EXHIBIT 10.106
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated as of June 18, 2004 (this
"Agreement"), by and between VIRAGEN, INC., a Delaware corporation (the
"Company"), and ___________________________________________, a
____________________ company (the "Investor").
W I T N E S S E T H:
WHEREAS, in connection with the Purchase Agreement (such capitalized
term and all other capitalized terms used herein having the respective meanings
provided herein), the Company has agreed to provide certain registration rights
under the 1933 Act and applicable state securities laws with respect to the
Registrable Securities issuable pursuant to the securities issued pursuant to
the Purchase Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company and the
Holders hereby agree as follows:
1. DEFINITIONS.
(a) As used in this Agreement, the terms "Agreement," "Company" and
"Investor" shall have the respective meanings assigned to such terms in the
introductory paragraph of this Agreement.
(b) All the agreements or instruments herein defined shall mean such
agreements or instruments as the same may from time to time be supplemented or
amended or the terms thereof waived or modified to the extent permitted by, and
in accordance with, the terms thereof and of this Agreement.
(c) The following terms shall have the following meanings (such
meanings to be equally applicable to both the singular and plural forms of the
terms defined):
"Additional Registrable Securities" means any shares of Common Stock
which are included within the definition of
Registrable Securities but not included in any Registration Statement filed
pursuant to Section 2(a)(i) below.
"Allowed Delay" shall have the meaning provided in Section 2(c)(ii).
"AMEX" means the American Stock Exchange, Inc.
"Approved Market" shall have the meaning provided in Section
2(c)(i).
"Availability Date" shall have the meanings provided in Section
3(l).
"Closing Warrant" means the Common Stock Purchase Warrant issued by
the Company to the Investor pursuant to the Purchase Agreement and any similar
instrument issued upon transfer or slit up thereof.
"Common Stock" means the Common Stock, par value $.01 per share, of
the Company.
"Common Stock Warrant" shall have the meaning provided in the Note.
"Default Event" shall have the meaning provided in Section 2(c)(i).
"Default Period" shall have the meaning provided in Section 2(c)(i).
"Holders" means the Investor and each subsequent holder of the Note,
the Warrants, Registrable Securities or Additional Registrable Securities, or
any portion thereof.
"Initial Registrable Securities Amount" shall have the meaning
provided in Section 2(a)(i).
"1934 Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"1933 Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"NASD" means the National Association of Securities Dealers, Inc.
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"Nasdaq" means the Nasdaq National Market.
"Note" means the 7% Convertible Note due 2006 issued by the Company
pursuant to the Purchase Agreement.
"NYSE" means the New York Stock Exchange, Inc.
"Other Registration Rights Agreements" means the several
Registration Rights Agreements, dated as of the date hereof, by and between the
Company and the several investors parties thereto who purchased 7% Convertible
Notes due 2006 and Common Stock Purchase Warrants issued by the Company.
"Principal Market" means the AMEX or such other U.S. market or
exchange which is the principal market on which the Common Stock is then listed
for trading.
"Prospectus" means the prospectus included in any Registration
Statement, as amended or supplemented by any prospectus supplement, with respect
to the terms of the offering of any portion of the Registrable Securities or
Additional Registrable Securities covered by such Registration Statement and by
all other amendments and supplements to the prospectus, including post-effective
amendments and all material incorporated by reference in such prospectus.
"Purchase Agreement" means the Purchase Agreement, dated as of April
1, 2004, by and between the Company and the Investor.
"register," "registered" and "registration" refer to a registration
made by preparing and filing a registration statement or similar document in
compliance with the 1933 Act (as defined below), and the declaration or ordering
of effectiveness of such registration statement or document by the SEC.
"Registrable Securities" means (i) the Underlying Shares, the
Warrant Shares and the shares of Common Stock or other securities issued or
issuable to each Holder or its permitted transferee or designee (a) upon
conversion of the Note and upon exercise of the Warrants, or (b) upon any
distribution with respect to, any exchange for or any replacement of the Note or
the Warrants, or (c) upon any conversion, exercise or exchange of any securities
issued in connection with any such distribution, exchange or replacement; (ii)
securities issued or
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issuable upon any stock split, stock dividend, recapitalization or similar event
with respect to such shares of Common Stock; and (iii) any other security issued
as a dividend or other distribution with respect to, in exchange for, or in
replacement of, the securities referred to in the preceding clauses.
"Registration Period" shall have the meaning provided in Section
3(a).
"Registration Statement" shall mean any registration statement of
the Company filed under the 1933 Act that covers the resale of any of the
Registrable Securities or Additional Registrable Securities pursuant to the
provisions of this Agreement, amendments and supplements to such Registration
Statement, including post-effective amendments, all exhibits and all material
incorporated by reference in such Registration Statement.
"SEC" means the U.S. Securities and Exchange Commission.
"Trading Day" means a day on whichever of either the national
securities exchange or Nasdaq which then constitutes the principal securities
market for the Common Stock is open for general trading of securities.
"Underlying Shares" means the shares of Common Stock issuable upon
conversion of, or otherwise in respect of, the Note.
"VWAP" means for any Trading Day the volume-weighted average price
of the Common Stock on the Principal Market, as reported by Bloomberg Financial
L.P. (based on a Trading Day from 9:30 a.m., Eastern Time, to 4:00 p.m., Eastern
Time) using the AQR function, on such Trading Day.
"Warrants" means, collectively, the Closing Warrant and the Common
Stock Warrant.
"Warrant Shares" means the shares of Common Stock issuable upon
exercise of, or otherwise in respect of, the Warrants.
(d) Capitalized terms used herein but not otherwise defined herein
shall have the respective meanings assigned to such terms in the Purchase
Agreement.
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2. REGISTRATION.
(a) REGISTRATION STATEMENTS.
(I) REGISTRABLE SECURITIES. Promptly following the Closing of the
purchase and sale of the Note and the Warrants contemplated by the Purchase
Agreement on the Closing Date (but, subject to Section 2(a)(iii), no later than
twenty-five (25) days after the Closing Date), the Company shall prepare and
file with the SEC one Registration Statement on Form S-3 (or, if Form S-3 is not
then available to the Company, on such form of registration statement as is then
available to effect a registration for resale of the Registrable Securities,
subject to the Holder's consent), covering the resale of the Registrable
Securities in an amount at least equal to the sum of (1) 130% of the number of
Underlying Shares that would be issuable upon conversion of the Note in full for
resale after issuance upon conversion of, or in lieu of payment of cash interest
on, the Note or exercise of the Common Stock Warrant plus (2) 100% of the number
of shares of Common Stock issuable upon exercise of the Closing Warrant in full
for cash, in each case in the preceding clauses (1) and (2), determined without
regard to any restrictions on beneficial ownership contained in the Note, the
Warrants or the Purchase Agreement (such sum the "Initial Registrable Securities
Amount"). Such Registration Statement also shall cover, to the extent allowable
under the 1933 Act and the rules promulgated thereunder (including Rule 416),
such indeterminate number of additional shares of Common Stock resulting from
stock splits, stock dividends or similar transactions with respect to the
Registrable Securities. No securities other than the Registrable Securities and
the securities being registered by the Company in accordance with the Other
Registration Rights Agreements shall be included in the Registration Statement
without the consent of the Holder. The Registration Statement (and each
amendment or supplement thereto) shall be provided in accordance with Section
3(c) to the Holder and its counsel prior to its filing or other submission. If
at any time the number of shares of Common Stock included in a Registration
Statement required to be filed as provided in this Section 2(a) and remaining
unsold thereunder shall be insufficient to cover the resale of Registrable
Securities in an amount at least equal to the sum of (x) 130% of the number of
Underlying Shares that would be issuable upon conversion in full of the Note,
plus (y) 100% of the number of shares of Common Stock issuable upon exercise of
the Warrants outstanding at such time in full for cash, in each case in the
preceding clauses (x) and (y) determined without regard to any
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restrictions on beneficial ownership contained in the Note, the Warrants or the
Purchase Agreement, then promptly, but in no event later than thirty (30) days
after such insufficiency shall occur, the Company shall file with the SEC an
additional Registration Statement on Form S-3 covering such number of shares of
Common Stock as shall be sufficient to cover such amount. Except as set forth
above, the requirements with respect to a subsequent Registration Statement
shall be the same as those applicable to the initial Registration Statement.
(II) ADDITIONAL REGISTRABLE SECURITIES. At any time and from time to
time, promptly following the written demand of the Holder following the issuance
of any Additional Registrable Securities, and in any event within thirty (30)
days following such demand, the Company shall prepare and file with the SEC
either a new Registration Statement or a post-effective amendment to a
previously filed Registration Statement, to the extent permitted under the 1933
Act, on Form S-3 (or, if Form S-3 is not then available to the Company, on such
form of registration statement as is then available to effect a registration for
resale of the Additional Registrable Securities) covering the resale of the
Additional Registrable Securities in an amount equal to the number of Additional
Registrable Securities. Such Registration Statement also shall cover, to the
extent allowable under the 1933 Act and the rules promulgated thereunder
(including Rule 416), such indeterminate number of additional shares of Common
Stock resulting from stock splits, stock dividends or similar transactions with
respect to the Additional Registrable Securities. The Registration Statement
(and each amendment or supplement thereto) shall be provided in accordance with
Section 3(c) to the Holder and its counsel prior to its filing or other
submission.
(III) If the Company proposes to file with the SEC a registration
statement (other than on Form S-8) relating to securities other than the
Registrable Securities or Additional Registrable Securities, then on or before
the date the Company files such other registration statement with the SEC the
Company shall file the Registration Statement required by Section 2(a)(i) with
the SEC. In any such case, the Company shall not request acceleration of
effectiveness of such other registration statement unless simultaneously
therewith the Company requests acceleration of effectiveness of the Registration
Statement to the same date and time as so requested for such other registration
statement.
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(b) EXPENSES. All expenses, other than underwriting discounts and
commissions and other fees and expenses of investment bankers and other than
brokerage commissions, incurred in connection with registrations, filing or
qualifications pursuant to this Agreement, including, without limitation, all
registration, listing and qualifications fees, printers and accounting fees and
the fees and disbursements of counsel for the Company, shall be borne by the
Company.
(c) EFFECTIVENESS.
(i) The Company shall use its best efforts to have each Registration
Statement declared effective as soon as practicable after it is filed with the
SEC. If (A) the Company fails to file with the SEC a Registration Statement on
or before the date by which the Company is required to file the Registration
Statement pursuant to Section 2(a)(i) above (if the Company files a Registration
Statement without affording the Holder the opportunity to review and comment on
the same as required by Section 3(c), the Company shall not be deemed to have
satisfied this clause (A)), (B) the Company fails to file with the SEC the
Registration Statement covering Additional Registrable Securities within thirty
(30) days following demand of the Holder relating to the Additional Registrable
Securities to be covered thereby (if the Company files a Registration Statement
without affording the Holder the opportunity to review and comment on the same
as required by Section 3(c), the Company shall not be deemed to have satisfied
this clause (B)), (C) the Company fails to file with the SEC a request for
acceleration of effectiveness of a Registration Statement to a time and date not
more than 48 hours after the submission of such request within five Trading Days
of the date the Company learns that no review of the Registration Statement will
be made by the staff of the SEC or that the staff of the SEC has no further
comments on the Registration Statement, as the case may be, (D) the Registration
Statement covering Registrable Securities is not declared effective by the SEC
within eighty-five (85) days following the Closing Date, or the Registration
Statement covering Additional Registrable Securities is not declared effective
by the SEC within ninety (90) days following demand of the Holder relating to
the Additional Registrable Securities to be covered thereby, (E) after a
Registration Statement has been declared effective by the SEC, sales cannot be
made pursuant to such Registration Statement for any reason (including without
limitation by reason of a stop order, or the Company's failure to update the
Registration Statement) but except as excused pursuant to subparagraph (ii)
below, or (F) the Common Stock generally or
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the Registrable Securities (or Additional Registrable Securities after issuance)
specifically are not listed or included for quotation on the Nasdaq, the Nasdaq
Small Cap, the NYSE or the AMEX (each an "Approved Market"), or trading of the
Common Stock is suspended or halted on the Approved Market which at the time
constitutes the Principal Market for the Common Stock, then the Company will
make payments to the Holder as partial liquidated damages for the minimum amount
of damages to the Holder by reason thereof, and not as a penalty, at the rate of
1.5% per month of the sum of (x) the outstanding principal amount of, and
accrued interest on, the Note held at such time by the Holder plus (y) the
amount, if any, by which the product of (i) the average of the daily VWAPs for
all of the Trading Days during the particular portion of the period for which
such computation is being made times (ii) the number of Warrant Shares issuable
upon exercise of the unexercised portion of the Warrants held at such time by
the Holder exceeds the aggregate Purchase Price of the number of Warrant Shares
issuable upon exercise of the unexercised portion of the Warrants held at such
time by the Holder, for the period during which any of the events described in
clause (A), (B), (C), (D), (E) or (F) above (each, a "Default Event") occurs and
is continuing (the "Default Period"). Each such payment shall be due and payable
within five (5) days after the end of each calendar month of the Default Period
until the termination of the Default Period and within five (5) days after such
termination. Such payments shall be in partial compensation to the Holder, and
shall not constitute the Holder's exclusive remedy for such events. The Default
Period shall terminate upon (w) the filing of the applicable Registration
Statement in the case of clauses (A) and (B) above; (x) the effectiveness of the
applicable Registration Statement in the case of clauses (C), (D) and (E) above;
(y) listing or inclusion and/or trading of the Common Stock on an Approved
Market, as the case may be, in the case of clause (F) above; and (z) in the case
of the events described in clauses (C), (D) or (E) above, the earlier
termination of the Registration Period (as defined in Section 3(a) below), and
in each such case any Default Period that commences by reason of the occurrence
of such event shall terminate if at the time no other Default Event is
continuing. The amounts payable as liquidated damages pursuant to this paragraph
shall be payable in lawful money of the United States. If the Company fails to
pay any liquidated damages pursuant to this Section in full within seven days
after the date payable, the Company will pay interest thereon at a rate of 18%
per annum (or such lesser maximum amount that is permitted to paid by applicable
law) to the Holder, accruing daily from the date such liquidated damages are due
until such
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amounts, plus all such interest thereon, are paid in full. Amounts payable as
liquidated damages hereunder shall cease when the Holder no longer holds the
Note, the Warrants, Registrable Securities or Additional Registrable Securities.
(ii) For not more than five (5) consecutive Trading Days or for a
total of not more than twenty (20) Trading Days in any consecutive twelve (12)
month period, the Company may delay the disclosure of material non-public
information concerning the Company, by terminating or suspending effectiveness
of any registration contemplated by this Section, the disclosure of which
information at the time is not, in the good faith opinion of the Company, in the
best interests of the Company or would be unduly detrimental to the Company's
affairs (an "Allowed Delay"); provided, that the Company shall promptly (a)
notify the Holder in writing of the existence of (but in no event, without the
prior written consent of the Holder, shall the Company disclose to the Holder
any of the facts or circumstances regarding) material non-public information
giving rise to an Allowed Delay, and (b) advise the Holder in writing to cease
all sales under the Registration Statement until the end of the Allowed Delay.
3. COMPANY OBLIGATIONS. The Company will use its best efforts to
effect the registration of the Registrable Securities and Additional Registrable
Securities in accordance with the terms hereof, and pursuant thereto the Company
will, as expeditiously as possible:
(a) use its best efforts to cause such Registration Statement to
become effective and to remain continuously effective for a period (the
"Registration Period") that will terminate upon the earlier of (i) the date on
which all Registrable Securities or Additional Registrable Securities have been
sold (and the Note and the Warrants no longer remain outstanding) and (ii) the
date on which all Registrable Securities or Additional Registrable Securities,
as the case may be, may be sold pursuant to Rule 144(k) promulgated under the
1933 Act;
(b) prepare and file with the SEC such amendments, post-effective
amendments and prospectus supplements to the Registration Statement and the
Prospectus as may be necessary to keep the Registration Statement effective for
the period specified in Section 3(a) and to comply with the provisions of the
1933 Act and the 1934 Act with respect to the distribution of all Registrable
Securities and Additional Registrable
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Securities; provided that, at a time reasonably prior to the filing of a
Registration Statement or Prospectus, or any amendments or supplements thereto,
the Company will furnish to the Holder copies of all documents proposed to be
filed, which documents will be subject to the comments of the Holder provided
reasonably promptly after receipt of such documents;
(c) permit counsel designated by the Holder to review each
Registration Statement and Prospectus and all amendments and supplements thereto
no fewer than four (4) Business Days (or as many Business Days as possible if
SEC rules do not allow such time for such review) prior to their filing with the
SEC and not file any document to which such counsel reasonably objects;
(d) furnish to the Holder and its legal counsel (i) promptly after
the same is prepared and publicly distributed, filed with the SEC, or received
by the Company, one copy of any Registration Statement and any amendment
thereto, each preliminary prospectus and Prospectus and each amendment or
supplement thereto, and each letter written by or on behalf of the Company to
the SEC or the staff of the SEC, and each item of correspondence from the SEC or
the staff of the SEC, in each case relating to such Registration Statement
(other than any portion of any thereof which contains information for which the
Company has sought confidential treatment), and (ii) such number of copies of a
Prospectus, including a preliminary prospectus, and all amendments and
supplements thereto and such other documents as the Holder may reasonably
request in order to facilitate the disposition of the Registrable Securities and
Additional Registrable Securities owned by the Holder;
(e) in the event the Holder selects an underwriter for the offering,
the Company shall enter into and perform its obligations under an underwriting
agreement, in usual and customary form, including, without limitation, customary
indemnification and contribution obligations, with the underwriter of such
offering;
(f) if the Holder is described in the Registration Statement as an
underwriter, the Company shall furnish, on the effective date of the
Registration Statement and at periodic intervals thereafter from time to time on
request, (i) an opinion, dated as of such date, from independent legal counsel
representing the Company for purposes of such Registration Statement, in form,
scope and substance as is customarily given in an underwritten public offering,
addressed to the Holder and (ii) a letter, dated such date, from the Company's
independent
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certified public accountants in form and substance as is customarily given by
independent certified public accountants to underwriters in an underwritten
public offering, addressed to the Holder;
(g) to prevent the issuance of any stop order or other suspension of
effectiveness and, if such order is issued, obtain the withdrawal of any such
order at the earliest possible moment;
(h) furnish to the Holder at least five copies of the Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules by air mail or reputable courier within three (3)
Business Days after the effective date thereof;
(i) prior to any public offering of Registrable Securities or
Additional Registrable Securities, use its best efforts to register or qualify
or cooperate with the Holder and its counsel in connection with the registration
or qualification of the Registrable Securities or Additional Registrable
Securities, as applicable, for offer and sale under the securities or blue sky
laws of such jurisdictions requested by the Holder and do any and all other
reasonable acts or things necessary or advisable to enable the distribution in
such jurisdictions of the Registrable Securities or Additional Registrable
Securities covered by the Registration Statement;
(j) cause all Registrable Securities or Additional Registrable
Securities covered by a Registration Statement to be listed on each securities
exchange, interdealer quotation system or other market on which similar
securities issued by the Company are then listed;
(k) cooperate with the Holder to facilitate the timely preparation
and delivery of certificates representing Registrable Securities to be delivered
to a transferee pursuant to a Registration Statement, which certificates shall
be free, to the extent permitted by the Purchase Agreement, of all restrictive
legends, and to enable such Registrable Securities to be in such denominations
and registered in such names as the Holder may request;
(l) immediately notify the Holder at any time when a Prospectus
relating to the Registrable Securities or Additional Registrable Securities is
required to be delivered under the 1933 Act, upon discovery that, or upon the
happening of any
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event as a result of which, the Prospectus included in such Registration
Statement, as then in effect, includes an untrue statement of a material fact or
omits to state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which made,
not misleading, and at the request of any such holder, promptly prepare and
furnish to such holder a reasonable number of copies of a supplement to or an
amendment of such Prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such Registrable Securities or Additional
Registrable Securities, as applicable, such Prospectus shall not include an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading in
the light of the circumstances then existing; and
(m) otherwise to comply with all applicable rules and regulations of
the SEC under the 1933 Act and the 1934 Act, take such other actions as may be
reasonably necessary to facilitate the registration of the Registrable
Securities and Additional Registrable Securities, if applicable, hereunder; and
make available to its security holders, as soon as reasonably practicable, but
not later than the Availability Date, an earnings statement covering a period of
at least twelve months, beginning after the effective date of each Registration
Statement, which earnings statement shall satisfy the provisions of Section
11(a) of the 1933 Act (for the purpose of this subsection 3(m), "Availability
Date" means the 45th day following the end of the fourth fiscal quarter
following the fiscal quarter that includes the effective date of such
Registration Statement, except that, if such fourth fiscal quarter is the last
quarter of the Company's fiscal year, "Availability Date" means the 90th day
after the end of such fourth fiscal quarter).
4. DUE DILIGENCE REVIEW; INFORMATION. The Company shall make
available, during normal business hours, for inspection and review by the
Holder, advisors to and representatives of the Holder (who may or may not be
affiliated with the Holder and who are reasonably acceptable to the Company),
and any underwriter participating in any disposition of Common Stock on behalf
of the Holder pursuant to the Registration Statement or amendments or
supplements thereto or any blue sky, NASD, or other filing, all financial and
other records, all SEC Filings and other filings with the SEC, and all other
corporate documents and properties of the Company as may be reasonably necessary
for the purpose of establishing a due
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diligence defense under applicable securities laws and such other reasonable
purposes, and cause the Company's officers, directors and employees, within a
reasonable time period, to supply all such information reasonably requested by
the Holder or any such representative, advisor or underwriter in connection with
such Registration Statement (including, without limitation, in response to all
questions and other inquiries reasonably made or submitted by any of them),
prior to and from time to time after the filing and effectiveness of the
Registration Statement for the sole purpose of enabling the Holder and such
representatives, advisors and underwriters and their respective accountants and
attorneys to conduct initial and ongoing due diligence with respect to the
Company and the accuracy of the Registration Statement.
The above to the contrary notwithstanding, the Company shall not
disclose material nonpublic information to the Holder, or to advisors to or
representatives of the Holder, unless prior to disclosure of such information
the Company identifies such information as being material nonpublic information
and provides the Holder, such advisors and representatives with the opportunity
to accept or refuse to accept such material nonpublic information for review.
The Company may, as a condition to disclosing any material nonpublic information
hereunder, require the Holder's advisors and representatives to enter into a
confidentiality agreement (including an agreement with such advisors and
representatives prohibiting them from trading in Common Stock during such period
of time as they are in possession of material nonpublic information) in form
reasonably satisfactory to the Company and the Holder. Nothing herein shall
require the Company to disclose material nonpublic information to the Holder or
its advisors or representatives.
5. OBLIGATIONS OF THE HOLDER.
(a) The Holder shall furnish in writing to the Company such
information regarding itself, the Registrable Securities or Additional
Registrable Securities, as applicable, held by it and the intended method of
disposition of the Registrable Securities or Additional Registrable Securities,
as applicable, held by it, as shall be required by the 1933 Act to effect the
registration of such Registrable Securities or Additional Registrable
Securities, as applicable, and shall execute such documents in connection with
such registration as the Company may reasonably request. At least ten (10)
Business Days prior to the first anticipated filing date of any Registration
Statement (or such shorter period as may be agreed
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to by the Holder), the Company shall notify the Holder of the information the
Company requires from the Holder if the Holder's Registrable Securities or
Additional Registrable Securities are to be included in the Registration
Statement.
(b) The Holder, by its acceptance of the Registrable Securities and
Additional Registrable Securities, if any, agrees to cooperate with the Company
as reasonably requested by the Company in connection with the preparation and
filing of a Registration Statement hereunder, unless the Holder has notified the
Company in writing of its election to exclude all of its Registrable Securities
or Additional Registrable Securities, as applicable, from the Registration
Statement.
(c) The Holder agrees that, upon receipt of any notice from the
Company of the happening of any event rendering a Registration Statement no
longer effective or available for use by the Holder, the Holder will immediately
discontinue disposition of Registrable Securities or Additional Registrable
Securities pursuant to the Registration Statement covering such Registrable
Securities or Additional Registrable Securities, until the Holder's receipt of
the copies of the supplemented or amended Prospectus filed with the SEC and
declared effective and, if so directed by the Company, the Holder shall deliver
to the Company (at the expense of the Company) or destroy all copies in the
Holder's possession of the Prospectus covering the Registrable Securities or
Additional Registrable Securities, as applicable, current at the time of receipt
of such notice.
6. INDEMNIFICATION.
(a) INDEMNIFICATION BY COMPANY. The Company agrees to indemnify and
hold harmless, to the fullest extent permitted by law, the Holder, each
investment advisor and investment sub-advisor of the Holder and each of their
respective officers, directors, partners, members and employees and each person
who controls the Holder (within the meaning of the 0000 Xxx) against all losses,
claims, damages, liabilities, costs (including, without limitation, reasonable
attorney's fees) and expenses imposed on such person caused by (i) any untrue or
alleged untrue statement of a material fact contained in any Registration
Statement, Prospectus or any preliminary prospectus or any amendment or
supplement thereto or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as the same are based upon any
information furnished in writing to the Company by the Holder,
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expressly for use therein, or (ii) any violation by the Company of any federal,
state or common law, rule or regulation applicable to the Company in connection
with any Registration Statement, Prospectus or any preliminary prospectus, or
any amendment or supplement thereto, and shall reimburse in accordance with
subparagraph (c) below, each of the foregoing persons for any legal and any
other expenses reasonably incurred in connection with investigating or defending
any such claims. The foregoing is subject to the condition that, insofar as the
foregoing indemnities relate to any untrue statement, alleged untrue statement,
omission or alleged omission made in any preliminary prospectus or Prospectus
that is eliminated or remedied in any Prospectus or amendment or supplement
thereto, the above indemnity obligations of the Company shall not inure to the
benefit of any indemnified party if a copy of such corrected Prospectus or
amendment or supplement thereto had been provided to such indemnified party and
was not sent or given by such indemnified party at or prior to the time such
action was required of such indemnified party by the 1933 Act and if delivery of
such Prospectus or amendment or supplement thereto would have eliminated (or
been a sufficient defense to) any liability of such indemnified party with
respect to such statement or omission. Indemnity under this Section 5(a) shall
remain in full force and effect regardless of any investigation made by or on
behalf of any indemnified party and shall survive the transfer of the
Registrable Securities and Additional Registrable Securities.
(b) INDEMNIFICATION BY HOLDER. In connection with any registration
pursuant to the terms of this Agreement, the Holder will furnish to the Company
in writing such information as required by the 1933 Act concerning the Holder or
the proposed manner of distribution for use in connection with any Registration
Statement or Prospectus and agrees to indemnify and hold harmless, to the
fullest extent permitted by law, the Company, its directors, officers, and each
person who controls the Company (within the meaning of the 0000 Xxx) against any
losses, claims, damages, liabilities and expense (including reasonable
attorney's fees) resulting from any untrue statement of a material fact or any
omission of a material fact required to be stated in the Registration Statement
or Prospectus or preliminary prospectus or amendment or supplement thereto or
necessary to make the statements therein not misleading, to the extent, but only
to the extent that such untrue statement or omission is contained in any
information furnished in writing by such Holder to the Company specifically for
inclusion in such Registration Statement or Prospectus or amendment or
supplement thereto and that such information was substantially relied upon by
the Company in preparation of the Registration Statement or Prospectus or any
amendment or supplement
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thereto. In no event shall the liability of the Holder be greater in amount than
the dollar amount of the proceeds (net of the cost of the Registrable Securities
and Additional Registrable Securities sold and all expenses paid by the Holder
and not reimbursed by the Company and the amount of any damages the Holder has
otherwise been required to pay by reason of such untrue statement or omission)
received by the Holder upon the sale of the Registrable Securities or Additional
Registrable Securities included in the Registration Statement giving rise to
such indemnification obligation.
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. Any person entitled to
indemnification hereunder shall (i) give prompt notice to the indemnifying party
of any claim with respect to which it seeks indemnification, (ii) permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party and (iii) by notice to the indemnifying
party, require the indemnifying party to assume the defense of such claim with
counsel reasonably satisfactory to the indemnified party; provided, however,
that any person entitled to indemnification hereunder shall have the right to
employ separate counsel and to participate in the defense of such claim, but the
fees and expenses of such counsel shall be at the expense of such person unless
(a) the indemnifying party has agreed to pay such fees or expenses, or (b) the
indemnifying party shall have failed to assume the defense of such claim and
employ counsel reasonably satisfactory to such person or (c) in the reasonable
judgment of any such person, based upon written advice of its counsel, a
conflict of interest exists between such person and the indemnifying party with
respect to such claims (in which case, if the person notifies the indemnifying
party in writing that such person elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such claim on behalf of such person); and
provided, however, further, that the failure of any indemnified party to give
notice as provided herein shall not relieve the indemnifying party of its
obligations hereunder, except to the extent that such failure to give notice
shall materially adversely affect the indemnifying party in the defense of any
such claim or litigation. It is understood that the indemnifying party shall
not, in connection with any proceeding in the same jurisdiction, be liable for
fees or expenses of more than one separate firm of attorneys at any time
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for all such indemnified parties. No indemnifying party will, except with the
consent of each indemnified party, consent to entry of any judgment or enter
into any settlement that does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such indemnified party of a release from
all liability in respect of such claim or litigation.
(d) CONTRIBUTION. If for any reason the indemnification provided for
in the preceding paragraphs (a) and (b) is unavailable to an indemnified party
or insufficient to hold it harmless, other than as expressly specified therein,
then the indemnifying party shall contribute to the amount paid or payable by
the indemnified party as a result of such loss, claim, damage or liability in
such proportion as is appropriate to reflect the relative fault of the
indemnified party and the indemnifying party, as well as any other relevant
equitable considerations. No person guilty of fraudulent misrepresentation
within the meaning of Section 11(f) of the 1933 Act shall be entitled to
contribution from any person not guilty of such fraudulent misrepresentation. In
no event shall the contribution obligation of a holder of Registrable Securities
or Additional Registrable Securities be greater in amount than the dollar amount
of the proceeds (net of the cost of the Registrable Securities or Additional
Registrable Securities sold and all expenses paid by such holder and not
reimbursed by the Company and the amount of any damages such holder has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission) received by it upon the sale of the
Registrable Securities or Additional Registrable Securities giving rise to such
contribution obligation.
7. MISCELLANEOUS.
(a) AMENDMENTS AND WAIVERS. This Agreement may be amended only by a
writing signed by the Company and the Holder. The Company may take any action
herein prohibited, or omit to perform any act herein required to be performed by
it, in any such case after the Registration Statement covering the Initial
Registrable Securities Amount is declared effective by the SEC only if the
Company shall have obtained the written consent to such amendment, action or
omission to act, of the Holder and holders under the Other Registration Rights
Agreements who hold, directly or indirectly, at least 80% of the aggregate
number of Registrable Securities and Additional Registrable Securities (as
defined herein or in the Other Registration Rights Agreements) held by the
Holder and such other holders.
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(b) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made as set forth in Section 9.4 of the Purchase
Agreement.
(c) ASSIGNMENTS AND TRANSFERS BY HOLDER. This Agreement and the
rights and obligations of the Holder hereunder may be assigned or transferred in
whole to any transferee or assignee of the Note, the Warrants, the Registrable
Securities or the Additional Registrable Securities or in part to any transferee
or assignee of any portion thereof, except as otherwise set forth herein. The
Holder may make such assignment or transfer to any transferee or assignee of the
Note, the Warrants, the Registrable Securities or the Additional Registrable
Securities; provided, that (i) such transfer is made expressly subject to this
Agreement and the transferee agrees in writing to be bound by the terms and
conditions hereof, and (ii) the Company is provided with written notice of such
assignment.
(d) ASSIGNMENTS AND TRANSFERS BY THE COMPANY. This Agreement may not
be assigned by the Company without the prior written consent of the Holder but,
in any case of any successor-in-interest to the Company or any Person other than
the Company who is an issuer of Registrable Securities or Additional Registrable
Securities, such successor-in-interest or other issuer, shall assume, jointly
and severally with the Company, the rights and duties of the Company hereunder,
in the event of a merger or consolidation of the Company with or into another
corporation or the sale of all or substantially all of the Company's assets (and
it shall be a condition to any such merger, consolidation or sale that such
successor-in-interest or other issuer assume in writing all obligations
hereunder jointly and severally with the Company as provided herein and in the
Note and the Warrants).
(e) BENEFITS OF THE AGREEMENT. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
permitted successors and assigns of the parties. Nothing in this Agreement,
express or implied, is intended to confer upon any party other than the parties
hereto or their respective permitted successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement.
(f) COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an
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original, but all of which together shall constitute one and the same
instrument.
(g) TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
(h) SEVERABILITY. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, such provision shall be excluded
from this Agreement and the balance of this Agreement shall be interpreted as if
such provision were so excluded and shall be enforceable in accordance with its
terms to the fullest extent permitted by law.
(i) FURTHER ASSURANCES. The parties shall execute and deliver all
such further instruments and documents and take all such other actions as may
reasonably be required to carry out the transactions contemplated hereby and to
evidence the fulfillment of the agreements herein contained.
(j) ENTIRE AGREEMENT. This Agreement, together with the Purchase
Agreement, the Note and the Warrants and documents contemplated thereby, is
intended by the parties as a final expression of their agreement and intended to
be a complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein. This
Agreement, together with the Purchase Agreement, the Note and the Warrants and
documents contemplated thereby, supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
(k) APPLICABLE LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York without regard
to principles of conflicts of law.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be duly executed by their respective officers or other
representatives thereunto duly authorized as of the date first written above.
THE COMPANY:
VIRAGEN, INC.
By:
-----------------------------
Name:
Title:
THE HOLDER:
---------------------------------
By:
-----------------------------
Name:
Title:
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