Exhibit 10.2
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REGISTRATION RIGHTS AGREEMENT
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This Agreement dated as of January 19, 1999 is entered into by and
among Diatide, Inc., a Delaware corporation (the "Company"), and the
Stockholders identified on Schedule I hereto (the "Stockholders").
In consideration of the mutual promises and covenants contained in
this Agreement, the Company and the Stockholders agree as follows:
1. Certain Definitions. As used in this Agreement, the following
terms shall have the following respective meanings:
"Chase Registrable Shares" means Stockholder Registrable Shares
(as such term is defined in the Chase Registration Rights Agreement).
"Chase Registration Rights Agreement" means the Registration
Rights Agreement dated as of September 23, 1997 by and among the Company and the
Stockholders (as defined therein), as amended from time to time.
"Commission" means the Securities and Exchange Commission, or
any other Federal agency at the time administering the Securities Act and the
Exchange Act.
"Common Stock" means the common stock, $.001 par value per
share, of the Company.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any similar Federal statute, and the rules and regulations of the
Commission issued under such Act, as they each may, from time to time, be in
effect.
"Other Registrable Shares" means at any time all shares of
Common Stock (other than Stockholder Registrable Shares and Chase Registrable
Shares) (i) currently or hereafter issued by the Company with respect to which
the holders thereof have the right to require the Company to register such
shares pursuant to the Securities Act; (ii) which would otherwise be Stockholder
Registrable Shares but for the second to last sentence under the definition of
Stockholder Registrable Shares; (iii) which would otherwise be Chase Registrable
Shares but for the second to last sentence under the definition of Stockholder
Registrable Shares in the Chase Registration Rights Agreement and (iv) any other
shares of Common Stock issued in respect of the shares described in the
preceding clauses (i), (ii) and (iii) (because of stock-splits, stock dividends,
reclassifications, recapitalizations, or similar events); provided, however,
that shares of Common Stock shall cease to be Other Registrable Shares (i) upon
any sale pursuant to a Registration Statement or Rule 144 under the Securities
Act or (ii) with respect to shares which would be Stockholder Registrable Shares
but for the second to last sentence under the definition of
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Stockholder Registrable Shares, upon any sale or transfer in any manner to a
person or entity which, by virtue of Section 13 of this Agreement, is not
entitled to the rights provided by this Agreement.
"Registrable Shares" means at any time Stockholder Registrable
Shares, Chase Registrable Shares and Other Registrable Shares.
"Registration Expenses" means the expenses described in Section
5.
"Registration Statement" means a registration statement filed by
the Company with the Commission for a public offering and sale of securities of
the Company (other than a registration statement on Form S-8 or Form S-4, or
their successors, or any other form for a limited purpose, or any registration
statement covering only securities proposed to be issued in exchange for
securities or assets of another corporation).
"Securities Act" means the Securities Act of 1933, as amended,
or any successor Federal statute, and the rules and regulations of the
Commission issued under such Act, as they each may, from time to time, be in
effect.
"Shares" means the shares of Series B Convertible Preferred
Stock, par value $.01 per share, as more fully defined in Section 2.1 of the
Securities Purchase Agreement dated as of January 19, 1999 by and among the
Company and the Stockholders.
"Stockholder Priority" shall mean at any time $6,000,000 less
any net proceeds received by or payable to the holders of the Stockholder
Registrable Shares or their respective predecessors in interest pursuant to (i)
sales of Stockholder Registrable Shares pursuant to any prior required
registration pursuant to Section 2 hereof or incidental registration pursuant to
Section 3 hereof, (ii) sales of Stockholder Registrable Shares pursuant to Rule
144 under the Securities Act, (iii) sales of Stockholder Registrable Shares to
an unaffiliated party, or (iv) any event which is treated as a liquidation of
the Company (or any successor) pursuant to the terms of the Certificate of
Designations for the Shares.
"Stockholder Registrable Shares" means (i) the shares of Common
Stock issued or issuable upon conversion or exchange of the Shares, (ii) the
shares of Common Stock issued or issuable upon the exercise of the Warrants to
purchase 123,795 shares of Common Stock (the "Warrant Shares") issued to the
Stockholders on January 19, 1999 (the "Warrants") and (iii) any other shares of
Common Stock issued in respect of the securities described in the preceding
clauses (i) and (ii) (because of stock splits, stock dividends,
reclassifications, recapitalizations, or similar events); provided, however,
that shares of Common Stock which are Stockholder Registrable
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Shares shall cease to be Stockholder Registrable Shares upon (i) any sale
pursuant to a Registration Statement or Rule 144 under the Securities Act, or
(ii) upon any sale in any manner to a person or entity which, by virtue of
Section 13 of this Agreement, is not entitled to the rights provided by this
Agreement. Notwithstanding the foregoing, on and after the time that the
Stockholder Priority is reduced to zero, all securities which are Stockholder
Registrable Shares shall cease to be Stockholder Registrable Shares and shall
thereafter be included in the definition of Other Registrable Shares. Wherever
reference is made in this Agreement to a request or consent of holders of a
certain percentage of Stockholder Registrable Shares, the determination of such
percentage shall include shares of Common Stock issuable upon conversion of the
Shares and upon exercise of the Warrants even if such conversion has not been
effected or such exercise has not been made.
"Stockholders" means the Stockholders and any persons or
entities to whom the rights granted under this Agreement are transferred by any
Stockholder, their successors or assigns pursuant to Section 13 hereof.
2. Required Registrations.
(a) At any time after January 19, 2000, a Stockholder or
Stockholders holding in the aggregate at least 51% of the Stockholder
Registrable Shares (determined without regard to the second to last sentence
under the definition of Stockholder Registrable Shares) may request, in writing,
that the Company effect the registration on Form S-1 or Form S-2 (or any
successor form) of Registrable Shares owned by such Stockholder or Stockholders
with an aggregate value of at least $4,000,000; provided, however, that no
Stockholder or Stockholders shall have the right to request a registration
pursuant to this Section 2(a) at any time the Company is eligible to file a
Registration Statement on Form S-3 (or any successor form) or any other Form
applicable to secondary offerings.
(b) At any time after the Company becomes eligible to file a
Registration Statement on Form S-3 (or any successor form relating to secondary
offerings), a Stockholder or Stockholders holding in the aggregate at least 51%
of the Stockholder Registrable Shares (determined without regard to the second
to last sentence under the definition of Stockholder Registrable Shares) may
request the Company, in writing, to effect the registration on Form S-3 (or such
successor form), of Registrable Shares held by such holders with an aggregate
value of at least $1,000,000.
(c) In the case of a registration requested pursuant to this
Section 2, if the Stockholders initiating the registration intend to distribute
the Registrable Shares by means of an underwriting, they shall so advise the
Company in their request. In the event such registration is underwritten, the
right of other
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Stockholders to participate shall be conditioned on such Stockholders'
participation in such underwriting.
(d) Upon receipt of any request for registration pursuant to
this Section 2, the Company shall promptly give written notice of such proposed
registration to all Stockholders. Such Stockholders shall have the right, by
giving written notice to the Company within 30 days after the Company provides
its notice, to elect to have included in such registration such of their
Registrable Shares as such Stockholders may request in such notice of election,
subject in the case of an underwriting to the approval of the underwriter
managing the offering as provided in Section 2(e) below and to the priorities
set forth in Section 2(g) below. The Company may also include in such
registration Registrable Shares requested to be included by other holders of
Registrable Shares, subject in the case of an underwriting to the approval of
the underwriter managing the offering as provided in Section 2(e) below and to
the priorities set forth in Section 2(g) below. Thereupon, the Company shall, as
expeditiously as possible, use its best efforts to effect the regis tration on
Form S-1 or Form S-2 (or any successor forms) in the case of a registration
requested pursuant to Section 2(a) above, or on Form S-3 (or such successor
form) in the case of a registration requested pursuant to Section 2(b) above, of
all Registrable Shares which the Company has been requested to register.
(e) Notwithstanding any other provision of this Section 2, if
the managing underwriter advises the Stockholders initiating a registration
pursuant to Section 2(c) in writing that marketing factors require a limitation
of the number of shares to be underwritten, then the Stockholders initiating the
registration shall so advise the Company and all other Stockholders holding
Registrable Shares which would otherwise be included in the underwriting and the
number of Registrable Shares that may be included in the underwriting shall be
allocated in the manner set forth in Section 2(g) below. If the managing
underwriter does not limit the number of Registrable Shares to be underwritten
subject to Section 2(g) below, the Company and other holders of Registrable
Shares may include Common Stock for their respective accounts in such
registration if the managing underwriter states that such inclusion would not
adversely affect the offering of Registrable Shares for any reason and if the
number of Registrable Shares held by the Stockholders which would otherwise have
been included in such registration and underwriting will not thereby be limited
or reduced.
(f) The Company shall not be required to effect more than one
registration pursuant to Section 2(a) above ("Demand Registration Statement")
but may be required to effect Demand Registration Statements pursuant to Section
2(b) above without limitation other than as set forth in Section 2(b). In
addition, the Company shall not be required to effect more than one registration
pursuant to this Section 2 during any six month period. For purposes of this
Section 2(f), a Registration Statement shall not be counted as a Demand
Registration Statement until
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such time as such Registration Statement has been declared effective by the
Commission and has remained effective for 120 days, or if sooner, until all the
Registrable Shares registered thereunder have been sold.
(g) The Company will include Common Stock in an underwritten
Demand Registration Statement required pursuant to Sections 2(a) or 2(b) above
as follows:
(i) First, pro rata among the Stockholders holding
Stockholder Registrable Shares who have requested to
have Stockholder Registrable Shares included in such
registration pursuant to Section 2 hereof, and the
holders of Chase Registrable Shares who have requested
to have Chase Registrable Shares included in such
registration (to the extent necessary to reduce the
Stockholder Priority (as defined in the Chase
Registration Rights Agreement) to zero), based upon the
number of Stockholder Registrable Shares owned by each
such Stockholder and the number of Chase Registrable
Shares owned by each such holder of Chase Registrable
Shares.
(ii) Second, pro rata among the other persons or entities
holding Other Registrable Shares based upon the number
of Other Registrable Shares held by such persons and
entities.
3. Incidental Registration.
(a) Whenever the Company proposes to file a Registration
Statement (other than pursuant to Section 2) at any time and from time to time,
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 intended method of disposition of such Registrable
Shares), the Company shall use its best efforts to cause all Registrable Shares
which the Company has been requested by such Stockholder or Stockholders to
register to be registered under the Securities Act to the extent necessary to
permit their sale or other disposition in accordance with the intended methods
of distribution specified in the request of such Stockholder or Stockholders;
provided that the Company shall have the right to postpone or withdraw any
registration effected pursuant to this Section 3 without obligation to any
Stockholder.
(b) In connection with any offering under this Section 3
involving an underwriting, the Company shall not be required to include any
Registrable Shares in
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such underwriting unless the holders thereof accept the terms of the
underwriting as agreed upon between the Company and/or the holders of
Registrable Shares who have registration rights similar to those set forth in
Section 2 hereof and who have initiated or are participating in the offering
pursuant to such rights (the "Initiating Stockholders") and the underwriters
selected by it, and then only in such quantity as will not, in the opinion of
the underwriters, jeopardize the success of the offering of securities proposed
to be offered and sold by the Company and/or the Initiating Stockholders. If in
the opinion of the managing underwriter the registration of all, or part of, the
Registrable Shares would materially and adversely affect such offering, then the
Company shall be required to include in the underwriting only that number of
Registrable Shares (as determined in accordance with the next sentence), if any,
which the managing underwriter believes may be sold without causing such adverse
effect. If the number of Registrable Shares to be included in the underwriting
in accordance with the foregoing is less than the total number of Registrable
Shares which the Stockholders have requested to be included, then
(i) the Stockholders who have requested registration shall
first be entitled to include all Registrable Shares
that they have requested to be included to the extent
necessary to reduce the Stockholder Priority to zero;
provided that such Registrable Shares shall be included
with such Registrable Shares as have been requested to
be included by the holders of Chase Registrable Shares
Chase Registration Rights Agreement) (but only to the
extent necessary to reduce the Stockholder Priority (as
defined in the Chase Registration Rights Agreement) to
zero), on a pro rata basis, based upon the number of
Stockholder Registrable Shares owned by each requesting
stockholder and the number of Chase Registrable Shares
owned by each requesting holder of Chase Registrable
Shares;
(ii) the party or parties initiating the registration (i.e.,
the Company or the Initiating Stockholders) shall then
be entitled to include all shares that they have
requested to be registered; and
(iii) the Stockholders who have requested registration and
other holders of Registrable Shares entitled to include
shares of Common Stock in such registration on a parity
with the Stockholders (other than the Stockholders who
shall be entitled to include the total number of shares
they have requested as provided in clause (i) and the
Initiating Stockholders with respect to the shares
included as provided in clause (ii)) shall participate
in the underwriting pro rata based upon their total
ownership of shares of Common Stock of the Company.
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4. Registration Procedures. If and whenever the Company is required
by the provisions of this Agreement to use its best efforts to effect the
registration of any of the Registrable Shares under the Securities Act, the
Company shall:
(a) 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 120 days from the
effective date or such lesser period until all such Shares are sold;
(b) 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 120 days from the effective date or
such lesser period until all the Registrable Shares are sold;
(c) as expeditiously as possible furnish to each selling
Stockholder such reasonable numbers of copies of the prospectus, including a
preliminary prospectus, in conformity with the requirements of the Securities
Act, and such other documents as the selling Stockholder may reasonably request
in order to facilitate the public sale or other disposition of the Registrable
Shares owned by the selling Stockholder;
(d) as expeditiously as possible use its best efforts to
register or qualify the Registrable Shares covered by the Registration Statement
under the securities or Blue Sky laws of such states as the selling Stockholders
shall reasonably request, and do any and all other acts and things that may be
necessary or desirable to enable the selling Stockholders to consummate the
public sale or other disposition in such states of the Registrable Shares owned
by the selling Stockholder; provided, however, that the Company shall not be
required in connection with this paragraph (d) to qualify as a foreign
corporation or execute a general consent to service of process in any
jurisdiction;
(e) as expeditiously as possible, cause all such Registrable
Shares to be listed on each securities exchange or quotation system on which
similar securities issued by the Corporation are then listed;
(f) promptly provide a transfer agent and registrar for all such
Registrable Shares not later than the effective date of such registration
statement;
(g) promptly make available for inspection by the sellers of
such Registrable Shares, any managing underwriter participating in any
disposition pursuant to such registration statement, and any attorney or
accountant or other agent retained by any such underwriter or selected by the
sellers of Registrable Shares, all financial and other records, pertinent
corporate documents and properties
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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;
(h) as expeditiously as possible, notify each seller of such
Registrable Shares, promptly after it shall receive notice thereof, of the time
when such registration statement has become effective or a supplement to any
prospectus forming a part of such registration statement has been filed; and
(i) as expeditiously as possible, notify each seller of such
Registrable Shares of any request by the Commission for the amending or
supplementing of such registration statement or prospectus or for additional
information.
If the Company has delivered preliminary or final prospectuses to the
selling Stockholders and after having done so the prospectus is amended to
comply with the requirements of the Securities Act, the Company shall promptly
notify the selling Stockholders and, if requested, the selling Stockholders
shall immediately cease making offers of Registrable Shares and return all
prospectuses to the Company. The Company shall promptly provide the selling
Stockholders with revised prospectuses and, following receipt of the revised
prospectuses, the selling Stockholders shall be free to resume making offers of
the Registrable Shares.
5. Allocation of Expenses. The Company will pay all Registration
Expenses for all registrations under Sections 2(a) and 2(b), and all
registrations under Section 3 of this Agreement; provided, however, that if a
registration is withdrawn at the request of the Stockholders requesting such
registration (other than as a result of information concerning the business or
financial condition of the Company which is made known to the Stockholders after
the date on which such registration was requested, which withdrawal is made
within 10 days after such information is made known to the Stockholders) and if
the requesting Stockholders elect not to have such registration counted as a
registration requested under, as the case may be, Sections 2(a) or 2(b), the
requesting Stockholders shall pay the Registration Expenses of such registration
pro rata in accordance with the number of their Registrable Shares included in
such registration. Such expenses shall be borne by the Stockholders on a pro
rata basis, based on the number of Registrable Shares included in such
registration by each such Stockholder. For purposes of this Section, the term
"Registration Expenses" shall mean all expenses incurred by the Company in
complying with this Agreement including, without limitation, all registration
and filing fees, exchange listing fees, printing expenses, fees and
disbursements of counsel for the Company, 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, selling commissions and the
fees and expenses of selling Stockholders' own counsel.
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6. Indemnification and Contribution. In the event of any registration
of any of the Registrable Shares under the Securities Act pursuant to this
Agreement, the Company will indemnify and hold harmless the Stockholder selling
such Registrable Shares, each underwriter of such Registrable Shares, and each
other person, if any, who controls such seller or underwriter within the meaning
of the Securities Act or the Exchange Act against any losses, claims, damages or
liabilities, joint or several, to which such seller, underwriter or controlling
person may become subject under the Securities Act, the Exchange Act, state
securities or Blue Sky laws or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in any Registration Statement under which such Registrable Shares were
registered under the Securities Act, any preliminary prospectus or final
prospectus contained in the Registration Statement, or any amendment or
supplement to such Registration Statement, or arise out of or are based upon the
omission or alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and the
Company will reimburse such seller, underwriter and each such controlling person
for any legal or any other expenses reasonably incurred by such seller,
underwriter or controlling person in connection with investigating or defending
any such loss, claim, damage, liability or action; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any untrue statement
or omission made in such Registration Statement, preliminary prospectus or
prospectus, or any such amendment or supplement, in reliance upon and in
conformity with information furnished to the Company, in writing, by or on
behalf of such seller, underwriter or controlling person specifically for use in
the preparation thereof.
In the event of any registration of any of the Registrable Shares
under the Securities Act pursuant to this Agreement, each Stockholder selling
Registrable Shares, severally and not jointly, will indemnify and hold harmless
the Company, each of its directors and officers and each underwriter (if any)
and each person, if any, who controls the Company or any such underwriter within
the meaning of the Securities Act or the Exchange Act, against any losses,
claims, damages or liabilities, joint or several, to which the Company, such
directors and officers, underwriter or controlling person may become subject
under the Securities Act, Exchange Act, state securities or Blue Sky laws or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement
under which such Registrable Shares were registered under the Securities Act,
any preliminary prospectus or final prospectus contained in the Registration
Statement, or any amendment or supplement to the Registration Statement, or
arise out of or are based upon any omission or alleged omission to state a
material fact required to be stated therein or necessary to make the statements
therein not
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misleading, if the statement or omission was made in reliance upon and in
conformity with information furnished in writing to the Company by or on behalf
of such seller, specifically for use in connection with the preparation of such
Registration Statement, prospectus, amendment or supplement; provided, however,
that the obligations of a Stockholder hereunder shall be limited to an amount
equal to the proceeds to such Stockholder of Registrable Shares sold as
contemplated herein.
Each party entitled to indemnification under this Section 6 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom; provided, that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not be unreasonably
withheld); and, provided, further, that the failure of any Indemnified Party to
give notice as provided herein shall not relieve the Indemnifying Party of its
obligations under this Agreement except to the extent that the Indemnifying
Party is adversely affected by such failure. The Indemnified Party may
participate in such defense at such party's expense; provided, however, that the
Indemnifying Party shall pay such expense if representation of such Indemnified
Party by the counsel retained by the Indemnifying Party would be inappropriate
due to actual or potential differing interests between the Indemnified Party and
any other party represented by such counsel in such proceeding; provided further
that in no event shall the Indemnifying Party be required to pay the expenses of
more than one law firm per jurisdiction as counsel for the Indemnified Party.
The Indemnifying Party also shall be responsible for the expenses of such
defense if the Indemnifying Party does not elect to assume such defense. No
Indemnifying Party, in the defense of any such claim or litigation shall, except
with the consent 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 such Indemnified Party of a
release from all liability in respect of such claim or litigation, and no
Indemnified Party shall consent to entry of any judgment or settle such claim or
litigation without the prior written consent of the Indemnifying Party, which
consent shall not be unreasonably withheld.
In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section 6 is due
in accordance with its terms but for any reason is held to be unavailable to an
Indemnified Party in respect to any losses, claims, damages and liabilities
referred to herein, then the Indemnifying Party shall, in lieu of indemnifying
such Indemnified Party, contribute to the amount paid or payable by such
Indemnified Party as a result of such losses, claims, damages or liabilities to
which such party may be subject in such proportion as is appropriate to reflect
the relative fault of the Company on the one hand and the Stockholders on the
other in connection with the statements or omissions which
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resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative fault of the Company and the
Stockholders shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of material fact related to information
supplied by the Company or the Stockholders and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Stockholders agree that it would not
be just and equitable if contribution pursuant to this Section 6 were determined
by pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph of Section 6, in no case shall any one Stockholder
be liable or responsible for any amount in excess of the net proceeds received
by such Stockholder from the offering of Registrable Shares; provided, however,
that no person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. Any party
entitled to contribution will, promptly after receipt of notice of commencement
of any action, suit or proceeding against such party in respect of which a claim
for contribution may be made against another party or parties under this
Section, notify such party or parties from whom contribution may be sought, but
the omission so to notify such party or parties from whom contribution may be
sought shall not relieve such party from any other obligation it or they may
have thereunder or otherwise under this Section. No party shall be liable for
contribution with respect to any action, suit, proceeding or claim settled
without its written consent.
7. Indemnification with Respect to Underwritten Offering. In the
event that Registrable Shares are sold pursuant to a Registration Statement in
an underwritten offering pursuant to Section 2(c), the Company agrees to (a)
enter into an underwriting agreement containing customary representations and
warranties with respect to the business and operations of an issuer of the
securities being registered and customary covenants and agreements to be
performed by such issuer, including without limitation customary provisions with
respect to indemnification by the Company of the underwriters of such offering;
(b) engage reputable legal counsel to render customary opinions and advice with
respect to the Registration Statement and (c) engage a nationally recognized
public accounting firm to issue customary "cold comfort letters" and advice with
respect to the Registration Statement.
8. Information by Holder. Each Stockholder holding 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 reasonably request in writing and as shall be required in connection
with any registration, qualification or compliance referred to in this
Agreement. In addition, each person that is, becomes or was a Stockholder at any
time under this Agreement, shall promptly furnish to the Company upon request,
information relating to such
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Stockholder's and it's affiliates holdings of Company securities, including,
without limitation, the number of shares owned by such Stockholder and its
affiliates, the date of such holdings, the date and number of shares transferred
or sold at any time and the name of the transferee, and the purchase price (or
net consideration, if applicable) received by such Stockholder upon the transfer
of any Company security.
9. Limitations on Registration Rights.
(a) Notwithstanding the provisions of Section 2, the Company may
by written notice to the Stockholders (x) delay filing a Demand Registration
Statement requested by a Stockholder (a "Delayed Demand Registration Statement")
or (y) require that the Stockholders immediately cease sales of shares under any
effective Registration Statement ("Suspended Registration Statement"), in any
period during which the Company is engaged in (i) a registered public offering
of the Company, or (ii) any activity or transaction or preparations or
negotiations for any activity or transaction ("Company Activity") that the
Company desires to keep confidential for business reasons, if the Company
determines in good faith that the public disclosure requirements imposed on the
Company under the Securities Act in connection with any such Registration
Statement would require disclosure of the Company Activity; provided, that, (i)
in the aggregate, all such delays of filing Delayed Demand Registration
Statements and/or cessations of sales under Suspended Registration Statements
shall not exceed 150 days in any 12-month period and (ii) the Company shall
cause any suspended Registration Statement to remain effective for one
additional day for each day, or any portion of a day, that the Stockholders were
required to cease sales of shares thereunder.
(b) If the Company requires the Stockholders to cease sales of
shares pursuant to Section 9(a) above, the Company shall, as promptly as
practicable following the termination of the circumstance which entitled the
Company to do so, give written notice to the Stockholders that such circumstance
has terminated and that they may resume sales pursuant to the Suspended
Registration Statement. If the prospectus included in such Suspended
Registration Statement has been amended to comply with the requirements of the
Securities Act, the Company shall enclose such revised prospectus with the
notice to Stockholders given pursuant to this Section 9(b), and the Stockholders
shall make no offers or sales of shares pursuant to such Suspended Registration
Statement other than by means of such revised prospectus.
10. "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 (except
shares permitted to be sold pursuant to Section 2 or 3 of this Agreement) for a
specified period of time (not to exceed 90 days) following the effective date of
a Registration Statement pursuant to which such Stockholder or an affiliate
thereof has registered shares ("Stand-Off
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Agreement"). 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. Nothing in this Section 10 shall prohibit
transfers to affiliates pursuant to Section 13 hereof.
11. Rule 144 Requirements. The Company agrees to:
(a) make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act;
(b) use its best efforts to file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act; and
(c) furnish to any holder of Registrable Shares upon request a
written statement by the Company as to its compliance with the reporting
requirements of said Rule 144, and of the Securities Act and the Exchange Act, a
copy of the most recent annual or quarterly report of the Company, and such
other reports and documents of the Company as such holder may reasonably request
to avail itself of any similar rule or regulation of the Commission allowing it
to sell any such securities without registration.
12. Mergers, Etc. The Company shall not, directly or indirectly,
enter into any merger, consolidation or reorganization in which the Company
shall not be the surviving corporation unless the proposed surviving corporation
shall, prior to such merger, consolidation or reorganization, agree in writing
to assume the obligations of the Company under this Agreement, and for that
purpose references hereunder to "Registrable Shares" shall be deemed to be
references to the securities which the Stockholders would be entitled to receive
in exchange for Registrable Shares under any such merger, consolidation or
reorganization; provided, however, that the provisions of this Section 12 shall
not apply in the event of any merger, consolidation or reorganization in which
the Company is not the surviving corporation if all Stockholders are entitled to
receive in exchange for their Registrable Shares consideration consisting solely
of (i) cash, (ii) securities of the acquiring corporation which may be
immediately sold to the public without registration under the Securities Act, or
(iii) securities of the acquiring corporation which the acquiring corporation
has agreed to register within 90 days of completion of the transaction for
resale to the public pursuant to the Securities Act.
13. Transfers of Certain Rights.
(a) This Agreement, and the rights and obligations of each
Stockholder hereunder, may be assigned by such Stockholder to another
Stockholder, to any affiliate of such Stockholder or to any person or entity
acquiring at least
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175,000 Stockholder Registrable Shares (determined without regard to the second
to last sentence under the definition of the Stockholder Registrable Shares)
(such number being subject to adjustment for any stock dividend, stock split,
subdivision, combination or other recapitalization of the Common Stock of the
Company); provided, however, that the transferee provides written notice of such
assignment to the Company stating its name and address and identifying the
securities with respect to which such rights are being assigned; and provided
further, that the Company receives the written instrument provided in
subparagraph (b) below. Any transferee to whom a transfer is made in accordance
with the immediately preceding sentence shall be deemed a Stockholder for
purposes of this Agreement.
(b) Any transferee (other than a Stockholder) to whom rights
hereunder are transferred shall, as a condition to such transfer, deliver to the
Company a written instrument by which such transferee agrees to be bound by the
obligations imposed upon Stockholders under this Agreement to the same extent as
if such transferee were a party thereto.
(c) A transferee to whom rights are transferred pursuant to this
Section 13 may not again transfer such rights to any other person or entity,
other than as provided in this Section 13.
14. General.
(a) Notices. All notices, requests, consents, and other
communications under this Agreement shall be in writing and shall be delivered
by hand, sent by a reputable overnight business courier or mailed by first class
certified or registered mail, return receipt requested, postage prepaid:
If to the Company, at Nine ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: President, or at such other address or addresses as may have
been furnished in writing by the Company to the Stockholders, with a copy to
▇▇▇▇ and ▇▇▇▇ LLP, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇▇▇ ▇. Carp, Esq.
If to the Stockholders, to their respective addresses set forth on
Schedule I hereto, or at such other address or addresses as may have been
furnished to the Company in writing by such Stockholders, with a copy to Bay
Venture Counsel, LLP, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Notices provided in accordance with this Section 14(a) shall be
deemed delivered (i) upon personal delivery if notice is hand delivered, (ii) on
the next business day if the notice is given by a reputable overnight business
courier and (iii)
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three business days after deposit in the United States mail if sent by United
States mail return receipt requested.
(b) Entire Agreement. This Agreement embodies the entire
agreement and understanding between the parties hereto with respect to the
subject matter hereof and supersedes all prior agreements and understandings
relating to such subject matter.
(c) No Third Party Beneficiary. This Agreement shall not confer
any rights or remedies on any person or entity other than the Company and the
Stockholders.
(d) 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 Stockholders
holding a majority of the Stockholder Registrable Shares (determined without
regard to the second to last sentence under the definition of Stockholder
Registrable Shares) held by all of the Stockholders; provided, that this
Agreement may be amended with the consent of the holders of less than all
Stockholder Registrable Shares only in a manner which affects all Stockholder
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.
(e) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
shall be one and the same document.
(f) Severability. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement.
(g) Governing Law: This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware.
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IN WITNESS WHEREOF, this Agreement has been executed on the day and
year first above written by the parties listed below:
DIATIDE, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President and Chief Executive Officer
ALTA BIOPHARMA PARTNERS, L.P.
By: ALTA BIOPHARMA MANAGEMENT, LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------------
Managing Director
ALTA EMBARCADERO BIOPHARMA
PARTNERS, LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------------
Member
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SCHEDULE I
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Investors
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Alta BioPharma Partners, L.P.
Alta Embarcadero BioPharma Partners, LLC