Exhibit: 2
REGISTRATION RIGHTS AGREEMENT
HYSEQ, INC.
This Registration Rights Agreement (the "Agreement") is made and entered
into as of the 19th day of June, 1997, by and between Hyseq, Inc., a Nevada
corporation (the "Company"), and The Xxxxxx-Xxxxx Corporation (the "Holder").
W I T N E S S E T H:
WHEREAS, the Holder has agreed to purchase shares of shares of the
Company's Series B Preferred Stock, par value $.001 per share (the "Preferred
Stock" or "Shares"), pursuant to the Stock Purchase Agreement dated as of May
28, 1997 (the "Purchase Agreement"); and
WHEREAS, as additional consideration for the purchase of the Shares by each
Holder, the Company desires to grant to each such Holder registration rights
with respect to the Shares;
NOW THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the parties hereto agree as follows:
1. Definitions. For purposes of this Agreement:
-----------
(a) The terms "register," "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement or
similar document in compliance with the Securities Act of 1933, as amended (the
"1933 Act"), and the declaration or ordering of effectiveness of such
registration statement or document;
(b) The term "Registrable Securities" means (i) the common stock issuable
or issued upon conversion of the Preferred Stock (the "Common Stock") and (ii)
any common stock of the Company issued as (or issuable upon the conversion or
exercise of any warrant, right or other security which is issued as) a dividend
or other distribution with respect to, or in exchange for or in replacement of,
the Preferred Stock or Common Stock, excluding in all cases, however, any
Registrable Securities sold by a person in a transaction in which such person's
registration rights are not assigned; provided, however, that as to any
particular securities that are included in Registrable Securities, such
securities shall cease to be Registrable Securities when (i) such shares shall
have been sold to the public pursuant to a registered public offering or (ii)
such securities shall have been sold pursuant to Rule 144 (or any successor
provision) under the 1933 Act.
(c) The number of shares of "Registrable Securities then outstanding" shall
be determined by the number of shares of Common Stock outstanding which are, and
the number of shares of Common Stock issuable pursuant to then exercisable or
convertible securities which are exercisable or convertible into, Registrable
Securities; and
(d) The term "Holder" includes any person owning or having the right to
acquire Registrable Securities or any assignee thereof in accordance with
Paragraph 12 hereof.
2. Required Registration. At any time after the date which is six (6)
---------------------
months after the closing of an initial public offering of the Company's common
stock, the Holders of a majority of the total number of Registrable Securities
then outstanding may request (a "Demand") that the Company prepare and file a
registration statement under the 1933 Act covering any or all of the Registrable
Securities. In the event that the Company receives a Demand under this Paragraph
2, the Company shall, within five (5) business days of the receipt of the
Demand, give written notice of such request to all Holders of Registrable
Securities and shall file a registration statement not more than the later of
(i) thirty (30) business days after receipt of a Demand or (ii) ten (10)
business days after requisite financial statements are available for inclusion
in the registration statement, and use its best efforts to effect as soon as
practicable thereafter, the registration under the 1933 Act in accordance with
Paragraph 4 hereof of all Registrable Securities which the Holders request be
registered within twenty (20) business days after the mailing of such notice by
the Company in accordance with subparagraph 16(c). The Company shall be
obligated to register Registrable Securities pursuant to this Paragraph 2 on one
occasion only, provided, however, that such obligation shall be deemed satisfied
-----------------
only when a registration statement covering all Registrable Securities specified
in such Demand, as well as by any Holders joining in such Demand, shall have
become effective for the sale of such Registrable Securities in accordance with
the method of disposition specified by the requesting Holders, and, if such
method of disposition is a firm commitment underwritten public offering, all
such shares have been sold pursuant thereto.
Notwithstanding anything to the contrary contained herein, the Company may
not, on its own behalf or on behalf of any other stockholder(s), file a
registration statement under the 1933 Act for a public offering of its common
stock within 90 days after the effective date of a registration statement filed
under this Paragraph 2.
3. Incidental Registration. If (but without any obligation to do so, and
-----------------------
other than pursuant to Paragraph 2) the Company, at any time, proposes to
register (including for this purpose a registration effected by the Company for
stockholders other than the Holders) any of its stock or other securities under
the 1933 Act in connection with the public offering of such securities solely
for cash (other than a registration relating solely to the sale of securities to
participants in an initial public offering, a Company stock plan or a
registration on Form S-4 or any other form which does not include substantially
the same information as would be required to be included in a registration
statement covering the sale of the Registrable Securities), the Company shall,
each such time, give each Holder written notice of such registration in
accordance with subparagraph 16(c) hereof. Upon the written request of each
Holder given
1
within twenty (20) business days after mailing of such notice by the Company,
the Company shall use its best efforts, subject to the provisions of Paragraph
8, to cause to be registered under the Securities Act all of the Registrable
Securities that each Holder has requested to be registered; provided that the
Company shall have the right to postpone or withdraw any registration effected
pursuant to this Paragraph 3 without obligation to any Holder.
4. Obligations of the Company. Whenever required under this Agreement to
--------------------------
effect the registration of any Registrable Securities, the Company shall, as
expeditiously as reasonably possible (unless otherwise specified in this
Agreement):
(a) Prepare and file with the SEC a registration statement with respect to
such Registrable Securities and use its best efforts to cause such registration
statement to become effective, and, upon the request of the Holders of a
majority of the Registrable Securities registered thereunder, keep such
registration statement effective until this agreement is terminated pursuant to
Paragraph 15 hereof.
(b) Prepare and file with the SEC such amendments and supplements to such
registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
1933 Act with respect to the disposition of all securities covered by such
registration statement.
(c) Furnish to the Holders covered by such registration statement such
numbers of copies of the registration statement (including each preliminary
prospectus) and the prospectus contained therein in conformity with the
requirements of the 1933 Act, and such other documents all as they may
reasonably request in order to facilitate the disposition of such Registrable
Securities.
(d) Use its best efforts to register and qualify the securities covered by
such registration statement under such other securities or Blue Sky laws of such
jurisdictions as shall be reasonably requested by the Holders thereof, provided
that the Company shall not be required in connection therewith or as a condition
thereto to qualify to do business or to file a general consent to service of
process in any such states or jurisdictions.
(e) In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter of such offering. Each Holder participating
in such underwriting shall also enter into and perform its obligations under
such an agreement.
(f) Notify each Holder covered by such registration statement at any time
when a prospectus relating thereto is required to be delivered under the 1933
Act of the happening of any 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 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. Upon such notification, such Holders shall
immediately cease making offers of Registered Securities. The Company shall
promptly provide such Holders with revised prospectuses and, following receipt
of the revised prospectuses, such Holders shall be free to resume making offers
of the Registered Securities.
(g) If the offering is underwritten and at the request of any Holder of
Registrable Securities, use its best efforts to furnish on the date that
Registrable Securities are delivered to the underwriters for sale pursuant to
such registration: (i) an opinion, dated such date, of counsel representing the
Company for the purposes of such registration, addressed to the underwriters and
to such Holder, stating that such registration statement has become effective
under the 1933 Act and that (A) to the best knowledge of such counsel, no stop
order suspending the effectiveness thereof has been issued and no proceedings
for that purpose have been instituted or are pending or contemplated under the
1933 Act, (B) the registration statement, the related prospectus and each
amendment or supplement thereof comply as to form in all material respects with
the requirements of the 1933 Act (except that such counsel need not express any
opinion as to financial statements contained therein) and (C) to such other
effects as reasonably may be requested by counsel for the underwriters or by
such Holder or its counsel and (ii) a letter dated such date from the
independent public accountants retained by the Company, addressed to the
underwriters and to such Holder, stating that they are independent public
accountants within the meaning of the 1933 Act and that, in the opinion of such
accountants, the financial statements of the Company included in the
registration statement or the prospectus, or any amendment or
2
supplement thereof, comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act, and such letter shall
additionally cover such other financial matters (including information as to the
period ending no more than five business days prior to the date of such letter)
with respect to such registration as such underwriters reasonably may request.
(h) Use its best efforts to list the Registrable Securities covered by such
registration statement with any securities exchange or interdealer quotation
system on which the Common Stock is then listed or included for quotation.
5. Provision of Information. It shall be a condition precedent to the
------------------------
obligations of the Company to take any action pursuant to this Agreement that
the selling Holders shall furnish to the Company such information regarding
themselves, the Registrable Securities held by them, and the intended method of
disposition of such securities as shall be reasonably required to effect the
registration of the Registrable Securities.
6. Expenses of Required Registration. With respect to the demand
---------------------------------
registration right under Paragraph 2, expenses, other than underwriting
discounts and commissions and any nonaccountable expense allowance (attributable
to the Holders of Registrable Securities on a pro rata basis with securities to
be registered by the Company and any other selling stockholders) of any
underwriters, incurred in connection with registration and fees and expenses of
counsel to the selling Holders, if any, including (without limitation) all
registration, filing and qualification fees, printers' and accounting fees, fees
and disbursements of counsel for the Company, shall be borne by the Company;
provided that the Company shall not be required to pay for any expenses of any
registration proceeding begun pursuant to Paragraph 2 if the registration
request is subsequently withdrawn at the request of the Holders of a majority of
the Registrable Securities to be registered (in which case all participating
Holders shall bear such expenses); provided, however, that if, at the time of
such withdrawal, such Holders have learned of a material adverse change in the
condition, business or prospects of the Company taken as a whole from that known
to such Holders at the time of their request, then the Holders shall not be
required to pay any of such expenses and shall retain their rights pursuant to
Paragraph 2.
7. Expenses of Incidental Registration. The Company shall bear and pay
-----------------------------------
all expenses incurred in connection with any registration, filing or
qualification of Registrable Securities with respect to the registrations
pursuant to Paragraph 2 for the Holder, including (without limitation) all
registration, filing and qualification fees, printers' and accounting fees
relating or apportionable thereto and the reasonable fees and disbursements of
one counsel for the Holder selected by it, but excluding underwriting discounts
and commissions and any nonaccountable expense allowance (attributable to the
Holders of Registrable Securities on a pro rata basis with securities to be
registered by the Company and any other selling stockholders) of underwriters
relating to Registrable Securities.
8. Underwriting Requirements. In connection with any offering involving
-------------------------
an underwriting of shares being issued by the Company, the Company shall not be
required under Paragraph 3 to include any of the Holders' securities in such
underwriting unless they accept the terms of the underwriting as agreed upon
between the Company and the underwriters and then only in such quantity as will
not, in the opinion of the underwriters, jeopardize the success of the offering
by the Company. If the total amount of securities, including Registrable
Securities, requested by stockholders to be included in such offering exceeds
the amount of securities sold other than by the Company that the underwriters
reasonably believe compatible with the success of the offering, then the Company
shall be required to include in the offering only that number of such
securities, including Registrable Securities, which the underwriters believe
will not jeopardize the success of the offering (the securities so included to
be apportioned such that all Registrable Securities held by the Holders shall be
included in such registration, and if this is not possible, then pro rata among
the Holders of Registrable Securities and the holders of any class or series of
securities with liquidation rights pari passu with Registrable Securities but
in any case subsequent to the holders of Series A Preferred Stock to the extent
required under their respective registration rights agreements and prior to the
holders of any other class of securities other than Registrable Securities or
any class or series of securities with liquidation rights pari passu with
Registrable Securities). For purposes of the preceding parenthetical concerning
apportionment, for any selling stockholder that is a Holder of Registrable
Securties and that is a partnership or corporation, the partners, retired
partners and stockholders of such Holder, or the estates and family members of
any such partners and retired partners and any trusts for the benefit of any of
the foregoing persons shall be deemed to be a single "selling stockholder," and
any pro rata reduction with respect to such "selling stockholder" shall be based
upon the aggregate amount of shares carrying registration rights owned by all
entities and individuals included in such "selling stockholder," as defined in
this sentence.
9. Delay of Registration. No Holder shall have any right to obtain
---------------------
or seek an injunction restraining or otherwise delaying any such registration as
the result of any controversy that might arise with respect to the
interpretation or implementation of this Agreement.
10. Indemnification. In the event any Registrable Securities are included
---------------
in a registration statement under this Agreement:
(a) To the extent permitted by law, the Company will indemnify and hold
harmless each Holder of such Registrable Securities, the officers and directors
of each such Holder, any underwriter (as defined in the 0000 Xxx) for such
Holder and each person, if any, who controls such Holder or underwriter within
the meaning of the 1933 Act or the Securities and Exchange Act of 1934, as
amended ("xxx 0000 Xxx"), against any losses, claims, damages or liabilities
joint or several) to which they may become subject under the 1933 Act, the 1934
Act or other federal or state law, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
3
upon any of the following statements, omissions or violations (collectively, a
"Violation"): (i) any untrue statement or alleged untrue statement of material
fact contained in such registration statement, including any preliminary
prospectus or final prospectus contained therein or any amendments or
supplements thereto, (ii) the omission or alleged omission to state therein a
material fact required to be stated therein, or necessary to make the statements
therein not misleading, or (iii) any violation or alleged violation by the
Company of the 1933 Act, the 1934 Act, any state securities law or any rule or
regulation promulgated under the 1933 Act, the 1934 Act or any state securities
law; and the Company will reimburse each Holder, officer or director,
underwriter or controlling person for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the indemnity
agreement contained in this subparagraph 10(a) shall not apply to amounts paid
in settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Company (which consent shall
not be unreasonably withheld), nor shall the Company be liable in any such case
for any such loss, claim, damage, liability or action to the extent that it
arises out of or is based upon a Violation which occurs in reliance upon and in
conformity with written information furnished expressly for use in connection
with such registration by any such Holder.
(b) To the extent permitted by law, each selling Holder, severally and not
jointly will indemnify and hold harmless the Company, each of its directors,
each of its officers who have signed the registration statement, each person, if
any, who controls the Company within the meaning of the 1933 Act, any
underwriter and any other Holder selling securities in such registration
statement or any of its directors or officers or any person who controls such
Holder, against any losses, claims, damages or liabilities joint or several) to
which the Company or any such director, officer or controlling person may become
subject, under the 1933 Act, the 1934 Act or other federal or state law, insofar
as such losses, claims, damages or liabilities (or actions in respect thereto)
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 furnished by such Holder expressly for use
in connection with such registration; and each such Holder will reimburse any
legal or other expenses reasonably incurred by the Company or any such director,
officer, controlling person, underwriter or controlling person, other Holder,
officer, director, or controlling person in connection with investigating or
defending any such loss, claim, damage, liability, or action; provided, however,
that the indemnity agreement contained in this subparagraph 10(b) shall not
apply to amounts paid in settlement of any such loss, claim, damage, liability
or action if such settlement is effected without the consent of the Holder,
which consent shall not be unreasonably withheld; provided, that, in no event
shall any indemnity under this subparagraph 10(b) exceed the gross proceeds from
the offering received by such Holder.
(c) Promptly after receipt by an indemnified party under this Paragraph 10
of notice of the commencement of any action (including any governmental action),
such indemnified party will, if a claim in respect thereof is to be made against
any indemnifying party under this Paragraph 10, 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 the defense thereof with counsel mutually satisfactory to the parties;
provided, however, that any indemnified party shall have the right to retain its
own counsel, with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
actions, if prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this
Paragraph 10, but the omission so to deliver written notice to the indemnifying
party will not relieve it of any liability that it may have to any indemnified
party otherwise than under this Paragraph 10.
(d) To provide for just and equitable contribution, if (i) an indemnified
party makes a claim for indemnification pursuant to subparagraph 10(a) or 10(b)
but it is found in a final judicial determination, not subject to further
appeal, that such indemnification may not be enforced in such case, even though
this Agreement expressly provides for indemnification in such case, or (ii) any
indemnified or indemnifying party seeks contribution under the 1933 Act, the
1934 Act, or otherwise, then the Company (including for this purpose any
contribution made by or
4
on behalf of any officer, director, employee, agent or counsel of the Company,
or any controlling person of the Company), on the one hand, and the Holders
(including for this purpose any contribution by or on behalf of an indemnified
party), on the other hand, shall contribute to the losses, liabilities, claims,
damages, and expenses to which any of them may be subject, in such proportions
as are appropriate to reflect the relative benefits received by the Company, on
the one hand, and the Holders, on the other hand; provided, however, that if
applicable law does not permit such allocation, then other relevant equitable
considerations such as the relative fault of the Company and the Holders in
connection with the facts which resulted in such losses, liabilities, claims,
damages and expenses shall also be considered. The relative benefits received by
the Company, on the one hand, and the Holders, on the other hand, shall be
deemed to be in the same proportion as the total proceeds from the offering
received by each of the Company on the one hand and the Holders, on the other
hand.
The relative fault, in the case of an untrue statement, alleged untrue
statement, omission, or alleged omission, shall be determined by, among other
things, whether such statement, alleged statement, omission, or alleged omission
relates to information supplied by the Company or by the Holders, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement, alleged statement, omission, or alleged
omission. The Company and Holders agree that it would be unjust and inequitable
if the respective obligations of the Company and the Holders for contribution
were determined by pro rata or per capital allocation of the aggregate losses,
liabilities, claims, damages and expenses or by any other method of allocation
that does not reflect the equitable considerations referred to in this
subparagraph 10(d). No person guilty of a fraudulent misrepresentation (within
the meaning of subparagraph 11(f) of the 0000 Xxx) shall be entitled to
contribution from any person who is not guilty of such fraudulent
misrepresentation. For purposes of this subparagraph 10(d), each person, if any,
who controls a Holder within the meaning of Section 15 of the 1933 Act or
Section 20(a) of the 1934 Act and each officer, director, stockholder, employee,
agent and counsel of the Holders shall have the same rights of contribution as
the Holder, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act or Section 20(a) of the 1934 Act and each officer,
director, employee, agent and counsel of the Company, shall have the same rights
to contribution as the Company, subject in each case to the provisions of this
subparagraph 10(d). Anything in this subparagraph 10(d) to the contrary
notwithstanding, no party shall be liable for contribution with respect to the
settlement of any claim or action effected without its written consent. This
subparagraph 10(d) is intended to supersede any right to contribution under the
1933 Act, the 1934 Act, or otherwise.
(e) The obligations of the Company and Holders under this Paragraph 10
shall survive the completion of any offering of Registrable Securities in a
registration statement under this Agreement, and otherwise.
11. Efforts Under the 1934 Act. With a view to making available to the
--------------------------
Holders the benefits of Rule 144 under the 1933 Act and any other rule or
regulation of the SEC that may at any time permit a Holder to sell securities of
the Company to the public without registration, the Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144, at all times after 90 days after the
effective date of the first registration statement filed by the Company for the
offering of its securities to the general public;
(b) file with the SEC in a timely manner all reports and other documents
required of the Company under the 1933 Act and the 1934 Act; and
(c) furnish to any Holder, so long as the Holder owns any Registrable
Securities, forthwith upon request (i) a written statement by the Company that
it has complied with the reporting requirements of Rule 144 (at any time after
90 days after the effective date of the first registration statement filed by
the Company), the 1933 Act and the 1934 Act (at any time after it has become
subject to such reporting requirements), (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, and (iii) such other information as may be reasonably requested
in availing any Holder of any rule or regulation of the SEC which permits the
selling of any such securities without registration.
5
12. Assignment of Registration Rights. The rights to cause the Company to
---------------------------------
register Registrable Securities pursuant to this Agreement may be assigned by
a Holder to a transferee or assignee of such securities; provided, in each case,
the Company is, within a reasonable time after such transfer, furnished with
written notice of the name and address of such transferee or assignee and the
securities with respect to which such registration rights are being assigned;
and, such transferee or assignee shall, as a condition to such transfer, deliver
to the Company a written instrument by which such transferee or assignee agrees
to be bound by the obligations imposed on Holders of Registrable Securities
pursuant to this Agreement and provided, further, that such assignment shall be
effective only if immediately following such transfer, the disposition of such
securities by the transferee or assignee: (i) is restricted under the 1933 Act;
or (ii) is exempt from registration under the 1933 Act.
13. Market Stand-Off Agreement. Each Holder owning more than 2% of the
--------------------------
outstanding stock of the Company hereby agrees that it shall not, to the extent
requested by the Company and an underwriter of Common Stock (or other
securities) of the Company, sell or otherwise transfer or dispose (other than to
donees who agree to be similarly bound) of any Registrable Securities during a
reasonable and customary period of time, as agreed to by the Company and the
underwriters, not to exceed 180 days, following the effective date of a
registration statement of the Company filed under the 1933 Act; provided,
however, that:
(a) such agreement shall be applicable only to a registration statement of
the Company which covers shares (or securities) to be sold to the public by an
underwriter on its behalf in an initial public offering; and
(b) all officers and directors of the Company and all other persons with
registration rights (whether or not pursuant to this Agreement) enter into
similar agreements.
In order to enforce the foregoing covenant, the Company may impose stop-
transfer instructions with respect to the Registrable Securities of each Holder
thereof until the end of such reasonable and customary period.
14. Amendment of Registration Rights. Any provision 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 Holders of a majority of the Registrable
Securities then outstanding; provided, however, that any amendment or waiver
effected in accordance with this paragraph shall be binding upon each holder of
any securities purchased under this Agreement at the time outstanding (including
securities into which such securities are convertible), each future holder of
all such securities, and the Company.
15. Termination of Registration Rights. The Company's obligations
----------------------------------
pursuant to this Agreement (other than pursuant to Paragraphs 3 and 10) shall
terminate as to any Holder of Registrable Securities on the earlier of (i) when
the Holder can remove the restrictive legend on such Holder's shares pursuant to
Rule 144(k) under the 1933 Act (or any such successor rule) or (ii) on the fifth
anniversary of the closing of the initial registered public offering of Common
Stock of the Company. The Company's obligations pursuant to Paragraph 3 hereof
shall terminate as to any Holder of Registrable Securities on the fifth
anniversary of the closing of the initial registered public offering of Common
Stock of the Company.
16. Miscellaneous.
-------------
(a) Remedies. In the event of a breach by the Company of its obligations
--------
under this Agreement, each Holder, in addition to being entitled to exercise all
rights granted by law, including recovery of damages, will be entitled to
specific performance of its rights under this Agreement.
(b) Agreements and Waivers. The provisions of this Agreement, including
----------------------
the provisions of this sentence, may not be amended, modified or supplemented,
unless such amendment, modification or supplement is in writing and signed by
the Company and the Holders of at least two thirds of the outstanding
Registrable Securities.
(c) Notices. All notices and other communications provided for or
-------
permitted hereunder shall be made in writing by hand-delivery, registered first-
class mail, telex, or telecopies, initially to the address set forth below, and
thereafter at such other address, notice of which is given in accordance with
the provisions of this subparagraph 16(c):
6
(i) if to the Company:
Xxxxx X. Xxxxxx, President and CEO
Hyseq, Inc.
Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
copy to:
Xxxxxxxx & Xxxxxx, Ltd.
00 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
(ii) if to the Holders:
At the address set forth in the Company's Stock Register.
All such notices and communications shall be deemed to have been duly given:
when delivered by hand, if personally delivered; two business days after being
deposited in the mail, postage prepaid, if mailed; when answered back, if
telexed; and when receipt is acknowledged, if telecopied.
(d) Successors and Assigns. Subject to Paragraph 12, this Agreement shall
----------------------
inure to the benefit of and be binding upon the successors and assigns of each
of the parties, including without limitation and without the need for an express
assignment, subsequent holders of the Registrable Shares subject to the terms
hereof.
(e) Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) Headings. The headings in this Agreement are for convenience of
--------
references only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the State of California without reference to its
conflicts of law provisions.
(h) Severability. In the event that any one or more of the provisions
------------
contained herein, or the application hereof in any circumstance is held invalid,
illegal or unenforceable, the validity, legality and enforceability of any such
provisions contained herein shall not be affected or impaired thereby.
(i) Entire Agreement. This Agreement is intended by the parties as a final
----------------
expression of their agreement and intended to be a complete and exclusive
statement of this agreement and understanding of the parties hereto in respect
of the subject matter contained herein. There are not restrictions, promises
warranties or undertakings, other than those set forth or referred to herein,
concerning the registration rights granted by the Company pursuant to this
Agreement.
(j) Subsequent Registration Rights. The Company shall not grant to any
------------------------------
third party any registration rights more favorable than, or inconsistent with,
any of those contained herein so long as any of the registration rights under
this Agreement remains in effect.
7
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the date first written above.
HYSEQ, INC.
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Xxxxx X. Xxxxxx, President and CEO
HOLDER:
THE XXXXXX-XXXXX CORPORATION
By: /s/ Xxxxx Xxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxx
---------------------------
Title: Vice President
----------------------
8