SECOND AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
This SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this
"AGREEMENT") is made as of the 10th day of March, 2000, by and between
GENAISSANCE PHAR`MACEUTICALS, INC., a Delaware corporation (the "CORPORATION"),
and each of the parties signatory hereto.
WHEREAS, the Corporation and parties identified on SCHEDULE I hereto
(each an "INVESTOR") are parties to a certain Stock Purchase Agreement, dated as
of December 29, 1998 (as amended from time to time, the "SERIES A/KBL STOCK
PURCHASE AGREEMENT"), pursuant to which the Investors have purchased shares of
the Series A Redeemable Convertible Preferred Stock, $.001 par value, of the
Corporation (the "SERIES A") or shares of the Series KBL Nonvoting Redeemable
Convertible Preferred Stock, $.001 par value, of the Corporation (the "SERIES
KBL"); and
WHEREAS, under certain circumstances, shares of the Series A may be
converted into shares of the Series A1 Redeemable Convertible Preferred Stock,
$.001 par value, of the Corporation (the "SERIES A1"), and shares of the Series
KBL may be converted into shares of the Series KBL1 Nonvoting Redeemable
Convertible Preferred Stock, $.001 par value, of the Corporation (the "SERIES
KBL1"); and
WHEREAS, the Corporation and the Investors are also parties to a
certain Amended and Restated Registration Rights Agreement, dated as of February
17, 2000 (the "FIRST AMENDED AND RESTATED SERIES A/KBL REGISTRATION RIGHTS
AGREEMENT"), which provides, among other things, for the registration of the
shares purchased under the Series A/KBL Stock Purchase Agreement; and
WHEREAS, concurrent with the effectiveness of this Agreement, the
Corporation will become a party to a certain Stock Purchase Agreement, dated as
of the date hereof (as amended from time to time, the "SERIES C STOCK PURCHASE
AGREEMENT") by and between the Corporation and certain purchasers of the
Corporation's Series C Convertible Preferred Stock, $.001 par value (the "SERIES
C"); and
WHEREAS, under certain circumstances, shares of the Series C may be
converted into shares of the Series C1 Convertible Preferred Stock, $.001 par
value, of the Corporation (the "SERIES C1"); and
WHEREAS, in connection with the Series C Stock Purchase Agreement, the
Corporation will also become a party to a certain Registration Rights Agreement,
dated as of the date hereof (as amended from time to time, the "SERIES C
REGISTRATION RIGHTS AGREEMENT") by and between the Corporation and the
purchasers of the Series C; and
WHEREAS, concurrent with the effectiveness of this Agreement, the
Corporation will also become a party to a certain Amended and Restated
Registration Rights Agreement, dated as of the date hereof (as amended from time
to time, the "AMENDED AND RESTATED SERIES B/KBH
REGISTRATION RIGHTS AGREEMENT") by and between the Corporation and certain
purchasers of the Corporation's Series B Convertible Preferred Stock, $.001 par
value (the "SERIES B") and Series KBH Nonvoting Convertible Preferred Stock,
$.001 par value (the "SERIES KBH"); and
WHEREAS, under certain circumstances, shares of the Series B may be
converted into shares of the Series B1 Convertible Preferred Stock, $.001 par
value, of the Corporation (the "SERIES B1"), and shares of the Series KBH may be
converted into shares of the Series KBH1 Nonvoting Convertible Preferred Stock,
$.001 par value, of the Corporation (the "SERIES KBH1"); and
WHEREAS, in connection with and so as to facilitate the consummation of
the transactions contemplated by the Series C Stock Purchase Agreement, the
Corporation and the other parties signatory hereto desire to amend and restate
the First Amended and Restated Series A/KBL Registration Rights Agreement in the
manner set forth herein.
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. DEFINITIONS. As used in this Agreement, the following terms
shall have the following respective meanings:
"COMMISSION" shall mean the Securities and Exchange Commission or any
other Federal agency at the time administering the Securities Act.
"COMMON STOCK" shall refer to both the voting common stock of the
Corporation, par value $.001 per share, and the nonvoting common stock of the
corporation, par value $.001 per share.
"OTHER SHARES" shall mean all shares of Common Stock other than (i)
Restricted Securities, (ii) Series B or Series C Common Stock and (iii) shares
to be issued by the Corporation proposed to be included in a registration of
shares of Common Stock of the Corporation under the Securities Act as described
in this Agreement.
"PERSON" shall mean and include an individual, a corporation, a
partnership, a trust, an unincorporated organization and a government or any
department, agency or political subdivision thereof.
"PREFERRED STOCK" shall mean and include all shares of the Series A,
the Series A1, the Series KBL and the Series KBL1, and shares of any additional
series or subseries of the Series A or the Series KBL created pursuant to
Section 9 of the Certificates of Designations, Preferences and other Special
Rights and Qualifications, Limitations and Restrictions of the Series A, Series
A1, Series KBL and Series KBL1 filed with the Delaware Secretary of the State
under Section 242 of the General Corporation Law of the State of Delaware.
"PRIOR WARRANTS" shall refer to (i) that certain Warrant, dated
December 20, 1996, in the name of Technology Investment Fund Incorporated, to
purchase an aggregate of 41,800 shares of Common Stock; (ii) that certain
Warrant, dated November 4, 1998, in the name of Finova
-2-
Technology Finance, to purchase 26,250 shares of Common Stock; and (iii) that
certain Warrant, dated April 30, 1999, in the name of TBCC Funding Trust II, to
purchase 50,000 shares of Common Stock.
"PRIOR WARRANT SHARES" shall refer to the shares of Common Stock that
are issuable upon exercise of the Prior Warrants.
"RESERVED SHARES" shall mean all shares of Common Stock of the
Corporation issuable or issued upon conversion of any of the shares of Preferred
Stock, and any shares of capital stock of the Corporation received in respect
thereof, whether by reason of a stock split, stock dividend, share
reclassification or other similar event.
"RESTRICTED SECURITIES" shall mean (i) the Preferred Stock, (ii) the
Reserved Shares and (iii) any shares of capital stock of the Corporation
received in respect thereof, whether by reason of a stock split or share
reclassification thereof, a stock dividend thereon or otherwise, in each case
which have not been sold to the public pursuant to (a) a registration under the
Securities Act or (b) Rule 144 (or any similar or successor rule) promulgated
under the Securities Act subsequent to the Corporation's initial public offering
of securities registered under the Securities Act.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended, or
any successor statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"SERIES B COMMON STOCK" shall mean shares of Common Stock of the
Corporation registerable pursuant to the Series B/KBH Amended and Restated
Registration Rights Agreement.
"SERIES C COMMON STOCK" shall mean shares of Common Stock of the
Corporation registerable pursuant to the Series C Registration Rights Agreement.
"TRANSFER" shall include any disposition of any Restricted Securities
or any interest therein which would constitute a sale within the meaning of the
Securities Act.
2. RESTRICTION ON TRANSFER. The Restricted Securities covered by
this Agreement shall not be transferable except upon the conditions specified in
this Agreement (which conditions are intended to ensure compliance with the
provisions of the Securities Act in respect of the transfer of such securities),
and the Amended and Restated Stockholders' Agreement, dated as of February 17,
2000 (as amended from time to time, the "STOCKHOLDERS' AGREEMENT"), among the
Corporation, the holders of its Series A, Series KBL, Series B, Series KBH, and
Series C, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇.
3. RESTRICTIVE LEGENDS. Each certificate for Restricted
Securities covered by this Agreement, and each certificate for any such
securities issued to subsequent transferees of any such certificate, shall
(unless otherwise permitted by the provisions of this Agreement) be stamped or
otherwise imprinted with legends in substantially the following form:
-3-
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN
ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933. THESE SECURITIES MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
EXEMPTION THEREFROM UNDER SAID ACT.
4. NOTICE OF TRANSFER. The holder of any Restricted Securities
covered by this Agreement, by acceptance of such Restricted Securities, agrees,
prior to any Transfer of any such Restricted Securities, to give written notice
to the Corporation of such holder's intention to effect such Transfer and agrees
to comply in all other respects with the provisions of this Agreement. Each such
notice shall describe the manner and circumstances of the proposed Transfer and
shall be accompanied by the written opinion, addressed to the Corporation, of
counsel for the holder of such securities (which counsel shall be acceptable to
the Corporation), as to whether, in the opinion of such counsel, such proposed
Transfer involves a transaction requiring registration of such Restricted
Securities under the Securities Act; PROVIDED, HOWEVER, that no such opinion
shall be required (i) in connection with a Transfer pursuant to Section 5 or 6
hereof; (ii) in connection with a transaction complying with the requirements of
Rule 144 or Rule 144A (in each case as amended from time to time) promulgated
under the Securities Act (or successor rules thereto); or (iii) in connection
with a Transfer (A) to an affiliate (as defined in the Securities Act) of the
transferor or (B) by a holder which is a partnership, limited liability company
or corporation, to a partner, member/manager or shareholder, respectively, of
such holder or a retired partner, member/manager or shareholder, respectively,
of such holder who retires after the date hereof, or the estate of any such
partner, member/manager or shareholder or retired partner, retired
member/manager or retired shareholder or to a trust for the benefit of its
partners, retired partners and/or former partners or member/managers, retired
member/managers and/or former member/managers or shareholders, retired
shareholders and/or former shareholders; PROVIDED FURTHER, HOWEVER, that in the
case of clause (iii) above, the transferee represents and warrants to the
Corporation in writing that it is acquiring such Restricted Securities for its
own account for investment and not with a view to the distribution thereof and
agrees in writing to be subject to the terms of this Agreement to the same
extent as if such transferee were an original signatory to this Agreement.
Upon receipt by the Corporation of any such notice and other documents,
the following provision shall apply:
(i) If the proposed transfer of such Restricted Securities may be
effected without registration of such Securities under the Securities
Act, the holder of such securities shall thereupon be entitled to
transfer such securities in accordance with the terms of the notice
delivered by it to the Corporation. Each certificate or other
instrument evidencing the securities issued upon the Transfer of any
such securities (and each certificate or other instrument evidencing
any untransferred balance of such securities) shall bear the legends
set forth in Section 3 unless (A) in such opinion of such counsel, if
required as set forth above, registration of future Transfer is not
required by the applicable provisions of the Securities Act or (B) the
Corporation shall have waived the requirement of such legends;
-4-
PROVIDED, HOWEVER, that such legend shall not be required (i) on any
certificate or other instrument evidencing the securities issued upon
such Transfer in the event such Transfer shall be made in compliance
with the requirements of Rule 144 (as amended from time to time)
promulgated under the Securities Act (or any similar or successor Rule
thereto), (ii) on any certificate or other instrument which is
immediately resalable under Rule 144(k) (or any similar or successor
Rule thereto), or (iii) in connection with a Transfer pursuant to
Section 5 or 6 hereof;
(ii) If the proposed transfer of such Restricted Securities may not
be effected without registration of such Securities under the
Securities Act, the holder of such Securities shall thereupon not be
entitled to transfer such securities until registration of the
Restricted Securities involved in the above-mentioned request has
become effective under the Securities Act.
5. REQUIRED REGISTRATION. If at any time, the Corporation shall
be requested by the holders of more than fifty percent (50%) of all Restricted
Securities at the time outstanding to effect the registration under the
Securities Act of the Reserved Shares, (assuming the conversion of all Preferred
Stock) the Corporation shall promptly give written notice of such proposed
registration to all holders of outstanding Restricted Securities, and thereupon
the Corporation shall promptly use its best efforts to effect the registration
under the Securities Act of the Reserved Shares which the Corporation has been
requested to register for disposition described in the request of said holder or
holders and in any response received within 45 days after the giving of the
written notice by the Corporation; PROVIDED, HOWEVER, that:
(i) The Corporation shall not be obligated to file and use its
best efforts to cause to become effective any registration statement on
or before the earlier of (a) February 1, 2001 or (b) 180 days after the
consummation of a public offering of shares of Common Stock for cash
registered under the Securities Act but excluding the registration of
equity securities issued or issuable pursuant to any employee stock
options, stock purchasers, stock bonus or similar plan or pursuant to a
merger, exchange, offer or transaction of the type specified in
paragraph (a) of Rule 145 under the Securities Act.
(ii) The Corporation shall not be obligated to file and use its
best efforts to cause to become effective more than two registration
statements in which Reserved Shares are registered under the Securities
Act pursuant to this Section 5; PROVIDED, HOWEVER, that if Form S-3 is
available to the Corporation for the registration of such Reserved
Shares, the holders of such Reserved Shares shall be entitled to an
unlimited number of such registrations on Form S-3 (provided that the
aggregate amount of the proceeds of any such S-3 offering is at least
$1,500,000); and
(iii) Anything contained herein to the contrary notwithstanding,
with respect to each registration requested pursuant to this Section 5,
the Corporation may include in such registration any authorized but
unissued shares of Common Stock for sale by the Corporation or any
issued and outstanding shares of Common Stock for sale by others;
PROVIDED, HOWEVER, that if the number of shares of Common Stock so
included pursuant
-5-
to this clause (iii) exceeds the number of shares registered by the
holder or holders of outstanding Reserved Shares requesting such
registration, then such registration shall be deemed to be a
registration in accordance with and pursuant to Section 6 of this
Agreement and shall not count against the limit in Section 5(ii) of
this Agreement; PROVIDED FURTHER, HOWEVER, that the inclusion of such
previously authorized but unissued shares by the Corporation or issued
and outstanding shares of Common Stock by others in such registration
shall not prevent the holders of outstanding Restricted Securities
requesting such registration from registering the entire number of
Reserved Shares requested by them and, in the event the registration
is, in whole or in part, an underwritten public offering and the
managing underwriter determines and advises in writing that the
inclusion of all Reserved Shares proposed to be included in such
registration and such previously authorized but unissued shares of
Common Stock by the Corporation and/or issued and outstanding shares of
Common Stock by persons other than the holders of Restricted Securities
proposed to be included in such registration would interfere with the
successful marketing (including pricing) of such securities, then such
other previously authorized but unissued shares of Common Stock
proposed to be included by the Corporation and issued and outstanding
shares of Common Stock proposed to be included by persons other than
the holders of Restricted Securities shall be reduced or excluded from
such registration (as the case may be); PROVIDED, HOWEVER, that this
Section shall not be construed so as to require the exclusion of any
Prior Warrant Shares from any offering if such exclusion would conflict
with the terms of the Prior Warrants and this Section shall not be
construed so as to require the exclusion of any Series B or Series C
Common Stock before the exclusion of the Reserved Shares. If the
inclusion of all such Reserved Shares would still nevertheless so
interfere with the successful marketing of such securities, then the
number of shares to be registered shall be reduced PRO RATA among the
holders of the Reserved Shares; PROVIDED, HOWEVER, that if the amount
of Reserved Shares is reduced by more than 25%, then such offering
shall not count against the limit in Section 5(ii).
6. INCIDENTAL REGISTRATION. If the Corporation at any time
proposes for any reason to register any of its securities under the Securities
Act (other than on Forms S-4 or S-8 or any similar or successor form), other
than pursuant to Section 5 hereof, it shall each such time promptly give written
notice to all holders of outstanding Restricted Securities of its intention so
to do, and, upon the written request, given within 30 days after receipt of any
such notice, of any holder or holders of the Restricted Securities then
outstanding to register any Reserved Shares (which request shall specify the
Reserved Shares intended to be sold or disposed of by such holders and shall
state the intended method of disposition of such Reserved Shares by the
prospective seller), the Corporation shall use its best efforts to cause all
such Reserved Shares to be registered under the Securities Act promptly upon
receipt of the written request of such holders for such registration, all to the
extent requisite to permit the sale or other disposition (in accordance with the
intended methods thereof, as aforesaid) by the prospective seller or sellers of
the Reserved Shares so registered. In the event that the proposed registration
by the Corporation is, in whole or in part, an underwritten public offering of
securities of the Corporation, any request pursuant to this Section 6 to
register Reserved Shares shall specify that such shares are to be included in
the underwriting (a) on the same terms and conditions as the shares of Common
-6-
Stock, if any, otherwise being sold through underwriters under such registration
or (b) on terms and conditions comparable to those normally applicable to
offerings of Common Stock in reasonably similar circumstances in the event that
no other shares of Common Stock are being sold through underwriters under such
registration; PROVIDED, HOWEVER, that if the managing underwriter determines and
advises in writing that the inclusion of all shares requested to be included in
such registration would interfere with the successful marketing (including
pricing) of such securities, then the number of Other Shares, shares of Series B
and Series C Common Stock and such Reserved Shares to be included in the
underwritten public offering shall be reduced, first among the holders of Other
Shares on a pro rata basis, second among the holders of the Reserved Shares on a
pro rata basis, and third among the holders of the Series B and Series C Common
Stock on a pro rata basis; PROVIDED, HOWEVER, that this Section shall not be
construed so as to require the exclusion of any Prior Warrant Shares from any
offering if such exclusion would conflict with the terms of the Prior Warrants.
Any Reserved Shares which are excluded from the underwritten public offering
(either because such shares were not requested by the holders thereof to be
included therein or which were excluded pursuant to the immediately preceding
sentence or in connection with a registration pursuant to Section 5 hereof)
shall be withheld from the market by the holder thereof for a period, not to
exceed 180 days, which the managing underwriter reasonably determines as
necessary in order to effect the underwritten public offering.
7. PREPARATION AND FILING. If and whenever the Corporation is
under an obligation pursuant to the provisions of this Agreement to use its best
efforts to effect the registration of any Reserved Shares, the Corporation
shall, as expeditiously as practicable:
(a) prepare and file with the Commission a registration statement
with respect to such Reserved Shares and use its best efforts to cause
such registration statement to become and remain effective for at least
180 days or until the selling stockholders have completed the
distribution described in the registration statement relating thereto,
whichever first occurs;
(b) prepare and file with the Commission such amendments and
supplements to such registration statements and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective for at least the time period set forth in
subsection (a) and to comply with the provisions of the Securities Act
with respect to the sale or other disposition of all Reserved Shares
covered by such registration statement;
(c) furnish to each selling stockholder such number of copies of a
summary prospectus or other prospectus, including a preliminary
prospectus, in conformity with the requirements of the Securities Act,
and such other documents as such seller may reasonably request in order
to facilitate the public sale or other disposition of such Reserved
Shares;
(d) use its best efforts to register or qualify the Reserved
Shares covered by such registration statement under the securities or
blue sky laws of such jurisdictions as each
-7-
such seller (or, in the case of an underwritten offering, the managing
underwriter) shall reasonably request (pROVIDED, HOWEVER, that the
Corporation shall not be required to consent to general service of
process for all purposes in any jurisdiction where it is not then
qualified, unless the Corporation is already subject to such service in
such jurisdiction and except as may be required by the Securities Act);
(e) notify each seller of Reserved Shares covered by such
registration statement, at any time when a prospectus relating to the
Reserved Shares covered by such registration statement is required to
be delivered under the Securities Act within the appropriate period
mentioned in clause (b) of this Section 7, of the happening of any
event as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a
material fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in
the light of the circumstances then existing, and at the request of
such seller, prepare and furnish to such seller a reasonable number of
copies of a supplement to or an amendment of such prospectus as may be
necessary so that, as thereafter delivered to the purchasers of such
shares, such prospectus shall not include an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in
the light of the circumstances then existing;
(f) at the request of any holder or holders requesting
registration of Reserved Shares pursuant to this Agreement, if such
Reserved Shares are being sold through underwriters, furnish to the
underwriters on the date that such Reserved Shares are delivered to the
underwriters for sale, or, if such Reserved Shares are not being sold
through underwriters, furnish to such holder or holders on the date
that the registration statement with respect to such Reserved Shares
becomes effective, (i) an opinion, dated such date, of the counsel
representing the Corporation for the purposes of such registration, in
form and substance as is customarily given to underwriters in an
underwritten public offering, addressed to the underwriters, if any,
and to the holder or holders making such request; and (ii) a letter
dated such date, from the independent certified public accountants of
the Corporation, in form and substance as is customarily given by
independent certified public accountants to underwriters in an
underwritten public offering, addressed to the underwriters, if any,
and to the holder or holders making such request;
(g) cause all securities registered under this Agreement to be
listed on each securities exchange on which similar securities issued
by the Corporation are then listed; and
(h) provide a transfer agent and registrar for all securities
registered under this Agreement and a cusip number not later than the
effective date of such registration.
8. EXPENSES. All expenses incurred by the Corporation in
complying with Section 7, including, without limitation, all registration and
filing fees (including all expenses incident to filing with the National
Association of Securities Dealers, Inc.), fees and expenses of complying with
securities and blue sky laws, printing expenses and fees and disbursements of
counsel including with respect to each registration effected pursuant to
Sections 5 and 6, reasonable fees
-8-
and disbursements of not more than one counsel for the sellers requesting
registration, and of the independent certified public accountants for the
Corporation (including the expense of any special audits in connection with any
such registration) shall be paid by the Corporation; PROVIDED, HOWEVER, that all
underwriting discounts and selling commissions applicable to the Reserved Shares
covered by such registration shall be borne by the seller or sellers, in
proportion to the number of Reserved Shares sold by such seller or sellers.
9. INDEMNIFICATION. In connection with any registration of any
Reserved Shares under the Securities Act pursuant to this Agreement, the
Corporation shall indemnify and hold harmless the seller of such Reserved
Shares, each underwriter, broker or any other person acting on behalf of such
seller and each other person, if any, who controls any of the foregoing persons
within the meaning of the Securities Act against any losses, claims, damages or
liabilities, joint or several (or actions in respect thereof), to which any of
the foregoing persons 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 upon an untrue statement or alleged untrue
statement of a material fact contained in the registration statement under which
such Reserved Shares were registered under the Securities Act, any preliminary
prospectus or final prospectus contained therein or otherwise filed with the
Commission, any amendment or supplement thereto or any document incident to
registration or qualification of any Reserved Shares, 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, with respect to any prospectus, necessary to make the statements
therein in light of the circumstances under which they were made not misleading,
or any violation by the Corporation of the Securities Act or state securities or
blue sky laws applicable to the Corporation and relating to action or inaction
required of the Corporation in connection with such registration or
qualification under such state securities or blue sky laws; and shall reimburse
such seller, such underwriter, such broker or such other person acting on behalf
of such seller and each such controlling person for any legal or other expenses
reasonably incurred by any of them in connection with investigating or defending
any such loss, claim, damage, liability or action; PROVIDED, HOWEVER, that the
Corporation shall not be liable in any such case to the extent that any such
loss, claim, damage, liability or action arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in said registration statement, preliminary prospectus, final prospectus,
amendment, supplement or document incident to registration or qualification of
any Reserved Shares in reliance upon and in conformity with written information
furnished to the Corporation by such seller or underwriter specifically for use
in the preparation thereof.
In connection with any registration of Reserved Shares under the
Securities Act pursuant to this Agreement, each seller of Reserved Shares shall
indemnify and hold harmless (in the same manner and to the same extent as set
forth in the preceding paragraph of this Section 9) the Corporation and each
officer and director of the Corporation who shall sign such registration
statement, each underwriter, broker or other person acting on behalf of such
seller, each person who controls any of the foregoing within the meaning of the
Securities Act and each other seller of Reserved Shares under such registration
statement with respect to any statement in or omission from such registration
statement, any preliminary prospectus or final prospectus contained therein or
otherwise filed with the commission, any amendment or supplement thereto
-9-
or any document incident to registration or qualification of any Reserved
Shares, if such statement or omission was made in reliance upon and in
conformity with written information furnished by such Seller to the Corporation
or such underwriter specifically for use in connection with the preparation of
such registration statement, preliminary prospectus, final prospectus,
amendment, supplement or document or any failure by such Seller to deliver any
registration statement, preliminary prospectus, final prospectus, amendment,
supplement or document; PROVIDED, HOWEVER, that the maximum amount of liability
in respect of such indemnification (including, but not limited to, attorneys'
fees and expenses) shall be limited, in the case of each seller of Reserved
Shares, to an amount equal to the LESSER of:
(A) the amount of the loss, claim, damage or liability for which
such seller is required hereunder to indemnify all parties, multiplied
by a fraction, the numerator of which is the public offering price of
the Reserved Shares sold by such seller under such registration
statement and the denominator of which is the total public offering
price of all securities sold under such registration statement; or
(B) the net proceeds actually received by such seller from the
sale of Reserved Shares under such registration statement.
Promptly after receipt by an indemnified party of notice of the
commencement of any action involving a claim referred to in the preceding
paragraphs of this Section 9, such indemnified party will, if a claim in respect
thereof is made against an indemnifying party, give written notice to the latter
of the commencement of such action. In case any such action is brought against
an indemnified party, the indemnifying party will be entitled to participate in
and to assume the defense thereof, jointly with any other indemnifying party
similarly notified to the extent that it may wish, with counsel reasonably
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be responsible for any legal or other
expenses subsequently incurred by the indemnified party in connection with the
defense thereof, PROVIDED, HOWEVER, that if any indemnified party shall have
reasonably concluded that there may be one or more legal or equitable defenses
available to such indemnified party which are additional to or conflict with
those available to the indemnifying party, or that such claim or litigation
involves or could have an effect upon matters beyond the scope of the indemnity
agreement provided in this Section 9, the indemnifying party shall not have the
right to assume the defense of such action on behalf of such indemnified party
and such indemnifying party shall reimburse such indemnified party and any
person controlling such indemnified party for that portion of the reasonable
fees and expenses of any counsel retained by the indemnified party which is
reasonably related to the matters covered by the indemnity agreement provided in
this Section 9.
10. REMOVAL OF LEGENDS; ETC. Notwithstanding the foregoing
provisions of this Agreement, the restrictions imposed by this Agreement upon
the transferability of any Restricted Securities covered by this Agreement shall
cease and terminate when any such Restricted Securities are sold or otherwise
disposed of in accordance with the intended method of disposition by the seller
or sellers thereof set forth in an effective registration statement or as
otherwise contemplated by Section 4 hereof. Whenever the restrictions imposed by
this
-10-
Agreement shall terminate, as herein provided, the holder of any Restricted
Securities covered by this Agreement shall be entitled to receive from the
Corporation, without expense, a new certificate not bearing the restrictive
legends set forth in Section 3 and not containing any other reference to the
restrictions imposed by this Agreement.
11. INFORMATION BY HOLDER. Each holder of Reserved Shares included
in any registration effected pursuant to this Agreement shall furnish to the
Corporation such information with respect to such holder and the proposed
distribution by such holder as the Corporation shall request in writing on a
timely basis and as shall, in the reasonable opinion of counsel for the
Corporation, be required by Federal or applicable state securities laws in
connection with such registration effected pursuant to this Agreement.
12. SECURITIES ACT REGISTRATION STATEMENTS. The Corporation shall
not file any registration statement (other than on Form ▇-▇, ▇▇▇▇ ▇-▇ or any
similar or successor form thereto) under the Securities Act covering any
securities unless it shall first have given each Investor written notice
thereof. The Corporation further covenants that each Investor shall have the
right, at any time when in its sole and exclusive judgment exercised in good
faith it is or might be deemed to be a controlling person of the Corporation, to
participate in the preparation of such registration statement and to require the
insertion therein of material furnished to the Corporation in writing, which in
such Investor's judgment or, if requested by the Corporation, in the opinion of
counsel to each Investor experienced in securities matters and acceptable to the
Corporation should be included.
13. SUCCESSORS AND ASSIGNS. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties (including transferees of any shares of
the Preferred Stock or any Common Stock of the Corporation issued upon
conversion thereof). Notwithstanding the foregoing, no registration rights shall
be exercisable with respect to any share after such share has been sold pursuant
to a registration statement declared effective under the Securities Act. Nothing
in this Agreement, express or implied, is intended to confer upon any party
other than the parties hereto or their respective successors and assigns any
rights, remedies, obligations, or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement.
14. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with (a) the laws of the State of Connecticut as applied
to agreements entered into and to be performed entirely therein and (b) the laws
of the State of Delaware applicable to corporations organized under the laws of
such state.
15. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
16. NOTICES. All notices required or permitted to be given under
this Agreement shall be in writing. Notices may be given by certified or
registered mail, postage paid with return receipt requested; by private courier,
prepaid and with required signature; or personally, with
-11-
signature required. All notices shall be deemed delivered upon actual receipt.
Notices shall be delivered as set forth below:
(i) if to the Corporation, to:
Genaissance Pharmaceuticals, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: President
with a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
One Commercial Plaza
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇, Esq.
(ii) if to any Investor, at their respective addresses set forth in
the Share Register (as such term is defined in the Series B/KBH Stock Purchase
Agreement) with copies as set forth in the Share Register.
Each party to this Agreement agrees to provide prompt written notice to
the Corporation (addressed as set forth above and to the attention of the
Secretary of the Corporation) in the event that there shall occur any change in
the information contained in the Share Register with respect to such party
(including any change relating to the name, address, fax number, copy
information and shareholdings of such party).
17. 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), only with the written consent of the Corporation and the holders
of a majority of the Restricted Securities covered by this Agreement; PROVIDED,
HOWEVER, that no amendment or waiver which adversely affects the interests of
one holder without a similar and proportionate effect on the interest of all
holders may be made without the consent of the holder whose interests are so
adversely affected. Any amendment or waiver effected in accordance with this
paragraph shall be binding upon each existing holder of such Restricted
Securities, each future holder of such securities, and the Corporation,
PROVIDED, HOWEVER, that such amendment or waiver shall affect all beneficiaries
of the rights granted hereunder equally.
18. OTHER AGREEMENTS. Other than the Series A/KBL Stock Purchase
Agreement and the Stockholders' Agreement, each party hereby represents that it
is not a party to any other agreement with any other party with respect to the
subject matter hereof and that this Agreement contains all of such party's
understanding and agreement concerning such subject matter. Further, the
Corporation hereby agrees that it will not enter into any other agreement with
respect to the subject matter hereof which grants rights superior to those
granted to the Investors herein
-12-
except for the Amended and Restated Series B/KBH Registration Rights Agreement
and the Series C Registration Rights Agreement.
-13-
SCHEDULE I
GENAISSANCE PHARMACEUTICALS, INC.
▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
CONNECTICUT INNOVATIONS, INCORPORATED
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
INTERNATIONAL BM BIOMEDICINE HOLDINGS, INC.
c/o International BioMedicine Management Partners, Inc.
House of Commerce
▇▇▇▇▇▇▇▇▇▇▇▇ ▇
▇.▇. ▇▇▇ ▇▇▇
▇▇-▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
KLEINWORT ▇▇▇▇▇▇ LIMITED
c/o Kleinwort ▇▇▇▇▇▇ Holdings, Inc.
▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
with a copy to:
Dresdner Kleinwort ▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
-14-
MERIFIN CAPITAL N.V.
c/o Finabel S.A.
254 Route deLausanne
CH - 1292 Geneva/Chambesy
Switzerland
with a copy to:
Merifin Europe S.A.
Avenue ▇▇▇▇▇ ▇▇▇▇▇▇ 6
Boite 8
▇-▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇
c/o OMRIX Biopharmaceuticals
▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇-▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
WINCHESTER CAPITAL HEALTHCARE PARTNERS LLC
▇▇ ▇▇▇ ▇▇▇▇▇▇ - ▇▇▇ ▇▇.
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-15-
IN WITNESS WHEREOF, the parties have caused this Second Amended and
Restated Registration Rights Agreement to be duly executed and delivered as
of the day and year first written above.
GENAISSANCE
PHARMACEUTICALS, INC.
By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------
Name:
Its:
IN WITNESS WHEREOF, the parties have caused this Second Amended and
Restated Registration Rights Agreement to be duly executed and delivered as of
the day and year first written above.
CONNECTICUT INNOVATIONS, INC.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Its: President and Executive Director
-16-
IN WITNESS WHEREOF, the parties have caused this Second Amended and
Restated Registration Rights Agreement to be duly executed and delivered as of
the day and year first written above.
INTERNATIONAL BM BIOMEDICINE
HOLDINGS INC.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------
Name: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
Its: Managing Partner
IN WITNESS WHEREOF, the parties have caused this Second Amended and
Restated Registration Rights Agreement to be duly executed and delivered as of
the day and year first written above.
KLEINWORT ▇▇▇▇▇▇ LIMITED
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Its: EVP, Director
By /s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Its:
By /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Its:
IN WITNESS WHEREOF, the parties have caused this Second Amended and
Restated Registration Rights Agreement to be duly executed and delivered as of
the day and year first written above.
MERIFIN CAPITAL N.V.
By: Finabel S.A., Managing Director
By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Its: Director
IN WITNESS WHEREOF, the parties have caused this Second Amended and
Restated Registration Rights Agreement to be duly executed and delivered as of
the day and year first written above.
WINCHESTER CAPITAL
HEALTHCARE PARTNERS LLC
By /s/ Caesar Anguillares
----------------------
Name: Caesar Anguillares
Its: President
IN WITNESS WHEREOF, the parties have caused this Second Amended and
Restated Registration Rights Agreement to be duly executed and delivered as of
the day and year first written above.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇
---------------
Name: ▇▇▇▇▇▇ ▇▇▇▇