Exhibit 1.2
DEPOMED, INC.
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 between DepoMed, Inc., a California corporation (the "Company"),
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and Elan International Services, Ltd., a Bermuda exempted limited liability
company ("EIS").
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R E C I T A L S:
A. Pursuant to a Securities Purchase Agreement dated as of the date hereof
by and between the Company and EIS (the "Purchase Agreement"), EIS has acquired,
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or may acquire in the future, certain shares of common stock, no par value, of
the Company (the "Common Stock"), Series A Convertible Exchangeable Preferred
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Stock of the Company (the "Series A Preferred Stock"), and a convertible
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promissory note (the "Note"; together with the Series A Preferred Stock, the
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"Securities"), which Series A Preferred Stock and Note are convertible into
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shares of Common Stock.
B. The execution of the Purchase Agreement 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 Stock held by such Holders and
the Common Stock 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 EIS and any
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Person who shall have acquired Registrable Securities from 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 shares of Common Stock purchased
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pursuant to the Purchase Agreement, any shares of Common Stock issued or
issuable upon conversion of the Securities, and (ii) any Common Stock issued or
issuable in respect of the securities referred to in clause (i) 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
promulgated 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 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, and 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 Registration.
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(a) Requests for Registration. In the event that (i) the Company receives
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from the Holder(s) a written request that the Company file a registration
statement on Form S-1 or S-3 (or any successor form to Form S-3), or any other
short-form registration statement, for a public offering of Registrable
Securities (a "Demand Registration"), the reasonably anticipated aggregate price
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to the public of which, net of underwriting discounts and commissions, would be
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. A Demand Registration on Form S-3 shall take
priority over any other form of registration statement, if available. 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 Company's notice. The Holders in aggregate will be entitled to request
one Demand Registration hereunder. 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
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fault of the Holders requesting such registration, including a request by such
Holders that such registration be withdrawn).
(b) Priority on Demand Registration. 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 requested to
be included in such offering exceeds the number of Registrable Securities that
can be sold in such offering without adversely affecting the marketability of
the offering, the Company will include in such registration (x) such number of
Registrable Securities allocated pro rata among the Holders thereof based upon
the number of Registrable Securities owned by each such Holder and (y) then any
other shares of Common Stock proposed to be sold by the Company or other
Persons. No securities other than Registrable Securities hereunder shall be
included in such Demand Registration without the prior written consent of
Holders who collectively hold Registrable Securities representing at least 50%
of the Registrable Securities then outstanding.
(c) Restrictions on Demand Registration. The Company may postpone the
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filing or the effectiveness of a registration statement for a Demand
Registration one time for up to 105 days 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 select
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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, so
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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.
3. Piggyback Registrations. (a) Right to Piggyback. At any time
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that the Company shall propose to register Common Stock under the Securities Act
(other than in a registration on Form S-3 relating to sales of securities to
participants in a Company dividend reinvestment plan, 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), the Company shall give prompt written notice to all Holders of
Registrable Securities
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of its intention to effect such a registration and, subject to Section 3(b) and
the other terms of this Agreement, shall include in such registration all
Registrable Securities that 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 by the Holders within 10 days after the
receipt of the Company's notice (each, a "Piggyback Registration"; together
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with a Demand Registration, a "Registration").
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(b) Priority on Piggyback Registrations. If a Piggyback Registration
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is an underwritten registration on behalf of the Company, 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, only as may be
permitted in the reasonable business judgment of the managing underwriters for
such registration:
(i) first, up to that number of securities the Company proposes
to sell;
(ii) second, up to that number of Registrable Securities
requested to be included in such registration by the Holders and that
number of securities requested to be included in such registration by any
other Person, 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 subject to the rights of such other Persons under agreements
existing as of the date hereof; and
(iii) third, up to that number of other securities requested to
be included in such registration.
The Holders of any Registrable Securities included in such a registration shall
execute an underwriting agreement and customary accompanying documents 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).
(d) Selection of Underwriters. The Company shall 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.
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4. Expenses of Registration. Except as otherwise provided herein, all
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Registration Expenses incurred in connection with registrations pursuant to
Sections 2 and 3 shall be borne by the Company and all Selling Expenses relating
to securities registered on behalf of the Holders of Registrable Securities
shall be borne by such Holders.
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, for its own account during the seven days prior
to and during the 90-day period beginning on the effective date of any
underwritten Registration (except (A) as part of such underwritten registration,
(B) pursuant to registration statements on Form S-4 or Form S-8 or any successor
form, (C) pursuant to a registration statement then in effect or (D) as required
under any existing contractual obligation of the Company), 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 Stock, or any
securities convertible into or exchangeable or exercisable for Common Stock, 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, in the event of a public offering by the Company of
Common Stock under a registration statement on Form ▇-▇, ▇-▇ or S-4, not to
effect any offer, sale, distribution or transfer, including a sale pursuant to
Rule 144 (or any similar provision then in effect) under the Securities Act
(except as part of such registration), beginning on the date of receipt of a
written notice from the Company setting forth its intention to effect such
registration and ending on the earlier of (i) 180 days from the date of receipt
of such written notice or (ii) 90 days from the effective date of such
Registration Statement.
6. Registration Procedures. Whenever the Company is under the obligation
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to register Registrable Securities hereunder, the Company will use all
reasonable efforts to effect the Registration and the sale of such Registrable
Securities, and pursuant thereto the Company will as expeditiously as possible:
(a) subject to Section 2(c) and 3(a) 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), 3(b) and 6(e) 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
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effective for, a period equal to the shorter of (i) 120 days 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, 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;
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(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 Stock 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 customary form and covering such matters of
the type customarily covered by cold comfort letters.
7. Obligations of Holders. Whenever the Holders of Registrable Securities
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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) In connection with any registration statement for
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a Registration in which a Holder of Registrable Securities is participating,
the Company agrees to indemnify, to the fullest extent permitted by applicable
law, each such 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
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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 such Claim arose out of (i)
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any untrue or alleged untrue statement of material fact contained, on the
effective date thereof, in any such 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 for a Registration 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
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by applicable law, 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 such registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto, (ii) any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements regarding Seller's Information therein not
misleading or (iii) any failure on the part of the Holder 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.
(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,
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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 (if any), 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 (if any), 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 (if any), 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 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 participate
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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
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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, and (c) EIS 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 such
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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 granted
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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 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 into
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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
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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 Agreement
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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 will
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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 two or
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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.
(g) Descriptive Headings. The descriptive headings of this Agreement are
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inserted for convenience only and do not constitute a part of this Agreement.
(h) Governing Law. All questions concerning the construction, validity and
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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 California State 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 delivered
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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:
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(i) if to the Company, to:
DepoMed, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Chief Executive Officer
Facsimile:
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇ White & ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) if to EIS, to:
Elan International 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
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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]
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IN WITNESS WHEREOF, the parties have executed this Registration
Rights Agreement as of the date first written above.
DEPOMED, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: President & CEO
ELAN INTERNATIONAL SERVICES, LTD.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇
President & CFO
[DepoMed Registration Rights Agreement]