consents and other communications
hereunder will be in writing, will be mailed (a) if within the United States, by
first-class registered or certified airmail, or nationally recognized overnight
express courier, postage prepaid, by facsimile or e-mail, or (b) if delivered
from outside the United States, by international express courier, facsimile or
e-mail. Notwithstanding anything in this Agreement to the contrary, the
Company's obligation to deliver or give notice to the Licensors shall be
satisfied by the delivery or giving of notice to SBC. All obligations of the
Licensors to deliver or give notice to the Company shall be satisfied by the
delivery or giving of such notice by SBC and GGL jointly. All such notices will
be deemed given (a) if delivered by first-class registered or certified mail,
three business days after so mailed, (b) if delivered by nationally recognized
overnight carrier, one business day after so mailed, (c) if delivered by
International Federal Express, two business days after so mailed, and (d) if
delivered by facsimile or e-mail, upon electronic confirmation of receipt and
will be delivered as addressed as follows:
(i) If to the Company, to:
3-Dimensional Pharmaceuticals, Inc.
Three Lower Makefield Corporate Center
0000 Xxxxx Xxxx Xxxx
Xxxxxxx, XX 00000
Attn: Xxxxx X. U'Xxxxxxxx, Ph.D
Chief Executive Officer
Fax: (000) 000-0000
D-28
(ii) With a copy to: Xxxxxx Xxxxx & Bockius LLP
After January 18, 2002
----------------------
000 Xxxxxxxxxxxx Xxx., XX
Xxxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attn: Xxxxxx X. Xxxxx, Esq. and Xxxxx Xxxxxx, Esq.
Before January 18, 2002
-----------------------
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Fax: (000) 000-0000
Attn: Xxxxxx X. Xxxxx, Esq. and Xxxxx Xxxxxx, Esq.
(iii) If to Licensors, to:
GlaxoSmithKline
0000 Xxxxxxxxxxxx Xxxx
Xxxxxxxxxxxx, XX 00000-0000
Attn: Xx. Xxxxxx Xxxxxxxx
V.P. and Director
Genetics and Discovery Ventures
Fax: (000) 000-0000
(iv) With a copy to: GlaxoSmithKline
Corporate Law Department
One Franklin Plaza
000 Xxxxx 00xx Xxxxxx/XX0000
Xxxxxxxxxxxx, XX 00000
Attn: General Counsel
Fax: (000) 000-0000
(b) CHANGES. This Agreement may not be modified or amended except
pursuant to an instrument in writing signed by the Company and each of
SBC and GGL.
(c) HEADINGS. The headings of the various sections and subsections of
this Agreement have been inserted for convenience of reference only
and will not be deemed to be part of this Agreement and do not affect
its interpretation.
D-29
(d) SEVERABILITY. In case any provision contained in this Agreement
should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions
contained herein will not in any way be affected or impaired thereby.
(e) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the successors in interest of the respective
parties. Neither this Agreement nor any interest under this Agreement
shall be assignable by either party without the written consent of the
other; provided, however, that SBC or GGL may assign this Agreement
without the written consent of the Company to any Affiliate; provided,
further, that any such assignee shall agree to be bound by the terms
and conditions of this Agreement.
(f) GOVERNING LAW. This Agreement will be governed by, and construed in
accordance with, the internal laws of the State of Pennsylvania,
without giving effect to the principles of conflicts of law.
(g) ENTIRE AGREEMENT. This Agreement, together with the License Agreement
and Stock Purchase Agreement, constitutes the entire agreement between
the parties relating to the subject matter hereof and no party shall
be liable or bound to the other in any manner by any warranties,
representations or covenants except as specifically set forth herein.
(h) COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which will constitute an original, but all of
which, when taken together, will constitute but one instrument, and
will become effective when one or more counterparts have been signed
by each party hereto and delivered to the other parties.
11. EFFECTIVENESS. This Agreement shall become effective as of the
Closing Date, as defined in Section 3 of the Stock Purchase Agreement. In the
event that the Stock Purchase Agreement is terminated pursuant to its terms and
the issuance of the Shares, as defined in Section 1 of the Stock Purchase
Agreement, on the Closing Date does not occur, this Agreement shall be null and
void and of no further force and effect.
D-30
IN WITNESS WHEREOF the parties have executed this Agreement effective as of the
day and year first above written.
3-DIMENSIONAL PHARMACEUTICALS, INC.
BY:
----------------------------------
TITLE:
-------------------------------
SMITHKLINE XXXXXXX CORPORATION
BY:
----------------------------------
TITLE:
-------------------------------
GLAXO GROUP LIMITED
BY:
----------------------------------
TITLE:
-------------------------------
X-00
XXXXXXX XXXXXXXXX
XXXXXXXXXXXXXXX - 0XX
Xxxxxxxx E
LICENSOR Services
1. Within [* *] following the EFFECTIVE DATE, GSK shall
deliver to 3DP the KNOW-HOW relating to the manufacture of GW395058 by the
processes that were used or to be used by GSK to prepare pre-clinical,
clinical, and commercial supplies of GW395058, including but not limited to
manufacturing protocols, operating procedures, process controls,
environmental issues and controls, Drug Master Files, intermediates,
reagents, drug samples, suppliers, DMPK immunoassay protocols, indirect and
direct costs of goods, quality assurance and quality control, stability
testing, yields, purity, impurities, by-products, and product specifications.
GSK shall also provide final and draft reports ("as is" as of the EFFECTIVE
DATE) of information and data related to manufacturing GW395058 to the extent
in GSK's possession or control. GSK shall use reasonable efforts to ensure
that the information provided under this paragraph is all such information in
GSK's possession or control as of the EFFECTIVE DATE.
2. Within [* *] following the EFFECTIVE DATE, GSK shall deliver
to 3DP KNOW-HOW comprising:
2.1. the documentation relating to pre-clinical studies of GW395058
that are listed in Appendix A;
2.2. pre-clinical and clinical development plans for PRODUCTS;
2.3. any other information or data that is available to GSK and that is
reasonably believed by GSK to be necessary or useful for the
development and marketing of PRODUCTS, including but not limited to
Project Team Meeting Minutes.
3. For [* *] following the EFFECTIVE DATE, GSK shall
provide to 3DP such additional reports, data, and records that it has in its
possession as of the EFFECTIVE DATE and that 3DP and GSK mutually agree are
necessary or useful for the development or commercialization of PRODUCTS.
4. Until [* *], GSK shall make those of its employees who have
relevant knowledge reasonably available to 3DP for consultation concerning
the pre-clinical development of GW395058, previous regulatory interactions
between GSK and the FDA relating to GW395058, and manufacturing of GW395058,
provided such consultations shall not in the aggregate exceed [* *]
and further provided that GSK then
E-1
currently has employees who have the experience and knowledge relating to
PRODUCTS to be able to provide such consultation.
5. Until [* *], GSK shall provide to 3DP such additional
reports, data, and records that it has in its possession as of the EFFECTIVE
DATE and that are requested by 3DP and that are required to respond to
inquiries by the FDA or an analogous agency outside the U.S.
6. All requests by 3DP for reports, data, records, and consultations pursuant
to this Appendix E shall be directed to a person or persons that GSK may
designate for this purpose.
X-0
XXXXXXX XXXXXXXXX
XXXXXXXXXXXXXXX - 0XX
XXXXXXXX F
Press Release
Corporate Contact Media Inquiries Investor Inquiries
--------------------------------- --------------------------- ------------------
3-Dimensional Pharmaceuticals Xxxxxx/Xxxxx Communications Rx Communications
Xxxxx Xxxxxxx Xxxxx Silver Xxxxxx Xxxxx
VP, Finance and Administration 000-000-0000, ext. 271 917-322-2571
000-000-0000 x.xxxxxx@xxxxxxxxxxx.xxx xxxxxx@xxxx.xxx
xxxxxxx@0xx.xxx ------------------------ ---------------
----------------
FOR IMMEDIATE RELEASE
---------------------
3-DIMENSIONAL PHARMACEUTICALS licenses
TPO Peptide from GlaxoSmithKline
---------
Yardley, PA, January 7th, 2002 - 3-Dimensional Pharmaceuticals, Inc. (Nasdaq:
DDDP) (3DP) today announced that the Company has entered into an exclusive
licensing agreement with GlaxoSmithKline (GSK), giving it worldwide development,
marketing and distribution rights to GSK's pre-IND compound GW 395058 for the
prevention and treatment of thrombocytopenia, or low blood platelet count. GW
395058 is a pegylated synthetic thrombopoietin (TPO) mimetic peptide that
stimulates the human body to increase its production of blood platelets, which
are responsible for regulating the clotting process.
3DP's initial development focus will be on chemotherapy induced thrombocytopenia
because of the frequency with which cancer patients undergoing certain
chemotherapy regimens experience thrombocytopenia. The condition can prolong
blood clotting times, increase the risk of bruising, and, in extreme cases,
prompt internal hemorrhaging. These side effects frequently disrupt cancer
treatment protocols, including delays in, and the lowering of chemotherapy
dosing regimens.
"Thrombocytopenia is the unfortunate consequence of a wide range of diseases and
disease treatments," said Xxxxx U'Xxxxxxxx, Ph.D., Chief Executive Officer of
3DP. "We see GW 395058 as an important addition to our rapidly growing pipeline
of treatment and supportive therapies for cancer. In addition, we believe there
could be significant upside potential from the development of GW 395058 for
various non-cancer related indications. We are pleased that we have been able to
successfully negotiate this transaction with GSK's Genetics & Discovery Ventures
Team"
F-1
The current standard of care for thrombocytopenia is a platelet transfusion;
however, there are a number of potentially negative side effects associated with
this procedure. About one third of the two million platelet transfusions
administered each year in the United States are given to cancer patients, while
the remainder are given to patients with a variety of conditions including
coronary bypass and hepatic surgery, HIV/AIDS, hepatitis B and C, and idiopathic
thrombocytopenia purpura.
Under the terms of the agreement, all payments by 3DP to GSK will be made in the
form of 3DP stock. 3DP will make an initial upfront payment of 500,000 shares
and future milestone payments based on achievement of certain key development
and regulatory events. In total, 3DP may provide 2.4 million shares to GSK.
About 3DP
3DP (xxxx://xxx.0xx.xxx) is an integrated bio-pharmaceuticals company dedicated
to revolutionizing small molecule drug discovery and development. 3DP's
proprietary platform, DiscoverWorks, can be applied to virtually any potential
drug target. It produces drug candidates suitable for faster development, with
fewer resources and a higher probability of success than using conventional drug
discovery methods. 3DP is developing its own drug pipeline with a strategic
focus in the therapeutic areas of oncology and metabolism, and collaborates with
other pharmaceutical companies in discovery and development.
# # #
F-2
LICENSE AGREEMENT
GLAXOSMITHKLINE - 3DP
Appendix G
Exceptions to Representations and Warrants
[* 1 entire page has been omitted pursuant to a confidential treatment
request *]
G-1
