Exhibit 4.1
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (the "Agreement"), dated as of April 2,
2003, by and between RRD International, LLC, a Delaware limited liability
company ("RRD"), and Bioenvision, Inc., a Delaware corporation (the "Comany").
PRELIMINARY STATEMENT
WHEREAS, the Company and RRD have entered into that certain General
Services Agreement, dated as of the date hereof, pursuant to which RRD has
agreed to perform certain services for the Company (the "General Services
Agreement"), in exchange for, in pertinent part, the Company's issuance to RRD
of warrants to purchase one hundred and seventy-five thousand (175,000) shares
(the "Shares") of common stock, par value $0.001 per share (the "Common Stock"),
of the Company, pursuant to a warrant agreement of even date herewith (the
"Warrant Agreement"); and
WHEREAS, the Company and RRD desire to provide for certain arrangements
with respect to the registration of the Shares under the Securities Act of 1933,
as amended.
NOW THEREFORE, in consideration of these premises, and the respective
promises and covenants contained herein, the parties hereto agree as follows:
I. ARTICLE
DEFINITIONS
1.1. Certain Definitions. For purposes of this Agreement, capitalized terms
used herein and not defined elsewhere herein shall have the following meanings:
"Act" means the United States Securities Act of 1933, as amended, or
any similar federal statute, and the rules and regulations of the Commission
issued under the Act, as they each may, from time to time, be in effect.
"Affiliate" of any Person shall mean, with respect to such Person, any
other Persont that, directly or indirectly, through one or more intermediaries,
controls, is controlled by or is under common control with such Person.
"Commission" means the United States Securities and Exchange
Commission, or any other federal agency at the time administering the Act.
"Common Stock" means the shares of common stock, par value $0.001 per
share, of the Company.
"Exchange Act" means the United States Securities Exchange Act of 1934,
as amended, or any similar federal statute, and the rules and regulations of the
Commission issued under the Exchange Act, as they each may, from time to time,
be in effect.
"Indemnified Party" has the meaning described in Section 2.4(c) below.
"Indemnifying Party" has the meaning described in Section 2.4(c) below.
"Person" means any individual, corporation, partnership, limited
partnership, joint venture, limited liability company, association, joint stock
company, trust, bank, trust company, unincorporated organization or other
organization or any governmental authority.
1
"Registration Statement" means a registration statement filed by the
Company with the Commission for a public offering and sale of its equity
securities (other than a registration statement on Form S-8 or Form S-4, or
their successors, or any other form for a limited purpose in which form
Registrable Shares may not be included).
"Registration Expenses" means all expenses incurred by the Company in
complying with Article II, including, without limitation, all registration and
filing fees, exchange listing fees, printing expenses, fees and disbursements of
counsel for the Company, reasonable fees and disbursements of one counsel
selected by RRD (or its successor in interest) up to a maximum of $12,500 in the
aggregate for all registration rights granted hereunder, state Blue Sky fees and
expenses, and the expense of any special audits incident to or required by any
such registration, but excluding underwriting discounts on the Registrable
Shares, selling commissions on the Registrable Shares, transfer taxes and the
fees and expenses of any selling Stockholders', including RRD's own counsel
(except as otherwise provided herein), which shall be borne by the participating
Stockholders in proportion to the number of Registrable Shares offered by each.
"Registrable Shares" means (i) the Shares, and (ii) any other shares of
Common Stock issued in respect thereof (because of stock splits, stock
dividends, reclassifications, recapitalizations, reorganizations, mergers,
consolidations or sales of assets or similar events); provided, that shares of
Common Stock which are Registrable Shares shall cease to be Registrable Shares
(i) when they have been sold, transferred or otherwise disposed of or exchanged
pursuant to a Registration Statement under the Act, (ii) when such shares are
eligible for resale pursuant to Rule 144(k) (or its successor) or in single
transaction pursuant to Rule 144(e) (or its successor) under the Act without
violation of the applicable volume limitations, or (iii) upon any sale, transfer
or other disposition in any manner to any person or entity which, by virtue of
Section 2.10 of this Agreement, is not entitled to the rights provided by this
Agreement.
"Stockholders" means RRD and any person or entities to whom the rights
granted under this Agreement are validly transferred by RRD, and their permitted
successors or assigns pursuant to Section 2.10 hereof.
2. ARTICLE
REGISTRATION RIGHTS
2.1. Incidental Registration.
2.1.1. Subject to Section 2.1.2 and 2.1.3 below, whenever the Company
proposes to file a Registration Statement at any time and from time to time
(including a registration effected by the Company for stockholders other than
the Stockholder) (a "Registration"), it will, prior to such filing, give written
notice to all Stockholders of its intention to do so and, upon the written
request of a Stockholder or Stockholders given within 30 days after the Company
provides such notice (which request shall state the number of Registrable Shares
to be registered and the intended method of distribution of such Registrable
Shares), the Company shall, subject to Section 2.1.2 and 2.1.3 below, cause all
Registrable Shares which the Company has been requested by such Stockholder or
Stockholders to be included in the Registration; provided that each Stockholder
shall be required to register not less than 10,000 shares in any such
Registration Statement, and provided, further, that the Company shall have the
right to postpone or withdraw any registration effected pursuant to this Section
2.1 without obligation or liability to any Stockholder (it being understood that
any such postponement or withdrawal shall not adversely affect the number of the
Stockholders registration rights under Section 2.1.3).
2.1.2. In connection with any Registration under this Section 2.1
involving an underwritten offering, the Company shall not be required to include
any Registrable Shares in such Registration unless the holders thereof accept
the terms of the underwriting as agreed upon between the Company and the
underwriters selected by it. If in the opinion of the managing underwriter
employed by the Company for
2
the distribution of equity securities it shall determine, in its sole
discretion, that the registration of all, or part of, the Registrable Shares
which the holders have requested to be included would interfere with the
successful marketing of the proposed public offering, then the Company shall be
required to include in the Registration only that number of Registrable Shares,
if any, which the managing underwriter believes may be sold without interfering
with the successful marketing of the proposed public offering. If the number of
Registrable Shares to be included in Registration in accordance with the
foregoing is less than the total number of shares which the holders of
Registrable Shares have requested to be included, then the holders of
Registrable Shares who have requested registration and other holders of
securities entitled to include them in such Registration shall participate in
the underwritten offering pro rata based upon their total ownership of shares of
Common Stock of the Company. If any holder would thus be entitled to include
more shares than such holder requested to be registered, the excess shall be
allocated among other requesting holders pro rata based upon their total
ownership of shares of Common Stock of the Company.
2.1.3. The Company shall not be required to effect more than two (2)
registrations pursuant to paragraph 2.1.1 above.
2.2. Registration Procedures.
2.2.1. If and whenever the Company is required by the provisions of
this Agreement to effect the registration of any of the Registrable Shares under
the Act, the Company shall:
2.2.1.1. file with the Commission a Registration Statement
with respect to such Registrable Shares and use its best efforts to
cause that Registration Statement to become and remain effective for
such period of time (not exceeding six months) as may be necessary to
effect the sale or other disposition of all Registrable Shares covered
by such Registration Statement or until the Registrable Shares covered
thereby cease to be Registrable Shares, whichever is sooner;
2.2.1.2. as expeditiously as possible prepare and file with
the Commission any amendments and supplements to the Registration
Statement and the prospectus included in the Registration Statement as
may be necessary to keep the Registration Statement effective for the
period described in Section 2.2.1.1 above;
2.2.1.3. as expeditiously as possible furnish to each selling
Stockholder such reasonable numbers of copies of the prospectus,
including a preliminary prospectus, and such other documents as each
selling Stockholder may reasonably request in order to facilitate the
public sale or other disposition of the Registrable Shares owned by
such selling Stockholder;
2.2.1.4. as expeditiously as possible register or qualify the
Registrable Shares covered by the Registration Statement under the
securities or Blue Sky laws of such states as the selling Stockholder
shall reasonably request; provided, however, that (x) the Company shall
not for any purpose be required to qualify to do business as a foreign
corporation in any jurisdiction wherein it is not so qualified or
execute a general consent to service of process in any jurisdiction and
(y) if the Company is offering securities for its own account, it need
not register or qualify under the securities or Blue Sky laws of any
jurisdiction in which the managing underwriter has no intention of
offering or selling securities for the account of the Company (except
that the Company will use its best efforts to register or qualify
Registrable Securities in such additional jurisdiction as any
Stockholder may request subject to the limitation of clause (x) and at
such Stockholder's expense);
2.2.1.5. if the distribution is to be made by means of an
underwritten public offering and subject to receiving reasonable
assurances of confidentiality, make available for inspection by the
underwriters and its counsel or other advisors, such financial and
other information and books and records of the Company, and cause the
officers, directors, employees, counsel and independent certified
public accountants of the Company to respond to such inquiries as shall
be reasonably necessary, in the judgment of such underwriters' counsel,
to conduct a reasonable investigation within the meaning of Section 11
of the Act; and
3
2.2.1.6. use best efforts to make available to its security
holders, as soon as reasonably practicable, an earnings statement
covering a period of at least twelve months which shall satisfy the
provisions of Section 11(a) of the Act and Rule 158 thereunder.
2.2.2. Each selling Stockholder of Registrable Shares agrees that, upon
receipt of any notice from the Company of (i) any request by the Commission for
amendments or supplements to a Registration Statement or related prospectus
covering any of such selling Stockholder's Registrable Shares, (ii) the issuance
by the Commission of any stop order suspending the effectiveness of a
Registration Statement covering any of such selling Stockholder's Registrable
Shares or the initiation of any proceedings for that purpose, (iii) the receipt
by the Company of any notification with respect to the suspension of the
qualification of any Registrable Shares for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, (iv) the happening
of any event that requires the making of any changes in the Registration
Statement covering any of such selling Stockholder's Registrable Shares so that
it will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading or that any related prospectus will not contain any
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in light of the circumstances under
which they are made, not misleading, and (v) the Company's reasonable
determination that a post-effective amendment to a Registration Statement
covering any of such selling Stockholder's Registrable Shares or a supplement to
any related prospectus is required under the Act; such selling Stockholder will
forthwith discontinue disposition of such Registrable Shares until it is advised
in writing by the Company that the use of the applicable prospectus (as amended
or supplemented, as the case may be) and disposition of the Registrable Shares
covered thereby pursuant thereto may be resumed; provided, however, (x) that
such selling Stockholder shall not resume its disposition of Registrable Shares
pursuant to such Registration Statement or related prospectus unless it has
received notice from the Company that such Registration Statement or amendment
has become effective under the Act and has received a copy or copies of the
related prospectus (as then amended or supplemented, as the case may be) unless
the Registrable Shares are then listed on a national securities exchange and the
Company has advised such selling Stockholder that the Company has delivered
copies of the related prospectus, as then amended or supplemented, in
transactions effected upon such exchange, subject to any subsequent receipt by
such selling Stockholder from the Company of notice of any of the events
contemplated by Stock clauses (i) through (iv) of this paragraph, and, (y) if so
directed by the Company, such holder will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in such
Stockholder's possession, of the prospectus covering such Registrable Shares
current at the time of receipt of such notice.
2.3. Allocation of Expenses. The Company will pay all Registration Expenses
of all Registrations under this Agreement.
2.4. Indemnification.
2.4.1. Indemnification of Holder. In the event that the Company
registers any of the Registrable Shares under the Act, the Company will
indemnify and hold harmless the Holder, its officers, directors, managers,
employees, members, shareholders, agents, controlling persons and underwriters,
from and against any and all losses, claims, damages, expenses or liabilities,
to which it becomes subject under the Act or under any other statute or at
common law or otherwise, and, except as hereinafter provided, will reimburse the
Holder for any legal or other expenses reasonably incurred by it in connection
with investigating or defending any actions whether or not resulting in any
liability, insofar as such losses, claims, damages, expenses, liabilities or
actions arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, in any
preliminary or amended preliminary prospectus or in the prospectus (or the
Registration Statement or prospectus as from time to time amended or
supplemented by the Company) 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 in order to make the statements therein not misleading or any
violation by the Company of any rule or regulation promulgated under the Act
applicable to the Company and relating to action or inaction required of the
Company in connection with such registration, unless such untrue statement or
omission was made in such registration statement, preliminary or amended,
preliminary prospectus or prospectus in reliance upon and
4
in conformity with information furnished in writing to the Company in connection
therewith by the Holder expressly for use therein (each, a "Holder Disclosure
Responsibility" and, collectively, the "Holder Disclosure Matters"); provided,
however, that Holder will indemnify and hold harmless the Company, its officers,
directors, employees, shareholders, agents, controlling persons and
underwriters, from and against any and all losses, claims, damages, expenses or
liabilities, to which it becomes subject under the Act or under any other
statute or at common law or otherwise and, except as hereinafter provided, will
reimburse the Company for any legal or other expenses reasonably incurred by it
in connection with investigating or defending any actions, whether or not
resulting in any liability, insofar as such losses, claims, damages, expenses
liabilities or actions arise out of or are based upon one or more Holder
Disclosure Matters and any untrue statement or alleged untrue statement of
material fact contained in such Registration Statement or the omission or
alleged omission to state a material fact required to be stated therein.
2.4.2. Promptly after receipt by the party to be indemnified under this
Agreement (the "Indemnified Party") of notice of the commencement of any action
in respect of which indemnity may be sought against the indemnifying party (the
"Indemnifying Party"), the Indemnified Party will notify the Indemnifying Party
in writing of the commencement thereof, and, subject to the provisions
hereinafter stated, the Indemnifying Party shall assume the defense of such
action (including the employment of counsel, who shall be counsel reasonably
satisfactory to the Indemnified Party), and the payment of expenses insofar as
such action shall relate to any alleged liability in respect of which indemnity
may be sought against the Indemnifying Party. The Indemnified Party shall have
the right to employ separate counsel in any such action and to participate in
the defense thereof but the fees and expenses of such counsel shall not be at
the expense of the Indemnifying Party unless the Indemnifying Party has
specifically authorized the employment of such counsel. The Indemnifying Party
shall not be liable to indemnify any person for any settlement of any such
action effected without the Indemnifying Party's consent.
2.5. Information by Holder. Each holder of Registrable Shares included in
any Registration shall furnish to the Company such information regarding such
holder and the distribution proposed by such holder as the Company may request
in writing and as shall be required in connection with any registration,
qualification or compliance referred to in this Article 2.
2.6. "Stand-Off" Agreement. Each Stockholder, if requested by the Company
and an underwriter of Common Stock or other securities of the Company, shall
agree not to sell or otherwise transfer or dispose of any Registrable Shares or
other securities of the Company held by such Stockholder for a specified period
of time (not to exceed 180 days) following the effective date of a Registration
Statement; provided, that all officers and directors of the Company enter into
similar agreements. Such agreement shall be in writing in a form satisfactory to
the Company and such underwriter. The Company may impose stop-transfer
instructions with respect to the Registrable Shares or other securities subject
to the foregoing restriction until the end of the stand-off period.
2.7. Transfer of Rights.
2.7.1. The rights and obligations of RRD under this Agreement may be
transferred by RRD to another person or entity that is then a stockholder of the
Company, to any affiliate of the Company, to an affiliate of RRD or a successor
in interest in a transaction exempt from registration under the Act; provided
that, in each case, at least 10,000 Registrable Shares (as adjusted for stock
splits, stock dividends, recapitalization or similar events) are transferred.
2.7.2. Any transferee (other than a stockholder who is already a party
to an agreement in form and substance the same or substantially similar to this
Agreement) to whom rights under this Agreement are transferred shall, as a
condition to such transfer, deliver to the Company a written instrument by which
such transferee identifies itself, gives the Company notice of the transfer of
such rights, indicates the Registrable Shares owned by it and agrees to be bound
by the obligations imposed upon RRD under this Agreement.
2.7.3. A transferee to whom rights are transferred pursuant to this
Section 2.7 may not again transfer such rights to any other person or entity,
other than as provided in this Section 2.7.
5
2.8. Exchange Act Registration; Rule 144 Reporting. The Company covenants
and agrees that until such time as RRD no longer holds any Registrable Shares
(or such Registrable Shares otherwise cease to be Registrable Shares) it will
use its best efforts to:
2.8.1. make and keep public information available, as those terms are
understood and defined in Rule 144 under the Act, even if the Company
subsequently ceases to be subject to such reporting requirements;
2.8.2. file with the Commission in a timely manner all reports and
documents required of the Company under the Act and the Exchange Act; and
2.8.3. furnish to RRD promptly upon request (i) a written statement by
the Company as to its compliance with the reporting requirements of Rule 144 and
of the Exchange Act, (ii) a copy of the most recent annual or quarterly report
of the Company, and (iii) such other reports and documents of the Company and
other information in the possession of the Company as RRD may reasonably request
in availing itself of any rule or regulation of the Commission allowing RRD to
sell any such Registrable Shares without registration.
3. ARTICLE
MISCELLANEOUS
3.1. Notices. All notices, demands, instructions and other communications
required or permitted to be given to or made upon any party hereto shall be in
writing delivered to the parties at the addresses set forth below (or such other
address as may be provided by one party in a notice to the other):
If to RRD:
RRD International, LLC
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., Manager, President and CEO
with a copy to:
▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: 703-464-4895
If to the Company:
Bioenvision, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
6
with a copy to:
Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
Park Avenue Tower
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, III, Esq.
Notice delivered in accordance with the foregoing shall be effective (i) when
delivered, if delivered personally or by facsimile transmission, (ii) two days
after being delivered in the United States (properly addressed and all fees
paid) for overnight delivery service to a courier (such as Federal Express)
which regularly provides such service and regularly obtains executed receipts
evidencing delivery or (iii) five days after being deposited (properly addressed
and stamped for first-class delivery) in a daily serviced United States mail
box.
3.2. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the respective successors and permitted assigns
of the parties hereto.
3.3. Headings. Article and Section headings used in this Agreement are for
convenience of reference only and shall not constitute a part of this Agreement
for any purpose or affect the construction of this Agreement.
3.4. Execution in Counterparts. This Agreement may be executed in any number
of counterparts and by different parties on separate counterparts, each of which
counterparts, when so executed and delivered, shall be deemed to be an original
and all of which counterparts, taken together, shall constitute one and the same
Agreement. This Agreement shall become effective upon the execution of a
counterpart hereof by each of the parties hereto.
3.5. Governing Law. This Agreement shall be deemed to have been made in the
State of New York and the validity of this Agreement, the construction,
interpretation and enforcement thereof, and the rights of the parties thereto
shall be determined under, governed by, and construed in accordance with the
internal laws of the State of New York, without regard to principles of
conflicts of law.
3.6. Survival of Agreements, Representations and Warranties. All agreements,
representations and warranties made herein shall survive the execution and
delivery of this Agreement.
3.7. Arbitration . Any dispute or controversy arising under, out of, in
connection with, or in relation to this Agreement shall be determined and
settled by arbitration in New York by a panel of three members in accordance
with the commercial rules of the American Arbitration Association. Any award
rendered therein shall be final and binding upon the parties and their legal
representatives and judgment may be entered in any court having jurisdiction
thereof.
3.8. Amendments and Waivers. Any term of this Agreement may be amended and
the observance of any term of this Agreement may be waived (either generally or
in a particular instance and either retroactively or prospectively), with the
written consent of the Company and the holders of at least 51% of the
Registrable Shares; provided, that this Agreement may be amended with the
consent of the holders of less than all Registrable Shares (but not less than
51% of such shares) only in a manner which affects all Registrable Shares in the
same fashion. No waivers of or exceptions to any term, condition or provision of
this Agreement, in any one or more instances, shall be deemed to be, or
construed as, a further or continuing waiver of any such term, condition or
provision.
[Signature page follows]
7
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the date first-above written.
RRD INTERNATIONAL, LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Manager, President and CEO
BIOENVISION, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Director of Finance, General Counsel
8