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EXHIBIT 10.50
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ILEX ONCOLOGY INC.
THIRD AMENDED & RESTATED
REGISTRATION RIGHTS AGREEMENT
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TABLE OF CONTENTS
Section 1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2. Demand Registrations . . . . . . . . . . . . . . . . . . . . 4
Section 3. Incidental/Piggyback Registration . . . . . . . . . . . . . 5
Section 4. Limitations on Registration Rights . . . . . . . . . . . . . 5
Section 5. Registration Procedures. . . . . . . . . . . . . . . . . . . 7
Section 6. Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 7. Indemnification . . . . . . . . . . . . . . . . . . . . . . 11
Section 8. Marketing Restrictions . . . . . . . . . . . . . . . . . . . 15
Section 9. Sale of Preferred to Underwriter . . . . . . . . . . . . . . 19
Section 10. Lockup Agreement . . . . . . . . . . . . . . . . . . . . . . 20
Section 11. Compliance with Rule 144 . . . . . . . . . . . . . . . . . . 20
Section 12. Assignability of Registration Rights . . . . . . . . . . . . 21
Section 13. Designation of Underwriter . . . . . . . . . . . . . . . . . 21
Section 14. Holdback Agreements . . . . . . . . . . . . . . . . . . . . 21
Section 15. Participation in Underwritten Registrations . . . . . . . . 21
Section 16. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . 22
Severability . . . . . . . . . . . . . . . . . . . . . . . . 22
Successors and Assigns . . . . . . . . . . . . . . . . . . . 23
Notices . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Governing Law . . . . . . . . . . . . . . . . . . . . . . . 23
Counterparts . . . . . . . . . . . . . . . . . . . . . . . . 23
Headings . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Entire Agreement . . . . . . . . . . . . . . . . . . . . . . 23
Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Specific Performance . . . . . . . . . . . . . . . . . . . . 24
Grant of Registration Rights . . . . . . . . . . . . . . . . 24
Termination of Prior Agreement . . . . . . . . . . . . . . . ▇▇
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▇▇▇▇ ONCOLOGY, INC.
THIRD AMENDED & RESTATED REGISTRATION RIGHTS AGREEMENT
This Third Amended & Restated Registration Rights Agreement dated as of
December 11, 1996 (this "Agreement") is entered into among ILEX ONCOLOGY, INC.,
a Delaware corporation (the "Company"), and the other persons executing a
counterpart of this Agreement listed as Holders on the signature pages of this
Agreement (the "Holders").
PRELIMINARY STATEMENT
The Company has previously granted certain registration rights to the
holders of its Series A Preferred, Series B Preferred, Series C Preferred,
Series D Preferred and Common pursuant to the Prior Agreements (as defined in
SECTION 16.12).
The Company desires to finance the expansion of its pharmaceutical
business through the sale of the Series E Preferred described below.
Certain third parties have agreed to purchase the Series E Preferred on
the condition, among others, that the Company provide for certain registration
rights of the common stock underlying the Series E Preferred.
In connection with the sale of such Series E Preferred, the Company and
the holders of the Series A Preferred, the Series B Preferred, the Series C
Preferred, the Series D Preferred and Common have decided to amend and restate
the Prior Agreements by entering into this Agreement.
To clarify the registration rights of holders of Series A Preferred,
Series B Preferred, Series C Preferred, Series D Preferred and Common and to
induce those certain parties to purchase Series E Preferred and in
consideration of the mutual representations and agreements set forth in this
Agreement, the Company and the other Holders agree as follows:
AGREEMENT
SECTION 1. DEFINITIONS.
As used in this Agreement, the following terms shall have the following
meanings:
"Affiliate" means any entity controlling, controlled by or under common
control with a designated Person. For the purposes of this definition,
"control" shall have the meaning specified as of the date of this Agreement for
that word in Rule 405 promulgated by the Commission under the Securities Act.
"Board" means the Board of Directors of the Company.
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"Commission" means the Securities and Exchange Commission and any
successor thereto.
"Common" means the Company's Common Stock, $.01 par value per share.
"Conversion Stock" means Series A Conversion Stock, Series B Conversion
Stock, Series C Conversion Stock, Series D Conversion Stock and Series E
Conversion Stock.
"CTRC Registrable Stock" means any (a) shares of Series A Conversion
Stock and (b) any shares of Common or other securities issued in respect of the
securities referred to in clause (a) by way of any stock split, stock dividend,
recapitalization, reorganization, merger, consolidation, sale of assets or
similar event.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exercise Stock" means shares of Common issued or issuable upon exercise
of the Vector Warrants.
"Founders Common" means any shares of Common issued to ▇▇▇▇▇▇▇ ▇. Love,
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇., or ▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇.
"Holders" means (a) holders of Series A Preferred, Series B Preferred,
Series C Preferred, Series D Preferred, Series E Preferred, Founders Common,
Investor Warrant Stock, Investor Warrants, Exercise Stock, Vector Warrants, or
Conversion Stock, each of whom is listed on the signature pages to this
Agreement, and (b) any subsequent legal or beneficial owner of Series A
Preferred, Series B Preferred, Series C Preferred, Series D Preferred, Series E
Preferred, Founders Common, Exercise Stock, Vector Warrants, or Conversion
Stock who has become a party to this Agreement in accordance with SECTION 12 or
SECTION 16.1 of this Agreement.
"Investor Registrable Stock" means (a) any shares of Series B Conversion
Stock, Series C Conversion Stock, Series D Conversion Stock and Series E
Conversation Stock, (b) any shares of Investor Warrant Stock, (c) any shares of
Common acquired, or issued or issuable pursuant to any securities acquired,
pursuant to Section 7.6 of that certain Convertible Preferred Stock Purchase
Agreement, dated as of September 29, 1995 by and among the Company and the
other parties thereto (the "Series B Stock Purchase Agreement"), pursuant to
Section 7.6 of that certain Convertible Preferred Stock Purchase Agreement,
dated as of July 22, 1996 by and among the Company and the other parties
thereto (the "Series C Stock Purchase Agreement"), pursuant to Section 7.6 of
that certain Convertible Preferred Stock Purchase Agreement, dated as of
November 11, 1996 by and between the Company and ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ Development
Corporation (the "Series D Stock Purchase Agreement") or pursuant to Section
7.6 of that certain Convertible Preferred Stock Purchase Agreement dated as of
even date herewith by and between the Company and MPI Enterprises, L.L.C. (the
"Series E Stock Purchase Agreement"), and (d) any shares of Common or other
securities issued in respect of the securities referred to in clauses (a), (b)
or (c) by way of any stock split, stock dividend, recapitalization,
reorganization, merger, consolidation, sale of assets or similar event.
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"Investor Warrants" means the warrants to purchase 573,395 shares of
Common issued to the investors in the Series C Preferred pursuant to the
Warrant for the Purchase of Shares of Common Stock, dated as of even date
herewith.
"Investor Warrant Stock" means shares of Common issued or issuable upon
exercise of Investor Warrants.
"Immediate Family" shall mean spouses, descendants (including adopted
children) and spouses of descendants.
"Management Registrable Stock" means (a) any shares of Founders Common
and (b) any shares of Common or other securities issued in respect of the
securities referred to in clause (a) by way of any stock split, stock dividend,
recapitalization, reorganization, merger, consolidation, sale of assets or
similar event.
"Person" means an individual, partnership, corporation, business trust,
limited liability company, joint stock company, trust, unincorporated
association, joint venture, or other entity of whatever nature.
"Registrable Stock" means (a) Investor Registrable Stock, (b)
Shareholder Registrable Stock and (c) Vector Registrable Stock. As to any
particular Registrable Stock, such securities will cease to be Registrable
Stock when they shall have been (x) effectively registered under the Securities
Act and sold by the holder thereof in accordance with such registration, or (y)
sold to the public pursuant to Rule 144 or Rule 701 of the Commission, or any
successor rules.
"Rule 144" means Rule 144 promulgated by the Commission under the
Exchange Act, as such rule may be amended from time to time, or any successor
rule thereto.
"Rule 701" means Rule 701 promulgated by the Commission under the
Exchange Act, as such rule may be amended from time to time, or any successor
rule thereto.
"Securities" means any debt or equity securities of the Company, whether
now or hereafter authorized, and any instrument convertible into, or
exercisable or exchangeable for, Securities or a Security.
"Securities Act" means the Securities Act of 1933, as amended prior to
or after the date of this Agreement, or any federal statute or statutes which
shall be enacted to take the place of such Act, together with all rules and
regulations promulgated thereunder.
"Series A Conversion Stock" means shares of Common issued or issuable
upon conversion of the Series A Preferred.
"Series A Preferred" means 5,239,900 shares of the Company's Series A
Convertible Preferred Stock, $.01 par value per share.
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"Series B Conversion Stock" means shares of Common issued or issuable
upon conversion of the Series B Preferred.
"Series B Preferred" means up to 5,432,500 shares of the Company's
Series B Convertible Preferred Stock, $.01 par value per share.
"Series C Conversion Stock" means shares of Common issued or issuable
upon conversion of the Series C Preferred.
"Series C Preferred" means up to 2,293,578 shares of the Company's
Series C Convertible Preferred Stock, $.01 par value per share.
"Series D Conversion Stock" means shares of Common issued or issuable
upon conversion of the Series D Preferred.
"Series D Preferred" means up to 199,601 shares of the Company's Series
D Convertible Preferred Stock, $.01 par value per share.
"Series E Conversion Stock" means shares of Common issued or issuable
upon conversion of the Series E Preferred.
"Series E Preferred" means up to 833,333 shares of the Company's Series
E Convertible Preferred Stock, $.01 par value per share.
"Shareholder Registrable Stock" means CTRC Registrable Stock and
Management Registrable Stock.
"Vector Registrable Stock" means (a) any shares of Exercise Stock and
(b) any shares of Common or other securities issued in respect of the
securities referred to in clause (a) by way of any stock split, stock dividend,
recapitalization, reorganization, merger, consolidation, sale of assets or
similar event.
"Vector Warrants" means the warrants to purchase 170,000 shares of
Common issued to Vector Securities International, Inc. pursuant to the Warrant
for the Purchase of Shares of Common Stock, dated as of September 29, 1995.
SECTION 2. DEMAND REGISTRATIONS.
2.1 Commencing on the earlier of (i) six months after the date on
which the Company completes an initial public offering of Common and (ii) two
years after the first issuance of the Series B Preferred:
(a) the Holder or Holders of more than an aggregate of 20% of the
then outstanding shares of Investor Registrable Stock, shall be entitled
to (a) two demand registrations on Form S-1 or any similar long-form
registration (an "Investor Long Form Demand Registration"), and (b) an
unlimited number of demand registrations on Form S-2 or S-3 or any
similar short-form registration (an "Investor Short Form Demand
Registration"); and
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(b) the Holder or Holders of more than an aggregate of 50% of the
then outstanding shares of Shareholder Registrable Stock, shall be
entitled to (a) one demand registration on Form S-1 or any similar long-
form registration (a "Shareholder Long Form Demand Registration"), and
(b) three demand registrations on Form S-2 or S-3 or any similar short-
form registration (a "Shareholder Short Form Demand Registration",
together with the Investor Short Form Demand Registrations, the "Short
Form Demand Registrations"),
by providing a written notice to the Company requesting that the Company
register any eligible Registrable Stock specified in the notice, under the
Securities Act and under other relevant securities laws, for disposition in
accordance with methods stated in the notice. All demand registrations
pursuant to this SECTION 2.1 are collectively referred to herein as the "Demand
Registrations".
2.2 When it receives a registration notice under SECTION 2.1 above,
the Company shall promptly deliver a copy of the registration notice to each
Holder who is not a party to the registration notice, each of whom may then
specify, by written notice to the Company within 20 days of the date of the
Company's notice, the number of shares of Registrable Stock held by it that it
wishes to include in any Demand Registration pursuant to the registration
notice.
2.3 When it receives a registration notice under SECTION 2.1 above,
the Company shall use its best efforts to effect the Demand Registration under
the Securities Act of Registrable Stock specified in the registration notice
under SECTION 2.1 and subsequent notices under SECTION 2.2 above, all to the
extent requisite to permit disposition by such Holders in accordance with the
intended methods of disposition described in the registration notice.
2.4 The Company shall use its best efforts to qualify for
registration on Form S-3 or any comparable or successor form or forms; and to
that end the Company shall register (whether or not required by law to do so)
the Common under the Exchange Act in accordance with the provisions of that Act
following the effective date of the first registration of any securities of the
Company on Form S-1 or any comparable or successor form.
SECTION 3. INCIDENTAL/PIGGYBACK REGISTRATION. After the Company
completes an initial public offering of Common, each time the Company proposes
to register any of its Securities under the Securities Act for its own account
or for the account of other Security holders or both, it will give at least 30
days advance written notice of its intention to do so to each Holder. Each
Holder may then specify, by written notice to the Company within 25 days of the
date of the Company's notice, the number of shares of Registrable Stock held by
it that it wishes to include in the Company's proposed registration (a
"Piggyback Registration"). Subject to the market cutback limitations of
SECTION 8 of this Agreement, the Company will use its best efforts to effect
the Piggyback Registration under the Securities Act of Registrable Stock
specified by Holders under this SECTION 3.
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SECTION 4. LIMITATIONS ON REGISTRATION RIGHTS. Notwithstanding any
contrary provision of this Agreement:
(a) the Company shall not be required to effect (i) more than
two Investor Long Form Demand Registrations, (ii) more than one
Shareholder Long Form Demand Registration, (iii) more than three
Shareholder Short Form Demand Registrations, (iv) any Short Form Demand
Registration that seeks to register and offer less than $500,000
aggregate amount of Registrable Stock, (v) per each 12 month period,
more than one Investor Short Form Demand Registration and (vi) per each
12 month period, more than one Shareholder Short Form Demand
Registration; provided, however, that a demand for a Demand Registration
shall not count as a registration under this SECTION 4(A) if the
registration statement filed with respect to such registration covering
all shares of Registrable Stock specified in notices received as
aforesaid (subject to the provisions of SECTION 8.1), for sale in
accordance with the method of disposition specified by the requesting
Holders, is not declared effective by the Commission and kept effective
by the Company in accordance with the planned distribution thereunder,
subject to SECTION 5.2, (unless, except as provided in SECTION 15(B),
such Demand Registration has not become effective due solely to the
fault of the Holder or Holders requesting such Demand Registration and
such Holder or Holders fail to bear all Registration Expenses in
connection therewith, in which case such registration shall count as a
Demand Registration), and the last or any subsequent Investor Long Form
Demand, Shareholder Long Form Demand and Shareholder Short Form Demand
Registration will not count as one of the permitted Demand Registrations
unless the Holders of Registrable Stock are able to register and sell at
least 90% of the shares of the Registrable Stock requested to be
included in such registration; and
(b) the Company will not be obligated to effect any Demand
Registration within 90 days after the effective date of a Demand
Registration or a registration in which the Holders of Registrable Stock
were given piggyback rights pursuant to SECTION 3, provided in either
case all shares of Registrable Stock requested to be included were sold
in such registration. The Company may postpone for up to 90 days the
filing or the effectiveness of a registration statement for a Demand
Registration if the Company, the Holders of at least a majority of the
Registrable Stock and, if such Demand Registration is requested by
Holders of Investor Registrable Stock, the Holders of at least a
majority of the Investor Registrable Stock, agree that such registration
would reasonably be expected to have an adverse effect (i) on any
proposal or plan by the Company or any of its subsidiaries to engage in
any acquisition of assets (other than in the ordinary course of
business) or any merger, consolidation, tender offer or similar
transaction, or (ii) any material corporate development; provided that
in such event, the Holders of Investor Registrable Stock or Shareholder
Registrable Stock initially requesting such Demand Registration will be
entitled to withdraw such request and, if such request is withdrawn,
such registration will not count as one of the permitted Demand
Registrations and the Company will pay all Registration Expenses (as
defined in SECTION 6 hereof) in connection with such registration.
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(c) SECTION 3 of this Agreement shall not apply to a
registration effected solely to offer securities for sale pursuant to,
or in connection with, (i) an employee benefit plan or (ii) a
transaction subject to Rule 145 under the Securities Act or in an
exchange offer registered on Form S-4 or any successor form to Form S-4,
or to any registration on a form which does not permit inclusion of
Registrable Stock pursuant to Commission rule or practice.
SECTION 5. REGISTRATION PROCEDURES.
5.1 Whenever the Company is required by this Agreement to use its
best efforts to effect the registration of any Registrable Stock under the
Securities Act, the Company will, as expeditiously as possible:
(a) in the case of a Demand Registration, engage the
underwriters as provided in SECTION 13;
(b) before filing each registration statement or prospectus or
amendment or supplement thereto with the Commission, furnish counsel for
any Holders registering more than 12,500 shares of Registrable Stock
with copies of all such documents proposed to be filed, which shall be
subject to the reasonable approval of such counsel;
(c) prepare and file with the Commission a registration
statement with respect to such Registrable Stock (which, in the case of
an underwritten public offering, shall be on Form S-1 or other form of
general applicability satisfactory to the managing underwriter selected
as therein provided) with respect to such securities including executing
an undertaking to file post-effective amendments and use its best
efforts to cause such registration statement to become and remain
effective for the period of distribution contemplated thereby (subject
to SECTION 5.2 below);
(d) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective for the period of distribution contemplated thereby
(subject to SECTION 5.2 below) and to comply with the provisions of the
Securities Act with respect to the sale or other disposition of all
Registrable Stock covered by such registration statement in accordance
with the sellers' intended methods of disposition set forth in such
registration statement for such period;
(e) promptly prepare and file with the Commission, and notify
each seller of such Registrable Stock immediately after the filing of,
such amendment or supplement to such registration statement or
prospectus as may be necessary to correct any statements or omissions
if, during such periods as a prospectus relating to such Securities is
required to be delivered under the Securities Act, any event shall have
occurred as the result of which any such prospectus or any other
prospectus as then in effect would include an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements
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therein, in the light of the circumstances in which they were made, not
misleading, and notify each seller and underwriter immediately after its
discovery of such event;
(f) furnish to the underwriters and each seller of such
Registrable Stock such numbers of copies of such registration statement,
each amendment and supplement thereto (in each case, including all
exhibits), the prospectus included in such registration statement
(including each preliminary prospectus) and such other documents as such
underwriters or seller may reasonably request in order to facilitate the
disposition of the Registrable Stock in accordance with such
registration statement;
(g) use its best efforts to register or qualify any
Registrable Stock covered by such registration statement under the
securities or blue sky laws of such jurisdictions within the United
States of America as the seller or the underwriters reasonably request,
and to take any other acts which a seller or the underwriters may
reasonably request under such securities or blue sky laws to enable the
consummation of the disposition in such jurisdictions of such
Registrable Stock (provided, however, that the Company shall not be
required under this Agreement (i) to qualify generally to do business as
a foreign corporation in any jurisdiction in which it would not
otherwise be required to qualify, or (ii) to consent to general service
of process in any such jurisdiction unless the Company is already
subject to service in such jurisdiction);
(h) provide a transfer agent and registrar for all Registrable
Stock sold under the registration statement not later than the effective
date of the registration statement;
(i) use its best efforts to cause all Registrable Stock sold
under the registration statement to be listed on each securities
exchange or to be qualified and eligible for trading in any automated
quotation system, if any, on which similar Securities issued by the
Company are then listed or traded or, if no such listing or
qualification has then occurred, to use its best efforts to cause such
Securities to be so listed or qualified on an exchange or in a trading
system that is reasonably acceptable to the Company and the Holders of
such Registrable Stock;
(j) enter into such customary agreements (including
underwriting agreements in customary form) and take all such other
actions as the underwriters, if any, or the Holders of more than 50% of
the Registrable Stock or in the case of a Demand Registration, the
Holders of more than 50% of the Investor Registrable Stock or
Shareholder Registrable Stock, as the case may be, making such demand,
being sold reasonably request in order to expedite or facilitate the
disposition of such Registrable Stock (including, without limitation,
effecting a stock split or a combination of shares);
(k) advise each seller of Registrable Stock, immediately after
it shall receive notice or obtain knowledge thereof, of the issuance of
any stop order by
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the Commission suspending the effectiveness of such registration
statement or the initiation or threatening of any proceeding for such
purpose and promptly use reasonable efforts to prevent the issuance of
any stop order or to obtain its withdrawal if such stop order should be
issued;
(l) make available for inspection by the sellers of
Registrable Stock, any underwriter participating in any disposition
pursuant to such registration statement, and any attorney, accountant or
other agent retained by any such seller or underwriter, all financial
and other records, pertinent corporate documents and properties of the
Company, and cause the Company's officers, directors, employees and
independent accountants to supply all information reasonably requested
by any such seller or underwriter in connection with such registration
statement, all subject to such limitations as the Company reasonably
deems appropriate in order to protect the Company's confidential or
proprietary information;
(m) comply with all applicable rules and regulations under the
Securities Act and Exchange Act;
(n) if the offering is underwritten and at the request of any
seller of Registrable Stock, use its best efforts to furnish on the date
that Registrable Stock are delivered to the underwriters for sale
pursuant to such registration: (i) an opinion dated such date of
counsel representing the Company for the purposes of such registration,
addressed to the underwriters to such effects as reasonably may be
requested by counsel for the underwriters and (ii) a letter dated such
date from the independent public accountants retained by the Company,
addressed to the underwriters stating that they are independent public
accountants within the meaning of the Securities Act and that, in the
opinion of such accountants, the financial statements of the Company
included in the registration statement or the prospectus, or any
amendment or supplement thereof, comply as to form in all material
respects with the applicable accounting requirements of the Securities
Act, and such letter shall additionally cover such other financial
matters (including information as to the period ending no more than five
business days prior to the date of such letter) with respect to such
registration as such underwriters reasonably may request;
(o) make available for inspection by each seller of
Registrable Stock, any underwriter participating in any distribution
pursuant to such registration statement, and any attorney, accountant or
other agent retained by such seller or underwriter, reasonable access to
all financial and other records, pertinent corporate documents and
properties of the Company, as such parties may reasonably request, and
cause the Company's officers, directors and employees to supply all
information reasonably requested by any such seller, underwriter,
attorney, accountant or agent in connection with such registration
statement;
(p) cooperate with the selling holders of Registrable Stock
and the managing underwriter, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable Stock
to be sold, such certificates to be
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in such denominations and registered in such names as such Holders or
the managing underwriter may request at least two business days prior to
any sale of Registrable Stock; and
(q) permit any Holder of Registrable Stock, which Holder, in
the sole and exclusive good faith judgment of such Holder, might be
deemed to be a controlling person of the Company, to participate in good
faith in the preparation of such registration statement.
5.2 For purposes of this Agreement, the period of distribution of
Registrable Stock in a firm commitment underwritten public offering shall be
deemed to extend until each underwriter has completed the distribution of all
securities purchased by it, and the period of distribution of Registrable Stock
in any other registration shall be deemed to extend until the earlier of the
sale of all Registrable Stock covered thereby or 180 days after the effective
date thereof, provided, however, in the case of any registration of Registrable
Stock on Form S-3 or a comparable or successor form which are intended to be
offered on a continuous or delayed basis, such 180-day period shall be
extended, if necessary, to keep the registration statement effective until all
such Registrable Stock are sold, provided that Rule 415, or any successor rule
under the Securities Act, permits an offering on a continuous or delayed basis,
and provided further that applicable rules under the Securities Act governing
the obligation to file a post-effective amendment, permit, in lieu of filing a
post-effective amendment which (y) includes any prospectus required by Section
10(a)(3) of the Securities Act or (z) reflects facts or events representing a
material or fundamental change in the information set forth in the registration
statement, the incorporation by reference of information required to be
included in (y) and (z) above contained in periodic reports filed pursuant to
Section 13 or 15(d) of the Exchange Act in the registration statement.
SECTION 6. EXPENSES. The Company will pay all Registration Expenses
(as defined below) in connection with each Demand Registration or Piggyback
Registration of Registrable Stock permitted pursuant to SECTIONS 2 and 3 of
this Agreement; provided, however, that the aggregate maximum Registration
Expenses for legal fees and disbursements, accounting fees and disbursements
and filing fees payable by the Company to third parties in connection with
registering Investor Registrable Securities in all Investor Short Form Demand
Registrations shall be $100,000 (and if any Securities other than Investor
Registrable Securities are included, the amount of such expenses attributable
to the Investor Registrable Securities shall be determined pro rata) and any
such expenses payable to third parties in excess of $100,000 shall be borne pro
rata by the selling stockholders and the Company. For purposes of this SECTION
6, "Registration Expenses" means all expenses incident to the Company's
performance of or compliance with SECTIONS 2 and 3 of this Agreement,
including, without limitation, all registration, filing and National
Association of Securities Dealers, Inc. fees, all fees and expenses of
complying with securities or blue sky laws, all word processing, duplicating
and printing expenses, messenger and delivery expenses, the reasonable fees and
disbursements of counsel for the Company and of its independent public
accountants, including the expenses of any special audits or "cold comfort"
letters required by or incident to such performance and compliance, the
reasonable fees and disbursements of one law firm retained by the Holders of
more than 50% of the
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Investor Registrable Stock being registered, premiums and other costs of
policies of insurance obtained by the Company against liabilities arising out
of the public offering of the Registrable Stock being registered but excluding
all agency fees and commissions, underwriting discounts and commissions and
transfer taxes, if any.
SECTION 7. INDEMNIFICATION.
7.1 In the event of any registration of any of its Registrable Stock
under the Securities Act pursuant to this Agreement, the Company agrees, to the
extent permitted by law, to indemnify and hold harmless each seller of
Registrable Stock, and each officer, partner, director and Affiliate of such
seller, against any losses, claims, damages or liabilities, joint or several,
arising out of or based upon:
(a) any untrue statement or alleged untrue statement of any
material fact contained, on the effective date thereof, in any
registration statement under which such Securities were registered under
the Securities Act, any preliminary prospectus or final prospectus
contained in any registration statement, or any other materials deemed
to be a prospectus pursuant to the Securities Act, or any Securities
being registered, or any amendment or supplement thereto, or any blue
sky application or other document executed by the Company specifically
for that purpose or based upon written information furnished by the
Company filed in any state or other jurisdiction in order to qualify any
or all of the Registrable Stock under the securities laws thereof (any
such application, document or information herein called a "Blue Sky
Application"), or
(b) any omission or any alleged omission to state in any such
document a material fact required to be stated therein or necessary to
make the statements therein not misleading, or
(c) any violation by the Company or its agents (other than by
the indemnitee claiming indemnification hereunder) of the Securities Act
or any rule or regulation promulgated under the Securities Act
applicable to the Company or its agents (other than by the indemnitee
claiming indemnification hereunder) and relating to action or inaction
required of the Company in connection with such registration,
except insofar as any such loss, claim, damage or liability is:
(i) caused by or contained in any information furnished
in writing to the Company by such seller expressly for use in
connection with such registration; or
(ii) caused by such seller's failure to deliver a copy
of the registration statement or prospectus or any amendment or
supplement thereto as required by the Securities Act or the rules
or regulations thereunder to be delivered by such seller, if such
delivery would have cured the defect giving rise to such loss,
claim, damage or liability; or
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(iii) caused by the delivery by such seller of a
prospectus or preliminary prospectus or any amendment or
supplement thereto after receipt of notice from the Company that
it should no longer be used.
In connection with an underwritten offering, the Company will indemnify
such underwriters, their officers and directors and each Person who
controls (within the meaning of the Securities Act) such underwriters to
the same extent as provided above with respect to the sellers of
Registrable Stock. The Company shall reimburse each Person indemnified
pursuant to this SECTION 7.1 for any reasonable legal or other expenses
incurred in connection with investigating or defending any loss, claim,
damage, liability or action indemnified against. The reimbursements
required by this SECTION 7.1 shall be made by periodic payments during
the course of the investigation or defense, as and when bills are
received or expenses incurred. The indemnities provided pursuant to
this SECTION 7.1 shall remain in force and effect regardless of any
investigation made by or on behalf of the indemnified party and shall
survive any transfer of Registrable Stock by a seller.
7.2 In the event of any registration of any Registrable Stock under
the Securities Act pursuant to this Agreement, each Holder agrees to furnish to
the Company in writing such information and affidavits as the Company
reasonably requests for use in connection with any registration statement,
prospectus and any amendment or supplement thereto in connection with the
registration.
7.3 To the fullest extent permitted by law, and subject to the
limitation set forth in the last sentence of this SECTION 7.3, each Holder
which is a seller of Registrable Stock in a registration pursuant to this
Agreement agrees severally and not jointly to indemnify and hold harmless the
Company, its directors and officers, and each Affiliate of the Company,
against:
(a) any losses, claims, damages or liabilities, joint or
several, arising out of or based upon:
(i) any alleged untrue statement of any material fact
contained on the effective date thereof, in any registration
statement under which such Securities were registered under the
Securities Act, any preliminary prospectus or final prospectus
contained therein, or any summary prospectus contained therein,
or any amendment or supplement thereto, or
(ii) any alleged omission to state in any such document
a material fact required to be stated therein or necessary to
make the statements therein not misleading,
but only insofar as any such loss, claim, damage or liability is caused
by any information furnished in writing to the Company by the
indemnifying seller expressly for use in connection with such
registration, and excluding any such loss, claim, damage or liability
which is caused by such statements, or caused by
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such omissions, based upon the authority of an expert as defined in the
Securities Act (but only if the indemnifying seller had no grounds to
believe, and did not believe, that the statements made on the authority
of an expert were untrue or that there was an omission to state a
material fact); and
(b) any losses, claims, damages or liabilities, joint or
several, arising out of or based upon any failure by such seller to
deliver a copy of the registration statement or prospectus or any
amendment or supplement thereto if required by the Securities Act or the
rules or regulations thereunder to be delivered by such seller, if such
delivery would have cured the defect giving rise to such loss, claim,
damage or liability. In connection with an underwritten offering, each
seller will indemnify such underwriters, their officers and directors
and each Person who controls (within the meaning of the Securities Act)
such underwriters to the same extent as provided above with respect to
the Company and other sellers. Each seller shall reimburse each Person
indemnified pursuant to this SECTION 7.3 in connection with
investigating or defending any loss, claim, damage, liability or action
indemnified against. The reimbursements required by this SECTION 7.3
shall be made by periodic payments during the course of the
investigation or defense as and when bills are received or expenses
incurred. The indemnities provided pursuant to this SECTION 7.3 shall
remain in force and effect regardless of any investigation made by or on
behalf of the indemnified party and shall survive any transfer of
Registrable Stock by an indemnifying seller and any transfer of other
Securities by any other indemnified seller. Notwithstanding any
contrary provision of this Agreement, however, the liability under this
SECTION 7 of each Holder which is a seller of Registrable Stock shall be
limited in the aggregate, with respect to the claims of all indemnified
Persons taken as a whole, to the amount of proceeds received by the
indemnifying seller from the sale of the Registrable Stock sold by the
indemnifying seller pursuant to such registration statement.
7.4 Each party entitled to indemnification under this SECTION 7 (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 any
litigation resulting therefrom, shall be approved by the Indemnified Party
(whose approval shall not unreasonably be withheld) and the Indemnified Party
may participate in such defense at such party's expense other than reasonable
costs of investigation and of liaison with counsel so selected (unless the
Indemnified Party shall have reasonably concluded that there may be reasonable
defenses available to it which are different from or additional to those
available to the Indemnifying Party or that the interests of the Indemnified
Party reasonably may be deemed to conflict with the interests of the
Indemnifying Party, in which case the Indemnified Party shall have the right to
select one separate counsel and to assume such legal defenses and otherwise to
participate in the defense of such action, with the reasonable expenses and
fees of such separate counsel and other reasonable expenses related to such
participation to be reimbursed by the Indemnifying Party as incurred), and
provided further that the
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failure of any Indemnified Party to give notice as provided herein shall not
relieve the Indemnifying Party of its obligations under this SECTION 7 unless
and to the extent the Indemnifying Party is materially prejudiced thereby. 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 to such claim or
litigation. Each Indemnified Party shall furnish such information regarding
itself or the claim in question as an Indemnifying Party may reasonably request
in writing and as shall be reasonably required in connection with the defense
of such claim and litigation resulting therefrom.
7.5 If the indemnification provided for in this SECTION 7 is held by
a court of competent jurisdiction (by the entry of a final judgment or decree
by such court and the expiration of time to appeal or the denial of the last
right of appeal) to be unavailable to an Indemnified Party with respect to any
loss, liability, claim, damage or expense referred to herein, then the
Indemnifying Party, in lieu of indemnifying such Indemnified Party hereunder,
shall contribute to the amount paid or payable by such Indemnified Party as a
result of such loss, liability, claim, damage or expense in such proportion as
is appropriate to reflect the relative fault of the Indemnifying Party on the
one hand and of the Indemnified Party on the other in connection with the
statements or omissions which resulted in such loss, liability, claim, damage
or expense, as well as any other relevant equitable considerations. The
relative fault of the Indemnifying Party and of the Indemnified Party shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission to state a material fact
relates to information supplied by the Indemnifying Party or by the Indemnified
Party and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. Notwithstanding
any contrary provision of this Agreement, however, the liability under this
SECTION 7.5 of each Holder which is a seller of Registrable Stock shall be
limited in the aggregate, with respect to the claims of all indemnified Persons
taken as a whole, to the amount of proceeds received by the indemnifying seller
from the sale of the Registrable Stock sold by the indemnifying seller pursuant
to such registration statement.
7.6 Notwithstanding the foregoing, to the extent that the provisions
on indemnification and contribution contained in the underwriting agreement
entered into in connection with any underwritten public offering contemplated
by this Agreement are in conflict with the foregoing provisions, the provisions
in such underwriting agreement shall be controlling. Not in limitation of the
foregoing, it is understood and agreed that the indemnification obligations of
any holder pursuant to any underwriting agreement entered into in connection
herewith shall be limited to the obligations contained in this SECTION 7.
7.7 The foregoing indemnity agreement of the Company and Holders is
subject to the condition that, insofar as they relate to any loss, claim,
liability or damage made in a preliminary prospectus but eliminated or remedied
in the amended prospectus on file with the Commission at the time the
registration statement in question becomes
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effective or the amended prospectus filed with the Commission pursuant to
Commission Rule 424(b) (the "Final Prospectus"), such indemnity agreement shall
not inure to the benefit of any underwriter if a copy of the Final Prospectus
was furnished to the underwriter and was not sent or furnished to the person if
required by law so to have been delivered asserting the loss, liability, claim
or damage at or prior to the time such action is required by the Securities
Act, and if the Final Prospectus would have cured the defect giving rise to
such loss, liability, claim or damage.
7.8 The indemnities and obligations provided in this SECTION 7 shall
survive the transfer of any Registrable Stock by such Holder.
SECTION 8. MARKETING RESTRICTIONS.
8.1 If:
(a) two or more Holders simultaneously seek to make a Demand
Registration pursuant to a registration notice under SECTION 2 of this
Agreement, and
(b) the offering proposed to be made by the Holders for whom
such registration is to be made is to be an underwritten public
offering, and
(c) the managing underwriter or underwriters of such public
offering furnish a written opinion that the total amount of Securities
to be included in such offering would exceed the maximum number of
shares of Common (as specified in such opinion) which can be marketed at
a price reasonably related to the current market value of such Common
and without otherwise materially and adversely affecting such offering
(the "Underwriter Maximum"),
then the rights of all demanding Holders, of the holders of other Securities
having the right to include Common in such registration, to participate in such
offering shall be in the following order of priority:
(i) FIRST, the number of shares of Investor Registrable
Stock requested to be included therein up to the Underwriter
Maximum allocated pro rata among the Holders of such Investor
Registrable Stock on the basis of the number of shares of
Investor Registrable Stock owned by such Holders shall be
entitled to participate, with further successive pro rata
allocations among the Holders of Investor Registrable Stock if
any such Holder of Investor Registrable Stock has requested the
registration of fewer than all of such shares of Investor
Registrable Stock that it is entitled to register;
(ii) SECOND, the number of shares of CTRC Registrable
Stock requested to be included therein, up to the Underwriter
Maximum (after taking into account the number of shares of
Investor Registrable Stock to be sold pursuant to (i) above)
allocated pro rata among the Holders of such CTRC Registrable
Stock on the basis of the number of shares of
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CTRC Registrable Stock owned by such Holders shall be entitled to
participate, with further successive pro rata allocations among
the Holders of CTRC Registrable Stock if any such Holder of CTRC
Registrable Stock has requested the registration of fewer than
all of such shares of CTRC Registrable Stock it is entitled to
register;
(iii) THIRD, the number of shares of Management
Registrable Stock requested to be included therein, up to the
Underwriter Maximum (after taking into account the number of
shares of Investor Registrable Stock and CTRC Registrable Stock
to be sold pursuant to (i) and (ii) above) allocated pro rata
among the Holders of such Management Registrable Stock on the
basis of the number of shares of Management Registrable Stock
owned by such Holders shall be entitled to participate, with
further successive pro rata allocations among the Holders of
Management Registrable Stock if any such Holder has requested the
registration of fewer than all of such shares of Management
Registrable Stock it is entitled to register; and
(iv) FOURTH, other securities requested to be included
in such registration up to the Underwriter Maximum (after taking
into account the Registrable Stock to be sold pursuant to clauses
(i) through (iii) above) shall be entitled to participate.
8.2 If:
(a) any Holder of Registrable Stock requests registration of
Registrable Stock under SECTION 3 of this Agreement, and
(b) the offering proposed to be made is to be an underwritten
public offering, and
(c) the managing underwriters of such public offering furnish
a written opinion that the total amount of Securities to be included in
such offering would exceed the Underwriter Maximum,
then the rights of the Holders, of the holders of other Securities having the
right to include such Securities in such registration and of the Company to
participate in such offering shall be as follows:
(i) if the offering is not a Demand Registration of
Registrable Stock and is the Company's first registered offering
of its equity to the public, then participation shall be in the
following order of priority:
(A) FIRST, the Company shall be entitled to
participate up to the full number of shares of stock which
the Company deems necessary or advisable to fulfill its
strategic capital requirements;
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(B) SECOND, the number of shares of Investor
Registrable Stock requested to be included therein up to
the Underwriter Maximum (after taking into account the
number of shares of Securities to be sold pursuant to (A)
above) allocated pro rata among the Holders of such
Investor Registrable Stock on the basis of the number of
shares of Investor Registrable Stock owned by such Holders
shall be entitled to participate, with further successive
pro rata allocations among the Holders of Investor
Registrable Stock if any such Holder of Investor
Registrable Stock has requested the registration of fewer
than all of such shares of Investor Registrable Stock that
it is entitled to register;
(C) THIRD, the number of shares of CTRC
Registrable Stock requested to be included therein, up to
the Underwriter Maximum (after taking into account the
number of shares of Securities to be sold pursuant to (A)
and (B) above) allocated pro rata among the Holders of
such CTRC Registrable Stock on the basis of the number of
shares of CTRC Registrable Stock owned by such Holders
shall be entitled to participate, with further successive
pro rata allocations among the Holders of CTRC Registrable
Stock if any such Holder of CTRC Registrable Stock has
requested the registration of fewer than all of such
shares of CTRC Registrable Stock that it is entitled to
register; and
(D) FOURTH, the number of shares of Management
Registrable Stock and Vector Registrable Stock requested
to be included therein, up to the Underwriter Maximum
(after taking into account the number of shares to be sold
pursuant to (A), (B) and (C) above) allocated pro rata
among the Holders of such Management Registrable Stock and
Vector Registrable Stock on the basis of the number of
shares of Management Registrable Stock and Vector
Registrable Stock owned by such Holders shall be entitled
to participate, with further successive pro rata
allocations among the Holders of Management Registrable
Stock and Vector Registrable Stock if any such Holder has
requested the registration of fewer than all of such
shares of Management Registrable Stock or Vector
Registrable Stock it is entitled to register; and
(E) FIFTH, all other holders of Securities
having the right to include such Securities in such
registration shall be entitled to participate pro rata in
accordance with the number of shares proposed to be
registered by each of them;
(ii) in all other events, participation shall be in the
following order of priority:
(A) FIRST, (1) if such registration was not
initiated by the Company as a primary registration, then
the Person or Persons
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requesting such registration pursuant to a Demand
Registration of such Person or Persons shall be entitled
to participate in accordance with the relative priorities,
if any, that shall exist among them, subject to the
limitation that a number of shares of Investor Registrable
Stock equal to 35% of the Underwriter Maximum shall also
be entitled to participate therein, with such shares of
Investor Registrable Stock being allocated pro rata among
the Holders of Registrable Stock owned by such Holders,
and (2) if the Company has initiated such registration as
a primary registration, then the Company shall be entitled
to participate up to the full number of shares of stock
which the Company deems necessary or advisable to fulfill
its strategic capital requirements;
(B) SECOND, the number of shares of Investor
Registrable Stock requested to be included therein, up to
the remainder of such Underwriter Maximum (after taking
into account the number of shares to be sold pursuant to
clause (A) above) allocated pro rata among the Holders of
such Investor Registrable Stock on the basis of the number
of shares of Investor Registrable Stock owned by such
Holders, with further successive pro rata allocations
among the Holders of Investor Registrable Stock if any
such Holder of Investor Registrable Stock has requested
the registration of fewer than all of such shares of
Investor Registrable Stock it is entitled to register;
(C) THIRD, the number of shares of CTRC
Registrable Stock requested to be included therein, up to
such Underwriter Maximum (after taking into account the
number of shares to be sold pursuant to clauses (A) and
(B) above) allocated pro rata among the Holders of such
CTRC Registrable Stock on the basis of the number of
shares of CTRC Registrable Stock owned by such Holders,
with further successive pro rata allocations among the
Holders of CTRC Registrable Stock if any such Holder of
CTRC Registrable Stock has requested the registration of
fewer than all of such shares of CTRC Registrable Stock it
is entitled to register
(D) FOURTH, the number of shares of Management
Registrable Stock and Vector Registrable Stock requested
to be included therein, up to such Underwriter Maximum
(after taking into account the number of shares of
securities to be sold pursuant to clauses (A) (B) and (C)
above) allocated pro rata among the Holders of such
Management Registrable Stock and Vector Registrable Stock
on the basis of the number of shares of Management
Registrable Stock and Vector Registrable Stock owned by
such Holders, with further successive pro rata allocations
among the Holders of Management Registrable Stock and
Vector Registrable Stock if any such Holder has requested
the registration
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of fewer than all of such shares of Management Registrable
Stock or Vector Registrable Stock it is entitled to
register; and
(E) FIFTH, other securities requested to be
included in such registration up to the Underwriter
Maximum (after taking into account the securities and
Registrable Stock to be sold pursuant to clauses (A), (B),
(C) and (D) above).
8.3 In connection with any offering involving an underwriting of
Registrable Stock pursuant to SECTION 3 of this Agreement, the Company shall
not be required to include any of the Registrable Stock of a Holder in such
offering unless such Holder agrees to the terms of the underwriting agreed to
between the Company and the underwriter or underwriters selected by the
Company.
SECTION 9. SALE OF PREFERRED TO UNDERWRITER. Notwithstanding
anything in this Agreement to the contrary, in lieu of converting any Series A
Preferred, Series B Preferred, Series C Preferred, Series D Preferred or Series
E Preferred to Conversion Stock, or in lieu of exercising any Vector Warrants
for Exercise Stock or Investor Warrants for Investor Warrant Stock, prior to or
simultaneously with the filing or the effectiveness of any registration
statement filed pursuant to this Agreement, the Holder of such Series A
Preferred, Series B Preferred, Series C Preferred, Series D Preferred or Series
E Preferred or Vector Warrants or Investor Warrants may sell such Series A
Preferred, Series B Preferred, Series C Preferred, Series D Preferred or Series
E Preferred or Vector Warrants and Investor Warrant Stock to the underwriter of
the offering being registered upon the undertaking of such underwriter to
convert such Series A Preferred, Series B Preferred, Series C Preferred, Series
D Preferred or Series E Preferred into Conversion Stock, or to exercise such
Vector Warrants for Exercise Stock or Investor Warrants for Investor Warrant
Stock, before making any distribution pursuant to such registration statement
and agreeing to include such Conversion Stock, Exercise Stock or Investor
Warrant Stock among the Securities being offered pursuant to such registration
statement. The Company agrees to cause such Conversion Stock, Exercise Stock
and Investor Warrant Stock to be issued within such time as will permit the
underwriter to make and complete the distribution contemplated by the
underwriting.
SECTION 10. LOCKUP AGREEMENT. Each Holder severally and not jointly
agrees in connection with the registration of any of the Company's Securities
in its initial public offering that, upon the request of the Company or the
underwriters managing such underwritten offering of the Company's Securities,
he or it will not sell, make any short sale of, loan, grant any option for the
purchase of, or otherwise dispose of any Securities of the Company (other than
the securities included in the registration and other than a transfer by any
Holder to an Affiliate or member of the Immediate Family of such Holder)
without the prior written consent of the Company or such underwriters, as the
case may be, for such period of time (not to exceed 120 days) from the
effective date of such registration as the Company or the underwriters may
specify, subject to the Company obtaining similar agreements from the Company's
executive officers and directors, any holders of five percent or more of the
Company's then issued
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and outstanding Common, and any other holders of Securities participating in
such registration.
SECTION 11. COMPLIANCE WITH RULE 144. With a view to making available
the benefits of certain rules and regulations of the Commission which may
permit the sale of restricted securities to the public without registration,
the Company agrees to:
(a) make and keep public information available as those terms
are understood and defined in Rule 144, at all times from and after 90
days following the effective date of the first registration under the
Securities Act filed by the Company for an offering of its Securities to
the general public and for so long as the Company is subject to the
reporting requirements of Section 13 or 15(d) of the Exchange 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 at any time after it has
become subject to such reporting requirements; and
(c) so long as the Holder owns any Securities and is not
eligible to sell all such Securities under paragraph (k) of Rule 144,
furnish to the Holder upon request, a written statement by the Company
as to its compliance with the reporting requirements of Rule 144 (at any
time from and after 90 days following the effective date of the first
registration statement filed by the Company for an offering of its
securities to the general public), and of the Securities Act and the
Exchange 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 Company, and such other reports and documents so filed as the Holder
may reasonably request in availing itself of any rule or regulation of
the Commission allowing the Holder to sell any such securities without
registration.
SECTION 12. ASSIGNABILITY OF REGISTRATION RIGHTS. The rights set
forth in this Agreement shall accrue to each subsequent Holder of Registrable
Stock who (a) shall have executed a written consent agreeing to be bound by the
terms and conditions of this Agreement, and (b) owns greater than 12,500 shares
of Registrable Stock (subject to appropriate adjustment for stock splits, stock
combinations and similar events affecting the Registrable Stock).
SECTION 13. DESIGNATION OF UNDERWRITER. In the case of any Demand
Registration effected pursuant to this Agreement, the managing underwriter(s)
and any other investment banking advisers to the Company shall be selected by
Holders of not less than 50% of the Investor Registrable Stock or Shareholder
Registrable Stock to be registered making such demand and shall be reasonably
acceptable to the Company. The Company shall select the managing
underwriter(s) and all other investment banking advisers to the Company for all
other registrations that may be effected from time to time by the Company.
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SECTION 14. HOLDBACK AGREEMENTS. The Company agrees (a) not to effect
any public sale or distribution of its equity securities, or any securities
convertible into or exchangeable or exercisable for such securities, during the
period commencing on the earlier of the notice requesting the Demand
Registration, if applicable or seven days prior to, and continuing during the
90-day period beginning on, the effective date of any underwritten Demand
Registration pursuant to SECTION 2 hereof or any underwritten Piggyback
Registration pursuant to SECTION 3 hereof (except as part of such underwritten
registration or pursuant to registrations on Form S-8 or any successor form),
unless the underwriters managing the registered public offering otherwise
agree, and (b) to cause each holder of its Common, or any securities
convertible into or exchangeable or exercisable for Common, purchased from the
Company at any time after the date of this Agreement (other than in a
registered public offering) to agree not to effect any public sale or
distribution (including sales pursuant to Rule 144) of any such securities
during such period (except as part of such underwritten registration, if
otherwise permitted), unless the underwriters managing the registered public
offering otherwise agree.
SECTION 15. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS.
(a) No Person may participate in any registration hereunder
which is underwritten unless such Person (i) agrees to sell such
Person's securities on the basis provided in any underwriting
arrangements approved by the Person or Persons entitled hereunder to
approve such arrangements (including, without limitation, pursuant to
the terms of any overallotment or "green shoe" option requested by the
managing underwriter(s)), (ii) furnishes to the Company such information
regarding such Holder, the Registrable Stock of such Holder to be
registered and the intended method of disposition of such Registrable
Stock, and (iii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements.
(b) If any Holder or Holders of Registrable Stock that has
requested inclusion in a registration disapproves of the terms of the
underwriting, such Holder or Holders may elect to withdraw therefrom by
written notice to the Company and the managing underwriter; provided
that if such Holder or all Holders of Registrable Stock who requested
such Registration as one of their Demand Registrations withdraw, then
subject to SECTION 4(A) hereof, (i) if such withdrawal occurs prior to
the registration statement being filed with the Commission, the
withdrawing Holder or Holders shall not be responsible for the
Registration Expenses in connection with such registration, and (ii) if
such withdrawal occurs subsequent to the filing of the registration
statement with the Commission, then at the option of the Holders, either
such withdrawing Holders shall be responsible for the Registration
Expenses incurred in connection with such registration pro rata to their
Securities initially included therein, or such withdrawn registration
shall count as a Demand Registration (as determined by the Holders of at
least 66-2/3% of the shares of Registrable Stock included therein by the
Holders with such Demand Registration right); provided, however, that if
at the time of such withdrawal, the requesting Holders have learned of
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a material adverse change in the conditions, business or prospects of
the Company from that known to them at the time of their request, then
the requesting Holders shall not be required to pay any of such expenses
or to count such registration as a Demand Registration.
(c) Each Person that is participating in any registration
hereunder agrees that, upon receipt of any notice from the Company of
the happening of any event of the kind described in SECTION 5.1(E)
above, such Person will forthwith discontinue the disposition of its
Registrable Stock pursuant to the registration statement until such
Person's receipt of the copies of a supplemented or amended prospectus
as contemplated by such SECTION 5.1(E).
SECTION 16. MISCELLANEOUS.
16.1 Modifications; Amendment. Neither this Agreement nor any
provision hereof may be changed, waived, discharged or terminated unless
effected by a writing executed and delivered by the Company and by holders
representing not less than 66-2/3% of Registrable Stock, provided that this
SECTION 16.1 may not be modified or amended without the written consent of all
the holders of Registrable Stock and the Company, and provided further that in
any event, no amendment or change may be made to the terms hereof that imposes
additional obligations or restrictions upon a party without its written
consent.
16.2 Severability. In the event that any court or any governmental
authority or agency declares all or any part of any Section of this Agreement
to be unlawful or invalid, such unlawfulness or invalidity shall not serve to
invalidate any other Section of this Agreement, and in the event that only a
portion of any Section is so declared to be unlawful or invalid, such
unlawfulness or invalidity shall not serve to invalidate the balance of such
Section.
16.3 Successors and Assigns. Subject to SECTION 12, this Agreement is
binding upon and inures to the benefit of the Company, its successors and
assigns, and the Holders, their successors and assigns, heirs, and legal
representatives.
16.4 Notices. All communications in connection with this Agreement
shall be in writing and shall be deemed properly given if hand delivered or
sent by telecopier or overnight courier with adequate evidence of delivery or
sent by registered or certified mail, return receipt requested, and, if to a
Holder, addressed to the Persons and at such addresses as are set forth below
such Holder's name on Exhibit A hereto, or, if no such Person or address
appears, at such Holder's address as shown on the books of the Company or its
transfer agent, and if to the Company, at its offices at:
ILEX ONCOLOGY, INC.
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-22-
25
or such other addresses or Persons as the recipient shall have designated to
the sender by a written notice given in accordance with this Section. Any
notice called for hereunder shall be deemed given when received.
16.5 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Texas applicable to agreements
between Texas residents entered into and to be performed entirely within Texas.
16.6 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which shall
together constitute one and the same instrument. A written consent executed
pursuant to SECTION 12 of this Agreement shall be deemed to be part of, and
constitute a counterpart of, this Agreement.
16.7 Headings. The headings used herein are solely for the
convenience of the parties and shall not serve to modify or interpret the text
of the Sections at the beginning of which they appear.
16.8 Entire Agreement. This Agreement embodies the entire agreement
and understanding among the Company and the Holders and supersedes all prior
oral and written agreements and understandings relating to the subject matter
hereof.
16.9 Waiver. Any waiver or consent under this Agreement shall be
effective only in the specific instance and for the purpose for which it was
given, and shall not constitute a continuing waiver or consent except as
specifically set forth in such waiver or consent. The election of any remedy
by a party hereto shall not constitute a waiver of the right of such party to
pursue other available remedies. No notice to or demand on a party not
expressly required under this Agreement shall entitle the party receiving such
notice or demand to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the party giving such
notice or demand to any other or further action in any circumstances without
such notice or demand.
16.10 Specific Performance. The Company recognizes that the rights of
the Holders of Registrable Stock under this Agreement are unique and,
accordingly, the Holders of Registrable Stock shall, in addition to such other
remedies as may be available to them at law or in equity, have the right to
enforce their rights hereunder by actions for injunctive relief and specific
performance to the extent permitted by law.
16.11 Grant of Registration Rights. The Company shall not grant to any
third party any registration rights more favorable than, or in any way
conflicting with, any of those contained herein, so long as any of the
registration rights under this Agreement remain in effect, provided, in any
event, (a) any grant of demand or required registration rights shall provide
that the Holders of Registrable Stock have incidental or "piggyback"
registration rights with respect thereto in accordance with the provisions of
SECTION 3 hereof, (b) such rights shall not become effective prior to the
rights of the Holders of the Registrable Stock hereunder, and (c) the
recipients of such rights shall be subject to provisions comparable to those
set forth in SECTION 10 hereof.
-23-
26
16.12 Termination of Prior Agreement. The parties to that certain
Registration Rights Agreement dated September 29, 1995, that certain Amended &
Restated Registration Rights Agreement dated July 22, 1996 and that certain
Second Amended and Restated Registration Rights Agreement dated November 11,
1996 (the "Prior Agreements") by and among the Company and the persons
designated as Holders therein (all of whom are parties to this Agreement),
hereby amend and restate such Prior Agreements and agree that such Prior
Agreements shall be null and void.
[signatures on next page]
-24-
27
IN WITNESS WHEREOF, the parties hereto have caused this Third Amended
and Restated Registration Rights Agreement to be executed on the day first
above written.
MPI Enterprises, L.L.C.
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
-25-
28
IN WITNESS WHEREOF, the parties hereto have caused this Third Amended
and Restated Registration Rights Agreement to be executed on the day first
above written.
The Company:
-----------
ILEX ONCOLOGY, INC.
By:
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. Love, President
Holders:
-------
ROVENT II LIMITED PARTNERSHIP
By: Advent International Limited
Partnership, General Partner
By: Advent International Corporation,
General Partner
By:
----------------------------------------
Vice President
ADVENT PERFORMANCE MATERIALS LIMITED
PARTNERSHIP
By: Advent International Limited
Partnership, General Partner
By: Advent International Corporation,
General Partner
By:
----------------------------------------
Vice President
ADVENTACT LIMITED PARTNERSHIP
By: Advent International Limited
Partnership, General Partner
By: Advent International Corporation,
General Partner
By:
----------------------------------------
Vice President
-26-
29
ADVENT INTERNATIONAL INVESTORS II LIMITED
PARTNERSHIP
By: Advent International Corporation,
General Partner
By:
----------------------------------------
Vice President
BIOVEN PARTNERS L.P.
By:
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Managing General Partner
BOSTON CAPITAL VENTURES III,
LIMITED PARTNERSHIP
By: BD Partners Limited Partnership
its General Partner
By:
----------------------------------------
General Partner
CROSS ATLANTIC PARTNERS K/S
By its General Partner: CAP/HAMBRO L.P.
By its General Partner: CAP/HAMBRO, INC.
By:
----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
CROSS ATLANTIC PARTNERS II K/S
By its General Partner: CAP/HAMBRO L.P.
By its General Partner: CAP/HAMBRO, INC.
By:
----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
-27-
30
CRYSTAL PARTNERS IV
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
DRUG ROYALTY CORPORATION INC.
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
---------------------------------------------
▇▇▇▇▇ ▇▇▇▇
---------------------------------------------
▇▇▇▇ ▇▇▇ ▇▇▇▇
---------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇, Jr.
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ DEVELOPMENT
CORPORATION
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
-28-
31
---------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇, M.D.
PERSEUS PHARMACEUTICALS, L.L.C.
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
PHARMACIA & UPJOHN COMPANY
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
---------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------------
▇▇▇ ▇▇▇▇▇
---------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇
---------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇
-29-
32
---------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
TRINITY UNIVERSITY
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
VECTOR SECURITIES INTERNATIONAL, INC.
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
---------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇., Ph.D.
---------------------------------------------
▇▇▇▇ ▇▇▇▇▇
---------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
CTRC: CTRC RESEARCH FOUNDATION
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
-30-
33
Founders:
---------------------------------------------
▇▇▇▇▇▇▇ ▇. Love
---------------------------------------------
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Ph.D.
---------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇
---------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., M.D.
-31-
34
EXHIBIT A
ADDRESS OF HOLDERS
Rovent II Limited Partnership
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Advent Performance Materials Limited Partnership
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ADVENTACT Limited Partnership
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Advent International Investors II Limited Partnership
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Bioven Partners L.P.
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Boston Capital Ventures III, Limited Partnership
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Cross Atlantic Partners K/S
c/o Hambro America Biosciences
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Cross Atlantic Partners II K/S
c/o Hambro America Biosciences
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Crystal Partners IV
▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
c/o ▇▇▇▇▇▇▇ Semiconductor Corp.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-32-
35
CTRC Research Foundation
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief Operating Officer
Drug Royalty Corporation Inc.
▇▇▇▇▇ ▇▇▇, ▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Mr. and Mrs. ▇▇▇▇▇ and ▇▇▇▇ ▇▇▇ ▇▇▇▇, as Joint Tenants with a Right of
Survivorship
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Chief Executive Officer
Standard Industries
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Mr. and ▇▇▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, as Joint Tenants with a Right of
Survivorship
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Mr. ▇▇▇▇▇ ▇▇▇▇▇▇, Jr.
▇▇▇▇ ▇▇▇▇▇▇▇▇, #▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ Development Corporation
▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
c/▇ ▇▇▇▇▇▇▇ Enterprises
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-33-
36
▇▇▇▇▇▇ ▇▇▇▇▇▇, M.D.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, #▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Perseus Pharmaceuticals, L.L.C.
The Army and Navy Club Building
▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇.▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Pharmacia & Upjohn Company
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Lon and ▇▇▇▇▇ ▇▇▇▇▇, as Joint Tenants with a Right of Survivorship
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Tower Life Building
Suite 701
San Antonio, TX 78205
▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
▇▇▇ ▇. ▇▇. ▇▇▇▇'▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Trinity University
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Rm. 100 ▇▇▇▇▇▇▇▇ ▇▇▇▇-Fiscal Affairs
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Vector Securities International, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇., Ph.D.
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-34-
37
Mr. ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
FOUNDERS
▇▇▇▇▇▇▇ ▇. Love
▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Ph.D.
▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-35-
