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Exhibit 10.25
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is made as of December 12, 1997 by
and among SCRIPTGEN Pharmaceuticals, Inc., a Delaware corporation (the
"COMPANY"), BioChem Pharma Inc. (the "INVESTOR"), and each of the stockholders
listed on the Schedule of Stockholders attached hereto.
The Company and Investor are parties to a Stock Purchase Agreement of
even date herewith (the "PURCHASE AGREEMENT"). In order to induce the Investor
to enter into the Purchase Agreement, the Company has agreed to provide to the
Investor the registration rights set forth in this Agreement. The execution and
delivery of this Agreement is a condition to the Closing under the Purchase
Agreement. Unless otherwise provided in this Agreement, capitalized terms used
herein shall have the meanings set forth in Section 8 hereof.
The parties hereto agree as follows:
1. DEMAND REGISTRATIONS.
(a) REQUESTS FOR REGISTRATION. Subject to the provisions of Sections
1(b) and 1(c) below, (i) at any time and from time to time before the effective
date of the first Listing (the "FIRST LISTING"), the holders of a majority of
the then outstanding Registrable Securities, and (ii) at any time and from time
to time after the first anniversary of the First Listing (the "INVESTOR DEMAND
PERIOD"), the Investor, may request registration, whether underwritten or
otherwise, under the Securities Act of all or part of the Registrable Securities
held by such holders or the Investor, as the case may be, in each case on Form
S-1 or any similar long-form registration statement (collectively, "LONG-FORM
REGISTRATIONS") or on Form S-2 or S-3 or any similar short-form registration
statement ("SHORT-FORM REGISTRATIONS"), if available. Notwithstanding anything
to the contrary contained herein, if any holder of Registrable Securities other
than the Investor (the "NON-INVESTOR HOLDERS") exercise, prior to the
commencement of the Investor Demand Period, any demand registration rights
granted by the Company to such holder, the Company shall include in such
registration the number of Registrable Securities requested to be included
(which in the opinion of the underwriters can be sold in an orderly manner
within the price range of such offering, if such offering is an underwritten
offering), PRO RATA between the Investor and the Non-Investor Holders on the
basis of the amount of Registrable Securities owned by each such holder. All
registrations requested pursuant to this SECTION 1(A) are referred to herein as
"DEMAND REGISTRATIONS". Each request for a Demand Registration shall specify
the approximate number of Registrable Securities requested to be registered and
the anticipated per share price range for such offering. Within ten days after
receipt of any such request for a Long-Form Registration or Short-Form
Registration, the Company shall give written notice of such requested
registration to all other holders of Registrable Securities and shall include
(subject to the provisions of this Agreement) in such registration, all
Registrable Securities with respect to which the Company has
received written requests for inclusion therein within 15 days after the receipt
of the Company's notice.
(b) NUMBER OF DEMAND REGISTRATIONS. The Investor shall be entitled to
request two (2) Demand Registrations with respect to Registrable Securities held
by the Investor, in which the Company will pay all Registration Expenses as set
forth in Section 5 hereof; PROVIDED, that the Investor shall only be entitled to
request one (1) Demand Registration in any twelve-month period. A registration
shall not count as one of the permitted Demand Registrations until it has become
effective and unless the Investor is able to register and sell at least 90% of
the Registrable Securities that the Investor has requested to be included in
such registration.
(c) SHORT-FORM REGISTRATIONS. In addition to the Demand
Registrations provided pursuant to SECTION 1(B), the Investor shall be entitled
to request an unlimited number of Short-Form Registrations with respect to the
Registrable Securities held by it in which the Company shall pay all
Registration Expenses; PROVIDED, that the aggregate value of the securities to
be offered pursuant to such Short-Form Registration is at least $1 million.
Demand Registrations shall be Short-Form Registrations whenever the Company is
permitted to use any applicable short form. After the Company has become
subject to the reporting requirements of the Exchange Act, the Company shall use
its best efforts to make Short-Form Registrations available for the sale of
Registrable Securities.
(d) PRIORITY ON DEMAND REGISTRATIONS. The Company shall not include
in any Demand Registration any securities that are not Registrable Securities
held by the Investor without the prior written consent of the Investor. If a
Demand Registration is an underwritten offering and the managing underwriters
advise the Company in writing that in their opinion the number of Registrable
Securities and, if permitted hereunder by the Investor, other securities
requested to be included in such offering exceeds the number of Registrable
Securities and other securities, if any, which can be sold in an orderly manner
in such offering within a price range acceptable to the Investor, the Company
shall include in such registration, prior to the inclusion of any securities
which are not Registrable Securities, the number of Registrable Securities
requested to be included which in the opinion of such underwriters can be sold
in an orderly manner within the price range of such offering, PRO RATA among the
respective holders thereof on the basis of the amount of Registrable Securities
owned by each such holder. Any Persons other than holders of Registrable
Securities who participate in Demand Registrations that are not at the Company's
expense must pay their share of the Registration Expenses as provided in SECTION
5 hereof.
(e) RESTRICTIONS ON DEMAND REGISTRATIONS. The Company shall not be
obligated to effect any Demand Registration (i) within 90 days after the
effective date of a Listing occurring after the First Listing, unless (A) the
Investor holds less than 10% of the then outstanding Registrable Securities, or
(B) any Non-Investor Holders exercise any demand registration rights granted by
the Company to such holders, whereupon the Company shall include in such
registration the number of Registrable
Securities requested to be included (which in the opinion of the underwriters
can be sold in an orderly manner within the price range of such offering, if
such offering is an underwritten offering) PRO RATA between the Investor and the
Non-Investor Holders on the basis of the amount of Registrable Securities owned
by each such holder, or (ii) if, at the time the Investor requests such Demand
Registration, (A) the Company has previously notified the Investor in writing
that the Company has determined to register any of its securities on its own
behalf, (B) the Investor has not responded in writing to the Company within
fourteen (14) days after receiving such notice stating that the Investor is
requesting a Demand Registration pursuant to the terms and conditions of this
Agreement, and (C) the Company has not abandoned its efforts to register its
securities. The Company may postpone for up to 60 days the filing or the
effectiveness of a registration statement for a Demand Registration if the
Company's board of directors determines in its reasonable good faith judgment
that such Demand Registration would reasonably be expected to interfere with any
proposal or plan by the Company or any of its Subsidiaries to engage in any
acquisition of assets (other than in the ordinary course of business) or any
merger, consolidation, tender offer, reorganization or other material
transaction; PROVIDED, that in such event, the holders of Registrable Securities
initially requesting such Demand Registration shall be entitled to withdraw such
request and, if such request is withdrawn, such Demand Registration shall not
count as one of the permitted Demand Registrations hereunder and the Company
shall pay all Registration Expenses in connection with such registration. The
Company may delay a Demand Registration hereunder only once in any twelve-month
period.
(f) SELECTION OF UNDERWRITERS. The holders of a majority of the
Registrable Securities initially requesting registration under this Section 1
shall have the right to select the investment banker(s) and manager(s) to
administer the offering, which investment banker(s) and manager(s) will be
nationally recognized; PROVIDED, that such investment banker(s) and manager(s)
are approved by the Company, which approval shall not be unreasonably withheld.
(g) OTHER REGISTRATION RIGHTS. Except as provided in this Agreement,
the Company shall not grant to any Persons the right to request the Company to
register any equity securities of the Company, or any securities convertible or
exchangeable into or exercisable for such securities, without the prior written
consent of the Investor, unless such rights granted to such Persons are
subordinate to the rights granted to the Investor hereunder.
2. PIGGYBACK REGISTRATIONS.
(a) RIGHT TO PIGGYBACK. Whenever the Company proposes to register
any of its securities under the Securities Act (other than pursuant to a Demand
Registration , other than pursuant to a registration statement on Form S-8 or
S-4 or any similar form or in connection with a registration the primary purpose
of which is to register debt securities (I.E., in connection with a so-called
"equity kicker")) and the registration form to be used may be used for the
registration of Registrable Securities
(a "PIGGYBACK REGISTRATION"), the Company shall give prompt written notice (in
any event within three business days after its receipt of notice of any exercise
of demand registration rights other than under this Agreement) to all holders of
Registrable Securities of its intention to effect such a registration and shall
include in such registration all Registrable Securities with respect to which
the Company has received written requests for inclusion therein within 20 days
after the receipt of the Company's notice. Notwithstanding the foregoing, in
connection only with a First Listing initiated by the Company (a "Company First
Listing"), no Registrable Securities shall be included in such registration
without the prior written consent of the Company; PROVIDED, that if the Company
consents to include in such registration any Registrable Securities held by any
holder of Registrable Securities, the Company shall consent to include in such
registration the Registrable Securities of all holders of Registrable Securities
in accordance with the provisions of Section 2(c) below.
(b) PIGGYBACK EXPENSES. The Registration Expenses of the holders of
Registrable Securities shall be paid by the Company in all Piggyback
Registrations.
(c) PRIORITY ON PRIMARY REGISTRATIONS. Subject to the provisions of
Section 2(a) above, if a Piggyback Registration is an underwritten primary
registration on behalf of the Company, the Company will include in such
registration all Registrable Securities requested to be included in such
registration; PROVIDED, that if the managing underwriters advise the Company in
writing that in their opinion the number of securities requested to be included
in such registration exceeds the number that can be sold in such offering
without adversely affecting the marketability of the offering, the Company shall
include in such registration (i) first, the securities the Company proposes to
sell, (ii) second, the Registrable Securities requested to be included in such
registration, PRO RATA among the holders of such Registrable Securities on the
basis of the number of shares owned by each such holder, and (iii) third, other
securities requested to be included in such registration not covered by clause
(i) above.
(d) PRIORITY ON SECONDARY REGISTRATIONS. If a Piggyback Registration
is an underwritten secondary registration on behalf of holders of the Company's
securities (which registration was consented to pursuant to Section 1(g) above),
and the managing underwriters advise the Company in writing that in their
opinion the number of securities requested to be included in such registration
exceeds the number that can be sold in such offering without adversely affecting
the marketability of the offering, the Company shall include in such
registration (i) first, the securities requested to be included therein by the
holders requesting such registration, (ii) second, the number of Registrable
Securities requested to be included in such registration, PRO RATA among the
holders of such securities on the basis of shares of Registrable Securities
owned by each such holder and (iii) third, other securities requested to be
included in such registration.
(e) SELECTION OF UNDERWRITERS. If any Piggyback Registration is an
underwritten offering, the selection of investment banker(s) and manager(s) for
the offering must be approved by (i) the Company, and (ii) the holders of a
majority of the
Registrable Securities included in such Piggyback Registration, which approvals
shall not be unreasonably withheld.
3. HOLDBACK AGREEMENTS. Each holder of Registrable Securities shall
not effect any public sale or distribution (including sales pursuant to Rule
144) of equity securities of the Company, or any securities convertible into or
exchangeable or exercisable for such securities, during the seven days prior to
and the lesser of (i) the 180-day period beginning on the effective date of the
First Listing (except for sales of securities as part of such First Listing) or
the 90 day period beginning on the effective date of any Listing other than the
First Listing, and (ii) any other period applicable to any holders of
Registrable Securities (other than the Investor), unless the underwriters
managing the registered public offering otherwise agree.
4. REGISTRATION PROCEDURES. Whenever the holders of Registrable
Securities have requested that any Registrable Securities be registered pursuant
to this Agreement, the Company shall use its best efforts to effect the
registration and the sale of such Registrable Securities in accordance with the
intended method of disposition thereof (including the registration of Series D
Preferred Stock held by a holder of Registrable Securities requesting
registration as to which the Company has received reasonable assurances that
only Registrable Securities shall be distributed to the public), and pursuant
thereto the Company shall as expeditiously as possible:
(a) prepare and file with the Securities and Exchange Commission a
registration statement with respect to such Registrable Securities and use its
best efforts to cause such registration statement to become effective (provided
that before filing a registration statement or prospectus or any amendments or
supplements thereto, the Company shall furnish to the counsel selected by the
holders of a majority of the Registrable Securities covered by such registration
statement copies of all such documents proposed to be filed, which documents
shall be subject to the review and comment of such counsel);
(b) notify each holder of Registrable Securities of the effectiveness
of each registration statement filed hereunder and prepare and file with the
Securities and Exchange Commission such amendments and supplements to such
registration statement and the prospectus used in connection therewith as may be
necessary to keep such registration statement effective for a period of not less
than 180 days and comply with the provisions of the Securities Act with respect
to the disposition of all securities covered by such registration statement
during such period in accordance with the intended methods of disposition by the
sellers thereof set forth in such registration statement;
(c) furnish to each seller of Registrable Securities such number of
copies of such registration statement, each amendment and supplement thereto,
the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as such seller may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such seller;
(d) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions as
any seller reasonably requests and do any and all other acts and things which
may be reasonably necessary or advisable to enable such seller to consummate the
disposition in such jurisdictions of the Registrable Securities owned by such
seller (provided that the Company shall not be required to (i) qualify generally
to do business in any jurisdiction where it would not otherwise be required to
qualify but for this subparagraph, (ii) subject itself to taxation in any such
jurisdiction or (iii) consent to general service of process in any such
jurisdiction);
(e) notify each seller of such Registrable Securities, at any time
when a prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in such registration statement contains an untrue statement
of a material fact or omits any fact necessary to make the statements therein
not misleading, and, at the request of any such seller, the Company shall
prepare a supplement or amendment to such prospectus so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus
shall not contain an untrue statement of a material fact or omit to state any
fact necessary to make the statements therein not misleading;
(f) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed and, if not so listed, to be listed on the NASD automated quotation
system and, if listed on the NASD automated quotation system, use its best
efforts to secure designation of all such Registrable Securities covered by such
registration statement as a NASDAQ "national market system security" within the
meaning of Rule 11Aa2-1 of the Securities and Exchange Commission or, failing
that, to secure NASDAQ authorization for such Registrable Securities and,
without limiting the generality of the foregoing, to arrange for at least two
market makers to register as such with respect to such Registrable Securities
with the NASD;
(g) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement;
(h) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the holders of
a majority of the Registrable Securities being sold or the underwriters, if any,
reasonably request in order to expedite or facilitate the disposition of such
Registrable Securities (including effecting a stock split or a combination of
shares);
(i) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other agent retained by
any such seller or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the Company's
officers, directors, employees and independent accountants to supply all
information reasonably requested by any such
seller, underwriter, attorney, accountant or agent in connection with such
registration statement;
(j) otherwise use its best efforts to comply with all applicable
rules and regulations of the Securities and Exchange Commission, and make
available to its security holders, as soon as reasonably practicable, an
earnings statement covering the period of at least twelve months beginning with
the first day of the Company's first full calendar quarter after the effective
date of the registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(k) permit any holder of Registrable Securities which holder, in its
sole and exclusive judgment, might be deemed to be an underwriter or a
controlling person of the Company, to participate in the preparation of such
registration or comparable statement and to require the insertion therein of
material, furnished to the Company in writing, which in the reasonable judgment
of such holder and its counsel should be included;
(l) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any common stock included in such registration statement for sale in any
jurisdiction, the Company shall use its best efforts promptly to obtain the
withdrawal of such order;
(m) use its best efforts to cause such Registrable Securities covered
by such registration statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the sellers
thereof to consummate the disposition of such Registrable Securities; and
(n) obtain a cold comfort letter from the Company's independent
public accountants in customary form and covering such matters of the type
customarily covered by cold comfort letters as the holders of a majority of the
Registrable Securities being sold reasonably request (provided that such
Registrable Securities constitute at least 10% of the securities covered by such
registration statement).
5. REGISTRATION EXPENSES.
(a) All expenses incident to the Company's performance of or
compliance with this Agreement, including without limitation all registration
and filing fees, fees and expenses of compliance with securities or blue sky
laws, printing expenses, messenger and delivery expenses, fees and disbursements
of custodians, and fees and disbursements of counsel for the Company and all
independent certified public accountants, and other Persons retained by the
Company (all such expenses being herein called "REGISTRATION EXPENSES"), shall
be borne as provided in this Agreement, except that the Company shall, in any
event, pay its internal expenses (including, without limitation, all salaries
and expenses of its officers and employees performing
legal or accounting duties), the expense of any annual audit or quarterly
review, the expense of any liability insurance and the expenses and fees for
listing the securities to be registered on each securities exchange on which
similar securities issued by the Company are then listed or on the NASD
automated quotation system.
(b) The holders of Registrable Securities included in each Demand
Registration and each Piggyback Registration shall pay all underwriting
discounts and selling commissions applicable to the sale of their securities and
all fees and disbursements of their counsel.
(c) To the extent Registration Expenses are not required to be paid
by the Company, each holder of securities included in any registration hereunder
shall pay those Registration Expenses allocable to the registration of such
holder's securities so included, and any Registration Expenses not so allocable
shall be borne by all sellers of securities included in such registration in
proportion to the aggregate selling price of the securities to be so registered.
6. INDEMNIFICATION.
(a) The Company agrees to indemnify, to the extent permitted by law,
each holder of Registrable Securities, its officers and directors and each
Person who controls such holder (within the meaning of the Securities Act)
against all losses, claims, damages, liabilities and expenses caused by any
untrue or alleged untrue statement of material fact contained in any
registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein
not misleading, except insofar as the same are caused by or contained in any
information furnished in writing to the Company by such holder expressly for use
therein or by such holder's failure to deliver a copy of the registration
statement or prospectus or any amendments or supplements thereto after the
Company has furnished such holder with a sufficient number of copies of the
same. In connection with an underwritten offering, the Company shall indemnify
such underwriters, their officers and directors and each Person who controls
such underwriters (within the meaning of the Securities Act) to the same extent
as provided above with respect to the indemnification of the holders of
Registrable Securities.
(b) In connection with any registration statement in which a holder
of Registrable Securities is participating, each such holder shall furnish to
the Company in writing such information and affidavits as the Company reasonably
requests for use in connection with any such registration statement or
prospectus and, to the extent permitted by law, shall indemnify the Company, its
directors and officers and each Person who controls the Company (within the
meaning of the Securities Act) against any losses, claims, damages, liabilities
and expenses resulting from any untrue or alleged untrue statement of material
fact contained in the registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or any omission or
alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, but only to the extent
that such untrue statement or omission is contained in any information or
affidavit so furnished in writing by such holder; provided that the obligation
to indemnify shall be individual, not joint and several, for each holder and
shall be limited to the net amount of proceeds received by such holder from the
sale of Registrable Securities pursuant to such registration statement.
(c) Any Person entitled to indemnification hereunder shall (i) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification (provided that the failure to give prompt notice
shall not impair any Person's right to indemnification hereunder to the extent
such failure has not prejudiced the indemnifying party) and (ii) unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist with respect to such claim,
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. If such defense is assumed,
the indemnifying party shall not be subject to any liability for any settlement
made by the indemnified party without its consent (but such consent shall not be
unreasonably withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim shall not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim.
(d) The indemnification provided for under this Agreement shall
remain in full force and effect regardless of any investigation made by or on
behalf of the indemnified party or any officer, director or controlling Person
of such indemnified party and shall survive the transfer of securities. The
Company also agrees to make such provisions, as are reasonably requested by any
indemnified party, for contribution to such party in the event the Company's
indemnification is unavailable for any reason.
7. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No Person may
participate in any registration hereunder which is underwritten unless such
Person (i) agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Person or Persons entitled hereunder
to approve such arrangements and (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements; provided that no
holder of Registrable Securities included in any underwritten registration shall
be required to make any representations or warranties to the Company or the
underwriters (other than representations and warranties regarding such holder
and such holder's intended method of distribution) or to undertake any
indemnification obligations to the Company or the underwriters with respect
thereto, except as otherwise provided in Section 6 hereof.
8. DEFINITIONS.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"LISTING" means the admission of the Company's Common Stock on any
stock exchange or the sale of the Company's Common Stock in an underwritten
public offering registered under the Securities Act.
"OTHER STOCKHOLDERS" means the holders of shares of the Company's
Series A Preferred Stock, par value $.01 per share, Series B Preferred Stock,
par value $.01 per share, and Series C Preferred Stock, par value $.01 per
share.
"PERSON" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"REGISTRABLE SECURITIES" means (i) any shares of Common Stock issued
or issuable to the Investor or the Other Stockholders upon conversion of the
Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, or
Series D Preferred Stock, or acquired by, or issued or issuable to, the
Investor, Hoechst ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, or the Other Stockholders on or after the date
hereof, it being understood that neither the Investor nor the Other Stockholders
shall be obligated to convert their shares into shares of Common Stock in order
to make a Demand Registration or otherwise avail themselves of the rights
granted pursuant to this Agreement, (ii) any capital stock of the Company
acquired by the Investor including, without limitation, the Warrant Shares (as
that term is defined in the Warrant Agreement, dated of even date, between
Investor and the Company) or the Other Stockholders on or after the date hereof,
and (iii) any shares of capital stock of the Company issued or issuable with
respect to the securities referred to in clauses (i) or (ii) above by way of a
stock dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation, or other reorganization. As to any
particular Registrable Securities, such securities shall cease to be Registrable
Securities when they have been distributed to the public pursuant to a offering
registered under the Securities Act or sold to the public through a broker,
dealer or market maker in compliance with Rule 144 under the Securities Act (or
any similar rule then in force). For purposes of this Agreement, a Person shall
be deemed to be a holder of Registrable Securities, and the Registrable
Securities shall be deemed to be in existence, whenever such Person has the
right to acquire directly or indirectly such Registrable Securities (upon
conversion or exercise in connection with a transfer of securities or otherwise,
but disregarding any restrictions or limitations upon the exercise of such
right), whether or not such acquisition has actually been effected, and such
Person shall be entitled to exercise the rights of a holder of Registrable
Securities hereunder.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
Unless otherwise stated, other capitalized terms contained herein have the
meanings set forth in the Purchase Agreement.
9. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. The Company shall not hereafter
enter into any agreement with respect to its securities which is adverse or
superior to the rights granted to the Investor pursuant to the terms and
conditions of this Agreement.
(b) ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES. The Company shall
not take any action, or permit any change to occur, with respect to its
securities which would adversely affect the ability of the holders of
Registrable Securities to include such Registrable Securities in a registration
undertaken pursuant to this Agreement or which would adversely affect the
marketability of such Registrable Securities in any such registration
(including, without limitation, effecting a stock split or a combination of
shares).
(c) REMEDIES. Any Person having rights under any provision of this
Agreement shall be entitled to enforce such rights specifically to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or other security) for specific performance and for other injunctive
relief in order to enforce or prevent violation of the provisions of this
Agreement.
(d) AMENDMENTS AND WAIVERS. Except as otherwise provided herein, the
provisions of this Agreement may be amended or waived only upon the prior
written consent of the Company, the Investor, and the Other Stockholders who
hold at least 50% of the Registrable Securities held by the Other Stockholders.
(e) SUCCESSORS AND ASSIGNS. All covenants and agreements in this
Agreement by or on behalf of any of the parties hereto shall bind and inure to
the benefit of the respective successors (including successors created by
amalgamation, merger, or otherwise) and assigns of the parties hereto whether so
expressed or not. In addition, whether or not any express assignment has been
made, the provisions of this Agreement which are for the benefit of purchasers
or holders of Registrable Securities are also for the benefit of, and
enforceable by, any subsequent holder of Registrable Securities.
Notwithstanding anything to the contrary contained herein, holders of
Registrable Securities may not transfer or assign any rights granted to such
holders under the terms and conditions of this Agreement unless such holders
transfer or assign at least 50% of the Registrable Securities held by such
holders.
(f) SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
(g) COUNTERPARTS. This Agreement may be executed simultaneously in
two or more counterparts, any one of which need not contain the signatures of
more than one party, but all such counterparts taken together shall constitute
one and the same Agreement.
(h) DESCRIPTIVE HEADINGS. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
(i) GOVERNING LAW. THE CORPORATE LAW OF THE STATE OF NEW YORK SHALL
GOVERN ALL ISSUES AND QUESTIONS CONCERNING THE RELATIVE RIGHTS OF THE COMPANY
AND ITS STOCKHOLDERS. ALL OTHER ISSUES AND QUESTIONS CONCERNING THE
CONSTRUCTION, VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS AGREEMENT AND THE
EXHIBITS AND SCHEDULES HERETO SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CHOICE OF
LAW OR CONFLICT OF LAW RULES OR PROVISIONS (WHETHER OF THE STATE OF NEW YORK OR
ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY
JURISDICTION OTHER THAN THE STATE OF NEW YORK.
(j) NOTICES. All notices, demands or other communications to be
given or delivered under or by reason of the provisions of this Agreement shall
be in writing and shall be deemed to have been given when delivered personally
to the recipient, sent to the recipient by reputable overnight courier service
(charges prepaid) or mailed to the recipient by certified or registered mail,
return receipt requested and postage prepaid. Such notices, demands and other
communications shall be sent to the addresses indicated below:
TO THE COMPANY:
SCRIPTGEN Pharmaceuticals, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
WITH COPIES (WHICH SHALL NOT CONSTITUTE NOTICE TO THE COMPANY) TO:
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & Fish, LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
TO THE INVESTOR:
BioChem Pharma, Inc.
▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
Attention: Vice President, Legal Affairs
Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇
WITH COPIES (WHICH SHALL NOT CONSTITUTE NOTICE TO THE INVESTOR) TO:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
(k) TERMINATION. The terms and conditions of this Agreement shall
terminate and be of no further force and effect upon the seventh anniversary of
the date of this Agreement; PROVIDED, that if a Listing has not been effected by
the second anniversary of the date of this Agreement, the terms and conditions
of this Agreement shall terminate and be of no further force and effect upon the
eighth anniversary of the date of this Agreement.
(l) AMALGAMATION. The Company acknowledges that Investor has advised
it that it proposes to carry out a reorganization, including an amalgamation,
pursuant to which, among other things, a corporation named BioChem Holdings Inc.
(the "Successor") will own all of the assets and be liable for all liabilities
of Investor (the "Amalgamation"). The Company hereby agrees that, upon
consummation of the Amalgamation, the Successor shall have all of the rights and
obligations of Investor as if Successor had executed this Agreement on the date
hereof in lieu of Investor, and that neither Investor nor Successor shall be
required to send any notice of any kind regarding the Amalgamation nor seek the
consent of the Company to such Amalgamation.
(m) OTHER AGREEMENT. The rights and obligations of the Other
Stockholders pursuant to Section 7 of the Series C Preferred Stock Purchase
Agreement, dated as of May 17, 1996 shall remain unaffected, provided, however,
that in the event of any conflict between this Agreement and said Preferred
Stock Purchase Agreement, the terms of this Agreement shall govern.
* * * *
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
SCRIPTGEN PHARMACEUTICALS, INC.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and CEO
BIOCHEM PHARMA, INC.
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Executive Vice President
By /s/ ▇▇▇▇▇▇ ▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
ACCEL IV L.P.
By: Accel IV Associates, L.P., its
General Partner
By: /s/
------------------------------
Name:
Title:
ACCEL INVESTORS '93 L.P.
By: /s/
------------------------------
Name:
Title:
ACCEL JAPAN L.P.
By: Accel Japan Associates, L.P., its
General Partner
By: /s/
------------------------------
Name:
Title:
ACCEL KEIRETSU L.P.
By: Accel Partners & Co., Inc., its
General Partner
By: /s/
------------------------------
Name:
Title:
ADVENT INTERNATIONAL INVESTORS II
LIMITED PARTNERSHIP
By: Advent International Corporation,
its General Partner
By: /s/
------------------------------
Name:
Title:
ADVENT PERFORMANCE MATERIALS LIMITED
PARTNERSHIP
By: Advent International Limited
Partnership, its General Partner
By: Advent International Corporation,
its General Partner
By: /s/
------------------------------
Name:
Title:
ATLAS VENTURE FUND II, L.P.
By: Atlas Venture Associates II, L.P.,
its General Partner
By: /s/
------------------------------
Name:
Title:
---------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇ VENTURES II, L.P.
By: CW Partners III, L.P., its General
Partner
By: /s/
------------------------------
Name:
Title:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ PARTNERS
By:
------------------------------
Name:
Title:
GOLDEN GATE DEVELOPMENT AND
INVESTMENT LIMITED PARTNERSHIP
By: Advent International Limited
Partnership, its General Partner
By: Advent International Corporation,
its General Partner
By: /s/
------------------------------
Name:
Title:
LOMBARD ODIER & CIE
By: /s/
------------------------------
Name:
Title:
---------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇
NEW ENTERPRISE ASSOCIATES 5
By: /s/
------------------------------
Name:
Title:
PROSPER PARTNERS
By:
------------------------------
Name:
Title:
ROVENT II LIMITED PARTNERSHIP
By: Advent International Limited
Partnership, its General Partner
By: Advent International Corporation,
its General Partner
By: /s/
------------------------------
Name:
Title:
SCRIPT PARTNERS LIMITED PARTNERSHIP
By: /s/
------------------------------
Name:
Title:
VENROCK ASSOCIATES
By: /s/
------------------------------
Name:
Title:
VENROCK ASSOCIATES II, L.P.
By: /s/
------------------------------
Name:
Title: General Partner