REGISTRATION RIGHTS AGREEMENT
Exhibit 4.1
This REGISTRATION RIGHTS AGREEMENT (this “Agreement”), dated as of July 6, 2010, is by and
between Oncothyreon Inc., a Delaware corporation (the “Company”), and Small Cap Biotech Value,
Ltd., a business company incorporated under the laws of the British Virgin Islands (the
“Investor”).
RECITALS
A. The Company and the Investor have entered into that certain Common Stock Purchase
Agreement, dated as of the date hereof (the “Purchase Agreement”), pursuant to which the Company
may issue, from time to time, to the Investor up to the lesser of (i) $20,000,000 of newly issued
shares of the Company’s common stock, $0.0001 par value (“Common Stock”), and (ii) the Trading
Market Limit (as defined in the Purchase Agreement), as provided for therein.
B. Pursuant to the terms of, and in consideration for the Investor entering into, the Purchase
Agreement, the Company has issued to the Investor the Commitment Shares (as defined in the Purchase
Agreement) in accordance with the terms of the Purchase Agreement.
C. Pursuant to the terms of, and in consideration for the Investor entering into, the Purchase
Agreement, and to induce the Investor to execute and deliver the Purchase Agreement, the Company
has agreed to provide the Investor with certain registration rights with respect to the Registrable
Securities (as defined herein) as set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the premises, the representations, warranties, covenants
and agreements contained herein and in the Purchase Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, intending to be legally
bound hereby, the Company and the Investor hereby agree as follows:
1. | Definitions. |
Capitalized terms used herein and not otherwise defined herein shall have the respective
meanings set forth in the Purchase Agreement. As used in this Agreement, the following terms shall
have the following meanings:
(a) “Business Day” means any day other than Saturday, Sunday or any other day on which
commercial banks in New York, New York are authorized or required by law to remain closed.
(b) “Closing Date” shall mean the date of this Agreement.
(c) “Effective Date” means the date that the applicable Registration Statement has been
declared effective by the SEC.
(d) “Effectiveness Deadline” means (i) with respect to the initial Registration Statement
required to be filed to pursuant to Section 2(a), the earlier of (A) the 120th calendar
day after the Closing Date (or the 180th calendar day after the Closing Date if such
Registration Statement is subject to review by the SEC) and (B) the fifth Business Day after the
date the Company is notified (orally or in writing, whichever is earlier) by the SEC that such
Registration Statement will not be reviewed or will not be subject to further review and (ii) with
respect to any additional Registration Statements that may be required to be filed by the Company
pursuant to this Agreement, the earlier of (A) the 120th calendar day following the date
on which the Company was required to file such additional Registration Statement (or the
180th calendar day after such date if such Registration Statement is subject to review
by the SEC) and (B) the fifth Business Day after the date the Company is notified (orally or in
writing, whichever is earlier) by the SEC that such Registration Statement will not be reviewed or
will not be subject to further review.
(e) “Filing Deadline” means (i) with respect to the initial Registration Statement required to
be filed to pursuant to Section 2(a), the 60th calendar day after the Closing Date and (ii) with
respect to any additional Registration Statements that may be required to be filed by the Company
pursuant to this Agreement, the later of (A) the 60th calendar day following the sale of
substantially all of the Registrable Securities included in the initial Registration Statement or
the most recent prior additional Registration Statement, as applicable, and (B) six months
following the Effective Date of the initial Registration Statement or the most recent prior
additional Registration Statement, as applicable, or such earlier date as permitted by the SEC.
(f) “Person” means any person or entity, whether a natural person, trustee, corporation,
partnership, limited partnership, limited liability company, trust, unincorporated organization,
business association, firm, joint venture, governmental agency or authority.
(g) “register,” “registered,” and “registration” refer to a registration effected by preparing
and filing one or more Registration Statements in compliance with the Securities Act and pursuant
to Rule 415 and the declaration of effectiveness of such Registration Statement(s) by the SEC.
(h) “Registrable Securities” means (i) 5,090,759 Shares, (ii) the Commitment Shares and (iii)
any capital stock of the Company issued or issuable with respect to such Shares or Commitment
Shares, including, without limitation, (1) as a result of any stock split, stock dividend,
recapitalization, exchange or similar event or otherwise and (2) shares of capital stock of the
Company into which the shares of Common Stock are converted or exchanged and shares of capital
stock of a successor entity into which the shares of Common Stock are converted or exchanged.
(i) “Registration Statement” means a registration statement or registration statements of the
Company filed under the Securities Act covering the resale by the Investor of Registrable
Securities, as such registration statement or registration statements may be amended and
supplemented from time to time (including pursuant to Rule 462(b) under the Securities Act),
including all documents filed as part thereof or incorporated by reference therein.
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(j) “Rule 144” means Rule 144 promulgated by the SEC under the Securities Act, as such rule
may be amended from time to time, or any other similar or successor rule or regulation of the SEC
that may at any time permit the Investor to sell securities of the Company to the public without
registration.
(k) “Rule 415” means Rule 415 promulgated by the SEC under the Securities Act, as such rule
may be amended from time to time, or any other similar or successor rule or regulation of the SEC
providing for offering securities on a delayed or continuous basis.
(l) “SEC” means the U.S. Securities and Exchange Commission or any successor entity.
2. | Registration. |
(a) Mandatory Registration. The Company shall prepare and, as soon as practicable,
but in no event later than the Filing Deadline, file with the SEC an initial Registration Statement
on Form S-1, or such other form reasonably acceptable to the Investor and Legal Counsel, covering
the resale by the Investor of Registrable Securities in an amount equal to 5,150,680 shares of
Common Stock. Such initial Registration Statement shall contain (except if otherwise directed by
the Investor) the “Selling Stockholder” and “Plan of Distribution” sections in
substantially the form attached hereto as Exhibit B. The Company shall use its commercially
reasonable efforts to have such initial Registration Statement, and each other Registration
Statement required to be filed pursuant to the terms hereof, declared effective by the SEC as soon
as practicable, but in no event later than the applicable Effectiveness Deadline.
(b) Legal Counsel. Subject to Section 5 hereof, the Investor shall have the right to
select one legal counsel to review and oversee, solely on its behalf, any registration pursuant to
this Section 2 (“Legal Counsel”), which shall be Xxxxxxxxx Xxxxxxx, LLP or such other counsel as
thereafter designated by the Investor. Except as provided under Section 10.1(i) of the Purchase
Agreement, the Company shall have no obligation to reimburse the Investor for any and all legal
fees and expenses of the Legal Counsel incurred in connection with the transactions contemplated
hereby.
(c) Intentionally Omitted.
(d) Sufficient Number of Shares Registered. If at any time all Registrable Securities
are not covered by the initial Registration Statement filed pursuant to Section 2(a) as a result of
Section 2(h) or otherwise, the Company shall file with the SEC one or more additional Registration
Statements (on the short form available therefor, if applicable), so as to cover all of the
Registrable Securities not covered by such initial Registration Statement, in each case, as soon as
practicable (taking into account any Staff position with respect to date on which the Staff will
permit such additional Registration Statement(s) to be filed with the SEC), but in no event later
than the applicable Filing Deadline for such additional Registration Statement(s). The Company
shall use its commercially reasonable efforts to cause such additional Registration Statement(s) to
become effective as soon as practicable following the filing thereof with the SEC, but in no event
later than the applicable Effectiveness Deadline for such Registration Statement.
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(e) Piggyback Registrations. Without limiting any of the Company’s obligations
hereunder or under the Purchase Agreement, if there is not an effective Registration Statement
covering all of the Registrable Securities and the Company shall determine to prepare and file with
the SEC 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 than on Form S-4 or Form S-8
(each as promulgated under the Securities Act) or their 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 connection with the Company’s stock option or other employee benefit
plans), then the Company shall deliver to the Investor a written notice of such determination and,
if within five (5) days after the date of the delivery of such notice, the Investor shall so
request in writing, the Company shall include in such registration statement all or any part of
such Registrable Securities the offer and sale of which the Investor requests to be registered;
provided, however, the Company shall not be required to register the offer and sale
of any Registrable Securities pursuant to this Section 2(e) that are eligible for resale pursuant
to Rule 144 without restriction (including, without limitation, volume restrictions) and without
the need for current public information required by Rule 144(c)(1) (or Rule 144(i)(2), if
applicable) or that are the subject of a then-effective Registration Statement.
(f) No Inclusion of Other Securities. In no event shall the Company include any
securities other than Registrable Securities on any Registration Statement without the prior
written consent of the Investor. Subject to the proviso in Section 2(e), in connection with any
offering involving an underwriting of shares, the Company shall not be required under this Section
2 or otherwise to include the Registrable Securities of any Investor therein unless such Investor
accepts and agrees to the terms of the underwriting, which shall be reasonable and customary, as
agreed upon between the Company and the underwriters selected by the Company.
(g) Offering. If the staff of the SEC (the “Staff”) or the SEC seeks to characterize
any offering pursuant to a Registration Statement filed pursuant to this Agreement as constituting
an offering of securities that does not permit such Registration Statement to become effective and
be used for resales by the Investor on a delayed or continuous basis under Rule 415 at
then-prevailing market prices (and not fixed prices) (or as otherwise may be acceptable to the
Investor), or if after the filing of the initial Registration Statement with the SEC pursuant to
Section 2(a), the Company is otherwise required by the Staff or the SEC to reduce the number of
Registrable Securities included in such initial Registration Statement, then the Company shall
reduce the number of Registrable Securities to be included in such Registration Statement (with the
prior consent of the Investor and Legal Counsel as to the specific Registrable Securities to be
removed therefrom) until such time as the Staff and the SEC shall so permit such Registration
Statement to become effective and be used as aforesaid. Notwithstanding anything in this Agreement
to the contrary, if after giving effect to the actions referred to in the immediately preceding
sentence, the Staff or the SEC does not permit such Registration Statement to become effective and
be used for resales by the Investor on a delayed or continuous basis under Rule 415 at
then-prevailing market prices (and not fixed prices) (or as otherwise may be acceptable to the
Investor), the Company shall not request acceleration of the Effective Date of such Registration
Statement, the Company shall promptly (but in no event later than 48 hours) request the withdrawal
of such Registration Statement pursuant to Rule 477 under the Securities Act, and the Effectiveness
Deadline shall automatically be deemed to have elapsed with respect to such Registration Statement
at such time as the Staff or the SEC has made a final and non-appealable
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determination that the SEC will not permit such Registration Statement to be so utilized
(unless prior to such time the Company and the Investor have received assurances from the Staff or
the SEC reasonably acceptable to Legal Counsel that a new Registration Statement filed by the
Company with the SEC promptly thereafter may be so utilized). In the event of any reduction in
Registrable Securities pursuant to this paragraph, the Company shall file additional Registration
Statements in accordance with Section 2(d) until such time as all Registrable Securities have been
included in Registration Statements that have been declared effective and the prospectus contained
therein is available for use by the Investor.
3. | Related Obligations. |
The Company shall use its commercially reasonable efforts to effect the registration of the
Registrable Securities in accordance with the intended method of disposition thereof, and, pursuant
thereto, the Company shall have the following obligations:
(a) The Company shall promptly prepare and file with the SEC a Registration Statement with
respect to the Registrable Securities (but in no event later than the applicable Filing Deadline)
and use its commercially reasonable efforts to cause such Registration Statement to become
effective as soon as practicable after such filing (but in no event later than the applicable
Effectiveness Deadline). Subject to Allowable Grace Periods, the Company shall keep each
Registration Statement effective (and the prospectus contained therein available for use) pursuant
to Rule 415 for resales by the Investor on a delayed or continuous basis at then-prevailing market
prices (and not fixed prices) at all times until the earlier of (i) the date as of which the
Investor may sell all of the Registrable Securities required to be covered by such Registration
Statement (disregarding any reduction pursuant to Section 2(g)) without restriction pursuant to
Rule 144 and without the need for current public information as required by Rule 144(c)(1) (or Rule
144(i)(2), if applicable) and (ii) the date on which the Investor shall have sold all of the
Registrable Securities covered by such Registration Statement (the “Registration Period”).
Notwithstanding anything to the contrary contained in this Agreement (but subject to the provisions
of Section 3(q) hereof), the Company shall ensure that, when filed and at all times while
effective, each Registration Statement (including, without limitation, all amendments and
supplements thereto) and the prospectus (including, without limitation, all amendments and
supplements thereto) used in connection with such Registration Statement (1) shall not contain 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 (in the case of prospectuses, in the light of the
circumstances in which they were made) not misleading and (2) will disclose (whether directly or
through incorporation by reference to other SEC filings to the extent permitted) all material
information regarding the Company and its securities. The Company shall submit to the SEC, within
two (2) Business Days after the later of the date that (i) the Company learns that no review of a
particular Registration Statement will be made by the Staff or that the Staff has no further
comments on a particular Registration Statement (as the case may be) and (ii) the approval of Legal
Counsel is obtained pursuant to Section 3(c) (which approval shall be promptly sought), a request
for acceleration of effectiveness of such Registration Statement to a time and date not later than
forty-eight (48) hours after the submission of such request.
(b) Subject to Section 3(q) of this Agreement, the Company shall prepare and file with the SEC
such amendments (including, without limitation, post-effective amendments) and
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supplements to each Registration Statement and the prospectus used in connection with each
such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under
the Securities Act, as may be necessary to keep each such Registration Statement effective (and the
prospectus contained therein current and available for use) at all times during the Registration
Period for such Registration Statement, and, during such period, comply with the provisions of the
Securities Act with respect to the disposition of all Registrable Securities of the Company
required to be covered by such Registration Statement until such time as all of such Registrable
Securities shall have been disposed of in accordance with the intended methods of disposition by
the seller or sellers thereof as set forth in such Registration Statement. Without limiting the
generality of the foregoing, the Company covenants and agrees that (i) at or before 8:30 a.m. (New
York City time) on the Trading Day immediately following each Effective Date, the Company shall
file with the SEC in accordance with Rule 424(b) under the Securities Act the final prospectus to
be used in connection with sales pursuant to the applicable Registration Statement, and (ii) if the
transactions contemplated by any Fixed Request (as defined in the Purchase Agreement) are material
to the Company (individually or collectively with all other prior Fixed Requests, the consummation
of which have not previously been reported in any prospectus supplement filed with the SEC under
Rule 424(b) under the Securities Act or in any periodic report filed by the Company with the SEC
under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), or if otherwise
required under the Securities Act, in each case as reasonably determined by the Company or the
Investor, then, on the first Trading Day immediately following the last Trading Day of the Pricing
Period with respect to such Fixed Request, the Company shall file with the SEC a prospectus
supplement pursuant to Rule 424(b) under the Securities Act with respect to the applicable Fixed
Request(s), disclosing the total Fixed Amount Requested or the Alternative Fixed Amount Requested
(as applicable) pursuant to such Fixed Request(s), the total number of Shares that have been (or
are to be) issued and sold to the Investor pursuant to such Fixed Request(s), the total purchase
price for the Shares subject to such Fixed Request(s), the applicable Discount Price(s) for such
Shares and the net proceeds that have been (or are to be) received by the Company from the sale of
such Shares. To the extent not previously disclosed in the prospectus or a prospectus supplement,
the Company shall disclose in its Quarterly Reports on Form 10-Q and in its Annual Reports on Form
10-K the information described in the immediately preceding sentence relating to any Fixed
Request(s) consummated during the relevant fiscal quarter. In the case of amendments and
supplements to any Registration Statement or prospectus which are required to be filed pursuant to
this Agreement (including, without limitation, pursuant to this Section 3(b)) by reason of the
Company filing a report on Form 8-K, Form 10-Q or Form 10-K or any analogous report under the
Exchange Act, the Company shall have incorporated such report by reference into such Registration
Statement and prospectus, if applicable, or shall file such amendments or supplements to the
Registration Statement or prospectus with the SEC on the same day on which the Exchange Act report
is filed which created the requirement for the Company to amend or supplement such Registration
Statement or prospectus, for the purpose of including or incorporating such report into such
Registration Statement and prospectus. The Company consents to the use of the prospectus
(including, without limitation, any supplement thereto) included in each Registration Statement in
accordance with the provisions of the Securities Act and with the securities or “Blue Sky” laws of
the jurisdictions in which the Registrable Securities may be sold by the Investor, in connection
with the resale of the Registrable Securities and for such period of time thereafter as such
prospectus (including, without limitation, any supplement thereto) (or in lieu thereof, the
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notice referred to in Rule 173(a) under the Securities Act) is required by the Securities Act
to be delivered in connection with resales of Registrable Securities.
(c) The Company shall (A) permit Legal Counsel to review and comment upon (i) each
Registration Statement at least five (5) Business Days prior to its filing with the SEC (or such
shorter period as may be agreed to by the Investor and Legal Counsel) and (ii) all amendments and
supplements to each Registration Statement (including, without limitation, the prospectus contained
therein) (except for Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports
on Form 8-K, and any similar or successor reports or prospectus supplements the contents of which
is limited to that set forth in such reports) within a reasonable number of days prior to their
filing with the SEC, and (B) not file any Registration Statement or amendment or supplement thereto
or to any prospectus contained therein in a form to which Legal Counsel reasonably objects. The
Company shall not submit a request for acceleration of the effectiveness of a Registration
Statement or any amendment or supplement thereto without the prior consent of Legal Counsel, which
consent shall not be unreasonably withheld. The Company shall promptly furnish to Legal Counsel,
without charge, (i) electronic copies of any correspondence from the SEC or the Staff to the
Company or its representatives relating to each Registration Statement (which correspondence shall
be redacted to exclude any material, non-public information regarding the Company or any of its
Subsidiaries), (ii) after the same is prepared and filed with the SEC, one (1) electronic copy of
each Registration Statement and any amendment(s) and supplement(s) thereto, including, without
limitation, financial statements and schedules, all documents incorporated therein by reference, if
requested by the Investor, and all exhibits and (iii) upon the effectiveness of each Registration
Statement, one (1) electronic copy of the prospectus included in such Registration Statement and
all amendments and supplements thereto. The Company shall reasonably cooperate with Legal Counsel
in performing the Company’s obligations pursuant to this Section 3.
(d) Without limiting any obligation of the Company under the Purchase Agreement, the Company
shall promptly furnish to the Investor, without charge, (i) after the same is prepared and filed
with the SEC, at least one (1) electronic copy of each Registration Statement and any amendment(s)
and supplement(s) thereto, including, without limitation, financial statements and schedules, all
documents incorporated therein by reference, if requested by the Investor, all exhibits and each
preliminary prospectus, (ii) upon the effectiveness of each Registration Statement, ten (10) copies
of the prospectus included in such Registration Statement and all amendments and supplements
thereto (or such other number of copies as the Investor may reasonably request from time to time)
and (iii) such other documents, including, without limitation, copies of any preliminary or final
prospectus, as the Investor may reasonably request from time to time in order to facilitate the
disposition of the Registrable Securities owned by the Investor.
(e) The Company shall take such action as is necessary to (i) register and qualify, unless an
exemption from registration and qualification applies, the resale by the Investor of the
Registrable Securities covered by a Registration Statement under such other securities or “Blue
Sky” laws of all applicable jurisdictions in the United States, (ii) prepare and file in those
jurisdictions, such amendments (including, without limitation, post-effective amendments) and
supplements to such registrations and qualifications as may be necessary to maintain the
effectiveness thereof during the Registration Period, (iii) take such other actions as may be
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necessary to maintain such registrations and qualifications in effect at all times during the
Registration Period, and (iv) take all other actions reasonably necessary or advisable to qualify
the Registrable Securities for sale in such jurisdictions; provided, however, the
Company shall not be required in connection therewith or as a condition thereto to (x) qualify to
do business in any jurisdiction where it would not otherwise be required to qualify but for this
Section 3(e), (y) subject itself to general taxation in any such jurisdiction, or (z) file a
general consent to service of process in any such jurisdiction. The Company shall promptly notify
Legal Counsel and the Investor of the receipt by the Company of any notification with respect to
the suspension of the registration or qualification of any of the Registrable Securities for sale
under the securities or “Blue Sky” laws of any jurisdiction in the United States or its receipt of
actual notice of the initiation or threatening of any proceeding for such purpose.
(f) The Company shall notify Legal Counsel and the Investor in writing of the happening of any
event, as promptly as practicable after becoming aware of such 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 omission 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 (provided that in no event shall such notice contain any material, non-public
information regarding the Company or any of its Subsidiaries), and, subject to Section 3(q),
promptly prepare a supplement or amendment to such Registration Statement and such prospectus
contained therein to correct such untrue statement or omission and deliver ten (10) copies of such
supplement or amendment to Legal Counsel and the Investor (or such other number of copies as Legal
Counsel or the Investor may reasonably request). The Company shall also promptly notify Legal
Counsel and the Investor in writing (i) when a prospectus or any prospectus supplement or
post-effective amendment has been filed, when a Registration Statement or any post-effective
amendment has become effective (notification of such effectiveness shall be delivered to Legal
Counsel and the Investor by facsimile or e-mail on the same day of such effectiveness and by
overnight mail), and when the Company receives written notice from the SEC that a Registration
Statement or any post-effective amendment will be reviewed by the SEC, (ii) of any request by the
SEC for amendments or supplements to a Registration Statement or related prospectus or related
information, (iii) of the Company’s reasonable determination that a post-effective amendment to a
Registration Statement would be appropriate and (iv) of the receipt of any request by the SEC or
any other federal or state governmental authority for any additional information relating to the
Registration Statement or any amendment or supplement thereto or any related prospectus. The
Company shall respond as promptly as practicable to any comments received from the SEC with respect
to a Registration Statement or any amendment thereto. Nothing in this Section 3(f) shall limit any
obligation of the Company under the Purchase Agreement.
(g) The Company shall (i) use its reasonable best efforts to prevent the issuance of any stop
order or other suspension of effectiveness of a Registration Statement or the use of any prospectus
contained therein, or the suspension of the qualification, or the loss of an exemption from
qualification, of any of the Registrable Securities for sale in any jurisdiction and, if such an
order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest
possible time and (ii) notify Legal Counsel and the Investor of the issuance of such order and the
resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding
for such purpose.
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(h) Upon the written request of the Investor, the Company shall make available for inspection
during normal business hours by (i) the Investor, (ii) legal counsel for the Investor and (iii) one
(1) firm of accountants or other agents retained by such Investor (collectively, the “Inspectors”),
all pertinent financial and other records, and pertinent corporate documents and properties of the
Company (collectively, the “Records”), as shall be reasonably deemed necessary by each Inspector,
and cause the Company’s officers, directors and employees to supply all information which any
Inspector may reasonably request; provided, however, each Inspector shall agree in
writing to hold in strict confidence and not to make any disclosure (except to the Investor) or use
of any Record or other information which the Company’s board of directors determines in good faith
to be confidential, and of which determination the Inspectors are so notified, unless (a) the
disclosure of such Records is necessary to avoid or correct a misstatement or omission in any
Registration Statement or is otherwise required under the Securities Act, (b) the release of such
Records is ordered pursuant to a final, non-appealable subpoena or order from a court or government
body of competent jurisdiction, or (c) the information in such Records has been made generally
available to the public other than by disclosure in violation of this Agreement or any other
Transaction Document (as defined in the Purchase Agreement). The Investor agrees that it shall,
upon learning that disclosure of such Records is sought in or by a court or governmental body of
competent jurisdiction or through other means, give prompt notice to the Company and allow the
Company, at its expense, to undertake appropriate action to prevent disclosure of, or to obtain a
protective order for, the Records deemed confidential. Nothing herein (or in any other
confidentiality agreement between the Company and the Investor, if any) shall be deemed to limit
the Investor’s ability to sell Registrable Securities in a manner which is otherwise consistent
with applicable laws and regulations.
(i) The Company shall hold in confidence and not make any disclosure of information concerning
the Investor provided to the Company unless (i) disclosure of such information is necessary to
comply with federal or state securities laws, (ii) the disclosure of such information is necessary
to avoid or correct a misstatement or omission in any Registration Statement or is otherwise
required to be disclosed in such Registration Statement pursuant to the Securities Act, (iii) the
release of such information is ordered pursuant to a subpoena or other final, non-appealable order
from a court or governmental body of competent jurisdiction, or (iv) such information has been made
generally available to the public other than by disclosure in violation of this Agreement or any
other Transaction Document. The Company agrees that it shall, upon learning that disclosure of such
information concerning the Investor is sought in or by a court or governmental body of competent
jurisdiction or through other means, give prompt written notice to the Investor and allow the
Investor, at the Investor’s expense, to undertake appropriate action to prevent disclosure of, or
to obtain a protective order for, such information.
(j) Without limiting any obligation of the Company under the Purchase Agreement, the Company
shall use its reasonable best efforts either to (i) cause all of the Registrable Securities covered
by each Registration Statement to be listed on each securities exchange on which securities of the
same class or series issued by the Company are then listed, if any, if the listing of such
Registrable Securities is then permitted under the rules of such exchange or (ii) secure
designation and quotation of all of the Registrable Securities covered by each Registration
Statement on the OTC Bulletin Board, or (iii) if, despite the Company’s reasonable best efforts to
satisfy the preceding clauses (i) or (ii) the Company is unsuccessful in satisfying the preceding
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clauses (i) or (ii), without limiting the generality of the foregoing, to use its reasonable
best efforts to arrange for at least two market makers to register with the Financial Industry
Regulatory Authority (f/k/a the National Association of Securities Dealers, Inc.) (“FINRA”) as such
with respect to such Registrable Securities. In addition, the Company shall cooperate with the
Investor and any Broker-Dealer through which the Investor proposes to sell its Registrable
Securities in effecting a filing with FINRA pursuant to FINRA Rule 5110 as requested by the
Investor. The Company shall pay all fees and expenses in connection with satisfying its obligation
under this Section 3(j).
(k) The Company shall cooperate with the Investor and, to the extent applicable, facilitate
the timely preparation and delivery of certificates (not bearing any restrictive legend)
representing the Registrable Securities to be offered pursuant to a Registration Statement and
enable such certificates to be in such denominations or amounts (as the case may be) as the
Investor may reasonably request from time to time and registered in such names as the Investor may
request. Certificates for Registrable Securities free from all restrictive legends may be
transmitted by the transfer agent to the Investor by crediting an account at DTC as directed by the
Investor.
(l) If requested by the Investor, the Company shall as soon as practicable after receipt of
notice from the Investor and subject to Section 3(q) hereof, (i) incorporate in a prospectus
supplement or post-effective amendment such information as the Investor reasonably requests to be
included therein relating to the sale and distribution of Registrable Securities, including,
without limitation, information with respect to the number of Registrable Securities being offered
or sold, the purchase price being paid therefor and any other terms of the offering of the
Registrable Securities to be sold in such offering; (ii) make all required filings of such
prospectus supplement or post-effective amendment after being notified of the matters to be
incorporated in such prospectus supplement or post-effective amendment; and (iii) supplement or
make amendments to any Registration Statement or prospectus contained therein if reasonably
requested by the Investor.
(m) The Company shall use its reasonable best efforts to cause the Registrable Securities
covered by a Registration Statement to be registered with or approved by such other governmental
agencies or authorities as may be necessary to consummate the disposition of such Registrable
Securities.
(n) The Company shall make generally available to its security holders as soon as practical,
but not later than ninety (90) days after the close of the period covered thereby, an earnings
statement (in form complying with, and in the manner provided by, the provisions of Rule 158 under
the Securities Act) covering a twelve-month period beginning not later than the first day of the
Company’s fiscal quarter next following the applicable Effective Date of each Registration
Statement.
(o) The Company shall otherwise use its reasonable best efforts to comply with all applicable
rules and regulations of the SEC in connection with any registration hereunder.
(p) Within one (1) Business Day after each Registration Statement which covers Registrable
Securities is declared effective by the SEC, the Company shall deliver, and shall
10
cause legal counsel for the Company to deliver, to the transfer agent for such Registrable
Securities (with copies to the Investor) confirmation that such Registration Statement has been
declared effective by the SEC in the form attached hereto as Exhibit A.
(q) Notwithstanding anything to the contrary herein (but subject to the last sentence of this
Section 3(q)), at any time after the Effective Date of a particular Registration Statement, the
Company may delay the disclosure of material, non-public information concerning the Company or any
of its Subsidiaries the disclosure of which at the time is not, in the good faith opinion of the
board of directors of the Company, in the best interest of the Company and, in the opinion of
counsel to the Company, otherwise required (a “Grace Period”), provided that the Company shall
promptly, but in no event later than 9:30 a.m. (New York City time) on the second Trading Day
immediately prior to the commencement of any Grace Period (except for such case where it is
impossible to provide such two-Trading Day advance notice, in which case the Company shall provide
such notice as soon as possible), notify the Investor in writing of the (i) existence of material,
non-public information giving rise to a Grace Period (provided that in each such notice the Company
shall not disclose the content of such material, non-public information to the Investor) and the
date on which such Grace Period will begin and (ii) date on which such Grace Period ends, provided
further that (I) no Grace Period shall exceed 20 consecutive Trading Days and during any 365-day
period all such Grace Periods shall not exceed an aggregate of 60 Trading Days; provided, further,
that the Company shall not register any securities for the account of itself or any other
stockholder during any such Grace Period (other than pursuant to a registration statement on Form
S-4 or S-8), (II) the first day of any Grace Period must be at least three Trading Days (or such
shorter period as may be agreed by the parties) after the last day of any prior Grace Period and
(III) no Grace Period may exist during (A) the first 10 consecutive Trading Days after the
Effective Date of the particular Registration Statement or (B) the five-Trading Day period
following each Settlement Date (each, an “Allowable Grace Period”). For purposes of determining the
length of a Grace Period above, such Grace Period shall begin on and include the date set forth in
the notice referred to in clause (i) above, provided that such notice is received by the Investor
not later than 9:30 a.m. (New York City time) on the second Trading Day immediately prior to such
commencement date (except for such case where it is impossible to provide such two-Trading Day
advance notice, in which case the Company shall provide such notice as soon as possible) and shall
end on and include the later of the date the Investor receives the notice referred to in clause
(ii) above and the date referred to in such notice. The provisions of Section 3(l) hereof shall not
be applicable during the period of any Allowable Grace Period. Upon expiration of each Grace
Period, the Company shall again be bound by the first sentence of Section 3(f) with respect to the
information giving rise thereto unless such material, non-public information is no longer
applicable. Notwithstanding anything to the contrary contained in this Section 3(q), the Company
shall cause its transfer agent to deliver unlegended shares of Common Stock to a transferee of the
Investor in accordance with the terms of the Purchase Agreement in connection with any sale of
Registrable Securities with respect to which the Investor has entered into a contract for sale, and
delivered a copy of the prospectus included as part of the particular Registration Statement to the
extent applicable, prior to the Investor’s receipt of the notice of a Grace Period and for which
the Investor has not yet settled.
11
(r) The Company shall take all other reasonable actions necessary to expedite and facilitate
disposition by the Investor of its Registrable Securities pursuant to each Registration Statement.
4. | Obligations of the Investor. |
(a) At least five Business Days prior to the first anticipated filing date of each
Registration Statement (or such shorter period to which the parties agree), the Company shall
notify the Investor in writing of the information the Company requires from the Investor with
respect to such Registration Statement. It shall be a condition precedent to the obligations of the
Company to complete the registration pursuant to this Agreement with respect to the Registrable
Securities of the Investor that the Investor shall furnish to the Company such information
regarding itself, the Registrable Securities held by it and the intended method of disposition of
the Registrable Securities held by it, as shall be reasonably required to effect and maintain the
effectiveness of the registration of such Registrable Securities and shall execute such documents
in connection with such registration as the Company may reasonably request.
(b) The Investor, by its acceptance of the Registrable Securities, agrees to cooperate with
the Company as reasonably requested by the Company in connection with the preparation and filing of
each Registration Statement hereunder, unless the Investor has notified the Company in writing of
the Investor’s election to exclude all of the Investor’s Registrable Securities from such
Registration Statement.
(c) The Investor agrees that, upon receipt of any notice from the Company of the happening of
any event of the kind described in Section 3(g) or the first sentence of 3(f), the Investor will
immediately discontinue disposition of Registrable Securities pursuant to any Registration
Statement(s) covering such Registrable Securities until the Investor’s receipt of the copies of the
supplemented or amended prospectus contemplated by Section 3(g) or the first sentence of Section
3(f) or receipt of notice that no supplement or amendment is required. Notwithstanding anything to
the contrary in this Section 4(c), the Company shall cause its transfer agent to deliver unlegended
shares of Common Stock to a transferee of the Investor in accordance with the terms of the Purchase
Agreement in connection with any sale of Registrable Securities with respect to which the Investor
has entered into a contract for sale prior to the Investor’s receipt of a notice from the Company
of the happening of any event of the kind described in Section 3(g) or the first sentence of
Section 3(f) and for which the Investor has not yet settled.
(d) The Investor covenants and agrees that it will comply with the prospectus delivery and
other requirements of the Securities Act as applicable to it in connection with sales of
Registrable Securities pursuant to a Registration Statement.
5. | Expenses of Registration. |
All reasonable expenses, other than underwriting discounts and commissions, incurred in
connection with registrations, filings or qualifications pursuant to Sections 2 and 3, including,
without limitation, all registration, listing and qualifications fees, printers and accounting
fees, FINRA filing fees (if any) and fees and disbursements of counsel for the Company shall be
paid
12
by the Company. For the avoidance of doubt, the Company shall not be responsible for any fees
of counsel to the Investor, except as explicitly set forth in Article IX and 10.01(i) of the
Agreement and Section 6 hereof.
6. | Indemnification. |
(a) In the event any Registrable Securities are included in any Registration Statement under
this Agreement, to the fullest extent permitted by law, the Company will, and hereby does,
indemnify, hold harmless and defend the Investor, each of its directors, officers, shareholders,
members, partners, employees, agents, advisors, representatives (and any other Persons with a
functionally equivalent role of a Person holding such titles notwithstanding the lack of such title
or any other title) and each Person, if any, who controls the Investor within the meaning of the
Securities Act or the Exchange Act and each of the directors, officers, shareholders, members,
partners, employees, agents, advisors, representatives (and any other Persons with a functionally
equivalent role of a Person holding such titles notwithstanding the lack of such title or any other
title) of such controlling Persons (each, an “Investor Party” and collectively, the “Investor
Parties”), against any losses, obligations, claims, damages, liabilities, contingencies, judgments,
fines, penalties, charges, costs (including, without limitation, court costs, reasonable attorneys’
fees, costs of defense and investigation), amounts paid in settlement or expenses, joint or
several, (collectively, “Claims”) incurred in investigating, preparing or defending any action,
claim, suit, inquiry, proceeding, investigation or appeal taken from the foregoing by or before any
court or governmental, administrative or other regulatory agency, body or the SEC, whether pending
or threatened, whether or not an Investor Party is or may be a party thereto (“Indemnified
Damages”), to which any of them may become subject insofar as such Claims (or actions or
proceedings, whether commenced or threatened, in respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement of a material fact in a Registration Statement
or any post-effective amendment thereto or in any filing made in connection with the qualification
of the offering under the securities or other “Blue Sky” laws of any jurisdiction in which
Registrable Securities are offered (“Blue Sky Filing”), or the omission or alleged omission to
state a material fact required to be stated therein or necessary to make the statements therein not
misleading or (ii) any untrue statement or alleged untrue statement of a material fact contained in
any prospectus (as amended or supplemented) or in any prospectus supplement or the omission or
alleged omission to state therein any material fact necessary to make the statements made therein,
in light of the circumstances under which the statements therein were made, not misleading (the
matters in the foregoing clauses (i) and (ii) being, collectively, “Violations”). Subject to
Section 6(c), the Company shall reimburse the Investor Parties, promptly as such expenses are
incurred and are due and payable, for any legal fees or other reasonable expenses incurred by them
in connection with investigating or defending any such Claim. Notwithstanding anything to the
contrary contained herein, the indemnification agreement contained in this Section 6(a): (i) shall
not apply to a Claim by an Investor Party arising out of or based upon a Violation which occurs in
reliance upon and in conformity with information furnished in writing to the Company by such
Investor Party for such Investor Party expressly for use in connection with the preparation of such
Registration Statement, prospectus or prospectus supplement or any such amendment thereof or
supplement thereto; (ii) shall not be available to the Investor to the extent such Claim is based
on a failure of the Investor to deliver or to cause to be delivered the prospectus (as amended or
supplemented) made available by the Company (to the extent applicable), including, without
limitation, a corrected prospectus, if such
13
prospectus (as amended or supplemented) or corrected prospectus was timely made available by
the Company pursuant to Section 3(d) and then only if, and to the extent that, following the
receipt of the corrected prospectus no grounds for such Claim would have existed; and (iii) shall
not apply to amounts paid in settlement of any Claim if such settlement is effected without the
prior written consent of the Company, which consent shall not be unreasonably withheld or delayed.
Such indemnity shall remain in full force and effect regardless of any investigation made by or on
behalf of the Investor Party and shall survive the transfer of any of the Registrable Securities by
the Investor pursuant to Section 9.
(b) In connection with any Registration Statement in which the Investor is participating, the
Investor agrees to severally and not jointly indemnify, hold harmless and defend, to the same
extent and in the same manner as is set forth in Section 6(a), the Company, each of its directors,
each of its officers who signs the Registration Statement and each Person, if any, who controls the
Company within the meaning of the Securities Act or the Exchange Act (each, an “Company Party”),
against any Claim or Indemnified Damages to which any of them may become subject, under the
Securities Act, the Exchange Act or otherwise, insofar as such Claim or Indemnified Damages arise
out of or are based upon any Violation, in each case, to the extent, and only to the extent, that
such Violation occurs in reliance upon and in conformity with written information relating to the
Investor furnished to the Company by the Investor expressly for use in connection with such
Registration Statement; and, subject to Section 6(c) and the below provisos in this Section 6(b),
the Investor will reimburse a Company Party any legal or other expenses reasonably incurred by such
Company Party in connection with investigating or defending any such Claim; provided,
however, the indemnity agreement contained in this Section 6(b) and the agreement with
respect to contribution contained in Section 7 shall not apply to amounts paid in settlement of any
Claim if such settlement is effected without the prior written consent of the Investor, which
consent shall not be unreasonably withheld or delayed, provided further that the Investor shall be
liable under this Section 6(b) for only that amount of a Claim or Indemnified Damages as does not
exceed the net proceeds to the Investor as a result of the applicable sale of Registrable
Securities pursuant to such Registration Statement. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of such Company Party and shall survive
the transfer of any of the Registrable Securities by the Investor pursuant to Section 9.
(c) Promptly after receipt by an Investor Party or Company Party (as the case may be) under
this Section 6 of notice of the commencement of any action or proceeding (including, without
limitation, any governmental action or proceeding) involving a Claim, such Investor Party or
Company Party (as the case may be) shall, if a Claim in respect thereof is to be made against any
indemnifying party under this Section 6, deliver to the indemnifying party a written notice of the
commencement thereof, and the indemnifying party shall have the right to participate in, and, to
the extent the indemnifying party so desires, jointly with any other indemnifying party similarly
noticed, to assume control of the defense thereof with counsel mutually satisfactory to the
indemnifying party and the Investor Party or the Company Party (as the case may be);
provided, however, an Investor Party or Company Party (as the case may be) shall
have the right to retain its own counsel with the fees and expenses of such counsel to be paid by
the indemnifying party if: (i) the indemnifying party has agreed in writing to pay such fees and
expenses; (ii) the indemnifying party shall have failed promptly to assume the defense of such
Claim and to employ counsel reasonably satisfactory to such Investor Party or Company
14
Party (as the case may be) in any such Claim; or (iii) the named parties to any such Claim
(including, without limitation, any impleaded parties) include both such Investor Party or Company
Party (as the case may be) and the indemnifying party, and such Investor Party or such Company
Party (as the case may be) shall have been advised by counsel that a conflict of interest is likely
to exist if the same counsel were to represent such Investor Party or such Company Party and the
indemnifying party (in which case, if such Investor Party or such Company Party (as the case may
be) notifies the indemnifying party in writing that it elects to employ separate counsel at the
expense of the indemnifying party, then 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, provided
further that in the case of clause (iii) above the indemnifying party shall not be responsible for
the reasonable fees and expenses of more than one (1) separate legal counsel for all Investor
Parties or Company Parties (as the case may be). The Company Party or Investor Party (as the case
may be) shall reasonably cooperate with the indemnifying party in connection with any negotiation
or defense of any such action or Claim by the indemnifying party and shall furnish to the
indemnifying party all information reasonably available to the Company Party or Investor Party (as
the case may be) which relates to such action or Claim. The indemnifying party shall keep the
Company Party or Investor Party (as the case may be) reasonably apprised at all times as to the
status of the defense or any settlement negotiations with respect thereto. No indemnifying party
shall be liable for any settlement of any action, claim or proceeding effected without its prior
written consent; provided, however, the indemnifying party shall not unreasonably
withhold, delay or condition its consent. No indemnifying party shall, without the prior written
consent of the Company Party or Investor Party (as the case may be), consent to entry of any
judgment or enter into any settlement or other compromise which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such Company Party or
Investor Party (as the case may be) of a release from all liability in respect to such Claim or
litigation, and such settlement shall not include any admission as to fault on the part of the
Company Party. Following indemnification as provided for hereunder, the indemnifying party shall be
subrogated to all rights of the Company Party or Investor Party (as the case may be) with respect
to all third parties, firms or corporations relating to the matter for which indemnification has
been made. The failure to deliver written notice to the indemnifying party within a reasonable time
of the commencement of any such action shall not relieve such indemnifying party of any liability
to the Investor Party or Company Party (as the case may be) under this Section 6, except to the
extent that the indemnifying party is materially and adversely prejudiced in its ability to defend
such action.
(d) No Person involved in the sale of Registrable Securities who is guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) in connection with
such sale shall be entitled to indemnification from any Person involved in such sale of Registrable
Securities who is not guilty of fraudulent misrepresentation.
(e) The indemnification required by this Section 6 shall be made by periodic payments of the
amount thereof during the course of the investigation or defense, as and when bills are received or
Indemnified Damages are incurred.
(f) The indemnity and contribution agreements contained herein shall be in addition to (i) any
cause of action or similar right of the Company Party or Investor Party against the
15
indemnifying party or others, and (ii) any liabilities the indemnifying party may be subject
to pursuant to the law.
7. | Contribution. |
To the extent any indemnification by an indemnifying party is prohibited or limited by law,
the indemnifying party agrees to make the maximum contribution with respect to any amounts for
which it would otherwise be liable under Section 6 to the fullest extent permitted by law;
provided, however: (i) no contribution shall be made under circumstances where the
maker would not have been liable for indemnification under the fault standards set forth in Section
6 of this Agreement, (ii) no Person involved in the sale of Registrable Securities which Person is
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act)
in connection with such sale shall be entitled to contribution from any Person involved in such
sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (iii)
contribution by any seller of Registrable Securities shall be limited in amount to the amount of
net proceeds received by such seller from the applicable sale of such Registrable Securities
pursuant to such Registration Statement. Notwithstanding the provisions of this Section 7, the
Investor shall not be required to contribute, in the aggregate, any amount in excess of the amount
by which the net proceeds actually received by the Investor from the applicable sale of the
Registrable Securities subject to the Claim exceeds the amount of any damages that the Investor has
otherwise been required to pay, or would otherwise be required to pay under Section 6(b), by reason
of such untrue or alleged untrue statement or omission or alleged omission.
8. | Reports Under the Exchange Act. |
With a view to making available to the Investor the benefits of Rule 144, the Company agrees
to:
(a) use its reasonable best efforts to make and keep public information available, as those
terms are understood and defined in Rule 144;
(b) use its reasonable best efforts to file with the SEC in a timely manner all reports and
other documents required of the Company under the Securities Act and the Exchange Act so long as
the Company remains subject to such requirements (it being understood that nothing herein shall
limit any of the Company’s obligations under the Purchase Agreement) and the filing of such reports
and other documents is required for the applicable provisions of Rule 144;
(c) furnish to the Investor so long as the Investor owns Registrable Securities, promptly upon
request, (i) a written statement by the Company, if true, that it has complied with the reporting,
submission and posting requirements of Rule 144 and the Exchange Act, (ii) a copy of the most
recent annual or quarterly report of the Company and such other reports and documents so filed by
the Company with the SEC if such reports are not publicly available via XXXXX, and (iii) such other
information as may be reasonably requested to permit the Investor to sell such securities pursuant
to Rule 144 without registration; and
(d) take such additional action as is reasonably requested by the Investor to enable the
Investor to sell the Registrable Securities pursuant to Rule 144, including, without limitation,
delivering all such legal opinions, consents, certificates, resolutions and instructions to the
16
Company’s Transfer Agent as may be reasonably requested from time to time by the Investor and
otherwise fully cooperate with Investor and Investor’s broker to effect such sale of securities
pursuant to Rule 144.
9. | Assignment of Registration Rights. |
All or any portion of the rights under this Agreement shall be automatically assignable by the
Investor to any transferee or assignee of all or any portion of the Investor’s Registrable
Securities if: (i) the Investor agrees in writing with such transferee or assignee to assign all or
any portion of 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) immediately following such transfer or assignment the further
disposition of such securities by such transferee or assignee is restricted under the Securities
Act or applicable state securities laws if so required; (iv) at or before the time the Company
receives the written notice contemplated by clause (ii) of this sentence such transferee or
assignee agrees in writing with the Company to be bound by all of the provisions contained herein;
(v) such transfer or assignment shall have been made in accordance with the applicable requirements
of the Purchase Agreement; and (vi) such transfer or assignment shall have been conducted in
accordance with all applicable federal and state securities laws. The term “Investor” in this
Agreement shall also include all such transferees and assignees.
10. | Amendment of Registration Rights. |
Provisions of this Agreement may be amended and the observance thereof may be waived (either
generally or in a particular instance and either retroactively or prospectively), only with the
written consent of the Company and the Investor, provided that the Investor may give a waiver in
writing as to itself. Any amendment or waiver effected in accordance with this Section 10 shall be
binding upon the Investor and the Company. No such amendment or waiver (unless given pursuant to
the foregoing proviso in the case of a waiver) shall be effective to the extent that it applies to
less than all of the holders of the Registrable Securities. No consideration shall be offered or
paid to any Person to amend or consent to a waiver or modification of any provision of this
Agreement unless the same consideration also is offered to all of the parties to this Agreement.
11. | Miscellaneous. |
(a) Solely for purposes of this Agreement, a Person is deemed to be a holder of Registrable
Securities whenever such Person owns or is deemed to own of record such Registrable Securities. If
the Company receives conflicting instructions, notices or elections from two or more Persons with
respect to the same Registrable Securities, the Company shall act upon the basis of instructions,
notice or election received from such record owner of such Registrable Securities.
17
(b) Any notices, consents, waivers or other communications required or permitted to be given
under the terms of this Agreement shall be given in accordance with Section 10.4 of the Purchase
Agreement.
(c) Failure of any party to exercise any right or remedy under this Agreement or otherwise, or
delay by a party in exercising such right or remedy, shall not operate as a waiver thereof. The
Company and the Investor acknowledge and agree that irreparable damage would occur in the event
that any of the provisions of this Agreement were not performed in accordance with their specific
terms or were otherwise breached. It is accordingly agreed that either party shall be entitled to
an injunction or injunctions to prevent or cure breaches of the provisions of this Agreement by the
other party and to enforce specifically the terms and provisions hereof (without the necessity of
showing economic loss and without any bond or other security being required), this being in
addition to any other remedy to which either party may be entitled by law or equity.
(d) All questions concerning the construction, validity, enforcement and interpretation of
this Agreement shall be governed by the internal laws of the State of New York, without giving
effect to any choice of law or conflict of law provision or rule (whether of the State of New York
or any other jurisdictions) that would cause the application of the laws of any jurisdictions other
than the State of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of
the federal courts sitting in The City of New York, Borough of Manhattan, for the adjudication of
any dispute hereunder or in connection herewith or with any transaction contemplated hereby or
discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or
proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that
such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit,
action or proceeding is improper. Each party hereby irrevocably waives personal service of process
and consents to process being served in any such suit, action or proceeding by mailing a copy
thereof to such party at the address for such notices to it under this Agreement and agrees that
such service shall constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process in any manner
permitted by law. If any provision of this Agreement shall be invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall not affect the validity or enforceability
of the remainder of this Agreement in that jurisdiction or the validity or enforceability of any
provision of this Agreement in any other jurisdiction. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY
RIGHT IT MAY HAVE TO, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE
HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION
CONTEMPLATED HEREBY.
(e) The Transaction Documents set forth the entire agreement and understanding of the parties
solely with respect to the subject matter thereof and supersedes all prior and contemporaneous
agreements, negotiations and understandings between the parties, both oral and written, solely with
respect to such matters. There are no promises, undertakings, representations or warranties by
either party relative to subject matter hereof not expressly set forth in the Transaction
Documents. Notwithstanding anything in this Agreement to the contrary and without implication that
the contrary would otherwise be true, nothing contained in this Agreement shall limit, modify or
affect in any manner whatsoever (i) the conditions precedent to a Fixed Request
18
contained in Article VII of the Purchase Agreement, including, without limitation, the
condition precedent contained in Section 7.2(iii) thereof or (ii) any of the Company’s obligations
under the Purchase Agreement.
(f) Subject to compliance with Section 9, this Agreement shall inure to the benefit of and be
binding upon the permitted successors and assigns of each of the parties hereto. This Agreement is
not for the benefit of, nor may any provision hereof be enforced by, any Person, other than the
parties hereto, their respective permitted successors and assigns and the Persons referred to in
Sections 6 and 7 hereof.
(g) The headings in this Agreement are for convenience of reference only and shall not limit
or otherwise affect the meaning hereof. Unless the context clearly indicates otherwise, each
pronoun herein shall be deemed to include the masculine, feminine, neuter, singular and plural
forms thereof. The terms “including,” “includes,” “include” and words of like import shall be
construed broadly as if followed by the words “without limitation.” The terms “herein,”
“hereunder,” “hereof” and words of like import refer to this entire Agreement instead of just the
provision in which they are found.
(h) This Agreement may be executed in two or more identical counterparts, all of which shall
be considered one and the same agreement and shall become effective when counterparts have been
signed by each party and delivered to the other party. If any signature is delivered by facsimile
transmission or by an e-mail which contains a portable document format (.pdf) file of an executed
signature page, such signature page shall create a valid and binding obligation of the party
executing (or on whose behalf such signature is executed) with the same force and effect as if such
signature page were an original thereof.
(i) Each party shall do and perform, or cause to be done and performed, all such further acts
and things, and shall execute and deliver all such other agreements, certificates, instruments and
documents as any other party may reasonably request in order to carry out the intent and accomplish
the purposes of this Agreement and the consummation of the transactions contemplated hereby.
(j) The language used in this Agreement will be deemed to be the language chosen by the
parties to express their mutual intent and no rules of strict construction will be applied against
any party.
[signature pages follow]
19
IN WITNESS WHEREOF, Investor and the Company have caused their respective signature page to
this Registration Rights Agreement to be duly executed as of the date first written above.
COMPANY: ONCOTHYREON INC. |
||||
By: | /s/ Xxxxxx X. Xxxxxxx | |||
Name: | Xxxxxx X. Xxxxxxx, M.D. | |||
Title: | President and Chief Executive Officer |
20
IN WITNESS WHEREOF, Investor and the Company have caused their respective signature page to
this Registration Rights Agreement to be duly executed as of the date first written above.
INVESTOR: SMALL CAP BIOTECH VALUE, LTD. |
||||
By: | /s/ Xxxxx Xxxxx | |||
Name: | Xxxxx Xxxxx | |||
Title: | Director | |||
21
EXHIBIT A
FORM OF NOTICE OF EFFECTIVENESS
OF REGISTRATION STATEMENT
OF REGISTRATION STATEMENT
Attention:
|
Re: | Oncothyreon Inc. |
Ladies and Gentlemen:
[We are][I am] counsel to Oncothyreon Inc., a Delaware corporation (the “Company”), and have
represented the Company in connection with that certain Common Stock Purchase Agreement, dated as
of July 6, 2010 (the “Purchase Agreement”), entered into by and among the Company and the Investor
named therein (the “Holder”) pursuant to which the Company (i) will issue to the Holder from time
to time shares of the Company’s common stock, $0.0001 par value per share (the “Common Stock”), and
(ii) has issued 59,921 shares of its Common Stock (the “Commitment Shares”). Pursuant to the
Purchase Agreement, the Company also has entered into a Registration Rights Agreement with the
Holder (the “Registration Rights Agreement”) pursuant to which the Company agreed, among other
things, to register the offer and sale of the Registrable Securities (as defined in the
Registration Rights Agreement), including the Commitment Shares, under the Securities Act of 1933,
as amended (the “Securities Act”). In connection with the Company’s obligations under the
Registration Rights Agreement, on ___, 2010, 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
the Holder as an underwriter and a selling stockholder thereunder.
In connection with the foregoing, based solely upon oral advice from the staff of the SEC, the
Registration Statement was declared effective under the Securities Act on [ENTER DATE OF
EFFECTIVENESS], and no stop order suspending its effectiveness has been issued and no proceedings
for that purpose have been instituted or overtly threatened.
This letter shall serve as our standing opinion to you that the shares of Common Stock are
freely transferable by the Holder pursuant to the Registration Statement, provided the Registration
Statement remains effective.
Very truly yours, [ISSUER’S COUNSEL] |
||||
By: | ||||
CC: | Small Cap Biotech Value, Ltd. |
22
EXHIBIT B
SELLING STOCKHOLDER
This prospectus relates to the possible resale from time to time by the selling stockholder of
any or all of the shares of common stock that (i) may be issued by us to SCBV under the Purchase
Agreement and (ii) have been issued as of the date hereof to SCBV as Commitment Shares under the
terms of the Purchase Agreement. For additional information regarding the issuance of common stock
covered by this prospectus, see “Prospectus Summary—Committed Equity Line Financing With SCBV”
above. We are registering the shares of common stock pursuant to the provisions of the Registration
Rights Agreement we entered into with SCBV on July 6, 2010 in order to permit the selling
stockholder to offer the shares for resale from time to time. Except for the ownership of the
Commitment Shares and for the transactions contemplated by the Purchase Agreement and the
Registration Rights Agreement, SCBV has not had any material relationship with us within the past
three years.
The table below presents information regarding the selling stockholder and the shares of
common stock that it may offer from time to time under this prospectus. This table is prepared
based on information supplied to us by the selling stockholder, and reflects holdings as of
, 2010. As used in this prospectus, the term “selling stockholder” includes SCBV and any
donees, pledgees, transferees or other successors in interest selling shares received after the
date of this prospectus from the selling stockholder as a gift, pledge, or other non-sale related
transfer. The number of shares in the column “Maximum Number of Shares of Common Stock to be
Offered Pursuant to this Prospectus” represents all of the shares of common stock that the selling
stockholder may offer under this prospectus. The selling stockholder may sell some, all or none of
its shares in this offering. We do not know how long the selling stockholder will hold the shares
before selling them, and we currently have no agreements, arrangements or understandings with the
selling stockholder regarding the sale of any of the shares.
Beneficial ownership is determined in accordance with Rule 13d-3(d) promulgated by the SEC
under the Exchange Act, and includes shares of common stock with respect to which the selling
stockholder has voting and investment power. The percentage of shares of common stock beneficially
owned by the selling stockholder prior to the offering shown in the table below is based both on an
aggregate of
shares of our common stock outstanding on , 2010. Because the
purchase price of the shares of common stock issuable under the Purchase Agreement is determined on
each settlement date, the number of shares that may actually be sold by the Company under the
Purchase Agreement may be fewer than the number of shares being offered by this prospectus. The
fourth column assumes the sale of all of the shares offered by the selling stockholder pursuant to
this prospectus.
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Maximum Number of | ||||||||||||||||||||
Shares of Common | ||||||||||||||||||||
Number of Shares of | Stock to be Offered | Number of Shares of | ||||||||||||||||||
Common Stock Owned Prior | Pursuant to this | Common Stock Owned After | ||||||||||||||||||
to Offering | Prospectus | Offering | ||||||||||||||||||
Name of Selling Stockholder | Number | Percent | Number | Percent | ||||||||||||||||
Small Cap Biotech
Value, Ltd. (4) |
59,921 |
* | Represents beneficial ownership of less than one percent of the outstanding shares of our common stock. | |
(1) | This number represents the 59,921 shares of common stock we issued to SCBV on July 6, 2010 as Commitment Shares in consideration for entering into the Purchase Agreement with us. In accordance with Rule 13d-3(d) under the Exchange Act, we have excluded from the number of shares beneficially owned prior to the offering all of the shares that SCBV may be required to purchase under the Purchase Agreement because the issuance of such shares is solely at our discretion and is subject to certain conditions, the satisfaction of all of which are outside of SCBV’s control, including the registration statement of which this prospectus is a part becoming and remaining effective. Furthermore, the maximum dollar value of each put of common stock to SCBV under the Purchase Agreement is subject to certain agreed upon threshold limitations set forth in the Purchase Agreement, which are based on the market price of our common stock at the time of the draw down and, if we determine in our sole discretion, a percentage of the daily trading volume of our common stock during the Draw Down Period as well. Also, under the terms of the Purchase Agreement, we may not issue shares of our common stock to SCBV to the extent that SCBV or any of its affiliates would, at any time, beneficially own more than 9.9% of our outstanding common stock. This beneficial ownership limitation may not be waived by the parties. | |
(2) | Applicable percentage ownership is based on [ ] shares of our common stock outstanding as of , 2010. | |
(3) | Assumes the sale of all shares being offered pursuant to this prospectus. | |
(4) | The business address of SCBV is c/o Fiduciary Services (BVI) Limited, 0xx Xxxxx, Xxxxx Xxxxxxxx, Xxxx Reef, Road Town, Tortola, British Virgin Islands. SCBV’s principal business is that of an international business company. We have been advised that SCBV is not a member of the Financial Industry Regulatory Authority, or FINRA, or an independent broker-dealer, and that neither SCBV nor any of its affiliates is an affiliate or an associated person of any FINRA member or independent broker-dealer. Xxxxx X. Xxxxx is the sole director of SCBV and has sole voting control and investment discretion over securities owned by SCBV. The foregoing should not be construed in and of itself as an admission by Xx. Xxxxx as to beneficial ownership of the securities owned by SCBV. |
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PLAN OF DISTRIBUTION
We are registering (i) shares of common stock that may be issued by us from time to time to
SCBV under the Purchase Agreement to permit the resale of these shares of common stock after the
issuance thereof by the selling stockholder from time to time after the date of this prospectus and
(ii) shares of common stock that have been issued as of the date hereof as Commitment Shares to
SCBV under the terms of the Purchase Agreement to permit the resale of these shares of common stock
by the selling stockholder from time to time after the date of this prospectus. We will not receive
any of the proceeds from the sale by the selling stockholder of the shares of common stock. We will
bear all fees and expenses incident to our obligation to register the shares of common stock.
The selling stockholder may decide not to sell any shares of common stock. The selling
stockholder may sell all or a portion of the shares of common stock beneficially owned by it and
offered hereby from time to time directly or through one or more underwriters, broker-dealers or
agents, who may receive compensation in the form of discounts, concessions or commissions from the
selling stockholder and/or the purchasers of the shares of common stock for whom they may act as
agent. In effecting sales, broker-dealers that are engaged by the selling stockholder may arrange
for other broker-dealers to participate. SCBV is an “underwriter” within the meaning of the
Securities Act. Any brokers, dealers or agents who participate in the distribution of the shares of
common stock by the selling stockholder may also be deemed to be “underwriters,” and any profits on
the sale of the shares of common stock by them and any discounts, commissions or concessions
received by any such brokers, dealers or agents may be deemed to be underwriting discounts and
commissions under the Securities Act. SCBV has advised us that it will use an unaffiliated
broker-dealer to effectuate all resales of our common stock. To our knowledge, SCBV has not entered
into any agreement, arrangement or understanding with any particular broker-dealer or market maker
with respect to the shares of common stock offered hereby, nor do we know the identity of the
broker-dealers or market makers that may participate in the resale of the shares. Because SCBV is,
and any other selling stockholder, broker, dealer or agent may be deemed to be, an “underwriter”
within the meaning of the Securities Act, SCBV will (and any other selling stockholder, broker,
dealer or agent may) be subject to the prospectus delivery requirements of the Securities Act and
may be subject to certain statutory liabilities of the Securities Act (including, without
limitation, Sections 11, 12 and 17 thereof) and Rule 10b-5 under the Exchange Act.
The selling stockholder will act independently of us in making decisions with respect to the
timing, manner and size of each sale. The shares of common stock may be sold in one or more
transactions at fixed prices, at prevailing market prices at the time of the sale, at varying
prices determined at the time of sale, or at negotiated prices. These sales may be effected in
transactions, which may involve crosses or block transactions, pursuant to one or more of the
following methods:
• | on any national securities exchange or quotation service on which the securities may be listed or quoted at the time of sale; | ||
• | in the over-the-counter market in accordance with the rules of NASDAQ; |
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• | in transactions otherwise than on these exchanges or systems or in the over-the-counter market; | ||
• | through the writing or settlement of options, whether such options are listed on an options exchange or otherwise; | ||
• | ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers; | ||
• | block trades in which the broker-dealer will attempt to sell the shares as agent but may position and resell a portion of the block as principal to facilitate the transaction; | ||
• | purchases by a broker-dealer as principal and resale by the broker-dealer for its account; | ||
• | an exchange distribution in accordance with the rules of the applicable exchange; | ||
• | privately negotiated transactions; | ||
• | broker-dealers may agree with the selling stockholder to sell a specified number of such shares at a stipulated price per share; | ||
• | a combination of any such methods of sale; and | ||
• | any other method permitted pursuant to applicable law. |
The selling stockholder may also sell shares of common stock covered by this prospectus
pursuant to Rule 144 promulgated under the Securities Act, if available, rather than under this
prospectus. In addition, the selling stockholder may transfer the shares of common stock by other
means not described in this prospectus.
Any broker-dealer participating in such transactions as agent may receive commissions from the
selling stockholder (and, if they act as agent for the purchaser of such shares, from such
purchaser). SCBV has informed us that each such broker-dealer will receive commissions from SCBV
which will not exceed customary brokerage commissions. Broker-dealers may agree with the selling
stockholder to sell a specified number of shares at a stipulated price per share, and, to the
extent such a broker-dealer is unable to do so acting as agent for the selling stockholder, to
purchase as principal any unsold shares at the price required to fulfill the broker-dealer
commitment to the selling stockholder. Broker-dealers who acquire shares as principal may
thereafter resell such shares from time to time in one or more transactions (which may involve
crosses and block transactions and which may involve sales to and through other broker-dealers,
including transactions of the nature described above and pursuant to the one or more of the methods
described above) at fixed prices, at prevailing market prices at the time of the sale, at varying
prices determined at the time of sale, or at negotiated prices, and in connection with such resales
may pay to or receive from the purchasers of such shares commissions computed as described above.
To the extent required under the Securities Act, an amendment to this prospectus or a supplemental
prospectus will be filed, disclosing:
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• | the name of any such broker-dealers; | ||
• | the number of shares involved; | ||
• | the price at which such shares are to be sold; | ||
• | the commission paid or discounts or concessions allowed to such broker-dealers, where applicable; | ||
• | that such broker-dealers did not conduct any investigation to verify the information set out or incorporated by reference in this prospectus, as supplemented; and | ||
• | other facts material to the transaction. |
SCBV has informed us that it does not have any written or oral agreement or understanding,
directly or indirectly, with any person to distribute the common stock. Pursuant to a requirement
of the Financial Industry Regulatory Authority, or FINRA, the maximum commission or discount and
other compensation to be received by any FINRA member or independent broker-dealer shall not be
greater than eight percent (8%) of the gross proceeds received by us for the sale of any securities
being registered pursuant to SEC Rule 415 under the Securities Act.
Under the securities laws of some states, the shares of common stock may be sold in such
states only through registered or licensed brokers or dealers. In addition, in some states the
shares of common stock may not be sold unless such shares have been registered or qualified for
sale in such state or an exemption from registration or qualification is available and is complied
with.
There can be no assurance that the selling stockholder will sell any or all of the shares of
common stock registered pursuant to the registration statement, of which this prospectus forms a
part.
Underwriters and purchasers that are deemed underwriters under the Securities Act may engage
in transactions that stabilize, maintain or otherwise affect the price of the common stock,
including the entry of stabilizing bids or syndicate covering transactions or the imposition of
penalty bids. The selling stockholder and any other person participating in the sale or
distribution of the shares of common stock will be subject to applicable provisions of the Exchange
Act and the rules and regulations thereunder (including, without limitation, Regulation M of the
Exchange Act), which may restrict certain activities of, and limit the timing of purchases and
sales of any of the shares of common stock by, the selling stockholder and any other participating
person. To the extent applicable, Regulation M may also restrict the ability of any person engaged
in the distribution of the shares of common stock to engage in market-making and certain other
activities with respect to the shares of common stock. In addition, the anti-manipulation rules
under the Exchange Act may apply to sales of the shares of common stock in the market. All of the
foregoing may affect the marketability of the shares of common stock and the ability of any person
or entity to engage in market-making activities with respect to the shares of common stock.
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We have agreed to pay all expenses of the registration of the shares of common stock pursuant
to the registration rights agreement, estimated to be $[ ] in total, including, without
limitation, Securities and Exchange Commission filing fees and expenses of compliance with state
securities or “Blue Sky” laws; provided, however, SCBV will pay all selling commissions,
concessions and discounts, and other amounts payable to underwriters, dealers or agents, if any, as
well as transfer taxes and certain other expenses associated with the sale of the shares of common
stock. We have agreed to indemnify SCBV and certain other persons against certain liabilities in
connection with the offering of shares of common stock offered hereby, including liabilities
arising under the Securities Act or, if such indemnity is unavailable, to contribute amounts
required to be paid in respect of such liabilities. SCBV has agreed to indemnify us against
liabilities under the Securities Act that may arise from any written information furnished to us by
SCBV specifically for use in this prospectus or, if such indemnity is unavailable, to contribute
amounts required to be paid in respect of such liabilities.
At any time a particular offer of the shares of common stock is made by the selling
stockholder, a revised prospectus or prospectus supplement, if required, will be distributed. Such
prospectus supplement or post-effective amendment will be filed with the Securities and Exchange
Commission to reflect the disclosure of any required additional information with respect to the
distribution of the shares of common stock. We may suspend the sale of shares by the selling
stockholder pursuant to this prospectus for certain periods of time for certain reasons, including
if the prospectus is required to be supplemented or amended to include additional material
information.
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