Exhibit 1.3
DEPOMED DEVELOPMENT LTD.
REGISTRATION RIGHTS AGREEMENT
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THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made as of January
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21, 2000, by and among DepoMed Development Ltd., a Bermuda exempted limited
liability company (the "Company"), DepoMed, Inc., a California corporation
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("DMI"), and Elan International Services, Ltd., a Bermuda exempted limited
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liability company ("EIS").
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R E C I T A L S:
A. Pursuant to a Subscription, Joint Development and Operating Agreement
dated as of the date hereof by and among the Company, DMI, Elan Corporation,
plc, an Irish public limited company, Elan Pharma International Limited, an
Irish company, and EIS (the "JDOA"), DMI has acquired certain common shares, par
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value $1.00 per share (the "Common Shares"), and certain non-voting convertible
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preferred shares, par value $1.00 per share (the "Preferred Shares"; together
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with Common Shares, the "Securities"), of the Company and EIS has acquired
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certain Preferred Shares, which Preferred Shares are convertible into Common
Shares.
B. The execution of the JDOA has occurred on the date hereof and it is a
condition to the closing of the transactions contemplated thereby that the
parties execute and deliver this Agreement.
C. The parties desire to set forth herein their agreement as to the terms
and conditions related to the granting of certain registration rights to the
Holders (as defined below) relating to the Common Shares held and the Common
Shares underlying the Securities.
A G R E E M E N T:
The parties hereto agree as follows:
1. Certain Definitions. As used in this Agreement, the following terms
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shall have the following respective meanings:
"Commission" shall mean the U.S. Securities and Exchange Commission.
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"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
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and the rules and regulations of the Commission thereunder, all as the same
shall be in effect from time to time.
"Holders" or "Holders of Registrable Securities" shall mean DMI, EIS and
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any Person who shall have acquired Registrable Securities from either DMI or EIS
as permitted herein, either individually or jointly, as the case may be, in a
transaction pursuant to which registration rights are transferred pursuant to
Section 10 hereof.
"Person" shall mean an individual, a partnership, a company, an
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association, a joint stock company, a trust, a joint venture, an unincorporated
organization and a governmental or quasi-governmental entity, or any department,
agency or political subdivision thereof.
"Registrable Securities" means (i) any Common Shares subscribed for
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pursuant to the JDOA; (ii) any Common Shares issuable upon conversion the
Preferred Shares; and (iii) any Common Shares issued or issuable in respect of
the securities referred to in clause (i) and (ii) above upon any stock split,
stock dividend, recapitalization or similar event; excluding in all cases,
however, any Registrable Securities that have been sold under Rule 144 under the
Securities Act, and Registrable Securities sold by a Person in a transaction
(including a transaction pursuant to a registration statement under this
Agreement and a transaction pursuant to Rule 144 promulgated under the
Securities Act) in which registration rights are not transferred pursuant to
Section 10 hereof.
The terms "register," "registered" and "registration" refer to a
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registration effected by preparing and filing a registration statement in
compliance with the Securities Act.
"Registration Expenses" shall mean all expenses, other than Selling
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Expenses, incurred by the Company in complying with Sections 2 or 3 hereof,
including without limitation, all registration, qualification and filing fees,
exchange listing fees, printing expenses, escrow fees, fees and disbursements of
counsel for the Company, blue sky fees and expenses, the expense of any special
audits incident to or required by any such registration.
"Securities Act" shall mean the Securities Act of 1933, as amended.
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"Selling Expenses" shall mean all underwriting discounts, selling
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commissions and stock transfer taxes applicable to the securities registered by
the Holders and the costs and fees of any accountants, attorneys or other
experts retained by the Holders or Holder.
2. Demand Registrations.
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(a) Requests for Registration From and after the occurrence of the initial
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public offering of the Company's Common Shares under the Securities Act, any
Holder or Holders who collectively hold Registrable Securities representing at
least 5% of the Company's Common Shares, on a fully-diluted basis, shall have
the right at any time from time to time (subject to the limitations below), to
request registration under the Securities Act of all or part of their
Registrable Securities on Form ▇-▇, ▇-▇ (or any successor form to Form ▇-▇, ▇-▇
or any other short-form registration statement (each, a "Demand Registration").
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A Demand Registration on Form S-3 shall take priority over any other form of
registration statement, if available. The request for the Demand Registration
shall specify the approximate number of Registrable Securities requested to be
registered, which must have a minimum expected aggregate offering price to the
public of at least $5,000,000. Within 10 days after receipt of any such
request, the Company will give written notice of such requested registration to
all other Holders of Registrable Securities. The Company shall include such
other Holders' Registrable Securities in such offering if they have responded
affirmatively within 10 days after the receipt of the
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Company's notice. Each of EIS and DMI shall be permitted to one Demand
Registration; provided, however, that the Holders in aggregate will be entitled
to request one Demand Registration hereunder within any 12-month period. A
registration will not count as a Demand Registration until it has become
effective (unless such Demand Registration has not become effective due solely
to the fault of the Holders requesting such registration, including a request by
such Holders that such registration be withdrawn).
(b) Priority on Demand Registrations. If a Demand Registration is an
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underwritten offering and the managing underwriters advise the Company in
writing that in their opinion the number of Registrable Securities and, if
permitted hereunder, 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 such offering without adversely affecting the marketability of
the offering, the Company will include in such registration:
(i) first, the Registrable Securities requested to be included
in such registration by the Holders (or, if necessary, such Registrable
Securities pro rata among the Holders thereof based upon the number of
Registrable Securities owned by each such Holder); and
(ii) thereafter, other securities requested to be included in
such registration, as determined by the Company.
(c) Restrictions on Demand Registration. The Company may postpone for
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up to four months in any 12-month period, the filing or the effectiveness of a
registration statement for a Demand Registration if the Company determines in
good faith that such Demand Registration would reasonably be expected to have a
material adverse effect on any proposal or plan by the Company to engage in any
financing, acquisition or disposition of assets (other than in the ordinary
course of business) or any merger, consolidation, tender offer or similar
transaction or would require disclosure of any information that the board of
directors of the Company determines in good faith the disclosure of which would
be detrimental to the Company; provided, that in such event, the Holders
initially requesting such Demand Registration will be entitled to withdraw such
request and, if such request is withdrawn, such Demand Registration will not
count as a permitted Demand Registration hereunder and the Company will pay any
Registration Expenses in connection with such registration.
(d) Selection of Underwriters. The Holders will have the right to
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select the investment banker(s) and manager(s) to administer an offering
pursuant to the Demand Registration, subject to the Company's prior written
approval, which will not be unreasonably withheld or delayed.
(e) Other Registration Rights. Except as provided in this Agreement,
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so long as any Holder owns any Registrable Securities, the Company will 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, which conflicts with the rights granted to the
Holders hereunder, without the prior written consent of the Holders of at least
50% of the Registrable Securities.
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3. Piggyback Registrations.
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(a) Right to Piggyback. At any time the Company shall propose to
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register Common Shares under the Securities Act (other than in a registration
statement on Form S-3 relating to sales of securities to participants in a
Company dividend reinvestment plan, or Form S-4 or S-8 or any successor form or
in connection with an acquisition or exchange offer or an offering of securities
solely to the existing shareholders or employees of the Company) (each, a
"Piggyback Registration"; together with a Demand Registration, a
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"Registration"), the Company will give prompt written notice to all Holders of
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Registrable Securities of its intention to effect such a registration and,
subject to Section 3(b) and the other terms of this Agreement, will include in
such registration all Registrable Securities which are permitted under
applicable securities laws to be included in such registration and with respect
to which the Company has received written requests for inclusion therein within
10 days after the receipt of the Company's notice.
(b) Priority on Piggyback Registrations. If a Piggyback Registration
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is to be an underwritten offering, 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 will include in such registration:
(i) first, the securities the Company proposes to sell;
(ii) the Registrable Securities requested to be included in such
registration by the Holders and any securities requested to be included in
such registration by any other Person having equal priority to registration
with the Holders, pro rata among the Holders of such Registrable Securities
and such other Persons, on the basis of the number of shares owned by each
of such Holders; and
(iii) thereafter, other securities requested to be included in
such registration.
The Holders of any Registrable Securities included in such an
underwritten offering must execute an underwriting agreement and customary
accompanying documents and in form and substance satisfactory to the managing
underwriters.
(c) Right to Terminate Registration. If, at any time after giving
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written notice of its intention to register any of its securities as set forth
in Section 3(a) and prior to the effective date of the registration statement
filed in connection with such registration, the Company shall determine for any
reason not to register such securities, the Company may, at its election, give
written notice of such determination to each Holder of Registrable Securities
and thereupon be relieved of its obligation to register any Registrable
Securities in connection with such registration (but not from its obligation to
pay the Registration Expenses in connection therewith as provided herein).
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(d) Selection of Underwriters. The Company will have the right to
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select the investment banker(s) and manager(s) to administer an offering
pursuant to a Piggyback Registration, subject to the approval of the holders of
a majority of the Registrable Securities, which approval will not be
unreasonably withheld or delayed.
4. Expenses of Registration. Except as otherwise provided herein or
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as may otherwise be prohibited by applicable law, all Registration Expenses
incurred in connection with all registrations pursuant to Sections 2 and 3 shall
be borne by the Company; provided that, and notwithstanding anything herein
contained to the contrary, the Company shall not have any obligation pursuant to
the provisions hereof unless and until the Company is able to satisfy (after
taking into account such obligations) the requirements of Section 39A (2A) of
the Bermuda Companies Act of 1981 (or any successor legislation).
5. Holdback Agreements.
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(a) The Company agrees (i) not to effect any public sale or
distribution of its equity securities, or any securities convertible into or
exchangeable or exercisable for such securities, during the seven days prior to
and during the 180-day period beginning on the effective date of any
underwritten Registration or any underwritten Piggyback Registration (except as
part of such underwritten registration or pursuant to registration statements on
Form S-4 or Form S-8 or any successor form), unless the underwriters managing
the registered public offering otherwise agree, and (ii) to use reasonable
efforts to cause its officers and directors and each holder of at least 5% (on a
fully-diluted basis) of its outstanding Common Shares, or any securities
convertible into or exchangeable or exercisable for Common Shares, purchased
from the Company at any time after the date of this Agreement (other than in a
registered public offering) to agree not to effect any public sale or
distribution (including sales pursuant to Rule 144) of any such securities
during such periods (except as part of such underwritten registration, if
otherwise permitted), unless the underwriters managing the registered public
offering otherwise agree.
(b) Each Holder agrees, if requested by the managing underwriter or
underwriters in an underwritten offering of securities by the Company, not to
effect any offer, sale, distribution or transfer, including a sale pursuant to
Rule 144 (or any similar provision then effect) under the Securities Act (except
as part of such underwritten registration), during the seven-day period prior
to, and during the 180-day period (or such shorter period as may be agreed to in
writing by the Company and the Holders of at least 50% of the Registrable
Securities) following the effective date of such Registration Statement to the
extent timely notified in writing by the managing underwriter or underwriters.
6. Registration Procedures. Whenever the Holders of Registrable
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Securities have requested that any Registrable Securities be registered pursuant
to this Agreement, the Company will use all reasonable efforts to effect the
Registration and the sale of such Registrable Securities in accordance with the
intended method of distribution thereof, and pursuant thereto the Company will
as expeditiously as possible:
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(a) subject to Section 2(c) hereof, prepare and file with the
Commission a registration statement on any form for which the Company qualifies
with respect to such Registrable Securities and use all reasonable 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 will (i) furnish to the counsel selected by the Holders
copies of all such documents proposed to be filed, which documents will be
subject to the review of such counsel, and (ii) notify each Holder of
Registrable Securities covered by such registration of any stop order issued or
threatened by the Commission);
(b) subject to Section 2(c) hereof, prepare and file with the
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 equal to the shorter of (i) six
months and (ii) the time by which all securities covered by such registration
statement have been sold, 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 all reasonable efforts to register or qualify such
Registrable Securities under the 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 will 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 Section 6(d), (ii) subject itself
to taxation in any 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 occurrence 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 will prepare
a supplement or amendment to such prospectus so that, as thereafter delivered to
the purchasers of such Registrable Securities, such prospectus will not contain
an untrue statement of a material fact or omit to state any fact necessary to
make the statements therein not misleading; provided, however, that the Company
shall not be required to amend the registration statement or supplement the
Prospectus for a period of up to six months if the board of directors of the
Company determines in good faith that to do so would reasonably be expected to
have a material adverse effect on any proposal or plan by the Company to engage
in any financing, acquisition or disposition of assets (other than in the
ordinary course of business) or any merger, consolidation,
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tender offer or similar transaction or would require the disclosure of any
information that the board of directors of the Company determines in good faith
the disclosure of which would be detrimental to the Company, it being understood
that the period for which the Company is obligated to keep the Registration
Statement effective shall be extended for a number of days equal to the number
of days the Company delays amendments or supplements pursuant to this provision.
Upon receipt of any notice pursuant to this Section 6(e), the Holders shall
suspend all offers and sales of securities of the Company and all use of any
prospectus until advised by the Company that offers and sales may resume, and
shall keep confidential the fact and content of any notice given by the Company
pursuant to this Section 6(e);
(f) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed;
(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;
(i) make available for inspection by a representative of the Holders
of Registrable Securities included in the registration statement, 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 pertinent 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 reasonable efforts to comply with all
applicable rules and regulations of the Commission, and make available to its
security holders, as soon as reasonably practicable, an earnings statement
covering the period of at least 12 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) 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 Shares included in such registration statement for sale in any
jurisdiction, use all reasonable efforts promptly to obtain the withdrawal of
such order; and
(l) if the registration is an underwritten offering, use all
reasonable efforts to obtain a so-called "cold comfort" letter from the
Company's independent public accountants in
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customary form and covering such matters of the type customarily covered by cold
comfort letters.
7. Obligations of Holders. Whenever the Holders of Registrable
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Securities sell any Registrable Securities pursuant to a Registration, such
Holders shall be obligated to comply with the applicable provisions of the
Securities Act, including the prospectus delivery requirements thereunder, and
any applicable state securities or blue sky laws.
8. Indemnification. (a) The Company agrees to indemnify, to the
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fullest extent permitted by applicable 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, expenses or any amounts paid in settlement of any litigation,
investigation or proceeding commenced or threatened to which each such
indemnified party may become subject under the Securities Act, including without
limitation attorneys fees and disbursements (collectively, "Claims") insofar as
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such Claim arose out of (i) any untrue or alleged untrue statement of material
fact contained, on the effective date thereof, in any registration statement,
prospectus or preliminary prospectus or any amendment thereof or supplement
thereto or (ii) any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, except insofar as the same are caused by or contained in any
information furnished in writing to the Company by such Holder expressly for use
therein, 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
or by such Holder's failure to comply with applicable securities laws. In
connection with an underwritten offering, the Company will indemnify the
underwriters, their officers and directors and each Person who controls the
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 statements in which a Holder
of Registrable Securities is participating, each such Holder will furnish to the
Company in writing such customary information as the Company reasonably requests
for use in connection with any such registration statement or prospectus (the
"Seller's Information") and, to the fullest extent permitted by applicable law,
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will indemnify the Company, its directors and officers and each Person who
controls the Company (within the meaning of the Securities Act) against any and
all Claims to which each such indemnified party may become subject under the
Securities Act insofar as such Claim arose out of (i) any untrue or alleged
untrue statement of material fact contained, on the effective date thereof, in
any registration statement, prospectus or preliminary prospectus or any
amendment thereof or supplement thereto regarding Seller's Information, (ii) any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein regarding Seller's
Information not misleading or (iii) any failure to comply with applicable
securities laws; provided that with respect to a Claim arising pursuant to
clause (i) or (ii) above, the material misstatement or omission is contained in
such Seller's Information; provided, further, that the obligation to indemnify
will be individual to each Holder and will be limited to the amount of proceeds
received by such Holder from the sale of Registrable Securities pursuant to such
registration statement.
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(c) Any Person entitled to indemnification hereunder will (i) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification (but the failure to provide such notice shall not
release the indemnifying party of its obligation under paragraphs (a) and (b),
unless and then only to the extent that, the indemnifying party has been
prejudiced by such failure to provide such notice) and (ii) unless in such
indemnified party's reasonable judgment, based on written advice of counsel, 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. An
indemnifying party who is not entitled to, or elects not to, assume the defense
of a claim will 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, based on
written advice of counsel, a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim.
(d) The indemnifying party shall not be liable to indemnify an
indemnified party for any settlement, or consent to judgment of any such action
effected without the indemnifying party's written consent (but such consent will
not be unreasonably withheld). Furthermore, the indemnifying party shall not,
except with the prior written approval of each indemnified party, consent to
entry of any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to each
indemnified party of a release from all liability in respect of such claim or
litigation without any payment or consideration provided by each such
indemnified party.
(e) If the indemnification provided for in this Section 8 is
unavailable to an indemnified party under clauses (a) and (b) above in respect
of any losses, claims, damages or liabilities referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities in such proportion as is
appropriate to reflect not only the relative benefits received by the Company,
the underwriters, the sellers of Registrable Securities and any other sellers
participating in the registration statement from the sale of shares pursuant to
the registered offering of securities for which indemnity is sought but also the
relative fault of the Company, the underwriters, the sellers of Registrable
Securities and any other sellers participating in the registration statement in
connection with the statement or omission which resulted in such losses, claims,
damages or liabilities, as well as any other relevant equitable considerations.
The relative benefits received by the Company, the underwriters, the sellers of
Registrable Securities and any other sellers participating in the registration
statement shall be deemed to be based on the relative relationship of the total
net proceeds from the offering (before deducting expenses) to the Company, the
total underwriting commissions and fees from the offering (before deducting
expenses) to the underwriters and the total net proceeds from the offering
(before deducting expenses) to the sellers of Registrable Securities and any
other sellers participating in the registration statement. The relative fault of
the Company, the underwriters, the sellers of Registrable Securities and any
other sellers participating in the registration statement shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or
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alleged omission to state a material fact relates to information supplied by the
Company or by the sellers of Registrable Securities and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
(f) The indemnification provided for under this Agreement will 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 will survive the transfer of the Registrable Securities.
9. Participation in Underwritten Registrations. No Holder may
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participate in any registration hereunder which is underwritten unless such
Holder (a) agrees to sell such Holder's securities on the basis provided in any
underwriting arrangements approved by the Holder or Holders entitled hereunder
to approve such arrangements, (b) as expeditiously as possible notifies the
Company of the occurrence of any event as a result of which any prospectus
contains an untrue statement of material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading and (c) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
10. Transfer of Registration Rights. The rights granted to any Holder
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under this Agreement may be assigned to any permitted transferee of Registrable
Securities, in connection with any transfer or assignment of Registrable
Securities by a Holder; provided, however, that: (a) such transfer is otherwise
effected in accordance with applicable securities laws, (b) if not already a
party hereto, the assignee or transferee agrees in writing prior to such
transfer to be bound by the provisions of this Agreement applicable to the
transferor, (c) such transferee shall own Registrable Securities representing at
least 5% of the outstanding Common Shares on a fully-diluted basis, and (d) DMI
or EIS, as applicable, if a transferor, shall act as agent and representative
for such Holder for the giving and receiving of notices hereunder.
11. Information by Holder. Each Holder shall furnish to the Company
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such written information regarding such Holder and any distribution proposed by
such Holder as the Company may reasonably request in writing and as shall be
reasonably required in connection with any registration, qualification or
compliance referred to in this Agreement and shall promptly notify the Company
of any changes in such information.
12. Exchange Act Compliance. The Company shall comply with all of the
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reporting requirements of the Exchange Act then applicable to it and shall
comply with all other public information reporting requirements of the
Commission which are conditions to the availability of Rule 144 for the sale of
the Registrable Securities. The Company shall cooperate with each Holder in
supplying such information as may be necessary for such Holder to complete and
file any information reporting forms presently or hereafter required by the
Commission as a condition to the availability of Rule 144.
13. Termination of Registration Rights. All registration rights
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granted under this Agreement shall terminate and be of no further force and
effect, as to any particular Holder, at such time as all Registrable Securities
held by such Holder can be sold within a four-month
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period without compliance with the registration requirements of the Securities
Act pursuant to Rule 144 (including Rule 144(k)) promulgated thereunder.
14. Miscellaneous.
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(a) No Inconsistent Agreements. The Company will not hereafter enter
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into any agreement with respect to its securities which is inconsistent with or
violates the rights granted to the Holders of Registrable Securities in this
Agreement without the prior written consent of a majority in interest of such
Registrable Securities.
(b) Remedies. Any Person having rights under any provision of this
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Agreement will 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; provided, however, that in no event shall any Holder have the right
to enjoin, delay or interfere with any offering of securities by the Company.
(c) Amendments and Waivers. Except as otherwise provided herein, the
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provisions of this Agreement may be amended or waived only with the prior
written consent of the Company and Holders of at least 50% of the Registrable
Securities; provided, that without the prior written consent of all the Holders,
no such amendment or waiver shall reduce the foregoing percentage required to
amend or waive any provision of this Agreement.
(d) Successors and Assigns. All covenants and agreements in this
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Agreement by or on behalf of any of the parties hereto will bind and inure to
the benefit of the respective successors and assigns of the parties hereto, and
shall inure to the benefit and be enforceable by each Holder of Registrable
Securities from time to time. In addition, whether or not any express assignment
has been made, the provisions of this Agreement which are for the benefit of
Holders of Registrable Securities are also for the benefit of, and enforceable
by, any permitted transferee of Registrable Securities, in accordance with
Section 10 hereof.
(e) Severability. Whenever possible, each provision of this Agreement
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will 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 will be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
this Agreement.
(f) Counterparts. This Agreement may be executed simultaneously in
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two or more counterparts, any one of which need not contain the signatures of
more than one party, but all such counterparts taken together will constitute
one and the same Agreement.
11
(g) Descriptive Headings. The descriptive headings of this Agreement
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are inserted for convenience only and do not constitute a part of this
Agreement.
(h) Governing Law. All questions concerning the construction,
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validity and interpretation of this Agreement will be governed by the laws of
the State of New York without regard to principles of conflicts of laws except
that all issues concerning the relative rights of the Company and its
shareholders shall be governed by Bermuda law, without giving effect to the
principles thereof relating to conflicts of laws.
(i) Notices. All notices, demands and requests of any kind to be
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delivered to any party in connection with this Agreement shall be in writing and
shall be deemed to have been duly given if personally delivered or if sent by
nationally-recognized overnight courier or by registered or certified airmail,
return receipt requested and postage prepaid or by facsimile transmission,
addressed as follows:
(i) if to the Company, to:
DepoMed Development Ltd.
c/o Conyers ▇▇▇▇ & ▇▇▇▇▇▇▇
Clarendon House
Church Street, P.O. Box HM 666
▇▇▇▇▇▇▇▇ ▇▇ CX, Bermuda
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to each of DMI, EIS and their respective counsel at
the addresses indicated below
(ii) if to DMI, to:
DepoMed, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Chief Executive Officer
Facsimile:
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇ White & ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(iii) if to EIS, to:
▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ Services, Ltd.
Flatts, Smiths Parish
Bermuda, FL 04
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: President
with a copy to:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
(j) Entire Agreement. This Agreement constitutes the full and entire
----------------
understanding and agreement between the parties with regard to the subject
matter hereof and supersedes all prior agreements relating to such subject
matter.
[Signature page follows]
13
IN WITNESS WHEREOF, the parties have executed this Registration
Rights Agreement as of the date first written above.
DEPOMED DEVELOPMENT LTD.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: President & CEO
DEPOMED, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: President & CEO
ELAN INTERNATIONAL SERVICES, LTD.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
President & CFO
[DepoMed Development Ltd. Registration Rights Agreement]
