EXHIBIT 10.21
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of September 16, 1998, by and
between Celgene Corporation, a Delaware corporation (the "Company"), and Warburg
Dillon Read LLC (the "Purchaser") entered into in connection with the issuance
of a Convertible Note due September 16, 2003 convertible into shares of Common
Stock, par value $.01 per share ("Common Stock") of the Company.
1. Certain Definitions.
For purposes of this Registration Rights Agreement, the following terms
shall have the following respective meanings:
(a) "Commission" shall mean the Securities and Exchange Commission, or
any other federal agency at the time administering the Exchange Act or the
Securities Act, whichever is the relevant statute for the particular purpose.
(b) "Convertible Note" shall mean the Convertible Note due September
16, 2003, of the Company to be issued and sold to the Purchaser, and any
Convertible Note issued in exchange therefor or in lieu thereof.
(c) "Effective Time" shall mean the date on which the Commission
declares the Shelf Registration effective or on which the Shelf Registration
otherwise becomes effective.
(d) "Exchange Act" shall mean the Securities Exchange Act of 1934, or
any successor thereto, as the same shall be amended from time to time.
(e) "Issue Date" shall mean the date on which a Convertible Note is
initially issued.
(f) The term "person" shall mean a corporation, association,
partnership, organization, business, individual, government or political
subdivision thereof or governmental agency.
(g) "Registration Expenses" shall have the meaning assigned thereto in
Section 4 hereof.
(h) "Securities Act" shall mean the Securities Act of 1933, or any
successor thereto, as the same shall be amended from time to time.
(i) "Shares" means the shares of Common Stock issuable upon exercise
of the Convertible Note.
(j) "Shelf Registration" shall have the meaning assigned thereto in
Section 2 hereof.
In addition, capitalized terms not defined herein shall have the meaning
ascribed in the Convertible Note.
2. Shelf Registration of Shares.
(a) Not later than September 16, 1999, the Company shall file under the
Securities Act a "shelf" registration statement providing for the registration
of, and the sale on a continuous or delayed basis by the Purchaser of, all
Shares issuable upon conversion of the Convertible Notes, pursuant to Rule 415
under the Securities Act and/or any similar rule that may be adopted by the
Commission (the "Shelf Registration"). The Company agrees to use its best
efforts to cause the Shelf Registration to become or be declared effective no
later than 45 calendar days after the filing thereof and to keep such Shelf
Registration continuously effective for a period ending on the earliest to occur
of (i) the second anniversary of the Issue Date, (ii) notification to the
Company by the Purchaser that it has sold all Shares issuable upon conversion of
the Convertible Notes so owned by it, or (iii) such time as the Purchaser may
sell all of such shares pursuant to Rule 144(k) under the Securities Act. The
Company further agrees, if necessary, to supplement or make amendments to the
Shelf Registration, if required by the rules, regulations or instructions
applicable to the registration form used by the Company for such Shelf
Registration or by the Securities Act or rules and regulations thereunder for
shelf registration, and the Company agrees to furnish to the Purchaser copies of
any such supplement or amendment prior to its being used and/or filed with the
Commission, and will not file any such supplement or amendment to which the
Purchaser reasonably objects.
(b) Notwithstanding the foregoing, following the effectiveness of the Shelf
Registration, the Company may, at any time, suspend the effectiveness of such
Shelf Registration for up to 60 days, as appropriate (a "Suspension Period"), by
giving notice to the Purchaser, if the Company shall have determined that the
Company may be required to disclose any material corporate development which
disclosure may jeopardize a material transaction or otherwise have a material
adverse effect on the Company. The Company will use its best efforts to minimize
the length of any Suspension Period. Notwithstanding the foregoing, no more than
one Suspension Period may occur within any 180 day period. The period of any
such suspension of the registration statement shall be added to the period of
time the Company agrees to keep the Shelf Registration effective as provided in
Section 2(a). The Purchaser agrees that, upon receipt of any notice from the
Company of a Suspension Period, the Purchaser shall forthwith discontinue
disposition of shares covered by the Shelf Registration until the Purchaser (i)
is advised in writing by the Company that the use of the applicable prospectus
may be resumed, (ii) has received copies of a supplemental or amended
prospectus, if applicable, and (iii) has received copies of any additional or
supplemental filings which are incorporated or deemed to be incorporated by
reference in such prospectus.
3. Registration Procedures.
(a) In connection with any obligation of the Company to register Shares,
the Company shall use its best efforts to effect or cause such registration to
permit the sale of the Shares by the Purchaser in accordance with the intended
method or methods of distribution thereof described in the applicable
registration statement. In connection therewith, the Company shall, within the
time specified in Section 2 above:
(i) prepare and file with the Commission a registration statement on
any form which may be utilized by the Company and which shall permit the
disposition of the Shares in accordance with the intended method or methods
thereof, as specified in writing by the Purchaser;
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(ii) comply with the provisions of the Securities Act with respect to
the disposition of all of the Shares covered by such registration statement
in accordance with the intended methods of disposition by the Purchaser set
forth in such registration statement;
(iii) provide (A) the Purchaser, (B) the underwriters (which term, for
purposes of these Registration Rights, shall include a person deemed to be
an underwriter within the meaning of Section 2(1.1) of the Securities Act),
if any, thereof, (C) the sales or placement agent, if any, therefor, (D)
counsel for such underwriters or agent, and (E) counsel for the Purchaser
the opportunity to participate in the preparation of such registration
statement, each prospectus included therein or filed with the Commission,
and each amendment or supplement thereto;
(iv) for a reasonable period prior to the filing of such registration
statement, and throughout the period specified in Section 2 hereof, make
available for inspection by the parties referred to in Section 3(a)(iii)
above who shall certify to the Company that they have a current intention
to sell the Shares pursuant to the registration statement such financial
and other information and books and records of the Company, and cause the
officers, employees, counsel and independent certified public accountants
of the Company to respond to such inquiries, as shall be reasonably
necessary, in the judgment of the respective counsel referred to in such
Section, to conduct a reasonable investigation within the meaning of
Section 11 of the Securities Act; provided, however, that each such party
shall be required to maintain in confidence and not to disclose to any
other person any information or records provided by the Company until such
time as (A) such information becomes a matter of public record (whether by
virtue of its inclusion in such registration statement or otherwise), or
(B) such person shall be required so to disclose such information pursuant
to the subpoena or order of any court or other governmental agency or body
having jurisdiction over the matter (subject to the requirements of such
order, and only after such person shall have given the Company prompt prior
written notice of such requirement), or (C) such information is required to
be set forth in such registration statement, or the prospectus included
therein or in an amendment to such registration statement or an amendment
or supplement to such prospectus in order that such registration statement,
prospectus, amendment or supplement, as the case may be, does not contain
an untrue statement of a material fact or omit to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading;
(v) promptly notify the Purchaser, the sales or placement agent, if
any, therefor and the managing underwriter or underwriters, if any, thereof
and confirm such advice in writing, (A) when such registration statement or
the prospectus included therein or any prospectus amendment or supplement
or post-effective amendment has been filed, and, with respect to such
registration statement or any post-effective amendment, when the same has
become effective, (B) of any comments by the Commission and by the Blue Sky
or securities commissioner or regulator of any state with respect thereto
or any request by the Commission for amendments or supplements to such
registration statement or prospectus or for additional information, (C) of
the issuance by the Commission of any stop order suspending the
effectiveness of such registration statement or the initiation or overt
threatening of any proceedings for that purpose, (D) if at any time the
representations and warranties of the Company contemplated by Section 5
hereof cease to be true and correct in all material respects, (E) of the
receipt by the Company of any notification with respect to the suspension
of the qualification of the Shares for sale in any jurisdiction or the
initiation or overt threatening of any proceeding for such purpose, or (F)
at any time when a prospectus is required to be delivered under the
Securities Act, if such registration statement, prospectus, prospectus
amendment or supplement or post-effective amendment, or any document
incorporated by reference in any of the foregoing, contains an untrue
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statement of a material fact or omits to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing;
(vi) use its best efforts to obtain the withdrawal of any order
suspending the , effectiveness of such registration statement or any
post-effective amendment thereto at the earliest practicable date;
(vii) if requested by any managing underwriter or underwriters, any
placement or sales agent or the Purchaser, promptly incorporate in a
prospectus supplement or post-effective amendment such information as is
required by the applicable rules and regulations of the Commission that
such managing underwriter or underwriters, such agent or the Purchaser
specify should be included therein relating to the terms of the sale of
such Shares, including, without limitation, information with respect to the
number of Shares being sold by the Purchaser or agent or to any
underwriters, the name and description of the Purchaser, agent or
underwriter, the offering price of such Shares and any discount, commission
or other compensation payable in respect thereof, the purchase price being
paid therefor by such underwriters and with respect to any other terms of
the offering of the Shares to be sold by the Purchaser or agent or to such
underwriters; and make all required filings of such prospectus supplement
or post-effective amendment promptly after notification of the matters to
be incorporated in such prospectus supplement or post-effective amendment;
(viii) furnish to the Purchaser, each placement or sales agent, if
any, therefor, each underwriter, if any, thereof and the respective counsel
referred to in Section 3(a)(iii) a copy of such registration statement in
the form in which it became effective, each such amendment and supplement
thereto (in each case including all exhibits thereto and documents
incorporated by reference therein) and such number of copies of such
registration statement (excluding exhibits thereto and documents
incorporated by reference therein unless specifically so requested by the
Purchaser, agent or underwriter, as the case may be) and of the prospectus
included in such registration .statement (including each preliminary
prospectus and any summary prospectus), in conformity with the requirements
of the Securities Act, and such other documents, as the Purchaser, agent,
if any, and underwriter, if any, may reasonably request in order to
facilitate the offering and disposition of the Shares owned by the
Purchaser, offered or sold by such agent or underwritten by such
underwriter and to permit the Purchaser, agent and underwriter to satisfy
the prospectus delivery requirements of the Securities Act; and the Company
hereby consents to the use of such prospectus (including such preliminary
and summary prospectus) and any amendment or supplement thereto by the
Purchaser and by any such agent and underwriter, in each case in the form
most recently provided to such party by the Company, in connection with the
offering and sale of the Shares covered by the prospectus (including such
preliminary and summary prospectus) or any supplement or amendment thereto;
(ix) use its best efforts to (A) register or qualify the Shares to be
included in such registration statement under such securities laws or blue
sky laws of such jurisdictions as the Purchaser and each placement or sales
agent, if any, therefor and underwriter, if any, thereof shall reasonably
request, (B) keep such registrations or qualifications in effect and comply
with such laws so as to permit the continuance of offers, sales and
dealings therein in such jurisdictions during the respective periods such
registration statements are required to remain effective under Section 2
above and for so long as may be necessary to enable the Purchaser or any
agent or underwriter to complete its distribution of Shares pursuant to
such registration statement and (C) take any and all other actions as may
be reasonably necessary or advisable to enable the Purchaser, agent, if
any, and underwriter, if any, to consummate the disposition in such
jurisdictions of such Shares; provided, however, that the Company
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shall not be required for any such purpose to (I) qualify as a foreign
corporation in any jurisdiction wherein it would not otherwise be required
to qualify but for the requirements of this Section 3(a)(ix) or (II)
consent to general service of process in any such jurisdiction;
(x) use its best efforts to obtain the consent or approval of each
governmental agency or authority, whether federal, state or local, which
may be required to effect the Shelf Registration or the offering or sale in
connection therewith or to enable the Purchaser to offer, or to consummate
the disposition of, its Shares;
(xi) cooperate with the Purchaser and the managing underwriters, if
any, to facilitate the timely preparation and delivery of any certificates
representing Shares to be sold, which certificates shall be printed,
lithographed or engraved, or produced by any combination of such methods,
and which shall not, once sold under the Shelf Registration, bear any
restrictive legends; and, in the case of an underwritten offering, enable
such Shares to be in such denominations and registered in such names as the
managing underwriters may request at least two business days prior to any
sale of the Shares:
(xii) enter into one or more underwriting agreements, engagement
letters, agency agreements or similar agreements, as appropriate, including
(without limitation) customary provisions relating to indemnification and
contribution, and take such other actions in connections therewith as the
Purchaser shall reasonably request in order to expedite or facilitate the
disposition of the Shares;
(xiii) notify the Purchaser in writing of any proposal by the Company
to amend or waive any provision of these Registration Rights pursuant to
Section 7(g) hereof and of any amendment or waiver effected pursuant
thereto, each of which notices shall contain the text of the amendment or
waiver proposed or effected, as the case may be;
(xiv) in the event that any broker-dealer registered under the
Exchange Act shall underwrite any Shares or participate as a member of an
underwriting syndicate or selling group or "assist in the distribution"
(within the meaning of the Rules of Fair Practice and the By-Laws of the
National Association of Securities Dealers, Inc. ("NASD")) thereof, whether
as an underwriter, a placement or sales agent or a broker or dealer in
respect thereof, or otherwise, assist such broker-dealer in complying with
the requirements of such Rules and By-Laws, including, without limitation,
by providing such information to such broker-dealer as may be required in
order for such broker-dealer to comply with the requirements of the Rules
of Fair Practice of the NASD;
(xv) comply with all applicable rules and regulations of the
Commission, and make generally available to its security holders as soon as
practicable but in any event not later than eighteen months after the
effective date of such registration statement, an earning statement of the
Company and its subsidiaries complying with Section 1l(a) of the Securities
Act (including, at the option of the Company, Rule 158 thereunder); and
(xvi) use its best efforts to have the Shares approved for trading on
the Nasdaq National Market.
(b) In the event that the Company would be required, pursuant to Section
3(a)(v)(F) above, to notify the Purchaser, the placement or sales agent, if any,
therefor and the managing underwriters, if any, thereof, the Company shall
without delay prepare and furnish to the Purchaser, to each placement or sales
agent,
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if any, and to each underwriter, if any, a reasonable number of copies of a
prospectus supplemented or amended in form and substance reasonably satisfactory
to them, so that, as thereafter delivered to purchasers of Shares, such
prospectus shall not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then existing.
The Purchaser agrees that upon receipt of any notice from the Company pursuant
to Section 3(a)(v)(F) hereof, the Purchaser shall forthwith discontinue the
disposition of Shares pursuant to the registration statement applicable to such
Shares until the Purchaser shall have received copies of such amended or
supplemented prospectus, and if so directed by the Company, the Purchaser shall
deliver to the Company (at the Company's expense) all copies, other than
permanent file copies, then in the Purchaser's possession of the prospectus
covering such Shares at the time of receipt of such notice.
(c) The Company may require the Purchaser to furnish to the Company such
information regarding the Purchaser and the Purchaser's intended method of
distribution of the Shares as the Company may from time to time reasonably
request in writing, but only to the extent that such information is required in
order to comply with the Securities Act. The Purchaser agrees to notify the
Company as promptly as practicable of any inaccuracy or change in information
previously furnished by the Purchaser to the Company or of the occurrence of any
event in either case as a result of which any prospectus relating to such
registration contains or would contain an untrue statement of a material fact
regarding the Purchaser or the Purchaser's intended method of distribution of
such Shares or omits to state any material fact regarding the Purchaser or the
Purchaser's intended method of distribution of such Shares required to be stated
therein or necessary to make the statements therein not misleading in light of
the circumstances then existing, and promptly to furnish to the Company any
additional information required to correct and update any previously furnished
information or required so that such prospectus shall not contain, with respect
to the Purchaser or the distribution of such Shares, 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 light of the
circumstances then existing. The Purchaser agrees that upon delivering any
notice to the Company pursuant to this Section 3(c), the Purchaser shall
forthwith discontinue the disposition of Shares pursuant to the registration
statement applicable to such Shares until the Purchaser shall have received
copies of such amended or supplemented prospectus, and if so directed by the
Company, the Purchaser shall deliver to the Company (at the Company's expense)
all copies, other than permanent file copies then in the Purchaser's possession
of the prospectus covering such Shares at the time of receipt of such notice.
4. Registration Expenses.
The Company agrees to bear and to pay or cause to be paid promptly upon
request being made therefor all expenses incident to the Company's performance
of or compliance with these Registration Rights as they relate to the Shelf
Registration, including, without limitation, (i) all Commission and any NASD
registration and filing fees and expenses, (ii) all fees and expenses in
connection with the qualification of the Shares for offering and sale under the
State securities and blue sky laws referred to in Section 3(a)(ix) hereof,
including reasonable fees and disbursements of counsel for the placement or
sales agent or underwriters in connection with such qualifications, (iii) all
fees and expenses in connection with the approval for trading of the Shares on
the Nasdaq National Market, (iv) all expenses relating to the preparation,
printing, distribution and reproduction of each registration statement required
to be filed hereunder, each prospectus included therein or prepared for
distribution pursuant hereto, each amendment or supplement to the foregoing, the
certificates representing the Shares and all other documents relating hereto,
(v) internal expenses (including, without limitation, all salaries and expenses
of the Company's officers and employees performing legal or accounting duties),
and (vi) fees, disbursements and expenses of counsel and independent certified
public accountants of the Company (including the expenses of any opinions or
"cold comfort" letters required by or incident to such
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performance and compliance) (collectively, the "Registration Expenses").
Notwithstanding the foregoing, the Purchaser shall pay all agency fees and
commissions and underwriting discounts and commissions attributable to the sale
of the Shares and the fees and disbursements of any counsel or other advisors or
experts retained by the Purchaser.
5. Representations and Warranties.
The Company represents and warrants to, and agrees with, the Purchaser
that:
(a) Each registration statement covering Shares and each prospectus
(including any preliminary or summary prospectus) contained therein or furnished
pursuant to Section 3(a)(viii) hereof and any further amendments or supplements
to any such registration statement or prospectus, when it becomes effective or
is filed with the Commission, as the ease may be, and, in the case of an
underwritten offering of Shares, at the time of the closing under the
underwriting agreement relating thereto will conform in all material respects to
the requirements of the Securities Act, and will not contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and at all
times subsequent to the Effective Time when a prospectus would be required to be
delivered under the Securities Act, other than from (i) such time as a notice
has been given to the Purchaser pursuant to Section 3(a)(v)(F) hereof until (ii)
such time as the Company furnishes an amended or supplemented prospectus
pursuant to Section 3(b) hereof, each such registration statement, and each
prospectus (including any summary prospectus) contained therein or furnished
pursuant to Section 3(a)(viii) hereof, as then amended or supplemented, will
conform in all material respects to the requirements of the Securities Act, and
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing;
provided, however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with information
furnished in writing to the Company by the Purchaser expressly for use therein.
(b) Any documents incorporated by reference in any prospectus referred
to in Section 5(a) hereof, when they become or became effective or are or were
filed with the Commission, or if amended, when amended, as the case may be, will
conform or conformed in all material respects to the requirements of the
Exchange Act, and none of such documents will contain or contained an untrue
statement of a material fact or will omit or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by the Purchaser expressly
for use therein.
6. Indemnification.
(a) Indemnification by the Company. Upon the registration of Shares
pursuant to Section 2 hereof, and in consideration of the agreements of the
Purchaser contained herein, and as an inducement to the Purchaser to purchase
the Convertible Notes, the Company shall, and it hereby agrees to, indemnify and
hold harmless the Purchaser and each person who participates as a placement or
sales agent or as an underwriter in any offering or sale of such Shares against
any losses, claims, damages or liabilities, joint or several, to which the
Purchaser or any such agent or underwriter may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
registration statement under which such Shares were registered under the
Securities Act, or any preliminary,
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final or summary prospectus contained therein or furnished by the Company to the
Purchaser, agent or underwriter, or any amendment or supplement thereto, or
arise out of or are based upon 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, and the Company shall, and it hereby agrees
to, reimburse the Purchaser, such agent and such underwriter for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such action or claim as such expenses are incurred; provided,
however, that the Company shall not be liable to any such person in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such registration statement, or preliminary, final or
summary prospectus, or amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by such person
expressly for use therein; provided further, however, that the Company shall not
be liable to any such Person if such Person failed to deliver a prospectus in
the form most recently provided by the Company (including any amendments or
supplements thereto previously provided by the Company), in any such case to the
extent that any loss, claim, damage or liability arises out of or is based upon
an untrue statement or an omission which was corrected in such most recently
furnished prospectus (including any such amendments or supplements).
(b) Indemnification by the Purchaser and any Agents and Underwriters.
The Company may require, as a condition to including any Shares in any
registration statement filed pursuant to Section 2 hereof and to entering into
an underwriting agreement, if any, with respect thereto, that the Company shall
have received an undertaking reasonably satisfactory to it from the Purchaser
and from each underwriter, if any, named in any such underwriting agreement,
severally and not jointly, to (i) indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact contained in such registration statement, or any preliminary, final or
summary prospectus contained therein or furnished by the Company to the
Purchaser, agent or underwriter, or any amendment or supplement thereto, or
arise out of or are based upon 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, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by the Purchaser or underwriter expressly
for use therein, and (ii) reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending
any such action or claim as such expenses are incurred.
(c) Notices of Claims. Etc. Promptly after receipt by an indemnified
party under subsection (a) or (b) above of written notice of the commencement of
any action, such indemnified party shall, if a claim in respect thereof is to be
made against an indemnifying party pursuant to the indemnification provisions of
or contemplated by this Section 6, notify such indemnifying party in writing of
the commencement of such action; but the omission so to notify the indemnifying
party shall not relieve it from any liability which it may have to any
indemnified party other than under the indemnification provisions of or
contemplated by Section 6(a) or 6(b) hereof. In case any such action shall be
brought against any indemnified party and it shall notify an indemnifying party
of the commencement thereof, such indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, such indemnifying party shall not be
liable to such indemnified party for any legal expenses of other counsel or any
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other expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation.
(d) Contribution. Each party hereto agrees that, if for any reason the
indemnification provisions contemplated by Section 6(a) or Section 6(b) are
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, claims, damages or liabilities (or actions in respect thereof)
referred to .therein, then each indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received by
indemnified party on the one hand and the indemnifying party on the other from
any offering of the Shares. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection (c) above,
then each indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the indemnifying party and
the indemnified party in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Purchaser on the other
shall be deemed to be in the same proportion as the total purchase price
received by the Company upon issuance of the Convertible Note bears to the
difference between the proceeds from the offering of the Shares received by the
Purchaser and such purchase price. The relative fault of such indemnifying party
and indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by
such indemnifying party or by such indemnified party, and the parties relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree that it would not be just
and equitable if contributions pursuant to this Section 6(d) were determined by
pro rata allocation (even if the Purchaser or any agents or underwriters or all
of them were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to in this Section 6(d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, or liabilities (or actions in respect
thereof) referred to above shall be deemed to include any legal or other fees or
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6(d), the Purchaser shall not be required to
contribute any amount in excess of the amount by which the dollar amount of the
proceeds received by the Purchaser from the sale of any Shares (after deducting
any fees, discounts and commissions applicable thereto) exceeds the amount of
any damages which the Purchaser has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission, and no
underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Shares underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages which
such underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 1 l(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. Any underwriters' obligations in
this Section 6(d) to contribute shall be several in proportion to the principal
amount of Shares underwritten by them and not joint.
(e) The obligations of the Company under this Section 6 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and Conditions, to each officer, director and partner of the
Purchaser, any agent and any underwriter and each person, if any, who controls
the Purchaser or any agent or underwriter within the meaning of the Securities
Act; and the obligations of the Purchaser and any agents and underwriters
contemplated by this Section 6 shall be in addition to any
9
liability which the Purchaser or any such agent or underwriter, respectively,
may otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company (including any person who, with his consent,
is named in any registration statement as about to become a director of the
Company) and to each person, if any, who controls the Company within the meaning
of the Securities Act.
7. Miscellaneous.
(a) No Inconsistent Agreements. The Company represents, warrants,
covenants and agrees that it has not granted, and shall not grant, registration
rights with respect to Shares or any other securities which would conflict with
the terms contained in these Registration Rights.
(b) Specific Performance. The parties hereto acknowledge that there
may be no adequate remedy at law if any party fails to perform any of its
obligations hereunder and that each party may be irreparably harmed by any such
failure, and accordingly agree that each party, in addition to any other remedy
to which it may be entitled at law or in equity, shall be entitled to compel
specific performance of the obligations of any other party under these
Registration Rights in accordance with the terms and conditions of these
Registration Rights, in any court of the United States or any State thereof
having jurisdiction.
(c) Notices. Any notice or other communication required or permitted
to be given hereunder shall be deemed effectively given when personally
delivered, telexed, transmitted by facsimile or mailed by pre-paid certified
mail, return receipt requested, or by telephone when confirmed in writing by one
of the preceding methods addressed as follows (as applicable):
If to the Company, to:
Celgene Corporation
0 Xxxxxx Xxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxx
Telephone Number: (000) 000-0000 '
Facsimile Transmission Number: (000) 000-0000
with a copy to:
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Telephone Number: (000) 000-0000
Facsimile Transmission Number: (000) 000-0000
10
If to Warburg Dillon Read LLC, to:
Warburg Dillon Read LLC
000 Xxxxxxxxxx Xxxx.
Xxxxxxxx, XX 00000
Attention: General Counsel
Capital Markets
Telephone Number: (000) 000-0000
Facsimile Transmission Number: (000) 000-0000
or to such other address or number and to the attention of such other person as
either party may designate by written notice to the other party. Notice shall be
effective upon actual receipt.
(d) Survival. The respective indemnities, agreements, representations,
warranties and each other provision set forth in these Registration Rights or
made pursuant hereto shall remain in full force and effect regardless of any
investigation (or statement as to the results thereof) made by or on behalf of
the Purchaser, any director, officer or partner of the Purchaser, any agent or
underwriter or any director, officer or partner thereof, or any controlling
person of any of the foregoing.
(e) Law Governing. These Registration Rights shall be governed by and
construed in accordance with the laws of the State of New York.
(f) Headings. The descriptive headings of the several Sections and
paragraphs of these Registration Rights are inserted for convenience only, do
not constitute a part of these Registration Rights and shall not affect in any
way the meaning or interpretation of these Registration Rights.
(g) Entire Agreement: Amendments. These Registration Rights and the
other writings referred to herein or delivered pursuant hereto which form a part
hereof contain the entire understanding of the parties with respect to its
subject matter. These Registration Rights supersede all prior agreements and
understandings between the parties with respect to its subject matter. These
Registration Rights may be amended and the observance of any term of these
Registration Rights may be waived (either generally or in a particular instance
and either retroactively or prospectively) only by a written instrument duly
executed by the Company and the Purchaser.
(h) Assignment. In connection with. any permitted transfer of the
Convertible Note or any portion thereof in a principal amount of not less than
$1,000,000 the Purchaser may assign its rights hereunder in respect of such
Convertible Note to the transferee. Upon such assignment the transferee shall,
insofar as the transferred Convertible Notes are concerned, be entitled to all
of the rights, and be subject to all of the obligations, of the Purchaser under
these Registration Rights, and all references to the "purchaser" herein shall
thereafter be deemed to refer to the Purchaser, or such transferee, or both, as
the circumstances warrant.
(i) Counterparts. This agreement may be executed by the parties
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
11
Agreed to and accepted as of the date referred to above.
CELGENE CORPORATION
By:
----------------------------
Name:
Title:
WARBURG DILLON READ LLC
By:
----------------------------
Name:
Title:
