EXHIBIT 4.6
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement dated as of the __ day of
December, 2001 by and between Able Laboratories, Inc., a Delaware corporation
(the "Company"), and the Purchasers listed on the execution page of this
Agreement (the "Purchasers").
WHEREAS, simultaneously with the execution and delivery of this
Agreement, the Purchasers are purchasing from the Company, pursuant to the Stock
Purchase Agreement dated the date hereof (the "Purchase Agreement"), shares of
Common Stock, $.01 par value per share, of the Company; and
WHEREAS, the Company desires to grant to each Purchaser the
registration rights set forth herein with respect to the Registrable Securities
(as defined below).
NOW THEREFORE, the parties agree as follows:
1. DEFINITIONS. For all purposes of this Agreement, all of the words
and expressions used herein which are not defined herein, but which are defined
in the Purchase Agreement, shall have the same respective meanings herein as the
meanings specified therein. As used in this Agreement:
(a) the term "Business Day" shall mean any day other than
Saturday, Sunday or a day on which banking institutions are not
required to be open in The Commonwealth of Massachusetts.
(b) the term "Commission" shall mean the Securities and
Exchange Commission;
(c) the term "Common Shares" shall mean the shares of Common
Stock issued pursuant to the Purchase Agreement;
(d) the term "Common Stock" shall mean the Common Stock, par
value $0.01 per share, of the Company;
(e) the term "Exchange Act" shall mean the Securities Exchange
Act of 1934, as amended, or any federal statute or code which is a
successor thereto;
(f) the term "Form S-3" shall mean the form so designated,
promulgated by the Commission for registration of securities under
the Securities Act, and any forms succeeding to the functions of
such form, whether or not bearing the same designation;
(g) the term "Holder" shall mean any Purchaser;
(h) the terms "register", "registered" and "registration" shall
refer to a registration effected by preparing and filing a
registration statement in compliance with the Securities
Act and the declaration or ordering by the Commission of
effectiveness of such registration statement;
(i) the term "Registrable Securities" shall mean, in relation
to a Holder at any particular time: (i) all Common Shares and (ii)
shall not include any other shares of capital stock of the Company
without the consent of the Holder; PROVIDED, HOWEVER, that with
respect to any particular Registrable Security, such security shall
cease to be a Registrable Security when, as of the date of
determination, (A) it has been effectively registered under the
Securities Act and disposed of pursuant thereto, (B) registration
under the Securities Act is no longer required for the immediate
public distribution within a 90-day period of such security together
with all other Registrable Securities held by the Holder pursuant to
the provisions of Rule 144 thereunder, or (C) it has ceased to be
outstanding;
(j) the term "Registration Expenses" shall mean all expenses
incident to the Company's performance of or compliance with Section
3 and 4, including, without limitation, all registration, filing,
listing, and NASD fees, all fees and expenses of complying with
securities or blue sky laws, all word processing, duplicating,
printing and engraving expenses, messenger and delivery expenses,
the fees and disbursements of counsel for the Company and of its
independent public accountants, including the expenses of any audits
or comfort letters required by or incident to such performance and
compliance, the fees and disbursements of a single counsel retained
by the Holder or Holders of more than 50.1% of the Registrable
Securities, not to exceed $5,000, premiums and other costs of
policies of insurance against liabilities arising out of the public
offering of the Registrable Securities being registered, and any
fees and disbursements of underwriters customarily paid by issuers
or sellers of securities, but excluding underwriting discounts and
commissions and transfer taxes, if any.
(k) the term "Registration Statement" shall mean the
registration statement and any additional registration statements
contemplated by Section 3, including (in each case) the prospectus,
amendments and supplements to such registration statement or
prospectus, all exhibits thereto, and all material incorporated by
reference or deemed to be incorporated by reference in such
registration statement.
(l) the term "Rule 144" shall mean Rule 144 issued by the
Commission under the Securities Act, or any subsequent rule
pertaining to the disposition of securities without registration;
and
(m) the term "Securities Act" shall mean the Securities Act of
1933, as amended, or any federal statute or code which is a
successor thereto.
2. RESTRICTION ON TRANSFER. Each Holder acknowledges and understands
that prior to the registration of the Registrable Securities as provided herein,
the Registrable Securities are "restricted securities" as defined in Rule 144
and that no disposition or transfer of the Registrable Securities may be made by
the Holder in the absence of (i) an opinion of counsel to the Holder
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that such transfer may be made without registration under the Securities Act
(which shall be reasonably acceptable to the Company), or (ii) such
registration.
3. REGISTRATION ON FORM S-3. The Company will use its best efforts,
but in no event later than 90 days following the date hereof (the "Registration
Period"), prepare and file with the Commission a Registration Statement on Form
S-3 to permit a public offering and resale of the Registrable Securities under
the Securities Act on a continuous basis under Rule 415. Subject to receipt of
necessary information from the Holders, the Company will use commercially
reasonable efforts to cause the Registration Statement to be declared effective
by the Commission within the Registration Period. To the extent not unlawful,
the Company will pay all Registration Expenses of each registration of
Registrable Securities pursuant to this Section 3. The number of shares of
Common Stock designated in the Registration Statement to be registered shall be
equal to the number of Common Shares.
4. REGISTRATION PROCEDURES. The Company will use commercially
reasonable efforts in good faith to effect promptly the registration of the
Registrable Securities under the Securities Act and to permit the public
offering and resale of the Registrable Securities in accordance with the
intended method of disposition thereof, and, in connection therewith, the
Company, as expeditiously as shall be reasonably possible, will:
(a) prepare and file with the Commission a Registration
Statement with respect to the Registrable Securities, and thereafter
use its commercially reasonable efforts to cause such registration
statement to become and remain effective until the date that is one
year after the date such Registration Statement is declared
effective by the Commission or such earlier date when all
Registrable Securities covered by such Registration Statement have
been sold (the "Effectiveness Period"); PROVIDED, HOWEVER, that
before filing such Registration Statement or any amendments thereto,
the Company will furnish to the Holders and their counsel copies of
all such documents proposed to be filed.
(b) prepare and file with the Commission such amendments and
supplements to such Registration Statement and the prospectus
included in such Registration Statement as may be necessary or
advisable to comply in all material respects with the provisions of
the Securities Act with respect to the disposition of all securities
covered by such Registration Statement or as may be necessary to
keep such Registration Statement effective and current during the
Effectiveness Period;
(c) prepare and file with the Commission additional
Registration Statements if the number of Registrable Securities at
any time exceeds 100% of the number of shares of Common Stock then
registered in a Registration Statement within 30 days of such
occurrence.
(d) furnish to each seller of Registrable Securities such
number of copies of such Registration Statement, each amendment and
supplement thereto (in each case including all exhibits thereto),
the prospectus included in such Registration Statement (including
each preliminary prospectus) in conformity with the requirements of
the Securities Act,
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and such other documents as any such seller may reasonably request
in order to facilitate the disposition of the Registrable Securities
held by such seller;
(e) enter into such customary agreements and take all such
other customary actions in connection therewith in order to expedite
or facilitate the disposition of the Registrable Securities;
(f) use its commercially reasonable efforts to register and
qualify the Registrable Securities covered by such registration
statement under such securities or Blue Sky laws of such
jurisdictions as any seller shall reasonably request and do any and
all such other acts and things as may be reasonably necessary or
advisable to enable such seller to consummate the disposition in
such jurisdictions of the Registrable Securities held by such
seller; PROVIDED, HOWEVER that the Company shall not be required in
connection therewith to qualify to do business or file a general
consent to service of process in any such jurisdiction;
(g) notify each seller of Registrable Securities at any time
when a prospectus relating thereto is required to be delivered under
the Securities Act of the happening of any event as a result of
which the prospectus included in a 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 light of the
circumstances then existing and use its reasonable efforts to amend
or supplement such prospectus in order to cause such prospectus not
to include any 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; and
(h) use reasonable efforts to cause all Registrable Securities
to be listed on such securities exchange on which similar securities
of the Company are then listed and to be qualified for trading on
each system on which the securities issued by the Company are from
time to time qualified.
Notwithstanding the foregoing, if at any time or from time to time
after the date of effectiveness of the Registration Statement, the Company
notifies the Holders in writing of the existence of a Potential Material Event,
the Holders shall not offer or sell any Registrable Securities, or engage in any
other transaction involving or relating to the Registrable Securities, from the
time of the giving of notice with respect to a Potential Material Event until
such Holders receive written notice from the Company that such Potential
Material Event either has been disclosed to the public or no longer constitutes
a Potential Material Event; PROVIDED, HOWEVER, that the Company may not so
suspend the right of such Holders of Registrable Securities for more than two
twenty (20) Business Day periods in the aggregate during any period of 12
consecutive months, during the periods the Registration Statement is required to
be in effect ("Permitted Suspension Period") and; PROVIDED, FURTHER, that the
Effectiveness Period shall be extended by any Permitted Suspension Period;
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"Potential Material Event" shall mean any of the following: (i) the
possession by the Company of material information not ripe for disclosure in a
Registration Statement, which shall be evidenced by determination in good faith
by the Board of Directors of the Company that disclosure of such information in
the Registration Statement would be detrimental to the business and affairs of
the Company; or (ii) any material engagement or activity by the Company that
would, in the good faith determination of the Board of Directors of the Company,
be adversely affected by disclosure in a Registration Statement at such time,
which determination shall be accompanied by a good faith determination by the
Board of Directors of the Company that the registration statement would be
materially misleading absent the inclusion of such information.
5. COOPERATION BY PROSPECTIVE SELLERS, ETC.
(a) The Holders will furnish to the Company in writing such
information as the Company may reasonably require from the Holders
or as required by the Commission, and otherwise reasonably cooperate
with the Company in connection with any Registration Statement with
respect to such Registrable Securities.
(b) The Holders of Registrable Securities included in any
Registration Statement will not (until further notice) effect sales
thereof after receipt of telegraphic or written notice from the
Company to suspend sales to permit the Company to correct or update
such Registration Statement or prospectus.
(c) Each Holder agrees that it will deliver a prospectus in
accordance with the provisions of the Securities Act and all
applicable rules of the Commission in connection with each sale and
will notify the Company when it has sold all of its Registrable
Securities.
6. INDEMNIFICATION.
(a) Indemnification by the Company. The Company will indemnify
the Holders, the officers, directors, and partners of each such
Holder, and each person who controls any thereof (within the meaning
of the Securities Act), against any and all claims, losses, damages,
and liabilities (or actions in respect thereof), joint or several,
to which such Holder or any such officer, director, partner, or
controlling persons may become subject under the Securities Act or
otherwise arising out of or based on any untrue statement (or
alleged untrue statement) of any material fact contained in any
Registration Statement, prospectus, offering circular, or other
document, or any amendment or supplement thereto, incident to any
registration, qualification, or compliance (or in any related
registration statement, notification or the like) or any omission
(or alleged omission) to state therein any material fact required to
be stated therein or necessary to make the statements therein not
misleading, or any violation by the Company of any rule or
regulation promulgated under the Securities Act applicable to the
Company and relating to any action or inaction required of the
Company in connection with any such registration, qualification, or
compliance, and the Company will reimburse each such Holder,
officer, director, partner, and controlling person for any legal or
other expenses reasonably incurred in connection with investigating
or defending any such claim, loss,
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damage, liability, or action; PROVIDED, HOWEVER, that the Company
will not be liable in any such case to the extent that any such
claim, loss, damage, or liability arises out of or is based on any
untrue statement or omission based upon written information
furnished to the Company in an instrument duly executed by such
Holder, officer, director, partner, or controlling person and stated
to be exclusively and specifically for use therein. Such indemnity
shall remain in full force and effect regardless of any
investigation made by or on behalf of such Holder, officer,
director, partner, or controlling person.
(b) Indemnification by the Holders. Each Holder will indemnify
the Company, its officers and directors, and each person, if any,
who controls any thereof (within the meaning of the Securities Act)
and, if required by the underwriter effecting the related
registration, such underwriter, and their respective successors in
title and assigns against any and all claims, losses, damages, and
liabilities (or actions in respect thereof) with respect to any
untrue statement (or alleged untrue statement) of any material fact
contained in any Registration Statement, prospectus, offering
circular, or other document incident to any registration,
qualification or compliance (or in any related registration
statement, notification or the like) or any omission (or alleged
omission) to state therein any material fact required to be stated
therein or necessary to make the statement therein not misleading,
if such statement or alleged statement or omission or alleged
omission was made in reliance upon and in conformity with written
information furnished to the Company through an instrument duly
executed by such Holder specifically stating that it is for use in
the preparation of such Registration Statement, prospectus, offering
circular, or other document; and each Holder will reimburse the
Company and each other person indemnified pursuant to this paragraph
(b) for any legal and any other expenses reasonably incurred in
connection with investigating or defending any such claim, loss,
damage, liability or action; PROVIDED, HOWEVER, that such Holder's
liability under such indemnification shall be limited to the net
sales proceeds actually received by such Holder from the sale of
Registrable Securities pursuant to such Registration Statement,
prospectus, offering circular, or other document.
(c) Indemnification Proceedings. Each party entitled to
indemnification pursuant to this Section 6 (the "Indemnified Party")
shall give notice to the party required to provide indemnification
pursuant to this Section 6 (the "Indemnifying Party") promptly after
such Indemnified Party acquires actual knowledge of any claim as to
which indemnity may be sought, and shall permit the Indemnifying
Party (at its expense) to assume the defense of any claim or any
litigation resulting therefrom; PROVIDED that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or
litigation, shall be reasonably acceptable to the Indemnified Party,
and the Indemnified Party may participate in such defense at such
party's expense; and PROVIDED, FURTHER, that the failure by any
Indemnified Party to give notice as provided in this paragraph (c)
shall not relieve the Indemnifying Party of its obligations under
this Section 6 except to the extent that the Indemnifying Party is
damaged as a result of the failure to give notice. 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
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such claim or litigation. The reimbursement required by this Section
6 shall be made by periodic payments during the course of the
investigation or defense, as and when bills are received or expense,
loss, damage, or liability is incurred.
7. RULE 144 REQUIREMENTS. The Company will make publicly available
and available to the Holders of Registrable Securities, pursuant to Rule 144 of
the Commission under the Securities Act, such information as shall be necessary
to enable the Holders of Registrable Securities to make sales of Registrable
Securities pursuant to such rule. The Company will furnish to any Holder of
Registrable Securities, upon request made by such Holder at any time, a written
statement signed by the Company, addressed to such Holder, describing briefly
the action the Company has taken or proposes to take to comply with the current
public information requirements of Rule 144. The Company will, at the request of
any Holder of Registrable Securities, upon receipt from such Holder of a
certificate certifying (i) that such Holder has held such Registrable Securities
for a period of not less than one (1) year, (ii) that such Holder has not been
an affiliate (as defined in Rule 144) of the Company for more than the ninety
(90) preceding days, and (iii) as to such other matters as may be appropriate in
accordance with such rule, remove from the stock certificates representing such
Registrable Securities that portion of any restrictive legend which relates to
the registration provisions of the Securities Act, PROVIDED, HOWEVER, in the
event that Xxxxx, Xxxx & Xxxxx LLP is no longer counsel to Company, counsel to
Holder may provide such instructions to the transfer agent regarding the removal
of the restrictive legend.
8. MISCELLANEOUS.
(a) No Inconsistent Agreements. The Company will not, at any
time after the date of the Purchase Agreement, enter into any
agreement or contract (whether written or oral) with respect to any
of its securities that prevents the Company from complying in any
respect with the registration rights granted by the Company to the
Holders of Registrable Securities pursuant to this Agreement.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this paragraph (b), may not be amended,
modified, or supplemented, and any waiver or consent to or any
departure from any of the provisions of this Agreement may not be
given and shall not become or be effective, unless and until (in
each case) the Company shall have received the prior written consent
of the Holders of a majority of the Registrable Securities for any
such amendment, modification, supplement, waiver, or consent.
(c) Permitted Transferees. All of the agreements contained in,
and all of the rights granted by the Company pursuant to this
Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective heirs, successors, and assigns.
In addition, whether or not an express assignment shall have been
made, the provisions of this Agreement that are for the benefit of
the parties hereto other than the Company shall also benefit of and
be enforceable by any subsequent holder of any Registrable
Securities, PROVIDED, that the transfer Registrable Secutities to
such subsequent holder shall have
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been made in accordance with applicable laws and regulations and all
applicable provisions of the Purchase Agreement.
(d) Notices. All notices, requests, consents, and other
communications under this Agreement shall be in writing and shall be
delivered by hand, sent via overnight courier, sent by facsimile, or
mailed by first class certified or registered mail, return receipt
requested, postage prepaid:
if to the Company, to:
Able Laboratories, Inc.
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attn: President
with a copy to:
Xxxxx, Xxxx & Xxxxx LLP
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxx, Esq.
or to such other person at such other place as the Company shall
designate to the Holders in writing; and if to the Holders, at its
address as set forth in Exhibit A to the Purchase Agreement, or at
such other address or addresses as may have been furnished to the
Company in writing.
Notices provided in accordance with this Section 8(d) shall be
deemed delivered (i) upon personal delivery with signature required,
(ii) one Business Day after they have been sent to the recipient by
reputable overnight courier service (charges prepaid and signature
required) (iii) upon confirmation, answer back received, of
successful transmission of a facsimile message containing such
notice if sent between 9 a.m. and 5 p.m., local time of the
recipient, on any Business Day, and as of 9 a.m. local time of the
recipient on the next Business Day if sent at any other time, or
(iv) three Business Days after deposit in the mail.
(e) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but both
of which, when taken together, shall constitute but one instrument,
and shall become effective when one or more counterparts have been
signed by each party hereto and delivered to the other party.
(f) Term. The agreements of the Company contained in this
Agreement shall continue in full force and effect so long as any
Holder holds any Registrable Securities.
(g) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal, or unenforceable, the
validity, legality, and enforceability of any such provision in
every
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other respect and of the remaining provisions contained herein shall
not be affected or impaired thereby.
(h) Remedies. The parties agree that monetary damages would not
be adequate compensation for any loss incurred by reason of a breach
and hereby agrees to waive the defense in any action for specific
performance of such an obligation that a remedy at law would be
adequate.
(i) Governing Law. The provisions of this Agreement shall be
governed by and construed in accordance with the laws (other than
the choice-of-law rules) of the State of Delaware.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date first above written by their duly authorized
representatives shown below:
ABLE LABORATORIES, INC.
By:
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Name:
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Title:
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PURCHASERS
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(PRINT NAME OF STOCKHOLDER EXACTLY AS IT
SHOULD APPEAR ON THE STOCK CERTIFICATE)
By:
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(SIGNATURE OF STOCKHOLDER OR REPRESENTATIVE,
IF AN ENTITY)
Name:
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Title:
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Tax ID number:
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Address:
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Facsimile:
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(PRINT NAME OF STOCKHOLDER EXACTLY AS IT
SHOULD APPEAR ON THE STOCK CERTIFICATE)
By:
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(SIGNATURE OF STOCKHOLDER OR REPRESENTATIVE,
IF AN ENTITY)
Name:
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Title:
---------------------------------
Tax ID number:
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Address:
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Facsimile:
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