EXHIBIT 10.4
EXECUTION VERSION
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is entered into
as of September 6, 2005 and effective upon the Closing of the Merger, by and
among EpiCept Corporation, a Delaware corporation (the "Corporation"), and the
persons and entities listed on Schedule A hereto (the "Investors").
WHEREAS, the Corporation desires to grant certain registration rights
to the Investors,
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth, the parties hereto agree to amend and restate
the First Amendment to read in its entirety as follows. Capitalized terms used
herein and not otherwise defined shall have the meanings given such terms in the
Agreement and Plan of Merger, dated September 6, 2005, among the Corporation,
Magazine Acquisition Corp. and Maxim Pharmaceuticals, Inc.
1. Definitions. As used in this Agreement, the following terms shall
have the following meanings:
(a) The term "1934 Act" shall mean the Securities Exchange Act of
1934, as amended.
(b) The term "Common Stock" shall mean the Corporation's Common
Stock, par value $.000l per share.
(c) The term "Holder" means any holder of outstanding Registrable
Securities.
(d) The terms "register," "registered," and "registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of
effectiveness of such registration statement.
(e) The term "Registrable Securities" means (a) all shares of Common
Stock now owned or acquired in the Merger by any Investor and (b) any Common
Stock issued in respect of the shares described in clause (a) upon any stock
split, stock dividend, recapitalization or other similar event.
(f) The term "SEC" means the Securities and Exchange Commission.
(g) The term "Securities Act" means the Securities Act of 1933, as
amended.
2. Request for Registration.
(a) Requests. If at any time after the 180th day following the
Effective Time, the Corporation shall receive a written request (specifying that
it is being made pursuant to this Section 2(a)) from one or more Holders that
hold, in the aggregate, at least twenty-five percent (25%) of the then
outstanding Registrable Securities, that the Corporation file a registration
statement under the Securities Act, or a similar document pursuant to any other
statute then in effect corresponding to the Securities Act, covering the
registration of at least the lesser of (x) at least twenty-five percent (25%) of
the then outstanding Registrable Securities or (y) the Registrable Securities
the expected price to the public of which equals or exceeds $15,000,000, then
the Corporation shall promptly notify all other Holders of such request and
shall use its best efforts to cause all Registrable Securities that Holders have
requested be registered to be registered under the Securities Act.
Notwithstanding the foregoing, (i) the Corporation shall not be
obligated to effect a registration pursuant to this Section 2(a) during the
period starting with the date sixty (60) days prior to the Corporation's
estimated date of filing of, and ending on a date six (6) months following the
effective date of, a registration statement pertaining to an underwritten public
offering of securities for the account of the Corporation; provided that the
Corporation is actively employing in good faith its best efforts to cause such
registration statement to become effective and that the Corporation's estimate
of the date of filing such registration statement is made in good faith; (ii)
the Corporation shall not be obligated to effect a registration pursuant to this
Section 2(a) within six (6) months after the effective date of a prior
registration under this Section 2(a); (iii) if the Corporation shall furnish to
the Holders a certificate signed by the President of the Corporation stating
that in the good faith judgment of the Board of Directors it would be seriously
detrimental to the Corporation or its shareholders for a registration statement
to be filed in the near future, then the Corporation's obligation to use its
best efforts to file a registration statement shall be deferred for a period not
to exceed three (3) months; and (iv) the Corporation may postpone a registration
pursuant to this Section 2(a) for such period of time as may be required to
permit the use of regular audited year-end financial statements with
supplemental short period figures for a period not exceeding six (6) months
unless the Holders agree to bear the costs of any special audit.
The Corporation shall not be obligated to effect more than two (2)
registrations on behalf of the Holders pursuant to this Section 2(a).
3. Piggyback Rights.
(a) Corporation Registration. Subject to Section 8 of this Agreement,
if at any time the Corporation proposes to register any of its Common Stock
under the Securities Act in connection with the public offering of such
securities for its own account or for the accounts of shareholders other than
Holders, solely for cash on a form that would also permit the registration of
the Registrable Securities, the Corporation shall, each such time, promptly give
each Holder written notice of such determination. Upon the written request of
any Holder given within thirty (30) days after giving of any such notice by the
Corporation, the Corporation shall, subject to the limitations set forth in
Section 8(a), use its best efforts to cause to be registered under the
Securities Act all of the Registrable Securities that each such Holder has
requested be registered.
4. Obligations of the Corporation. Whenever required under Section 2,
3 or 11 of this Agreement to use its best efforts to effect the registration of
any Registrable Securities, the Corporation shall, as expeditiously as
reasonably possible:
(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best efforts to cause such
registration statement to become and remain effective until the distribution
thereof has been completed; provided, however, that in connection with any
proposed registration intended to permit an offering of any securities from time
to time (i.e., a so-called "shelf registration"), the Corporation shall in no
event be obligated to cause any such registration to remain effective for more
than one hundred eighty (180) days;
(b) Prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement;
(c) Furnish to the Holders such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as they may reasonably request in order
to facilitate the disposition of such Registrable Securities owned by them;
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(d) Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or "Blue Sky"
laws of such jurisdictions as shall be reasonably appropriate for the
distribution of the securities covered by the registration statement; provided
that the Corporation shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions, and further provided
that (anything in this Agreement to the contrary notwithstanding with respect to
the bearing of expenses) if any jurisdiction in which the securities shall be
qualified shall require that expenses incurred in connection with the
qualification of the securities in that jurisdiction be borne by selling
shareholders, then such expenses shall be payable by selling shareholders pro
rata, to the extent required by such jurisdiction;
(e) Provide a transfer agent for the Common Stock no later than the
effective date of the first registration of any Registrable Securities;
(f) Otherwise use its best efforts to comply with all applicable
rules and regulations of the SEC;
(g) Use its best efforts either (i) to cause all such Registrable
Securities to be listed on a national securities exchange (if such securities
are not already so listed) and on each additional national securities exchange
on which similar securities issued by the Corporation are then listed, if the
listing of such securities is then permitted under the rules of such exchange,
or (ii) to secure designation of all such Registrable Securities as a NASDAQ
"national market system security" within the meaning of Rule 11Aa2-1 of the SEC
or, failing that, to secure listing on NASDAQ for such Registrable Securities
and, without limiting the generality of the foregoing, to arrange for at least
two (2) market makers to register as such with respect to Registrable Securities
with the National Association of Securities Dealers;
(h) Enter into such customary agreements (including an underwriting
agreement in customary form) and take such other actions as the selling Holders
of Registrable Securities shall reasonably request in order to expedite or
facilitate the disposition of such Registrable Securities;
(i) Make available for inspection by any selling Holder of
Registrable Securities, by any underwriter participating in any disposition to
be effected pursuant to such registration statement and by any attorney,
accountant or other agent retained by any such selling Holder or any such
underwriter, all pertinent financial and other records and pertinent corporate
documents and properties of the Corporation, and cause all of the Corporation's
officers, directors and employees to supply all information reasonably requested
by any such selling Holder, underwriter, attorney, accountant or agent in
connection with such registration statement;
(j) Use every reasonable effort to prevent the issuance of any stop
order suspending the effectiveness of such registration statement or of any
order preventing or suspending the use of any preliminary prospectus and, if any
such order is issued, to obtain the lifting thereof at the earliest reasonable
time; and
(k) Make such representations and warranties to the selling Holders
of Registrable Securities and the underwriters as are customarily made by
issuers to selling stockholders and underwriters, as the case may be, in primary
underwritten public offerings.
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5. Furnish Information. It shall be a condition precedent to the
obligations of the Corporation to take any action pursuant to this Agreement
with respect to the registration of any Holder's Registrable Securities that
such Holder shall furnish to the Corporation such information regarding
themselves, the Registrable Securities held by them, and the intended method of
disposition of such securities, as the Corporation shall reasonably request and
as shall be required in connection with the action to be taken by the
Corporation.
6. Expenses of Demand Registration. All expenses incurred in
connection with any registration pursuant to Section 2 (excluding underwriters'
discounts and commissions), including, without limitation, all registration and
qualification fees, printers' and accounting fees, fees and disbursements of
counsel for the Corporation, and the reasonable fees and disbursements of one
special counsel for the selling Holders, shall be borne by the Corporation.
7. Corporation Registration Expenses. All expenses (excluding
underwriters' discounts and commissions) incurred in connection with any
registration pursuant to Section 3, including, without limitation, any
additional registration and qualification fees and any additional fees and
disbursements of counsel to the Corporation that result from the inclusion of
securities held by the selling Holders in such registration and the reasonable
fees and disbursements of one special counsel for the selling Holders, shall be
borne by the Corporation; provided, however, that if the registration is
exclusively for the account of selling shareholders and does not include any
securities to be sold for the account of the Corporation, the selling Holders
shall bear their proportionate share of the expenses incurred in connection with
such registration (provided all shareholders registering shares thereunder bear
their proportionate share of such expenses), except expenses which the
Corporation would have incurred whether or not the securities held by the
selling Holders were included in such registration (including, without
limitation, the expense of preparing normal audited or unaudited financial
statements).
8. Underwriting Requirements.
(a) In connection with any offering under Section 3 involving an
underwriting of shares being issued by the Corporation, the Corporation shall
not be required to include any Holder's Registrable Securities in such
underwriting unless such Holder accepts the terms of the underwriting as agreed
upon between the Corporation and the underwriters selected by it, and then only
in such quantity as will not, in the reasonable opinion of the underwriters,
jeopardize the success of the offering by the Corporation. If the total amount
of securities that all Holders request to be included in an underwritten
offering under Section 3 exceeds the amount of securities that the underwriters
reasonably believe compatible with the success of the offering, no other
securities of any shareholder except Registrable Securities of Holders shall be
included in such offering unless all Registrable Securities which the Holders
have requested to be included are included, and the Corporation shall only be
required to include in the offering so many of the Registrable Securities of the
Holders as the underwriters reasonably believe will not jeopardize the success
of the offering (the Registrable Securities so included to be apportioned pro
rata among the selling Holders according to the total amount of Registrable
Securities owned by such selling Holders, or in such other proportions as shall
mutually be agreed to by such selling Holders).
(b) With respect to any underwriting of shares to be registered under
Section 2, or any underwriting of shares to be registered under Section 11, the
selling Holders who initiate the request for registration shall have the right
to designate the managing underwriter or underwriters, subject to the consent of
the Corporation. In connection with any underwritings of shares to be registered
under Section 3, the Corporation shall have the right to designate the managing
underwriter or underwriters, subject to the consent of the Holders of a majority
of the Registrable Securities participating in the underwriting. In any such
case, such consent shall not be unreasonably withheld or delayed.
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9. Delay of Registration. No Holder shall have any right to take any
action to restrain, enjoin, or otherwise delay any registration as the result of
any controversy that might arise with respect to the interpretation or
implementation of this Agreement.
10. Indemnification. In the event any Registrable Securities are
included in a registration statement under this Agreement:
(a) To the extent permitted by law, the Corporation will indemnify
and hold harmless each Holder requesting or joining in a registration, any
underwriter (as defined in the Securities Act) for it, and each person, if any,
who controls any such Holder or underwriter within the meaning of the Securities
Act, against any losses, claims, damages or liabilities, joint or several, to
which they may become subject under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based on any untrue or alleged untrue statement of any
material fact contained in such registration statement, including, without
limitation, any preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto, 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 to make the statements therein not misleading or
arise out of any violation by the Corporation of any rule or regulation
promulgated under the Securities Act applicable to the Corporation and relating
to action or inaction required of the Corporation in connection with any such
registration; and will reimburse each such Holder, such underwriter, or
controlling person for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability, or action, provided, however, that the indemnity agreement contained
in this Section 10(a) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement is effected without
the consent of the Corporation (which consent shall not be unreasonably withheld
or delayed) nor shall the Corporation be liable in any such case for any such
loss, claim, damage, liability or action to the extent that it arises out of or
is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in connection with such registration statement,
preliminary prospectus, final prospectus, or amendments or supplements thereto,
in reliance upon and in conformity with written information furnished expressly
for use in connection with such registration by any such Holder, underwriter or
controlling person.
(b) To the extent permitted by law, each Holder requesting or joining
in a registration will indemnify and hold harmless the Corporation, each of its
directors, each of its officers who has signed the registration statement, each
person, if any, who controls the Corporation within the meaning of the
Securities Act, and any underwriter for the Corporation (within the meaning of
the Securities Act) against any losses, claims, damages or liabilities to which
the Corporation or any such director, officer, controlling person or underwriter
may become subject, under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereto) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in such registration statement, including any
preliminary prospectus or final prospectus contained therein or any amendments
or supplements thereto, 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 to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in such registration
statement, preliminary prospectus or final prospectus, or amendments or
supplements thereto, in reliance upon and in conformity with written information
furnished by such Holder expressly for use in connection with such registration;
and will reimburse the Corporation or any such director, officer, controlling
person or underwriter for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the indemnity agreement contained
in this Section 10(b) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement is effected without
the consent of such Holder (which consent shall not be unreasonably withheld or
delayed) and provided further that no Holder shall have any liability under this
Section 10(b) in excess of the net proceeds after tax actually received by such
Holder in the relevant public offering.
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(c) Promptly after receipt by an indemnified party under this Section
10 of notice of the commencement of any action, such indemnified party will, if
a claim in respect thereof is to be made against any indemnifying party under
this Section 10, notify the indemnifying party in writing of the commencement
thereof and the indemnifying party shall have the right to participate in, and,
to the extent the indemnifying party so desires, jointly with any other
indemnifying party similarly noticed, to assume the defense thereof with counsel
mutually satisfactory to the parties. The failure to notify an indemnifying
party promptly of the commencement of any such action, if prejudicial to his
ability to defend such action, shall relieve such indemnifying party of any
liability to the indemnified party under this Section 10, but the omission so to
notify the indemnifying party will not relieve him of any liability that he may
have to any indemnified party otherwise than under this Section 10.
(d) If the indemnification provided for in this Section 10 is
required by its terms but is for any reason held to be unavailable to or
otherwise insufficient to hold harmless an indemnified party under Section 10(a)
or 10(b) in respect of any losses, claims, damages, liabilities or expenses
referred to herein, then each applicable indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of any losses,
claims, damages, liabilities or expenses referred to herein (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Corporation and the Holders from the offering of securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Corporation
and the Holders in connection with the statements or omissions described in such
Section 10(a) or 10(b) which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The respective relative benefits received by the Corporation and the Holders
Founders shall be deemed to be in the same proportion as the total price paid to
the Corporation and the Holders, respectively, for the securities sold by them
in the offering. The relative fault of the Corporation and the Holders 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 Corporation or the
Holders and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount paid or
payable by a party as a result of the losses, claims, damages, liabilities and
expenses referred to above shall be deemed to include, subject to the
limitations set forth in this Section 10, any legal or other fees or expenses
reasonably incurred by such party in connection with investigating or defending
any action or claim. The provisions set forth in Section 10(c) with respect to
notice of commencement of any action shall apply if a claim for contribution is
to be made under this Section 10(d); provided, however, that no additional
notice shall be required with respect to any action for which notice has been
given under subsection (c) for purposes of indemnification. The Corporation and
the Holders agree that it would not be just and equitable if contribution
pursuant to this Section 10 were determined solely by pro rata allocation or by
any other method of allocation which does not take account of the equitable
considerations referred to in this paragraph. Notwithstanding the provisions of
this Section 10(d), no Holder shall be required to contribute an amount in
excess of the net proceeds after tax actually received by such Holder in the
relevant public offering. 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.
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11. Registrations on Form S-3.
(a) If (i) the Corporation shall receive a written request
(specifying that it is being made pursuant to this Section 11) from one or more
Holders that hold, in the aggregate, at least twenty-five percent (25%) of the
then outstanding Registrable Securities that the Corporation file a registration
statement on Form S-3 (or any successor form to Form S-3 regardless of its
designation) for a public offering of Registrable Securities the reasonably
anticipated aggregate price to the public of which would equal or exceed Two
Hundred Fifty Thousand Dollars ($250,000), and (ii) the Corporation is a
registrant entitled to use Form S-3 to register such shares, then the
Corporation shall use its best efforts to cause such shares to be registered on
Form S-3 (or any successor form to Form S-3).
(b) All expenses (excluding underwriters' discounts and commissions)
incurred in connection with the first two (2) registrations requested pursuant
to Section 11(a), including, without limitation, all registration,
qualification, printing, and accounting fees, and fees and disbursements of one
special counsel to the selling Holders and counsel to the Corporation, shall be
borne by the Corporation.
All such expenses for registrations pursuant to Section 11(a) after
the first two such registrations shall be borne by the Corporation, except that
the selling Holders shall pay all fees of their legal counsel, if any, in
connection therewith.
(c) The Holders' rights to registration under this Section 11 are in
addition to, and not in lieu of, their rights to registration under Sections 2
and 3 of this Agreement.
12. Limitation on Corporation Offerings. The Corporation shall not
register securities for sale for its own account (or, except as permitted by
Section 14, any securities other than Registrable Securities) in any
registration requested pursuant to Section 2 or 11 unless permitted to do so by
the written consent of the Holders of more than two-thirds (2/3) of the
Registrable Securities as to which registration has been requested. The
Corporation may not cause any other registration of securities for its own
account (other than a registration effected solely to implement an employee
benefit plan) which would become effective less than six (6) months after the
effective date of any registration requested pursuant to Section 2 or 11 to be
initiated after receiving such request.
13. Reports Under the 1934 Act. With a view to making available to
the Holders the benefits of Rule 144 promulgated under the Securities Act and
any other rule or regulation of the SEC that may at any time permit a Holder to
sell securities of the Corporation to the public without registration, the
Corporation agrees to use its best efforts to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144, at all times subsequent to ninety (90) days
after the effective date of the first registration statement covering an
underwritten public offering filed by the Corporation;
(b) file with the SEC in a timely manner all reports and other
documents required of the Corporation under the Securities Act and the 1934 Act;
and
(c) furnish to any Holder forthwith upon request a written statement
by the Corporation that it has complied with the reporting requirements of Rule
144 (at any time after ninety (90) days after the effective date of said first
registration statement filed by the Corporation), and of the Securities Act and
the 1934 Act (at any time after it has become subject to such reporting
requirements), a copy of the most recent annual or quarterly report of the
Corporation, and such other reports and documents so filed by the Corporation as
may be reasonably requested in availing any such holder to take advantage of any
rule or regulation of the SEC permitting the selling of any such securities
without registration.
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14. Reserved.
15. Transfer of Registration Rights. The registration rights of any
Holder (and of any permitted transferee of any Holder or its permitted
transferees) under this Agreement with respect to any Registrable Securities may
be transferred to any Affiliate of such Holder or such permitted transferee, or
to any transferee who acquires (otherwise than in a registered public offering)
at least five percent (5%) of the Registrable Securities, held by such Holder as
of the date hereof; provided, however, that the Corporation is given written
notice by the Holder at the time of such transfer stating the name and address
of the transferee and identifying the securities with respect to which the
rights under this Agreement are being assigned. For such purpose, an "Affiliate"
of any Holder (or any such transferee) means any general or limited partner of
any Holder (or transferee) that is a partnership, or any person or entity that,
directly or indirectly, through one or more intermediaries, controls, or is
controlled by, or is under common control with, such Holder or transferee.
16. Mergers, Etc. The Corporation shall not, directly or indirectly,
enter into any merger, consolidation or reorganization in which the Corporation
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 Corporation under this Agreement, and for that
purpose references hereunder to "Registrable Securities" shall be deemed to be
references to the securities which the Holders would be entitled to receive in
exchange for Registrable Securities under any such merger, consolidation or
reorganization; provided, however, that the provisions of this Agreement shall
not apply in the event of any merger, consolidation or reorganization in which
the Corporation is not the surviving corporation if the Holders of Registrable
Securities are entitled to receive in exchange therefor (i) cash, or (ii)
securities of the acquiring corporation which may be immediately sold to the
public without registration under the Securities Act.
17. Stand-Off Agreement. Each Holder, if requested by the Corporation
and the managing underwriter of an offering by the Corporation of Common Stock
or other securities of the Corporation pursuant to a registration statement
under the Securities Act, shall agree not to sell publicly or otherwise transfer
or dispose of any Registrable Securities or other securities of the Corporation
held by such Holder for a specified period of time (not to exceed 180 days)
following the effective date of such registration statement; provided, that:
(a) such agreement shall apply only to the first registration
statement covering Common Stock or other securities to be sold on the
Corporation's behalf to the public in an underwritten offering; and
(b) all persons who hold shares of Common Stock, or securities
convertible into or exchangeable or exercisable for shares of Common Stock,
which in the aggregate represent one percent (1%) or more of the shares of
Common Stock then outstanding, and all officers and directors of the
Corporation, enter into agreements in the same terms.
The covenant contained in this Section 17 is in addition to any
market stand-off covenant contained in any other agreement between the
Corporation and any Holder.
18. Notices. All notices, requests, consents and other communications
hereunder ("Notices") to any party shall be contained in a written instrument
addressed to such party at the address set forth below or such other address as
may hereafter be designated in writing by the addressee to the addressor listing
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all parties and shall be deemed given (a) when delivered in person or duly sent
by fax showing confirmation of receipt, (b) three days after being duly sent by
first class mail postage prepaid (other than in the case of Notices to or from
any non-U.S. resident, which Notices must be sent in the manner specified in
clause (a) or (c)), or (c) two days after being duly sent by DHL, Federal
Express or other recognized express international courier service:
(a) if to the Corporation, to:
EpiCept Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Weil, Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to the Holders, to their respective addresses set forth on the
signature pages hereof.
19. Miscellaneous.
(a) This Agreement states the entire agreement of the parties
concerning the subject matter hereof, and supersedes all prior agreements,
written or oral, between or among them concerning such subject matter, including
the Second Amended and Restated Registration Rights Agreement, dated as of March
3, 2005, as amended to date.
(b) This Agreement may be amended, and compliance with any provision
of this Agreement may be omitted or waived, only by the written agreement of the
Corporation and the holders of a majority of the Registrable Securities.
(c) This Agreement shall be governed by, and construed and enforced
in accordance with, the substantive laws of the State of Delaware, without
regard to its principles of conflicts of laws.
(d) This Agreement may be executed in any number of counterparts,
each such counterpart shall be deemed to be an original instrument, and all such
counterparts together shall constitute but one agreement. Any such counterpart
may contain one or more signature pages.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the Investors and the Corporation have executed
this Registration Rights Agreement as of the date first written above.
EPICEPT CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Executive Officer
Address: TVM III LIMITED PARTNERSHIP
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c/o Techno Venture Management By: TVM Techno Venture Management No.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ III Limited Partnership, its General
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Partner
By: TVM Management Corporation, its
General Partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
Address:
------- /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
Address: TVM IV GMBH & CO. KG
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c/o Techno Venture Management By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ -------------------------------------
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Limited Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Signatory
Address: PRIVATE EQUITY DIRECT FINANCE
-------
One Capital Place By: /s/ ▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇ GT ------------------------------------
Grand Cayman Name: ▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Cayman Islands Title: Directors
Address: THE MERLIN BIOSCIENCES FUND L.P.
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c/o Merlin Biosciences Limited By: Merlin General Partner II Limited, its
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ General Partner
St. James's
London By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ --------------------------------------
United Kingdom Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
Address: THE MERLIN BIOSCIENCES FUND GBR
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c/o Merlin Biosciences Limited By: Merlin General Partner II Limited, its
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ General Partner
St. James's
London By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ --------------------------------------
United Kingdom Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
Address: ▇▇▇▇▇▇▇ OPPORTUNITY FUND, L.P.
------- By: SOF Management, LLC
c/o Sanders ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
3100 Chase Tower Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Title: Chief Investment Officer
Address: ▇▇▇▇▇▇▇ OPPORTUNITY FUND (INSTITUTIONAL), L.P.
------- By: SOF Management, LLC
c/o Sanders ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
3100 Chase Tower --------------------------------------
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Investment Officer
Schedule A
Investors
---------
TVM III Limited Partnership
TVM IV GmbH & Co. KG
Private Equity Direct Finance
Merlin General Partner II Limited (in its capacities as general partner of The
Merlin Biosciences Fund L.P. and as managing partner of The Merlin Biosciences
Fund GbR)
▇▇▇▇▇▇▇ Opportunity Fund ▇.▇.
▇▇▇▇▇▇▇ Opportunity Fund (Institutional) L.P.
▇▇▇▇ ▇. ▇▇▇▇▇▇