EXHIBIT 4.5
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and
entered into as of August 7, 2003 among GTX, INC., a Tennessee corporation (the
"Company"), and MEMPHIS BIOMED VENTURES I, L.P., a Delaware limited partnership
(the "Purchaser").
This Agreement is being entered into pursuant to that certain purchase
agreement dated as of the date hereof between the Company, the Purchaser and the
other purchasers set forth therein (the "Purchase Agreement") pursuant to which
the Purchaser is acquiring shares of the Company's Series E Preferred Stock (as
hereinafter defined).
The Company and the Purchaser hereby agree as follows:
1. Definitions.
(a) Capitalized terms used and not otherwise defined herein
shall have the meanings given such terms in the Purchase Agreement. As used in
this Agreement, the following terms shall have the following meanings:
"Advice" shall have the meaning set forth in Section 4(c).
"Affiliate" means, with respect to any Person, any other Person that
directly or indirectly controls or is controlled by or under common control with
such Person. For the purposes of this definition, "control," when used with
respect to any Person, means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or otherwise;
and the terms of "affiliated," "controlling" and "controlled" have meanings
correlative to the foregoing.
"Business Day" means any day except Saturday, Sunday and any day which
shall be a legal holiday or a day on which banking institutions in the State of
Tennessee generally are authorized or required by law or other government
actions to close.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means the Company's common stock, no par value per
share.
"Exchange" means, at any time and from time to time hereafter, any
securities exchange, automated interdealer quotation system or other
over-the-counter market on which any of the Company's securities are listed or
regularly traded or quoted.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Holder" or "Holders" means the holder or holders, as the case may be,
from time to time of Registrable Securities.
"Hyde Holders" means the holders of the Hyde Registrable Securities.
"Hyde Registrable Securities" means the "Registrable Securities" as
defined in the Hyde Registration Rights Agreement.
"Hyde Registration Rights Agreement" means that certain registration
rights agreement between the Company and J.R. Hyde, III, dated as of the date of
this Agreement.
"Indemnified Party" shall have the meaning set forth in Section 6(c).
"Indemnifying Party" shall have the meaning set forth in Section 6(c).
"Losses" shall have the meaning set forth in Section 6(a).
"Oracle Holders" means the holders of the Oracle Registrable
Securities.
"Oracle Registrable Securities" means the "Registrable Securities" as
defined in the Oracle Registration Rights Agreement.
"Oracle Registration Rights Agreement" means that certain registration
rights agreement between the Company and Oracle Partners, L.P., dated as of the
date of this Agreement.
"Other Securities" has the meaning set forth in Section 2(a).
"Person," whether or not capitalized, means a natural person,
corporation, partnership, trust, incorporated or unincorporated association,
joint venture, partnership (including a limited partnership), limited liability
company, joint stock company, government (or an agency or political subdivision
thereof) or other entity of any kind.
"Proceeding" means an action, claim, suit, investigation or proceeding
(including, without limitation, an investigation or partial proceeding, such as
a deposition), whether commenced or threatened.
"Prospectus" means the prospectus included in a registration statement
(including, without limitation, a prospectus that includes any information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under the Securities Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Registrable Securities covered by the
registration statement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference in such Prospectus.
"Purchase Agreement" as the meaning set forth in the second
introductory paragraph of this Agreement.
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"Purchaser Stock" means (i) Series D Preferred Stock issued to
Purchaser pursuant to that certain purchase agreement, dated as of July 17,
2002, by and among the Company, Oracle Partners, L.P., Oracle Institutional
Partners, L.P., J. R. Hyde, III, and the Purchaser; (ii) Series E Preferred
Stock issued to the Purchaser pursuant to the Purchase Agreement; and (iii) any
security issued as a dividend to a beneficial owner of the preferred stock
identified in subsections (i) and (ii).
"Registrable Securities" means (i) the shares of Common Stock now or at
any time hereafter issuable upon conversion of the Purchaser Stock and (ii) any
other securities which may hereafter become receivable by the Holders upon
conversion of the Purchaser Stock, including any dividend or other distribution
with respect to, conversion or exchange of, or in replacement of, Registrable
Securities.
"Rule 144" means Rule 144 promulgated by the Commission pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission having substantially the
same effect as such Rule.
"Rule 158" means Rule 158 promulgated by the Commission pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission having substantially the
same effect as such Rule.
"Rule 415" means Rule 415 promulgated by the Commission pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission having substantially the
same effect as such Rule.
"Securities Act" means the Securities Act of 1933, as amended.
"Series D Preferred Stock" means the 8% Series D Cumulative Convertible
Preferred Stock of the Company.
"Series E Preferred Stock" means the 8% Series E Cumulative Convertible
Preferred Stock of the Company.
(b) Use of the singular or of the plural shall be construed
to include both the singular and the plural unless the context clearly indicates
that only the singular or only the plural is intended. Use of any gender shall
be construed to include all other genders unless the context clearly indicates
that less than all the genders is intended.
2. Piggyback Registration Rights.
(a) Except as provided in Section 2(b) below, if, at any time
when there is not an effective registration statement covering the Registrable
Shares, the Company shall determine to prepare and file with the Commission a
registration statement relating to an offering for its own account or the
account of others under the Securities Act of any of its equity securities
("Other Securities"), other than on Form S-4 or Form S-8 (each as promulgated
under the Securities Act) or its then equivalents relating to equity securities
to be issued solely in connection with any acquisition of any entity or business
or equity securities issuable in
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connection with stock option or other employee benefit plans, then the Company
shall send to each Holder of Registrable Securities written notice of such
determination and, if within thirty (30) days after receipt of such notice, any
such Holder shall so request in writing (which request shall specify the number
of Registrable Securities intended to be disposed of by the Holders), the
Company will cause the registration under the Securities Act of all Registrable
Securities which the Company has been so requested to register by the Holders,
to the extent requisite to permit the disposition of the Registrable Securities
so to be registered, provided, however, that if at any time after giving written
notice of its intention to register Other Securities and prior to the effective
date of the registration statement filed in connection with such registration,
the Company shall determine for any reason not to register or to delay
registration of the Other Securities, the Company may, at its election, give
written notice of such determination to such Holders and, thereupon, (i) in the
case of a determination not to register, shall be relieved of its obligation to
register any Registrable Securities in connection with such registration (but
not from its obligation to pay expenses in accordance with Section 5 hereof),
and (ii) in the case of a determination to delay registering, shall be permitted
to delay registering any Registrable Securities being registered pursuant to
this Section 2(a) for the same period as the delay in registering the Other
Securities. The Company shall include in such registration statement all or any
part of the Registrable Securities which a Holder requests to be registered;
provided, however, that the Company shall not be required to register any
Registrable Securities pursuant to this Section 2(a) that are eligible for sale
pursuant to Rule 144(k) of the Securities Act. In the case of an underwritten
public offering, if the managing underwriter(s) or underwriter(s) should
reasonably object to the inclusion of the Registrable Securities in such
registration statement, or if the Company after consultation with the managing
underwriter should reasonably determine that the inclusion of such Registrable
Securities would materially adversely affect the offering contemplated in such
registration statement, and based on such determination recommends inclusion in
such registration statement of fewer or none of the Registrable Securities of
the Holders, then (x) the number of Registrable Securities of the Holders
included in such registration statement shall be reduced pro-rata among such
Holders, any Hyde Holders and any Oracle Holders seeking respectively to
register Registrable Securities, Hyde Registrable Securities or Oracle
Registrable Securities, or (y) none of the Registrable Securities, Hyde
Registrable Securities or Oracle Registrable Securities shall be included in
such registration statement, if the Company after consultation with the
underwriter(s) recommends the inclusion of none of such Registrable Securities,
Hyde Registrable Securities or Oracle Registrable Securities; provided, however,
that, in either case, except as set forth below, if securities are being offered
for the account of other persons or entities as well as the Company, such
reduction shall not represent a greater fraction of the number of Registrable
Securities intended to be offered by the Holders than the fraction of similar
reductions imposed on such other persons or entities (other than the Company).
(b) If, at any time when there is not an effective
registration statement covering the Registrable Shares, the Company is required
to prepare and file with the Commission a registration statement pursuant to the
Hyde Registration Rights Agreement or the Oracle Registration Rights Agreement,
then the Company shall send to each Holder of Registrable Securities written
notice of such requirement and, if within thirty (30) days after receipt of such
notice, any such Holder shall so request in writing (which request shall specify
the number of Registrable Securities intended to be disposed of by the Holders),
the Company will cause the registration under the Securities Act of all
Registrable Securities which the
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Company has been so requested to register by the Holders, to the extent
requisite to permit the disposition of the Registrable Securities so to be
registered. The Company shall include in such registration statement all or any
part of the Registrable Securities which a Holder requests to be registered;
provided, however, that the Company shall not be required to register any
Registrable Securities pursuant to this Section 2(b) that are eligible for sale
pursuant to Rule 144(k) of the Securities Act. In the case of an underwritten
public offering, if the Company after consultation with the managing underwriter
should reasonably determine that the inclusion of such Registrable Securities
would materially adversely affect the offering contemplated in such registration
statement, and based on such determination recommend inclusion in such
registration statement of fewer or none of the Registrable Securities, then the
number of Registrable Securities included in such registration statement shall
be reduced in accordance with the Hyde Registration Rights Agreement or the
Oracle Registration Rights Agreement, as applicable.
3. Registration Procedures. In connection with the Company's
registration obligations pursuant to Section 2 hereof, the Company shall:
(a) (i) Prepare and file with the Commission such amendments,
including post-effective amendments, to the registration statement as may be
necessary to keep the registration statement continuously effective as to the
applicable Registrable Securities; (ii) cause the related Prospectus to be
amended or supplemented by any required Prospectus supplement, and as so
supplemented or amended to be filed pursuant to Rule 424 (or any similar
provisions then in force) promulgated under the Securities Act; and (iii)
respond as promptly as practicable to any comments received from the Commission
with respect to the registration statement or any amendment thereto.
(b) Notify the Holders of Registrable Securities to be sold
as promptly as possible but in no event less than five (5) Business Days prior
to such filing, and confirm such notice in writing no later than one (1)
Business Day following the day when a Prospectus or any Prospectus supplement or
post-effective amendment to the registration statement: (A) is proposed to be
filed; (B) when the Commission notifies the Company whether there will be a
"review" of such registration statement and whenever the Commission comments in
writing on such registration statement; and (C) with respect to the registration
statement or any post-effective amendment, when the same has become effective,
and during the Effectiveness Period, (i) of any request by the Commission or any
other federal or state governmental authority for amendments or supplements to
the registration statement or Prospectus or for additional information; (ii) of
the issuance by the Commission of any stop order suspending the effectiveness of
the registration statement covering any or all of the Registrable Securities or
the initiation of any Proceedings for that purpose; (iii) of the receipt by the
Company of any notification with respect to the suspension of the qualification
or exemption from qualification of any of the Registrable Securities for sale in
any jurisdiction, or the initiation or threatening of any Proceeding for such
purpose; and (iv) of the occurrence of any event that makes any statement made
in the registration statement or Prospectus or any document incorporated or
deemed to be incorporated therein by reference untrue in any material respect or
that requires any revisions to the registration statement, Prospectus or other
documents so that, in the case of the registration statement or the Prospectus,
as the case may be, it will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
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necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(c) Use its best efforts to avoid the issuance of, or, if
issued, obtain the withdrawal of, (i) any order suspending the effectiveness of
the registration statement or (ii) any suspension of the qualification (or
exemption from qualification) of any of the Registrable Securities for sale in
any jurisdiction, at the earliest practicable moment.
(d) If requested by the Holders of a majority in interest of
the Registrable Securities, (i) promptly incorporate in a Prospectus supplement
or post-effective amendment to the registration statement such information as
the Company reasonably agrees should be included therein and (ii) make all
required filings of such Prospectus supplement or such post-effective amendment
as soon as practicable after the Company has received notification of the
matters to be incorporated in such Prospectus supplement or post-effective
amendment.
(e) Furnish to each Holder without charge, at least one
conformed copy of each registration statement and each amendment thereto,
including financial statements and schedules, all documents incorporated or
deemed to be incorporated therein by reference, and all exhibits to the extent
requested promptly after the filing of such documents with the Commission.
(f) Promptly deliver to each Holder, without charge, as many
copies of the Prospectus or Prospectuses (including each form of prospectus) and
each amendment or supplement thereto as such Persons may reasonably request.
(g) Prior to any public offering of Registrable Securities,
use its best efforts to register or qualify or cooperate with the selling
Holders in connection with the registration or qualification (or exemption from
such registration or qualification) of such Registrable Securities for offer and
sale under the securities or Blue Sky laws of such jurisdictions within the
United States as any Holder reasonably requests in writing, to keep each such
registration or qualification (or exemption therefrom) effective during the
effectiveness period of the Registration Statement and to do any and all other
acts or things necessary or advisable to enable the disposition in such
jurisdictions of the Registrable Securities covered by a registration statement;
provided, however, that the Company shall not be required to qualify generally
to do business in any jurisdiction where it is not then so qualified or to take
any action that would subject it to general service of process in any such
jurisdiction where it is not then so subject or subject the Company to any
material tax in any such jurisdiction where it is not then so subject.
(h) Cooperate with the Holders to facilitate the timely
preparation and delivery of certificates representing Registrable Securities to
be sold pursuant to a registration statement, which certificates shall be free
of all restrictive legends, and to enable such Registrable Securities to be in
such denominations and registered in such names as any Holder may request at
least two (2) Business Days prior to any sale of Registrable Securities.
(i) Upon the occurrence of any event contemplated by Section
3(b)(v), as promptly as practicable, prepare a supplement or amendment,
including a post-effective amendment, to the registration statement or a
supplement to the related Prospectus or any
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document incorporated or deemed to be incorporated therein by reference, and
file any other required document so that, as thereafter delivered, neither the
registration statement nor such Prospectus will contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(j) Use its best efforts to cause all Registrable Securities
relating to such registration statement to be listed on each Exchange.
(k) Comply in all material respects with all applicable rules
and regulations of the Commission and make generally available to its security
holders earning statements satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158 not later than 45 days after the end of any 12-month
period (or 90 days after the end of any 12-month period if such period is a
fiscal year) commencing on the first day of the first fiscal quarter of the
Company after the effective date of the registration statement, which statement
shall conform to the requirements of Rule 158.
(l) Require each selling Holder to furnish to the Company
information regarding such Holder and the distribution of such Registrable
Securities as is required by law to be disclosed in the registration statement,
and the Company may exclude from such registration the Registrable Securities of
any such Holder who fails to furnish such information within a reasonable time
prior to the filing of each registration statement, supplemented Prospectus
and/or amended registration statement.
4. Holder Obligations. In connection with the Company's
registration obligations hereunder, each Holder:
(a) Covenants and agrees that it will not sell any
Registrable Securities under the registration statement until it has received
copies of the Prospectus as then amended or supplemented as contemplated in
Section 3(f) and notice from the Company that such registration statement and
any post-effective amendments thereto have become effective as contemplated by
Section 3(b).
(b) Covenants and agrees that it and its officers, directors
or Affiliates, if any, will comply with the prospectus delivery requirements of
the Securities Act as applicable to them in connection with sales of Registrable
Securities pursuant to the registration statement.
(c) Agrees by its acquisition of the Registrable Securities
that, upon receipt of a notice from the Company of the occurrence of any event
of the kind described in Section 3(b)(i), Section 3(b)(ii), Section 3(b)(iii) or
Section 3(b)(iv), such Holder will forthwith discontinue disposition of such
Registrable Securities under the registration statement until such Holder's
receipt of the copies of the supplemented Prospectus and/or amended registration
statement contemplated by Section 3(i), or until it is advised in writing (the
"Advice") by the Company that the use of the applicable Prospectus may be
resumed, and, in either case, has received copies of any additional or
supplemental filings that are incorporated or deemed to be incorporated by
reference in such Prospectus or registration statement.
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5. Registration Expenses. All fees and expenses incident to the
performance of or compliance with this Agreement by the Company shall be borne
by the Company whether or not a registration statement is filed or becomes
effective and whether or not any Registrable Securities are sold pursuant to the
registration statement. The fees and expenses referred to in the foregoing
sentence shall include, without limitation, (i) all registration and filing fees
(including, without limitation, fees and expenses (A) with respect to filings
required to be made with any Exchange on which Registrable Securities are
required hereunder to be listed, (B) with respect to filings required to be made
with the Commission, (C) with respect to filings required to be made under the
rules of any Exchange and (D) in compliance with state securities or Blue Sky
laws, (ii) printing expenses (including, without limitation, expenses of
printing certificates for Registrable Securities and of printing prospectuses if
the printing of prospectuses is requested by the holders of a majority of the
securities included in the registration statement), (iii) messenger, telephone
and delivery expenses, (iv) Securities Act liability insurance, if the Company
so desires such insurance, and (v) fees and expenses of all other Persons
retained by the Company in connection with the consummation of the transactions
contemplated by this Agreement, including, without limitation, the Company's
independent public accountants (including the expenses of any comfort letters or
costs associated with the delivery by independent public accountants of a
comfort letter or comfort letters) and legal counsel. In addition, the Company
shall be responsible for all of its internal expenses incurred in connection
with the consummation of the transactions contemplated by this Agreement
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expense of any annual
audit, the fees and expenses incurred in connection with the listing of the
Registrable Securities on any securities exchange as required hereunder.
Notwithstanding the foregoing, the Company shall not be responsible for the
payment of (i) underwriting discounts or commissions.
6. Indemnification.
(a) Indemnification by the Company. The Company shall,
notwithstanding any termination of this Agreement, indemnify and hold harmless
each Holder, the officers, directors, agents, brokers (including brokers who
offer and sell Registrable Securities as principal as a result of a pledge or
any failure to perform under a margin call of Common Stock), investment advisors
and employees of each of them, each Person who controls any such Holder (within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act) and the officers, directors, agents and employees of each such controlling
Person, to the fullest extent permitted by applicable law, from and against any
and all losses, claims, damages, liabilities, reasonable costs (including,
without limitation, costs of preparation and reasonable attorneys' fees) and
expenses (collectively, "Losses"), as incurred, arising out of or relating to
any untrue or alleged untrue statement of a material fact contained in the
registration statement, any Prospectus or any form of prospectus or in any
amendment or supplement thereto or in any preliminary prospectus, or arising out
of or relating to any omission or alleged omission of a material fact required
to be stated therein or necessary to make the statements therein (in the case of
any Prospectus or form of prospectus or supplement thereto, in the light of the
circumstances under which they were made) not misleading, except to the extent,
but only to the extent, that such untrue statements or omissions are based
solely upon information regarding such Holder furnished in writing to the
Company by such Holder expressly for use therein, which information was
reasonably relied on by the Company for use therein or to the extent that such
information
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relates to such Holder or such Holder's proposed method of distribution of
Registrable Securities and was reviewed and expressly approved in writing by
such Holder expressly for use in the registration statement, such Prospectus or
such form of Prospectus or in any amendment or supplement thereto. The Company
shall notify the Holders promptly of the institution, threat or assertion of any
Proceeding of which the Company is aware in connection with the transactions
contemplated by this Agreement. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of an Indemnified
Party (as defined in Section 6(c) to this Agreement) and shall survive the
transfer of the Registrable Securities by the Holders.
(b) Indemnification by Holders. Each Holder shall, severally
and not jointly, indemnify and hold harmless the Company, the directors,
officers, agents and employees, each Person who controls the Company (within the
meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act),
and the directors, officers, agents or employees of such controlling Persons, to
the fullest extent permitted by applicable law, from and against all Losses, as
incurred, arising solely out of or based solely upon any untrue statement of a
material fact contained in the registration statement, any Prospectus, or any
form of prospectus, or arising solely out of or based solely upon any omission
of a material fact required to be stated therein or necessary to make the
statements therein (in the case of any Prospectus or form of prospectus or
supplement thereto, in the light of the circumstances under which they were
made) not misleading, to the extent, but only to the extent, that such untrue
statement or omission is contained in or omitted from any information so
furnished in writing by such Holder to the Company specifically for inclusion in
the registration statement or such Prospectus and that such information was
reasonably relied upon by the Company for use in the registration statement,
such Prospectus or such form of prospectus or to the extent that such
information relates to such Holder or such Holder's proposed method of
distribution of Registrable Securities and was reviewed and expressly approved
in writing by such Holder expressly for use in the registration statement, such
Prospectus or such form of Prospectus Supplement.
(c) Conduct of Indemnification Proceedings. If any Proceeding
shall be brought or asserted against any Person entitled to indemnity hereunder
(an "Indemnified Party"), such Indemnified Party promptly shall notify the
Person from whom indemnity is sought (the "Indemnifying Party) in writing, and
the Indemnifying Party shall assume the defense thereof, including the
employment of counsel reasonably satisfactory to the Indemnified Party and the
payment of all fees and expenses incurred in connection with defense thereof;
provided, that the failure of any Indemnified Party to give such notice shall
not relieve the Indemnifying Party of its obligations or liabilities pursuant to
this Agreement, except (and only) to the extent that it shall be finally
determined by a court of competent jurisdiction (which determination is not
subject to appeal or further review) that such failure shall have proximately
and materially adversely prejudiced the Indemnifying Party.
An Indemnified Party shall have the right to employ separate
counsel in any such Proceeding and to participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of such
Indemnified Party or Parties unless: (1) the Indemnifying Party has agreed in
writing to pay such fees and expenses; or (2) the Indemnifying Party shall have
failed promptly to assume the defense of such Proceeding and to employ counsel
reasonably satisfactory to such Indemnified Party in any such Proceeding; or (3)
the named parties to any such Proceeding (including any impleaded parties)
include both such Indemnified Party and the
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Indemnifying Party, and such Indemnified Party shall have been advised by
counsel that a conflict of interest is likely to exist if the same counsel were
to represent such Indemnified Party and the Indemnifying Party (in which case,
if such Indemnified Party notifies the Indemnifying Party in writing that it
elects to employ separate counsel at the expense of the Indemnifying Party, the
Indemnifying Party shall not have the right to assume the defense thereof and
such counsel shall be at the expense of the Indemnifying Party). The
Indemnifying Party shall not be liable for any settlement of any such Proceeding
effected without its written consent, which consent shall not be unreasonably
withheld. No Indemnifying Party shall, without the prior written consent of the
Indemnified Party, effect any settlement of any pending Proceeding in respect of
which any Indemnified Party is a party, unless such settlement includes an
unconditional release of such Indemnified Party from all liability on claims
that are the subject matter of such Proceeding.
All fees and expenses of the Indemnified Party (including
reasonable fees and expenses to the extent incurred in connection with
investigating or preparing to defend such Proceeding in a manner not
inconsistent with this Section) shall be paid to the Indemnified Party, as
incurred, within ten (10) Business Days of written notice thereof to the
Indemnifying Party (regardless of whether it is ultimately determined that an
Indemnified Party is not entitled to indemnification hereunder; provided, that
the Indemnifying Party may require such Indemnified Party to undertake to
reimburse all such fees and expenses to the extent it is finally judicially
determined that such Indemnified Party is not entitled to indemnification
hereunder).
(d) Contribution. If a claim for indemnification under
Section 6(a) or Section 6(b) is unavailable to an Indemnified Party because of a
failure or refusal of a governmental authority to enforce such indemnification
in accordance with its terms (by reason of public policy or otherwise), then
each Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such Losses, in such proportion as is appropriate to reflect the relative
fault of the Indemnifying Party and Indemnified Party in connection with the
actions, statements or omissions that resulted in such Losses as well as any
other relevant equitable considerations. The relative fault of such Indemnifying
Party and Indemnified Party shall be determined by reference to, among other
things, whether any action in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission of a material fact,
has been taken or made by, or relates to information supplied by, such
Indemnifying, Party or Indemnified Party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
action, statement or omission. The amount paid or payable by a party as a result
of any Losses shall be deemed to include, subject to the limitations set forth
in Section 6(c), any reasonable attorneys' or other reasonable fees or expenses
incurred by such party in connection with any Proceeding to the extent such
party would have been indemnified for such fees or expenses if the
indemnification provided for in this Section 6 was available to such party in
accordance with its terms.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 6(d) were determined by pro
rata allocation or by any other method of allocation that does not take into
account the equitable considerations referred to in the immediately preceding
paragraph. No Person guilty of fraudulent misrepresentation (within the
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meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation.
The indemnity and contribution agreements contained in this
Section are in addition to any liability that the Indemnifying Parties may have
to the Indemnified Parties
7. Rule 144. The Company covenants to timely file (or obtain
extensions in respect thereof and file within the applicable grace period) all
reports required to be filed by the Company after the date hereof pursuant to
Section 13(a) or 15(d) of the Exchange Act and promptly to furnish the Holders
with true and complete copies of all such filings. Upon the request of any
Holder, the Company shall deliver to such Holder a written certification of a
duly authorized officer as to whether it has complied with such requirements.
8. Miscellaneous.
(a) Remedies. In the event of a breach by the Company or by a
Holder, of any of their obligations under this Agreement, each Holder or the
Company, as the case may be, in addition to being entitled to exercise all
rights granted by law and under this Agreement, including recovery of damages,
will be entitled to specific performance of its rights under this Agreement. The
Company and each Holder agree that monetary damages would not provide adequate
compensation for any losses incurred by reason of a breach by it of any of the
provisions of this Agreement and hereby further agrees that, in the event of any
action for specific performance in respect of such breach, it shall waive the
defense that a remedy at law would be adequate.
(b) Specific Enforcement, Consent to Jurisdiction.
(i) The Company and the Holders acknowledge and agree
that irreparable damage would occur in the event that any of the
provisions of this Agreement or the Purchase Agreement were not
performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent or cure breaches of the
provisions of this Agreement or the Purchase Agreement and to enforce
specifically the terms and provisions hereof or thereof, this being in
addition to any other remedy to which any of them may be entitled by
law or equity.
(ii) Each of the Company and the Holders (i) hereby
irrevocably submits to the exclusive jurisdiction of the state and
federal courts located in Memphis, Tennessee for the purposes of any
suit, action or proceeding arising out of or relating to this Agreement
or the Purchase Agreement and (ii) hereby waives, and agrees not to
assert in any such suit, action or proceeding, any claim that it is not
personally subject to the jurisdiction of such court, that the suit,
action or proceeding is brought in an inconvenient forum or that the
venue of the suit, action or proceeding is improper. Each of the
Company and the Holders consents to process being served in any such
suit, action or proceeding by mailing a copy thereof to such party at
the address in effect for notices to it under this Agreement and agrees
that such service shall constitute good and
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sufficient service of process and notice thereof. Nothing in this
Section 8(b) shall affect or limit any right to serve process in any
other manner permitted by law.
(iii) If similar proceedings are instituted in courts
located in New York City, New York the Holders (i) hereby irrevocably
consent to the consolidation of proceedings in the state and federal
courts located in New York City, New York for the purposes of any suit,
action or proceeding arising out of or relating to this Agreement or
the Purchase Agreement and (ii) hereby waive, and agree not to assert
in any such suit, action or proceeding, any claim that it is not
personally subject to the jurisdiction of such court, that the suit,
action or proceeding is brought in an inconvenient forum or that the
venue of the suit, action or proceeding is improper.
(c) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the same shall be in writing and signed by the Company
and each of the Holders. Notwithstanding the foregoing, a waiver or consent to
depart from the provisions hereof with respect to a matter that relates
exclusively to the rights of Holders and that does not directly or indirectly
affect the rights of other Holders may be given by Holders of at least a
majority of the Registrable Securities to which such waiver or consent relates;
provided, however, that the provisions of this sentence may not be amended,
modified, or supplemented except in accordance with the provisions of the
immediately preceding sentence.
(d) Notices. Any and all notices or other communications or
deliveries required or permitted to be provided hereunder shall be in writing
and shall be deemed given and effective on the earlier of (i) the Business Day
following the date of deposit with a nationally recognized overnight courier
service or (ii) actual receipt by the party to whom such notice is required to
be given. The addresses for such communications shall be, with respect to each
Holder, at its address as set forth in the stock transfer records of the
Company, and with respect to the Company, addressed to:
GTx, Inc.
0 Xxxxx Xxxxxx Xxxxxx - 0xx Xxxxx
Xxx Xxxxx Xxxxxxxx
Xxxxxxx Xxxxxxxxx 00000
Attn: Xx. Xxxxx X. Xxxxxxx
Fax No.: (000) 000-0000
or to such other address or addresses as any such party may most recently have
designated in writing to the other parties hereto by such notice. Copies of
notices to the Company shall be sent to Xxxxx Xxxxxxxx, General Counsel, GTx,
Inc. 0 Xxxxx Xxxxxx Xxxxxx - 0xx Xxxxx Xxx Xxxxx, Xxxxxxxx Xxxxxxx Xxxxxxxxx
00000 Fax No.: (000) 000-0000. Copies of notices to the Purchaser shall be sent
to Baker, Donelson, Bearman & Xxxxxxxx, 000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxx
00000, Attention: Xxx Xxxxx, Esq. Fax (000) 000-0000.
(e) Successors and Assigns. This Agreement shall be binding
upon and inure to the
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benefit of the parties and their successors and permitted assigns and shall
inure to the benefit of each Holder and its successors and assigns. The Company
may not assign this Agreement or any of its rights or obligations hereunder
without the prior written consent of each Holder. Each Holder may assign its
rights hereunder in the manner and to the Persons as permitted under the
Purchase Agreement.
(f) Assignment of Registration Rights. The rights of each
Holder hereunder, including the right to have the Company register for resale
Registrable Securities in accordance with the terms of this Agreement, shall be
automatically assignable by each Holder to any transferee of such Holder of all
or a portion of the Purchaser Stock or the Registrable Securities if: (i) the
Holder agrees in writing with the transferee or assignee to assign such rights,
and a copy of such agreement is furnished to the Company within a reasonable
time after such assignment, (ii) the Company is, within a reasonable time after
such transfer or assignment, furnished with written notice of (a) the name and
address of such transferee or assignee, and (b) the securities with respect to
which such registration rights are being transferred or assigned, (iii)
following such transfer or assignment the further disposition of such securities
by the transferee or assignees is restricted under the Securities Act and
applicable state securities laws, (iv) at or before the time the Company
receives the written notice contemplated by clause (ii) of this Section 8(f),
the transferee or assignee agrees in writing with the Company to be bound by all
of the provisions of this Agreement, and (v) such transfer shall have been made
in accordance with the applicable requirements of the Purchase Agreement. In
addition, each Holder shall have the right to assign its rights hereunder to any
other Person with the prior written consent of the Company, which consent shall
not be unreasonably withheld. The rights to assignment shall apply to the
Holders (and to subsequent) successors and assigns.
(g) Counterparts. This Agreement may be executed in any
number of counterparts, each of which when so executed shall be deemed to be an
original and, all of which taken together shall constitute one and the same
Agreement. In the event that any signature is delivered by facsimile
transmission, such signature shall create a valid binding obligation of the
party executing (or on whose behalf such signature is executed) the same with
the same force and effect as if such facsimile signature were the original
thereof.
(h) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Tennessee, without regard
to principles of conflicts of law thereof. The courts of the state of Tennessee
and the federal courts located in the County of Shelby, Tennessee, shall have
exclusive jurisdiction with respect to any action or proceeding regarding this
Agreement, and each party hereby consents to the jurisdiction of such courts and
venue in the County of Shelby.
(i) Cumulative Remedies. The remedies provided herein are
cumulative and not exclusive of any remedies provided by law.
(j) Severability. If any term, provision, covenant or
restriction of this Agreement is held to be invalid, illegal, void or
unenforceable in any respect, the remainder of the terms, provisions, covenants
and restrictions set forth herein shall remain in full force and effect and
shall in no way be affected, impaired or invalidated, and the parties hereto
shall use their reasonable efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or
13
restriction. It is hereby stipulated and declared to be the intention of the
parties that they would have executed the remaining terms, provisions, covenants
and restrictions without including any of such that may be hereafter declared
invalid, illegal, void or unenforceable.
(k) Headings. The headings herein are for convenience only,
do not constitute a part of this Agreement and shall not be deemed to limit or
affect any of the provisions hereof.
(l) Shares Held by the Company and its Affiliates. Whenever
the consent or approval of Holders of a specified percentage of Registrable
Securities is required hereunder, Registrable Securities held by the Company or
its Affiliates (other than any Holder or transferees or successors or assigns
thereof if such Holder is deemed to be an Affiliate solely by reason of its
holdings of such Registrable Securities) shall not be counted in determining
whether such consent or approval was given by the Holders of such required
percentage.
(m) Notice of Effectiveness. Within two (2) business days
after the registration statement which includes the Registrable Securities is
ordered effective by the Commission, the Company shall deliver, and shall cause
legal counsel for the Company to deliver, to the transfer agent for such
Registrable Securities (with copies to the Holders whose Registrable Securities
are included in such registration statement) confirmation that the registration
statement has been declared effective by the Commission in the form attached
hereto as Exhibit A.
(n) Cancellation of Previous Registration Rights Agreements.
This Agreement replaces any and all existing registration rights agreements
between the Company and Purchaser (the "Previous Agreement"). The Company and
the Purchaser agree that as of the date hereof, neither party has any existing
liability or continuing obligation or right under any of the Previous
Agreements.
(o) Termination. Upon the sale of all the Registrable
Securities, the registration obligations of the Company under this Agreement
shall automatically terminate.
[SIGNATURE PAGES FOLLOW]
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In witness whereof, the parties hereto have caused this Registration
Rights Agreement to be duly executed by their respective authorized persons as
of the date first indicated above.
GTx, INC. MEMPHIS BIOMED VENTURES I, L.P., a
Delaware limited Partnership
By: /s/ Xxxxxxxx X. Xxxxxxx By: MB VENTURE PARTNERS, LLC, a
___________________________________ Delaware limited liability company,
Xxxxxxxx X. Xxxxxxx its General Partner
Vice-Chairman and Chief Executive
Officer
By: /s/ Xxxx X. Xxxxxxxxx
_________________________________
Xxxx X. Xxxxxxxxx, President
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EXHIBIT A
FORM OF NOTICE OF EFFECTIVENESS
OF REGISTRATION STATEMENT
[Name and Address of Counsel]
Re: GTx, Inc.
Dear [________]:
We are counsel to GTx, Inc., a Tennessee corporation (the "Company"),
and have represented the Company in connection with that certain purchase
agreement (the "Purchase Agreement") dated as of ___________ __, 2003 by and
among the Company and the purchaser named therein (the "Holder," which term
includes its successors and assigns) pursuant to which the Company issued to the
Holder its Series D 8% Cumulative Convertible Preferred Stock, which is
convertible into shares of the Company's common stock, no par value (the "Common
Stock"). Pursuant to the Purchase Agreement, the Company has also entered into a
Registration Rights Agreement with the Holders (the "Registration Rights
Agreement") pursuant to which the Company agreed, among other things, to
register the Registrable Securities (as defined in the Registration Rights
Agreement) under the Securities Act of 1933, as amended (the "1933 Act"). In
connection with the Company's obligations under the Registration Rights
Agreement, on ____________ ___, 200_, the Company filed a registration statement
on Form [S-1] (File No. 333-_____________) (the "Registration Statement") with
the Securities and Exchange Commission (the "SEC") relating to the Registrable
Securities which names each of the Holders as a selling stockholder thereunder.
In connection with the foregoing, we advise you that a member of the
SEC's staff has advised us by telephone that the SEC has entered an order
declaring the Registration Statement effective under the 1933 Act at [ENTER TIME
OF EFFECTIVENESS] on [ENTER DATE OF EFFECTIVENESS] and we have no knowledge,
after telephonic inquiry of a member of the SEC's staff, that any stop order
suspending its effectiveness has been issued or that any proceedings for that
purpose are pending before, or threatened by, the SEC and the Registrable
Securities are available for resale under the 1933 Act pursuant to the
Registration Statement.
Very truly yours,
By:______________________________
cc: [LIST NAMES OF HOLDERS]
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